Common use of Priority on Primary Piggyback Registrations Clause in Contracts

Priority on Primary Piggyback Registrations. If a Piggyback Registration is initiated as a primary underwritten offering on behalf of Purchaser and the managing underwriters advise Purchaser and Seller (if Seller has elected to include Registrable Securities in such Piggyback Registration) that in their opinion the number of Purchaser Shares proposed to be included in such offering exceeds the number of Purchaser Shares (of any class) which can be sold in such offering without materially delaying or jeopardizing the success of the offering (including the price per share of Purchaser Shares proposed to be sold in such offering), Purchaser shall include in such registration and offering (i) first, the number of Purchaser Shares that Purchaser proposes to sell; and (ii) second, the number of Purchaser Shares requested to be included therein by holders of Purchaser Shares, including Seller (if Seller has elected to include Registrable Securities in such Piggyback Registration), pro rata among all such holders on the basis of the number of Purchaser Shares requested to be included therein by all such holders or as such holders and Purchaser may otherwise agree (with allocations among different classes of Purchaser Shares, if more than one are involved, to be determined by Purchaser). If the number of Purchaser Shares that may be sold is less than the number of Purchaser Shares proposed to be registered pursuant to clause (i) above by Purchaser, the amount of Purchaser Shares to be sold shall be allocated to Purchaser.

Priority on Primary Piggyback Registrations. If a Piggyback Registration or Piggyback Shelf Takedown is initiated as a primary underwritten offering Underwritten Offering on behalf of Purchaser the Company and the managing underwriters of the offering advise Purchaser and Seller (if Seller has elected to include Registrable Securities the Company in such Piggyback Registration) that writing that, in their opinion opinion, the number of Purchaser Shares Equity Securities proposed to be included in such offering offering, including all Registrable Securities and all other Equity Securities proposed to be included in such offering, exceeds the number of Purchaser Shares (of any class) which Equity Securities that can reasonably be expected to be sold in such offering without materially delaying or jeopardizing adversely affecting the success of the offering (including the price per share price, timing or distribution of Purchaser Shares proposed the securities to be sold in such offering), Purchaser the Company shall include in such registration and offering Piggyback Registration or Piggyback Shelf Takedown: (i) first, Equity Securities that the number of Purchaser Shares that Purchaser Company proposes to sellsell in such offering; and (ii) second, the number of Purchaser Shares any Registrable Securities requested to be included therein by holders of Purchaser Shares, including Seller (if Seller has elected to include Registrable Securities in such Piggyback Registrationoffering by any Holders or any Equity Securities proposed to be included in the offering by any other Person to whom the Company has a contractual obligation to facilitate such offering, allocated, in the case of this clause (ii), pro rata among all such holders Holders and Persons on the basis of the number of Purchaser Shares requested Equity Securities initially proposed to be included therein by all each such holders Holder or as Person in such holders and Purchaser may otherwise agree (with allocations among different classes of Purchaser Sharesoffering, if more than one are involved, up to be determined by Purchaser). If the number of Purchaser Shares Equity Securities, if any, that may the managing underwriters determine can be sold is less than included in the number offering without reasonably being expected to adversely affect the success of Purchaser Shares proposed the offering (including the price, timing or distribution of the securities to be registered pursuant to clause (i) above by Purchaser, offered in the amount of Purchaser Shares to be sold shall be allocated to Purchaseroffering).

Priority on Primary Piggyback Registrations. If Except in the case of a Redemption Offering, if a Piggyback Registration is initiated as a primary underwritten offering on behalf of Purchaser the Company and the managing underwriters advise Purchaser and Seller (if Seller has elected to include Registrable Securities in such Piggyback Registration) the Company that in their opinion the number of Purchaser Shares proposed to be included in such offering exceeds the number of Purchaser Shares (of any class) which can be sold in such offering without materially delaying or jeopardizing otherwise adversely affecting the success of the offering (including the price per share of Purchaser the Shares proposed to be sold in such offering), Purchaser the Company shall include in such registration and offering (i) first, the number of Purchaser Shares that Purchaser the Company proposes to sell; , and (ii) second, the number of Purchaser Shares requested to be included therein by holders of Purchaser Shares, including Seller (if Seller has elected to include Registrable Securities in such Piggyback Registration)the Investors, pro rata among all such holders Investors on the basis of the number of Purchaser Registrable Shares owned by each such Investor up to such number, if any, that the managing underwriters determine can be included in such offering without delaying or otherwise adversely affecting the success of the offering. Notwithstanding the foregoing, if a Piggyback Registration is a Redemption Offering, the Investors shall only be permitted to include Shares in such Piggyback Registration if and to the extent the managing underwriters conclude that Shares can be sold in excess of the Shares proposed by Berkshire to be sold in such Redemption Offering without delaying or otherwise adversely affecting the success of the Redemption Offering (including the price per share of the Shares proposed to be sold in such Redemption Offering). If the managing underwriters so conclude that excess Shares can be sold by Investors in a Redemption Offering without delaying or otherwise adversely affecting the success of the Redemption Offering, the Company shall include in such Redemption Offering (i) first, the number of Shares that Berkshire proposes to include, and (ii) second, the number of Registrable Shares requested to be included therein by all any Investors, pro rata among such holders or as such holders and Purchaser may otherwise agree (with allocations among different classes Investors on the basis of Purchaser Shares, if more than one are involved, to be determined by Purchaser). If the number of Purchaser Registrable Shares owned by each such Investor up to such number, if any, that may the managing underwriters determine can be sold is less than included in such offering without delaying or otherwise adversely affecting the number success of Purchaser Shares proposed to be registered pursuant to clause (i) above by Purchaser, the amount of Purchaser Shares to be sold shall be allocated to Purchaseroffering.

Priority on Primary Piggyback Registrations. If a Piggyback Registration or Piggyback Shelf Takedown is initiated as a primary underwritten offering on behalf of Purchaser Parent and the managing underwriters of the offering advise Purchaser and Seller (if Seller has elected to include Registrable Securities Parent in such Piggyback Registration) that writing that, in their opinion opinion, the number of Purchaser Shares Equity Securities proposed to be included in such offering offering, including all Registrable Securities and all other Equity Securities proposed to be included in such offering, exceeds the number of Purchaser Shares (of any class) which Equity Securities that can reasonably be expected to be sold in such offering without materially delaying or jeopardizing adversely affecting the success of the offering (including the price per share price, timing or distribution of Purchaser Shares proposed the securities to be sold in such offering), Purchaser Parent shall include in such registration and offering Piggyback Registration or Piggyback Shelf Takedown: (i) first, the number of Purchaser Shares Equity Securities that Purchaser Parent proposes to sellsell in such offering; and (ii) second, the number of Purchaser Shares any Registrable Securities requested to be included therein by holders any Holders, allocated, in the case of Purchaser Shares, including Seller this clause (if Seller has elected to include Registrable Securities in such Piggyback Registrationii), pro rata among all such holders Holders on the basis of the number of Purchaser Shares requested Registrable Securities initially proposed to be included therein by all each such holders or as Holder in such holders and Purchaser may otherwise agree (with allocations among different classes of Purchaser Sharesoffering, if more than one are involved, up to be determined by Purchaser). If the number of Purchaser Shares Registrable Securities, if any, that may the managing underwriters determine can be sold is less than included in the offering without reasonably being expected to adversely affect the success of the offering (including the price, timing or distribution of the securities to be offered in such offering); and (iii) third, any Equity Securities proposed to be included in such offering by any other Person to whom Parent has a contractual obligation to facilitate such offering, allocated, in the case of this clause (iii), pro rata among such Persons on the basis of the number of Purchaser Shares Equity Securities initially proposed to be registered pursuant included by each such Person in such offering, up to clause the number of Equity Securities, if any, that the managing underwriters determine can be included in the offering without reasonably being expected to adversely affect the success of the offering (i) above by Purchaserincluding the price, timing or distribution of the amount of Purchaser Shares securities to be sold shall be allocated to Purchaseroffered in such offering).

Priority on Primary Piggyback Registrations. If a Piggyback Registration or Piggyback Shelf Takedown is initiated as a primary underwritten offering on behalf of Purchaser Parent and the managing underwriters of the offering advise Purchaser and Seller (if Seller has elected to include Registrable Securities Parent in such Piggyback Registration) that writing that, in their opinion opinion, the number of Purchaser Shares Equity Securities proposed to be included in such offering offering, including all Registrable Securities and all other Equity Securities proposed to be included in such offering, exceeds the number of Purchaser Shares (of any class) which Equity Securities that can reasonably be expected to be sold in such offering without materially delaying or jeopardizing adversely affecting the success of the offering (including the price per share price, timing or distribution of Purchaser Shares proposed the securities to be sold in such offering), Purchaser Parent shall include in such registration and offering Piggyback Registration or Piggyback Shelf Takedown: (i) first, the number of Purchaser Shares Equity Securities that Purchaser Parent proposes to sell; and sell in such offering; (ii) second, the number of Purchaser Shares any Registrable Securities requested to be included therein by holders any Holders, allocated, in the case of Purchaser Shares, including Seller this clause (if Seller has elected to include Registrable Securities in such Piggyback Registrationii), pro rata among all such holders Holders on the basis of the number of Purchaser Shares requested Registrable Securities initially proposed to be included therein by all each such holders or as Holder in such holders and Purchaser may otherwise agree (with allocations among different classes of Purchaser Sharesoffering, if more than one are involved, up to be determined by Purchaser). If the number of Purchaser Shares Registrable Securities, if any, that may the managing underwriters determine can be sold is less than included in the offering without reasonably being expected to adversely affect the success of the offering (including the price, timing or distribution of the securities to be offered in such offering); and (iii) third, any Equity Securities proposed to be included in such offering by any other Person to whom Parent has a contractual obligation to facilitate such offering, allocated, in the case of this clause (iii), pro rata among such Persons on the basis of the number of Purchaser Shares Equity Securities initially proposed to be registered pursuant included by each such Person in such offering, up to clause the number of Equity Securities, if any, that the managing underwriters determine can be included in the offering without reasonably being expected to adversely affect the success of the offering (i) above by Purchaserincluding the price, timing or distribution of the amount of Purchaser Shares securities to be sold shall be allocated to Purchaseroffered in such offering).

Priority on Primary Piggyback Registrations. If a Piggyback Registration is initiated as a primary underwritten offering Underwritten Offering on behalf of Purchaser CPLP and the managing underwriters advise Purchaser CPLP and Seller the Selling Holders (if Seller any Holder has elected to include Registrable Securities in such Piggyback Registration) that in their opinion the number of Purchaser Shares Units proposed to be included in such offering exceeds the number of Purchaser Shares Units (of any class) which can be sold in such offering without materially delaying or jeopardizing the success of the offering (including the price per share unit of Purchaser Shares the Units proposed to be sold in such offering), Purchaser CPLP shall include in such registration and offering (i) first, the number of Purchaser Shares Units that Purchaser CPLP proposes to sell; , and (ii) second, the number of Purchaser Shares Units requested to be included therein by holders of Purchaser SharesUnits which are neither expressly senior nor subordinated to the Registrable Securities (the “Parity Securities”), including Seller the Selling Holders (if Seller any Holder has elected to include Registrable Securities in such Piggyback Registration)) and for the avoidance of doubt, includes any Registrable Securities held by any Affiliates of the General Partner that may be included in such offering pursuant to Section 7.19(b) of the Partnership Agreement, pro rata among all such holders on the basis of the number of Purchaser Shares Units requested to be included therein by all such holders or as such holders and Purchaser CPLP may otherwise agree agree. The pro rata allocations for each Selling Holder who has requested participation in such Underwritten Offering shall be the product of (with allocations among different classes a) the aggregate number of Purchaser Shares, if more than one are involved, Registrable Securities proposed to be determined sold in such Underwritten Offering multiplied by Purchaser). If (b) the fraction derived by dividing (x) the number of Purchaser Shares that may be sold is less than Registrable Securities owned by such Selling Holder by (y) the aggregate number of Purchaser Shares proposed to be registered pursuant to clause (i) above Registrable Securities owned by Purchaser, all Selling Holders plus the amount aggregate number of Purchaser Shares to be sold shall be allocated to PurchaserParity Securities owned by all holders of Parity Securities that are participating in the Underwritten Offering.

Priority on Primary Piggyback Registrations. If a Piggyback Registration is initiated as a primary underwritten offering Underwritten Offering on behalf of Purchaser CPLP and the managing underwriters advise Purchaser CPLP and Seller the Selling Holders (if Seller any Holder has elected to include Registrable Securities in such Piggyback Registration) that in their opinion the number of Purchaser Shares Units proposed to be included in such offering exceeds the number of Purchaser Shares Units (of any class) which can be sold in such offering without materially delaying or jeopardizing the success of the offering (including the price per share unit of Purchaser Shares the Units proposed to be sold in such offering), Purchaser CPLP shall include in such registration and offering (i) first, the number of Purchaser Shares Units that Purchaser CPLP proposes to sell; , and (ii) second, the number of Purchaser Shares Units requested to be included therein by holders of Purchaser SharesUnits which are neither expressly senior nor subordinated to the Registrable Securities (the “Parity Securities”), including Seller the Selling Holders (if Seller any Holder has elected to include Registrable Securities in such Piggyback Registration)) and for the avoidance of doubt, includes any Registrable Securities held by any Affiliates of the General Partner (as defined in the Partnership Agreement) that may be included in such offering pursuant to Section 7.19(b) of the Partnership Agreement, pro rata among all such holders on the basis of the number of Purchaser Shares Units requested to be included therein by all such holders or as such holders and Purchaser CPLP may otherwise agree agree. The pro rata allocations for each Selling Holder who has requested participation in such Underwritten Offering shall be the product of (with allocations among different classes a) the aggregate number of Purchaser Shares, if more than one are involved, Registrable Securities proposed to be determined sold in such Underwritten Offering multiplied by Purchaser). If (b) the fraction derived by dividing (x) the number of Purchaser Shares that may be sold is less than Registrable Securities owned by such Selling Holder by (y) the aggregate number of Purchaser Shares proposed to be registered pursuant to clause (i) above Registrable Securities owned by Purchaser, all Selling Holders plus the amount aggregate number of Purchaser Shares to be sold shall be allocated to PurchaserParity Securities owned by all holders of Parity Securities that are participating in the Underwritten Offering.

Priority on Primary Piggyback Registrations. If a the Company proposes to register or sell Shares pursuant to any Piggyback Registration is initiated (other than pursuant to a Demand Request) or any Piggyback Takedown (other than a Holder Shelf Takedown) as a primary underwritten offering on behalf of Purchaser its own account and the managing underwriters therefor advise Purchaser and Seller (if Seller has elected to include Registrable Securities in such Piggyback Registration) that the Company that, in their opinion opinion, the number of Purchaser Shares proposed to be included in the Underwritten Offering, including all Registrable Securities and all other Shares proposed to be included in such Underwritten Offering, exceeds the number of Shares that can be sold in such underwritten offering without materially delaying or materially jeopardizing the success of such offering and/or the number of Shares proposed to be included in such offering exceeds the number of Purchaser Shares (of any class) which can be sold in such offering without materially delaying or jeopardizing the success of the offering (including would adversely affect the price per share of Purchaser Shares the Registrable Securities proposed to be sold in such offering)Underwritten Offering, Purchaser the Company shall include in such registration and offering the number of shares determined to be advisable by the managing underwriter in the following priority: (i) first, up to the number of Purchaser Shares that Purchaser proposes to sell; be issued and sold by the Company in such offering, if any, and (ii) second, the number of Purchaser Shares requested to be included therein by holders of Purchaser SharesShares who have the right to request such inclusion, including Seller the Holders (if Seller any Holder has elected requested to include Registrable Securities in such Piggyback Registrationoffering), pro rata among all such holders on the basis of the number of Purchaser Shares requested to be included therein by all such holders or as such holders and Purchaser the Company may otherwise agree (with allocations among different classes of Purchaser Shares, if more than one are involved, to be determined by Purchaser). If the number of Purchaser Shares that may be sold is less than the number of Purchaser Shares proposed to be registered pursuant to clause (i) above by Purchaser, the amount of Purchaser Shares to be sold shall be allocated to Purchaseragree.

Priority on Primary Piggyback Registrations. If a Piggyback Registration is initiated as a primary underwritten offering Underwritten Offering on behalf of Purchaser CPLP and the managing underwriters advise Purchaser CPLP and Seller the CPLP Selling Holders (if Seller any CPLP Holder has elected to include Registrable Securities in such Piggyback Registration) that in their opinion the number of Purchaser Shares Units proposed to be included in such offering exceeds the number of Purchaser Shares Units (of any class) which can be sold in such offering without materially delaying or jeopardizing the success of the offering (including the price per share unit of Purchaser Shares the Units proposed to be sold in such offering), Purchaser CPLP shall include in such registration and offering (i) first, the number of Purchaser Shares Units that Purchaser CPLP proposes to sell; , and (ii) second, the number of Purchaser Shares Units requested to be included therein by holders of Purchaser SharesUnits which are neither expressly senior nor subordinated to the Registrable Securities (the “Parity Securities”), including Seller the CPLP Selling Holders (if Seller any CPLP Holder has elected to include Registrable Securities in such Piggyback Registration)) and for the avoidance of doubt, includes any Registrable Securities held by any Affiliates of the General Partner that may be included in such offering pursuant to Section 7.19(b) of the Partnership Agreement, pro rata among all such holders on the basis of the number of Purchaser Shares Units requested to be included therein by all such holders or as such holders and Purchaser CPLP may otherwise agree agree. The pro rata allocations for each CPLP Selling Holder who has requested participation in such Underwritten Offering shall be the product of (with allocations among different classes a) the aggregate number of Purchaser Shares, if more than one are involved, Registrable Securities proposed to be determined sold in such Underwritten Offering multiplied by Purchaser). If (b) the fraction derived by dividing (x) the number of Purchaser Shares that may be sold is less than Registrable Securities owned by such CPLP Selling Holder by (y) the aggregate number of Purchaser Shares proposed to be registered pursuant to clause (i) above Registrable Securities owned by Purchaser, all CPLP Selling Holders plus the amount aggregate number of Purchaser Shares to be sold shall be allocated to PurchaserParity Securities owned by all holders of Parity Securities that are participating in the Underwritten Offering.

Priority on Primary Piggyback Registrations. If a Piggyback Registration is initiated as a primary underwritten offering on behalf of Purchaser the Company and the managing underwriters advise Purchaser the Company and Seller the Investor (if Seller the Investor has elected to include Registrable Securities in such Piggyback Registration) that in their opinion the number of Purchaser Company Shares proposed to be included in such offering exceeds the number of Purchaser Company Shares (of any class) which can be sold in such offering without materially delaying or jeopardizing having an Adverse Effect, the success of the offering (including the price per share of Purchaser Shares proposed to be sold in such offering), Purchaser Company shall include in such registration and offering (i) first, the number of Purchaser Company Shares that Purchaser the Company proposes to sell; and (ii) second, the number of Purchaser Company Shares proposed to be included therein by any Park Avenue Holder thereof, pro rata among such Park Avenue Holders on the basis of the number of Company Shares owned by each such Park Avenue Holder; and (iii) third, the number of Company Shares requested to be included therein by other holders of Purchaser Company Shares, including Seller the Investor (if Seller the Investor has elected to include Registrable Securities in such Piggyback Registration), pro rata among all such other holders on the basis of the number of Purchaser Company Shares requested to be included therein by all such other holders or as such other holders and Purchaser the Company may otherwise agree (with allocations among different classes of Purchaser Company Shares, if more than one are involved, to be determined by Purchaserthe Company). If the number of Purchaser Company Shares that may be sold is less than the number of Purchaser Company Shares proposed to be registered pursuant to clause (i) above by Purchaserthe Company, the full amount of Purchaser Company Shares to be sold shall be allocated to Purchaserthe Company.

Priority on Primary Piggyback Registrations. If a Piggyback Registration is initiated as a primary underwritten offering on behalf of Purchaser the Company, and the managing underwriters advise Purchaser and Seller (if Seller has elected to include Registrable Securities in such Piggyback Registration) the Company that in their opinion the number of Purchaser Shares proposed to be included in such offering exceeds the number of Purchaser Shares (of any class) which can be sold in such offering without materially delaying or jeopardizing otherwise adversely affecting the success of the offering (including the price per share of Purchaser the Shares proposed to be sold in such offering), Purchaser the Company shall include in such registration and offering (i) first, the number of Purchaser Shares that Purchaser the Company proposes to sell; , and (ii) second, the number of Purchaser Shares requested to be included therein by holders of Purchaser Shares, including Seller (if Seller has elected to include Registrable Securities in such Piggyback Registration)the Investors, pro rata among all such holders Investors on the basis of the number of Purchaser Registrable Shares owned by each such Investor up to such number, if any, that the managing underwriters determine can be included in such offering without delaying or otherwise adversely affecting the success of the offering. Notwithstanding the foregoing, if a Piggyback Registration is a Redemption Offering, Investors shall only be permitted to include Shares in such Piggyback Registration if and to the extent the managing underwriters conclude that Shares can be sold in excess of the Shares proposed by Investor(s) to be sold in such Redemption Offering without delaying or otherwise adversely affecting the success of the Redemption Offering (including the price per share of the Shares proposed to be sold in such Redemption Offering). If the managing underwriters so conclude that excess Shares can be sold by Investors in a Redemption Offering without delaying or otherwise adversely affecting the success of the Redemption Offering, the Company shall include in such Redemption Offering the number of Registrable Shares requested to be included therein by all any Investors, pro rata among such holders or as such holders and Purchaser may otherwise agree (with allocations among different classes Investors on the basis of Purchaser Shares, if more than one are involved, to be determined by Purchaser). If the number of Purchaser Registrable Shares owned by each such Investor up to such number, if any, that may the managing underwriters determine can be sold is less than included in such offering without delaying or otherwise adversely affecting the number success of Purchaser Shares proposed to be registered pursuant to clause (i) above by Purchaser, the amount of Purchaser Shares to be sold shall be allocated to Purchaseroffering.