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 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 is initiated as a an underwritten primary underwritten offering registration on behalf of Purchaser the Company, and if the managing underwriters advise Purchaser and Seller (if Seller has elected to include Registrable Securities the Company in such Piggyback Registration) writing that in their opinion the number of Purchaser Shares proposed securities requested to be included in such offering registration exceeds the number of Purchaser Shares (of any class) securities which can be sold in an orderly manner in such offering without materially delaying adversely affecting the marketability, proposed offering price, timing or jeopardizing the success method of distribution of the offering (including offering, then the price per share of Purchaser Shares proposed to be sold in such offering), Purchaser Company shall include in such registration only that number of securities which in the opinion of the underwriters can be sold in an orderly manner in such offering without adversely affecting the marketability of the offering at such price and offering with such timing or method of distribution, with priority for inclusion to be determined as follows: (i) first, the number of Purchaser Shares that Purchaser securities the Company proposes to sell; 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 Registration)registration, which in the opinion of the underwriters can be sold in an orderly manner without such adverse effect, pro rata among all such the respective holders thereof on the basis of the number of Purchaser Shares Registrable Securities owned by each such holder, and (iii) third, any other securities requested to be included therein by all in such registration, which in the opinion of the underwriters can be sold in an orderly manner without such adverse effect, pro rata among the respective holders or as such holders and Purchaser may otherwise agree (with allocations among different classes thereof on the basis of Purchaser Shares, if more than one are involved, to be determined by Purchaser). If the number of Purchaser Shares such securities owned by each such holder; provided, however, that in no event may be sold is less than 25% of the total number of shares of Common Stock to be included in such underwriting be made available for Registrable Securities unless the managing underwriter in good faith shall advise the Company that such level of participation in its opinion would adversely affect the offering price or its ability to complete the offering and shall specify the number of Purchaser Shares proposed to Registrable Securities which, in its opinion, may be registered pursuant to clause (i) above by Purchaser, the amount of Purchaser Shares to be sold shall be allocated to Purchaserincluded in such registration and underwriting without such effect.

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 Piggyback Registration is initiated as a an underwritten primary underwritten offering registration on behalf of Purchaser the Company and the managing underwriters advise Purchaser and Seller (if Seller has elected to include Registrable Securities the Company in such Piggyback Registration) writing that in their opinion the number of Purchaser Shares proposed securities requested to be included in such offering registration exceeds the number of Purchaser Shares (securities that can be sold within a price range acceptable to the Company, then the Company shall include in such registration only that number of any class) securities which in the opinion of such underwriters can be sold in such offering without materially delaying or jeopardizing adversely affecting the success marketability of the offering within such price range, with priority for inclusion to be determined as follows: (including i) With respect to any Piggyback Registration commenced prior to the price per share End Date, (A) first, the securities the Company proposes to sell, (B) second, the WCP Registrable Securities and Other Registrable Securities requested to be included in such registration in amount up to 75% of Purchaser Shares proposed the remaining total Registrable Securities to be sold in the Demand Registration, which in the opinion of such offering), Purchaser shall include underwriters can be sold in an orderly manner without 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)adverse effect, pro rata among all such the respective holders thereof on the basis of the number of Purchaser Shares Registrable Securities owned by each such holder, (C) third the Registrable Securities (other than WCP Registrable Securities and Other Registrable Securities) requested to be included therein by all in such registration, which in the opinion of such underwriters can be sold in an orderly manner without such adverse effect, pro rata among the respective holders or as such holders and Purchaser may otherwise agree (with allocations among different classes thereof on the basis of Purchaser Shares, if more than one are involved, to be determined by Purchaser). If the number of Purchaser Shares that may Registrable Securities owned by each such holder, and (D) fourth, any other securities requested to be included in such registration, the inclusion of which the holders of 66 2/3% of the Sponsor Registrable Securities to be included in such registration have consented to in writing, which in the opinion of such underwriters can be sold is less than in an orderly manner without such adverse effect, pro rata among the respective holders thereof on the basis of the number of Purchaser Shares proposed such securities owned by each such holder. (ii) With respect to any Piggyback Registration commenced after the End Date, (A) first, the securities the Company proposes to sell, (B) second, the Registrable Securities requested to be registered pursuant included in such registration, which in the opinion of such underwriters can be sold in an orderly manner without such adverse effect, pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder, and (C) third, any other securities requested to clause (i) above by Purchaserbe included in such registration, the amount inclusion of Purchaser Shares which the holders of 66 2/3% of the Sponsor Registrable Securities to be included in such registration have consented to in writing, which in the opinion of such underwriters can be sold shall be allocated to Purchaserin an orderly manner without such adverse effect, pro rata among the respective holders thereof on the basis of the number of such securities owned by each such holder.

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 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.

Priority on Primary Piggyback Registrations. If a Piggyback Registration Underwritten Offering is initiated as a primary underwritten offering Underwritten Offering on behalf of Purchaser the Company and the managing underwriters advise Purchaser the Company and Seller the Holders (if Seller any Holder has elected to include Registrable Securities Shares in such Piggyback RegistrationUnderwritten Offering) 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 the Shares proposed to be sold in such offering), Purchaser the Company shall include in such registration and offering Piggyback Underwritten 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 any Holder (if Seller any Holder has elected to include Registrable Securities Shares in such Piggyback RegistrationUnderwritten Offering), 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 Purchaserthe Company). 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 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 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 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 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 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.