FORM OF REGISTRATION RIGHTS AGREEMENT]
Exhibit 4.4
[FORM OF REGISTRATION RIGHTS AGREEMENT]
REGISTRATION RIGHTS AGREEMENT, dated as of , 20 (the “Agreement”), by and between
Xxxxxxx Xxxxx 20 Exchange Place Fund, L.P. (the “Fund”) and The Xxxxxxx Sachs Group, Inc. (“GS
Group”).
WHEREAS, pursuant to the Amended and Restated Plan of Incorporation (the “Plan”) of The
Xxxxxxx Xxxxx Group, L.P. (“Group LP”) adopted on April 30, 1999 and Article Twelfth of the Amended
and Restated Certificate of Incorporation of GS Group, GS Group’s Board of Directors is expressly
authorized to grant registration rights to current and former directors and employees of GS Group
and its subsidiaries and affiliates and former partners and employees of Group LP and its
subsidiaries and affiliates (each a “XX Xxxxxx”);
WHEREAS, the limited partners of the Fund (the “Limited Partners”) will initially include GS
Holders who have contributed shares of common stock, par value $0.01 per share, of GS Group (“GS
Stock”) to the Fund;
WHEREAS, on the last business day of the month in which the seventh anniversary of the last
contribution of any securities to the Fund by a Limited Partner occurs, the Fund will distribute
any shares of GS Stock held by the Fund at such time (the “Registrable Securities”) to the persons
who at such time constitute the Limited Partners (the “Distribution”);
WHEREAS, the resale of GS Stock by the Limited Partners following the Distribution may not be
exempt from registration under the Securities Act of 1933 (the “Securities Act”);
WHEREAS, GS Group will receive certain benefits from the contribution of GS Stock by the GS
Holders to the Fund and wishes to facilitate such contribution; and
WHEREAS, pursuant to and in accordance with its authority under applicable law and the
authority contained in the Plan and GS Group’s Amended and Restated Certificate of Incorporation,
GS Group’s Board of Directors has determined that GS Group shall enter into this Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
1. Registration Statement. (a) Prior to the Distribution, GS Group shall file with
the Securities and Exchange Commission (the “SEC”) a registration statement for an offering to be
made on a continuous basis pursuant to Rule 415 under the Securities Act covering all of the
Registrable Securities (the “Registration Statement”). Each reference in this Agreement to the
Securities Act, any regulation thereunder or any other law or regulation shall mean, as of any
time, such law or regulation (including any successor law or regulation and after giving effect to
any amendment) as in effect at such time, as determined by GS Group. GS Group shall use its
reasonable efforts to cause the Registration Statement to be declared effective pursuant to the
Securities Act as promptly
as reasonably practicable following the Distribution and, subject to Section 3 of this
Agreement, to keep the Registration Statement effective under the Securities Act for the period
from the initial effective date to the earlier of (i) the second anniversary of the Distribution,
(ii) the time at which all of the Registrable Securities have been sold in the manner set forth in
the Registration Statement, (iii) the time at which all of the Registrable Securities would be
freely saleable by a person who is not, and during the then-preceding three months has not been, an
affiliate of GS Group under Rule 144(k) under the Securities Act (or would otherwise be freely
salable under the Securities Act), as determined by GS Group, or (iv) the time at which all of the
Registrable Securities shall have ceased to be outstanding (such period from the initial effective
date to the earliest of the times specified in clauses (i) through (iv) of this Section 1, the
“Effective Period”).
(b) The Registration Statement and Prospectus (as defined in Section 3(C) hereof) shall
provide for the Participating Limited Partners (as defined in Section 2(a) hereof) to distribute
their Registrable Securities by such method or methods of distribution as shall be selected by GS
Group, provided that such methods shall permit each Participating Limited Partner to distribute his
or her Registrable Securities to or through one or more registered broker-dealers, acting as
principal or agent, and, provided, further, that the Participating Limited Partners shall not
distribute Registrable Securities in any firm commitment underwritten offering or other organized
offering without the prior approval of GS Group (which may be withheld in its sole discretion for
any reason and, if given, may be conditioned on GS Group designating the underwriter(s) or selling
agent(s) to be employed in such offering). In no event shall GS Group be obligated hereunder to
amend or supplement the Prospectus to identify, or enter into any underwriting or other agreement
with, or provide any undertaking, information, certificates or documents to, any underwriter,
selling agent or other securities professional, it being understood that GS Group’s obligations are
limited solely to those set forth herein.
2. Participating Limited Partners. (a) Limited Partners desiring to register
Registrable Securities pursuant to the Registration Statement and who receive such securities in
the Distribution (“Participating Limited Partners”) shall be required to execute a counterpart to
this Agreement agreeing to be bound by the terms hereof prior to exercising their rights hereunder.
Each Participating Limited Partner shall (i) furnish, on a timely basis, to GS Group such
information regarding (A) such Participating Limited Partner (including beneficial ownership of
securities) and (B) any underwriter, selling agent or other securities professional to or through
which such Participating Limited Partner proposes to distribute Registrable Securities, in each
case as GS Group may request in writing and may determine is necessary to ensure compliance with
applicable law or regulation in connection with the registration of any Registrable Securities
pursuant to the Registration Statement, and (ii) notify GS Group promptly of any inaccuracy or
change in the information previously furnished by such Participating Limited Partner to GS Group
under clause (i) above. Each Participating Limited Partner authorizes GS Group to include any of
the information such Participating Limited Partner provides pursuant to this paragraph in the
Registration Statement or Prospectus, or any amendment or supplement thereto, in such form and to
such extent as GS Group determines is necessary to ensure compliance as provided above.
(b) GS Group will give notice to the Participating Limited Partners of any date prior to the
second anniversary of the Distribution on which the Effective Period
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ends. Each Participating Limited Partner will complete all offers and sales under the
Registration Statement within the Effective Period, and upon expiration of the Effective Period no
Participating Limited Partner will offer or sell any Registrable Securities under the Registration
Statement. If so directed by GS Group, each Participating Limited Partner will return to GS Group
all undistributed copies of the Prospectus (including any amendment or supplement thereto) in his
or her possession upon the expiration of such period.
(c) Registrable Securities shall bear such legends restricting transfer as, and for as long
as, GS Group may determine is necessary to ensure compliance with the Securities Act.
3. Delays; Suspensions. Notwithstanding any provision of this Agreement to the
contrary, GS Group shall have the right at any time or from time to time to delay the filing or
effectiveness of the Registration Statement or, if the Registration Statement has become effective,
suspend the disposition of Registrable Securities pursuant to the Registration Statement, and in
each case defer or suspend any action contemplated by Section 4 hereof, for such period of time as
is reasonably required under the circumstances as determined by GS Group, in the event (A) of the
issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or
the initiation or threatening of any proceedings for that purpose, (B) of the receipt by GS Group
of any notification with respect to the suspension of the qualification of the Registrable
Securities for sale under the securities or “Blue Sky” laws of any jurisdiction or the initiation
or threatening of any proceeding for such purpose, (C) of the existence of a state of facts or the
happening of an event or events (including pending negotiations relating to, or the consummation
of, a transaction or the occurrence of any event or events which in the opinion of GS Group might
require additional disclosure of material non-public information by GS Group in the Registration
Statement or the prospectus (the “Prospectus”) included in the Registration Statement or in any
amendment or supplement thereto) which in the opinion of counsel to GS Group might, if not
disclosed in the Registration Statement, reasonably result in (y) the Registration Statement, any
amendment thereto, or any document incorporated therein by reference containing an untrue statement
of a material fact or omitting to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, or (z) the Prospectus, any amendment or supplement
thereto, or any document incorporated therein by reference containing an untrue statement of
material fact or omitting to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not misleading, or (D) GS Group
determines in good faith that the continued effectiveness of the Registration Statement would
materially interfere with any material financing, distribution of securities, acquisition,
corporate reorganization or merger or other transaction involving GS Group or any of its
subsidiaries; provided that (notwithstanding anything in Section 4(c) hereof to the contrary) GS
Group will not be required to provide the Participating Limited Partners with any details or
information as to, or even indicate that there has occurred, any such facts or events referred to
in clauses (A) to (D) above. (References in this Agreement to a fact or event described in this
Section 3 mean a fact or event of the kind described in clause (A), (B), (C) or (D) above.) In
addition, GS Group shall be entitled to terminate the Registration Statement, with no further
obligation to provide for registration of any securities, if it determines that, due to any change
in any applicable law or regulation (or any official interpretation or application thereof by any
court or agency), maintaining the Registration Statement would be materially burdensome to GS
Group.
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4. Covenants. Subject to Section 3 hereof, GS Group covenants and agrees as follows:
(a) Following the effective date of the Registration Statement, GS Group will prepare and file
with the SEC as soon as reasonably practicable such amendments to the Registration Statement or
supplements to the Prospectus as may be reasonably necessary to permit the distribution of the
Registrable Securities during the Effective Period;
(b) GS Group will furnish to the Participating Limited Partners copies of the Registration
Statement or the Prospectus (as it may then be amended or supplemented) as may be reasonably
requested in order to facilitate the offering and disposition of the Registrable Securities and to
permit such persons to satisfy the prospectus delivery requirements of the Securities Act during
the Effective Period; and GS Group hereby consents to the use of the Prospectus (as it may then be
amended or supplemented) by each of the Participating Limited Partners in connection with the
offering and sale of the Registrable Securities covered by the Prospectus (as so amended or
supplemented) thereto during the Effective Period;
(c) GS Group will use its reasonable efforts to notify the Participating Limited Partners
promptly of the occurrence during the Effective Period of any fact or event described in Section 3
hereof (provided that GS Group need not give such notice if it has exercised its right under
Section 3 hereof, if it has already taken any action required under Section 4(e) below or if no
such action is required);
(d) Prior to any public offering of Registrable Securities, GS Group will use its reasonable
efforts to (1) if necessary, register or qualify the Registrable Securities covered by the
Registration Statement for offer and sale under the securities or “Blue Sky” laws of such
jurisdictions within the United States during the Effective Period as any Participating Limited
Partner reasonably shall request and (2) keep such registrations or qualifications in effect and
comply with such laws so as to permit the continuance of offers, sales and dealings therein in such
jurisdictions for so long as may be necessary to enable any such Participating Limited Partner to
complete its distribution of Registrable Securities during the Effective Period; provided, however,
that GS Group shall not be required for any such purpose to subject itself to taxation in any such
jurisdiction, qualify as a foreign corporation or register as a broker or dealer in any
jurisdiction wherein it would not otherwise be required to qualify or register but for the
requirements of this clause (d) or consent to general service of process in any such jurisdiction;
(e) As soon as reasonably practicable after the occurrence of any fact or event of the kind
described in Section 3 hereof, GS Group will prepare an amendment to the Registration Statement or
a supplement to the Prospectus, any prospectus supplement, or any document incorporated therein by
reference or file any other required document so that, as thereafter delivered to the purchasers of
Registrable Securities and during the Effective Period, the Prospectus will not contain an untrue
statement of a material fact or omit to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not misleading; provided,
however, that if the fact or event no longer exists, GS Group shall not be required to prepare and
file any such amendment, supplement or document; and
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provided further, however, that if there continues to exist a state of facts or an event of
the kind described in Section 3 hereof and which in the opinion of counsel to GS Group might
reasonably result in the effects contemplated by clause (y) or (z) of such Section 3 and which in
the opinion of GS Group might require the disclosure of material, non-public information by GS
Group, then for so long as such fact or event continues to exist, GS Group may continue to exercise
its right under Section 3 hereof and shall not be required to prepare and file any such amendment,
supplement or document pursuant to the terms of this Agreement;
(f) GS Group will use its best efforts to obtain the withdrawal of any order suspending the
effectiveness of the Registration Statement during the Effective Period; and
(g) During the Effective Period, GS Group will use its reasonable efforts to cause the shares
of its common stock constituting Registrable Securities covered by the Registration Statement to
qualify for listing on the New York Stock Exchange, Inc. (“NYSE”) or, if the common stock is not
then listed on the NYSE, to list such shares on the principal securities exchange on which
outstanding common stock of GS Group is then listed, if any.
5. Discontinuance of Disposition. Each Participating Limited Partner agrees that,
upon receipt of any notice from GS Group that GS Group has exercised its right under Section 3
hereof, such Participating Limited Partner will forthwith discontinue disposition of Registrable
Securities pursuant to the Registration Statement until such Participating Limited Partner’s
receipt of copies of the amendment, supplement or document contemplated by Section 4(e) hereof, or
until it is advised in writing by GS Group that the use of the Prospectus may be resumed, and, if
so directed by GS Group, such Participating Limited Partner will deliver to GS Group (at GS Group’s
expense) all copies, other than permanent file copies, of the Prospectus then in such Participating
Limited Partner’s (or agents thereof) possession, including any amendment or supplement thereto,
covering such Registrable Securities at the time of receipt of such notice.
6. Expenses. GS Group or an affiliate thereof shall pay the following expenses in
connection with the Registration Statement: (i) the fees, disbursements and expenses of GS Group’s
(or any controlled affiliate’s) counsel(s) (United States and foreign) and accountants in
connection with the registration of the Registrable Securities to be disposed of under the
Securities Act and all other expenses in connection with the preparation, printing and filing of
the Registration Statement, any preliminary prospectus or final Prospectus, any amendments and
supplements thereto and the mailing and delivering of copies thereof to the purchasers of the
Registrable Securities; (ii) the cost of printing or producing any Blue Sky or legal investment
memoranda, any selling agreements and any other documents approved by GS Group in connection with
the offering, sale or delivery of the Registrable Securities to be disposed of; (iii) all expenses
in connection with the qualification of the Registrable Securities to be disposed of for offering
and sale under state securities laws, including the fees and disbursements of one counsel selected
by GS Group in connection with any Blue Sky and legal investment surveys; (iv) the filing fees
incident to, and the fees and disbursements of one counsel selected by GS Group in connection with,
securing any required review by the National Association of Securities Dealers, Inc. of the terms
of the sale of the Registrable Securities to be disposed of; and (v) all fees and
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expenses incurred in connection with the listing of the Registrable Securities on the NYSE, or
the listing of such shares on any other securities exchange, pursuant to Section 4(g) hereof. The
Participating Limited Partners shall pay their own expenses (including all counsel fees), except
that GS Group, in its sole discretion, may pay the fees and expenses of one, but not more than one,
counsel retained by the Participating Limited Partners and approved by GS Group. Without limiting
the generality of the prior sentence, the Participating Limited Partners that are the holders of
the Registrable Securities to be sold pursuant to the Registration Statement shall pay all agency
fees and commissions, underwriting discounts and commissions, and stock transfer taxes attributable
to the sale of their Registrable Securities.
7. Indemnification and Contribution.
(a) Indemnification by GS Group. In connection with any registration of Registrable
Securities under the Securities Act, GS Group shall, and it hereby agrees to, indemnify and hold
harmless each Participating Limited Partner and each underwriter, selling agent or other securities
professional, if any, that participates in the disposition of Registrable Securities as provided
herein, and each of their respective officers and directors and each person who controls such
Participating Limited Partner, underwriter, selling agent or other securities professional within
the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of
1934 (the “Exchange Act”) (each such person being sometimes referred to as an “Indemnified
Person”), against any losses, claims, damages or liabilities, joint or several, to which such
Indemnified Person may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement under which such Registrable Securities are registered under the Securities
Act, or any preliminary prospectus or Prospectus contained therein or furnished by GS Group to any
Indemnified Person, or any amendment or supplement thereto, or arise out of or are based upon 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, and GS Group hereby agrees to reimburse
such Indemnified Person for any legal or other expenses reasonably incurred by them in connection
with investigating or defending any such action or claim; provided, however, that GS Group shall
not be liable to any such Indemnified Person in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in the Registration Statement or preliminary
prospectus or Prospectus, or amendment or supplement thereto, in reliance upon and in conformity
with written information furnished to GS Group by such Indemnified Person expressly for use
therein; provided further, however, that the foregoing indemnity agreement with respect to any
preliminary prospectus, Prospectus or amendment or supplement thereto shall not inure to the
benefit of any Indemnified Person from whom the person asserting any such losses, claims, damages
or liabilities purchased Registrable Securities, or any person controlling such Indemnified Person,
if a copy of the Prospectus (as then amended or supplemented if GS Group shall have furnished any
amendments or supplements thereto) was not sent or given by or on behalf of such Indemnified Person
to such person, if required by law so to have been delivered, at or prior to the written
confirmation of the sale of the Registrable Securities to such person, and if the Prospectus (as so
amended or supplemented) would have cured the defect giving rise to such loss, claim, damage or
liability. Notwithstanding
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the foregoing, GS Group may request any underwriter, selling agent or other securities
professional that participates in the disposition of Registrable Securities to provide GS Group
with an undertaking, reasonably satisfactory to GS Group, to the effect provided in Section 7(b)
hereof, and to comply with Sections 7(c), (d), (e) and (f) hereof as applicable, and if GS Group
requests such an undertaking from any such person, GS Group shall have no obligation to provide
indemnification, reimbursement or contribution to such person (or to any of its officers, directors
or control persons) under this Section 7 unless GS Group has received such undertaking.
(b) Indemnification by the Participating Limited Partners. Each Participating Limited
Partner that participates in the disposition of Registrable Securities, and each underwriter,
selling agent or other securities professional from whom GS Group requests an undertaking pursuant
to the last sentence of Section 7(a) hereof, severally and not jointly, agrees to (i) indemnify and
hold harmless GS Group, its directors and officers who sign the Registration Statement and each
person, if any, who controls GS Group within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act, against any losses, claims, damages or liabilities to which GS
Group or such other persons may become subject, under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, or any preliminary prospectus or Prospectus contained therein or furnished
by GS Group to any such Participating Limited Partner, underwriter, selling agent or other
securities professional, or any amendment or supplement thereto, or arise out of or are based upon
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, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information furnished in writing to GS
Group by such Participating Limited Partner, underwriter, selling agent or other securities
professional, as applicable, expressly for use therein, and (ii) reimburse GS Group for any legal
or other expenses reasonably incurred by GS Group in connection with investigating or defending any
such action or claim.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against an indemnifying party under this Section
7, notify such indemnifying party in writing of the commencement thereof; but the omission so to
notify the indemnifying party shall not relieve it from any liability which it may have to any
indemnified party otherwise than under paragraph (a) or (b). In case any such action shall be
brought against any indemnified party and it shall notify an indemnifying party of the commencement
thereof, such indemnifying party shall be entitled to participate therein and, to the extent that
it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party, and, after notice from the
indemnifying party to such indemnified party of its election so to assume the defense thereof, such
indemnifying party shall not be liable to such indemnified party under this Section 7 for any legal
expenses of other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable costs of
investigation. 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
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respect to, any pending or threatened action or claim in respect of which indemnification or
contribution may be sought under this Section 7 (whether or not the indemnified party is an actual
or potential party to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability arising out of such
action or claim and (ii) 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.
(d) Contribution. If for any reason the indemnification provided for in this Section
7 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to reflect the relative fault of the
indemnifying party and the indemnified party in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as
any other relevant equitable considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by such indemnifying party or by such indemnified party, and
the parties’ relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The indemnifying parties and the indemnified parties agree
that it would not be just and equitable if contribution pursuant to this Section 7(d) were
determined by pro rata allocation (even if the Participating Limited Partners or any underwriters,
selling agents or other securities professionals or all of them were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the equitable
considerations referred to in this Section 7(d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above shall be deemed to include any legal or other fees or expenses reasonably
incurred by such indemnified party in connection with investigating or defending any such action or
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. The obligations of the Participating Limited Partners and any
underwriters, selling agents or other securities professionals under this Section 7(d) to
contribute shall be several in proportion to the amount of Registrable Securities registered or
underwritten, as the case may be, by them and not joint.
(e) Limitation on Liability. Notwithstanding any other provision of this Section 7,
in no event will any (i) Participating Limited Partner be required to undertake liability to any
person under this Section 7 for any amounts in excess of the dollar amount of the proceeds received
by such Participating Limited Partner from the sale of such Participating Limited Partner’s
Registrable Securities (after deducting any fees, discounts and commissions applicable thereto)
pursuant to the Registration Statement and (ii) underwriter, selling agent or other securities
professional be required to undertake liability to any person hereunder for any amounts in excess
of the amount by which the sales price of the Registrable Securities which they participated in
selling exceeds any amount of damages such underwriter, selling agent or securities professional
has otherwise
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been required to pay as a result of such untrue or alleged untrue statement or omission or alleged
omission.
(f) Remedies Not Exclusive. The obligations of GS Group under this Section 7 shall be
in addition to any liability which GS Group may otherwise have to any Indemnified Person and the
obligations of any Indemnified Person under this Section 7 shall be in addition to any liability
which such Indemnified Person may otherwise have to GS Group. The remedies provided in this
Section 7 are not exclusive and shall not limit any rights or remedies which may otherwise be
available to an indemnified party at law or in equity.
8. Governing Law; Arbitration.
(a) THIS INSTRUMENT SHALL BE GOVERNED BY AND BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW.
(b) Any dispute, controversy or claim arising out of or relating to provisions of this
Agreement shall be finally settled by arbitration in New York City before, and in accordance with
the rules then applying of, the NYSE, or if the NYSE declines to arbitrate the matter or the matter
is not otherwise arbitrable before it, the American Arbitration Association (“AAA”) in accordance
with the commercial arbitration rules of the AAA.
9. Registered Address; Notices. All notices and other communications hereunder shall
be in writing and shall be mailed by first class mail, postage prepaid, addressed (a) if to the
Participating Limited Partners, at their addresses as set forth in the records of the Fund, or at
such other address as a Participating Limited Partner shall furnish to GS Group in writing, (b) if
to the Fund, at c/o Goldman, Xxxxx & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
General Counsel, or (c) if to GS Group, at 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
General Counsel, or at such other address as GS Group shall have furnished to the Participating
Limited Partners in writing.
10. Parties in Interest. Subject to execution of a counterpart hereto as set forth in
Section 2 hereof, each Participating Limited Partner shall be entitled to receive the benefits of
this Agreement and shall be bound by the terms and provisions of this Agreement. All the terms and
provisions of this Agreement shall be binding upon, shall inure to the benefit of and shall be
enforceable by, but only by, GS Group, the Fund, the Participating Limited Partners and the
respective successors and assigns of GS Group and any Participating Limited Partner. Rights and
obligations hereunder of any Participating Limited Partner may not be assigned or otherwise
transferred to any other person without the prior written consent of GS Group, which may be
withheld in its sole discretion and, if granted, may be conditioned, among other things, on such
transferee’s agreement to be bound by the provisions hereof.
11. Survival. The respective indemnities, agreements, representations, warranties and
each other provision set forth in this Agreement or made pursuant hereto
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shall remain in full force and effect regardless of any investigation (or statement as to the
results thereof) made by or on behalf of any Participating Limited Partner, any director, officer,
partner or trustee of such Participating Limited Partner, any underwriter, agent or other
securities professional or any director, officer or partner thereof, or any controlling person of
any of the foregoing, and shall survive the transfer of the Registrable Securities by such
Participating Limited Partner.
12. Amendments and Waivers. This Agreement may be amended and the observance of any
term of this Agreement may be waived (either generally or in a particular instance and either
retroactively or prospectively) by a written instrument duly executed by GS Group and the Fund. In
the case of any amendment or waiver that materially and adversely affects the rights of a
Participating Limited Partner, such amendment or waiver must be approved by the Participating
Limited Partners holding not less than a majority of the shares of Registrable Stock held by the
materially and adversely affected Participating Limited Partners, except that the approval of each
materially and adversely affected Participating Limited Partner must be obtained with respect to
any amendment to, or waiver of, the indemnification or contribution provisions of this Agreement in
order for such amendment to be applicable to such Participating Limited Partner.
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IN WITNESS WHEREOF, GS Group and the Fund have executed and delivered this Agreement as of the
date first above written.
| THE XXXXXXX SACHS GROUP, INC. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| XXXXXXX XXXXX 00 XXXXXXXX XXXXX XXXX, X.X. | ||||||
| By: | Xxxxxxx Sachs 00 Xxxxxxxx Xxxxx Advisors, L.L.C., its general partner |
|||||
| By: | The Xxxxxxx Xxxxx Group, Inc., its sole member |
|||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
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