AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT by and among the Persons listed on Schedule A hereto under the heading GSCP MEMBERS, the Persons listed on Schedule A hereto under the heading MCJ MEMBERS, the Persons listed on Schedule A hereto...
Exhibit 10.21.1
Execution Copy
AMENDED AND RESTATED
by and among
the Persons listed on Schedule A hereto under the heading GSCP MEMBERS,
the Persons listed on Schedule A hereto under the heading MCJ MEMBERS,
the Persons listed on Schedule A hereto under the heading RM MEMBERS,
and
PVF HOLDINGS LLC
Dated as of October 31, 2007
TABLE OF CONTENTS
| Page | ||||
1. Certain Definitions |
2 | |||
2. Registration Rights |
5 | |||
2.1. Demand Registrations |
5 | |||
2.2. Piggyback Registrations |
7 | |||
2.3. Allocation of Securities Included in Registration Statement |
9 | |||
2.4. Registration Procedures |
11 | |||
2.5. Registration Expenses |
17 | |||
2.6. Certain Limitations on Registration Rights |
17 | |||
2.7. Limitations on Sale or Distribution of Other Securities |
18 | |||
2.8. No Required Sale |
19 | |||
2.9. Indemnification |
19 | |||
3. Underwritten Offerings |
22 | |||
3.1. Requested Underwritten Offerings |
22 | |||
3.2. Piggyback Underwritten Offerings |
23 | |||
4. General |
23 | |||
4.1. Adjustments Affecting Registrable Securities |
23 | |||
4.2. Rule 144 and Rule 144A |
24 | |||
4.3. Nominees for Beneficial Owners |
24 | |||
4.4. Amendments and Waivers |
24 | |||
4.5. Notices |
25 | |||
4.6. Successors and Assigns |
26 | |||
4.7. Entire Agreement |
26 | |||
4.8. Governing Law; Submission to Jurisdiction; Waiver of Jury Trial |
27 | |||
4.9. Interpretation; Construction |
27 | |||
4.10. Counterparts |
28 | |||
4.11. Severability |
28 | |||
4.12. Specific Performance |
28 | |||
4.13. Further Assurances |
28 | |||
This AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT is made as of October 31, 2007, by and
among PVF Holdings LLC, a Delaware limited liability company (“PVF Holding” or the
“Company”) (f/k/a McJ Holding LLC), the Persons listed on Schedule A hereto under the
heading GSCP Members (the “GSCP Members”), the Persons listed on Schedule A hereto under
the heading McJ Members (the “McJ Members”) and the Persons listed on Schedule A hereto
under the heading RM Members (the “RM Members”) and the Persons listed from time to time as
a “Holder” on Schedule A hereto.
W I T N E S S E T H:
WHEREAS, on December 4, 2006, XxXxxxxx Red Man Corporation, a West Virginia corporation
(“MRM”) (f/k/a XxXxxxxx Corporation), XxXxxxxx Red Man Holding Corporation (f/k/a McJ
Holding Corporation), a Delaware corporation and a wholly-owned subsidiary of PVF Holding
(“Parent”) (f/k/a McJ Holding Corporation), and Hg Acquisition Corp., a West Virginia
corporation and a wholly-owned subsidiary of Parent (“Merger Sub”), entered into an
Agreement and Plan of Merger pursuant to which, on January 31, 2007, Merger Sub merged with and
into MRM with MRM surviving the merger (as amended from time to time, the “Merger
Agreement”).
WHEREAS the GSCP Members and the McJ Members entered into a limited liability company
operating agreement with respect to their interests in PVF Holding, on December 4, 2006 (the
“Original LLC Agreement”);
WHEREAS, in connection with entering into the Original LLC Agreement, PVF Holding agreed to
provide the GSCP Members and the McJ Members the registration rights set forth in a registration
rights agreement dated December 4, 2006 (the “Original Agreement”);
WHEREAS, on July 6, 2007, Red Man Pipe & Supply Co., an Oklahoma corporation (“Red
Man”), West Oklahoma PVF Company (“West Oklahoma”) (a newly formed wholly owned
subsidiary of MRM), the Company (for purposes of Sections 2.3(c) and 10.4 thereof only) and the
holders of 100% of the outstanding shares of common stock of Red Man (“Red Man Shares”) executed a
stock purchase agreement (the “RM Purchase Agreement”) pursuant to which, on the date
hereof, West Oklahoma acquired all of the Red Man Shares for cash (other than shares of Red Man
acquired by the Company in exchange for common units of the Company) (the “Red Man
Transaction”);
WHEREAS, pursuant to a Certificate of Amendment to the Certificate of Formation filed with the
Secretary of State of the State of Delaware on the date hereof, the name of the Company was changed
from “McJ Holding LLC” to “PVF Holdings LLC”;
WHEREAS on the date hereof the appropriate parties have amended and restated the terms of the
Original LLC Agreement (the “LLC Agreement”);
WHEREAS, in connection with entering into the Red Man Transaction and amending and restating
the LLC Agreement, PVF Holding and GS Capital Partners V Fund, L.P. agreed to add the RM Members to
this Agreement as “Holders”, with the same rights and obligations as the McJ Members hereunder; and
WHEREAS the amendments to the Original Agreement as reflected in this agreement were approved
in accordance with Section 4.4 of the Original Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual covenants and obligations
hereinafter set forth, the parties hereto hereby agree as follows:
1. Certain Definitions. As used herein, the following terms shall have the following
meanings:
“Additional Piggyback Rights” has the meaning set forth in Section 2.2(b).
“Affiliate” means, with respect to any Person, any other Person controlling,
controlled by or under common control with such particular Person, where “control” means the
possession, directly or indirectly, of the power to direct the management and policies of a Person
whether through the ownership of voting securities, contract or otherwise; provided,
however, that, for purposes hereof, neither the Company nor any Person controlled by the
Company shall be deemed to be an Affiliate of any Holder.
“Agreement” means this Registration Rights Agreement, as this agreement may be
amended, modified, supplemented or restated from time to time after the date hereof.
“automatic shelf registration statement” has the meaning set forth in Section 2.4.
“Board” means the Board of Directors of the Company.
“Business Day” shall mean any day ending at 11:59 p.m. (Eastern Time) other than a
Saturday or Sunday or a day on which banks are required or authorized to close in the City of New
York.
“Claims” has the meaning set forth in Section 2.9(a).
“Common Equity” means the common equity securities of the Company 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, such shares of common stock of the Company pursuant to a merger,
consolidation, stock split, stock dividend or recapitalization of the Company or otherwise.
“Common Equity Equivalents” means all options, warrants and other securities
convertible into, or exchangeable or exercisable for (at any time or upon the occurrence of any
event or contingency and without regard to any vesting or other conditions to which such securities
may be subject) shares of Common Equity or other equity securities of the Company (including,
without limitation, any note or debt security convertible into or exchangeable for Common Equity or
other equity securities of the Company).
“Company” means PVF Holding, any Subsidiary of PVF Holding and any successor to PVF
Holding or any Subsidiary of PVF Holding.
“Demand Exercise Notice” has the meaning set forth in Section 2.1(a)(i).
“Demand Registration” has the meaning set forth in Section 2.1(a)(i).
“Demand Registration Request” has the meaning set forth in Section 2.1(a)(i).
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Expenses” means any and all fees and expenses incident to the Company’s performance
of or compliance with Article 2, including, without limitation: (i) SEC, stock exchange or
NASD registration and filing fees and all listing fees and fees with respect to the inclusion of
securities on the New York Stock Exchange or on any other securities market on which the Common
Equity is listed or quoted, (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 outside “blue sky” counsel, (iii) printing and
copying expenses, (iv) messenger and delivery expenses, (v) expenses incurred in
connection with any road show, (vi) fees and disbursements of counsel for the Company,
(vii) with respect to each registration, the fees and disbursements of one counsel for the
Participating Holder(s) (selected by the Majority Participating Holders), (viii) fees and
disbursements of all independent public accountants (including the expenses of any audit and/or
“cold comfort” letter and updates thereof) and fees and expenses of other Persons, including
special experts, retained by the Company, (ix) fees and expenses payable to a Qualified
Independent Underwriter, (x) any other fees and disbursements of underwriters, if any,
customarily paid by issuers or sellers of securities and (xi) expenses for securities law
liability insurance and, if any, rating agency fees.
“GSCP Members” has the meaning set forth in the preamble.
“Holder” or “Holders” means the GSCP Members, the McJ Members, the RM Members,
any Person who is a party to this Agreement or any transferee of Registrable Securities to whom any
Person who is a party to this Agreement shall assign or transfer any rights hereunder,
provided that such transferee has agreed in writing to be bound by this Agreement in
respect of such Registrable Securities.
“Initiating Holder(s)” has the meaning set forth in Section 2.1(a)(i).
“IPO” means the first underwritten public offering of the common stock of the Company
to the general public pursuant to a registration statement filed with the SEC.
“Litigation” means any action, proceeding or investigation in any court or before any
governmental authority.
“LLC Agreement” has the meaning set forth in the recitals.
“Majority Participating Holders” means Participating Holders holding more than 50% of
the Registrable Securities proposed to be included in any offering of Registrable Securities by
such Participating Holders pursuant to Section 2.1 or Section 2.2.
“Manager” has the meaning set forth in Section 2.1(c).
“McJ Members” means the McJ Members and any other subsequent Holder who
becomes an McJ Member pursuant to the terms of this Agreement and the LLC Agreement.
“Merger Agreement” has the meaning set forth in the recitals.
“Merger Sub” has the meaning set forth in the recitals.
“MRM” has the meaning set forth in the recitals.
“NASD” means the National Association of Securities Dealers, Inc.
“Original Agreement” has the meaning set forth in the recitals.
“Original LLC Agreement” has the meaning set forth in the recitals.
“Parent” has the meaning set forth in the recitals.
“Participating Holders” means all Holders of Registrable Securities which are proposed
to be included in any offering of Registrable Securities pursuant to Section 2.1 or Section 2.2.
“Partner Distribution” has the meaning set forth in Section 2.1(a)(iii).
“Person” means any individual, corporation (including not-for-profit), general or
limited partnership, limited liability company, joint venture, estate, trust, association,
organization, governmental entity or agency or other entity of any kind or nature.
“Piggyback Shares” has the meaning set forth in Section 2.3(a)(iii).
“Postponement Period” has the meaning set forth in Section 2.1(b).
“PVF Holding” has the meaning set forth in the preamble.
“Qualified Independent Underwriter” means a “qualified independent underwriter” within
the meaning of NASD Conduct Rule 2720.
“Red Man” has the meaning set forth in the Recitals.
“Red Man Shares” has the meaning set forth in the Recitals.
“Red Man Transaction” has the meaning set forth in the Recitals.
“Registrable Securities” means (a) any shares of Common Equity held by the
Holders at any time (including those held as a result of the conversion or exercise of Common
Equity Equivalents) and (b) any shares of Common Equity issued or issuable, directly or
indirectly in exchange for or with respect to the Common Equity referenced in clause (a) above by
way of stock dividend, stock split or combination of shares or in connection with a
reclassification, recapitalization, merger, share exchange, consolidation or other reorganization.
As to any particular Registrable Securities, such securities shall cease to be Registrable
Securities when (A) 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 (B) such securities shall have been sold (other
than in a privately negotiated sale) in compliance with the requirements of Rule 144 under the
Securities Act, as such Rule 144 may be amended (or any successor provision thereto).
“RM Members” means the RM Members, and any other subsequent Holder who becomes an RM
Member pursuant to the terms of this Agreement and the LLC Agreement.
“RM Purchase Agreement” has the meaning set forth in the Recitals.
“Rule 144” and “Rule 144A” have the meaning set forth in Section 4.2.
“SEC” means the Securities and Exchange Commission.
“Section 2.3(a) Sale Number” has the meaning set forth in Section 2.3(a).
“Section 2.3(b) Sale Number” has the meaning set forth in Section 2.3(b).
“Section 2.3(c) Sale Number” has the meaning set forth in Section 2.3(c).
“Securities Act” means the Securities Act of 1933, as amended.
“Subsidiary” means any direct or indirect subsidiary of PVF Holding on the date hereof
and any direct or indirect subsidiary of the Company organized or acquired after the date hereof
“Valid Business Reason” has the meaning set forth in Section 2.1(b).
“West Oklahoma” has the meaning set forth in the Recitals.
“WKSI” has the meaning set forth in Section 2.4.
2. Registration Rights.
2.1. Demand Registrations.
(a) (i) Subject to Sections 2.1(b) and 2.3, at any time and from time to time after the
closing of the IPO, any GSCP Member shall have the right to require the Company to file one or more
registration statements under the Securities Act covering all or any part of its and its Affiliates
Registrable Securities by delivering a written request therefor to the Company specifying the
number of Registrable Securities to be included in such registration and the intended method of
distribution thereof. Any such request by any GSCP Member pursuant to this Section 2.1(a)(i) is
referred to herein as a “Demand Registration Request,” and the registration so requested is
referred to herein as a “Demand Registration” (with respect to any Demand Registration, the
GSCP Member(s) making such demand for registration being referred to as the “Initiating
Holder(s)”). As promptly as practicable, but no later than five (5) Business Days after
receipt of a Demand Registration Request, the Company shall give written notice (the “Demand
Exercise Notice”) of such Demand Registration Request to all Holders of record of Registrable
Securities.
(ii) The Company, subject to Sections 2.3 and 2.6, shall include in a Demand Registration
(x) the Registrable Securities of the Initiating Holders and (y) the Registrable
Securities of any other Holder of Registrable Securities, which shall have made a written request
to the Company for inclusion in such registration pursuant to Section 2.2 (which request shall
specify the maximum number of Registrable Securities intended to be disposed of by such
Participating Holder) within thirty (30) days after the receipt of the Demand Exercise Notice (or
fifteen (15) days if, at the request of the Initiating Holders, 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 a Form S-3).
(iii) The Company shall, as expeditiously as possible, but subject to Section 2.1(b), use its
reasonable 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 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, including a distribution to, and resale by,
the members or partners of a Holder (a “Partner Distribution”) and (y) if requested
by the GSCP Members, obtain acceleration of the effective date of the registration statement
relating to such registration.
(iv) Notwithstanding anything contained herein to the contrary, the Company shall, at the
request of any Holder seeking to effect a Partner Distribution, file any prospectus supplement or
post-effective amendments and to otherwise take any action necessary to include therein all
disclosure and language deemed necessary or advisable by such Holder if such disclosure or language
was not included in the initial registration statement, or revise such disclosure or language if
deemed necessary or advisable by such Holder, to effect such Partner Distribution.
(b) Notwithstanding anything to the contrary in Section 2.1(a), the Demand Registration rights
granted in Section 2.1(a) are subject to the following limitations: (i) the Company shall
not be required to cause a registration pursuant to Section 2.1(a)(i) to be declared effective
within a period of one hundred and eighty (180) days after the effective date of any other
registration statement of the Company filed pursuant to the Securities Act; (ii) the
Company shall not be required to effect more than five (5) Demand Registrations for the GSCP
Members (it being understood that if a single Demand Registration Request is delivered by more than
one GSCP Member, the registration requested by such Demand Registration Request shall constitute
only one Demand Registration); and (iii) if the Board, in its good faith judgment,
determines that any registration of Registrable Securities should not be made or continued because
it would materially interfere with any material financing, acquisition, corporate reorganization or
merger or other transaction or event involving the Company or any of its subsidiaries (a “Valid
Business Reason”), then (x) the Company may postpone filing a registration statement
relating to a Demand Registration Request until five (5) Business Days after such Valid Business
Reason no longer exists, but in no event for more than three (3) months after the date the Board
determines a Valid Business Reason exists and (y) in case a registration statement has been
filed relating to 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 until five (5) Business Days after such Valid
Business Reason no longer exists, but in no event for more than three (3) months after the date the
Board determines a Valid Business Reason exists (such period of postponement or withdrawal under
this clause (iii), the “Postponement Period”); 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; provided, however, the Company shall not be permitted to
postpone or withdraw a registration statement after the expiration of any Postponement Period until
nine (9) months after the expiration of such Postponement Period.
If the Company shall give any notice of postponement or withdrawal of any registration
statement pursuant to clause (iii) above, the Company shall not, during the period of postponement
or withdrawal, register any Common Equity, 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 determined
to withdraw any registration statement pursuant to clause (iii) 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)(i) (whether pursuant to clause (iii) above or as a result of any stop order, injunction or
other order or requirement of the SEC or any other governmental agency or court), the Company shall
not be considered to have effected an effective registration for the purposes of this Agreement
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, not later than five (5)
Business Days after the Valid Business Reason that caused such withdrawal or postponement no longer
exists (but in no event later than three (3) months after the date of the postponement or
withdrawal), use its reasonable 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 Initiating Holders 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 Agreement), and such registration shall not be withdrawn or postponed pursuant
to clause (iii) of Section 2.1(b) above.
(c) In connection with any Demand Registration, the Company shall have the right to designate
the lead managing underwriter (any lead managing underwriter for the purposes of this Agreement,
the “Manager”) in connection with such registration and each other managing underwriter for
such registration; provided that in each case, each such underwriter is reasonably
satisfactory to the GSCP Members.
2.2. Piggyback Registrations.
(a) If, at any time after the IPO, the Company proposes or is required (pursuant to Section
2.1 or otherwise) to register any of its equity securities under the Securities Act (other than
pursuant to registrations on Form S-4 or Form S-8 or any similar successor forms thereto), the
Company shall give prompt written notice (in any event within five (5) Business Days after receipt
of notice of any exercise of demand registration rights by any Person) of its intention to do so to
each of the Holders of record of Registrable Securities. Upon the written request of any such
Holder, made within twenty (20) 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(c), 2.3 and 2.6 hereof, use its reasonable 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, including, if necessary,
by filing with the SEC a post-effective amendment or a supplement to the registration statement
filed by the Company or the prospectus related thereto pursuant to a Form 8-K. There is no
limitation on the number of such piggyback registrations pursuant to the preceding sentence which
the Company is obligated to effect. No registration of Registrable Securities effected under this
Section 2.2(a) shall relieve the Company of its obligations to effect Demand Registrations under
Section 2.1 hereof.
(b) The Company, subject to Sections 2.3 and 2.6, may elect to include in any registration
statement and offering pursuant to demand registration rights by any Person, (i) authorized
but unissued shares of Common Equity or shares of Common Equity held by the Company as treasury
shares and (ii) any other shares of Common Equity which are requested to be included in
such registration pursuant to the exercise of piggyback registration rights granted by the Company
after the date hereof and which are not inconsistent with the rights granted in, or otherwise
conflict with the terms of, this Agreement (“Additional Piggyback Rights”);
provided, however, 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,
entered into by the Initiating Holders.
(c) 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, without prejudice, however, to the
rights of Holders under Section 2.1, and (ii) in the 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.
(d) 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 longer have
any right to include Registrable Securities in the registration as to which such withdrawal was
made.
(e) Notwithstanding anything contained herein to the contrary, the Company shall, at the
request of any Holder (including to effect a Partner Distribution), file any prospectus supplement
or post-effective amendments and otherwise take any action necessary to include therein all
disclosure and language deemed necessary or advisable by such Holder if such disclosure or language
was not included in the initial registration statement, or revise such disclosure or language if
deemed necessary or advisable by such Holder.
2.3. Allocation of Securities Included in Registration Statement.
(a) If any requested registration made pursuant to Section 2.1 involves an underwritten
offering and the Manager of such offering shall advise the Company that, in its view, the number of
securities requested to be included in such registration by the Holders of Registrable Securities,
the Company or any other Persons exercising Additional Piggyback Rights exceeds the largest number
(the “Section 2.3(a) Sale Number”) that can be sold in an orderly manner in such
registration within a price range acceptable to the Majority Participating Holders, the Company
shall use its reasonable best efforts to include in such registration:
(i) first, all Registrable Securities requested to be included in such registration by the
Holders thereof (including pursuant to the exercise of piggyback rights pursuant the Section 2.2);
provided, however, that if the number of such Registrable Securities exceeds the
Section 2.3(a) Sale Number, the number of such Registrable Securities (not to exceed the Section
2.3(a) Sale Number) to be included in such registration shall be allocated 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 such Holder requesting inclusion in
relation to the number of Registrable Securities owned by all Holders requesting inclusion;
(ii) second, to the extent that the number of Registrable Securities to be included pursuant
to clause (i) of this Section 2.3(a) is less than the Section 2.3(a) Sale Number, any securities
that the Company proposes to register, up to the Section 2.3(a) Sale Number; and
(iii) third, to the extent that the number of Registrable Securities to be included pursuant
to clauses (i) and (ii) of this Section 2.3(a) is less than the Section 2.3(a) Sale Number, the
remaining Registrable Securities to be included in such registration shall be allocated on a pro
rata basis among all Persons requesting that securities be included in such registration pursuant
to the exercise of Additional Piggyback Rights (“Piggyback Shares”), based on the aggregate
number of Piggyback Shares then owned by each Person requesting inclusion in relation to the
aggregate number of Piggyback Shares owned by all Persons requesting inclusion, up to the Section
2.3(a) Sale Number.
Notwithstanding anything in this Section 2.3(a) to the contrary, no employee shareholder of
the Company will be entitled to include Registrable Securities in a registration requested by the
GSCP Members pursuant to Section 2.1 to the extent the Manager of such
offering shall determine in good faith that the participation of such employee shareholder
would adversely affect the marketability of the securities being sold by the Initiating Holder(s)
in such registration.
(b) If any registration made pursuant to Section 2.2 involves an underwritten primary offering
on behalf of the Company after the date hereof and the Manager (as selected by the Company) shall
advise the Company that, in its view, the number of securities requested to be included in such
registration exceeds the number (the “Section 2.3(b) 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) first, all equity securities that the Company proposes to register for its own account;
(ii) second, to the extent that the number of Registrable Securities to be included pursuant
to clause (i) of this Section 2.3(b) is less than the Section 2.3(b) Sale Number, the remaining
Registrable Securities to be included in such registration shall be allocated on a pro rata basis
among all Holders requesting that Registrable Securities be included in such registration pursuant
to the exercise of piggyback rights pursuant to Section 2.2, based on the aggregate number of
Registrable Securities then owned by each such Holder requesting inclusion in relation to the
aggregate number of Registrable Securities owned by all Holders requesting inclusion, up to the
Section 2.3(b) Sale Number; and
(iii) third, to the extent that the number of Registrable Securities to be included pursuant
to clauses (i) and (ii) of this Section 2.3(b) is less than the Section 2.3(b) Sale Number, the
remaining Registrable Securities to be included in such registration shall be allocated on a pro
rata basis among all Persons requesting that securities be included in such registration pursuant
to the exercise of Additional Piggyback Rights, based on the aggregate number of Piggyback Shares
then owned by each Person requesting inclusion in relation to the aggregate number of Piggyback
Shares owned by all Persons requesting inclusion, up to the Section 2.3(b) Sale Number.
(c) If any registration pursuant to Section 2.2 involves an underwritten offering that was
initially requested by any Person(s) other than a Holder to whom the Company has granted
registration rights which are not inconsistent with the rights granted in, or otherwise conflict
with the terms of, this Agreement and the Manager (as selected by the Company or such other Person)
shall advise the Company that, in its view, the number of securities requested to be included in
such registration exceeds the number (the “Section 2.3(c) 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) first, the shares requested to be included in such registration shall be allocated on a
pro rata basis among such Person(s) requesting the registration and all Holders requesting that
Registrable Securities be included in such registration pursuant to the exercise of piggyback
rights pursuant to Section 2.2, based on the aggregate number of securities or Registrable
Securities, as applicable, then owned by each of the foregoing requesting inclusion in
relation to the aggregate number of securities or Registrable Securities, as applicable, owned
by all such Holders and Persons requesting inclusion, up to the Section 2.3(c) Sale Number;
(ii) second, to the extent that the number of Registrable Securities to be included pursuant
to clause (i) of this Section 2.3(c) is less than the Section 2.3(c) Sale Number, the remaining
shares to be included in such registration shall be allocated on a pro rata basis among all Persons
requesting that securities be included in such registration pursuant to the exercise of Additional
Piggyback Rights, based on the aggregate number of Piggyback Shares then owned by each Person
requesting inclusion in relation to the aggregate number of Piggyback Shares owned by all Persons
requesting inclusion, up to the Section 2.3(c) Sale Number; and
(iii) third, to the extent that the number of securities to be included pursuant to clauses
(i) and (ii) of this Section 2.3(c) is less than the Section 2.3(c) Sale Number, the remaining
shares to be included in such registration shall be allocated to shares the Company proposes to
register for its own account, up to the Section 2.3(c) Sale Number.
(d) If, as a result of the proration provisions set forth in clauses (a), (b) or (c) of this
Section 2.3, any Holder shall not be entitled to include all Registrable Securities in a
registration that such Holder has requested be included, such Holder may elect to withdraw such
Holder’s 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 or reduction shall be irrevocable and, after making such withdrawal or reduction, such
Holder shall no longer have any right to include Registrable Securities in the registration as to
which such withdrawal or reduction was made to the extent of the Registrable Securities so
withdrawn or reduced.
2.4. Registration Procedures. If and whenever the Company is required by the
provisions of this Agreement to use its reasonable 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 (but, in any event, within sixty (60) days after a Demand
Registration Request in the case of Section 2.4(a) below):
(a) prepare and file with the SEC a registration statement on an appropriate registration form
of the SEC for the disposition of such Registrable Securities in accordance with the intended
method of disposition thereof (including, without limitation, a Partner Distribution), which
registration 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 registration form and include all financial statements
required by the SEC to be filed therewith, and the Company shall use its reasonable best efforts to
cause such registration statement to become effective and remain continuously effective for such
period as any Participating Holder pursuant to such registration statement shall request
(provided, however, that before filing a registration statement or prospectus or
any amendments or supplements thereto, or comparable statements under securities or state “blue
sky” laws of any jurisdiction, or any free writing prospectus related thereto, the Company will
furnish to one
counsel for the Holders participating in the planned offering (selected by the Majority
Participating Holders) and to one counsel for the Manager, if any, copies of all such documents
proposed to be filed (including all exhibits thereto), which documents will be subject to the
reasonable review and reasonable comment of such counsel, and the Company shall not file any
registration statement or amendment thereto, any prospectus or supplement thereto or any free
writing prospectus related thereto to which the Majority Participating Holders or the underwriters,
if any, shall reasonably object);
(b) (i) prepare and file with the SEC such amendments and supplements to such
registration statement and the prospectus used in connection therewith as may be necessary to keep
such registration statement continuously effective for such period as any Participating Holder
pursuant to such registration statement shall 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 and (ii) provide notice to such
sellers of Registrable Securities and the Manager, if any, of the Company’s reasonable
determination that a post-effective amendment to a registration statement would be appropriate;
(c) furnish, without charge, to each Participating Holder 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), the
prospectus included in such registration statement (including each preliminary prospectus and any
summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, each
free writing prospectus utilized in connection therewith, in each case, 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 supplement thereto) or free writing
prospectus by each such Participating Holder 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 reasonable best efforts to register or qualify the Registrable Securities covered
by such registration statement under such other securities or state “blue sky” laws of such
jurisdictions as any sellers of Registrable Securities or any managing underwriter, if any, shall
reasonably request in writing, 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 (including keeping such registration or
qualification in effect for so long as such registration statement remains in effect), 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 Participating Holder and each managing underwriter, if any:
(i) when the registration statement, any pre-effective amendment, the prospectus or any
prospectus supplement related thereto, any post-effective amendment to the registration
statement or any free writing prospectus 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 SEC 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 SEC 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 state “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 or any amendment thereto, the prospectus related
thereto or any supplement thereto, any document incorporated therein by reference, any free writing
prospectus or the information conveyed to any purchaser at the time of sale to such purchaser
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 any underwriting agreement, securities
sale agreement, or other similar agreement, relating to the offering shall 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 (and continue to comply) with all applicable rules and regulations of the SEC
(including, without limitation, maintaining disclosure controls and procedures (as defined in
Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange
Act Rule 13a-15(f)) in accordance with the Exchange Act), 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 forty-five (45) days, or ninety (90) days if it is a fiscal
year, after the end of such twelve month period described hereafter), an earnings statement (which
need not be audited) covering the period of at least twelve (12) 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) (A) 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 (B) if no similar securities are then so
listed, to either cause all such Registrable Securities to be listed on a national securities
exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market
“national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or,
failing that, secure Nasdaq National Market 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
registration of at least two market makers as such with respect to such shares with the NASD,
and (ii) comply (and continue to comply) with the requirements of any self-regulatory
organization applicable to the Company, including without limitation all corporate governance
requirements;
(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 Majority Participating Holders or the underwriters shall
reasonably request in order to expedite or facilitate the disposition of such Registrable
Securities (it being understood that the Holders of the Registrable Securities which are to be
distributed by any underwriters shall be parties to any 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);
(j) use its reasonable best efforts (i) to obtain an opinion from the Company’s
counsel and a “cold comfort” letter and updates thereof from the Company’s independent public
accountants who have certified the Company’s financial statements included or incorporated by
reference in such registration statement, in each case, in customary form and covering such matters
as are customarily covered by such opinions and “cold comfort” letters (including, in the case of
such “cold comfort” letter, events subsequent to the date of such financial statements) delivered
to underwriters in underwritten public offerings, which opinion and letter shall be dated the dates
such opinions and “cold comfort” letters are customarily dated and otherwise reasonably
satisfactory to the underwriters, if any, and to the Majority Participating Holders, and
(ii) 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 counsel for each Participating Holder and to each managing
underwriter, if any, copies of all correspondence between the SEC and the Company, its counsel or
auditors and all memoranda relating to discussions with the SEC or its staff with respect to the
registration statement, and, upon receipt of such confidentiality agreements as the Company may
reasonably request, make reasonably available for inspection by counsel for each Participating
Holder, by counsel for any underwriter, participating in any disposition to be effected pursuant to
such registration statement and by any accountant or other agent retained by any Participating
Holder 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 counsel for a Participating
Holder, counsel for an underwriter, accountant or agent in connection with such registration
statement;
(l) use its reasonable best efforts to obtain the prompt withdrawal of any order suspending
the effectiveness of the registration statement, or the prompt lifting of any suspension of the
qualification of any of the Registrable Securities for sale in any jurisdiction;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date
of the registration statement;
(n) use its reasonable best efforts to make available its employees and personnel for
participation in “road shows” and other marketing efforts 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 marketing the Registrable Securities in any underwritten
offering;
(o) 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),
and prior to the filing of any free writing prospectus, provide copies of such document to counsel
for each Participating Holder and to each managing underwriter, if any, and make the Company’s
representatives reasonably available for discussion of such document and make such changes in such
document concerning the Participating Holders prior to the filing thereof as counsel for the
Participating Holders or underwriters may reasonably request;
(p) furnish to counsel for each Participating Holder and to each managing underwriter, without
charge, at least one signed copy of the registration statement and any post-effective amendments or
supplements thereto, including financial statements and schedules, all documents incorporated
therein by reference, the prospectus contained in such registration statement (including each
preliminary prospectus and any summary prospectus), any other prospectus filed under Rule 424 under
the Securities Act and all exhibits (including those incorporated by reference) and any free
writing prospectus utilized in connection therewith;
(q) cooperate with the Participating Holders 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 at least three (3) Business Days prior to any sale of Registrable Securities to the
underwriters or, if not an underwritten offering, in accordance with the instructions of the
Participating Holders at least three (3) Business Days prior to any sale of Registrable Securities
and instruct any transfer agent and registrar of Registrable Securities to release any stop
transfer orders in respect thereof;
(r) take no direct or indirect action prohibited by Regulation M under the Exchange Act;
provided, however, that to the extent that any prohibition is applicable to the
Company, the Company will take such action as is necessary and feasible to make any such
prohibition inapplicable;
(s) use its reasonable best efforts to cause the Registrable Securities covered by the
applicable registration statement to be registered with or approved by such other governmental
agencies or authorities as may be necessary to enable the Participating Holders or the
underwriters, if any, to consummate the disposition of such Registrable Securities;
(t) take all such other commercially reasonable actions as are necessary or advisable in order
to expedite or facilitate the disposition of such Registrable Securities;
(u) take all reasonable action to ensure that any free writing prospectus utilized in
connection with any registration covered by Section 2.1 or 2.2 complies in all material respects
with the Securities Act, is filed in accordance with the Securities Act to the extent required
thereby, is retained in accordance with the Securities Act to the extent required thereby and, when
taken together with the related prospectus, will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and
(v) in connection with any underwritten offering, if at any time the information conveyed to a
purchaser at the time of sale includes any untrue statement of a material fact or omits to state
any material fact necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading, promptly file with the SEC such amendments or
supplements to such information as may be necessary so that the statements as so amended or
supplemented will not, in light of the circumstances, be misleading.
To the extent the Company is a well-known seasoned issuer (as defined in Rule 405 under the
Securities Act) (a “WKSI”) at the time any Demand Registration Request is submitted to the
Company, and such Demand Registration Request requests that the Company file an automatic shelf
registration statement (as defined in Rule 405 under the Securities Act) (an “automatic shelf
registration statement”) on Form S-3, the Company shall file an automatic shelf registration
statement which covers those Registrable Securities which are requested to be registered. The
Company shall use its commercially reasonable best efforts to remain a WKSI (and not become an
ineligible issuer (as defined in Rule 405 under the Securities Act)) during the period during which
such automatic shelf registration statement is required to remain effective. If the Company does
not pay the filing fee covering the Registrable Securities at the time the automatic shelf
registration statement is filed, the Company agrees to pay such fee at such time or times as the
Registrable Securities are to be sold. If the automatic shelf registration statement has been
outstanding for at least three (3) years, at the end of the third year the Company shall refile a
new automatic shelf registration statement covering the Registrable Securities. If at any time
when the Company is required to re-evaluate its WKSI status the Company determines that it is not a
WKSI, the Company shall use its commercially reasonable best efforts to refile the shelf
registration statement on Form S-3 and, if such form is not available, Form S-1 and keep such
registration statement effective during the period during which such registration statement is
required to be kept effective.
If the Company files any shelf registration statement for the benefit of the holders of any of
its securities other than the Holders, the Company agrees that it shall include in such
registration statement such disclosures as may be required by Rule 430B under the Securities Act
(referring to the unnamed selling security holders in a generic manner by identifying the initial
offering of the securities to the Holders) in order to ensure that the Holders may be added to such
shelf registration statement at a later time through the filing of a prospectus supplement rather
than a post-effective amendment.
The Company may require as a condition precedent to the Company’s obligations under this
Section 2.4 that each Participating Holder 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 is necessary for the Company to consummate such registration and 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 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 Participating Holder
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 state “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.
(a) The Company shall pay all Expenses with respect to any registration of Registrable
Securities pursuant to Article 2, whether or not a registration statement becomes effective.
(b) 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 state “blue
sky” laws of each state in which the offering is made and (y) in connection with any
registration hereunder, each Participating Holder shall pay all underwriting discounts and
commissions and any transfer taxes, if any, attributable to the sale of such Registrable
Securities, pro rata with respect to payments of discounts and commissions in accordance with the
number of shares sold in the offering by such Participating Holder.
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 securities to be included in such registration shall be subject to such
underwriting agreement and no Person may participate in such registration unless such Person
(i) agrees to sell such Person’s securities on the basis provided therein and completes and
executes all reasonable questionnaires, and other documents (including custody agreements and
powers of attorney) which must be executed in connection therewith; provided,
however, that all such documents shall be consistent with the provisions hereof and
(ii) provides such other information to the Company or the underwriter as may be necessary
to register such Person’s securities.
2.7. Limitations on Sale or Distribution of Other Securities.
(a) Each Holder agrees, (i) to the extent requested in writing by a managing
underwriter, if any, of any registration effected pursuant to Section 2.1, not to sell, transfer or
otherwise dispose of, including any sale pursuant to Rule 144 under the Securities Act, any Common
Equity, or any other equity security of the Company or 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 ninety (90) days or such shorter period as the Company or any executive
officer or director of the Company shall agree to (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 such managing underwriter) or Form S-8, or
any successor or similar form which is (x) then in effect or (y) shall become
effective upon the conversion, exchange or exercise of any then outstanding Common Equity
Equivalent), to use its reasonable best efforts to cause each holder of any equity security or 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), and
(ii) to the extent requested in writing by a managing underwriter of any underwritten
public offering effected by the Company for its own account, not to sell any Common Equity (other
than as part of such underwritten public offering) during the time period reasonably requested by
the managing underwriter, which period shall not exceed ninety (90) days or such shorter period as
the Company or any executive officer or director of the Company shall agree to.
(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 sell, transfer, or otherwise dispose of, any Common
Equity, or any other equity security of the Company or any security convertible into or
exchangeable or exercisable for any equity security of the Company (other than as part of such
underwritten public offering, a registration on Form S-4 or Form S-8 or any successor or similar
form which is (x) then in effect or (y) shall become effective upon the conversion,
exchange or exercise of any then outstanding Common Equity Equivalent), until a period of ninety
(90) days shall have elapsed from the effective date of such previous registration; and the Company
shall (i) so provide in any registration rights agreements hereafter entered into with
respect to any of its securities and (ii) use its reasonable best efforts to cause each
holder of any equity security or 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 to so agree.
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 agrees to, and hereby does, indemnify and
hold harmless, to the fullest extent permitted by law, each Participating Holder, its directors,
officers, fiduciaries, employees, stockholders, members or general and limited partners (and the
directors, officers, fiduciaries, employees, stockholders, members or general and limited partners
thereof), each other Person who participates as a seller (and its directors, officers, fiduciaries,
employees, stockholders, members or general and limited partners), underwriter or Qualified
Independent Underwriter, if any, in the offering or sale of such securities, each officer,
director, employee, stockholder, fiduciary, managing director, agent, affiliate, consultant,
representative, successor, assign or partner of such underwriter or Qualified Independent
Underwriter, and each other Person, if any, who controls such seller or any such underwriter or
Qualified Independent Underwriter within the meaning of the Securities Act, from and against any
and all losses, claims, damages or liabilities, joint or several, actions or proceedings (whether
commenced or threatened) 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 in respect thereof (collectively, “Claims”), insofar as such Claims 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 any free writing prospectus utilized in connection therewith, 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 untrue statement or alleged untrue statement
of a material fact in the information conveyed by the Company to any purchaser at the time of the
sale to such purchaser, or the omission or alleged omission to state therein a material fact
required to be stated therein, or (iv) 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 incurred;
provided, however, that the Company shall not be liable to any such indemnified
party in any such case to the extent such Claim 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 or free writing 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 Participating Holder (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, stockholders, fiduciaries, managing directors,
agents, affiliates, consultants, representatives, successors, assigns or 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, or any free writing prospectus utilized in connection therewith,
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 Participating Holder or underwriter or Qualified Independent Underwriter, if any,
specifically for use therein and reimburse such indemnified party for any legal or other expenses
reasonably incurred in connection with investigating or defending any such Claim as such expenses
are incurred; provided, however, that the aggregate amount which any such
Participating Holder shall be required to pay pursuant to this Section 2.9(b) and Sections 2.9(c)
and (e) shall in no case be greater than the amount of the net proceeds received by such
Participating Holder upon the sale of the Registrable Securities pursuant to the registration
statement giving rise to such Claim. The Company and each Participating Holder hereby acknowledge
and agree that, unless otherwise expressly agreed to in writing by such Participating Holders to
the contrary, for all purposes of this Agreement, the only information furnished or to be furnished
to the Company for use in any such registration statement, preliminary, final or summary prospectus
or amendment or supplement thereto or any free writing prospectus are statements specifically
relating to (a) the beneficial ownership of shares of Common Equity by such Participating
Holder and its Affiliates and (b) the name and address of such Participating Holder. If
any additional information about such Holder or the plan of distribution (other than for an
underwritten offering) is required by law to be disclosed in any such document, then such Holder
shall not unreasonably withhold its agreement referred to in the immediately preceding sentence.
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 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 Participating
Holder with respect to any required registration or other qualification of securities under any
applicable securities and state “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 and actually 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, 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 investigation; provided, however, that
(i) if the indemnifying party fails to take reasonable steps necessary to defend diligently
the action or proceeding within twenty (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 or equitable defenses
available to such indemnified party which are not available to the indemnifying party or which may
conflict with those available to another indemnified party with respect to such Claim; 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 made a conclusion described in clause (ii) or
(iii) above) 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, unenforceable or is insufficient
to hold harmless an indemnified party under Sections 2.9(a), (b) or (c), then each applicable
indemnifying party shall contribute to the amount paid or payable to such indemnified party as a
result of any Claim in such proportion as is appropriate to reflect the relative fault of the
indemnifying party, on the one hand, and the indemnified party, on the other hand, with respect to
such Claim. 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. If, however, the allocation
provided in the second preceding sentence is not permitted by applicable law, 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 faults but also the relative
benefits of the indemnifying party and the indemnified party as well as any other relevant
equitable considerations. The parties hereto agree that it would not be just and equitable if any
contribution 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 greater than the amount of the net proceeds received by such indemnifying
party upon the sale of the Registrable Securities pursuant to the registration statement giving
rise to such Claim, less the amount of any indemnification payment made by such indemnifying party
pursuant to Sections 2.9(b) and (c).
(f) The indemnity and contribution 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; provided,
however, that the recipient thereof hereby undertakes to repay such payments if and to the
extent it shall be determined by a court of competent jurisdiction that such recipient is not
entitled to such payment hereunder.
3. Underwritten Offerings.
3.1. Requested Underwritten Offerings. If requested by the underwriters for any
underwritten offering 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 (i) be satisfactory in form and substance to the Majority Participating Holders,
(ii) contain terms not inconsistent with the provisions of this Agreement and (iii)
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 on substantially the same terms as
those contained herein. Any Participating Holder 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 Participating 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 Participating Holder; provided,
however, that the Company shall not be required to make any representations or warranties
with respect to written information specifically provided by a Participating Holder for inclusion
in the registration statement. Each such Participating Holder shall not be required to make any
representations or warranties to or agreements with the Company or the underwriters other than
representations, warranties or agreements regarding such Participating Holder, its ownership of and
title to the Registrable Securities, any written information specifically provided by such
Participating Holder for inclusion in the registration statement and its intended method of
distribution; and any liability of such Participating Holder to any underwriter or other Person
under such underwriting agreement shall be limited to liability arising from breach of its
representations and warranties and shall in no case be greater than the amount of the net proceeds
received by such Holder upon the sale of the Registrable Securities pursuant to the registration
statement.
3.2. Piggyback Underwritten Offerings. In the case of a registration pursuant to
Section 2.2, if the Company shall have determined to enter into an underwriting agreement in
connection therewith, all of the Participating Holders’ Registrable Securities to be included in
such registration shall be subject to such underwriting agreement. Any Participating Holder 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 Participating 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 Participating Holder; provided, however, that
the Company shall not be required to make any representations or warranties with respect to written
information specifically provided by a Participating Holder for inclusion in the registration
statement. Each such Participating Holder shall not be required to make any representations or
warranties to or agreements with the Company or the underwriters other than representations,
warranties or agreements regarding such Participating Holder, its ownership of and title to the
Registrable Securities, any written information specifically provided by such Participating Holder
for inclusion in the registration statement and its intended method of distribution; and any
liability of such Participating Holder to any underwriter or other Person under such underwriting
agreement shall be limited to liability arising from breach of its representations and warranties
and shall in no case be greater than the amount of the net proceeds received by such Participating
Holder upon the sale of the Registrable Securities pursuant to the registration statement.
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 of Common Equity which would
adversely affect the ability of any 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 of Common Equity if in the reasonable
judgment of (a) the GSCP Members or (b) the managing underwriter for the offering
in respect of such Demand Registration Request, such subdivision would enhance the marketability of
the Registrable Securities. Each Holder agrees to vote all of its shares of capital stock in a
manner, and to take all other actions necessary, to permit the Company to carry out the intent of
the preceding sentence including, without limitation, voting in favor of an amendment
to the Company’s organizational documents in order to increase the number of authorized shares
of capital stock of the Company. In any event, the provisions of this Agreement shall apply, to
the full extent set forth herein with respect to the Registrable Securities, to any and all shares
of capital stock of the Company or any successor or assign of the Company (whether by merger, share
exchange, consolidation, sale of assets or otherwise) which may be issued in respect of, in
exchange for or in substitution of, Registrable Securities and shall be appropriately adjusted for
any stock dividends, splits, reverse splits, combinations, recapitalizations and the like occurring
after the date hereof.
4.2. Rule 144 and Rule 144A. 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 Equity or Common Equity
Equivalents, the Company covenants that (i) so long as it remains subject to the reporting
provisions of the Exchange Act, 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, as such Rule may be amended (“Rule 144”)) or, if the Company is not
required to file such reports, it will, upon the request of any Holder, make publicly available
other information so long as necessary to permit sales by such Holder under Rule 144, Rule 144A
under the Securities Act, as such Rule may be amended (“Rule 144A”), or any similar rules
or regulations hereafter adopted by the SEC, and (ii) it will take such further action as
any Holder may reasonably request, all to the extent required from time to time to enable such
Holder to sell Registrable Securities without registration under the Securities Act within the
limitation of the exemptions provided by (A) Rule 144, (B) Rule 144A or (C)
any similar rule or regulation hereafter adopted by the SEC. 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. 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.
4.4. Amendments and Waivers. Any provisions of this Agreement may be amended,
modified, supplemented or waived with the written approval of Holders holding a majority of the
Registrable Securities then held by all Holders (which majority must include the GSCP Members, so
long as any GSCP Member holds any Registrable Securities); provided, however, that
(a) any amendment, modification, supplement or waiver of any of the provisions of this Agreement
that affects the McJ Members disproportionately vis-à-vis the GSCP Members and results in a
material adverse effect on the McJ Members will require the written approval of the GSCP Members
and of the McJ Members holding a majority of the Registrable Securities then held by all McJ
Members (such approval by the McJ Members not to be unreasonably withheld or delayed), and (b) any
amendment, modification, supplement or waiver of any of the provisions of this Agreement that
affects the RM Members disproportionately vis-à-vis the
GSCP Members and results in a material adverse effect on the RM Members will require the
written approval of the GSCP Members and of the RM Members holding a majority of the Registrable
Securities then held by all RM Members (such approval by the RM Members not to be unreasonably
withheld or delayed). Notwithstanding the foregoing, this Agreement may be amended, modified,
supplemented or waived with the written approval of the Company pursuant to Section 12.9 or 12.10
of the LLC Agreement. No waiver of any of the provisions of this Agreement shall be deemed to or
shall constitute a waiver of any other provision hereof (whether or not similar). No failure or
delay on the part of any party in exercising any right, power or privilege hereunder shall operate
as a waiver thereof or of any other or future exercise of any such right, power or privilege.
4.5. Notices. Any notice, request, instruction or other document to be given
hereunder by any party to the others shall be in writing and delivered personally or sent by
registered or certified mail, postage prepaid, or by facsimile to the Company or to any McJ Member
or RM Member at the address set forth below and to any subsequent holder of Units subject to this
Agreement at such address as indicated by the Company’s records, or at such address or to the
attention of such other person as the recipient party has specified by prior written notice to the
sending party. Any notice, request, instruction or other document given as provided above shall be
deemed given to the receiving party upon actual receipt, if delivered personally; three (3)
business days after deposit in the mail, if sent by registered or certified mail; upon confirmation
of successful transmission if sent by facsimile (provided that if given by facsimile such
notice, request, instruction or other document shall be followed up within one (1) business day by
dispatch pursuant to one of the other methods described herein); or on the next business day after
deposit with an overnight courier, if sent by an overnight courier:
(i) If to the Company, to:
PVF Holding
c/o GS Capital Partners V Fund, L.P.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile No. (000) 000-0000
Attention: Xxxxx Xxxxxxx
c/o GS Capital Partners V Fund, L.P.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile No. (000) 000-0000
Attention: Xxxxx Xxxxxxx
with copies to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx LLP
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
(ii) If to a McJ Member, to:
XxXxxxxx Red Man Corporation
000 Xxxxxxxxx Xxxxx
000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: X.X. Xxxxxx III
with a copy to Xxxxxxx X. Xxxxxx
Fax: (000) 000-0000
Attention: X.X. Xxxxxx III
with a copy to Xxxxxxx X. Xxxxxx
Fax: (000) 000-0000
with a copy to:
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxxxxx III
Fax: (000) 000-0000.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxxxxx III
Fax: (000) 000-0000.
(iii) If to a RM Member, to:
c/o Xxxxx Xxxxxxx
0000 Xxxx 00xx Xxxxx
Xxxxx 000
Xxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
0000 Xxxx 00xx Xxxxx
Xxxxx 000
Xxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
with a copy to:
Xxxxx Xxxxx L.L.P.
00 Xxxxxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxx X. Xxxxxxx, Esq. and Xxxx X. Leaf, Esq.
Fax: (000) 000-0000 and (000) 000-0000
Xxxxx Xxxxx L.L.P.
00 Xxxxxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxx X. Xxxxxxx, Esq. and Xxxx X. Leaf, Esq.
Fax: (000) 000-0000 and (000) 000-0000
4.6. Successors and Assigns. Except as otherwise provided herein, this Agreement
shall bind and inure to the benefit of and be enforceable by the Company and its successors and
assigns and each Holder and his, her and its respective successors, permitted assigns, heirs and
personal representatives, personal representatives and assigns of the parties hereto, whether so
expressed or not. This Agreement may not be assigned by the Company, without the prior written
consent of the GSCP Members. Each Holder shall have the right to assign all or part of its or his
rights and obligations under this Agreement only in accordance with transfers of Registrable
Securities permitted under, and made in compliance with, the LLC Agreement. Upon any such
assignment, such assignee shall have and be able to exercise and enforce all rights of the
assigning Holder which are assigned to it and, to the extent such rights are assigned, any
reference to the assigning Holder shall be treated as a reference to the assignee. The parties
hereto and their respective successors may assign their rights under this Agreement, in whole or in
part, to any purchaser of shares of Registrable Securities held by them.
4.7. Entire Agreement. This Agreement, the LLC Agreement and the other writings
referred to herein or delivered pursuant hereto which form a part hereof constitute the entire
agreement, and supersede all other prior agreements, understandings, representations and warranties
both written and oral, among the parties, with respect to the subject matter hereof.
4.8. Governing Law; Submission to Jurisdiction; Waiver of Jury Trial.
(a) THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN AND IN ALL RESPECTS SHALL BE INTERPRETED,
CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH THE LAW OF THE STATE OF DELAWARE WITHOUT REGARD TO
THE CONFLICTS OF LAW PRINCIPLES THEREOF. The parties hereby irrevocably submit to the personal
jurisdiction of the courts of the State of Delaware located in the County of New Castle and the
Federal courts of the United States of America located in the County of New Castle solely in
respect of the interpretation and enforcement of the provisions of this Agreement and of the
documents referred to in this Agreement, and in respect of the transactions contemplated hereby,
and hereby waive, and agree not to assert, as a defense in any action, suit or proceeding for the
interpretation or enforcement hereof or of any such document, that it is not subject thereto or
that such action, suit or proceeding may not be brought or is not maintainable in said courts or
that the venue thereof may not be appropriate or that this Agreement or any such document may not
be enforced in or by such courts, and the parties hereto irrevocably agree that all claims with
respect to such action or proceeding shall be heard and determined in such a Delaware State or
Federal court located in the County of New Castle. The parties hereby consent to and grant any
such court jurisdiction over the person of such parties and, to the extent permitted by law, over
the subject matter of such dispute and agree that mailing of process or other papers in connection
with any such action or proceeding in the manner provided in Section 4.5 or in such other manner as
may be permitted by law shall be valid and sufficient service thereof.
(b) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS
AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR
THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii)
EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH PARTY MAKES
THIS WAIVER VOLUNTARILY, AND (iv) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 4.8.
4.9. Interpretation; Construction
(a) The table of contents and headings herein are for convenience of reference only, do not
constitute part of this Agreement and shall not be deemed to limit or otherwise affect any of the
provisions hereof. Where a reference in this Agreement is made to a Section, such reference shall
be to a Section of this Agreement unless otherwise indicated. Whenever the words “include,”
“includes” or “including” are used in this Agreement, they shall be deemed to be followed by the
words “without limitation.”
(b) The parties have participated jointly in negotiating and drafting this Agreement. In the
event that an ambiguity or a question of intent or interpretation arises, this Agreement shall be
construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.
4.10. Counterparts. This Agreement may be executed in separate counterparts
(including by facsimile), all of which taken together shall constitute one and the same agreement.
4.11. Severability. The provisions of this Agreement shall be deemed severable and
the invalidity or unenforceability of any provision shall not affect the validity or enforceability
of the other provisions hereof. If any provision of this Agreement, or the application thereof to
any person or any circumstance, is invalid or unenforceable, (a) a suitable and equitable provision
shall be substituted therefor in order to carry out, so far as may be valid and enforceable, the
intent and purpose of such invalid or unenforceable provision and (b) the remainder of this
Agreement and the application of such provision to other persons or circumstances shall not be
affected by such invalidity or unenforceability, nor shall such invalidity or unenforceability
affect the validity or enforceability of such provision, or the application thereof, in any other
jurisdiction.
4.12. Specific Performance. The parties hereto agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not performed in accordance
with their specific terms or were otherwise breached. It is accordingly agreed that each party
hereto shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and
to enforce specifically the terms and provisions of this Agreement in the courts of the State of
Delaware located in the County of New Castle and the Federal courts of the United States of America
located in the County of New Castle, this being in addition to any other remedy to which such party
is entitled at law or in equity.
4.13. Further Assurances. 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
