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Exhibit 10.3
REGISTRATION RIGHTS AGREEMENT
among
XXXX XXXXX XXXXXX CORPORATION
a Delaware corporation
GS CAPITAL PARTNERS, L.P.
a Delaware limited partnership
GS CAPITAL PARTNERS PRL HOLDING I, L.P.
a Delaware limited partnership
GS CAPITAL PARTNERS PRL HOLDING II, L.P.
a Delaware limited partnership
STONE STREET FUND 1994, L.P.
a Delaware limited partnership
STONE STREET 1994 SUBSIDIARY CORP.
a Delaware corporation
BRIDGE STREET FUND 1994, L.P.
a Delaware limited partnership
XXXXX XXXXXX
XX Family, L.P.,
a Delaware limited partnership
and
RL Holding, L.P.
a Delaware limited partnership
Dated as of June __, 1997
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TABLE OF CONTENTS
Page
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1. Certain Definitions...................................................................2
1.1. "Amended RL Note"....................................................2
1.2. "Class A Common Stock"...............................................2
1.3. "Class B Common Stock"...............................................2
1.4. "Class B Permitted Transferee".......................................2
1.5. "Class C Common Stock"...............................................3
1.6. "Commission".........................................................4
1.7. "Common Stock".......................................................4
1.8. "Fair Market Value"..................................................4
1.9. "Formation Agreement"................................................4
1.10. "Holder" or "Holders"...............................................5
1.11. "IPO"...............................................................5
1.12. "Person"............................................................5
1.13. "Registrable Securities"............................................5
1.14. "Securities Act"....................................................5
1.15. "Stockholders Agreement"............................................5
2. Registration Rights...................................................................6
2.1. Demand Registrations.................................................6
2.2. Piggyback Registrations..............................................11
2.3. Allocation of Securities Included in Registration Statement..........12
2.4. Registration Procedures..............................................14
2.5. Registration Expenses................................................22
2.6. Certain Limitations on Registration Rights...........................23
2.7. Limitations on Sale or Distribution of Other Securities..............23
2.8. No Required Sale.....................................................24
2.9. Indemnification......................................................24
3. Underwritten Offerings................................................................30
3.1. Requested Underwritten Offerings.....................................30
3.2. Piggyback Underwritten Offerings.....................................30
4. General...............................................................................31
4.1. Adjustments Affecting Registrable Securities.........................31
4.2. Rule 144.............................................................31
4.3. Preparation; Reasonable Investigation................................31
4.4. Nominees for Beneficial Owners.......................................32
4.5. Amendments and Waivers...............................................32
4.6. Notices..............................................................33
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4.7. Miscellaneous........................................................33
4.8. No Inconsistent Agreements...........................................35
Schedules
I - Addresses for Notices
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REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of June , 1997 (this
"Agreement") among Xxxx Xxxxx Xxxxxx Corporation, a Delaware corporation (the
"Company"), GS Capital Partners, L.P., a Delaware limited partnership ("GSCP"),
GS Capital Partners PRL Holding I, L.P., a Delaware limited partnership and
wholly owned subsidiary of GSCP ("Holding I"), GS Capital Partners PRL Holding
II, L.P., a Delaware limited partnership and wholly owned subsidiary of XXXX
("Xxxxxxx XX"), Xxxxx Xxxxxx Xxxx 0000, L.P., a Delaware limited partnership
("Stone Street"), Stone Street 1994 Subsidiary Corp., a Delaware corporation and
wholly owned subsidiary of Stone Street ("Stone Street Sub"), Bridge Street Fund
1994, L.P., a Delaware limited partnership ("Xxxxxx Xxxxxx"), Xxxxx Xxxxxx
("Xxxxxx"), RL Holding L.P., a Delaware limited partnership ("RL Holding"), and
RL Family, L.P., a Delaware limited partnership ("RL Family"). GSCP, Holding I,
Holding II, Stone Street, Stone Street Sub, Bridge Street and their permitted
assignees are sometimes collectively referred to herein as the "GS Parties," and
Xxxxxx, XX Holding, RL Family and their permitted assignees are sometimes
collectively referred to herein as the "Polo Parties."
WHEREAS, on the date hereof, the GS Parties and the Polo Parties have
executed and delivered the Stockholders Agreement which establishes and set
forth their agreement with respect to certain rights and obligations associated
with ownership of shares of common stock of the Company;
WHEREAS, Section 9.8 of the Stockholders Agreement requires the parties
to amend the registration rights agreement dated October 31, 1994 among Xxxx
Xxxxx Xxxxxx Enterprises, L.P., Xxxx Xxxxx Lauren, L.P., Xxxx Xxxxx Xxxxxx
Corporation, a New York corporation, the GS Parties, Lauren and Xxxxx Xxxxx
Xxxxxxxxx (the "Original Registration Rights Agreement");
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WHEREAS, the parties hereto desire to enter into an agreement which
establishes and sets forth their agreement with respect to certain registration
rights relating to shares of common stock of the Company;
Accordingly, the parties hereto agree as follows:
1. Certain Definitions.
As used in this Agreement, the following terms shall have the meanings
ascribed to them below:
1.1. "Amended RL Note": as defined in the Formation Agreement.
1.2. "Class A Common Stock": Class A Common Stock of the Company, par
value $.01 per share, and any and all securities of any kind whatsoever of the
Company which may be issued after the date hereof in respect of, or in exchange
for, shares of Class A Common Stock of the Company pursuant to a merger,
consolidation, stock split, stock dividend or recapitalization of the Company or
otherwise.
1.3. "Class B Common Stock": Class B Common Stock of the Company, par
value $.01 per share, and any and all securities of any kind whatsoever of the
Company which may be issued after the date hereof in respect of, or in exchange
for, shares of Class B Common Stock of the Company pursuant to a merger,
consolidation, stock split, stock dividend or recapitalization of the Company or
otherwise.
1.4. "Class B Permitted Transferee": only the following persons: (i)
Xxxxx Xxxxxx and his estate, guardian, conservator or committee; (ii) the spouse
of Xxxxx Lauren and her estate, guardian, conservator or committee; (iii) each
descendant of Xxxxx Xxxxxx (a "Xxxxxx Descendant") and their respective estates,
guardians, conservators or committees; (iv) each Family Controlled Entity (as
defined below); and (v) the trustees, in their respective capacities as such, of
each Lauren Family Trust (as defined below). The term "Family Controlled Entity"
means (i) any not-for-profit corporation if at least a majority of its board of
directors is composed of Xxxxx Xxxxxx, the spouse of Xxxxx Lauren and/or Lauren
Descendants; (ii) any other corporation if at least a majority of the value of
its outstanding
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equity is owned by Class B Permitted Transferees; (iii) any partnership if at
least a majority of the economic interest of its partnership interests are owned
by Class B Permitted Transferees; and (vi) any limited liability or similar
company if at least a majority of the economic interest of the Company is owned
by Class B Permitted Transferees. The term "Lauren Family Trust" includes trusts
the primary beneficiaries of which are Xx. Xxxxxx, the spouse of Xxxxx Lauren,
Lauren Descendants, Xx. Xxxxxx'x siblings, spouses of Lauren Descendants and
their respective estates, guardians, conservators or committees and/or
charitable organizations (collectively, "Lauren Beneficiaries"), provided that
if the trust is a wholly charitable trust, at least a majority of the trustees
of such trust consist of Xx. Xxxxxx, the spouse of Xx. Xxxxxx and/or Class B
Permitted Transferees. For purposes of this Agreement, the primary beneficiaries
of a trust will be deemed to be Lauren Beneficiaries if, under the maximum
exercise of discretion by the trustee in favor of persons who are not Lauren
Beneficiaries, the value of the interests of such persons in such trust,
computed actuarially, is 50% or less. The factors and methods prescribed in
section 7520 of the Internal Revenue Code of 1986, as amended, for use in
ascertaining the value of certain interests shall be used in determining a
beneficiary's actuarial interest in a trust for purposes of applying this
provision. For purposes of this Agreement, the actuarial value of the interest
in a trust of any person in whose favor a testamentary power of appointment may
be exercised shall be deemed to be zero. For purposes of this Agreement, in the
case of a trust created by a Lauren Descendant, the actuarial value of the
interest in such trust of any person who may receive trust property only at the
termination of the trust and then only in the event that, at the termination of
the trust, there are no living issue of such Lauren Descendant shall be deemed
to be zero.
1.5. "Class C Common Stock": Class C Common Stock of the Company, par
value $.01 per share, and any and all securities of any kind whatsoever of the
Company which may be issued after the date hereof in respect of, or in exchange
for, shares of Class C Common Stock of the Company pursuant to a merger,
consolidation, stock split, stock dividend or recapitalization of the Company or
otherwise.
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1.6. "Commission": the Securities and Exchange Commission.
1.7. "Common Stock": common stock of the Company, par value $.01 per
share (including, without limitation, shares of Class A Common Stock, Class B
Common Stock and Class C Common Stock), and any and all securities of any kind
whatsoever of the Company which may be issued after the date hereof in respect
of, or in exchange for, shares of common stock of the Company pursuant to a
merger, consolidation, stock split, stock dividend or recapitalization of the
Company or otherwise.
1.8. "Fair Market Value": after the IPO, (a) if the Class A Common
Stock is listed on a national securities exchange, the average of the last
reported sales price of a share of Class A Common Stock for the thirty (30)
consecutive business days immediately preceding the date on which any such
determination is to be made, or (b) the average of the last reported bid price
of a share of Class A Common Stock for the thirty (30) consecutive business days
immediately preceding the date on which such determination is to be made, as
reported by the NASDAQ National Market or, if the Class A Common Stock is not
listed on the NASDAQ National Market, as determined in good faith by the
Company's board of directors.
1.9. "Formation Agreement": the agreement dated as of August 22, 1994,
relating to the formation of Xxxx Xxxxx Xxxxxx Enterprises, L.P. and Xxxx Xxxxx
Lauren, L.P. by and among the GS Parties, Lauren and Xx. Xxxxx Xxxxx Xxxxxxxxx.
1.10. "Holder" or "Holders": any party who is a signatory to this
Agreement and any party who shall hereafter acquire and hold Registrable
Securities and to whom rights have been assigned under this Agreement pursuant
to Section 4.7(a) hereof.
1.11. "IPO": the initial underwritten offering pursuant to which
shares of Class A Common Stock becomes registered under Section 12 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
1.12. "Person": any natural person, corporation, partnership, firm,
association, trust, government, governmental agency or other entity, whether
acting in an individual, fiduciary or other capacity.
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1.13. "Registrable Securities": any shares of Class A Common Stock
held by any Holder and any shares of Class A Common Stock issued or issuable in
respect of any shares of Common Stock or other securities held by any Holder. As
to any particular Registrable Securities, such securities shall cease to be
Registrable Securities when (i) a registration statement with respect to the
sale of such securities shall have been declared effective under the Securities
Act and such securities shall have been disposed of in accordance with such
registration statement, or (ii) such securities shall have been sold (other than
in a privately negotiated sale) pursuant to Rule 144 (or any successor
provision) under the Securities Act and in compliance with the requirements of
paragraphs (c), (e), (f) and (g) of Rule 144 (notwithstanding the provisions of
paragraph (k) of such Rule).
1.14. "Securities Act": the Securities Act of 1933, as amended.
1.15. "Stockholders Agreement": the stockholders agreement dated the
date hereof among the Company, the GS Parties and the Polo Parties.
2. Registration Rights.
2.1. Demand Registrations.
(a) (i) (A) At any time on or after the date hereof the Polo
Parties, acting together through Lauren or his designee, shall have the right,
and (B) at any time on or after December 31, 1998 the GS Parties, acting
together through GSCP or its designee, shall have the right, to require the
Company to file a registration statement under the Securities Act with respect
to an IPO (the "IPO Demand"), by delivering a written request therefor to the
Company specifying the number of Registrable Securities to be included in such
registration by the GS Parties (if they made such request) or the Polo Parties
(if Lauren made such request). Within three days of the receipt of a written
request for an IPO Demand, the Company shall notify the GS Parties, on the one
hand, or Lauren, on the other (whichever did not make the IPO Demand), of such
request. In connection with an IPO Demand, the parties hereto shall consult on a
good faith basis to determine whether the Company should issue and sell shares
of Class A Common Stock in the IPO.
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(ii) Subject to Section 2.1(b) below, at any time and from
time to time after the IPO, the GS Parties, acting together through GSCP or its
designee, on the one hand, and the Polo Parties, acting together through Lauren
or his designee, on the other hand, shall have the right to require the Company
to file a registration statement under the Securities Act covering all or part
of their respective Registrable Securities, by delivering a written request
therefor to the Company specifying the number of Registrable Securities to be
included in such registration by the GS Parties (if they made such request) or
by the Polo Parties (if Lauren made such request) and the intended method of
distribution thereof. All requests pursuant to this Section 2.1(a)(ii) are
referred to herein as "Demand Registration Requests," and the registrations
requested are referred to herein as "Demand Registrations." As promptly as
practicable, but no later than ten days after receipt of a Demand Registration
Request, the Company shall give written notice of such Demand Registration
Request to all Holders of record of Registrable Securities.
(iii) The Company, subject to Sections 2.3 and 2.6, shall
include in the IPO Demand or a Demand Registration (x) the Registrable
Securities of the Holder(s) which requested such registration and (y) the
Registrable Securities of any Holder which shall have made a written request to
the Company for registration thereof (which request shall specify the maximum
number of Registrable Securities intended to be disposed of by such Holder)
within 30 days after the receipt of written notice pursuant to clause (i) or
(ii) (or, in the case of a Demand Registration only, 15 days if, at the request
of the Holder(s) which requested such registration, the Company states in such
written notice or gives telephonic notice to all Holders, with written
confirmation to follow promptly thereafter, that such registration will be on
Form S-3).
(iv) The Company shall, as expeditiously as possible following
the IPO Demand or a Demand Registration Request, use its best efforts to (x)
effect such registration under the Securities Act (including, without
limitation, by means of a shelf registration pursuant to Rule 415 under the
Securities Act if so requested and if the Company is
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then eligible to use such a registration) of the Registrable Securities which
the Company has been so requested to register, for distribution in accordance
with such intended method of distribution, and (y) if requested by the Holder(s)
which requested such registration, obtain acceleration of the effective date of
the registration statement relating to such registration.
(b) The demand registration rights granted to the Holders in
Section 2.1(a) are subject to the following limitations: (i) each IPO Demand and
Demand Registration must include Registrable Securities having an aggregate
market value of at least $20,000,000, which market value shall be determined by
multiplying the number of Registrable Securities to be included in such IPO
Demand or Demand Registration by the fair market value determined, in the case
of an IPO Demand, by the Board of Directors of the Company based on the
anticipated mid-point of the filing range for the registration prepared with
respect to the IPO or, in the case of a Demand Registration, by the Fair Market
Value determined as of the date the Demand Registration Request in respect of
such Demand Registration is made (provided that the limitations set forth in
this clause (i) shall not be in effect at any time the Holders' Registrable
Securities may not be sold pursuant to Rule 144 under the Securities Act because
of the Company's failure to comply with the information requirements
thereunder), unless at such time, the Company's outside counsel (which shall be
reasonably acceptable to GSCP if such Holder is a GS Party or Lauren if such
Holder is a Polo Party) delivers a written opinion of counsel to such Holder
proposing to register Registrable Securities to the effect that such Holder's
Registrable Securities may be publicly offered and sold without registration
under the Securities Act), (ii) each of Lauren and GSCP may only make a demand
for registration pursuant to Section 2.1(a)(ii) once within any nine month
period, (iii) the Company shall not be required to cause a registration pursuant
to Section 2.1(a)(ii) to be declared effective within a period of 180 days after
the effective date of any other registration statement of the Company effected
in connection with an underwritten offering by the Company; (iv) if the Board of
Directors of the Company, in its good faith judgment, determines that any
registration of Registrable Securities should not be made or continued because
it would materially interfere
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with any material financing, acquisition, corporate reorganization or merger or
other transaction involving the Company or any of its subsidiaries (a "Valid
Business Reason"), (x) the Company may postpone filing a registration statement
relating to an IPO Demand or a Demand Registration Request until such Valid
Business Reason no longer exists, but in no event for more than three months,
and, (y) in case a registration statement has been filed relating to an IPO
Demand or a Demand Registration Request, if the Valid Business Reason has not
resulted from actions taken by the Company, the Company may cause such
registration statement to be withdrawn and its effectiveness terminated or may
postpone amending or supplementing such registration statement; and the Company
shall give written notice of its determination to postpone or withdraw a
registration statement and of the fact that the Valid Business Reason for such
postponement or withdrawal no longer exists, in each case, promptly after the
occurrence thereof; (v) the offering of Registrable Securities requested to be
registered pursuant to this Section 2.1 shall be pursuant to a firm commitment
underwritten offering unless the Company has previously sold Registrable
Securities pursuant to a registration statement under the Securities Act; and
(vi) from and after such time as the GS Parties beneficially own, in the
aggregate, less than 10% of the Company's outstanding Common Stock, the Company
shall only be required to effect one Demand Registration at the request of the
GS Parties provided that any Demand Registration requested by the GS Parties at
such time as the GS parties beneficially own, in the aggregate, less than 10% of
the Company's outstanding Common Stock shall not count as the one Demand
Registration permitted by this subclause (vi) if, immediately after giving
effect to such registration, and due to the allocation provisions of Section
2.3(a), the GS Parties beneficially own, in the aggregate, 5% or more of the
Company's outstanding Common Stock. If the Company shall give any notice of
postponement or withdrawal of any registration statement, the Company shall not,
during the period of postponement or withdrawal, register any Common Stock,
other than pursuant to a registration statement on Form S-4 or S-8 (or an
equivalent registration form then in effect). Each Holder of Registrable
Securities agrees that, upon receipt of any notice from the Company that the
Company has
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determined to withdraw any registration statement pursuant to clause (iv) above,
such Holder will discontinue its disposition of Registrable Securities pursuant
to such registration statement and, if so directed by the Company, will deliver
to the Company (at the Company's expense) all copies, other than permanent file
copies, then in such Holder's possession of the prospectus covering such
Registrable Securities that was in effect at the time of receipt of such notice.
If the Company shall have withdrawn or prematurely terminated a registration
statement filed under Section 2.1(a) (whether pursuant to clause (iv) above or
as a result of any stop order, injunction or other order or requirement of the
Commission or any other governmental agency or court), the Company shall not be
considered to have effected an effective registration for the purposes of this
Section 2.1(b) until the Company shall have filed a new registration statement
covering the Registrable Securities covered by the withdrawn registration
statement and such registration statement shall have been declared effective and
shall not have been withdrawn. If the Company shall give any notice of
withdrawal or postponement of a registration statement, the Company shall, at
such time as the Valid Business Reason that caused such withdrawal or
postponement no longer exists (but in no event later than three months after the
date of the postponement), use its best efforts to effect the registration under
the Securities Act of the Registrable Securities covered by the withdrawn or
postponed registration statement in accordance with this Section 2.1 (unless the
Holder(s) delivering the Demand Registration Request shall have withdrawn such
request, in which case the Company shall not be considered to have effected an
effective registration for the purposes of this Section 2.1(b)), and such
registration shall not be withdrawn or postponed pursuant to clause (iv) above.
(c) The Company, subject to Sections 2.3 and 2.6, may elect to
include in any registration statement and offering made pursuant to Section
2.1(a), authorized but unissued shares of Common Stock or shares of Common Stock
held by the Company as treasury shares; provided that such inclusion shall be
permitted only to the extent that it is pursuant to and subject to the terms of
the underwriting agreement or arrangements, if any,
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entered into by the Holders exercising the demand registration rights granted to
the Holders under Section 2.1(a).
(d) The lead managing underwriter for the IPO effected
pursuant to an IPO Demand or any Demand Registration shall be selected by the
party or parties making the demand for such registration, provided that such
underwriter shall be reasonably satisfactory to the Company. It is the current
intention of the parties that Xxxxxxx, Xxxxx & Co. ("GS&Co.") will act as
managing underwriter in any registration of the Registrable Securities pursuant
to an IPO Demand. If GS&Co. acts as managing underwriter in any such registered
offering pursuant to an IPO Demand or any Demand Registration, to the extent
required by applicable law, a Qualified Independent Underwriter (as defined in
Conduct Rule 2720 of the National Association of Securities Dealers, Inc.'s
By-Laws) shall be retained, and the Company shall pay all reasonable fees and
expenses (other than underwriting discounts and commissions) of such Qualified
Independent Underwriter.
2.2. Piggyback Registrations.
(a) If, at any time, the Company proposes or is required to
register any of its equity securities (including pursuant to any registration
statement which generally registers equity and debt securities without
specifying the type of security or the amount) under the Securities Act (other
than pursuant to (i) the IPO, unless the GS Parties (acting together as a group)
and Lauren otherwise consent in writing to the inclusion of Registrable
Securities pursuant to this Section 2.2 (it being acknowledged that the GS
Parties and Lauren have consented to the inclusion of Registrable Securities by
the GS Parties and Lauren in the offering contemplated by Registration Statement
333-24733), (ii) registrations on such form or similar form(s) solely for
registration of securities in connection with an employee benefit plan or
dividend reinvestment plan or a merger or consolidation, or (iii) a Demand
Registration under Section 2.1) on a registration statement on Form S-1, Form
S-2 or Form S-3 (or an equivalent general registration form then in effect),
whether or not for its own account, the Company shall give prompt written notice
of its intention to do so to each of the Holders of
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record of Registrable Securities. Upon the written request of any Holder, made
within 15 days following the receipt of any such written notice (which request
shall specify the maximum number of Registrable Securities intended to be
disposed of by such Holder and the intended method of distribution thereof), the
Company shall, subject to Sections 2.2(b), 2.3 and 2.6 hereof, use its best
efforts to cause all such Registrable Securities, the Holders of which have so
requested the registration thereof, to be registered under the Securities Act
(with the securities which the Company at the time proposes to register) to
permit the sale or other disposition by the Holders (in accordance with the
intended method of distribution thereof) of the Registrable Securities to be so
registered. No registration effected under this Section 2.2(a) shall relieve the
Company of its obligations to effect registrations upon request under Section
2.1.
(b) If, at any time after giving written notice of its
intention to register any equity securities and prior to the effective date of
the registration statement filed in connection with such registration, the
Company shall determine for any reason not to register or to delay registration
of such equity securities, the Company may, at its election, give written notice
of such determination to all Holders of record of Registrable Securities and (i)
in the case of a determination not to register, shall be relieved of its
obligation to register any Registrable Securities in connection with such
abandoned registration, and (ii) in case of a determination to delay such
registration of its equity securities, shall be permitted to delay the
registration of such Registrable Securities for the same period as the delay in
registering such other equity securities, in each case, without prejudice,
however, to the rights of Holders under Section 2.1.
(c) Any Holder shall have the right to withdraw its request
for inclusion of its Registrable Securities in any registration statement
pursuant to this Section 2.2 by giving written notice to the Company of its
request to withdraw; provided, however, that (i) such request must be made in
writing prior to the earlier of the execution of the underwriting agreement or
the execution of the custody agreement with respect to such registration and
(ii) such withdrawal shall be irrevocable and, after making such withdrawal, a
Holder shall no
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longer have any right to include Registrable Securities in the registration as
to which such withdrawal was made.
2.3. Allocation of Securities Included in Registration
Statement.
(a) If any requested registration pursuant to Section 2.1
involves an underwritten offering and a co-manager of such offering, which shall
be a prominent investment banking firm which is unaffiliated with the Holders
(the "Co-Manager"), shall advise the Company that, in its view, the number of
securities requested to be included in such registration (including those
securities requested by the Company to be included in such registration) exceeds
the largest number (the "Section 2.1 Sale Number") that can be sold in an
orderly manner in such offering within a price range acceptable to the Holders
of Registrable Securities proposed to be registered, the Company shall include
in such registration:
(i) all Registrable Securities requested to be included in
such registration by Holders of Registrable Securities, provided, however, that
if the number of such Registrable Securities exceeds the Section 2.1 Sale
Number, the number of such Registrable Securities (not to exceed the Section 2.1
Sale Number) to be included in such registration shall be allocated: (x) first
to the GS Parties up to that number (not to exceed the number of shares
requested to be included by the GS Parties in such requested registration) of
Registrable Securities (the "GS Securities") which, based upon the midpoint of
the filing range for the registration (in the case of an IPO) or the then market
price of the Common Stock (in all other cases) and the estimated underwriting
discount for the registration, is expected to yield an amount of net proceeds to
the GS Parties (the "Priority Amount") that, when added to the net proceeds of
any Registrable Securities sold for the account of the GS Parties in any
preceding registration (if any) pursuant to this clause (x) or clause (x) of
Section 2.3(b)(ii) will aggregate an amount equal to $20,000,000, and (y)
thereafter on a pro rata basis among all Holders requesting that Registrable
Securities be included in such registration, based on the number of Registrable
Securities then owned by each Holder requesting inclusion in relation to the
number of Registrable Securities owned by all Holders requesting inclusion,
provided,
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however, that such ratio will be calculated after giving effect to the sale of
the GS Securities to the extent that the GS Parties have a first priority right
in such offering; and
(ii) to the extent that the number of Registrable Securities
to be included by all Holders is less than the Section 2.1 Sale Number,
securities that the Company proposes to register.
If, as a result of the proration provisions of this Section 2.3(a), any
Holder shall not be entitled to include all Registrable Securities in a
registration that such Holder has requested to be included, such Holder may
elect to withdraw his request to include Registrable Securities in such
registration or may reduce the number requested to be included; provided,
however, that (x) such request must be made in writing prior to the earlier of
the execution of the underwriting agreement or the execution of the custody
agreement with respect to such registration and (y) such withdrawal shall be
irrevocable and, after making such withdrawal, a Holder shall no longer have any
right to include Registrable Securities in the registration as to which such
withdrawal was made.
(b) If any registration pursuant to Section 2.2 involves an
underwritten offering and the Co-Manager shall advise the Company that, in its
view, the number of securities requested to be included in such registration
exceeds the number (the "Section 2.2 Sale Number") that can be sold in an
orderly manner in such registration within a price range acceptable to the
Company, the Company shall include in such registration:
(i) all Common Stock or securities convertible into, or
exchangeable or exercisable for, Common Stock that the Company proposes to
register for its own account (the "Company Securities"), and
(ii) (x) to the extent that the number of Company
Securities is less than the Section 2.2 Sale Number, if the GS Parties have not
previously registered Registrable Securities yielding the Priority Amount, the
Registrable Securities that the GS Parties propose to register up to that number
(the "Priority Number") of Registrable Securities (such Priority Number,
together with the Company Securities, not to exceed the Section 2.2
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Sale Number) which is expected to yield an amount of net proceeds to the GS
Parties equal to the Priority Amount (calculated in the same manner as set forth
in Section 2.3(a)(i)) and (y) to the extent the number of Company Securities
plus the Priority Number (if any) is less than the Section 2.2 Sale Number, all
Registrable Securities requested to be included by all Holders; provided,
however, that, if the number of such Registrable Securities exceeds the Section
2.2 Sale Number less the number of Company Securities and the Priority Number
(if any), then the number of such Registrable Securities included in such
registration shall be allocated on a pro rata basis, based on the number of
Registrable Securities owned by each Holder requesting inclusion in relation to
the number of Registrable Securities owned by all Holders requesting inclusion.
2.4. Registration Procedures. If and whenever the Company is required
by the provisions of this Agreement to use its best efforts to effect or cause
the registration of any Registrable Securities under the Securities Act as
provided in this Agreement, the Company shall, as expeditiously as possible:
(a) prepare and file with the Commission a registration
statement on an appropriate registration form of the Commission for the
disposition of such Registrable Securities in accordance with the intended
method of disposition thereof, which form (i) shall be selected by the Company
and (ii) shall, in the case of a shelf registration, be available for the sale
of the Registrable Securities by the selling Holders thereof and such
registration statement shall comply as to form in all material respects with the
requirements of the applicable form and include all financial statements
required by the Commission to be filed therewith, and the Company shall use its
best efforts to cause such registration statement to become and remain effective
(provided, however, that before filing a registration statement or prospectus or
any amendments or supplements thereto, or comparable statements under securities
or blue sky laws of any jurisdiction, the Company will furnish to the counsel of
any Holder participating in the planned offering and the underwriters, if any,
copies of all such documents proposed to be filed (including all exhibits
thereto), which documents will be subject to the reasonable review
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and reasonable comment of such counsel, and the Company shall not file any
registration statement or amendment thereto or any prospectus or supplement
thereto to which the holders of a majority of the Registrable Securities covered
by such registration statement or the underwriters, if any, shall reasonably
object in writing);
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for
the earlier of (a) such time as all of such Registrable Securities and other
securities have been disposed of in accordance with the intended methods of
disposition by the sellers thereof as set forth in such registration statement
and (b) such period (which shall not be required to exceed 150 days in the case
of a registration pursuant to Section 2.1 or 120 days in the case of a
registration pursuant to Section 2.2, unless reasonably requested by any
underwriter pursuant to an underwritten offering) as any seller of Registrable
Securities pursuant to such registration statement shall reasonably request and
to comply with the provisions of the Securities Act with respect to the sale or
other disposition of all Registrable Securities covered by such registration
statement in accordance with the intended methods of disposition by the seller
or sellers thereof set forth in such registration statement;
(c) as soon as reasonably possible furnish, without charge, to
each seller of such Registrable Securities and each underwriter, if any, of the
securities covered by such registration statement such number of copies of such
registration statement, each amendment and supplement thereto (in each case
including all exhibits), and the prospectus included in such registration
statement (including each preliminary prospectus) in conformity with the
requirements of the Securities Act, and other documents, as such seller and
underwriter may reasonably request in order to facilitate the public sale or
other disposition of the Registrable Securities owned by such seller (the
Company hereby consenting to the use in accordance with all applicable law of
each such registration statement (or amendment or post-effective amendment
thereto) and each such prospectus (or preliminary prospectus or
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supplement thereto) by each such seller of Registrable Securities and the
underwriters, if any, in connection with the offering and sale of the
Registrable Securities covered by such registration statement or prospectus);
(d) use its best efforts to register or qualify the
Registrable Securities covered by such registration statement under such other
securities or "blue sky" laws of such jurisdictions as any sellers of
Registrable Securities or any managing underwriter, if any, shall reasonably
request, and do any and all other acts and things which may be reasonably
necessary or advisable to enable such sellers or underwriter, if any, to
consummate the disposition of the Registrable Securities in such jurisdictions,
except that in no event shall the Company be required to qualify to do business
as a foreign corporation in any jurisdiction where it would not, but for the
requirements of this paragraph (d), be required to be so qualified, to subject
itself to taxation in any such jurisdiction or to consent to general service of
process in any such jurisdiction;
(e) promptly notify each Holder selling Registrable Securities
covered by such registration statement and each managing underwriter, if any:
(i) when the registration statement, any pre-effective amendment, the prospectus
or any prospectus supplement related thereto or post-effective amendment to the
registration statement has been filed and, with respect to the registration
statement or any post-effective amendment, when the same has become effective;
(ii) of any request by the Commission or state securities authority for
amendments or supplements to the registration statement or the prospectus
related thereto or for additional information; (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the registration
statement or the initiation of any proceedings for that purpose; (iv) of the
receipt by the Company of any notification with respect to the suspension of the
qualification of any Registrable Securities for sale under the securities or
blue sky laws of any jurisdiction or the initiation of any proceeding for such
purpose; (v) of the existence of any fact of which the Company becomes aware
which results in the registration statement, the prospectus related thereto or
any document incorporated therein by reference
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containing an untrue statement of a material fact or omitting to state a
material fact required to be stated therein or necessary to make any statement
therein not misleading; and (vi) if at any time the representations and
warranties contemplated by Section 3 below cease to be true and correct in all
material respects; and, if the notification relates to an event described in
clause (v), the Company shall promptly prepare and furnish to each such seller
and each underwriter, if any, a reasonable number of copies of a prospectus
supplemented or amended so that, as thereafter delivered to the purchasers of
such Registrable Securities, such prospectus shall not include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein in the light of the
circumstances under which they were made not misleading;
(f) comply with all applicable rules and regulations of the
Commission, and make generally available to its security holders, as soon as
reasonably practicable after the effective date of the registration statement
(and in any event within 16 months thereafter), an earnings statement (which
need not be audited) covering the period of at least twelve consecutive months
beginning with the first day of the Company's first calendar quarter after the
effective date of the registration statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder;
(g) (i) cause all such Registrable Securities covered by such
registration statement to be listed on the principal securities exchange on
which similar securities issued by the Company are then listed (if any), if the
listing of such Registrable Securities is then permitted under the rules of such
exchange, or (ii) if no similar securities are then so listed, cause all such
Registrable Securities to be listed on a national securities exchange or,
failing that, secure inclusion of all such Registrable Securities on the NASDAQ
National Market or, failing that, secure NASDAQ authorization for such shares
and, without limiting the generality of the foregoing, take all actions that may
be required by the Company as the issuer of such Registrable Securities in order
to facilitate the managing underwriter's arranging for the
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registration of at least two market makers as such with respect to such shares
with the National Association of Securities Dealers, Inc. (the "NASD");
(h) provide and cause to be maintained a transfer agent and
registrar for all such Registrable Securities covered by such registration
statement not later than the effective date of such registration statement;
(i) enter into such customary agreements (including, if
applicable, an underwriting agreement) and take such other actions as the GS
Parties or the Polo Parties shall reasonably request in order to expedite or
facilitate the disposition of such Registrable Securities, provided that the
underwriting agreement, if any, shall be reasonably satisfactory in form and
substance to the Company. The Holders of the Registrable Securities which are to
be distributed by such underwriters shall be parties to such underwriting
agreement and may, at their option, require that the Company make to and for the
benefit of such Holders the representations, warranties and covenants of the
Company which are being made to and for the benefit of such underwriters and
which are of the type customarily provided to institutional investors in
secondary offerings;
(j) obtain an opinion from the Company's counsel and a "cold
comfort" letter from the Company's independent public accountants in customary
form and covering such matters as are customarily covered by such opinions and
"cold comfort" letters delivered to underwriters in underwritten public
offerings, which opinion and letter shall be reasonably satisfactory to the
underwriter, if any, the GS Parties and the Polo Parties, and furnish to each
Holder participating in the offering and to each underwriter, if any, a copy of
such opinion and letter addressed to such Holder or underwriter;
(k) deliver promptly to each Holder participating in the
offering and each underwriter, if any, copies of all correspondence between the
Commission and the Company, its counsel or auditors and all memoranda relating
to discussions with the Commission or its staff with respect to the registration
statement, other than those portions of any such correspondence and memoranda
which contain information subject to attorney-client
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privilege with respect to the Company, and, upon receipt of such confidentiality
agreements as the Company may reasonably request, make reasonably available for
inspection by any seller of such Registrable Securities covered by such
registration statement, by any underwriter, if any, participating in any
disposition to be effected pursuant to such registration statement and by any
attorney, accountant or other agent retained by any such seller or any such
underwriter, all pertinent financial and other records, pertinent corporate
documents and properties of the Company, and cause all of the Company's
officers, directors and employees to supply all information reasonably requested
by any such seller, underwriter, attorney, accountant or agent in connection
with such registration statement;
(l) use its best efforts to obtain the withdrawal of any order
suspending the effectiveness of the registration statement;
(m) provide a CUSIP number for all Registrable Securities, not
later than the effective date of the registration statement;
(n) make reasonably available its employees and personnel and
otherwise provide reasonable assistance to the underwriters (taking into account
the needs of the Company's businesses and the requirements of the marketing
process) in the marketing of Registrable Securities in any underwritten
offering;
(o) promptly prior to the filing of any document which is to
be incorporated by reference into the registration statement or the prospectus
(after the initial filing of such registration statement) provide copies of such
document to counsel to the selling holders of Registrable Securities and to the
managing underwriter, if any, and make the Company's representatives reasonably
available for discussion of such document and make such changes in such document
prior to the filing thereof as counsel for such selling holders or underwriters
may reasonably request;
(p) furnish to each Holder participating in the offering and
the managing underwriter, without charge, at least one signed copy of the
registration statement and any post-effective amendments thereto, including
financial statements and schedules, all
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documents incorporated therein by reference and all exhibits (including those
incorporated by reference);
(q) cooperate with the selling holders of Registrable
Securities and the managing underwriter, if any, to facilitate the timely
preparation and delivery of certificates not bearing any restrictive legends
representing the Registrable Securities to be sold, and cause such Registrable
Securities to be issued in such denominations and registered in such names in
accordance with the underwriting agreement prior to any sale of Registrable
Securities to the underwriters or, if not an underwritten offering, in
accordance with the instructions of the selling holders of Registrable
Securities at least three business days prior to any sale of Registrable
Securities; and
(r) take all such other commercially reasonable actions as are
necessary or advisable in order to expedite or facilitate the disposition of
such Registrable Securities.
The Company may require as a condition precedent to the Company's
obligations under this Section 2.4 that each seller of Registrable Securities as
to which any registration is being effected furnish the Company such information
regarding such seller and the distribution of such securities as the Company may
from time to time reasonably request provided that such information shall be
used only in connection with such registration.
Each Holder of Registrable Securities agrees that upon receipt of any
notice from the Company of the happening of any event of the kind described in
clause (v) of paragraph (e) of this Section 2.4, such Holder will discontinue
such Holder's disposition of Registrable Securities pursuant to the registration
statement covering such Registrable Securities until such Holder's receipt of
the copies of the supplemented or amended prospectus contemplated by paragraph
(e) of this Section 2.4 and, if so directed by the Company, will deliver to the
Company (at the Company's expense) all copies, other than permanent file copies,
then in such Holder's possession of the prospectus covering such Registrable
Securities that was in effect at the time of receipt of such notice. In the
event the Company shall give any such notice, the applicable
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period mentioned in paragraph (b) of this Section 2.4 shall be extended by the
number of days during such period from and including the date of the giving of
such notice to and including the date when each seller of any Registrable
Securities covered by such registration statement shall have received the copies
of the supplemented or amended prospectus contemplated by paragraph (e) of this
Section 2.4.
If any such registration statement or comparable statement under "blue
sky" laws refers to any Holder by name or otherwise as the Holder of any
securities of the Company, then such Holder shall have the right to require (i)
the insertion therein of language, in form and substance satisfactory to such
Holder and the Company, to the effect that the holding by such Holder of such
securities is not to be construed as a recommendation by such Holder of the
investment quality of the Company's securities covered thereby and that such
holding does not imply that such Holder will assist in meeting any future
financial requirements of the Company, or (ii) in the event that such reference
to such Holder by name or otherwise is not in the judgment of the Company, as
advised by counsel, required by the Securities Act or any similar federal
statute or any state "blue sky" or securities law then in force, the deletion of
the reference to such Holder.
2.5. Registration Expenses. The Company shall, whether or not any
registration pursuant to this Agreement becomes effective, pay all expenses
incident to the Company's performance of or compliance with this Article 2,
including (i) Commission, stock exchange or NASD registration and filing fees
and all listing fees and fees with respect to the inclusion of securities in
NASDAQ, (ii) fees and expenses of compliance with state securities or "blue sky"
laws and in connection with the preparation of a "blue sky" survey, including
without limitation, reasonable fees and expenses of blue sky counsel, (iii)
printing expenses, (iv) messenger and delivery expenses, (v) internal expenses
(including, without limitation, all salaries and expenses of the Company's
officers and employees performing legal and accounting duties), (vi) fees and
disbursements of counsel for the Company, (vii) with respect to each
registration, the fees and disbursements of one counsel for the selling Holders
(selected
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by the Holders making the IPO Demand or Demand Registration Request, in the case
of a registration pursuant to Section 2.1, and selected by the Holders of a
majority of the Registrable Securities included in such registration, in the
case of a registration pursuant to Section 2.2 as well as of one local counsel
(as applicable), (viii) fees and disbursements of all independent public
accountants (including the expenses of any audit and/or "cold comfort" letter)
and fees and expenses of other persons, including special experts, retained by
the Company, (ix) fees and expenses payable to a Qualified Independent
Underwriter and (x) any other fees and disbursements of underwriters, if any,
customarily paid by issuers or sellers of securities. Notwithstanding the
foregoing, (x) the provisions of this Section 2.5 shall be deemed amended to the
extent necessary to cause these expense provisions to comply with "blue sky"
laws of each state in which the offering is made and (y) in connection with any
registration hereunder, each Holder of Registrable Securities being registered
shall pay all underwriting discounts and commissions and any capital gains,
income or transfer taxes, if any, attributable to such Holder's Registrable
Securities.
2.6. Certain Limitations on Registration Rights. In the case of any
registration under Section 2.1 pursuant to an underwritten offering, or in the
case of a registration under Section 2.2 if the Company has determined to enter
into an underwriting agreement in connection therewith, all Registrable
Securities to be included in such registration shall be subject to an
underwriting agreement and no person may participate in such registration unless
such person agrees to sell such person's securities on the basis provided
therein and completes and/or executes all questionnaires, indemnities, lock-ups,
underwriting agreements and other documents (other than powers of attorney), in
each case in customary form and substance, which must be executed in connection
therewith.
2.7. Limitations on Sale or Distribution of Other Securities.
(a) If requested in writing by the Company or the managing
underwriter, if any, of any registration effected pursuant to Section 2.1 or
2.2, each Holder of Registrable Securities agrees not to effect any public sale
or distribution, including any sale
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pursuant to Rule 144 under the Securities Act, of any Registrable Securities, or
of any other equity security of the Company or of any security convertible into
or exchangeable or exercisable for any equity security of the Company (other
than as part of such underwritten public offering) during the time period
reasonably requested by the managing underwriter, not to exceed 180 days (and
the Company hereby also so agrees (except that the Company may effect any sale
or distribution of any such securities pursuant to a registration on Form S-4
(if reasonably acceptable to the managing underwriter) or Form S-8, or any
successor or similar form which is then in effect) and agrees to use its
reasonable efforts to cause each holder of any equity security or of any
security convertible into or exchangeable or exercisable for any equity security
of the Company purchased from the Company at any time other than in a public
offering so to agree).
(b) The Company hereby agrees that if it shall previously have
received a request for registration pursuant to Section 2.1 or 2.2, and if such
previous registration shall not have been withdrawn or abandoned, the Company
shall not, without the prior written consent of the managing underwriter of such
previous registration, effect any registration of any of its securities under
the Securities Act (other than a registration on Form S-4 or Form S-8 or any
successor or similar form which is then in effect), whether or not for sale for
its own account, until a period 180 days shall have elapsed from the effective
date of such previous registration; and the Company shall so provide in any
registration rights agreements hereafter entered into with respect to any of its
securities.
2.8. No Required Sale. Nothing in this Agreement shall be deemed to
create an independent obligation on the part of any Holder to sell any
Registrable Securities pursuant to any effective registration statement.
2.9. Indemnification.
(a) In the event of any registration of any securities of the
Company under the Securities Act pursuant to this Article 2, the Company will,
and hereby does, indemnify and hold harmless, to the fullest extent permitted by
law, the seller of any
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Registrable Securities covered by such registration statement, its directors,
officers, fiduciaries, employees and stockholders or general and limited
partners (and the directors, officers, employees and stockholders thereof), each
other individual, partnership, joint venture, corporation, trust, unincorporated
organization or other entity (each, a "Person") who participates as an
underwriter or a Qualified Independent Underwriter, if any, in the offering or
sale of such securities, each officer, director, employee, stockholder or
partner of such underwriter or Qualified Independent Underwriter, and each other
Person, if any, who controls such seller or any such underwriter within the
meaning of the Securities Act, against any and all losses, claims, damages or
liabilities, joint or several, actions or proceedings (whether commenced or
threatened) in respect thereof ("Claims") and expenses (including reasonable
fees of counsel and any amounts paid in any settlement effected with the
Company's consent, which consent shall not be unreasonably withheld or delayed)
to which each such indemnified party may become subject under the Securities Act
or otherwise, insofar as such Claims or expenses arise out of or are based upon
(i) any untrue statement or alleged untrue statement of a material fact
contained in any registration statement under which such securities were
registered under the Securities Act or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, (ii) any untrue statement or alleged untrue
statement of a material fact contained in any preliminary, final or summary
prospectus or any amendment or supplement thereto, together with the documents
incorporated by reference therein, or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, or (iii) any violation by the Company of any federal,
state or common law rule or regulation applicable to the Company and relating to
action required of or inaction by the Company in connection with any such
registration, and the Company will reimburse any such indemnified party for any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such Claim as such expenses are
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incurred; provided, that the Company shall not be liable to any such indemnified
party in any such case to the extent such Claim or expense arises out of or is
based upon any untrue statement or alleged untrue statement of a material fact
or omission or alleged omission of a material fact made in such registration
statement or amendment thereof or supplement thereto or in any such prospectus
or any preliminary, final or summary prospectus in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
such indemnified party specifically for use therein. Such indemnity and
reimbursement of expenses shall remain in full force and effect regardless of
any investigation made by or on behalf of such indemnified party and shall
survive the transfer of such securities by such seller.
(b) Each Holder of Registrable Securities that are included in
the securities as to which any registration under Section 2.1 or 2.2 is being
effected (and, if the Company requires as a condition to including any
Registrable Securities in any registration statement filed in accordance with
Section 2.1 or 2.2, any underwriter and Qualified Independent Underwriter, if
any) shall, severally and not jointly, indemnify and hold harmless (in the same
manner and to the same extent as set forth in paragraph (a) of this Section 2.9)
to the extent permitted by law the Company, its officers and directors, each
Person controlling the Company within the meaning of the Securities Act and all
other prospective sellers and their directors, officers, general and limited
partners and respective controlling Persons with respect to any untrue statement
or alleged untrue statement of any material fact in, or omission or alleged
omission of any material fact from, such registration statement, any
preliminary, final or summary prospectus contained therein, or any amendment or
supplement thereto, if such statement or alleged statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company or its representatives by or on behalf of
such Holder or underwriter or Qualified Independent Underwriter, if any,
specifically stating that it is for use in such registration statement,
preliminary, final or summary prospectus or amendment or supplement or document
incorporated by reference into any of the foregoing; provided, however, that the
aggregate amount which any such Holder shall be required to pay
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pursuant to this Section 2.9(b) and Sections 2.9(c) and (e) shall be limited to
the amount of the net proceeds received by such person upon the sale of the
Registrable Securities pursuant to the registration statement giving rise to
such claim. Such indemnity shall remain in full force and effect regardless of
any investigation made by or on behalf of such indemnified party and shall
survive the transfer of such securities by such Holder.
(c) Indemnification similar to that specified in the preceding
paragraphs (a) and (b) of this Section 2.9 (with appropriate modifications)
shall be given by the Company and each seller of Registrable Securities with
respect to any required registration or other qualification of securities under
any state securities and "blue sky" laws.
(d) Any person entitled to indemnification under this
Agreement shall notify promptly the indemnifying party in writing of the
commencement of any action or proceeding with respect to which a claim for
indemnification may be made pursuant to this Section 2.9, but the failure of any
indemnified party to provide such notice shall not relieve the indemnifying
party of its obligations under the preceding paragraphs of this Section 2.9,
except to the extent the indemnifying party is materially prejudiced thereby and
shall not relieve the indemnifying party from any liability which it may have to
any indemnified party otherwise than under this Article 2. In case any action or
proceeding is brought against an indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, unless in the reasonable opinion of outside
counsel to the indemnified party a conflict of interest between such indemnified
and indemnifying parties may exist in respect of such claim, to assume the
defense thereof jointly with any other indemnifying party similarly notified, to
the extent that it chooses, with counsel reasonably satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party that it so chooses, the
indemnifying party shall not be liable to such indemnified party for any legal
or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of
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investigation; provided, however, that (i) if the indemnifying party fails to
take reasonable steps necessary to defend diligently the action or proceeding
within 20 days after receiving notice from such indemnified party that the
indemnified party believes it has failed to do so; or (ii) if such indemnified
party who is a defendant in any action or proceeding which is also brought
against the indemnifying party reasonably shall have concluded that there may be
one or more legal defenses available to such indemnified party which are not
available to the indemnifying party; or (iii) if representation of both parties
by the same counsel is otherwise inappropriate under applicable standards of
professional conduct, then, in any such case, the indemnified party shall have
the right to assume or continue its own defense as set forth above (but with no
more than one firm of counsel for all indemnified parties in each jurisdiction,
except to the extent any indemnified party or parties reasonably shall have
concluded that there may be legal defenses available to such party or parties
which are not available to the other indemnified parties or to the extent
representation of all indemnified parties by the same counsel is otherwise
inappropriate under applicable standards of professional conduct) and the
indemnifying party shall be liable for any expenses therefor. No indemnifying
party shall, without the written consent of the indemnified party, effect the
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (A) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (B) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(e) If for any reason the foregoing indemnity is unavailable
or is insufficient to hold harmless an indemnified party under Sections 2.9(a),
(b) or (c), then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of any Claim in such proportion as
is appropriate to reflect the relative benefits received
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by the indemnifying party on the one hand and the indemnified party on the other
from such offering of securities. If, however, the allocation provided in the
immediately preceding sentence is not permitted by applicable law, or if the
indemnified party failed to give the notice required by subsection (d) above and
the indemnifying party is materially prejudiced thereby, then each indemnifying
party shall contribute to the amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the indemnifying party, on the one hand, and the
indemnified party, on the other hand, as well as any other relevant equitable
considerations. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the indemnifying party or the indemnified party and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The parties hereto agree
that it would not be just and equitable if contributions pursuant to this
Section 2.9(e) were to be determined by pro rata allocation or by any other
method of allocation which does not take account of the equitable considerations
referred to in the preceding sentences of this Section 2.9(e). The amount paid
or payable in respect of any Claim shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such Claim. 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. Notwithstanding anything in this Section 2.9(e) to
the contrary, no indemnifying party (other than the Company) shall be required
pursuant to this Section 2.9(e) to contribute any amount in excess of the net
proceeds received by such indemnifying party from the sale of Registrable
Securities in the offering to which the losses, claims, damages or liabilities
of the indemnified parties relate, less the amount of any indemnification
payment made pursuant to Sections 2.9(b) and (c).
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(f) The indemnity agreements contained herein shall be in
addition to any other rights to indemnification or contribution which any
indemnified party may have pursuant to law or contract and shall remain
operative and in full force and effect regardless of any investigation made or
omitted by or on behalf of any indemnified party and shall survive the transfer
of the Registrable Securities by any such party.
(g) The indemnification and contribution required by this
Section 2.9 shall be made by periodic payments of the amount thereof during the
course of the investigation or defense, as and when bills are received or
expense, loss, damage or liability is incurred.
3. Underwritten Offerings.
3.1. Requested Underwritten Offerings. If requested by the underwriters
for any underwritten offering by the Holders pursuant to a registration
requested under Section 2.1, the Company shall enter into a customary
underwriting agreement with the underwriters. Such underwriting agreement shall
be satisfactory in form and substance to the Holders which requested such
registration and shall contain such representations and warranties by, and such
other agreements on the part of, the Company and such other terms as are
generally prevailing in agreements of that type, including, without limitation,
indemnities and contribution agreements. Any Holder participating in the
offering shall be a party to such underwriting agreement and may, at its option,
require that any or all of the representations and warranties by, and the other
agreements on the part of, the Company to and for the benefit of such
underwriters shall also be made to and for the benefit of such Holder and that
any or all of the conditions precedent to the obligations of such underwriters
under such underwriting agreement be conditions precedent to the obligations of
such Holder. Such underwriting agreement shall also contain such
representations, warranties and indemnities by the participating Holders as are
customary in agreements of that type.
3.2. Piggyback Underwritten Offerings. In the case of a registration
pursuant to Section 2.2 hereof, if the Company shall have determined to enter
into any underwriting agreements in connection therewith, all of the Holders'
Registrable Securities to be included in
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such registration shall be subject to such underwriting agreements. Any Holder
participating in such registration may, at its option, require that any or all
of the representations and warranties by, and the other agreements on the part
of, the Company to and for the benefit of such underwriters shall also be made
to and for the benefit of such Holder and that any or all of the conditions
precedent to the obligations of such underwriters under such underwriting
agreement be conditions precedent to the obligations of such Holder. Such
underwriting agreement shall also contain such representations, warranties and
indemnities by the participating Holders as are customary in agreements of that
type.
4. General.
4.1. Adjustments Affecting Registrable Securities. The Company agrees
that it shall not effect or permit to occur any combination or subdivision of
shares which would adversely affect the ability of the Holder of any Registrable
Securities to include such Registrable Securities in any registration
contemplated by this Agreement or the marketability of such Registrable
Securities in any such registration. The Company agrees that it will take all
reasonable steps necessary to effect a subdivision of shares if in the
reasonable judgment of (a) the Holder of Registrable Securities that makes a
Demand Registration Request and (b) the managing underwriter for the offering in
respect of such Demand Registration Request, such subdivision would enhance the
marketability of the Registrable Securities.
4.2. Rule 144. If the Company shall have filed a registration statement
pursuant to the requirements of Section 12 of the Exchange Act or a registration
statement pursuant to the requirements of the Securities Act in respect of the
Common Stock or securities of the Company convertible into or exchangeable or
exercisable for Common Stock, the Company covenants that it will timely file the
reports required to be filed by it under the Securities Act or the Exchange Act
(including, but not limited to, the reports under Sections 13 and 15(d) of the
Exchange Act referred to in subparagraph (c)(1) of Rule 144 under the Securities
Act), and will take such further action as any Holder of Registrable Securities
may reasonably request, all to the extent required from time to time to enable
such Holder to sell
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Registrable Securities without registration under the Securities Act within the
limitation of the exemptions provided by (i) Rule 144 under the Securities Act,
as such Rule may be amended from time to time, or (ii) any similar rule or
regulation hereafter adopted by the Commission. Upon the request of any Holder
of Registrable Securities, the Company will deliver to such Holder a written
statement as to whether it has complied with such requirements.
4.3. Preparation; Reasonable Investigation. In connection with the
preparation and filing of each registration statement under the Securities Act
pursuant to this Agreement, the Company will give the Holders participating in
the offering, their underwriters, if any, and their respective counsel,
accountants and other representatives and agents the opportunity to participate
in the preparation of such registration statement, each prospectus included
therein or filed with the Commission, and, to the extent practicable, each
amendment thereof or supplement thereto, and give each of them reasonable access
to its books and records and properties and such opportunities to discuss the
business of the Company and such other matters with the Company's directors,
officers and employees and the independent public accountants who have certified
its financial statements, and the Company will supply, or cause its directors,
officers, employees and independent accountants to supply, all other information
reasonably requested by each of them, as shall be reasonably necessary or
appropriate, in the opinion of the Holders' and such underwriters' respective
counsel, to conduct a reasonable investigation within the meaning of the
Securities Act.
4.4. Nominees for Beneficial Owners. If Registrable Securities are held
by a nominee for the beneficial owner thereof, the beneficial owner thereof may,
at its option, be treated as the Holder of such Registrable Securities for
purposes of any request or other action by any Holder or Holders of Registrable
Securities pursuant to this Agreement (or any determination of any number or
percentage of shares constituting Registrable Securities held by any Holder or
Holders of Registrable Securities contemplated by this Agreement); provided that
the Company shall have received assurances reasonably satisfactory to it of such
beneficial ownership.
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4.5. Amendments and Waivers. This Agreement may be amended, modified,
supplemented or waived only upon the written agreement of the party against whom
enforcement of such amendment, modification, supplement or waiver is sought
provided that (a) the written agreement of the holders of a majority of the
Registrable Securities held by the GS Parties shall be considered to be signed
by all of the GS Parties and (b) the written agreement of the holders of a
majority of the Registrable Securities held by the Polo Parties shall be
considered to be signed by the Polo Parties.
4.6. Notices. Except as otherwise provided in this Agreement, notices
and other communications under this Agreement shall be in writing and delivered
personally, by telecopy (with confirmation sent within three business days by
overnight courier) or by overnight courier, addressed to the Company and each of
the Polo Parties at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (telecopier
212-318-7183) (Attention: General Counsel), with a copy to Xxxx, Weiss, Rifkind,
Xxxxxxx & Xxxxxxxx at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000
(Attention: Xxxxx X. Xxxxx) and to the other parties at the "Address for
Notices" specified below its name on Schedule I hereto. Each Holder, by written
notice given to the Company in accordance with this Section 4.6, may change the
address to which such notice or other communications are to be sent to such
Holder. All such notices and communications shall be deemed to have been
received on the date of delivery thereof, if delivered by hand, on the fifth day
after the mailing thereof, if mailed, on the next day after the sending thereof,
if by overnight courier, when answered back if telexed and when receipt is
acknowledged, if telecopied.
4.7. Miscellaneous.
(a) This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and the respective
successors and assigns of the parties hereto, whether so expressed or not. No
Person other than a Holder shall be entitled to any benefits under this
Agreement, except as otherwise expressly provided herein. This Agreement and the
rights of the parties hereunder may be assigned by any of the parties hereto to
any
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transferee of Registrable Securities (i) who acquires such securities in
accordance with the provisions of the Stockholders Agreement, and (ii) from and
after an IPO, who is a successor of such party or in the case of the Polo
Parties, a Class B Permitted Transferee; provided that (A) the rights of the
Polo Parties under Section 2.1(a)(i) shall not be assignable without the consent
of the GS Parties and (B) the rights of the GS Parties under Section 2.1(a)(i)
shall not be assignable without the consent of Lauren. Notwithstanding anything
herein to the contrary, upon the death of Lauren or the entry by a court of
competent jurisdiction of an order adjudicating him incompetent, (i) in the
event of Lauren's death, the legal representative of Lauren's estate, or another
representative of Lauren's estate if selected by beneficiaries holding a
majority-in-interest of Lauren's estate's rights in the Company (it being agreed
that, in the case of any trusts that are beneficiaries of Lauren's estate's
rights in the Company, such trusts shall act through the trustees thereof) will
be entitled to exercise the rights under this Agreement that Lauren would have
been entitled to exercise if he had not died, or (ii) in the event that Lauren
is so adjudicated an incompetent, the legal representative of Lauren will be
entitled to exercise the rights under this Agreement that Lauren would have been
entitled to exercise if he had not been so adjudicated an incompetent.
(b) This Agreement (with the documents referred to herein or
delivered pursuant hereto) embodies the entire agreement and understanding
between the parties hereto and supersedes all prior agreements and
understandings relating to the subject matter hereof (including the terms of the
Original Registration Rights Agreement). The Original Registration Rights
Agreement is hereby terminated.
(c) This Agreement shall be construed and enforced in
accordance with and governed by the laws of the State of New York without giving
effect to the conflicts of law principles thereof.
(d) The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof. All
section references are to this Agreement unless otherwise expressly provided.
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(e) This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
(f) Any term or provision of this Agreement which is invalid
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction.
(g) It is hereby agreed and acknowledged that it will be
impossible to measure in money the damages that would be suffered if the parties
fail to comply with any of the obligations herein imposed on them and that in
the event of any such failure, an aggrieved person will be irreparably damaged
and will not have an adequate remedy at law. Any such person shall, therefore,
be entitled to injunctive relief, including specific performance, to enforce
such obligations, without the posting of any bond and if any action should be
brought in equity to enforce any of the provisions of this Agreement, none of
the parties hereto shall raise the defense that there is an adequate remedy at
law.
(h) Each party hereto shall do and perform or cause to be done
and performed all such further acts and things and shall execute and deliver all
such other agreements, certificates, instruments, and documents as any other
party hereto reasonably may request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
4.8. No Inconsistent Agreements. Without the prior written consent of
(i) Lauren and (ii) GSCP, neither the Company nor any Holder will, on or after
the date of this Agreement, enter into any agreement with respect to its
securities which is inconsistent with the rights granted in this Agreement or
otherwise conflicts with the provisions hereof, other than any lock-up agreement
with the underwriters in connection with any registered offering effected
hereunder, pursuant to which the Company shall agree not to register for sale,
and the Company shall agree not to sell or otherwise dispose of, Common Stock or
any securities convertible into
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or exercisable or exchangeable for Common Stock, for a specified period
following the registered offering. The Company shall not grant any other Person
registration rights without the written consent of the Holders holding at least
a majority of the Registrable Securities held by all of the Holders. If the
Company shall at any time hereafter provide to any holder of any securities of
the Company rights with respect to the registration of such securities and such
rights are provided on terms or conditions more favorable to such holder than
the terms or conditions applicable to the Holders herein, the Company shall
provide (by way of amendment to this Agreement or otherwise) such more favorable
terms or conditions to the Holders under this Agreement.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date set forth above.
GS CAPITAL PARTNERS, L.P.
By: GS Advisors L.P., its general partner
By: GS Advisors, Inc., its general partner
By: __________________________________________
GS CAPITAL PARTNERS PRL HOLDING I, L.P.
By: GS Capital Partners, L.P., its general partner
By: GS Advisors, L.P., its general partner
By: GS Advisors, Inc., its general partner
By: __________________________________________
Name:
Title:
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GS CAPITAL PARTNERS PRL HOLDING II, L.P.
By: GS Capital Partners, L.P., its general partner
By: GS Advisors, L.P., its general partner
By: GS Advisors, Inc., its general partner
By: __________________________________________
Name:
Title:
XXXXX XXXXXX XXXX 0000, X.X.
By: Stone Street Funding Corp., its general partner
By: ________________________
Name:
Title:
STONE STREET 1994 SUBSIDIARY CORP.
By: __________________________________________
Name:
Title:
XXXXXX XXXXXX XXXX 0000, X.X.
By: Stone Street Funding Corp., its general partner
By: ________________________
Name:
Title:
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XXXX XXXXX XXXXXX CORPORATION
By: _____________________________________________
Name:
Title:
XXXXX XXXXXX
XX HOLDING, L.P.
By: ____________________________________
Name:
Title:
RL FAMILY, L.P.
By: ____________________________________
Name:
Title:
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SCHEDULE I
Addresses for Notices
GS Capital Partners, L.P.
GS Capital Partners PRL Holding I, Inc.
GS Capital Partners PRL Holding II, Inc.
Stone Street Fund 1994, X.X.
Xxxxx Street 1994 Subsidiary Corp.
Bridge Street Fund 1994, L.P.
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: ______________
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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