EXHIBIT 4.4
EXECUTION COPY
________________________________________________________________________________
REGISTRATION RIGHTS AND PARTNERS' AGREEMENT
dated as of July 23, 1999
by and among
PETRO STOPPING CENTERS HOLDINGS, L.P.,
PETRO WARRANT HOLDINGS CORPORATION,
PERMITTED HOLDERS OF PETRO STOPPING CENTERS HOLDINGS, L.P.,
SIXTY EIGHTY, LLC,
and
FIRST UNION CAPITAL MARKETS CORP. and
CIBC WORLD MARKETS CORP.
as the Initial Purchasers
________________________________________________________________________________
THIS REGISTRATION RIGHTS AND PARTNERS' AGREEMENT (this "Agreement") is
dated as of July 23, 1999, by and among Petro Stopping Centers Holdings, L.P., a
Delaware limited partnership (the "Partnership"), Petro Warrant Holdings
Corporation, a Delaware corporation ("Warrant Holdings"), the Permitted Holders
(as defined herein), Sixty Eighty, LLC and First Union Capital Markets Corp.
(the "Representative") and CIBC World Markets Corp. (together with the
Representative, the "Initial Purchasers").
WHEREAS, pursuant to a purchase agreement dated as of July 19, 1999
(the "Purchase Agreement") by and among the Partnership, Warrant Holdings, Petro
Holdings Financial Corporation, a Delaware corporation ("Financial Corp." and
together with the Partnership, the "Issuers") and the Initial Purchasers, the
Issuers propose to issue and sell to the Initial Purchasers 82,707 units (the
"Units"), consisting in the aggregate of $82,707,000 principal amount at stated
maturity of 15% Senior Discount Notes Due 2008 (the "Notes") issued by the
Issuers and 82,707 warrants issued by Warrant Holdings (the "Warrants")
initially exchangeable for an aggregate of 82,707 shares of common stock of
Warrant Holdings (the "Common Stock");
WHEREAS, each Unit will consist of $1,000 principal amount at stated
maturity of Notes and one Warrant entitling the holder thereof to receive, upon
exchange of such Warrant, one share of Common Stock in accordance with the
provisions of the warrant agreement, dated the date hereof (the "Warrant
Agreement") by and among Warrant Holdings, the Partnership, Sixty Eighty, LLC,
the Initial Purchasers and the Warrant Agent (as defined herein);
WHEREAS, the parties hereto contemplate that, at some time in the
future, the business of the Partnership may be transferred to a Successor
Corporation (as defined herein);
WHEREAS, in order to induce the Initial Purchasers to enter into the
Purchase Agreement, the Permitted Holders have agreed to provide the Holders (as
defined herein) and Warrant Holdings, among other things, the tag-along rights
as set forth herein; and
WHEREAS, in order to induce the Permitted Holders to enter into this
Agreement, Warrant Holdings and the Initial Purchasers have agreed to provide
the Permitted Holders, among other things, the drag-along rights as set forth
herein;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, and for the purpose of defining the respective
rights and obligations of the Partnership, Warrant Holdings, the Permitted
Holders, the Initial Purchasers and the Holders, the parties hereto agree as
follows:
1. DEFINITIONS. As used in this Agreement, the following capitalized defined
terms shall have the following meanings:
"Affiliate" means, when used with reference to any Person, any other
Person directly or indirectly controlling, controlled by, or under direct or
indirect common control with, the referenced Person or such other Person, as the
case may be. For the purposes of this definition, "control" (including, with
correlative meanings, the term "controlling," "controlled by," and "under common
control with"), when used with respect to any specified Person, means the power
to direct or cause the direction of management or policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise. None of
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Warrant Holdings, the Holders or any of their Affiliates shall be deemed to be
an Affiliate of the Partnership, any of the Permitted Holders or of any of their
Affiliates in their capacities as such.
"Agreement" shall have the meaning set forth in the first paragraph
hereof.
"Business Day" means any day excluding Saturday, Sunday or any other
day which is a legal holiday under the laws of New York, New York or is a day on
which banking institutions therein located are authorized or required by law or
other governmental action to close.
"Change of Control" shall have the meaning ascribed thereto in the
Warrant Agreement.
"Common Stock" shall have the meaning set forth in the recitals
hereof.
"Company" means the Partnership and shall also mean its successors and
assigns, subject to the provisions of Section 5 hereof.
"Drag-Along Notice" shall have the meaning set forth in Section 4.1
hereof.
"Drag-Along Right" shall have the meaning set forth in Section 4.1
hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Exempt Transfer" means a Transfer by a Permitted Holder (i) to a
Permitted Transferee or (ii) in a bona fide public distribution pursuant to an
effective registration statement under the Securities Act.
"Financial Corp." shall have the meaning set forth in the recitals
hereof.
"Holder" shall mean the Initial Purchasers, for so long as either of
them owns any Warrants, Holdings Warrant Shares or Successor Warrant Shares, and
each of their respective successors, assigns and direct and indirect transferees
who become holders of record of Warrants, Holdings Warrant Shares and Successor
Warrant Shares as shown on the register of Warrants maintained by the Warrant
Agent or, after the issuance of Holdings Warrant Shares or Successor Warrant
Shares, as shown on the books and records of the transfer agent responsible for
recording transfers of Holdings Warrant Shares or Successor Corporation Shares.
"Holdings Warrant Shares" means shares of Common Stock, issuable in
exchange for Warrants.
"Indemnified Person" shall have the meaning set forth in Section 2.4
hereof.
"Indemnifying Person" shall have the meaning set forth in Section 2.4
hereof.
"Initial Purchasers" shall have the meaning set forth in the first
paragraph hereof.
"Issuers" shall have the meaning set forth in the recitals hereof.
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"Notes" shall have the meaning set forth in the recitals hereof.
"Participant" shall have the meaning set forth in Section 2.4 hereof.
"Participating Holders" shall have the meaning set forth in Section
3.2 hereof.
"Partnership" shall have the meaning set forth in the first paragraph
hereof.
"Partnership Agreement" means the Limited Partnership Agreement of
Petro Stopping Centers Holdings, L.P., dated July 23, 1999, by and among Petro,
Inc., as general partner, and Xxxxx X. Xxxxxxxx, Xx., Xxxxx X. Xxxxxxxx, Xx.,
JAJCO II, Inc., Petro, Inc. Mobil Long Haul Inc., Volvo Petro Holdings, L.L.C.,
and Warrant Holdings as limited partners, as the same may be amended from time
to time.
"Partnership Interests" means common limited partnership interests or
preferred partnership interests convertible into common limited partnership
interests in the Partnership.
"Permitted Holders" means (1) X.X. Xxxxxxxx, Xx., Xxxxx X. Xxxxxxxx,
Xx., and their respective spouses, lineal descendants, estates and Affiliates,
including Petro, Inc. (a corporation wholly owned by X.X. Xxxxxxxx, Xx.) and
JAJCO II, Inc. a company wholly owned by Xxxxx X. Xxxxxxxx, Xx.), (2) Mobil Long
Haul, Inc. and (3) Volvo Petro Holdings, L.L.C.
"Permitted Transferee" means, with respect to a Permitted Holder, an
Affiliate of such Permitted Holder to the extent such Person agrees to be bound
by this Agreement.
"Person" shall mean any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Piggy-Back Registration" shall have the meaning set forth in Section
2.1 hereof.
"Proposed Drag-Along Transfer" shall have the meaning set forth in
Section 4.1 hereof.
"Proposed Majority-Interest Purchaser" shall have the meaning set
forth in Section 4.1 hereof.
"Proposed Purchaser" shall have the meaning set forth in Section 3.2
hereof.
"Proposed Tag-Along Transfer" shall have the meaning set forth in
Section 3.2 hereof.
"Prospectus" shall mean the prospectus included in any Registration
Statement (including, without limitation, any prospectus subject to completion
and a prospectus that includes any information previously omitted from a
prospectus filed as part of an effective registration statement in reliance upon
Rule 430A promulgated under the Securities Act), as amended or supplemented by
any prospectus supplement, with respect to the terms of the offering of any
portion of the Successor Warrant Shares covered by such Registration Statement,
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and all other amendments and supplements to the Prospectus, including post-
effective amendments, and all material incorporated by reference, if any, in
such Prospectus.
"Purchase Agreement" shall have the meaning set forth in the recitals
hereof.
"Registration Expenses" shall mean all expenses incident to the
Company's performance of or compliance with the terms of this Agreement,
including, without limitation, all SEC and stock exchange or National
Association of Securities Dealers, Inc. registration and filing fees and
expenses, fees and expenses of compliance with securities or blue sky laws
(including, without limitation, reasonable fees and disbursements of counsel for
the underwriters in connection with blue sky qualifications of the Successor
Warrant Shares), rating agency fees, printing expenses, messenger, telephone and
delivery expenses, fees and disbursements of counsel for the Company and all
independent certified public accountants, the fees and disbursements of
underwriters customarily paid by issuers or sellers of securities (but not
including any underwriting discounts or commissions or transfer taxes, if any,
attributable to the sale of Successor Warrant Shares by Holders of such
Successor Warrant Shares) and other reasonable out-of-pocket expenses of
Holders.
"Registration Statement" shall mean any registration statement of the
Successor Corporation, other than a registration statement on Form S-4 or S-8 or
any successor to such form, which covers any of the Successor Corporation Shares
pursuant to the provisions of this Agreement and all amendments and supplements
to any such registration statement, including post-effective amendments, in each
case including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Representative" shall have the meaning set forth in the first
paragraph hereof.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Successor Corporation" means any corporation (i) into which the
Partnership is consolidated or merged, or (ii) any other corporation to which
the Partnership leases, sells or conveys its property as an entirety or
substantially as an entirety that is authorized to acquire or lease and operate
the same in a transaction that does not constitute a Change of Control.
"Successor Corporation Shares" means shares of common stock of a
Successor Corporation.
"Successor Corporation Transaction" means any transaction pursuant to
which a corporation becomes a Successor Corporation.
"Successor Warrant Shares" means Successor Corporation Shares issued
by the Successor Corporation to Warrant Holdings or the Holders.
"Tag-Along Notice" shall have the meaning set forth in Section 3.2
hereof.
"Tag-Along Right" shall have the meaning set forth in Section 3.2
hereof.
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"Transfer" shall have the meaning set forth in Section 3.1 hereof.
"Units" shall have the meaning set forth in the recitals hereof.
"Warrant Agent" means State Street Bank and Trust Company or the
successor or successors of such Warrant Agent appointed in accordance with the
terms of the Warrant Agreement.
"Warrant Agreement" shall have the meaning set forth in the recitals
hereof.
"Warrant Holdings" shall have the meaning set forth in the first
paragraph hereof.
"Warrants" shall have the meaning set forth in the recitals hereof.
2. REGISTRATION RIGHTS.
2.1. Piggy-Back Registration.
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(a) If at any time following or in connection with a Successor
Corporation Transaction, the Company proposes to file a Registration Statement
under the Securities Act with respect to an offering for the account of any
holder of Successor Corporation Shares, then the Company shall give written
notice of such proposed filing to the Holders as soon as practicable (but in no
event less than 15 Business Days before the anticipated filing date), and such
notice shall offer the Holders the opportunity to register such number of
Successor Warrant Shares as each of the Holders may request (which request shall
specify the Successor Warrant Shares intended to be disposed of by such selling
Holder and the intended method of distribution thereof) (a "Piggy-Back
Registration"), unless such Successor Warrant Shares are freely transferable
under the Securities Act, in which case such Holders shall have no right to
request, and the Company shall have no obligation to undertake, a Piggy-Back
Registration. The Company shall use its reasonable best efforts to cause the
managing underwriter or underwriters of any underwritten offering described in
the Registration Statement to permit the Successor Warrant Shares requested to
be included in a Piggy-Back Registration to be included on the same terms and
conditions as any similar securities of any other securityholder included
therein and to permit the sale or other disposition of such Successor Warrant
Shares in accordance with the intended method of distribution thereof, and it
shall be a condition of inclusion of Successor Warrant Shares in any such
Registration Statement that the selling Holder execute the underwriting
agreement for such offering. Any selling Holder shall have the right to withdraw
its request for inclusion of its Successor Warrant Shares in any Registration
Statement pursuant to this Section 2.1 by giving written notice to the Company
of its request to withdraw. The Company may withdraw a Piggy-Back Registration
at any time prior to the time it becomes effective; provided, however, that the
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Company shall give prompt notice thereof to participating selling Holders. The
Company will pay all Registration Expenses in connection with each registration
of Successor Warrant Shares requested pursuant to this Section 2.1, and each
Holder shall pay all underwriting discounts and commissions and transfer taxes,
if any, relating to the sale or disposition of such Holder's Successor Warrant
Shares pursuant to a Registration Statement effected pursuant to this Section
2.1.
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(b) No failure to effect a registration under this Section 2.1 and to
complete the sale of Successor Warrant Shares in connection therewith shall
relieve the Company of any other obligation under this Agreement.
2.2. Reduction of Offering.
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(a) If the managing underwriter or underwriters of any underwritten
offering described in Section 2.1 have informed, in writing, the selling Holders
of the Successor Warrant Shares requesting inclusion in such offering that it is
their opinion that the total amount of Successor Corporation Shares (or other
equity securities) which the Company, the selling Holders and any other Persons
desiring to participate in such registration intend to include in such offering
is such as to materially and adversely affect the success of such offering,
including the price at which such securities can be sold, then the amount of
Successor Corporation Shares to be offered for the account of the selling
Holders and all other Persons (other than the Successor Corporation)
participating in such registration shall be reduced or limited pro rata in
proportion to the respective amounts of Successor Corporation Shares requested
to be registered to the extent necessary to reduce the total amount of Successor
Corporation Shares requested to be included in such offering to the amount of
Successor Corporation Shares, if any, recommended by such managing underwriters.
(b) If, as a result of the proration provisions of this Section 2.2,
any selling Holder shall not be entitled to include all Successor Warrant Shares
in a Piggy-Back Registration that such selling Holder has requested to be
included, such selling Holder may elect to withdraw his request to include
Successor Warrant Shares in such registration; provided, however, that such a
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withdrawal shall be irrevocable and, after making such withdrawal, a selling
Holder shall no longer have any right to include Successor Warrant Shares in the
registration as to which such withdrawal was made.
2.3. Registration Procedures. In connection with the obligations of the
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Company with respect to any Registration Statement pursuant to Section 2.1, if
any, to the extent Successor Warrant Shares are sought to be registered pursuant
thereto, the Company shall, subject to the Company's right to withdraw such
Registration Statement at any time:
(a) prepare and file with the SEC a Registration Statement on the
appropriate form under the Securities Act, which form (i) shall be selected by
the Company and (ii) shall comply as to form in all material respects with the
requirements of such form and include all financial statements required by the
SEC to be filed therewith, and the Company shall use its reasonable best efforts
to cause such Registration Statement to become effective and remain effective;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement effective, cause each Prospectus to be supplemented by
any required prospectus supplement and, as so supplemented, to be filed pursuant
to Rule 424 under the Securities Act;
(c) furnish to each Holder of Successor Warrant Shares and to each
underwriter of an underwritten offering of Successor Warrant Shares, if any,
without charge, as
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many copies of each Prospectus, including each preliminary prospectus, and any
amendment or supplement thereto and such other documents as such Holder or
underwriter may reasonably request, in order to facilitate the public sale or
other disposition of the Successor Warrant Shares;
(d) use its reasonable best efforts to register or qualify the
Successor Warrant Shares under all applicable state securities or blue sky laws
of such jurisdictions as any Holder shall reasonably request in writing by the
time the applicable Registration Statement is declared effective by the SEC, and
do any and all other acts and things which may be reasonably necessary or
advisable to enable such Holder to consummate the disposition in each such
jurisdiction of such Successor Warrant Shares owned by such Holder; provided,
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however, that the Company shall not be required (i) to qualify as a foreign
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corporation or as a dealer in securities in any jurisdiction where it would not
otherwise be required to qualify but for this Subsection 2.3(d), (ii) to file
any general consent to service of process or (iii) to subject itself to taxation
in any such jurisdiction if it is not so subject;
(e) notify each Holder of Successor Warrant Shares promptly and, if
requested by such Holder, confirm such advice in writing (i) when a Registration
Statement has become effective and when any post-effective amendments and
supplements thereto become effective, (ii) of any request by the SEC or any
state securities authority for amendments and supplements to a Registration
Statement and Prospectus or for additional information after the Registration
Statement has become effective, (iii) of the issuance by the SEC or any state
securities authority of any stop order suspending the effectiveness of a
Registration Statement or the initiation of any proceedings for that purpose,
(iv) if, between the effective date of a Registration Statement and the closing
of any sale of Successor Warrant Shares covered thereby, the representations and
warranties of the Company contained in any underwriting agreement, securities
sales agreement or other similar agreement, if any, relating to the offering
cease to be true and correct in all material respects or if the Company receives
any notification with respect to the suspension of the qualification of the
Successor Warrant Shares for sale in any jurisdiction or the initiation of any
proceeding for such purpose and (v) of the happening of any event during the
period a Registration Statement is effective which makes any statement made in
such Registration Statement or the related Prospectus untrue in any material
respect or which requires the making of any changes in such Registration
Statement or Prospectus in order to make the statements therein not misleading;
(f) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement at the earliest
possible moment;
(g) furnish to each Holder of Successor Warrant Shares, without
charge, at least one conformed copy of each Registration Statement and any post-
effective amendment thereto (with documents incorporated therein by reference or
exhibits thereto);
(h) cooperate with the selling Holders of Successor Warrant Shares to
facilitate the timely preparation and delivery of certificates representing
Successor Warrant Shares to be sold and not bearing any restrictive legends and
registered in such names as the selling Holders may reasonably request at least
two Business Days prior to the closing of any sale of Successor Warrant Shares;
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(i) upon the occurrence of any event contemplated by Subsection
2.3(e)(v) hereof, use reasonable efforts to prepare a supplement or post-
effective amendment to a Registration Statement or the related Prospectus or any
document incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of the Successor Warrant
Shares, such Prospectus will not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading; provided,
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however, that the Company shall not be required to amend or supplement a
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Registration Statement, any related Prospectus or any document incorporated
therein by reference in the event that, and for so long as, an event occurs and
is continuing as a result of which the Registration Statement, any related
Prospectus or any document incorporated therein by reference as then amended or
supplemented would, in the Company's good faith judgment, contain an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein not misleading in light of the circumstances
under which they are made. The Company agrees to notify each Holder to suspend
use of the Prospectus as promptly as practicable after the occurrence of such an
event, and each Holder hereby agrees to suspend use of the Prospectus until the
Company has amended or supplemented the Prospectus to correct such misstatement
or omission. At such time as such public disclosure is otherwise made or the
Company determines in good faith that such disclosure is not necessary, the
Company shall promptly notify each Holder of such determination, amend or
supplement the Prospectus if necessary to correct any untrue statement or
omission therein and furnish each Holder such numbers of copies of the
Prospectus as so amended or supplemented as each Holder may reasonably request;
(j) a reasonable time prior to the filing of any Registration
Statement, any Prospectus, any amendment to a Registration Statement or
amendment or supplement to a Prospectus or any document which is to be
incorporated by reference into a Registration Statement or a Prospectus after
initial filing of a Registration Statement, provide copies of such document to
the Holders and make available for discussion of such document the
representatives of the Company as shall be reasonably requested by the Holders
of Successor Warrant Shares;
(k) obtain a CUSIP number for the Successor Corporation Shares;
(l) (i) make reasonably available for inspection by a representative
of, and counsel for, any underwriter participating in any disposition pursuant
to a Registration Statement, all relevant financial and other records, pertinent
corporate documents and properties of the Company and (ii) cause the Company's
officers and employees to supply all relevant information reasonably requested
by such representative, counsel or any such underwriter in connection with any
such Registration Statement; and
(m) if requested by the Holders in connection with any Registration
Statement, shall use its reasonable best efforts to cause (i) counsel for the
Company to deliver an opinion relating to the Registration Statement and the
interests of the Company, in customary form, (ii) its President to execute and
deliver all customary documents and certificates requested by a representative
of the Holders or any underwriter, as applicable and (iii) its independent
public accountants to provide a comfort letter in customary form.
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The Company may, as a condition to such Holder's participation in any
Registration Statement, require such Holder of Successor Warrant Shares to (i)
furnish to the Company such information regarding the Holder and the proposed
distribution by such Holder of such Successor Warrant Shares as the Company may
from time to time reasonably request in writing and (ii) agree in writing to be
bound by this Agreement and the terms of any applicable underwriting agreement.
2.4. Indemnification and Contribution.
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(a) The Company agrees to indemnify and hold harmless each Holder of
Successor Warrant Shares offered pursuant to a Registration Statement, the
Affiliates, directors, officers, agents, representatives and employees of each
such Person or its affiliates, and each other Person, if any, who controls any
such Person or its Affiliates within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act (each, a "Participant") from
and against any and all losses, claims, damages and liabilities (including,
without limitation, the reasonable legal fees and other expenses actually
incurred in connection with any suit, action or proceeding or any claim
asserted) caused by, arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement pursuant to which the offering of such Successor Warrant Shares is
registered (or any amendment thereto) or related Prospectus (or any amendments
or supplements thereto) or any related preliminary prospectus, or caused by,
arising out of or based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; provided, however, that the Company shall not be required to
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indemnify a Participant if (i) such losses, claims, damages or liabilities are
caused by any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with information furnished to
the Company in writing by or on behalf of such Participant expressly for use
therein or (ii) if such Participant sold to the person asserting the claim the
Successor Warrant Shares which are the subject of such claim and such untrue
statement or omission or alleged untrue statement or omission was contained or
made in any preliminary prospectus and corrected in the Prospectus or any
amendment or supplement thereto and the Prospectus does not contain any other
untrue statement or omission or alleged untrue statement or omission of a
material fact that was the subject matter of the related proceeding and such
Participant failed to deliver or provide a copy of the Prospectus (as amended or
supplemented) to such Person with or prior to the confirmation of the sale of
such Successor Warrant Shares sold to such Person if required by applicable
laws, unless such failure to deliver or provide a copy of the Prospectus (as
amended or supplemented) was a result of noncompliance by the Company with
Section 2.3 of this Agreement.
(b) Each Participant agrees, severally and not jointly, to indemnify
and hold harmless the Company, its officers and each Person who controls the
Company within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act to the same extent as the foregoing indemnity from the Company
to each Participant, but only (i) with reference to information furnished to the
Company in writing by or on behalf of such Participant expressly for use in any
Registration Statement or Prospectus, any amendment or supplement thereto, or
any preliminary prospectus or (ii) with respect to any untrue statement or
representation made by such Participant in writing to the Company.
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(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any Person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such Person (the "Indemnified Person") shall promptly
notify the Person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, shall have the right to retain
counsel reasonably satisfactory to the Indemnified Person to represent the
Indemnified Person and any others the Indemnifying Person may reasonably
designate in such proceeding and shall pay the reasonable fees and expenses
actually incurred by such counsel related to such proceeding; provided, however,
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that the failure to so notify the Indemnifying Person shall not relieve it of
any obligation or liability which it may have hereunder or otherwise (unless and
only to the extent that such failure results in the loss or compromise of any
material rights or defenses by the Indemnifying Person). In any such proceeding,
any Indemnified Person shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such Indemnified
Person unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed in writing to the contrary, (ii) the Indemnifying Person shall
have failed within a reasonable period of time to retain counsel reasonably
satisfactory to the Indemnified Person or (iii) the named parties in any such
proceeding (including any impleaded parties) include both the Indemnifying
Person and the Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. It is understood that, unless there exists a conflict among
Indemnified Persons, the Indemnifying Person shall not, in connection with any
one such proceeding or separate but substantially similar related proceeding in
the same jurisdiction arising out of the same general allegations, be liable for
the fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such reasonable fees and
expenses shall be reimbursed promptly as they are incurred. Any such separate
firm for the Participants shall be designated in writing by Participants who
sold a majority in interest of Successor Warrant Shares sold by all such
Participants and any such separate firm for the Company and its directors, its
officers and such control Persons of the Company shall be designated in writing
by the Company. The Indemnifying Person shall not be liable for any settlement
of any proceeding effected without its prior written consent, but if settled
with such consent or if there be a final non-appealable judgment for the
plaintiff for which the Indemnified Person is entitled to indemnification
pursuant to this Agreement the Indemnifying Person agrees to indemnify and hold
harmless each Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. No Indemnifying Person shall, without the
prior written consent of the Indemnified Person, effect any settlement or
compromise of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party, and indemnity could have been
sought hereunder by such Indemnified Person, unless such settlement (A) includes
an unconditional written release of such Indemnified Person, in form and
substance reasonably satisfactory to such Indemnified Person, from all liability
on claims that are the subject matter of such proceeding and (B) does not
include any statement as to an admission of fault, culpability or failure to act
by or on behalf of any Indemnified Person.
(d) If the indemnification provided for in Subsections 2.4(a) and
2.4(b) hereof is for any reason unavailable to an Indemnified Person in respect
of any losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such Subsections, in lieu of indemnifying such
Indemnified Person thereunder and in order to provide for just and equitable
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contribution, shall contribute to the amount paid or payable by such Indemnified
Person as a result of such losses, claims, damages or liabilities in such
proportion as is appropriate to reflect (i) the relative benefits received by
the Indemnifying Person or Persons on the one hand and the Indemnified Person or
Persons on the other from the exchange of the Warrants or (ii) if the allocation
provided by the foregoing clause (i) is not permitted by applicable law, not
only such relative benefits but also the relative fault of the Indemnifying
Person or Persons on the one hand and the Indemnified Person or Persons on the
other in connection with the statements or omissions or alleged statements or
omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof). The relative fault of the parties shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company on the one hand
or such Participant or such other Indemnified Person, as the case may be, on the
other, the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission, and any other
equitable considerations appropriate in the circumstances.
(e) The parties agree that it would not be just and equitable if
contribution pursuant to this Subsection 2.4 were determined by pro rata
allocation (even if the Participants were treated as one entity for such
purposes) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
Subsection shall be deemed to include, subject to the limitations set forth
above, any reasonable legal or other expenses actually incurred by such
Indemnified Person in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Subsection 2.4, in no event
shall a Participant be required to contribute any amount in excess of the amount
by which proceeds received by such Participant from sales of Successor Warrant
Shares exceeds the amount of any damages that such Participant has otherwise
been required to pay or has paid by reason of such untrue or alleged untrue
statement or omission or alleged omission. 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) The indemnity and contribution agreements contained in this
Subsection 2.4 will be in addition to any liability which the Indemnifying
Persons may otherwise have to the Indemnified Persons referred to above.
3. TAG-ALONG RIGHTS
3.1. Permitted Holders. No Permitted Holder shall, directly or indirectly,
-----------------
sell, transfer (other than a pledge), or otherwise dispose of for value, in any
transaction or series of transactions (each, a "Transfer"), any Partnership
Interests or Successor Corporation Shares, as the case may be, or the beneficial
ownership thereof or any interest therein except in compliance with this Section
3.
11
3.2. Transfer by Permitted Holders.
-----------------------------
(a) In the event of any proposed Transfer contemplated in this Section
3 (a "Proposed Tag-Along Transfer"), prior to a Successor Corporation
Transaction, of any Partnership Interests or, following a Successor Corporation
Transaction, of any Successor Corporation Shares, by any of the Permitted
Holders or their respective Permitted Transferees, in a single transaction or a
series of related transactions involving (i) Partnership Interests aggregating
at least 20% of the total Partnership Interests of the Partnership or (ii)
Successor Corporation Shares aggregating at least 20% of the total Successor
Corporation Shares of the Successor Corporation to a Person or Persons,
including any other Permitted Holder (the "Proposed Purchaser"), other than
pursuant to an Exempt Transfer, prior to a Successor Corporation Transaction,
Warrant Holdings shall have, and following a Successor Corporation Transaction,
each Holder shall have, the irrevocable and exclusive right, but not the
obligation (the "Tag-Along Right"), to require the purchase, prior to a
Successor Corporation Transaction, from Warrant Holdings up to such percentage
of Partnership Interests or, following a Successor Corporation Transaction, from
each Holder up to such percentage of Successor Corporation Shares, in either
case as determined in accordance with Section 3.4.
(b) Any Partnership Interests purchased from Warrant Holdings or
Successor Corporation Shares purchased from the Holders pursuant to this Section
3.2 shall be paid for at the same price per security and upon the same terms and
conditions as apply to the proposed Transfer by such Permitted Holders and/or
Permitted Transferees.
(c) The Permitted Holders and/or Permitted Transferees proposing such
Transfer shall give or cause the Company to give, prior to a Successor
Corporation Transaction, to Warrant Holdings and, following a Successor
Corporation Transaction, to each of the Holders, written notice at least 25 days
prior to the date of any Proposed Tag-Along Transfer stating (i) the name and
address of the Proposed Purchaser and the percentage of Partnership Interests or
Successor Corporation Shares, as the case may be, proposed to be transferred,
(ii) the proposed amount of consideration and terms and conditions of payment
offered by such Proposed Purchaser (if the proposed consideration is not cash,
the notice shall describe the terms of the proposed consideration) and (iii)
that either the Proposed Purchaser has been informed of the Tag-Along Right and
has agreed to purchase Partnership Interests or Successor Corporation Shares, as
the case may be, in accordance with the terms hereof or that the Permitted
Holders and/or Permitted Transferees proposing such Transfer will make such
purchase.
(d) The Tag-Along Right may be exercised, prior to a Successor
Corporation Transaction, by Warrant Holdings, subject to the approval of the
holders of Warrants as contemplated in the Warrant Agreement, or following a
Successor Corporation Transaction, by any or all of the Holders (the
"Participating Holders"), by giving written notice to the Company (the "Tag-
Along Notice"), within 20 days of receipt of the notice specified in the
preceding paragraph, indicating its election to exercise the Tag-Along Right.
(e) The Tag-Along Notice shall state, prior to a Successor Corporation
Transaction, the amount of Partnership Interests that Warrant Holdings proposes,
and following a Successor Corporation Transaction, the amount of Successor
Corporation Shares that such Participating Holder proposes, to include in the
Transfer to the Proposed Purchaser. Failure to
12
give the Tag-Along Notice within the 20 day notice period shall be deemed an
election not to sell Partnership Interests or Successor Corporation Shares, as
the case may be, in connection with such proposed Transfer. The closing with
respect to any sale to a Proposed Purchaser pursuant to this Section 3.2 shall
be held at the time and place specified in the notice specified in paragraph (c)
above but in any event within 60 days of the date the Tag-Along Notice is given;
provided, however, that if through the exercise of reasonable efforts the
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Permitted Holders or Permitted Transferees so proposing to transfer Partnership
Interests or Successor Corporation Shares, as the case may be, are unable to
cause such transaction to close within 60 days, such period may be extended for
such reasonable period of time as may be necessary to close such transaction.
Consummation of the sale of Partnership Interests or Successor Corporation
Shares, as the case may be, by any Permitted Holders or Permitted Transferee to
a Proposed Purchaser shall be conditioned upon consummation of the sale by
Warrant Holdings or each Participating Holder, as the case may be, to such
Proposed Purchaser of the securities subject to the Tag-Along Right.
3.3. Purchase Obligation of Permitted Holders. In the event that the
----------------------------------------
Proposed Purchaser does not purchase such Partnership Interests from Warrant
Holdings or Successor Corporation Shares from the Participating Holders, as the
case may be, on the same terms and conditions as purchased from the Permitted
Holders and/or Permitted Transferees, then the Permitted Holders and/or
Permitted Transferees making such Transfer shall purchase such securities if the
Transfer occurs on such terms and conditions.
3.4. Determination of Transferred Interests. Pursuant to the exercise by
--------------------------------------
Warrant Holdings of a Tag-Along Right, the percentage of Partnership Interests
purchased from Warrant Holdings shall be determined by multiplying the
percentage of the total outstanding Partnership Interests proposed to be sold by
the Permitted Holders and/or Permitted Transferees to the Proposed Purchaser by
the percentage of the total outstanding Partnership Interests owned by Warrant
Holdings.
(a) Pursuant to the exercise by a Participating Holder of a Tag-Along
Right, the percentage of Successor Corporation Shares purchased from each
Participating Holder shall be determined by multiplying the percentage of the
total outstanding Successor Corporation Shares proposed to be sold by the
Permitted Holders and/or Permitted Transferees to the Proposed Purchaser by the
percentage of the total outstanding Successor Corporation Shares owned by such
Participating Holder. In the event that any Participating Holder shall elect to
sell less than the maximum percentage of Successor Corporation Shares it is
entitled to sell pursuant to the provisions of this Section 3, then each other
Participating Holder shall have the right to sell additional Successor
Corporation Shares, pro rata according to the respective number of Successor
Corporation Shares offered for sale by the Participating Holders.
3.5. Costs of Transfer. The Permitted Holders and/or Permitted Transferees
-----------------
who are parties to a sale to a Proposed Purchaser shall arrange for payment
directly by the Proposed Purchaser to Warrant Holdings or to each Participating
Holder, as the case may be, upon delivery of such documents as the Proposed
Purchaser may reasonably request.
(a) The reasonable costs and expenses incurred by the Permitted
Holders and/or Permitted Transferees and Warrant Holdings or Participating
Holders, as the case may be,
13
in connection with a sale of Partnership Interests or Successor Corporation
Shares subject to this Section 3 shall be allocated pro rata based upon the
proceeds from the securities sold by each Permitted Holder and/or Permitted
Transferee and Warrant Holdings or each Participating Holder, as the case may
be, to a Proposed Purchaser; provided, however, that the costs and expenses
-------- -------
shall not include the fees and expenses of more than one law firm, which firm
shall be selected by the Permitted Holders and/or Permitted Transferees, unless
representation of the Permitted Holders and/or Permitted Transferees and Warrant
Holdings or the Participating Holders, as the case may be, by the same counsel,
due to actual or potential differing interests between them, shall create a
conflict of interest, in which case the costs and expenses shall include the
reasonable fees and expenses of one additional law firm designated by Warrant
Holdings or by Participating Holders proposing to sell a majority of the
Successor Corporation Shares proposed to be sold by all Participating Holders,
as the case may be.
3.6. Termination. Tag-Along Rights and all of the provisions of this
-----------
Section 3.6 shall terminate upon the effectiveness of any registration statement
filed with the SEC with respect to Successor Corporation Shares (or any security
exchanged therefor) in a firmly underwritten public offering, but shall be
reinstated in the event that such offering is not completed.
4. DRAG-ALONG RIGHTS.
4.1. Transfer by Permitted Holders.
-----------------------------
(a) In the event of any proposed Transfer contemplated in this Section
4 (a "Proposed Drag-Along Transfer"), prior to a Successor Corporation
Transaction, of any Partnership Interests or, following a Successor Corporation
Transaction, of any Successor Corporation Shares, by any of the Permitted
Holders or their respective Permitted Transferees in any single transaction or a
series of related transactions involving Partnership Interests aggregating at
least 51% of the total Partnership Interests or Successor Corporation Shares
aggregating at least 51% of the total Successor Corporation Shares then owned by
the Permitted Holders and/or Permitted Transferees, to a Person or Persons other
than any Permitted Holder or Permitted Transferee (the "Proposed Majority-
Interest Purchaser"), such selling Permitted Holders shall have the exclusive
and irrevocable right, but not the obligation (the "Drag-Along Right"), prior to
a Successor Corporation Transaction, to require Warrant Holdings to Transfer to
the Proposed Majority-Interest Purchaser such percentage of Partnership
Interests or, following a Successor Corporation Transaction, to require each
Holder to Transfer to the Proposed Majority-Interest Purchaser such percentage
of Successor Corporation Shares, in either case, as determined in accordance
with Subsection 4.3.
(b) Any Partnership Interests purchased from Warrant Holdings or
Successor Corporation Shares purchased from Holders pursuant to this Section 4.1
shall be paid for at the same price per security, and upon the same terms and
conditions of such proposed Transfer by such Permitted Holders and/or Permitted
Transferees.
(c) To exercise a Drag-Along Right, the Permitted Holders and/or
Permitted Transferees shall give or cause the Company to give, prior to a
Successor Corporation Transaction, to Warrant Holdings, and following a
Successor Corporation Transaction, to each of the Holders, written notice of any
Proposed Drag-Along Transfer at least 15 days prior to the
14
date thereof (the "Drag-Along Notice"). Such notice shall set forth (i) the name
and address of the Proposed Majority-Interest Purchaser and the percentage of
Partnership Interests or Successor Corporation Shares, as the case may be,
proposed to be transferred, (ii) the proposed amount of consideration and terms
and conditions of payment offered by such Proposed Majority-Interest Purchaser
(if the proposed consideration is not cash, the notice shall describe the terms
of the proposed consideration) and (iii) that the Permitted Holders and/or
Permitted Transferees have elected to exercise their Drag-Along Right and that
either the Proposed Majority-Interest Purchaser has been informed of the Drag-
Along Right and has agreed to purchase Partnership Interests or Successor
Corporation Shares, as the case may be, in accordance with the terms hereof or
that the Permitted Holders and/or Permitted Transferees proposing such Transfer
will make such purchase. The closing with respect to any Transfer to a Proposed
Majority-Interest Purchaser pursuant to this Section 4 shall be held at the time
and place specified in the Drag-Along Notice but in any event within 60 days of
the date the Drag-Along Notice is given; provided, however, that if through the
-------- -------
exercise of reasonable efforts the Permitted Holders and/or Permitted
Transferees so proposing to transfer Partnership Interests or Successor
Corporation Shares, as the case may be, are unable to cause such transaction to
close within 60 days, such period may be extended for such reasonable period of
time as may be necessary to close such transaction. If a Drag-Along Notice has
been delivered, consummation of the sale of Partnership Interests or Successor
Corporation Shares, as the case may be, by any Permitted Holders and/or
Permitted Transferees to a Proposed Majority-Interest Purchaser shall be
conditioned upon consummation of the sale by Warrant Holdings or by each Holder,
as the case may be, to such Proposed Majority-Interest Purchaser of the
securities subject to the Drag-Along Right.
4.2. Purchase Obligation of the Permitted Holders. If a Drag-Along Notice
--------------------------------------------
has been delivered, in the event that the Proposed Majority-Interest Purchaser
does not purchase Partnership Interests from Warrant Holdings or Successor
Corporation Shares from the Holders, as the case may be, on the same terms and
conditions as purchased from the Permitted Holders and/or Permitted Transferees,
then the Permitted Holders and/or Permitted Transferees making such Transfer
shall purchase such securities if the Transfer occurs on such terms and
conditions.
4.3. Determination of Transferred Interests. (a) The percentage of
--------------------------------------
Partnership Interests of Warrant Holdings which shall be subject to a Drag-Along
Right shall be equal to the percentage of the total Partnership Interests that
are to be sold by the Permitted Holders and/or Permitted Transferees to the
Proposed Majority-Interest Purchaser.
(b) The percentage of Successor Corporation Shares of each Holder
which shall be subject to a Drag-Along Right shall be equal to the percentage of
the total Successor Corporation Shares that are to be sold by the Permitted
Holders and/or Permitted Transferees to the Proposed Majority-Interest
Purchaser.
4.4. Costs of Transfer. (a) The Permitted Holders and/or Permitted
-----------------
Transferees who are parties to a sale to a Proposed Majority-Interest Purchaser
shall arrange for payment directly by the Proposed Majority-Interest Purchaser
to Warrant Holdings or each Holder, as the case may be, upon delivery of such
documents as the Proposed Majority-Interest Purchaser may reasonably request.
15
(b) The reasonable costs and expenses incurred by the Permitted
Holders and/or Permitted Transferees and Warrant Holdings or each Holder, as the
case may be, in connection with a sale of Partnership Interests or Successor
Corporation Shares subject to this Section 4 shall be allocated pro rata based
upon the proceeds from the securities sold to the Proposed Majority-Interest
Purchaser by each Permitted Holder and/or Permitted Transferee, and Warrant
Holdings or each Holder, as the case may be; provided, however, that the costs
-------- -------
and expenses shall not include the fees and expenses of more than one law firm,
which firm shall be selected by the Permitted Holders and/or Permitted
Transferees, unless representation of the Permitted Holders and/or Permitted
Transferees, and Warrant Holdings or the Holders, as the case may be, by the
same counsel, due to actual or potential differing interests between them shall
create a conflict of interest, in which case the costs and expenses shall
include the reasonable fees and expenses of one additional law firm designated
by Warrant Holdings or by the Holders selling a majority of the Successor
Corporation Shares to be sold by all Holders, as the case may be.
4.5. Termination. Drag-Along Rights and all of the provisions of this
-----------
Section 4.5 shall terminate upon the effectiveness of any registration statement
filed with the SEC with respect to Successor Corporation Shares (or any security
exchanged therefor) in a firmly underwritten public offering, but shall be
reinstated in the event that such offering is not completed.
5. MERGER, CONSOLIDATION, ETC.
5.1. Successors. Nothing contained in this Agreement shall prevent the
----------
consolidation or merger of the Company with or into any other entity, or shall
prevent any lease, sale or conveyance of the property of the Company as an
entirety or substantially as an entirety to any other entity authorized to
acquire or lease and operate the same; provided, however, the Company and each
-------- -------
of the Permitted Holders hereby covenants and agrees, that (a) in the case of a
Successor Corporation Transaction any such consolidation or merger shall be upon
the condition that the performance and observance of all of the agreements,
covenants and conditions of this Agreement to be performed or observed by the
Company shall be expressly assumed by the entity formed by such consolidation or
into which the Company shall have been merged; (b) in the case of a Successor
Corporation Transaction, Warrant Holdings is merged into the Successor
Corporation; and (c) in the case of a Successor Corporation Transaction Holders
shall receive, and otherwise Warrant Holdings shall receive, the number of
shares of capital stock or other securities or property which holders of a like
amount of common limited partnership interests of the Company would be entitled
to receive upon completion of such consolidation, merger, lease, sale or
conveyance.
5.2. Merger of Warrant Holdings. Warrant Holdings and the Holders agree
--------------------------
that, in the case of a Successor Corporation Transaction, Warrant Holdings and
the Holders shall take all action necessary to cause Warrant Holdings to be
merged into the Successor Corporation.
5.3. Lock-Up. In the event of an initial public offering by the Successor
-------
Corporation of Successor Corporation Shares, none of the Successor Corporation,
any Permitted Holder or any Holder shall, until 180 days following such initial
public offering, offer, sell or contract to sell, or otherwise dispose of,
directly or indirectly, or announce the offering of, any securities issued by
the Successor Corporation, except as may be agreed to by the underwriters. Each
of
16
the Successor Corporation, the Permitted Holders and any of their Permitted
Transferees, and the Holders shall execute such form of lock-up agreement
covering such 180-day period as may be requested by the underwriters. The
Successor Corporation shall have the right to withhold issuance of certificates
representing Successor Corporation shares to any Person who refuses to execute
such an agreement prior to such 180-day period.
5.4. Amendment of Certificate of Incorporation. The Certificate of
-----------------------------------------
Incorporation or the Bylaws of Warrant Holdings shall not be amended without the
consent of the Partnership and Holders of a majority of the Warrants.
5.5. Amendment of Partnership Agreement. No provision of the Partnership
----------------------------------
Agreement shall be amended in a manner which would alter or change the powers,
preferences or special rights of the Partnership Interests of Warrant Holdings
so as adversely to affect the rights of Warrant Holdings under the Partnership
Agreement without the consent of Holders of a majority of the Warrants.
5.6. No Adverse Action. Warrant Holdings shall not take any action intended
-----------------
or likely adversely to effect the Holders of Warrants.
5.7. No Dividends or Dissolution. As long as Holdings is organized as a
---------------------------
Partnership, (i) Warrant Holdings shall not, and shall not attempt to,
distribute its Partnership Interests to its shareholders by dividend,
dissolution or otherwise and (ii) Warrant Holdings shall maintain its corporate
existence and shall not merge with or consolidate with any other entity except a
Successor Corporation.
5.8. Incorporation of Certain Provisions from the Warrant Agreement.
--------------------------------------------------------------
Section 7 (and all exhibits referred to therein) of the Warrant Agreement is
incorporated herein by this reference and all references therein to "Warrant
Certificates" shall instead refer to Common Stock certificates, all references
therein to "Warrants" shall instead refer to Holdings Warrant Shares and all
references to "Warrant Agent" shall instead refer to transfer agent.
6. MISCELLANEOUS.
6.1. No Inconsistent Agreements. Neither the Company nor any Permitted
--------------------------
Holder has entered or shall enter into any agreement with respect to any
securities of the Company that is inconsistent with the rights granted to
Warrant Holdings or Holders in this Agreement or otherwise conflicts with the
provisions hereof. The Company has not entered and shall not enter into any
agreement with respect to any securities which will grant to any Person piggy-
back registration rights with a higher priority than the rights granted under
this Agreement.
6.2. Adjustments Affecting Successor Warrant Shares. The Company shall not,
----------------------------------------------
directly or indirectly, take any action with respect to the Successor Warrant
Shares as a class that would adversely affect the ability of the Holders of
Successor Warrant Shares to include such Successor Warrant Shares in a
registration undertaken pursuant to this Agreement.
6.3. Amendments and Waivers. The provisions of this Agreement may not be
----------------------
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, otherwise than with the prior written
consent of a majority of the
17
Holders, the Partnership and Warrant Holdings. Notwithstanding the foregoing, a
waiver or consent to depart from the provisions hereof with respect to a matter
that relates exclusively to the rights of Holders of Successor Warrant Shares
whose securities are being sold pursuant to a Registration Statement and that
does not directly or indirectly affect, impair, limit or compromise the rights
of other Holders of Successor Warrant Shares may be given by Holders of at least
a majority of the Successor Warrant Shares being sold by such Holders pursuant
to such Registration Statement; provided, however, that the provisions of this
-------- -------
sentence may not be amended, modified or supplemented except in accordance with
the provisions of the immediately preceding sentence.
6.4. Notices. All notices and other communications provided for or
-------
permitted hereunder shall be made in writing by hand-delivery, registered first-
class mail, next-day air courier or facsimile: if to a Holder, at the most
current address of such Holder set forth on the records of the Warrant Agent
under the Warrant Agreement or, after the issuance of Holdings Warrant Shares or
Successor Warrant Shares, at the most current address of such Holder set forth
on the records of the transfer agent responsible for recording transfers of such
shares; if to the Initial Purchasers, to First Union Capital Markets Corp., 000
Xxxxx Xxxxxxx Xxxxxx, XX-0, Xxxxxxxxx, XX 00000-0000, Attention: Xxxxx Xxxxx; if
to the Partnership, to 0000 Xxxxxx Xxxxx, Xx Xxxx, XX 00000, Attention: General
Counsel; if to Warrant Holdings, to 0000 Xxxxxx Xxxxx, Xx Xxxx, XX 00000,
Attention: General Counsel; if to the Permitted Holders, to 0000 Xxxxxx Xxxxx,
Xx Xxxx, XX 00000, Attention: General Counsel; if to Sixty Eighty, LLC, to 0000
Xxxxxx Xxxxx, Xx Xxxx, XX 00000, Attention: General Counsel. All such notices
and communications shall be deemed to have been duly given: when delivered by
hand, if personally delivered; five Business Days after being deposited in the
mail, postage prepaid, if mailed; one Business Day after being timely delivered
to a next-day air courier; and when receipt is acknowledged by the addressee, if
sent by facsimile.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Warrant Agent at the
address and in the manner specified in the Warrant Agreement.
6.5. Successors and Assigns. This Agreement shall inure to the benefit of
----------------------
and be binding upon the successors and assigns (including the Holders and any
Successor Corporation) of each of the parties hereto.
6.6. Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
6.7. Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning thereof.
6.8. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
-------------
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAW. EACH
18
OF THE PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE
STATE OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT.
6.9. Severability. If any term, provision, covenant or restriction of this
------------
Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated, and the parties hereto shall use
their best efforts to find and employ an alternative means to achieve the same
or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
19
IN WITNESS, the parties have executed this Registration Rights and
Partners' Agreement as of the date first written above.
PETRO STOPPING CENTERS HOLDINGS, L.P.
By___________________________________
Name:
Title:
PETRO, INC.
By___________________________________
Name:
Title:
_____________________________________
Xxxxx X. Xxxxxxxx, Xx.
_____________________________________
Xxxxx X. Xxxxxxxx, Xx.
JAJCO II, INC.
By_____________________________________
Name:
Title:
MOBIL LONG HAUL, INC.
By_____________________________________
Name:
Title:
VOLVO PETRO HOLDINGS, L.L.C.
By_____________________________________
Name:
Title:
PETRO WARRANT HOLDINGS CORPORATION
By_____________________________________
Name:
Title:
SIXTY EIGHTY, LLC
By_____________________________________
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above written:
FIRST UNION CAPITAL MARKETS CORP.
CIBC WORLD MARKETS CORP.
BY FIRST UNION CAPITAL MARKETS CORP.
By_____________________________________
Name:
Title:
2
