Exhibit 10.5


 


 


 


THIRD AMENDED AND RESTATED
REGISTRATION RIGHTS


AGREEMENT


 


by and among


 


AFFORDABLE RESIDENTIAL COMMUNITIES
INC.


 


and


 


The parties listed on Exhibit A,
Exhibit B, Exhibit C and Exhibit D hereto


 


 






 


Dated as of February 18, 2004


 


 


 


 

















 


TABLE OF CONTENTS


 


	
  1.

  	
   

  	
  Definitions

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  Shelf Registration
  Statements

  	
   

  
	
   

  	
   

  	
  (a)

  	
  Shelf Registration of
  Warrants

  	
   

  
	
   

  	
   

  	
  (b)

  	
  Shelf Registration
  of Common Stock

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  Demand
  Registrations

  	
   

  
	
   

  	
   

  	
  (a)

  	
  Requests for Registration

  	
   

  
	
   

  	
   

  	
  (b)

  	
  Registration Statement
  Form

  	
   

  
	
   

  	
   

  	
  (c)

  	
  [Reserved]

  	
   

  
	
   

  	
   

  	
  (d)

  	
  Priority on Demand
  Registrations

  	
   

  
	
   

  	
   

  	
  (e)

  	
  Limits on Demand
  Registrations

  	
   

  
	
   

  	
   

  	
  (f)

  	
  Restrictions on
  Demand Registrations

  	
   

  
	
   

  	
   

  	
  (g)

  	
  Pre-emption of
  Demand Registration

  	
   

  
	
   

  	
   

  	
  (h)

  	
  Selection of Underwriters

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  4.

  	
  Piggyback Registrations

  	
   

  
	
   

  	
   

  	
  (a)

  	
  Right to
  Piggyback

  	
   

  
	
   

  	
   

  	
  (b)

  	
  [Reserved]

  	
   

  
	
   

  	
   

  	
  (c)

  	
  Priority on Primary
  Registrations

  	
   

  
	
   

  	
   

  	
  (d)

  	
  Priority on
  Secondary Registrations

  	
   

  
	
   

  	
   

  	
  (e)

  	
  Expiration
  of Partnership Unit Holder Piggyback Rights

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  Holdback
  Agreements

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  6.

  	
   

  	
  Registration
  Procedures

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  7.

  	
   

  	
  Registration
  Expenses

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  8.

  	
   

  	
  Indemnification

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


 


i

















 


	
  9.

  	
   

  	
  Participation
  in Underwritten Registrations

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  10.

  	
   

  	
  Rule 144
  Reporting

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  11.

  	
   

  	
  Notices

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  12.

  	
   

  	
  Miscellaneous

  	
   

  
	
   

  	
   

  	
  (a)

  	
  Other Registration Rights

  	
   

  
	
   

  	
   

  	
  (b)

  	
  No Inconsistent Agreements

  	
   

  
	
   

  	
   

  	
  (c)

  	
  Remedies

  	
   

  
	
   

  	
   

  	
  (d)

  	
  Amendments
  and Waivers

  	
   

  
	
   

  	
   

  	
  (e)

  	
  Successors
  and Assigns

  	
   

  
	
   

  	
   

  	
  (f)

  	
  Severability

  	
   

  
	
   

  	
   

  	
  (g)

  	
  Counterparts

  	
   

  
	
   

  	
   

  	
  (h)

  	
  Descriptive
  Headings

  	
   

  
	
   

  	
   

  	
  (i)

  	
  Recapitalizations,
  Exchanges Affecting the Registrable Securities

  	
   

  
	
   

  	
   

  	
  (j)

  	
  Governing Law

  	
   

  
	
   

  	
   

  	
  (k)

  	
  Third Party Beneficiaries

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit A

  	
   

  	
  Subscribers

  	
   

  
	
  Exhibit B

  	
   

  	
  Original Investors

  	
   

  
	
  Exhibit C

  	
   

  	
  Reorganization Shareholders

  	
   

  
	
  Exhibit D

  	
   

  	
  Partnership Unit Holders

  	
   

  



 


 


ii

















 


THIRD AMENDED AND RESTATED
REGISTRATION RIGHTS

AGREEMENT


 


THIS
THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this “Agreement”),
dated as of February 18, 2004 is by and among Affordable Residential
Communities Inc., a Maryland corporation (the “Company”) and the parties
listed on Exhibit A (the “Subscribers”), Exhibit B (the “Original
Investors”), Exhibit C (the “Reorganization Shareholders”)
and Exhibit D (the “Partnership Unit Holders”) hereto, as amended
from time to time.  Capitalized terms used but not otherwise defined
herein have the meanings set forth in Section 1 hereof.


 


WHEREAS,
the Company and the Original Investors entered into a subscription and stock
purchase agreement, dated as of September 30, 1998, pursuant to which the
Company agreed to issue and sell, and the Original Investors agreed to
purchase, shares of Common Stock (the “1998 Subscription Agreement”);


 


WHEREAS,
in connection with the execution of the 1998 Subscription Agreement, the
Company and the Original Investors executed a Registration Rights Agreement,
dated as of September 30, 1998 (the “Original Agreement”);


 


WHEREAS,
the Company and the Subscribers entered into a subscription and stock purchase
agreement, dated as of August 9, 2000 (as amended, the “2000
Subscription Agreement”) pursuant to which the Company agreed to issue and
sell, and the Subscribers agreed to purchase, shares of Common Stock;


 


WHEREAS,
concurrently with the execution of the 2000 Subscription Agreement, the Company
and the Subscribers amended and restated the Original Agreement (as amended and
restated, the “First Amended and Restated Registration Rights Agreement”)
to modify certain of its terms and add Capital ARC Holdings, LLC f/k/a UBS
Capital ARC Holdings, LLC (“UBS”) and The Travelers Indemnity Company (“Travelers”)
as parties thereto;


 


WHEREAS,
the Company and certain of its affiliates entered into an Agreement and Plan of
Reorganization, dated as of April 6, 2002 (as may be amended, the “Reorganization
Agreement”) which provided for certain reorganization transactions
involving the Company and certain of its affiliates (collectively, the “Reorganization”);


 


 

















 


WHEREAS,
in connection with the Reorganization (i) the Company issued additional shares
of Common Stock which were distributed to the Reorganization Shareholders, and
(ii) ARC IV issued Partnership Units to the Partnership Unit Holders, which
Partnership Units are redeemable in exchange for cash or, at the Company’s
election, shares of Common Stock;


 


WHEREAS,
in connection with the Reorganization the Company and the Subscribers amended
and restated the First Amended and Restated Registration Rights Agreement (as
amended and restated, the “Second Amended and Restated Registration Rights
Agreement”) to modify certain of its terms and add the Reorganization
Shareholders and the Partnership Unit Holders as parties thereto;


 


WHEREAS,
the Company proposes to effect an initial public offering (the “IPO”) of
shares of Common Stock;


 


WHEREAS,
in connection with the IPO the Company and the holders of a majority of the
Registrable Securities desire to amend and restate the Second Amended and
Restated Registration Rights Agreement to modify certain of its terms;


 


WHEREAS,
the Second Amended and Restated Registration Rights Agreement provides that
such agreement may be amended only upon the written consent of the Company and
the holders of a majority of the Registrable Securities under the Second Amended
and Restated Registration Rights Agreement; and


 


WHEREAS,
this Agreement has been executed by the Company and the holders of a majority
of the Registrable Securities under the Second Amended and Restated
Registration Rights Agreement.


 


NOW,
THEREFORE, in consideration of the mutual covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties to this Agreement hereby agree as follows:


 


1.                                      
Definitions.  As used herein, the following terms shall have
the following meanings:


 


 


2

















 


“Aggregate
Offering Price” means an amount equal to the product of (i) the Average
Closing Price and (ii) the aggregate number of Registrable Securities held by a
Demand Party in respect of which such demand for registration is being made.


 


“ARC
LP” means Affordable Residential Communities LP, a Delaware limited
partnership.


 


“ARC
LP Partnership Agreement” means the First Amended and Restated Agreement of
Limited Partnership of ARC LP,  dated as of February 11, 2004, as
amended from time to time.


 


“Average
Closing Price” means, with respect to any Registrable Security, the average
of the closing sale prices of such Registrable Security as reported on a
national securities exchange or quoted on The Nasdaq Stock Market during the
Valuation Period.


 


“Business
Day” means any calendar day which is not a Saturday, Sunday or a day on
which banks in the State of New York are generally closed for regular business.


 


“Common
Stock” means the common stock, $0.01 par value per share, of the Company.


 


“Demand
Party” means any Holder or Holders that, either individually or in the
aggregate with all other Holders with whom or on whose behalf it is acting to
demand registration, holds not less than 9% of the class of Registrable
Securities in respect of which such demand for registration is being made, provided,
however, that in no event shall any Partnership Unit Holder (a) comprise
all or part of any Demand Party hereunder or (b) otherwise have any right,
either alone or with any other Holder or Holders, to request registration
pursuant to Section 3(a)(i) of this Agreement.


 


“Exchange
Act” means the Securities Exchange Act of 1934, as amended, or any
successor statute.


 


“Holder”
means the Subscribers, the Original Investors, the Reorganization Shareholders,
the Partnership Unit Holders and any transferee which is or becomes the
beneficial owner of Registrable Securities.  For purposes of determining
the number of Registrable Securities held by a Holder, for purposes of this
Agreement but not for any


 


 


3

















 


other purpose, any holder
of record of a Warrant shall be deemed to be a Holder of the number of shares
of Common Stock underlying such Warrants.


 


“Nassau”
means, collectively, Nassau Capital Partners II, L.P., Nassau Capital Funds
L.P. and NAS Partners I, L.L.C.


 


“Partnership
Unit” shall have the meaning assigned to such term in the ARC LP
Partnership Agreement.


 


“Partnership
Unit Holders” means the Person listed on Exhibit D hereto.


 


“Person”
means an individual, corporation, partnership, trust, joint venture, limited
liability company, unincorporated organization or other legal entity or a
government or any agency or political subdivision thereof.


 


“Qualified
Public Offering” means the completion of the sale of shares of Common
Stock, whether by the Company and/or for the account of one or more
shareholders of the Company, pursuant to an effective registration statement
under the Securities Act (other than a special purpose registration statement
such as an S-8 or an S-4) in which the aggregate gross proceeds of such sale,
together with the aggregate gross proceeds of any such underwritten public
offerings previously completed, equal or exceed $100,000,000, provided that
after the completion of such sale the shares of Common Stock are listed on a
national securities exchange or are authorized for quotation on The Nasdaq Stock
Market.


 


“Registrable
Securities” means (i) shares of Common Stock issued (A) to the Original
Investors from time to time pursuant to the 1998 Subscription Agreement, (B) to
the Subscribers from time to time pursuant to the 2000 Subscription Agreement,
(C) upon exercise of the Warrants, (D) upon completion of the transactions
contemplated by the Reorganization Agreement (including any such shares
distributed to any member of ARC Holdings Limited Liability Company upon its
liquidation) but not including any shares issued or issuable pursuant to any
management incentive plan and (E) upon redemption of any Partnership Unit
issued by ARC LP to a Partnership Unit Holder upon completion of the
transactions contemplated by the Reorganization Agreement, (ii) any shares of
stock of the Company or any successor corporation issued or issuable in respect
of the Common Stock referred to in clause (i) above, whether by way of a split
of interests or dividends or in connection with a combination of such Common
Stock, recapitalization, merger, consolidation or other reorganization or
otherwise, and (iii) Warrants; provided, however,


 


4

















 


that such securities
shall cease to be Registrable Securities when (i) a registration statement with
respect to the sale of such securities shall have become effective under the
Securities Act and such securities shall have been disposed of in accordance
with such registration statement, (ii) they shall have been distributed to the
public pursuant to Rule 144 (or any successor provisions) under the Securities
Act, (iii) they shall have been otherwise transferred, new certificates for
them not bearing a legend restricting further transfer shall have been
delivered by the Company and subsequent disposition of them shall not require
registration or qualification under the Securities Act or any state securities
or blue sky law then in force, (iv) they shall have ceased to be outstanding,
or (v) solely with respect to the shares of Common Stock covered by
clause (i)(E) above, the “shelf” registration statement with respect to
such shares contemplated by Section 8.8 of the ARC LP Partnership
Agreement shall have become effective under the Securities Act in accordance
with the provisions of such Section 8.8, after which time the securities
covered by clause (i)(E) above shall no longer be Registrable Securities
(except as otherwise provided in Section 4(e)).


 


“Registration”
means any registration of the securities of the Company under the Securities Act
(including without limitation, any Demand Registration or Piggyback
Registration) pursuant to the terms of this Agreement.


 


“Registration
Expenses” means all expenses incurred or incident to the Company’s
performance of or compliance with this Agreement, including without limitation
all registration and filing fees (including any such fees paid or payable to
the National Association of Securities Dealers, Inc., any stock exchange or The
Nasdaq Stock Market), fees and expenses of compliance with securities or blue
sky laws, printing expenses, messenger and delivery expenses, and fees and
disbursements of counsel for the Company and all independent certified public
accountants (including the costs of any accountants’ “comfort letters”),
underwriters (excluding underwriting discounts and commissions with respect to
any Registrable Securities) and other Persons retained by the Company.


 


“Reorganization
Shareholders” means the Persons listed on Exhibit C hereto.


 


“Rule
144” means Rule 144 under the Securities Act (or any similar rule then in
force).


 


“SEC”
means the Securities and Exchange Commission.


 


 


5

















 


“Securities
Act” means the Securities Act of 1933, as amended, or any successor
statute.


 


“Shareholders”
means, collectively, the Subscribers, the Original Investors and the
Reorganization Shareholders.


 


“THL”
means, collectively, Thomas H. Lee Charitable Investments, Thomas H. Lee
Foreign Fund IV-B, L.P., Thomas H. Lee Equity Fund IV, L.P., Thomas H. Lee Foreign
Fund IV, L.P. and Thomas H. Lee Investors Limited Partnership and all
shareholders affiliated with Thomas H. Lee Partners.


 


“Valuation
Period” means the thirty (30) consecutive trading days during which the
applicable Registrable Security is traded on a national securities exchange or
quoted on The Nasdaq Stock Market ending on the calender day immediately prior
to the date a Demand Party requests a Demand Registration.


 


“Violation”
means any untrue or alleged untrue statement of material fact contained in any
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
(in the case of any prospectus, preliminary prospectus or any amendment or
supplement thereto, in light of the circumstances under which they were made)
not misleading.


 


“Warrants”
means the warrants to purchase an aggregate of 723,627 shares of Common Stock
granted to the Original Investors prior to the date of the First Amended and
Restated Registration Rights Agreement.


 


2.                                      
Shelf Registration Statements.


 


(a)                                 
Shelf Registration of Warrants.  As promptly as practicable following the date
when the Company first becomes eligible for use of a registration statement on
Form S-3 of the SEC (or any similar short form registration statement which is
a successor to Form S-3) the Company shall file with the SEC a registration
statement on Form S-3 (or any successor form) (together with the prospectus
included therein, the “Warrant Shelf Registration Statement”) pursuant
to Rule 415 of the Securities Act in order to register with the SEC the resale,
from time to time, by the Holders thereof, of all of the Warrants constituting
Registrable Securities (including all shares of Common Stock


 


 


6

















 


issuable upon exercise of
the Warrants).  The Company shall use its reasonable best efforts to keep
the Warrant Shelf Registration Statement effective in order to permit the
prospectus forming a part thereof to be usable by the Holders of the Warrants
for the sale of the Warrants and, upon their sale, to cover (if permitted by
applicable law and by the SEC) the issuance of shares of Common Stock upon any
exercise thereof, until all of the Warrants (including all shares of Common
Stock issuable upon exercise of the Warrants) registered thereunder have been
distributed (or issued in the case of the Common Stock underlying the Warrants)
as contemplated thereby, but in any event, with respect to the Warrants, not
later than the fourth anniversary of the date the Warrant Shelf Registration
Statement is declared effective by the SEC.  The foregoing
notwithstanding, the Company shall have the right in its sole discretion, based
on any valid business purpose (including, without limitation, to avoid the
disclosure of any material non-public information that the Company is not otherwise
obligated to disclose), to suspend the use of the Warrant Shelf Registration
Statement for a reasonable length of time (a “Warrant Shelf Delay Period”)
and from time to time; provided that the aggregate number of days in all
Warrant Shelf Delay Periods occurring in any period of twelve consecutive
months shall not exceed 90 days.  The Company shall provide written notice
to each Holder of Warrants covered by the Warrant Shelf Registration Statement
of the beginning and the end of each Warrant Shelf Delay Period and such
Holders shall cease all disposition efforts pursuant to the Warrant Shelf
Registration Statement with respect to all Warrants held by them immediately
upon receipt of notice of the beginning of any Warrant Shelf Delay Period and
shall maintain in confidence the fact that such notice has been provided by the
Company.  Other than as set forth in this paragraph (a), the Holders of
Warrants shall not have any registration rights with respect to the Warrants
(or the Common Stock underlying such Warrants) under this Agreement.


 


(b)                                
Shelf Registration of Common Stock.  As promptly as practicable following the date
when the Company first becomes eligible for use of a registration statement on
Form S-3 of the SEC (or any similar short form registration statement which is
a successor to Form S-3) the Company shall file with the SEC a registration
statement on Form S-3 (or any successor form) (together with the prospectus
included therein, the “Common Stock Shelf Registration Statement”)
pursuant to Rule 415 of the Securities Act in order to register with the SEC
the resale, from time to time, by THL, UBS and Nassau of the Common Stock held
by each of them.  The Company shall provide piggyback registration rights,
in accordance with Section 4 hereof, to all other Shareholders who hold,
at the time of the initial filing of the Common Stock Shelf Registration
Statement, Registrable Securities constituting greater than 1% of the
outstanding shares of Common


 


 


7

















 


Stock.  The Company
shall use its reasonable best efforts to cause the Common Stock Shelf
Registration Statement to be declared effective as soon thereafter as is
practicable.  The Company shall use its reasonable best efforts to keep
the Common Stock Shelf Registration effective in order to permit the prospectus
forming a part thereof to be usable by the Shareholders named therein for the
sale of the Common Stock held by them, until all of the Common Stock registered
thereunder has been distributed as contemplated thereby, but in any event not
later than the fourth anniversary of the date the Common Stock Shelf
Registration Statement is declared effective by the SEC.  The foregoing
notwithstanding, the Company shall have the right in its sole discretion, based
on any valid business purpose (including, without limitation, to avoid the
disclosure of any material non-public information that the Company is not
otherwise obligated to disclose), to suspend the use of the Common Stock Shelf
Registration Statement for a reasonable length of time (a “Common Stock
Shelf Delay Period”) and from time to time; provided that the
aggregate number of days in all Common Stock Shelf Delay Periods occurring in
any period of twelve consecutive months shall not exceed 90 days.  The
Company shall provide written notice to each Shareholder named in the Common
Stock Shelf Registration Statement of the beginning and the end of each Common
Stock Shelf Delay Period, and each such Shareholder shall cease all disposition
efforts pursuant to the Common Stock Shelf Registration Statement with respect
to all Common Stock held by it immediately upon receipt of notice of the
beginning of any Common Stock Shelf Delay Period and shall maintain in confidence
the fact that such notice has been provided by the Company.


 


3.                                      
Demand Registrations.


 


(a)                                 
Requests for Registration.


 


(i)                                    
At any time and from time
to time after the closing of a Qualified Public Offering, a Demand Party may
request registration, whether underwritten or otherwise, under the Securities
Act of all or part of such Demand Party’s Registrable Securities (other than
Warrants and the Common Stock underlying such Warrants) in an amount equal to
not less than the lesser of (A) 25% of the total number of Registrable
Securities held by each Holder (each of Nassau and THL shall be deemed to be
one Holder for purposes of this clause (A)) comprising such Demand Party
of the class in respect of which such demand for registration is being made and
(B) $75,000,000 in Aggregate Offering Price of Registrable Securities. 
Each such request for a registration shall specify


 


 


8

















 


the approximate number and class of Registrable
Securities requested to be registered and the anticipated per share price range
for such offering.


 


(ii)                                 
Within ten (10) days
after receipt of any such request for a registration, the Company will give
written notice (a “Demand Notice”) of such requested registration
(including the number of Registrable Securities included and the possible
intended methods of disposition thereof) to all other Holders of Registrable
Securities, if any (including, in the case of a Demand Registration involving
Common Stock, all Partnership Unit Holders for purposes of this
Section 3(a)(ii) but subject to Section 4(e) hereof and all
applicable restrictions and limitations on the redemption of Partnership Units
set forth in the ARC LP Partnership Agreement, in order to afford such Holders
the opportunity to participate in such Demand Registration through a redemption
of Partnership Units in exchange for shares of Common Stock to be sold in the
related offering), and will include (subject to the provisions of this
Agreement) in such registration all Registrable Securities of the same class as
the securities being registered with respect to which the Company has received
written requests from any other Holders for inclusion therein within 20 days
after the receipt of the Demand Notice, provided, however, that
(A) if such Demand Registration involves an underwritten offering, all
Holders of Registrable Securities requesting to be included in such
registration must sell their Registrable Securities to the underwriters on the
same terms and conditions as apply to the Demand Party, and each such Holder
(including Partnership Unit Holders who request to be included in such
registration) shall, if requested by the underwriters, enter into a customary
holdback agreement with respect to such Holder’s Registrable Securities as
contemplated by Section 5(a) hereof, and (B) it shall be a condition to
the participation by any Partnership Unit Holder in any such Demand
Registration that no provision of the ARC LP Partnership Agreement shall
prohibit or restrict the redemption by such Partnership Unit Holder of any
Partnership Units as to which such Partnership Unit Holder has made a request
hereunder for inclusion in such Demand Registration and that (1) in the case of
an underwritten offering, such Partnership Unit Holder shall have delivered to
ARC LP a notice of redemption, together with the certificates evidencing the
Partnership Units to be converted into the Registrable Securities to be
included in such offering (the “Redemption Notice Package”) not less
than five (5) Business Days prior to the closing date of such offering, and (2)
in the case of any other offering, such Partnership Unit Holder shall have
delivered to ARC LP a Redemption Notice


 


 


9

















 


Package a reasonable time prior to the proposed sale
of such Holder’s Registrable Securities in such offering, as determined by the
Company.


 


(iii)                              
All registrations
requested pursuant to this Section 3(a) are referred to herein as “Demand
Registrations.”


 


(b)                                
Registration Statement Form.  Demand Registrations shall be on such appropriate
registration form of the SEC (i) as shall be selected by the Company and as
shall be reasonably acceptable to the Holders of 51% of the Registrable
Securities requested to be registered and (ii) as shall permit the disposition
of such Demand Party’s Registrable Securities in accordance with the intended
method or methods of disposition specified in their request for such
registration. If, in connection with any Demand Registration which is proposed
by the Company to be on Form S-3 or any similar short form registration
statement which is a successor to Form S-3, the managing underwriters, if any,
shall advise the Company in writing that in their opinion the use of another
permitted form is of material importance to the success of the offering, then
such Demand Registration shall be on such other permitted form.


 


(c)                                 
[Reserved]



 


(d)                                
Priority on Demand Registrations.  If a Demand Registration is an underwritten
offering and the managing underwriters advise in writing that in their opinion
the number of Registrable Securities requested to be included in such offering
exceeds the number of Registrable Securities which can be sold therein without
materially and adversely affecting the marketability of the offering, the
amount of Registrable Securities to be sold pursuant to such registration shall
be allocated pro rata among the
Holders of Registrable Securities desiring to participate in such registration
on the basis of the amount of such Registrable Securities requested to be
registered by such Holders.


 


(e)                                 
Limits on Demand Registrations.  The Holders of Registrable Securities shall
not be entitled to request more than one (1) Demand Registration during any six-month
period.


 


(f)                                   
Restrictions on Demand Registrations.  Notwithstanding anything to the contrary
contained herein:


 


 


10

















 


(i)                                    
the Company shall not
be obligated to effect (A) any Demand Registration within six months after the
effective date of the Company’s initial public offering or any previous Demand
Registration or (B) any Demand Registration that would cause the Company to violate
Section 5(b) of this Agreement;


 


(ii)                                 
the Company shall not
be required to effect a registration of Registrable Securities pursuant to this
Section 3 if it shall have delivered to the Demand Party a written opinion
of counsel to the Company of recognized national standing reasonably acceptable
to the Holders to the effect that the disposition of the Registrable Securities
with respect to which such demand has been made shall not require registration
under the Securities Act or any state securities or blue sky law then in force;
and


 


(iii)                              
the Company may
postpone or withdraw for a reasonable period, not to exceed ninety (90) days
(subject to extension for up to 45 additional days by a vote of a majority of
the members of the Company’s Board of Directors), the filing or the
effectiveness of a registration statement for a Demand Registration if based on
the good faith judgment of a majority of the members of the Company’s Board of
Directors and on advice of counsel, such postponement or withdrawal is
necessary in order to avoid premature disclosure of:  (1) a matter that
the Board of Directors has determined would not be in the best interest of the
Company to be disclosed at such time or (2) a material fact the disclosure of
which would have a material adverse effect on any proposal or plan by the
Company or any of its subsidiaries to engage in any acquisition of assets
(other than in the ordinary course of business) or any merger, consolidation,
tender offer or other significant transaction; provided, however,
that in no event shall the Company withdraw a registration statement after such
registration statement has been declared effective; provided  further,
however, that, to the extent applicable, such postponement or withdrawal
period shall terminate upon the completion or abandonment of the acquisition of
assets, merger, consolidation, tender offer or other significant transaction to
which such postponement or withdrawal relates.  The Company shall be
entitled to one (1) postponement or withdrawal (including any extension
thereof) in any 12 month period regardless of the number of days in such
postponement or withdrawal.  The Company shall provide prompt written
notice to the Holders of Registrable Securities initiating the request for such
Demand Registration of (x) any postponement or withdrawal of the filing or


 


 


11

















 


effectiveness of a registration statement pursuant to
this paragraph, (y) the Company’s decision to file or seek effectiveness of
such registration statement following such postponement or withdrawal and (z)
the effectiveness of such registration statement.  If the Company so
elects to postpone or withdraw a registration statement, such registration
shall not count as one of the permitted Demand Registrations of the Holders who
requested such registration.


 


(g)                                
Pre-emption of Demand Registration.  Notwithstanding anything to the contrary
contained herein, if at any time a Holder or Holders shall request a Demand
Registration pursuant to this Section 3, the Company may elect at that
time to effect an underwritten primary registration if, based on the good faith
judgment of a majority of the Company’s Board of Directors, it would be in the
best interests of the Company to access the public market to raise equity
capital.  If the Company elects to effect a primary registration after
receiving such a request for a Demand Registration, the Company will give prompt
written notice (and in any event within thirty (30) days after receiving such a
request for a Demand Registration) to all Holders of Registrable Securities of
the class to be registered of its intention to effect such a registration and
shall afford such Holders rights to Piggyback Registrations contained in
Section 4 hereof, except that if the managing underwriters of such
offering advise the Company in writing that in their opinion the number of
securities requested to be included in such registration exceeds the number
which can be sold in such offering without materially and adversely affecting
the marketability of such offering, the provisions of Section 4(d) hereof
shall not apply to such offering, and instead the Company shall include in such
registration the maximum number of securities which such underwriters advise
can be sold in such offering allocated (x) first, equally (as opposed to pro rata) among the Company, on the one
hand, and the Holders as a group, on the other hand (and reallocated among such
Holders pro rata on the basis of
the number of securities requested to be registered by such Holders), until
either the Company or the Holders as a group have been allocated the full
number of securities requested to be included in such registration by the
Company or the Holders, as the case may be, (y) second, to either the Company
or the Holders as a group (and reallocated among such holders pro rata on the basis of the number of
securities requested to be registered by such Holders), as the case may be, to
the extent that such party was not allocated the full number of its requested
securities pursuant to clause (x) above, until the Company or the Holders as a
group, as the case may be, have been allocated the full number of securities
requested to be included in such registration, and (z) third, to the holders of
all other securities requested to be included in such registration pro rata among such holders on the basis
of the number of securities requested to be registered by such holders. 
In the event


 


 


12

















 


that the Company so
elects to effect such a primary registration after receiving a request for such
a Demand Registration, such registration shall not count as one of the
permitted Demand Registrations of the Holders who requested such registration.


 


(h)                                
Selection of Underwriters.  In the case of a Demand Registration for an
underwritten offering, the Holders of a majority of the Registrable Securities
to be included in such Demand Registration will have the right to select the
investment banker(s) and manager(s) to administer the offering, which
investment banker(s) and manager(s) will be nationally recognized.  The
Company may select a nationally-recognized co-manager to participate in the
offering if the Company is offering any securities in the offering.


 


4.                                      
Piggyback Registrations.


 


(a)                                 
Right to Piggyback.  Whenever the Company proposes to
register any securities (the “Priority Securities”) under the Securities
Act (other than pursuant to (1) a Demand Registration, for which “piggyback”
rights are provided in Section 3 hereof, (2) the Warrant Shelf
Registration Statement, (3) the Common Stock Shelf Registration Statement
(except to the extent specifically referred to in Section 2(b) hereof),
(4) a registration of the issuance by the Company, or the resale by any holder
of Partnership Units, of any securities of the Company issued upon redemption
of such Partnership Units, (5) a registration statement on Form S-8 or Form S-4
or any similar form or (6) a registration the primary purpose of which is to
register debt securities), and a registration form to be used in such
registration may be used for the registration of Registrable Securities of the
same class (a “Piggyback Registration”), the Company shall give prompt
written notice (a “Piggyback Notice”) to all Holders of Registrable
Securities of such class (including, in the case of a Piggyback Registration
involving Common Stock, all Partnership Unit Holders for purposes of this
Section 4 but subject to Section 4(e) hereof and all applicable
restrictions and limitations on the redemption of Partnership Units set forth
in the ARC LP Partnership Agreement, in order to afford such Holders the
opportunity to participate in such Piggyback Registration through a redemption
of Partnership Units in exchange for shares of Common Stock to be sold in the
related offering) of its intention to effect such a registration. Subject to
Section 4(c) and 4(d), the Company shall include in any such registration
by it all Registrable Securities of the same class as the securities being
registered with respect to which it has received written requests for inclusion
therein from the Holders thereof within 20 days after the receipt of the
Company’s Piggyback Notice; provided, however, that (A) if such
Piggyback Registration involves an underwritten offering, all Holders of
Registrable Securities requesting to be included in such registration


 


 


13

















 


must sell their
Registrable Securities to the underwriters selected by the Company on the same
terms and conditions as apply to the Company, and each such Holder (including
Partnership Unit Holders who request to be included in such registration)
shall, if requested by the underwriters, enter into a customary holdback
agreement with respect to such Holder’s Registrable Securities as contemplated
by Section 5(a) hereof, (B) if, at any time after giving written notice
pursuant to this Section 4(a) of its intention to register any Priority
Securities and prior to the effective date of the registration statement filed
in connection with such registration, the Company shall determine for any
reason not to register such Priority Securities, the Company shall give written
notice to all Holders of Registrable Securities and shall thereupon be relieved
of its obligation to register any Registrable Securities in connection with
such registration (without prejudice, however, to rights of Holders of
Registrable Securities under Section 3), (C) in the event of the initial
public offering by the Company of shares of Common Stock, the Company may
determine, in its sole and absolute discretion, that such registered offering
shall not constitute a Piggyback Registration for purposes of this
Section 4 only, and in the event of such a determination no Holder shall
have any rights under this Section 4 with respect to such offering, and
(D) it shall be a condition to the participation by any Partnership Unit Holder
in any such Piggyback Registration that no provision of the ARC LP Partnership
Agreement shall prohibit or restrict the redemption by such Partnership Unit
Holder of any Partnership Units as to which such Partnership Unit Holder has
made a request hereunder for inclusion in such Piggyback Registration and that
(1) in the case of an underwritten offering, such Partnership Unit Holder shall
have delivered to ARC LP a Redemption Notice Package not less than five (5)
Business Days prior to the closing date of such offering, and (2) in the case
of any other offering, such Partnership Unit Holder shall have delivered to ARC
LP a Redemption Notice Package a reasonable time prior to the proposed sale of
such Holder’s Registrable Securities in such offering, as determined by the
Company.


 


(b)                                
[Reserved].


 


(c)                                 
Priority on Primary Registrations.  If a Piggyback Registration is an underwritten
primary registration on behalf of the Company, and the managing underwriters
advise the Company in writing that in their opinion the number of securities
requested to be included in such registration exceeds the number which can be
sold in such offering without materially and adversely affecting the
marketability of such offering, the Company shall include in such registration
(i) first, all Priority Securities the Company proposes to sell, (ii) second,
the Registrable Securities pro rata
among the Holders of


 


 


14

















 


such Registrable
Securities on the basis of the number of such securities requested to be
registered by such Holders, and (iii) third, other securities requested to be
included in such registration pro rata
among the holders of such securities on the basis of the number of such
securities requested to be registered by such holders.


 


(d)                                
Priority on Secondary Registrations.  If a Piggyback Registration is an underwritten
secondary registration on behalf of a holder of the Company’s securities other
than Registrable Securities, and the managing underwriters advise the Company
in writing that in their opinion the number of securities requested to be
included in such registration exceeds the number which can be sold in such
offering without materially and adversely affecting the marketability of such
offering, the Company shall include in such registration (i) first, the
securities requested to be included therein by the holders requesting such
registration and the Registrable Securities requested to be included in such
registration, pro rata among the
holders of such securities on the basis of the number of such securities
requested to be registered by such holders, and (ii) second, other securities
requested to be included in such registration pro
rata among the holders of such securities on the basis of the number
of such securities requested to be registered by such holders.


 


(e)                                 
Expiration of Partnership Unit Holder Piggyback Rights.  Notwithstanding anything to the contrary
contained herein, the Partnership Unit Holders shall have no rights under
Section 3(a)(ii) and this Section 4 with respect to any Demand
Registration or Piggyback Registration the Demand Notice or Piggyback Notice
for which was provided by the Company on or after the date that the “shelf
registration statement” contemplated by Section 8.8 of the ARC LP
Partnership Agreement has become effective under the Securities Act in
accordance with the provisions of such Section 8.8.


 


5.                                      
Holdback Agreements.


 


(a)                                 
In connection with
any Demand Registration or Piggyback Registration involving an underwritten
offering, each Holder of Registrable Securities hereby agrees, at the request
of the underwriters, to enter into a customary holdback agreement with respect
to such Holder’s Registrable Securities, provided, however, that
the terms of such holdback agreement shall be no less favorable than any
holdback agreement executed by any other holders of securities of the Company
in connection with such underwritten offering.  The Company agrees to use
its reasonable best efforts to cause such underwriters to agree in the
underwriting agreement to notify in writing all Holders of Registrable
Securities who have executed a holdback agreement in connection


 


 


15

















 


with such offering of any
agreement by such underwriters to release any Holder of Registrable Securities
from any such holdback agreement at least five (5) Business Days in advance of
such release.


 


(b)                                
The Company agrees
(i) not to effect any public sale or distribution of its equity securities, or
any securities convertible into or exchangeable or exercisable for such
securities, during the seven (7) days prior to and during the 90-day period
beginning on the effective date of any underwritten Demand Registration (except
as part of such underwritten registration or pursuant to registrations on Forms
S-4 or S-8 or any successor forms), unless the underwriters managing the
registered public offering otherwise agree, and (ii) to use its reasonable
efforts to cause each holder of Registrable Securities and each other holder of
at least 5% (on a fully diluted basis) of equity securities of the Company,
respectively, or any securities convertible into or exchangeable or exercisable
for such equity securities, purchased from the Company at any time after the
date hereof (other than in a registered public offering) to agree not to effect
any public sale or distribution (including sales pursuant to Rule 144) of any
such securities during such period (except as part of such underwritten registration,
if otherwise permitted), unless the underwriters managing the registered public
offering otherwise agree.


 


6.                                      
Registration Procedures.  Whenever the Holders of Registrable Securities
have requested that any Registrable Securities be registered pursuant to this
Agreement, the Company will use its best efforts to effect the registration and
the sale of such Registrable Securities in accordance with the intended method
of disposition thereof, and pursuant thereto the Company will as expeditiously
as possible:


 


(a)                                 
prepare and file with
the SEC a registration statement with respect to such Registrable Securities
(in the case of a Demand Registration, no later than forty-five (45) days after
the receipt of the request for registration) and use its best efforts to cause
such registration statement to become effective as promptly as practicable
after filing; provided, that before filing a registration statement or
prospectus or any amendments or supplements thereto, the Company will furnish
to the counsel selected by the Holders of a majority of the Registrable
Securities covered by such registration statement copies of all such documents
proposed to be filed; provided  further, that no such registration
statement or prospectus or amendment or supplement thereto shall be filed
unless the Holders of Registrable Securities to be included in such
registration statement and, if the offering is an underwritten offering,
counsel to the underwriters, have had a reasonable opportunity


 


 


16

















 


to provide comments thereon; provided  further,
that the Holders of the Registrable Securities shall have provided their
comments promptly following their receipt of such registration statement or
prospectus or amendment or supplement thereto;


 


(b)                                
(i)  prepare and
file with the SEC such amendments and supplements to such registration
statement and the prospectus used in connection therewith as may be necessary
to keep such registration statement effective for a period of not less than six
months and comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement during
such period in accordance with the intended methods of disposition by the
sellers thereof set forth in such registration statement and (ii) use its best
efforts to have such supplements or amendments declared effective, if required,
as soon as practicable after filing; provided, that no such amendment or
supplement shall be filed unless the Holders of Registrable Securities to be
included in such registration statement and, if the offering is an underwritten
offering, counsel to the underwriters, have had a reasonable opportunity to
provide comments thereon; provided  further, that the Holders of
the Registrable Securities shall have provided their comments promptly
following their receipt of such amendment or supplement;


 


(c)                                 
furnish to each
seller of Registrable Securities, without charge, such number of copies of such
registration statement, each amendment and supplement thereto, the prospectus
included in such registration statement (including each preliminary prospectus)
and such other documents as such seller may reasonably request in order to
facilitate the disposition of the Registrable Securities owned by such seller;


 


(d)                                
use its best efforts
to register or qualify such Registrable Securities under such other securities
or blue sky laws of such jurisdictions as any seller reasonably requests and do
any and all other acts and things which may be reasonably necessary or
advisable to enable such seller to consummate the disposition in such
jurisdictions of the Registrable Securities owned by such seller (provided that
the Company will not be required to (i) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
subsection, (ii) subject itself to taxation in any such jurisdiction or (iii)
consent to general service of process (i.e., service of process which is
not limited solely to securities law violations) in any such jurisdiction);


 


 


17

















 


(e)                                 
promptly notify each
seller of such Registrable Securities of the happening of any event as a result
of which the prospectus included in such registration statement contains an
untrue statement of a material fact or omits any fact necessary to make the
statements therein not misleading, promptly prepare a supplement or amendment
to such prospectus so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus will not contain an untrue statement of
a material fact or omit to state any fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and promptly furnish to each seller of Registrable Securities, without
charge, copies of such prospectus supplement or amended prospectus;


 


(f)                                   
use its best efforts
to cause all such Registrable Securities to be listed on each securities
exchange or automated quotation system on which securities of the same class
issued by the Company are then listed and, if not so listed, use commercially
reasonable efforts to cause such Registrable Securities to be authorized for
quotation on the Nasdaq Stock Market or to be listed on a national securities
exchange selected by the Company;


 


(g)                                
provide a transfer
agent and registrar for all such Registrable Securities not later than the
effective date of such registration statement;


 


(h)                                
enter into such
customary agreements (including underwriting agreements in customary form with
customary indemnity and contribution obligations to the underwriters) and take
all such other actions as the holders of a majority of the Registrable
Securities being sold or the underwriters, if any, reasonably request in order
to expedite or facilitate the disposition of such Registrable Securities
(including, without limitation, effecting a stock split or a combination of
shares);


 


(i)                                    
make available for
inspection by any seller of Registrable Securities, any underwriter
participating in any disposition pursuant to such registration statement and
any attorney, accountant or other agent retained by any such seller or underwriter,
all financial and other records, pertinent corporate documents and properties
of the Company and cause the officers, members, advisors, employees and
independent accountants of the Company to supply all information reasonably
requested by any such seller, underwriter, attorney, accountant or agent in
connection with such registration statement;


 


 


18

















 


(j)                                    
otherwise use its
best efforts to comply with all applicable rules and regulations of the SEC,
and make available to its security holders, as soon as reasonably practicable,
an earning statement covering the period of at least twelve months beginning
with the first day of the first full calendar quarter of the Company after the
effective date of the registration statement, which earning statement shall
satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
promulgated thereunder;


 


(k)                                 
permit any Holder of
Registrable Securities which holder, in its reasonable judgment, might be
deemed to be an underwriter or a controlling person of the Company, to
participate in the preparation of such registration or comparable statement and
to require the insertion therein of material, furnished to the Company, as the
case may be, in writing, which in the reasonable judgment of such Holder and
its counsel should be included;


 


(l)                                    
promptly notify the
selling Holders and the underwriters, if any, of the issuance or threatened
issuance of any stop order suspending the effectiveness of a registration
statement, or of any order suspending or preventing the use of any related
prospectus or suspending the qualification of any securities included in such registration
statement for sale in any jurisdiction and use its reasonable best efforts
promptly to either obtain the prompt withdrawal of any such order that is
issued or prevent the issuance of any such threatened order;


 


(m)                              
use its best efforts
to cause such Registrable Securities covered by such registration statement to
be registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the sellers thereof to consummate the
disposition of such Registrable Securities;


 


(n)                                
obtain a “cold
comfort” letter from the independent public accountants of the Company in
customary form and covering such matters of the type customarily covered by
“cold comfort” letters as the underwriters or Holders of a majority of the
Registrable Securities being sold reasonably request;


 


(o)                                
provide an opinion of
the Company’s counsel in customary form and covering such matters of the type
customarily covered by such an opinion as the underwriters or the Holders of a
majority of the Registrable Securities being


 


 


19

















 


sold reasonably request and dated the date of the
closing of the sale of Registrable Securities relating thereto;


 


(p)                                
to the extent
recommended by the underwriters in any underwritten offering of Registrable
Securities, cooperate with the selling Holders and the underwriters for such
offering in the marketing of the Registrable Securities, including making its
officers available to participate in such “road show” presentations and
conference calls as the underwriters may reasonably request and making the
Company’s accountants, counsel, premises, books and records available for such
purpose; and


 


(q)                                
promptly notify each
Holder, and each underwriter (A) when a registration statement or any related
prospectus or any amendment or supplement has been filed, and, with respect to
a registration statement or any amendment thereto, when the same has become
effective or (B) of any request by the SEC for amendments or supplements to the
registration statement or the related prospectus or for additional information.


 


If any such registration
or comparable statement refers to any Holder by name or otherwise as the Holder
of any securities of the Company, and if, in its sole and exclusive judgment,
such Holder is or might be deemed to be a controlling Person of the Company, as
the case may be, such Holder shall have the right to require (i) the insertion
therein of language, in form and substance satisfactory to such Holder and
presented to the Company in writing, to the effect that the holding by such
Holder of such securities is not to be construed as a recommendation by such
Holder of the investment quality of the Company’s securities covered thereby
and that such holding does not imply that such Holder will assist in meeting
any future financial requirements of the Company, as the case may be, or (ii)
in the event that such reference to such Holder by name or otherwise is not
required by the Securities Act or any similar Federal statute then in force,
the deletion of the reference to such Holder; provided, that with
respect to this clause (ii) such holder shall furnish to the Company, as
applicable, an opinion of counsel to such effect, which opinion of counsel
shall be reasonably satisfactory to the Company.


 


It
shall be a condition precedent to the obligation of the Company to take any
action with respect to any Registrable Securities pursuant to this
Section 6 that the Holder thereof shall furnish to the Company such
information regarding such Holder, the Registrable Securities and any other
securities of the Company held by such Holder as the 


 


 


20

















 


Company shall reasonably
request and as shall be required in connection with the action taken by the
Company.


 


Each
Holder of Registrable Securities agrees that, upon receipt of any notice from
the Company of the happening of any event of the kind described in
Section 6(e), such Holder will forthwith discontinue disposition of
Registrable Securities until such Holder’s receipt of the copies of the
supplemented or amended prospectus contemplated by Section 6(e), and, if
so directed by the Company such Holder will deliver to the Company (at the
Company’s expense) all copies (including, without limitation, any and all
drafts), 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 that the Company shall give any such
notice, the six-month period mentioned in Section 6(b) shall be extended
by the number of days during the period from and including the date of the
giving of such notice pursuant to Section 6(e) to and including the date
when each Holder of Registrable Securities covered by such registration
statement shall have received the copies of the supplemented or amended
prospectus contemplated by Section 6(e).


 


7.                                      
Registration Expenses.


 


(a)                                 
All reasonable
expenses incident to the Company’s performance of or compliance with this
Agreement, including without limitation all Registration Expenses of the
Company and the Holders, will be borne by the Company, with respect to any
registration, proposed or otherwise, of its securities; provided, however,
that notwithstanding anything to the contrary contained herein, each Holder
shall bear and pay all underwriting discounts and commissions and all transfer
taxes, if any, attributable to and/or payable in respect of any sale of
Registrable Securities by such Holder.


 


(b)                                
In connection with
each Demand Registration and each Piggyback Registration and any registration
of Warrants or other Registrable Securities hereunder, the Company will also
reimburse the Holders of Registrable Securities covered by or proposed
(pursuant to the terms of this Agreement) to be included in such registration
for the reasonable fees and disbursements of one counsel chosen by the Holders
of a majority of the Registrable Securities, regardless of whether such
Registrable Securities are ultimately included in or sold pursuant to such
registration.


 


 


21

















 


8.                                      
Indemnification.


 


(a)                                 
The Company shall
indemnify and hold harmless, to the extent permitted by law, each Holder of
Registrable Securities, its respective partners, members, shareholders,
officers and directors and each Person who controls such Holder (within the
meaning of the Securities Act) against all losses, claims, damages, liabilities
and expenses arising out of or based upon any Violation and shall reimburse
such Holder, partner, member, director, officer or controlling Person for any
legal or other fees or expenses reasonably incurred by such Holder, director,
officer or controlling Person in connection with the investigation or defense
of such loss, claim, damage, liability or expense, except insofar as the same
are caused by or contained in any information furnished in writing to the
Company by such Holder expressly for use in any registration statement,
prospectus or preliminary prospectus or any amendment thereof or supplement
thereto or, if such Holder participates as an underwriter in the offering or
sale of Registrable Securities, to the extent that any such loss, claim,
damage, liability or expense arises out of such Holder’s failure to send or
give a copy of the final prospectus, as the same may be then supplemented or
amended, after the Company has furnished to such Holder a sufficient number of
copies of same, to the Person asserting the existence of a Violation at or
prior to the written confirmation of the sale of Registrable Securities to such
Person if such statement or omission was corrected in such final
prospectus.  In connection with an underwritten offering, the Company
shall indemnify and hold harmless such underwriters, their officers and
directors and each Person who controls such underwriters (within the meaning of
the Securities Act) to the same extent as provided above with respect to the
indemnification of the holders of Registrable Securities; provided, however,
that the Company will not be liable to any Person who participates as an
underwriter in the offering or sale of Registrable Securities or any other
Person, if any, who controls such underwriter within the meaning of the
Securities Act, under the indemnity agreement in this Section 8(a) with
respect to any preliminary prospectus or the final prospectus as amended or
supplemented, as the case may be, to the extent that any such loss, claim, damage
or liability of such underwriter or controlling Person results from the fact
that such underwriter sold Registrable Securities to a Person to whom there was
not sent or given, at or prior to the written confirmation of such sale, a copy
of the final prospectus (including any documents incorporated by reference
therein) or of the final prospectus as then amended or supplemented (including
any documents incorporated by reference therein), whichever is most recent, if
the Company has previously furnished sufficient copies thereof to such
underwriter.  Any fees and expenses incurred by the indemnified party
(including any fees and expenses incurred in connection with investigating or
preparing to defend such action or proceeding) shall be


 


 


22

















 


paid to the indemnified
party, as incurred, within thirty (30) days of written notice thereof to the
indemnifying party.  Any amounts advanced by the indemnifying party to an
indemnified party pursuant to this Section 8 shall be returned to the
indemnifying party if it shall be finally determined by such a court in a
judgment not subject to appeal or final review that such indemnified party was
not entitled to indemnification by the indemnifying party.


 


(b)                                
In connection with
any registration statement in which a Holder of Registrable Securities is
participating, each such Holder will furnish to the Company in writing such
information and affidavits as the Company reasonably requests for use in
connection with any such registration statement or prospectus and, to the
extent permitted by law, will indemnify the Company and its respective members,
directors and officers and each Person who controls the Company (within the
meaning of the Securities Act), as applicable, against any losses, claims,
damages, liabilities and expenses arising out of or based upon any Violation,
but only to the extent that the untrue statement or omission constituting such
Violation is contained in any information or affidavit so furnished in writing
by such Holder expressly for use in any registration statement, prospectus or
preliminary prospectus or any amendment thereof or supplement thereto; provided,
that the obligation to indemnify will be individual to each Holder and will be
limited to the net amount of proceeds received by such Holder from the sale of
Registrable Securities pursuant to such registration statement.


 


(c)                                 
Any Person entitled
to indemnification hereunder will (i) give prompt written notice to the
indemnifying party of any claim with respect to which it seeks indemnification
and (ii) unless in such indemnified party’s reasonable judgment a conflict of
interest between such indemnified and indemnifying parties may exist with
respect to such claim, permit such indemnifying party to assume the defense of
such claim with counsel reasonably satisfactory to the indemnified party. If
such defense is assumed, the indemnifying party will not be subject to any
liability for any settlement made by the indemnified party without its consent
(but such consent will not be unreasonably withheld). An indemnifying party who
is not entitled to, or elects not to, assume the defense of a claim will not be
obligated to pay the fees and expenses of more than one counsel for all parties
indemnified by such indemnifying party with respect to such claim, unless in
the reasonable judgment of any indemnified party a conflict of interest may
exist between such indemnified party and any other of such indemnified parties
with respect to such claim.


 


 


23

















 


(d)                                
The indemnification
provided for under this Agreement will remain in full force and effect
regardless of any investigation made by or on behalf of the indemnified party
or any partner, member, officer, director or controlling Person of such
indemnified party and will survive the transfer of securities.


 


(e)                                 
If the
indemnification required by this Section 8 from the indemnifying party is
unavailable to an indemnified party hereunder in respect of any losses, claims,
damages, liabilities or expenses referred to in this Section 8:


 


(i)                                    
The indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities or expenses in such proportion as is appropriate
to reflect the relative fault of the indemnifying party and indemnified parties
in connection with the actions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable
considerations.  The relative fault of such indemnifying party and
indemnified parties shall be determined by reference to, among other things,
whether any Violation has been committed by, or relates to information supplied
by, such indemnifying party or indemnified parties, and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent
such Violation.  The amount paid or payable by a party as a result of the
losses, claims, damages, liabilities and expenses referred to above shall be
deemed to include any legal or other fees or expenses reasonably incurred by
such party in connection with the investigation or defense of such loss, claim,
damage, liability or expense.


 


(ii)                                 
The parties hereto
agree that it would not be just and equitable if contribution pursuant to this
Section 8(e) were determined by pro rata allocation or by any other method
of allocation which does not take into account the equitable considerations
referred to in Section 8(e)(i).  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.


 


(f)                                   
If indemnification is
available under this Section 8, the indemnifying parties shall indemnify
each indemnified party to the full extent provided in this Section 8
without regard to the relative fault of such indemnifying party or indemnified
party or any other equitable consideration referred to in Section 8(e)
except that no selling Holder shall


 


 


24

















 


be liable for any amount
in excess of the net proceeds it receives in the offering which is the subject
of the indemnification proceeding.


 


(g)                                
The obligations of
the Company under this Section 8 shall be in addition to any liability
which the Company may otherwise have to the persons specified in
Section 8(a) and the obligations of the selling Holders under this
Section 8 shall be in addition to any liability which such Persons may
otherwise have to the Company.  The remedies provided in this
Section 8 are not exclusive and shall not limit any rights or remedies
which may otherwise be available to an indemnified party at law or in equity.


 


9.                                      
Participation in Underwritten Registrations.  No Person may participate in any registration
hereunder which is underwritten unless such Person (a) agrees to sell such
Person’s securities on the basis provided in any underwriting arrangements
approved by the Person or Persons entitled hereunder to approve such
arrangements and (b) completes and executes all customary questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements; provided,
that no Holder of Registrable Securities included in any underwritten
registration pursuant to Section 3(a)(ii) or Section 4 hereof shall
be required to make any representations or warranties to the Company (in
connection with the registration of the Company’s securities) or the
underwriters other than representations and warranties (a) as are ordinarily
given by a seller of securities with respect to such seller’s authority to
sell, the enforceability of agreements against such seller, such seller’s good
title in such securities and the interest in such securities to be acquired at
closing by the buyer of such securities, and (b) regarding such Holder and such
Holder’s intended method of distribution; provided, further, that
no Holder of Registrable Securities included in any underwritten registration
pursuant to Section 3(a)(ii) or Section 4 hereof shall be required to
provide any indemnification or contribution agreements other than to the same
extent provided in Section 8.


 


10.                                
Rule 144 Reporting.  With a view to making available
to the holders of Registrable Securities the benefits of certain rules and
regulations of the SEC which may permit the sale of the Registrable Securities
to the public without registration, the Company agrees to use its best efforts
to:


 


(a)                                 
make and keep current
public information available, within the meaning of Rule 144 or any similar or
analogous rule promulgated under the


 


 


25

















 


Securities Act, at all times after it has become
subject to the reporting requirements of the Exchange Act;


 


(b)                                
file with the SEC, in
a timely manner, all reports and other documents required under the Securities
Act and Exchange Act (after it has become subject to such reporting
requirements);


 


(c)                                 
so long as any party
hereto owns any Registrable Securities, furnish to such Person forthwith upon
request a written statement as to its compliance with the reporting
requirements of said Rule 144 (at any time commencing 90 days after the
effective date of the first registration filed by the Company for an offering
of its securities to the general public), the Securities Act and the Exchange
Act (at any time after it has become subject to such reporting requirements); a
copy of its most recent annual or quarterly report; and such other reports and
documents as such Person may reasonably request in availing itself of any rule
or regulation of the SEC allowing it to sell any such securities without
registration; and


 


(d)                                
in connection with
any sale, transfer or other disposition by any Holder of any Registrable
Securities pursuant to Rule 144 promulgated under the Securities Act, cooperate
with such holder to facilitate the timely preparation and delivery of
certificates representing the Registrable Securities to be sold and not bearing
any Securities Act legend, and enable certificates for such Registrable
Securities to be for such number of shares and registered in such name as the
selling Holders may reasonably request in writing no more than three (3)
Business Days after any sale of Registrable Securities; provided, that,
if requested by the Company, such Holder shall have furnished to the Company an
opinion of counsel reasonably satisfactory to the Company and the Company’s
counsel that registration of such Registrable Securities under the Securities
Act is not required.


 


11.                                
Notices. 
All notices,
demands or other communications to be given or delivered under or by reason of
the provisions of this Agreement will be in writing and will be deemed to have
been given when delivered personally, mailed by certified or registered mail,
return receipt requested and postage prepaid, or the day after sent if sent via
a nationally recognized overnight courier, or upon written confirmation if sent
via facsimile to any recipient (other than Travelers, to whom facsimile
transmission shall not be a valid means of notice under this Agreement). Such
notices, demands and other communications will be sent to the address indicated
below:


 


 


26

















 


To
the Company:


 


Affordable Residential Communities Inc.

600 Grant Street, Suite 900

Denver, Colorado  80203

Telecopy:  (303) 294-0085

Attention:  Scott L. Gesell, Esq.


 


To
the Subscribers:


 


At the address or facsimile number set forth on Exhibit
A hereto


 


To
the Original Investors:


 


At the address or facsimile number set forth on Exhibit
B hereto


 


To
the Reorganization Shareholders:


 


At the address or facsimile number set forth on Exhibit
C hereto


 


To
the Partnership Unit Holders:


 


At the address or facsimile number set forth on Exhibit
D hereto


 


In each case, with copies
to each of:


 


Skadden, Arps, Slate, Meagher & Flom LLP

Four Times Square

New York, New York  10036

Attention:  Fred B. White, III,  Esq.

Facsimile No.:  (212) 735-2000


 


Weil, Gotshal & Manges LLP

100 Federal Street - 34th Floor

Boston, MA 02110

Attention:  James Westra, Esq.


 


 


27

















 


Attention:  Andrew M. Troop, Esq.

Facsimile No.:  (617) 772-8333


 


Paul, Hastings, Janofsky & Walker LLP

75 East 55th Street

New York, New York  10022

Attention:  Frank T. Cannone, Esq.

Facsimile No.:  (212) 319-4090


 


Clifford Chance US LLP

200 Park Avenue

New York, New York  10166

Attention: Larry P. Medvinsky, Esq.

Facsimile No.:  (212) 878-8375


 


Kirkland & Ellis

Citicorp Center

153 East 53rd Street

New York, New York 10022-4675

Attention:  Kirk Radke, Esq.

Facsimile No.:  (212) 446-4900


 


or such other address or
to the attention of such other person as the recipient party shall have
specified by prior written notice to the sending party.


 


12.                                
Miscellaneous.


 


(a)                                 
Other Registration Rights. The Company shall not grant to any holders of Common
Stock or other equity securities of the Company any demand or piggyback
registration rights with respect to any such securities that have priority over
the demand and piggyback registration rights set forth in this Agreement, provided,
however, that the Company may agree to effect one or more “shelf”
registrations of the Common Stock issuable upon redemption of any Partnership
Units, whether outstanding on the Effective Date or thereafter, including the
shelf registration statement contemplated by Section 8.8 of the ARC LP
Partnership Agreement.


 


 


28

















 


(b)                                
No Inconsistent Agreements. The Company will not enter into any agreement which
is inconsistent with or violates the rights granted to the holders of
Registrable Securities in this Agreement.


 


(c)                                 
Remedies.
Any Person having rights under any provision of this Agreement (including any
Original Investor, Subscriber, Reorganization Shareholder or Partnership Unit
Holder) will be entitled to enforce such rights specifically to recover damages
caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and acknowledge
that money damages may not be an adequate remedy for any breach of the
provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement.


 


(d)                                
Amendments and Waivers. Except as otherwise provided herein, the provisions
of this Agreement may be amended or waived only upon the prior written consent
of the Company and the Holders of a majority of the Registrable Securities
(which for this purpose shall not include the Warrants but shall include the
shares of Common Stock underlying any outstanding Warrants), provided, however,
that any amendment or waiver of any provision of this Agreement which adversely
affects the rights of any party to this Agreement shall be executed by each
such party; provided  further, however, that a grant by the
Company of demand and/or piggyback registration rights that do not have
priority over the demand and piggyback registration rights granted to the
Holders hereunder shall not be deemed to “adversely affect” the rights of any
party to this Agreement.


 


(e)                                 
Successors and Assigns. All covenants and agreements in this Agreement by or
on behalf of any of the parties hereto will bind and inure to the benefit of
their respective heirs, legal representatives, successors and assigns of the
parties hereto whether so expressed or not. In addition, whether or not any
express assignment has been made, the provisions of this Agreement which are
for the benefit of purchasers or Holders of Registrable Securities are also for
the benefit of, and enforceable by, any subsequent Holder of Registrable
Securities.


 


(f)                                   
Severability. Whenever possible, each provision of this Agreement will be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be prohibited by or invalid
under applicable law,


 


 


29

















 


such provision will be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of this Agreement.


 


(g)                                
Counterparts. This Agreement may be executed simultaneously in two or more
counterparts, any one of which need not contain the signatures of more than one
party, but all such counterparts taken together will constitute one and the
same Agreement.


 


(h)                                
Descriptive Headings. The descriptive headings of this Agreement are
inserted for convenience only and do not constitute a part of this Agreement.


 


(i)                                    
Recapitalizations, Exchanges Affecting the Registrable Securities.  The provisions of this Agreement shall apply,
to the full extent set forth herein, with respect to the Registrable
Securities, to any and all shares of 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 Registrable Securities, by reason of a stock dividend,
stock split, stock issuance, reverse stock split, combination,
recapitalization, reclassification, merger, consolidation or otherwise. 
Upon the occurrence of any of such events, amounts hereunder shall be
appropriately adjusted.


 


(j)                                    
Governing
Law.  This Agreement shall be governed
by and construed in accordance with the laws of the State of New York without
giving effect to the conflicts of law principles thereof.


 


(k)                                 
Third Party Beneficiaries.  Except with respect to the Partnership Unit
Holders and the Original Investors, this Agreement is not intended to confer
upon any person other than the parties hereto any rights or remedies hereunder.


 


*  *  *  *  *


 


 


30

















 


IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the day and
year first above written.


 


 


	
  THOMAS H. LEE EQUITY

  FUND IV, L.P.

  	
  THOMAS H. LEE FOREIGN

  FUND IV, L.P.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  THL Equity Advisors IV,
  LLC,

  its General Partner

  	
  By:

  	
  THL Equity Advisors IV,
  LLC,

  its General Partner

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  Thomas H. Lee Partners,
  L.P.,

  its Managing Member

  	
  By:

  	
  Thomas H. Lee Partners,
  L.P.,

  its Managing Member

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  Thomas H. Lee Advisors,
  LLC,

  its General Partner

  	
  By:

  	
  Thomas H. Lee Advisors,
  LLC,

  its General Partner

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Thomas H. Lee

  	
   

  	
  By:

  	
  /s/ Thomas H. Lee

  	
   

  
	
   

  	
  Name:

  	
  Thomas H. Lee

  	
   

  	
  Name:

  	
  Thomas H. Lee

  
	
   

  	
  Title:

  	
  Principal Managing

  Director

  	
   

  	
  Title:

  	
  Principal Managing

  Director

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  THOMAS H. LEE
  CHARITABLE

  INVESTMENTS LIMITED

  PARTNERSHIP

  	
  THOMAS H. LEE INVESTORS

  LIMITED PARTNERSHIP 

  
	
   

  	
   

  	
   

  	
  By:

  	
  THL Investment
  Management

  Corp.,  its General Partner

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Thomas H. Lee

  	
   

  	
   

  	
   

  
	
   

  	
  Name: Thomas H. Lee

  	
   

  	
   

  	
   

  
	
   

  	
  Title:  
  General Partner

  	
  By:

  	
  /s/ Thomas H. Lee

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name: Thomas H. Lee

  
	
   

  	
   

  	
   

  	
   

  	
  Title:  General
  Partner

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


 

















 


	
  THOMAS H. LEE FOREIGN

  FUND IV-B, L.P.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  THL Equity Advisors IV,
  LLC,

  its General Partner

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  Thomas H. Lee Partners,
  L.P.,

  its Managing Member

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  Thomas H. Lee Advisors,
  LLC,

  its General Partner

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Thomas H. Lee

  	
   

  
	
   

  	
  Name: Thomas H. Lee

  
	
   

  	
  Title: 

  	
  Principal Managing

  Director

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


 

















 


	
  CAPITAL ARC HOLDINGS,
  LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Michael Greene

  	
   

  
	
   

  	
   

  	
  Name: Michael Greene

  	
   

  
	
   

  	
   

  	
  Title: 

  	
  Partner

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


 

















 


	
   

  	
  NASSAU CAPITAL PARTNERS
  II, L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Randall A.
  Hack

  	
   

  
	
   

  	
   

  	
  Name:  Randall A.
  Hack

  
	
   

  	
   

  	
  Title: Sr. Managing
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NASSAU CAPITAL FUNDS
  L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Randall A.
  Hack

  	
   

  
	
   

  	
   

  	
  Name:  Randall A.
  Hack

  
	
   

  	
   

  	
  Title: Sr. Managing
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NAS PARTNERS I, L.L.C.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Randall A.
  Hack

  	
   

  
	
   

  	
   

  	
  Name:  Randall A.
  Hack

  
	
   

  	
   

  	
  Title: Sr. Managing
  Director

  



 


 

















 


	
  AFFORDABLE RESIDENTIAL
  COMMUNITIES INC.

  
	
   

  
	
   

  
	
  By:

  	
  /s/ Scott Gesell

  	
   

  
	
   

  	
  Name: Scott Gesell

  
	
   

  	
  Title: Executive Vice
  President

  



 


 

















 


Exhibit A


 


	
  Thomas H. Lee Equity
  Fund IV, L.P.

  	
  Thomas H. Lee Foreign
  Fund IV, L.P.

  
	
  c/o Thomas H. Lee
  Company

  	
  c/o Thomas H. Lee
  Company

  
	
  75 State Street, Suite
  2600

  	
  75 State Street, Suite
  2600

  
	
  Boston,
  Massachusetts  02109

  	
  Boston,
  Massachusetts  02109

  
	
  Telecopy:  (617)
  227-3514

  	
  Telecopy:  (617)
  227-3514

  
	
  Attention:  Todd
  Abbrecht

  	
  Attention:  Todd
  Abbrecht

  
	
   

  	
   

  
	
  Thomas H. Lee
  Charitable Investments Limited Partnership

  	
  Thomas H. Lee Investors
  Limited Partnership

  
	
  c/o Thomas H. Lee
  Company

  	
  c/o Thomas H. Lee
  Company

  
	
  75 State Street, Suite
  2600

  	
  75 State Street, Suite
  2600

  
	
  Boston,
  Massachusetts  02109

  	
  Boston,
  Massachusetts  02109

  
	
  Telecopy:  (617)
  227-3514

  	
  Telecopy:  (617)
  227-3514

  
	
  Attention:  Todd
  Abbrecht

  	
  Attention:  Todd
  Abbrecht

  
	
   

  	
   

  
	
  Thomas H. Lee Foreign
  Fund IV-B, L.P.

  	
  The Travelers Indemnity
  Company

  
	
  c/o Thomas H. Lee
  Company

  	
  205 Columbus Blvd., 9PB

  
	
  75 State Street, Suite
  2600

  	
  Hartford, Connecticut
  06083-2030

  
	
  Boston,
  Massachusetts  02109

  	
  Attention:  

  	
  Real Estate Department,

  
	
  Telecopy:  (617)
  227-3514

  	
   

  	
  David Colangelo

  
	
  Attention:  Todd
  Abbrecht

  	
   

  	
  Investment No.: 12809

  
	
   

  	
   

  
	
  Capital ARC Holdings,
  LLC

  	
   

  
	
  c/o UBS Capital

  	
   

  
	
  48 Signal Road

  	
   

  
	
  Stamford, CT 06902

  	
   

  



 


 

















 


Exhibit B


(attached)


 


 

















 


Exhibit C


 


	
  Nassau Capital Partners
  II, L.P.

  	
  Scott D. Jackson

  
	
  c/o Nassau Capital
  Funds, L.P.

  	
  185 S. Elm Street

  
	
  22 Chambers Street

  	
  Denver, CO 80246

  
	
  Princeton, NJ 08542

  	
   

  
	
  Attention:  Robert
  L. Honstein

  	
   

  
	
  Facsimile No.: 
  (609) 924-8887

  	
   

  
	
   

  	
   

  
	
  Nassau Capital Funds
  L.P.

  	
  John G. Sprengle

  
	
  22 Chambers Street

  	
  1727 E. Sunset Ridge
  Road

  
	
  Princeton, NJ 08542

  	
  Highlands Ranch, CO
  80126

  
	
  Attention:  Robert
  L. Honstein

  	
   

  
	
  Facsimile No.: 
  (609) 924-8887

  	
   

  
	
   

  	
   

  
	
  NAS Partners I, L.L.C.

  	
  Matthew H. Briger

  
	
  c/o Nassau Capital
  Funds, L.P.

  	
  517 Garfield Street

  
	
  22 Chambers Street

  	
  Denver, CO 80206

  
	
  Princeton, NJ 08542

  	
   

  
	
  Attention:  Robert
  L. Honstein

  	
   

  
	
  Facsimile No.: 
  (609) 924-8887

  	
   

  
	
   

  	
   

  
	
  John Markham Green

  	
  Scott L. Gesell

  
	
  15 East 91st Street,
  Apt.  10A

  	
  1685 Muirfield Lane

  
	
  New York, NY 10028

  	
  Evergreen, CO 80439

  
	
   

  	
   

  
	
  Eugene Mercy, Jr.

  	
  Stratton R. Smith

  
	
  1111 Park Avenue

  	
  778 13th Street

  
	
  New York, NY 10128

  	
  Boulder, CO 80302

  



 


 


C-1

















 


	
  McMahon Investment
  Partnership, L.P.

  	
  R. Haynes Chidsey

  
	
  c/o T. Gordon McMahon

  	
  1435 Wazee Street #403

  
	
  350 E. 79th Street,
  Apt. 37B

  	
  Denver, CO 80202

  
	
  New York, NY 10021-9209

  	
   

  
	
   

  	
   

  
	
  Albert F. Hummel

  	
  Nicholas Campbell

  
	
  P.O. Box 3407

  	
  77 Falcon Hills Drive

  
	
  Rancho Santa Fe, CA
  92067

  	
  Highlands Ranch, CO
  80126

  
	
   

  	
   

  
	
  Mercy 1995 Family Trust

  	
  Scott Vanderhoofven

  
	
  c/o Eugene Mercy, Jr.

  	
  4453 W. Hinsdale Avenue

  
	
  1111 Park Avenue

  	
  Littleton, CO 80128

  
	
  New York, NY 10128-1234

  	
   

  



 


 


C-2

















 


Exhibit D


 


	
  511
  Equities Corporation

  
	
  c/o
  Rachel Kuluva

  
	
  590
  Fifth Avenue, 19th Floor

  
	
  New
  York, NY  10036

  
	
  Phone: 
  (212) 403-2916

  
	
   

  
	
  Andrew
  and Elaine Pesky

  
	
  10
  East 53rd Street

  
	
  New
  York, NY  10022

  
	
  Phone: 
  (212) 889-6969

  
	
   

  
	
  ARC
  II Investor

  
	
  Charles
  A. Davis

  
	
  Marsh
  & McClennan Risk Capital Corp.

  
	
  20
  Horseneck Lane

  
	
  Greenwich,
  CT  06830

  
	
   

  
	
   

  
	
  Arno
  P. Niemand

  
	
  777
  - 15th Street

  
	
  Boulder,
  CO  80302

  
	
  Phone: 
  (303) 938-6866

  
	
   

  
	
  Brittany
  Ridge Investment Partners, L.P

  
	
  c/o
  John J. Oros

  
	
  280
  Highland Avenue

  
	
  Ridgewood,
  NJ  07450-4004

  
	
  Phone: 
  (201) 445-5066

  
	
   

  
	
  Bruce
  V. Rauner

  
	
  GTCR Golder Rauner L.L.C.

  
	
  6100
  Sears Tower

  
	
  Chicago,
  IL  60606

  
	
  Phone: 
  (847) 256-9018

  
	
   

  
	
  Curtis
  S. Lane

  
	
  135
  Central Park West

  
	
  New
  York, NY  10023

  
	
  Phone: 
  (212) 887-2113

  



 


 


D-1

















 


	
  Daniel
  J. Sullivan Jr.

  
	
  141
  Forest Street

  
	
  Wellesley,
  MA  02181

  
	
  Phone: 
  (617) 237-5507

  
	
   

  
	
  David
  Lurie

  
	
  1050
  Fifth Avenue

  
	
  New
  York, NY  10028

  
	
  Phone: 
  (212) 427-3855

  
	
   

  
	
  David
  N. Roberts

  
	
  Angelo
  Gordon & Co.

  
	
  245
  Park Avenue, 26th Floor

  
	
  New
  York, NY  10167

  
	
  Phone: 
  (212) 692-2025

  
	
   

  
	
   

  
	
  Dean
  R. O’Hare

  
	
  370
  Lake Road

  
	
  Far
  Hills, NJ  07931

  
	
   

  
	
  Deborah
  Roberts

  
	
  515
  West End Avenue

  
	
  New
  York, NY  10024

  
	
  Phone: 
  (212) 362-2323

  
	
   

  
	
   

  
	
  Dennis
  and Cynthia Suskind

  
	
  136
  E. 79th St. Apt. 9

  
	
  New
  York, NY  10021

  
	
  Phone: 
  (212) 472-9408

  
	
   

  
	
  Donald
  R.Gant

  
	
  Youngs
  Road

  
	
  New
  Vernon, NJ  07976

  
	
  Phone: 
  (212) 902-6202

  
	
   

  
	
  Edgell
  Street Partners

  
	
  c/o
  James Harasimowicz

  
	
  210
  Central Park South #24B

  
	
  New
  York, NY  10019

  
	
  Phone: 
  (212) 262-9697

  



 


 


D-2

















 


	
  Edward
  Dunay

  
	
  300
  East 57th St., Apt. 12D

  
	
  New
  York, NY  10022

  
	
  Phone: 
  (212) 838-7563

  
	
   

  
	
   

  
	
  Eugene
  Mercy, Jr.

  
	
  1111
  Park Avenue

  
	
  New
  York, NY  10128

  
	
  Phone: 
  (212) 407-3334

  
	
   

  
	
  Farmer
  Family Trust

  
	
  John
  R. Farmer & Tawna B. Farmer

  
	
  Trustees

  
	
  2
  Morrison Road

  
	
  P.O.
  Box 1405

  
	
  Ross,
  CA  94957

  
	
  Phone: 
  (415) 456-3843

  
	
   

  
	
  FAWPEAS
  L.P.

  
	
  Alan
  D. & Wendy Pesky

  
	
  59
  East 54th Street, Suite 42

  
	
  New
  York, NY  10022

  
	
  Phone: 
  (212) 339-7745

  
	
   

  
	
  Fern
  K. Hurst

  
	
  1060
  Fifth Avenue

  
	
  New
  York, NY  10128

  
	
   

  
	
   

  
	
  Gamco
  Investors, Inc.

  
	
  Mario
  J. Gabelli

  
	
  Gabelli
  Group Capital Partners, Inc.

  
	
  One
  Corporate Center

  
	
  Rye,
  NY  10580

  
	
  Phone: 
  (914) 921-5145

  



 


 


D-3

















 


	
  Gary
  D. and Karen A. Rose

  
	
  Trustees
  for the benefit of Adam James Rose

  and Alexander Mark Rose

  
	
  24
  Dryden Terrace

  
	
  Short
  Hills, NJ  07078

  
	
  Phone: 
  (212) 902-6114

  
	
   

  
	
  Granite
  Capital, L.P

  
	
  c/o
  Lloyd Moskowitz

  
	
  126
  E. 56th Street, 25th Floor

  
	
  New
  York, NY  10022

  
	
  Phone: 
  (212) 407-3344

  
	
   

  
	
  Grantor
  Trust for Dana E. Tang

  
	
  c/o
  Oscar Tang

  
	
  New
  England Investment Co.

  
	
  600
  Fifth Avenue, 8th Floor

  
	
  New
  York, NY  10020

  
	
  Phone: 
  (212) 830-5301

  
	
   

  
	
  Grantor
  Trust for Kevin C. Tang

  
	
  c/o
  Oscar Tang

  
	
  New
  England Investment Co.

  
	
  600
  Fifth Avenue, 8th Floor

  
	
  New
  York, NY  10020

  
	
  Phone: 
  (212) 830-5301

  
	
   

  
	
  Grantor
  Trust for Kristin A. Tang

  
	
  c/o
  Oscar Tang

  
	
  New
  England Investment Co.

  
	
  600
  Fifth Avenue, 8th Floor

  
	
  New
  York, NY  10020

  
	
  Phone: 
  (212) 830-5301

  
	
   

  
	
  Grantor
  Trust for Tracy L. Tang

  
	
  c/o
  Oscar Tang

  
	
  New
  England Investment Co.

  
	
  600
  Fifth Avenue, 8th Floor

  
	
  New
  York, NY  10020

  
	
  Phone: 
  (212) 830-5301

  



 


 


D-4

















 


	
  Heidi
  Pesky Worcester

  
	
  40
  Blood Street

  
	
  Lyme,
  CT  06371

  
	
  Phone: 
  (860) 434-6052

  
	
   

  
	
  Henry
  Barkhorn

  
	
  1095
  Park Avenue

  
	
  New
  York, NY  10128

  
	
  Phone: 
  (212) 313-2491

  
	
   

  
	
  Howard
  Silverstein

  
	
  895
  Park Avenue, Apt. 9C

  
	
  New
  York, NY  10021

  
	
  Phone: 
  (212) 902-6102

  
	
   

  
	
  Howard
  P. Berkowitz

  
	
  65
  East 55th Street, 30th Floor

  
	
  New
  York, NY  10022

  
	
  Phone: 
  (212) 664-0990

  
	
   

  
	
  Indian
  Creek Partners, LP

  
	
  c/o
  David C. Clapp

  
	
  Goldman
  Sachs & Co.

  
	
  85
  Broad Street, 29th Floor

  
	
  New
  York, NY  10004

  
	
  Phone: 
  (212) 902-6445

  
	
   

  
	
  Indosuez
  ARC Partners

  
	
  c/o
  Michael Walsh, Esq.

  
	
  666
  Third Avenue

  
	
  New
  York, NY  10017

  
	
  Phone: 
  (646) 658-2000

  
	
   

  
	
   

  
	
  J. 
  Russell Bellamy

  
	
  3504
  Drexel Drive

  
	
  Dallas,
  TX  75205

  
	
  Phone: 
  (214) 855-1060

  
	
   

  
	
  James
  E. Hunt

  
	
  1111
  Park Avenue

  
	
  New
  York, NY 10128

  
	
  Phone:
  (212) 758-2800

  



 


 


D-5

















 


	
  Joanne
  D. Corzine

  
	
  25
  Lenox Road

  
	
  Summit,
  NJ 07901

  
	
  Phone:
  (212) 902-8281

  
	
   

  
	
  Joel
  and Helen Portugal

  
	
  30
  E. 72nd Street

  
	
  New
  York, NY 10021

  
	
  Phone:
  (212) 744-0930

  
	
   

  
	
   

  
	
  John
  G. Duffy

  
	
  415
  Crestwood Avenue

  
	
  Crestwood,
  NY 10707

  
	
  Phone:
  (212) 323-8300

  
	
   

  
	
  John
  Markham Green

  
	
  15
  East 91st Street, Apt. 10A

  
	
  New
  York, NY 10028

  
	
  Phone:
  (212) 902-5240

  
	
   

  
	
  Joseph
  E. Robert Jr.

  
	
  1288
  Ballantrae Farm Drive

  
	
  MacLean,
  VA 22101

  
	
  Phone:
  (703) 506-0560

  
	
   

  
	
  Joseph
  Ellis

  
	
  Goldman
  Sachs

  
	
  530
  East 86th Street

  
	
  New
  York, NY 10028

  
	
  Phone:
  (212) 902-6766

  
	
   

  
	
  Joseph
  P. and Beatrice L. Riccardo

  
	
  311
  Sweetbriar Court

  
	
  Franklin
  Lakes, NJ 07417

  
	
   

  
	
  Judith
  Berkowitz

  
	
  c/o
  HPB Associates, L.P.

  
	
  65
  East 55th Street, 30th Floor

  
	
  New
  York, NY 10022

  
	
  Phone:
  (212) 664-0990

  



 


 


D-6

















 


	
  Kendrick
  R. Wilson III

  
	
  161
  Cantitoe Road

  
	
  Katonah,
  NY 10536

  
	
  Phone:
  (212) 902-8655

  
	
   

  
	
  Laura
  T. Traphagen

  
	
  Ha’
  Penny House

  
	
  Van
  Beuren Road

  
	
  Morristown,
  NJ 07960

  
	
  Phone:
  (973) 455-0666

  
	
   

  
	
  Lawrence
  E. and Valerie C. Uhl

  
	
  1370
  Old Mill Road

  
	
  San
  Marino, CA 91 108

  
	
   

  
	
  Lewis
  M. Eisenberg

  
	
  Granite
  Capital International Group

  
	
  126
  E. 56th Street, 25th Floor

  
	
  New
  York, NY 10022

  
	
  Phone:
  (212) 407-3338

  
	
   

  
	
  Mary
  Kong

  
	
  375
  S. End Ave #30E

  
	
  New
  York, NY 10280

  
	
  Phone:
  (212) 306-1364

  
	
   

  
	
  McMahon
  Investment Partners, L.P.

  
	
  c/o
  T. Gordon McMahon

  
	
  350
  E. 79th Street, Apt. 37B

  
	
  New
  York, NY 10021 - 9209

  
	
  Phone:
  (212) 407-5277

  
	
   

  
	
  Mercy
  Foundation

  
	
  c/o Eugene Mercy, Jr.

  
	
  1111
  Park Avenue

  
	
  New
  York, NY 10128-1234

  
	
  Phone:
  (212) 407-3334

  
	
   

  
	
  Michael
  Ainslie

  
	
  415
  Sea Spray Avenue

  
	
  Palm
  Beach, FL 33480

  
	
  Phone:
  (203) 86 1-6635

  



 


 


D-7

















 


	
  Michael
  J. Moss

  
	
  258
  Soundview Avenue

  
	
  White
  Plains, NY 10606

  
	
  Phone:
  (914) 694-5851

  
	
   

  
	
  Mobilecourt
  Partners I

  
	
  c/o Irv Flinn, Esq.

  
	
  Sullivan
  & Cromwell

  
	
  125
  Broad Street

  
	
  New
  York, NY 10004

  
	
  Phone:
  (212) 558-3922

  
	
   

  
	
  Mobilecourt
  Partners II

  
	
  c/o Irv Flinn, Esq.

  
	
  Sullivan
  & Cromwell

  
	
  125
  Broad Street

  
	
  New
  York, NY 10004

  
	
  Phone:
  (212) 558-3922

  
	
   

  
	
  Mobilecourt
  Partners III

  
	
  c/o Irv Flinn, Esq.

  
	
  Sullivan
  & Cromwell

  
	
  125
  Broad Street

  
	
  New
  York, NY 10004

  
	
  Phone:
  (212) 558-3922

  
	
   

  
	
   

  
	
  Oscar
  L. Tang

  
	
  New
  England Investment Co.

  
	
  600
  Fifth Avenue, 8th Floor

  
	
  New
  York, NY 10021

  
	
  Phone:
  (212) 830-5301

  
	
   

  
	
  Park
  Partners II

  
	
  c/o
  Marc Wolinsky

  
	
  Wachtell,
  Lipton, Rosen & Katz

  
	
  51
  West 52nd Street

  
	
  New
  York, NY 10019

  
	
  Phone:
  (212) 403-1226

  



 


 


D-8

















 


	
  Peter
  L. Briger

  
	
  Fortress
  Investment Group

  
	
  1301
  Avenue of the Americas

  
	
  42nd
  Floor

  
	
  New
  York, NY 10019

  
	
   

  
	
   

  
	
  Richard
  D. Reiss Jr. and Bonnie Reiss, 

  JTWROS

  
	
  100
  1 Park Avenue

  
	
  New
  York, NY 10028

  
	
  Phone:
  (212) 536-9720

  
	
   

  
	
  Richard
  T. Pratt

  
	
  1694
  South Mohawk Way

  
	
  Salt
  Lake City, UT 84108

  
	
   

  
	
  Richard
  W. & Catherine E. Herbst

  
	
  12
  Gap View Road

  
	
  Short
  Hills, NJ 07078

  
	
  Phone:
  (212) 339-0160

  
	
   

  
	
  Robert
  Cenci

  
	
  45
  Overlook Drive

  
	
  Greenwich,
  CT 06830

  
	
  Phone:
  (203) 625-9376

  
	
   

  
	
  Robert
  E. Mnuchin

  
	
  218
  Nettleton Hollow Road

  
	
  Washington,
  CT 06793

  
	
  Phone:
  (203) 868-9466

  
	
   

  
	
  Robert
  J. Hurst

  
	
  Goldman
  Sachs & Co.

  
	
  85
  Broad Street, 30th Floor

  
	
  New
  York, NY 10004

  
	
  Phone:
  (212) 902-5262

  



 


 


D-9

















 


	
  Robert
  N. Downey

  
	
  Goldman
  Sachs & Co.

  
	
  85
  Broad Street, 2nd Floor

  
	
  New
  York, NY 10004

  
	
  Phone:
  (212) 902-6407

  
	
   

  
	
  Robert
  Yedid

  
	
  Pelham
  Avenue

  
	
  Sands
  Point, NY 11050

  
	
   

  
	
  Ross
  E. Traphagen

  
	
  Van
  Beuren Road

  
	
  Morristown,
  NJ 07960

  
	
  Phone:
  (407) 546-72 10

  
	
   

  
	
   

  
	
  Sally
  Gordon

  
	
  1080
  Fifth Avenue, Apt. 14B

  
	
  New
  York, NY 10128

  
	
   

  
	
  Steven
  Malkenson

  
	
  17
  West 67th Street, #9F

  
	
  New
  York, NY 10023

  
	
  Phone:
  (212) 874-6764

  
	
   

  
	
  Susan
  Mercy

  
	
  1111
  Park Ave

  
	
  New
  York, NY 10128

  
	
  Phone:
  (212) 407-3334

  
	
   

  
	
  Tanavon
  Corporation

  
	
  c/o
  Oscar Tang

  
	
  600
  Fifth Avenue, 8th Floor

  
	
  New
  Y ork, NY 10021

  
	
  Phone:
  (212) 830-5301

  
	
   

  
	
  Thomas
  I. Unterberg

  
	
  C.E.
  Unterberg, Towbin

  
	
  350
  Madison Avenue, 10th Floor

  
	
  New
  York, NY 10017

  
	
  Phone:
  (212) 389-8005

  



 


 


D-10

















 


	
  Thomas
  Mendell

  
	
  J.P.
  Morgan Partners

  
	
  1221
  Avenue of the Americas

  
	
  New
  York, NY 10020-0180

  
	
  Phone:
  (212) 899-3448

  
	
  Email:
  tom.mendell@chasecapital.com

  
	
   

  
	
  Thomas
  Rhodes

  
	
  c/o
  National Review

  
	
  215
  Lexington Avenue, 4th Floor

  
	
  New
  York, NY 10016

  
	
  Phone:
  (212) 213-9380

  
	
   

  
	
  Todd
  and Gretchen Zelek

  
	
  2000
  Ashbourne Drive

  
	
  S.
  Pasadena, CA 91030

  
	
  Phone:
  (213) 362-2550

  
	
   

  
	
  Todd
  J. Zelek

  
	
  2000
  Ashbourne Drive

  
	
  S.
  Pasadena, CA 91030

  
	
  Phone:
  (213) 362-2550

  
	
   

  
	
   

  
	
  Victor
  Wright

  
	
  Goldman,
  Sachs & Co.

  
	
  One
  New York Plaza, 45th Floor

  
	
  New
  York, NY 10004

  
	
  Phone:
  (212) 902-0101

  
	
   

  
	
  Walter
  Harrison III

  
	
  Granite
  Capital

  
	
  126
  E. 56th Street, 25th Floor

  
	
  New
  York, NY 10022

  
	
  Phone:
  (212) 407-3338

  
	
   

  
	
  Watchung
  Road Associates, L.P.

  
	
  Attn:
  Leon Cooperman

  
	
  45
  Watchung Road

  
	
  Short
  Hills, NJ 07078

  
	
  Phone:
  (201) 379-6282

  



 


 


D-11

















 


	
  William
  H. Ingram and Cathy M. Brienza

  
	
  c/o
  Sutton Capital Associates, Inc.

  
	
  One
  Rockefeller Plaza, Suite 3300

  
	
  New
  York, NY 10020-2

  
	
  Phone:
  (212) 218-4351 102

  
	
   

  
	
  William
  Ingram

  
	
  Sutton
  Capital Associates, Inc.

  
	
  One
  Rockefeller Plaza, Suite 3300

  
	
  New
  York, NY 10020-2 102

  
	
  Phone:
  (212) 218-4351

  
	
   

  
	
  William
  Malkenson

  
	
  PMB
  #442

  
	
  4132
  S. Rainbow Blvd.

  
	
  Las
  Vegas, NV 89103

  
	
  Phone:
  (702) 247-9047

  



 


 


D-12