REGISTRATION RIGHTS AGREEMENT
Exhibit 10.17
Execution Version
This Registration Rights Agreement (this “Agreement”) is made and entered into as of December
23, 2010, between C&J Energy Services, Inc., a Delaware corporation (together with any successor
entity thereto, the “Company”), the Existing Holders (as defined below) and FBR Capital Markets &
Co., a Delaware corporation, as the initial purchaser/placement agent (“FBR”) for the benefit of
FBR, the purchasers of the Company’s common stock, $0.01 par value per share
(“Common Stock”), as participants (“Participants”) in the private placement by the Company of
shares of its Common Stock, and the direct and indirect transferees of FBR, and each of the
Participants.
This Agreement is made pursuant to the Purchase/Placement Agreement (the
“Purchase/Placement Agreement”), dated as of December 16, 2010, between the Company and FBR in
connection with the purchase and sale or placement of an aggregate of 25,976,224 shares of Common
Stock (plus an additional 3,837,595 shares to cover additional allotments, if any). In order to
induce FBR to enter into the Purchase/Placement Agreement, the Company has agreed to provide the
registration rights provided for in this Agreement to FBR, the Participants, and their respective
direct and indirect transferees. The execution of this Agreement is a condition to the closing of
the transactions contemplated by the Purchase/Placement Agreement.
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms shall have the following meanings:
Accredited Investor Shares: Shares initially sold by the Company to “accredited investors”
(within the meaning of Rule 501(a) promulgated under the Securities Act) as Participants.
Affiliate: As to any specified Person, (i) any Person directly or indirectly owning,
controlling or holding, with power to vote, ten percent or more of the outstanding voting
securities of such other Person, (ii) any Person, ten percent or more of whose outstanding voting
securities are directly or indirectly owned, controlled or held, with power to vote, by such other
Person, (iii) any Person directly or indirectly controlling, controlled by or under common control
with such other Person, (iv) any executive officer, director, trustee or general partner of such
Person and (v) any legal entity for which such Person acts as an executive officer, director,
trustee or general partner. An indirect relationship shall include circumstances in which a
Person’s spouse, children, parents, siblings or mother, father, sister- or brother-in-law share the
same household with such Person or has the described relationship with such Person.
Agreement: As defined in the preamble.
A&R Stockholders Agreement: Amended and Restated Stockholders Agreement, dated as of December
23, 2010, by and among the Company and the Existing Holders.
Board of Directors: As defined in Section 6(a) hereof.
Business Day: With respect to any act to be performed hereunder, each Monday, Tuesday,
Wednesday, Thursday and Friday that is not a day on which banking institutions in New York, New
York or other applicable places where such act is to occur are authorized or obligated by
applicable law, regulation or executive order to close.
Closing Date: December 23, 2010 or such other time or such other date as FBR and the Company
may agree.
Commission: The Securities and Exchange Commission.
Common Stock: As defined in the preamble.
Company: As defined in the preamble.
Controlling Person: As defined in Section 7(a) hereof.
End of Suspension Notice: As defined in Section 6(b) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated by the Commission pursuant thereto.
Existing Holders: Each stockholder as defined in the A&R Stockholders Agreement.
Existing
Shares: Registrable Securities as defined in the A&R Stockholders Agreement.
FBR: As
defined in the preamble.
FINRA: The Financial Industry Regulatory Authority, formerly the National Association of
Securities Dealers, Inc.
Holder: Each record owner of any Registrable Shares from time to time, including FBR and its
Affiliates to the extent FBR or any such Affiliate holds any Registrable Shares.
Indemnified Party: As defined in Section 7(c) hereof.
Indemnifying Party: As defined in Section 7(c) hereof.
IPO Registration Statement: As defined in Section 2(b) hereof.
Issuer
Free Writing Prospectus: As defined in Section 2(c) hereof.
Liabilities:
As defined in Section 7(a) hereof.
No Objections Letter: As defined in Section 5(t) hereof.
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Nominee: As defined in Section 3(c) hereof.
Participants: As defined in the preamble.
Person: An individual, partnership, corporation, trust, limited liability company,
unincorporated organization, government or agency or political subdivision thereof, or any other
legal entity.
Proceeding: An action (including a class action), claim, suit or proceeding (including without
limitation, an investigation or partial proceeding, such as a deposition), whether commenced or, to
the knowledge of the Person subject thereto, threatened.
Prospectus: The prospectus included in any Registration Statement, including any preliminary
prospectus at the “time of sale” within the meaning of Rule 159 under the Securities Act and all
other amendments and supplements to any such prospectus, including post-effective amendments, and
all material incorporated by reference or deemed to be incorporated by reference, if any, in such
prospectus.
Purchase/Placement Agreement: As defined in the preamble.
Purchaser Indemnitee: As defined in Section 7(a) hereof.
Registrable Shares: The Rule 144A Shares, the Accredited Investor Shares, the Regulation S
Shares, upon original issuance thereof, and at all times subsequent thereto, including upon the
transfer thereof by the original holder or any subsequent holder and any shares or other securities
issued in respect of such Registrable Shares by reason of or in connection with any stock dividend,
stock distribution, stock split, purchase in any rights offering or in connection with any exchange
for or replacement of such Registrable Shares or any combination of shares, recapitalization,
merger or consolidation, or any other equity securities issued pursuant to any other pro rata
distribution with respect to the Common Stock, until, in the case of any such Rule 144A Share,
Accredited Investor Share or Regulation S Share, the earliest to occur of (i) the date on which the
resale of such share has been registered pursuant to the Securities Act and it has been disposed of
in accordance with the Registration Statement relating to it, (ii) in the event the Company is
subject to the reporting requirements of Section 13(a) or 15(d) of the Exchange Act, the date on
which it has been transferred pursuant to Rule 144 (or any similar provision then in effect) or
(iii) the date on which it is sold to the Company or ceases to be outstanding.
Registration Default: As defined in Section 2(f) hereof.
Registration Expenses: Any and all expenses incident to the performance of or compliance with
this Agreement, including, without limitation: (i) all Commission, securities exchange, and FINRA
registration, listing, inclusion and filing fees; (ii) all fees and expenses incurred in connection
with compliance with international, federal or state securities or blue sky laws (including,
without limitation, any registration, listing and filing fees and fees and disbursements of counsel
in connection with blue sky qualification of any of the Registrable Shares and the preparation of a
blue sky memorandum and compliance with the rules of FINRA); (iii) all expenses in preparing or
assisting in
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preparing, word processing, duplicating, printing, delivering and distributing any Registration
Statement, any Prospectus, any amendments or supplements thereto, any underwriting agreements,
securities sales agreements, certificates and any other documents relating to the performance under
and compliance with this Agreement; (iv) all fees and expenses incurred in connection with the
listing or inclusion of any of the Registrable Shares on any securities exchange pursuant to
Section 5(n) of this Agreement; (v) the fees and disbursements of counsel for the Company and of
the independent registered public accounting firm of the Company (including, without limitation,
the expenses of any special audit and “cold comfort” letters required by or incident to the
performance of this Agreement); (vi) reasonable fees and disbursements of Xxxxxxx Xxxxxxx &
Xxxxxxxx LLP, or one such other counsel, reasonably acceptable to the Company, for FBR and the
Holders, selected by FBR (such counsel, “Selling Holders’ Counsel”), provided that if such counsel
is prevented from representing both FBR and the Holders, separate counsel shall be provided; and
(vii) any fees and disbursements customarily paid in issues and sales of securities (including the
fees and expenses of any experts retained by the Company in connection with any Registration
Statement); provided, however, that Registration Expenses shall exclude brokers’ or underwriters’
discounts and commissions, if any, relating to the sale or disposition of Registrable Shares by a
Holder.
Registration Statement: Any registration statement of the Company that covers the resale of
Registrable Shares pursuant to the provisions of this Agreement, including the Prospectus,
amendments and supplements to such registration statement or Prospectus, including pre- and
post-effective amendments, all exhibits thereto and all material incorporated by reference or
deemed to be incorporated by reference, if any, in such registration statement.
Regulation S: Regulation S (Rules 901-905) promulgated by the Commission under the Securities
Act, as such rules may be amended from time to time, or any similar rule or regulation hereafter
adopted by the Commission as a replacement thereto having substantially the same effect as such
regulation.
Regulation S Shares: Shares initially resold by FBR pursuant to the Purchase/Placement
Agreement to “non-U.S. persons” (in accordance with Regulation S) in an “offshore transaction” (in
accordance with Regulation S).
Rule 144: Rule 144 promulgated by the Commission pursuant to the Securities Act, as such rule
may be amended from time to time, or any similar rule or regulation hereafter adopted by the
Commission as a replacement thereto having substantially the same effect as such rule.
Rule 144A: Rule 144A promulgated by the Commission pursuant to the Securities Act, as such
rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the
Commission as a replacement thereto having substantially the same effect as such rule.
Rule 144A Shares: Shares initially resold by FBR pursuant to the Purchase/Placement Agreement
to “qualified institutional buyers” (as such term is defined in Rule 144A).
Rule 158: Rule 158 promulgated by the Commission pursuant to the Securities Act, as such rule
may be amended from time to time, or any similar rule or regulation hereafter adopted by the
Commission as a replacement thereto having substantially the same effect as such rule.
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Rule 159: Rule 159 promulgated by the Commission pursuant to the Securities Act, as such rule
may be amended from time to time, or any similar rule or regulation hereafter adopted by the
Commission as a replacement thereto having substantially the same effect as such rule.
Rule 405: Rule 405 promulgated by the Commission pursuant to the Securities Act, as such rule
may be amended from time to time, or any similar rule or regulation hereafter adopted by the
Commission as a replacement thereto having substantially the same effect as such rule.
Rule 415: Rule 415 promulgated by the Commission pursuant to the Securities Act, as such rule
may be amended from time to time, or any similar rule or regulation hereafter adopted by the
Commission as a replacement thereto having substantially the same effect as such rule.
Rule 424: Rule 424 promulgated by the Commission pursuant to the Securities Act, as such rule
may be amended from time to time, or any similar rule or regulation hereafter adopted by the
Commission as a replacement thereto having substantially the same effect as such rule.
Rule 429: Rule 429 promulgated by the Commission pursuant to the Securities Act, as such rule
may be amended from time to time, or any similar rule or regulation hereafter adopted by the
Commission as a replacement thereto having substantially the same effect as such rule.
Rule 433: Rule 433 promulgated by the Commission pursuant to the Securities Act, as such rule
may be amended from time to time, or any similar rule or regulation hereafter adopted by the
Commission as a replacement thereto having substantially the same effect as such rule.
Securities Act: The Securities Act of 1933, as amended, and the rules and regulations
promulgated by the Commission thereunder.
Selling Holders’ Counsel: As defined in clause (vi) of the definition for Registration
Expenses.
Shares: The shares of Common Stock being offered and sold pursuant to the terms and conditions
of the Purchase/Placement Agreement.
Shelf Registration Statement: As defined in Section 2(a) hereof.
Special Election Meeting: As defined in Section 3(a) hereof.
Sponsor: Each of StepStone Capital Partners II Onshore, L.P., StepStone Capital Partners II
Cayman Holdings, L.P., 2006 Co-Investment Portfolio, L.P., Citigroup Capital Partners II Employee
Master Fund, L.P. and Energy Spectrum Partners IV, LP or any of their respective Affiliates,
permitted transferees, successors and assigns.
Suspension Event: As defined in Section 6(b) hereof.
Suspension Notice: As defined in Section 6(b) hereof.
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Trigger Date: As defined in Section 3(a) hereof.
Underwritten Offering: A sale of securities of the Company to an underwriter or underwriters
for re-offering to the public.
2. Registration Rights
(a) Mandatory Shelf Registration. As set forth in Section 5 hereof, the Company agrees to file
with the Commission as soon as reasonably practicable following the date of this Agreement (but in
no event later than March 31, 2011) a shelf Registration Statement on Form S-1 or such other form
under the Securities Act then available to the Company providing for the resale of any Registrable
Shares pursuant to Rule 415 from time to time by the Holders (a “Shelf Registration Statement”).
The Company shall use its commercially reasonable efforts to cause such Shelf Registration
Statement to be declared effective by the Commission as soon as practicable but in any event within
180 days after the initial filing thereof. Any Shelf Registration Statement shall provide for the
resale from time to time, and pursuant to any method or combination of methods legally available
(including, without limitation, an Underwritten Offering, a direct sale to purchasers or a sale
through brokers or agents, which may include sales over the internet) by the Holders of any and all
Registrable Shares.
(b) IPO Registration. If the Company proposes to file a registration statement on Form S-1 or
such other form under the Securities Act providing for the initial public offering of shares of
Common Stock (the “IPO Registration Statement”), the Company will notify in writing each Holder of
the filing within five (5) Business Days after the initial filing and afford each Holder an
opportunity to include in the IPO Registration Statement all or any part of the Registrable Shares
then held by such Holder. Each Holder desiring to include in the IPO Registration Statement all or
part of the Registrable Shares held by such Holder shall, within twenty (20) days after receipt of
the above-described notice from the Company, so notify the Company in writing, and in such notice
shall inform the Company of the number of Registrable Shares such Holder wishes to include in the
IPO Registration Statement. Any election by any Holder to include any Registrable Shares in the IPO
Registration Statement will not affect the inclusion of such Registrable Shares in the Shelf
Registration Statement until such Registrable Shares have been sold under the IPO Registration
Statement.
(i) Right to Terminate IPO Registration. The Company shall have the right to terminate
or withdraw the IPO Registration Statement initiated by it and referred to in this Section
2(b) prior to the effectiveness of such registration whether or not any Holder has elected
to include Registrable Shares in such registration; provided, however, the Company must
provide each Holder that elected to include any Registrable Shares in such IPO Registration
Statement prompt written notice of such termination or withdrawal. Furthermore, in the
event the IPO Registration Statement is not declared effective within one hundred eighty
(180) days following the initial filing of the IPO Registration Statement, unless a road
show for the Underwritten Offering pursuant to the IPO Registration Statement is actually
in progress at such time, the Company shall promptly provide a new written notice to all
Holders giving them another opportunity to elect to include Registrable Shares in the
pending IPO
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Registration Statement. Each Holder receiving such notice shall have the same election
rights afforded such Holder as described in clause (b) above.
(ii) Selection of Underwriter. The Company shall have the sole right to select the
managing underwriter(s) for its initial public offering, regardless of whether any
Registrable Shares are included in the IPO Registration Statement or otherwise.
(iii) Shelf Registration not Impacted by IPO Registration Statement. The
Company’s obligation to file the Shelf Registration Statement pursuant to Section 2(a)
hereof shall not be affected by the filing or effectiveness of the IPO Registration
Statement. In addition, the Company’s obligation to file and use its commercially
reasonable efforts to cause to become and keep effective the Shelf Registration Statement
pursuant to Section 2(a) hereof shall not be affected by the filing or effectiveness of an
IPO Registration Statement; provided, however, if the Company files an IPO Registration
Statement before the effective date of the Shelf Registration Statement and the Company has
used commercially reasonable efforts to pursue the completion of such initial public
offering, the Company shall have the right to defer causing the Commission to declare such
Shelf Registration Statement effective until up to 60 days after the closing date of its
initial public offering pursuant to the IPO Registration Statement.
(c) Issuer Free Writing Prospectus. The Company represents and agrees that, unless it obtains
the prior consent of Holders of a majority of the Registrable Shares that are registered under a
Registration Statement at such time or the consent of the managing underwriter in connection with
any Underwritten Offering of Registrable Shares, and each Holder represents and agrees that, unless
it obtains the prior consent of the Company and any such underwriter, it will not make any offer
relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in
Rule 433 (an
“Issuer Free Writing Prospectus”), or that would otherwise constitute a “free writing prospectus,”
as defined in Rule 405, required to be filed with the Commission.
(d) Underwriting. The Company shall advise all Holders of the lead managing underwriter for
the Underwritten Offering proposed under the IPO Registration Statement. The right of any such
Holder’s Registrable Shares to be included in the IPO Registration Statement pursuant to Section
2(b) shall be conditioned upon such Holder’s participation in such underwriting and the inclusion
of such Holder’s Registrable Shares in the underwriting to the extent provided herein. All Holders
proposing to distribute their Registrable Shares through such underwriting shall enter into an
underwriting agreement in customary form with the managing underwriter(s) selected for such
underwriting and complete and execute any questionnaires, powers of attorney, indemnities, custody
agreements, securities escrow agreements and other documents, including opinions of counsel,
reasonably required under the terms of such underwriting, and furnish to the Company such
information as the Company may reasonably request in writing for inclusion in the Registration
Statement; provided, however, that no Holder shall 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 Holder and such Holder’s intended method of distribution
and any other representation required by law or reasonably requested by the underwriters.
Notwithstanding any other provision of this Agreement, if the managing underwriter(s) determine(s)
in good faith that marketing factors require a limitation on the number of shares to be included,
then
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the managing underwriter(s) may exclude shares (including Registrable Shares) from the IPO
Registration Statement and Underwritten Offering, and any shares included in such IPO Registration
Statement and Underwritten Offering shall be allocated first, to the Company, second, to each of
the Holders requesting inclusion of their Registrable Shares in such IPO Registration Statement (on
a pro rata basis based on the total number of Registrable Shares then held by each such Holder who
is requesting inclusion), and third, to each of the Existing Holders requesting inclusion of their
Existing Shares in such IPO Registration in accordance with the terms of the A&R Stockholders
Agreement (on a pro rata basis based on the total number of Existing Shares then held by each such
Existing Holder who is requesting inclusion); provided, however, that the number of Registrable
Shares and Existing Shares to be included in the IPO Registration Statement shall not be reduced
unless all other securities of the Company held by any other holders of the Company’s capital stock
with registration rights that are inferior (with respect to such reduction) to the registration
rights of each of the Holders set forth herein and the Existing Holders set forth in the A&R
Stockholders Agreement, are first entirely excluded from the underwriting and registration;
provided, further, however, that (i) the Company shall be permitted to include shares comprising at
least 50% of the total securities included in the Underwritten Offering proposed under the IPO
Registration Statement, (ii) Holders of Registrable Shares shall be permitted to include
Registrable Shares comprising at least 25% of the total securities included in the Underwritten
Offering proposed under the IPO Registration Statement, (iii) Existing Holders of Existing Shares
shall be permitted to include Existing Shares (each as defined and in accordance with the terms of
the A&R Stockholders Agreement) comprising at least 25% of the total securities included in the
Underwritten Offering proposed under the IPO Registration Statement and (iv) in the event the
Company elects to include shares comprising less than 50% of the total securities included in the
Underwritten Offering proposed under the IPO Registration Statement, Holders and Existing Holders
shall be entitled to include additional Existing Shares and Registrable Shares, as applicable, on a
pro rata basis in the Underwritten Offering proposed under the IPO
Registration Statement.
By electing to include the Registrable Shares in the IPO Registration Statement, the Holder of
such Registrable Shares shall be deemed to have agreed not to effect any public sale or
distribution of securities of the Company of the same or similar class or classes of the securities
included in the IPO Registration Statement or any securities convertible into or exchangeable or
exercisable for such securities, including a sale pursuant to Rule 144 or Rule 144A under the
Securities Act, during such periods as reasonably requested (but in no event for a period longer
than thirty (30) days prior to and one hundred eighty (180) days following the effective date of
the IPO Registration Statement) by the representatives of the underwriters, if an Underwritten
Offering, or by the Company in any other registration, provided, however, that (a) each Holder
shall be allowed a proportionate release granted to any other Holder, director or executive
officer, as applicable (with such proportion being determined by dividing the number of shares
being released with respect to such Holder, director or executive officer, as applicable by the
total number of issued and outstanding shares held by such Holder, director or executive officer,
as applicable), (b) such restrictions shall not apply to any shares of Common Stock of the Company
bought in the open market following the effective date of the IPO Registration Statement and (c) it
shall be a condition to any Holder’s agreement to be bound by the restrictions set forth above that
all the executive officers and directors of the Company then holding shares of Common Stock of the
Company or securities convertible into or exchangeable or exercisable for shares of Common Stock of
the Company enter into agreements that are no less restrictive.
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If any Holder disapproves of the terms of any such underwriting, such Holder may elect to
withdraw therefrom by written notice to the Company and the managing underwriter(s), delivered at
least ten (10) Business Days prior to the effective date of the IPO Registration Statement. Any
Registrable Shares excluded or withdrawn from such underwriting shall be excluded and withdrawn
from the registration.
(e) Expenses. The Company shall pay all Registration Expenses in connection with the
registration of the Registrable Shares pursuant to this Agreement. Each Holder participating in a
registration pursuant to this Section 2 shall bear such Holder’s proportionate share (based on the
total number of Registrable Shares sold in such registration) of all discounts and commissions
payable to underwriters or brokers and all transfer taxes and transfer fees in connection with a
registration of Registrable Shares pursuant to this Agreement.
(f) Penalty Provisions. If the Company does not file a Registration Statement registering the
resale of the Registrable Shares by March 31, 2011, other than as a result of the Commission being
unable to accept such filings (a “Registration Default”), then each of Xxxx Xxxxxxxx and Xxxxx
XxXxxxxx, if employed by the Company and at any time is owed an annual and/or discretionary bonus
with respect to services performed in 2011, shall forfeit 50% of the amount that would otherwise be
payable to him in respect of such bonus, and shall thereafter forfeit an additional 10% of the
amount that would otherwise be payable to him in respect of such bonus for each complete calendar
month any such Registration Default continues after March 31, 2011 until the Shelf Registration
Statement is filed. The Company acknowledges and agrees that that no bonuses, compensation, awards,
equity compensation or other amounts shall be payable or granted in lieu of or to make Messrs.
Xxxxxxxx and XxXxxxxx whole for any such forfeited bonuses and that this Section 2(f) provides the
exclusive remedy in respect of any Registration Default. For the avoidance of doubt, the Company
acknowledges and agrees that the bonus forfeiture provisions set forth in this Section 2(f) shall
not apply to the bonus relating to the effectiveness of such Registration Statement that may be
payable pursuant to Section 3.3(d) of each of Xxxx Xxxxxxxx’x and Xxxxx XxXxxxxx’x employment
agreements with the Company.
3. Special Election Meeting.
(a) If a Registration Statement registering the resale of the Registrable Shares has not been
declared effective by the Commission, and the Registrable Shares have not been listed for trading
on a national securities exchange, on a date that is 180 days following the filing of a
Registration Statement (the “Trigger Date”), a special meeting of stockholders (the “Special
Election Meeting”) shall be called in accordance with the Bylaws of the Company. The Special
Election Meeting shall occur as soon as possible following the Trigger Date but in no event more
than thirty (30) days after the Trigger Date.
(b) Purposes of Meeting. The Special Election Meeting called in accordance with the by-laws of
the Company shall be called solely for the purposes of: (i) considering and voting upon proposals
to remove each then-serving director of the Company; and (ii) electing such number of directors as
there are then vacancies on the Board of Directors of the Company (including any
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vacancies created by the removal of any director pursuant to this Section 3(b)). The removal of any
director pursuant to Section 3(b)(i) hereof shall require the affirmative vote of holders of a
majority of all outstanding Registrable Shares, provided, however, that Registrable Shares that are
owned, directly or indirectly, by an “executive officer” (as defined in Rule 405 of the Securities
Act) of the Company shall not be deemed to be outstanding, and, if such affirmative vote is
obtained, shall be effective immediately upon the receipt of the final report of the Inspector of
Elections for the Special Election Meeting that reports the receipt of the requisite vote to
approve the proposal to remove such director. Notwithstanding the foregoing, for so long as either
Sponsor has the right to appoint a director to the Company’s board of directors pursuant to the
terms of the A&R Stockholders Agreement, any such director appointed by such Sponsor shall not be
subject to removal at the Special Election Meeting, provided, however, that for long as such
Sponsor has such right to appoint a director under the A&R Stockholders Agreement, each Sponsor
agrees that it shall, subject to Section 3(c) below, be deemed to vote all Common Stock over which
such person has voting control, whether now owned or acquired hereafter, in proportion to the votes
of the Holders of Registrable Shares in such Special Election Meeting. Notwithstanding the
foregoing provisions of this Section 3(b), the Special Election Meeting need not be called or held
if the Holders of at least two-thirds of the outstanding Registrable Shares waive (at a duly called
meeting or by written consent) such requirement; provided however, that Registrable Shares that are
owned, directly or indirectly, by an “executive officer” (as defined in Rule 405 of the Securities
Act) of the Company shall not be deemed to be outstanding.
(c) Proxy. To secure the Sponsors’ obligations to vote the Common Stock owned by them in
accordance with this Agreement, each Sponsor hereby appoints the Secretary of the Company, or his
or her designees, as such Sponsor’s true and lawful proxy and attorney, with the power to act alone
and with full power of substitution, to vote all of such Sponsor’s Common Stock as set forth in
Section 3(b) of this Agreement and to execute all appropriate instruments consistent with this
Agreement on behalf of such Sponsor if, and only if, such Sponsor fails to vote such Sponsor’s
Common Stock or fails to execute such other instruments in accordance with the provisions of this
Agreement within five (5) days of the Company’s or any other party’s written request for such
Sponsor’s written consent or signature. The proxy and power granted by each Sponsor pursuant to
this Section 3(g) are coupled with an interest and are given to secure the performance of such
party’s duties under this Agreement. Each such proxy and power will be irrevocable for the term
hereof. The proxy and power, so long as any party hereto is an individual, will survive the death,
incompetency and disability of such party or any other individual holder of the Sponsor’s Common
Stock and, so long as any party hereto is an entity, will survive the merger or reorganization of
such party or any other entity holding any Common Stock previously held by an Sponsor. Such proxy
shall terminate as to a Sponsor without any further action upon the earlier of (i) such Sponsor’s
failure to be able to have the right to appoint a director to the Company’s board of directors
under the A&R Stockholders Agreement (it being understood that any termination of such proxy with
respect to a Sponsor shall not be effective with respect to any other Sponsor until the termination
of such Sponsor’s right to appoint a director has occurred as described in this clause (i)) or (ii)
the effective date of the Registration Statement registering the resale of the Registrable Shares.
(d) Nominations. Nominations of individuals for election to the Board of Directors of the
Company at the Special Election Meeting may only be made (i) by or at the direction of the Board of
Directors or (ii) upon receipt by the Company of written notice of Holders entitled to cast, or
direct the casting of, not less than 20% of all the votes entitled to be cast at the Special
Election Meeting and
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containing the information specified by Section 3(d) hereof. Each individual whose nomination is
made in accordance with this Section 3(c) is hereinafter referred to as a “Nominee.”
(e) Procedure for Stockholder Nominations. For nominations of individuals for election to the
Board of Directors to be properly brought before the Special Election Meeting by Holders pursuant
to Section 3(c) hereof, the Holders must have given notice thereof in writing to the Secretary of
the Company not later than 5:00 p.m., Eastern Time, on the 10th day after the Trigger
Date. Such notice shall include each such proposed Nominee’s written consent to serve as a
director, if elected, and shall specify:
(i) as to each proposed Nominee, the name, age, business address and residence address
of such proposed Nominee and all other information relating to such proposed Nominee that
would be required, pursuant to Regulation 14A promulgated under the Exchange Act (or any
successor provision), to be disclosed in a contested solicitation of proxies with respect
to the election of such individual as a director; and
(ii) as to each Holder giving the notice, the class, series and number of all shares
of capital stock of the Company that are owned by such Holder, beneficially or of record.
(f) Notice. Not less than fifteen (15) nor more than twenty-five (25) days before the Special
Election Meeting, the Secretary of the Company shall give to each stockholder entitled to vote at,
or to receive notice of, such meeting at such stockholder’s address as it appears in the share
transfer records of the Company, notice in writing setting forth (i) the time and place of the
Special Election Meeting, (ii) the purposes for which the Special Election Meeting has been called
and (iii) the name of each Nominee.
(g) This Section 3 shall be incorporated into the Company’s by-laws.
4. Rules 144 and 144A Reporting
With a view to making available the benefits of certain rules and regulations of the
Commission that may at any time permit the resale of the Registrable Shares to the public without
registration, the Company agrees to:
(a) make and keep current public information available, as those terms are understood and
defined in Rule 144 under the Securities Act, at all times after the effective date of the first
registration statement under the Securities Act filed by the Company for an offering of its
securities to the general public;
(b) to file with the Commission in a timely manner all reports and other documents required to
be filed by the Company under the Securities Act and the Exchange Act (at any time after it has
become subject to such reporting requirements);
(c) so long as a Holder owns any Registrable Shares, if the Company is not required to file
reports and other documents under the Securities Act and the Exchange Act, it will make available
other information as required by, and so long as necessary to permit sales of Registrable Shares
- 11 -
pursuant to, Rule 144 or Rule 144A, and in any event shall make available (either by mailing a copy
thereof, by posting on the Company’s website, or by press release) to each Holder a copy of:
(i) the Company’s annual consolidated financial statements (including at least balance
sheets, statements of profit and loss, statements of stockholders’ equity and statements of
cash flows) prepared in accordance with U.S. generally accepted accounting principles in
the United States, accompanied by an audit report of the Company’s independent accountants,
no later than ninety (90) days after the end of each fiscal year of the Company; and
(ii) the Company’s unaudited quarterly financial statements (including at least
balance sheets, statements of profit and loss, statements of stockholders’ equity and
statements of cash flows) prepared in a manner consistent with the preparation of the
Company’s annual financial statements, no later than forty-five (45) days after the end of
each of the first three fiscal quarters of the Company;
(d) hold, a reasonable time after the availability of such financial statements and upon
reasonable notice to the Holders and FBR (either by mail, by posting on the Company’s website, or
by press release), a quarterly investor conference call to discuss such financial statements, which
call will also include an opportunity for the Holders to ask questions of management with regard to
such financial statements, and will also cooperate with, and make management reasonably available
to, FBR personnel in connection with making Company information available to investors; and
(e) so long as a Holder owns any Registrable Shares, to furnish to the Holder promptly upon
request (i) a written statement by the Company as to its compliance with the reporting requirements
of Rule 144 (at any time after ninety (90) days after the effective date of the first registration
statement filed by the Company for an offering of its securities to the general public), and of the
Securities Act and the Exchange Act (at any time after its has become subject to the reporting
requirements of the Exchange Act), (ii) a copy of the most recent annual or quarterly report of the
Company, and (iii) such other reports and documents of the Company, and take such further actions,
as a Holder may reasonably request in availing itself of any rule or regulation of the Commission
allowing a Holder to sell any such Registrable Shares without registration.
5. Registration Procedures
In connection with the obligations of the Company with respect to any registration pursuant to
this Agreement, the Company shall use its commercially reasonable efforts to effect or cause to be
effected the registration of the Registrable Shares under the Securities Act to permit the sale of
such Registrable Shares by the Holder or Holders in accordance with the Holder’s or Holders’
intended method or methods of distribution, and the Company shall:
(a) notify FBR and Selling Holders’ Counsel, in writing, at least ten (10) Business Days prior
to filing a Registration Statement, of its intention to file a Registration Statement with the
Commission and, at least five (5) Business Days prior to filing, provide a copy of the Registration
Statement to FBR, its counsel and Selling Holders’ Counsel for review and comment; prepare and file
with the Commission, as specified in this Agreement, a Registration Statement(s), which
Registration
- 12 -
Statement(s) shall (x) comply as to form in all material respects with the requirements of the
Securities Act and the applicable form and include all financial statements required by the
Commission to be filed therewith and (y) be acceptable to FBR, its counsel and Selling Holders’
Counsel; notify FBR and Selling Holders’ Counsel in writing, at least five (5) Business Days prior
to filing of any amendment or supplement to such Registration Statement and, at least three (3)
Business Days prior to filing, provide a copy of such amendment or supplement to FBR, its counsel
and Selling Holders’ Counsel for review and comment; promptly following receipt from the
Commission, provide to FBR, its counsel and Selling Holders’ Counsel copies of any comments made by
the staff of the Commission relating to such Registration Statement and of the Company’s responses
thereto for review and comment; and use its commercially reasonable efforts to cause such
Registration Statement to become effective as soon as practicable after filing and to remain
effective, subject to Section 6 hereof, until the earlier of (i) such time as all Registrable
Shares covered thereby have been sold in accordance with the intended distribution of such
Registrable Shares, (ii) there are no Registrable Shares outstanding or (iii) the first anniversary
of the effective date of such Registration Statement (subject to extension as provided in Section
6(c) hereof and the condition that the Registrable Shares have been transferred to an unrestricted
CUSIP, are listed or included on the New York Stock Exchange or the Nasdaq Global Market, pursuant
to Section 5(n) of this Agreement, or on an alternative trading system with the Registrable Shares
qualified under the applicable state securities or “blue sky” laws of all fifty (50) states), and
can be sold under Rule 144 without limitation as to manner of sale or volume; provided, however,
that the Company shall not be required to cause the IPO Registration Statement to remain effective
for any period longer than ninety (90) days following the effective date of the IPO Registration
Statement (subject to extension as provided in Section 6(c) hereof) provided, further, that if the
Company has an effective Shelf Registration Statement on Form S-1 (or other form then available to
the Company) under the Securities Act and becomes eligible to use Form S-3 or such other short-form
registration statement form under the Securities Act, the Company may, upon thirty (30) Business
Days prior written notice to all Holders, register any Registrable Shares registered but not yet
distributed under the effective Shelf Registration Statement on such a short-form Shelf
Registration Statement and, once the short-form Shelf Registration Statement is declared effective,
de-register such shares under the previous Registration Statement or transfer the filing fees from
the previous Registration Statement (such transfer pursuant to Rule 429, if applicable) unless any
Holder registered under the initial Shelf Registration Statement notifies the Company within
fifteen (15) Business Days of receipt of the Company notice that such a registration under a new
Registration Statement and de-registration of the initial Shelf Registration Statement would
interfere with its distribution of Registrable Shares already in progress, in which case, the
Company shall delay the effectiveness of the short-form Registration Statement and termination of
the then-effective initial Registration Statement or any short-form Registration Statement for a
period of not less than thirty (30) days from the date that the Company receives the notice from
such Holders requesting a delay;
(b) subject to Section 5(i) hereof, (i) prepare and file with the Commission such amendments
and post-effective amendments to each such Registration Statement as may be necessary to keep such
Registration Statement effective for the period described in Section 5(a) hereof; (ii) cause each
Prospectus contained therein to be supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 or any similar rule that may be adopted under the
Securities Act; and (iii) comply with the provisions of the Securities Act with respect to the
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disposition of all securities covered by each Registration Statement during the applicable period
in accordance with the intended method or methods of distribution by the selling Holders thereof;
(c) furnish to the Holders, without charge, as many copies of each Prospectus, including each
preliminary Prospectus, and any amendment or supplement thereto and such other documents as such
Holder may reasonably request, in order to facilitate the public sale or other disposition of the
Registrable Shares; the Company consents, subject to Section 6 hereof, to the use of such
Prospectus, including each preliminary Prospectus, by the Holders, if any, in connection with the
offering and sale of the Registrable Shares covered by any such Prospectus;
(d) use its commercially reasonable efforts to register or qualify, or obtain exemption from
registration or qualification for, all Registrable Shares by the time the applicable Registration
Statement is declared effective by the Commission under all applicable state securities or “blue
sky” laws of such jurisdictions as FBR or any Holder of Registrable Shares covered by a
Registration Statement shall reasonably request in writing, keep each such registration or
qualification or exemption effective during the period such Registration Statement is required to
be kept effective pursuant to Section 5(a) and do any and all other acts and things that may be
reasonably necessary or advisable to enable such Holder to consummate the disposition in each such
jurisdiction of such Registrable Shares owned by such Holder; provided, however, that the Company
shall not be required to (i) qualify generally to do business in any jurisdiction or to register as
a broker or dealer in such jurisdiction where it would not otherwise be required to qualify but for
this Section 5(d) and except as may be required by the Securities Act, (ii) subject itself to
taxation in any such jurisdiction, or (iii) submit to the general service of process in any such
jurisdiction;
(e) use its commercially reasonable efforts to cause all Registrable Shares covered by such
Registration Statement to be registered and approved by such other governmental agencies or
authorities as may be necessary to enable the Holders thereof to consummate the disposition of such
Registrable Shares;
(f) notify FBR and each Holder promptly and, if requested by FBR or any Holder, confirm such
advice in writing (1) when a Registration Statement has become effective and when any
post-effective amendments and supplements thereto become effective, (2) of the issuance by the
Commission or any state securities authority of any stop order suspending the effectiveness of a
Registration Statement or the initiation of any Proceeding for that purpose, (3) of any request by
the Commission or any other federal, state or foreign governmental authority for (A) amendments or
supplements to a Registration Statement or related Prospectus or (B) additional information and (4)
of the happening of any event during the period a Registration Statement is effective as a result
of which such Registration Statement or the related Prospectus or any document incorporated by
reference therein contains any untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements therein not misleading
(which information shall be accompanied by an instruction to suspend the use of the Prospectus
until the requisite changes have been made) and (5) at the request of any such Holder, promptly to
furnish to such Holder a reasonable number of copies of a supplement to or an amendment of such
Prospectus as may be necessary so that, as thereafter delivered to the purchaser of such
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 not
misleading;
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(g) use its commercially reasonable efforts to avoid the issuance of, or if issued, to
obtain the withdrawal of, any order enjoining or suspending the use or effectiveness of a
Registration Statement or suspending the qualification of (or exemption from qualification of) any
of the Registrable Shares for sale in any jurisdiction, as promptly as practicable;
(h) upon request, promptly furnish to each requesting Holder of Registrable Shares covered by
a Registration Statement, without charge, one conformed copy of such Registration Statement and any
post-effective amendment or supplement thereto (without documents incorporated therein by reference
or exhibits thereto, unless requested);
(i) except as provided in Section 6 hereof, upon the occurrence of any event contemplated by
Section 5(f)(4) hereof, use its commercially reasonable efforts to promptly prepare a supplement or
post-effective amendment to a Registration Statement or the related Prospectus or any document
incorporated therein by reference or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Shares, such Prospectus will not contain any 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;
(j) if requested by the representative of the underwriters, if any, or any Holders of
Registrable Shares being sold in connection with such offering, (i) promptly incorporate in a
Prospectus supplement or post-effective amendment such information as the representative of the
underwriters, if any, or such Holders indicate relates to them or that they reasonably request be
included therein and (ii) make all required filings of such Prospectus supplement or such
post-effective amendment as soon as reasonably practicable after the Company has received
notification of the matters to be incorporated in such Prospectus supplement or post-effective
amendment;
(k) in the case of an Underwritten Offering, use its commercially reasonable efforts to
furnish to each Holder of Registrable Shares covered by such Registration Statement and the
underwriters a signed counterpart, addressed to each such Holder and the underwriters, of: (i) an
opinion of counsel for the Company, dated the date of each closing under the underwriting
agreement, reasonably satisfactory to such Holder and the underwriters; and (ii) a “comfort”
letter, dated the effective date of such Registration Statement and the date of each closing under
the underwriting agreement, signed by the independent public accountants who have certified the
Company’s financial statements included in such Registration Statement, covering substantially the
same matters with respect to such Registration Statement (and the Prospectus included therein) and
with respect to events subsequent to the date of such financial statements, as are customarily
covered in accountants’ letters delivered to underwriters in underwritten public offerings of
securities and such other financial matters as such Holder and the underwriters may reasonably
request;
(l) enter into customary agreements (including in the case of an Underwritten Offering, an
underwriting agreement in customary form and reasonably satisfactory to the Company) and take all
other reasonable action in connection therewith in order to expedite or facilitate the distribution
of the Registrable Shares included in such Registration Statement and, in the case of an
Underwritten Offering, make representations and warranties to the Holders covered by such
Registration Statement
- 15 -
and to the underwriters in such form and scope as are customarily made by issuers to underwriters
in underwritten offerings and confirm the same to the extent customary if and when requested;
(m) make available for inspection by representatives of the Holders and the representative of
any underwriters participating in any disposition pursuant to a Registration Statement and any
special counsel or accountants retained by such Holders or underwriters, all financial and other
records, pertinent corporate documents and properties of the Company and cause the respective
officers, directors and employees of the Company to supply all information reasonably requested by
any such representatives, the representative of the underwriters, counsel thereto or accountants in
connection with a Registration Statement; provided, however, that such records, documents or
information that the Company determines, in good faith, to be confidential and notifies such
representatives, representative of the underwriters, counsel thereto or accountants are
confidential shall not be disclosed by such representatives, representative of the underwriters,
counsel thereto or accountants unless (i) the disclosure of such records, documents or information
is necessary to avoid or correct a misstatement or omission in a Registration Statement or
Prospectus, (ii) the release of such records, documents or information is ordered pursuant to a
subpoena or other order from a court of competent jurisdiction, or (iii) such records, documents or
information have been generally made available to the public; provided, further, that the
representatives of the Holders and any underwriters will use commercially reasonable efforts, to
the extent practicable, to coordinate the foregoing inspection and information gathering and not
materially disrupt the Company’s business operations;
(n) use its commercially reasonable efforts (including, without limitation, seeking to cure
any deficiencies cited by the exchange or market in the Company’s listing or inclusion application)
to list or include all Registrable Shares on the New York Stock Exchange or the Nasdaq Global
Market;
(o) prepare and file in a timely manner all documents and reports required by the Exchange Act
and, to the extent the Company’s obligation to file such reports pursuant to Section 15(d) of the
Exchange Act expires prior to the expiration of the effectiveness period of the Registration
Statement as required by Section 5(a) hereof, the Company shall register the Registrable Shares
under the Exchange Act and shall maintain such registration through the effectiveness period
required by Section 5(a) hereof;
(p) provide a CUSIP number for all Registrable Shares, not later than the effective date of
the Registration Statement;
(q) (i) otherwise use its commercially reasonable efforts to comply with all applicable rules
and regulations of the Commission, (ii) make generally available to its stockholders, as soon as
reasonably practicable, earnings statements covering at least twelve (12) months beginning after
the effective date of the Registration Statement that satisfy the provisions of Section 11(a) of
the Securities Act and Rule 158 thereunder, but in no event later than forty-five (45) days after
the end of each fiscal year of the Company and (iii) not file any Registration Statement or
Prospectus or amendment or supplement to such Registration Statement or Prospectus to which any
Holder of Registrable Shares covered by any Registration Statement shall have reasonably objected
on the grounds that such Registration Statement or Prospectus or amendment or supplement does not
comply
- 16 -
in all material respects with the requirements of the Securities Act, such Holder having been
furnished with a copy thereof at least two (2) Business Days prior to the filing thereof;
(r) provide and cause to be maintained a registrar and transfer agent for all Registrable
Shares covered by any Registration Statement from and after a date not later than the effective
date of such Registration Statement;
(s) in connection with any sale or transfer of the Registrable Shares (whether or not pursuant
to a Registration Statement) that will result in the securities being delivered no longer being
Registrable Shares, cooperate with the Holders and the representative of the underwriters, if any,
to facilitate the timely, in the case of beneficial interests in Shares held through a depositary,
transfer of such equivalent Registrable Shares with an unrestricted CUSIP, or in the case of
certificated shares, preparation and delivery of certificates representing the Registrable Shares
to be sold, which certificates shall not bear any restrictive transfer legends and to enable such
Registrable Shares to be in such denominations and registered in such names as the representative
of the underwriters, if any, or the Holders may request at least three (3) Business Days prior to
any sale of the Registrable Shares;
(t) in connection with the initial filing of a Shelf Registration Statement and each amendment
thereto with the Commission pursuant to Section 2(a) hereof, cooperate with FBR in connection with
the filing with FINRA of all forms and information required or requested by FINRA in order to
obtain written confirmation from FINRA that FINRA does not object to the fairness and
reasonableness of the underwriting terms and arrangements (or any deemed underwriting terms and
arrangements) (each such written confirmation, a “No Objections Letter”) relating to the resale of
Registrable Shares pursuant to the Shelf Registration Statement, including, without limitation,
information provided to FINRA through its COBRADesk system, and pay all costs, fees and expenses
incident to FINRA’s review of the Shelf Registration Statement and the related underwriting terms
and arrangements, including, without limitation, all filing fees associated with any filings or
submissions to FINRA and the legal expenses, filing fees and other disbursements of FBR and any
other FINRA member that is the Holder of, or is affiliated or associated with an owner of,
Registrable Shares included in the Shelf Registration Statement (including in connection with any
initial or subsequent member filing);
(u) in connection with the initial filing of a Shelf Registration Statement and each amendment
thereto with the Commission pursuant to Section 2(a) hereof, provide to FBR and its
representatives, the opportunity to conduct due diligence, including, without limitation, an
inquiry of the Company’s financial and other records, and make available members of its management
for questions regarding information which FBR may request in order to fulfill any due diligence
obligation on its part;
(v) upon effectiveness of the first Registration Statement filed under this Agreement, take
such actions and make such filings as are necessary to effect the registration of the Common Stock
under the Exchange Act simultaneously with or immediately following the effectiveness of the
Registration Statement; and
(w) in the case of an Underwritten Offering, use its commercially reasonable efforts to
cooperate and assist in any filings required to be made with FINRA and in the performance of any
due
- 17 -
diligence investigation by any underwriter and its counsel (including any “qualified independent
underwriter,” if applicable) that is required to be retained in accordance with the rules and
regulations of FINRA.
The Company may require the Holders to furnish (and each Holder shall furnish) to the Company
such information regarding the proposed distribution by such Holder of such Registrable Shares as
the Company may from time to time reasonably request in writing or as shall be required to effect
the registration of the Registrable Shares, and no Holder shall be entitled to be named as a
selling stockholder in any Registration Statement and no Holder shall be entitled to use the
Prospectus forming a part thereof if such Holder does not provide such information to the Company.
Any Holder that sells Registrable Shares pursuant to a Registration Statement or as a selling
security holder pursuant to an Underwritten Offering shall be required to be named as a selling
shareholder in the related prospectus and to deliver a prospectus to purchasers. Each Holder
further agrees to furnish promptly to the Company in writing all information required from time to
time to make the information previously furnished by such Holder not misleading.
Each Holder agrees that, upon receipt of any notice from the Company of the happening of any
event of the kind described in Section 5(f)(2), 5(f)(3) or 5(f)(4) hereof, such Holder will
immediately discontinue disposition of Registrable Shares pursuant to a Registration Statement
until such Holder’s receipt of the copies of the supplemented or amended Prospectus or the Company
has otherwise provided notice to such Holder that dispositions of Registrable Shares may be
resumed. If so directed by the Company, such Holder will deliver to the Company (at the expense of
the Company) all copies in its possession, other than permanent file copies then in such Holder’s
possession, of the Prospectus covering such Registrable Shares current at the time of receipt of
such notice.
6. Black-Out Period
(a) Subject to the provisions of this Section 6 and a good faith determination by a majority
of the independent members of the board of directors of the Company (the “Board of Directors”) that
it is in the best interests of the Company to suspend the use of the Registration Statement,
following the effectiveness of a Registration Statement (and the filings with any international,
federal or state securities commissions), the Company, by written notice to FBR and the Holders,
may direct the Holders to suspend sales of the Registrable Shares pursuant to a Registration
Statement for such times as the Company reasonably may determine is necessary and advisable (but in
no event for more than an aggregate of ninety (90) days in any rolling twelve (12) month period
commencing on the Closing Date or more than sixty (60) days in any rolling ninety (90) day period),
if any of the following events shall occur: (i) the representative of the underwriters of an
Underwritten Offering of primary shares by the Company has advised the Company that the sale of
Registrable Shares pursuant to the Registration Statement would have a material adverse effect on
the Company’s primary Underwritten Offering; (ii) the majority of the independent members of the
Board of Directors of the Company shall have determined in good faith that (A) the offer or sale of
any Registrable Shares would materially impede, delay or interfere with any proposed financing,
offer or sale of securities, acquisition, merger, tender offer, business combination, corporate
reorganization or other significant transaction involving the Company, (B) after the advice of
counsel, the sale of Registrable Shares
- 18 -
pursuant to the Registration Statement would require disclosure of non-public material information
not otherwise required to be disclosed under applicable law, and (C) (x) the Company has a bona
fide business purpose for preserving the confidentiality of such transaction, (y) disclosure would
have a material adverse effect on the Company or the Company’s ability to consummate such
transaction, or (z) the disclosure would render the Company unable to comply with Commission
requirements, in each case under circumstances that would make it impractical or inadvisable to
cause the Registration Statement (or such filings) to become effective or to promptly amend or
supplement the Registration Statement on a post-effective basis, as applicable; or (iii) the
majority of the independent members of the Board of Directors of the Company shall have determined
in good faith, after the advice of counsel, that it is required by law, rule or regulation or that
it is in the best interests of the Company to supplement the Registration Statement or file a
post-effective amendment to the Registration Statement in order to incorporate information into the
Registration Statement for the purpose of (1) including in the Registration Statement any
prospectus required under Section 10(a)(3) of the Securities Act; (2) reflecting in the prospectus
included in the Registration Statement any facts or events arising after the effective date of the
Registration Statement (or of the most recent post-effective amendment) that, individually or in
the aggregate, represent a fundamental change in the information set forth therein; or (3)
including in the prospectus included in the Registration Statement any material information with
respect to the plan of distribution not disclosed in the Registration Statement or any material
change to such information. Upon the occurrence of any such suspension, the Company shall use its
commercially reasonable efforts to cause the Registration Statement to become effective or to
promptly amend or supplement the Registration Statement on a post-effective basis or to take such
action as is necessary to make resumed use of the Registration Statement compatible with the
Company’s best interests, as applicable, so as to permit the Holders to resume sales of the
Registrable Shares as soon as possible.
(b) In the case of an event that causes the Company to suspend the use of a Registration
Statement (a “Suspension Event”), the Company shall give written notice (a “Suspension Notice”) to
FBR and the Holders to suspend sales of the Registrable Shares and such notice shall state
generally the basis for the notice and that such suspension shall continue only for so long as the
Suspension Event or its effect is continuing and the Company is using its commercially reasonable
efforts and taking all reasonable steps to terminate suspension of the use of the Registration
Statement as promptly as possible. The Holders shall not effect any sales of the Registrable Shares
pursuant to such Registration Statement (or such filings) at any time after it has received a
Suspension Notice from the Company and prior to receipt of an End of Suspension Notice (as defined
below). If so directed by the Company, each Holder will deliver to the Company (at the expense of
the Company) all copies other than permanent file copies then in such Holder’s possession of the
Prospectus covering the Registrable Shares at the time of receipt of the Suspension Notice. The
Holders may recommence effecting sales of the Registrable Shares pursuant to the Registration
Statement (or such filings) following further notice to such effect (an “End of Suspension Notice”)
from the Company, which End of Suspension Notice shall be given by the Company to the Holders and
FBR in the manner described above promptly following the conclusion of any Suspension Event and its
effect.
(c) Notwithstanding any provision herein to the contrary, if the Company shall give a
Suspension Notice pursuant to this Section 6, the Company agrees that it shall extend the period of
time during which the applicable Registration Statement shall be maintained effective pursuant to
this Agreement by the number of days during the period from the date of receipt by the Holders of
the
- 19 -
Suspension Notice to and including the date of receipt by the Holders of the End of Suspension
Notice and copies of the supplemented or amended Prospectus necessary to resume sales.
7. Indemnification and Contribution
(a) The Company agrees to indemnify and hold harmless (i) each Holder of Registrable Shares
and any underwriter (as determined in the Securities Act) for such Holder (including, if
applicable, FBR), (ii) each Person, if any, who controls (within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act) any such Person described in clause (i) (any
of the Persons referred to in this clause (ii) being hereinafter referred to as a “Controlling
Person”), and (iii) the respective officers, directors, partners, members, employees,
representatives and agents of any such Person or any Controlling Person (any Person referred to in
clause (i), (ii) or (iii) above may hereinafter be referred to as a “Purchaser Indemnitee”), to the
fullest extent lawful, from and against any and all losses, claims, damages, judgments, actions,
out-of-pocket expenses, and other liabilities (the “Liabilities”), including without limitation and
as incurred, reimbursement of all reasonable costs of investigating, preparing, pursuing or
defending any claim or action, or any investigation or Proceeding by any governmental agency or
body, commenced or threatened, including the reasonable fees and expenses of counsel to any
Purchaser Indemnitee, joint or several, directly or indirectly related to, based upon, arising out
of or in connection with any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement (or any amendment thereto), any Prospectus (or any
amendment or supplement thereto) or any Issuer Free Writing Prospectus (or any amendment or
supplement thereto), or any preliminary Prospectus or any other document used to sell the Shares,
or any omission or alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under which they were
made, not misleading, except insofar as such Liabilities arise out of or are based upon any untrue
statement or omission or alleged untrue statement or omission made in reliance upon and in
conformity with information relating to any Purchaser Indemnitee furnished to the Company, or any
underwriter in writing by such Purchaser Indemnitee expressly for use therein. The Company shall
notify the Holders promptly of the institution, threat or assertion of any claim, Proceeding
(including any governmental investigation), or litigation of which it shall have become aware in
connection with the matters addressed by this Agreement which involves the Company or a Purchaser
Indemnitee. The indemnity provided for herein shall remain in full force and effect regardless of
any investigation made by or on behalf of any Purchaser Indemnitee.
(b) In connection with any Registration Statement in which a Holder of Registrable Shares is
participating, and as a condition to such participation, such Holder agrees, severally and not
jointly, to indemnify and hold harmless the Company and each Person who controls the Company within
the meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange Act and their
respective officers, directors, partners, members, employees, representatives and agents of such
Person or Controlling Person to the same extent as the foregoing indemnity from the Company to each
Purchaser Indemnitee, but only with reference to untrue statements or omissions or alleged untrue
statements or omissions made in reliance upon and in strict conformity with information relating to
such Holder furnished to the Company in writing by such Holder expressly for use in such
Registration Statement (or any amendment thereto), Prospectus (or any amendment or supplement
thereto), Issuer Free Writing Prospectus (or any amendment or supplement thereto) or any
preliminary
- 20 -
Prospectus or Liability arising out of or based upon sales of Registrable Shares made by such
Holder who has received actual notice of the suspension prior to such sale in violation of Section
6(b). Absent gross negligence or willful misconduct, the liability of any Holder pursuant to this
paragraph shall in no event exceed the net proceeds received by such Holder from sales of
Registrable Shares pursuant to such Registration Statement (or any amendment thereto), Prospectus
(or any amendment or supplement thereto), Issuer Free Writing Prospectus (or any amendment or
supplement thereto) or any preliminary Prospectus.
(c) If any suit, action, Proceeding (including any governmental or regulatory investigation),
claim or demand shall be brought or asserted against any Person in respect of which indemnity may
be sought pursuant to paragraph (a) or (b) above, such Person (the “Indemnified Party”) shall
promptly notify the Person against whom such indemnity may be sought (the “Indemnifying Party”) in
writing of the commencement thereof (but the failure to so notify an Indemnifying Party shall not
relieve it from any liability which it may have under this Section 7, except to the extent the
Indemnifying Party is materially prejudiced by the failure to give notice), and the Indemnifying
Party, upon request of the Indemnified Party, shall retain counsel reasonably satisfactory to the
Indemnified Party to represent the Indemnified Party and any others the Indemnifying Party may
reasonably designate in such Proceeding and shall pay the reasonable fees and expenses actually
incurred by such counsel related to such Proceeding. Notwithstanding the foregoing, in any such
Proceeding, any Indemnified Party shall have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such Indemnified Party, unless (i) the
Indemnifying Party and the Indemnified Party shall have mutually agreed in writing to the contrary,
(ii) the Indemnifying Party failed within a reasonable time after notice of commencement of the
action to assume the defense and employ counsel reasonably satisfactory to the Indemnified Party,
(iii) the Indemnifying Party and its counsel do not actively and vigorously pursue the defense of
such action or (iv) the named parties to any such action (including any impleaded parties) include
both such Indemnified Party and Indemnifying Party, or any Affiliate of the Indemnifying Party, and
such Indemnified Party shall have been reasonably advised by counsel that, either (x) there may be
one or more legal defenses available to it which are different from or additional to those
available to the Indemnifying Party or such Affiliate of the Indemnifying Party or (y) a conflict
may exist between such Indemnified Party and the Indemnifying Party or such Affiliate of the
Indemnifying Party (in which case the Indemnifying Party shall not have the right to assume nor
direct the defense of such action on behalf of such Indemnified Party; it being understood,
however, that the Indemnifying Party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and expenses of more than one separate
firm of attorneys (in addition to any local counsel) for all such Indemnified Parties, which firm
shall be designated in writing by those Indemnified Parties who sold a majority of the Registrable
Shares sold by all such Indemnified Parties and any such separate firm for the Company, the
directors, the officers and such control Persons of the Company as shall be designated in writing
by the Company). The Indemnifying Party shall not be liable for any settlement of any Proceeding
effected without its written consent, which consent shall not be unreasonably withheld, but if
settled with such consent or if there is a final judgment for the plaintiff, the Indemnifying Party
agrees to indemnify any Indemnified Party from and against any loss or liability by reason of such
settlement or judgment. No Indemnifying Party shall, without the prior written consent of the
Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of
which any Indemnified Party is or
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could have been a party and indemnity could have been sought hereunder by such Indemnified Party,
unless such settlement (i) includes an unconditional release of such Indemnified Party from all
liability on claims that are the subject matter of such Proceeding and (ii) does not include a
statement as to or an admission of, fault, culpability or a failure to act by or on behalf of the
Indemnified Party.
(d) If the indemnification provided for in paragraphs (a) and (b) of this Section 7 is for any
reason held to be unavailable to an Indemnified Party in respect of any Liabilities referred to
therein (other than by reason of the exceptions provided therein) or is insufficient to hold
harmless a party indemnified thereunder, then each Indemnifying Party under such paragraphs, in
lieu of indemnifying such Indemnified Party thereunder, shall contribute to the amount paid or
payable by such Indemnified Party as a result of such Liabilities (i) in such proportion as is
appropriate to reflect the relative benefits of the Indemnified Party on the one hand and the
Indemnifying Party(ies) on the other in connection with the statements or omissions that resulted
in such Liabilities, or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Indemnifying Party(ies) and the
Indemnified Party, as well as any other relevant equitable considerations. The relative fault of
the Company on the one hand and any Purchaser Indemnitees on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to information supplied by the
Company or by such Purchaser Indemnitees and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
(e) The parties agree that it would not be just and equitable if contribution pursuant to this
Section 7 were determined by pro rata allocation (even if such Indemnified Parties were treated as
one entity for such purpose), or by any other method of allocation that does not take account of
the equitable considerations referred to in Section 7(d) above. The amount paid or payable by an
Indemnified Party as a result of any Liabilities referred to in Section 7(d) above shall be deemed
to include, subject to the limitations set forth above, any reasonable legal or other expenses
actually incurred by such Indemnified Party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 7, in no event shall a Purchaser
Indemnitee be required to contribute any amount in excess of the amount by which the net proceeds
received by such Purchaser Indemnitee from sales of Registrable Shares exceeds the amount of any
damages that such Purchaser Indemnitee has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. For purposes of this Section 7, each
Person, if any, who controls (within the meaning of Section 15 of the Securities Act or Section
20(a) of the Exchange Act) FBR or a Holder of Registrable Shares shall have the same rights to
contribution as FBR or such Holder, as the case may be, and each Person, if any, who controls
(within the meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange Act) the
Company, and each officer, director, partner, employee, representative, agent or manager of the
Company shall have the same rights to contribution as the Company. Any party entitled to
contribution will, promptly after receipt of notice of commencement of any action, suit or
Proceeding against such party in respect of which a claim for contribution may be made against
another party or parties, notify each party or parties from whom contribution may be sought, but
the omission to so notify such party or parties shall not relieve the party or parties from whom
contribution may be sought from any obligation it or they may have under this Section 7 or
otherwise, except to the extent that any party is materially prejudiced by the failure to
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give notice. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
(f) The indemnity and contribution agreements contained in this Section 7 will be in addition
to any liability which the Indemnifying Parties may otherwise have to the Indemnified Parties
referred to above. The Purchaser Indemnitee’s obligations to contribute pursuant to this Section 7
are several in proportion to the respective number of Registrable Shares sold by each of the
Purchaser Indemnitees hereunder and not joint.
8. Market Stand-off Agreement
Each Holder hereby agrees that it shall not, to the extent requested by the Company or an
underwriter of securities of the Company, directly or indirectly sell, offer to sell (including
without limitation any short sale), grant any option or otherwise transfer or dispose of any
Registrable Shares or other shares of Common Stock of the Company or any securities convertible
into or exchangeable or exercisable for shares of Common Stock of the Company then owned by such
Holder (other than to donees or partners of the Holder who agree to be similarly bound) for a
period (x) in the case of the Company and each of its officers, directors, managers or employees,
in each case to the extent such Holder holds shares of Common Stock or securities convertible into
or exchangeable or exercisable for shares of Common Stock, beginning on the effective date of, and
continuing for one hundred eighty (180) days following the effective date of, the IPO Registration
Statement of the Company; and (y) in the case of all other Holders, beginning on the effective date
of, and continuing for sixty (60) days following the effective date of the IPO Registration
Statement of the Company; provided, however, that:
(a) the restrictions above shall not apply to Registrable Shares bought or sold pursuant to
the IPO Registration Statement;
(b) the restrictions set forth in clause (y) above shall not apply to any shares of Common
Stock of the Company bought in the open market following the effective date of the IPO Registration
Statement;
(c) it shall be a condition to any Holder’s agreement to be bound by the restrictions set
forth in clause (y) above that all the executive officers and directors of the Company then holding
shares of Common Stock of the Company or securities convertible into or exchangeable or exercisable
for shares of Common Stock of the Company enter into agreements that are no less restrictive;
(d) the Holders shall be allowed any concession or proportionate release allowed to any
officer or director that entered into agreements that are no less restrictive (with such proportion
being determined by dividing the number of shares being released with respect to such officer or
director by the total number of issued and outstanding shares held by such officer or director);
provided, that nothing in this Section 8(c) shall be construed as a right to proportionate release
for the executive officers and directors of the Company upon the expiration of the sixty (60) day
period applicable to all
- 23 -
Holders other than the executive officers and directors of the Company;
(e) with respect to the restrictions set forth in clause (y) above, each Holder shall be
allowed a proportionate release granted to any other Holder (with such proportion being determined
by dividing the number of shares being released with respect to such Holder by the total number of
issued and outstanding shares held by such Holder); and
(f) this Section 8 shall not be applicable if a Shelf Registration Statement of the Company
filed under the Securities Act has been declared effective prior to the filing of an IPO
Registration Statement.
In order to enforce the foregoing covenant, the Company shall have the right to place
restrictive legends on the certificates representing the securities subject to this Section 8 and
to impose stop transfer instructions with respect to the Registrable Shares and such other
securities of each Holder (and the securities of every other Person subject to the foregoing
restriction) until the end of such period.
9. Termination of the Company’s Obligation
The Company shall have no obligation pursuant to this Agreement with respect to any
Registrable Shares proposed to be sold by a Holder in a registration pursuant to this Agreement if,
in the opinion of counsel to the Company, (i) all such Registrable Shares proposed to be sold by a
Holder may be sold in a single transaction without registration under the Securities Act pursuant
to Rule 144, (ii) the Company has become subject to the reporting requirements of Section 13 or
15(d) of the Exchange Act for a period of at least ninety (90) days and is current in the filing of
all such required reports, and (iii) the Registrable Shares have been listed for trading on a
national securities exchange.
10. Limitations on Subsequent Registration Rights
After the date of this Agreement, the Company shall not, without the prior written consent of
Holders beneficially owning not less than a majority of the then outstanding Registrable Shares
(provided, however, that for purposes of this Section 10, Registrable Shares that are owned,
directly or indirectly, by an Affiliate of the Company or by an “executive officer” (as defined in
Rule 405) of the Company shall not be deemed to be outstanding), enter into any agreement with any
holder or prospective holder of any securities of the Company that would allow such holder or
prospective holder (a) to include such securities in any Registration Statement filed pursuant to
the terms hereof, unless, under the terms of such agreement, such holder or prospective holder may
include such securities in any such registration only to the extent that the inclusion of its
securities will not reduce the amount of Registrable Shares of the Holders that is included, or (b)
to have its securities registered on a registration statement that could be declared effective
prior to, or within one hundred eighty (180) days of, the effective date of any registration
statement filed pursuant to this Agreement.
- 24 -
11. Miscellaneous
(a) Remedies. In the event of a breach by the Company of any of its obligations under this
Agreement, each Holder, in addition to being entitled to exercise all rights provided herein or, in
the case of FBR, in the Purchase/Placement Agreement, or granted by law, including the rights
granted in Section 2(f) hereof and recovery of damages, will be entitled to specific performance of
its rights under this Agreement. Subject to Section 7, the Company agrees that monetary damages
would not be adequate compensation for any loss incurred by reason of a breach by it of any of the
provisions of this Agreement and hereby further agrees that, in the event of any action for
specific performance in respect of such breach, it shall waive the defense that a remedy at law
would be adequate.
(b) Amendments and Waivers. The provisions of this Agreement, including the provisions of this
sentence, may not be amended, modified or supplemented, and waivers or consents to or departures
from the provisions hereof may not be given, without (i) the written consent of the Company and
Holders beneficially owning not less than a majority of the then outstanding Registrable Shares or
(ii) in the case of Section 2(d), the written consent of the Company and the Holders and Existing
Holders beneficially owning not less than a majority of the then outstanding aggregate Registrable
Shares and Existing Shares; provided, however, that for purposes of this Section 11(b), Registrable
Shares that are owned, directly or indirectly, by an Affiliate of the Company or by an “executive
officer” (as defined in Rule 405) of the Company shall not be deemed to be outstanding. No
amendment shall be deemed effective unless it applies uniformly to all Holders. Notwithstanding the
foregoing, a waiver or consent to or departure from the provisions hereof with respect to a matter
that relates exclusively to the rights of a Holder whose securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect, impair, limit or compromise
the rights of other Holders may be given by such Holder; provided that the provisions of this
sentence may not be amended, modified or supplemented except in accordance with the provisions of
the first and second sentences of this paragraph.
(c) Notices. All notices and other communications, provided for or permitted hereunder, shall
be made in writing and delivered by facsimile (with receipt confirmed), overnight courier or
registered or certified mail, return receipt requested, or by telegram:
(i) if to a Holder, at the most current address given by the transfer agent and
registrar of the Shares to the Company; and
(ii) if to the Company, at the offices of the Company at C&J Energy Services, Inc., 000
X. Xxxxxxxxx, Xxxxx 000, Xxxxxx Xxxxxxx, XX 00000, Attention: Xxxx Xxxxxxxx, Chief Executive
Officer (facsimile: 361-653-9444), with a copy to T. Xxxx Xxxxx, Esq., Xxxxxx & Xxxxxx,
L.L.P., First City Tower, 0000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, XX 00000-0000 (facsimile:
713-615-5531); and
(iii) if to FBR, at the offices of FBR at 0000 Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxxxxxx,
Xxxxxxxx 00000, Attention: Xxxxxxx Xxxxxxx, Esq. (facsimile: 703-469-1140); with a copy to
Xxxx X. Xxxxxxx, Esq., Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (facsimile: 212-455-2502).
- 25 -
(d) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon
the successors and assigns of each of the parties hereto, including, without limitation and without
the need for an express assignment or assumption, subsequent Holders. The Company agrees that the
Holders shall be third party beneficiaries to the agreements made hereunder by FBR and the Company,
and each Holder shall have the right to enforce such agreements directly to the extent it deems
such enforcement necessary or advisable to protect its rights hereunder; provided, however, that
such Holder fulfills all of its obligations hereunder.
(e) Counterparts. This Agreement may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for convenience of reference only and shall
not limit or otherwise affect the meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW
YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES OTHER THAN SECTION 5-1401 AND 5-1402 OF THE
NEW YORK GENERAL OBLIGATION LAW THAT WOULD REQUIRE THE APPLICATION OF THE LAW OF ANY OTHER STATE.
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY STATE COURT IN THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING IN NEW YORK
IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND
IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE
JURISDICTION OF THE AFORESAID COURTS. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT
AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT
IN AN INCONVENIENT FORUM.
(h) Severability. If any term, provision, covenant or restriction of this Agreement is held by
a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use
their commercially reasonable efforts to find and employ an alternative means to achieve the same
or substantially the same result as that contemplated by such term, provision, covenant or
restriction. It is hereby stipulated and declared to be the intention of the parties hereto that
they would have executed the remaining terms, provisions, covenants and restrictions without
including any of such that may be hereafter declared invalid, illegal, void or unenforceable.
- 26 -
(i) Entire Agreement. This Agreement, together with the Purchase/Placement Agreement, is
intended by the parties hereto as a final expression of their agreement, and is intended to be a
complete and exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein and therein.
(j) Registrable Shares Held by the Company or its Affiliates. Whenever the consent or approval
of Holders of a specified percentage of Registrable Shares is required hereunder, Registrable
Shares held by the Company or its Affiliates or by an “executive officer” (as defined in Rule 405)
of the Company shall not be counted in determining whether such consent or approval was given by
the Holders of such required percentage.
(k) Adjustment for Stock Splits, etc. Wherever in this Agreement there is a reference to a
specific number of shares, then upon the occurrence of any subdivision, combination, or stock
dividend of such shares, the specific number of shares so referenced in this Agreement shall
automatically be proportionally adjusted to reflect the effect on the outstanding shares of such
class or series of stock by such subdivision, combination, or stock dividend.
(l) Survival. This Agreement is intended to survive the consummation of the transactions
contemplated by the Purchase/Placement Agreement. The indemnification and contribution obligations
under Section 7 of this Agreement shall survive the termination of the Company’s obligations under
Section 2 of this Agreement.
(m) Attorneys’ Fees. In any action or Proceeding brought to enforce any provision of this
Agreement, or where any provision hereof is validly asserted as a defense, the prevailing party, as
determined by the court, shall be entitled to recover its reasonable attorneys’ fees in addition to
any other available remedy.
[Signature page follows]
- 27 -
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above
written.
| C&J ENERGY SERVICES, INC. |
||||
| By: | /s/ Xxxxx XxXxxxxx | |||
| Name: | Xxxxx XxXxxxxx | |||
| Title: | Executive Vice President, Chief Financial Officer, Secretary and Treasurer | |||
| FBR CAPITAL MARKETS & CO. |
||||
| By: | /s/ Xxxx Xxxx’lsola | |||
| Name: | Xxxx Xxxx’lsola | |||
| Title: | Sr. Managing Director Co-Head of Capital Markets FBR Capital Markets & Co. |
|||
| SPONSORS: |
||||||
| StepStone Capital Partners II Onshore,
L.P. By: StepStone Co-Investment Funds GP, LLC, its General Partner |
||||||
| By: Name: |
/s/ Xxxxxx Xxxxxxxx
|
|||||
| Title: | Managing Director | |||||
| StepStone Capital Partners II Cayman Holdings,
L.P. By: StepStone Co-Investment Funds GP, LLC, its General Partner |
||||||
| By: Name: |
/s/ Xxxxxx Xxxxxxxx
|
|||||
| Title: | Managing Director | |||||
- 28 -
| 2006 Co-Investment Portfolio, L.P. By: StepStone Co-Investment Funds GP, LLC, its General Partner |
||||||
| By: Name: |
/s/ Xxxxxx Xxxxxxxx
|
|||||
| Title: | Managing Director | |||||
| Citigroup Capital Partners II Employee Master Fund, L.P.
By: Citigroup Private Equity LP, its General Partner |
||||||
| By: Name: |
/s/ Xxxxxxx Xxxxx
|
|||||
| Title: | Vice President | |||||
| Energy Spectrum Partners IV LP By: Energy Spectrum Capital IV LP, its General Partner |
||||||
| By: Name: |
/s/ Xxxxx X. Xxxxxx
|
|||||
| Title: | Managing Partner | |||||
[Signature Page to Registration Rights Agreement]
- 29 -
