EXHIBIT 10.1
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of July
28, 2005, is by and among Superior Well Services, Inc., a Delaware corporation
(the "Company"), and each of the other parties identified on the signature pages
hereto (the "Initial Stockholders").
WHEREAS, the Company and the Initial Stockholders have entered into
that certain Contribution Agreement dated as of May 3, 2005 (the "Contribution
Agreement"), pursuant to which the Initial Stockholders will receive shares of
Common Stock (as hereinafter defined) in exchange for their respective
partnership interests in Superior Well Services, Ltd. and Bradford Resources,
Ltd.; and
WHEREAS, in connection with, and in consideration of, the
transactions contemplated by the Contribution Agreement, the Initial
Stockholders have requested, and the Company has agreed to provide, registration
rights with respect to the Registrable Securities (as hereinafter defined), as
set forth in this Agreement.
NOW, THEREFORE, for and in consideration of the mutual agreements
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto, intending to be
legally bound hereby, agree as follows:
Section 1. Definitions. As used in this Agreement, the following terms
shall have the following meanings:
"Common Stock" shall mean shares of the Company's Common Stock, par
value $0.01 per share.
"Contribution Agreement" shall have the meaning set forth in the
recitals.
"Demand Notice" shall have the meaning set forth in Section 3
hereof.
"Demand Registration" shall have the meaning set forth in Section 3
hereof.
"Demanding Qualified Holder Group" shall mean, with respect to any
Demand Registration, the Qualified Holder Group delivering the relevant Demand
Notice.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder.
"Initial Public Offering" shall mean the first underwritten
registered public offering of equity securities of the Company pursuant to a
registration statement that has been declared effective under the Securities
Act.
"Management Qualified Holder" shall mean each of Xxxxx X. Xxxxxxx,
Rhys X. Xxxxx and Xxxxx X. Xxxxxxxxxx and any other Person who becomes a
Management Qualified
Holder pursuant to Section 12(c), but only to the extent any such Person
continues to hold Registrable Securities.
"Losses" shall have the meaning set forth in Section 8 hereof.
"Person" shall mean an individual, partnership, corporation, limited
partnership, limited liability company, foreign limited liability company,
trust, estate, corporation, custodian, trustee-executor, administrator, nominee
or entity in a representative capacity.
"Piggyback Notice" shall have the meaning set forth in Section 4
hereof.
"Piggyback Registration" shall have the meaning as set forth in
Section 4 hereof.
"Proceeding" shall mean an action, claim, suit, arbitration or
proceeding (including, without limitation, an investigation or partial
proceeding, such as a deposition), whether commenced or threatened.
"Prospectus" shall mean the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
Registration Statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the Registrable
Securities covered by such Registration Statement, and all other amendments and
supplements to the Prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by reference in
such Prospectus.
"Qualified Holder Group" means the Management Qualified Holders,
collectively, or the Xxxxxx Qualified Holders, collectively.
"Qualified Public Offering" shall mean any firm commitment
underwritten offering by the Company of Common Stock to the public pursuant to
an effective registration statement under the Securities Act (i) for which the
aggregate gross cash proceeds to be received by the Company from such offering
(without deducting underwriting discounts, expenses and commissions) are at
least forty million dollars ($40,000,000), and (ii) pursuant to which the Common
Stock is listed for trading on the New York Stock Exchange or is admitted to
trading and quoted for trading on the Nasdaq National Market system.
"Registrable Securities" shall mean, subject to the next succeeding
sentence, the shares of Common Stock (i) held by any Initial Stockholder on the
date of this Agreement, and (ii) issuable to the Initial Stockholders pursuant
to the Contribution Agreement, including, in each of cases (i) and, (ii), any
shares of Common Stock issued or distributed by way of dividend, stock split or
other distribution in respect of such shares. As to any particular Registrable
Securities, once issued, such securities shall cease to be Registrable
Securities when (i) they are sold pursuant to an effective Registration
Statement under the Securities Act, (ii) they are sold pursuant to Rule 144 (or
any similar provision then in force under the Securities Act) and the transferee
thereof does not receive "restricted securities" as defined in Rule 144, (iii)
they shall have ceased to be outstanding, (iv) they have been sold in a private
transaction in which the transferor's rights under this Agreement are not
assigned to the transferee of the securities, or (v)
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they become eligible for resale pursuant to Rule 144(k) (or any similar rule
then in effect under the Securities Act). No Registrable Securities may be
registered under more than one Registration Statement at any one time.
"Registration Statement" shall mean any registration statement of
the Company under the Securities Act which permits the public offering of any of
the Registrable Securities pursuant to the provisions of this Agreement,
including the Prospectus, amendments and supplements to such registration
statement, including post-effective amendments, all exhibits and all material
incorporated by reference or deemed to be incorporated by reference in such
registration statement, provided, however, that such Registration Statement
shall not be a "shelf" registration pursuant to Rule 415 under the Securities
Act.
"Rule 144" shall mean Rule 144 under the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
"SEC" shall mean the Securities and Exchange Commission or any
successor agency having jurisdiction under the Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as amended,
and the rules and regulations promulgated by the SEC thereunder.
"Xxxxxx Qualified Holder" shall mean each of Buffalo Valley Real
Estate Company, Xxxxxx X. Xxxxxx, Xxxxx X. Xxxxxx, Xxxx X. Xxxxxx, the X.X.
Xxxxxx, Xx. Grantor Retained Annuity Trust Dated November 1, 2004, Xxxxxx X.
Xxxxxx, Xxxxxxx X. Xxxxxx, Eastern Material Corp., Allegheny Mineral Corp.,
Xxxxxxxxx Cement & Supply Corp. and Glacial Sand & Gravel Co. and any other
Person who becomes a Xxxxxx Qualified Holder pursuant to Section 12(c), but only
to the extent such Person continues to hold Registrable Securities.
"underwritten registration or underwritten offering" shall mean a
registration in which securities of the Company are sold to an underwriter for
reoffering to the public.
Section 2. Holders of Registrable Securities. A Person is deemed to be a
holder of Registrable Securities whenever such Person owns Registrable
Securities or has a right to receive such Registrable Securities pursuant to the
Contribution Agreement.
Section 3. Demand Registration.
(a) Requests for Registration. At any time after an Initial
Public Offering, each Qualified Holder Group shall have the right by delivering
a written notice to the Company (the "Demand Notice") to require the Company to
register, pursuant to the terms of this Agreement under and in accordance with
the provisions of the Securities Act, the number of Registrable Securities
requested to be so registered pursuant to the terms of this Agreement (a "Demand
Registration"); provided, however that a Demand Notice may only be made if the
sale of the Registrable Securities requested to be registered by such Qualified
Holder Group is reasonably expected to result in aggregate gross cash proceeds
in excess of $20,000,000. Following receipt of a Demand Notice for a Demand
Registration, the Company shall use its reasonable best efforts to file a
Registration Statement as promptly as practicable, but not later than 30 days,
after such Demand Notice, and shall use its best efforts to cause such
Registration
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Statement to be declared effective under the Securities Act as promptly as
practicable after the filing thereof.
The Management Qualified Holders shall be entitled
collectively to a maximum of two Demand Registrations and the Xxxxxx Qualified
Holders shall be entitled collectively to a maximum of three Demand
Registrations. Notwithstanding any other provisions of this Section 3, in no
event shall more than one Demand Registration occur during any six-month period
(measured from the effective date of the Registration Statement to the date of
the next Demand Notice) or within 120 days after the effective date of a
Registration Statement filed by the Company; provided that no Demand
Registration may be prohibited for such 120-day period more often than once in a
12-month period.
No Demand Registration shall be deemed to have occurred for
purposes of this Section 3(a) if the Registration Statement relating thereto
does not become effective or is not maintained effective for the period required
pursuant to this Section 3(a), in which case the Demanding Qualified Holder
Group shall be entitled to an additional Demand Registration in lieu thereof.
Within ten (10) days after receipt by the Company of a Demand
Notice, the Company shall give written notice (the "Notice") of such Demand
Notice to all holders of Registrable Securities and shall, subject to the
provisions of Section 3(b) hereof, include in such registration all Registrable
Securities with respect to which the Company received written requests for
inclusion therein within ten (10) days after such Notice is given by the Company
to such holders.
All requests made pursuant to this Section 3 will specify the
amount of Registrable Securities to be registered and the intended methods of
disposition thereof.
The Company shall be required to maintain the effectiveness of
the Registration Statement with respect to any Demand Registration for a period
of at least 180 days after the effective date thereof or such shorter period in
which all Registrable Securities included in such Registration Statement have
actually been sold; provided, however, that such period shall be extended for a
period of time equal to the period the holders of Registrable Securities refrain
from selling any securities included in such registration at the request of an
underwriter of the Company or the Company pursuant to this Agreement.
(b) Priority on Demand Registration. If any of the Registrable
Securities registered pursuant to a Demand Registration are to be sold in a firm
commitment underwritten offering, and the managing underwriter or underwriters
advise the holders of such securities in writing that in its view the total
amount of Registrable Securities proposed to be sold in such offering is such as
to adversely affect the success of such offering (including, without limitation,
securities proposed to be included by other holders of securities entitled to
include securities in the Registration Statement pursuant to incidental or
piggyback registration rights), then the amount of securities to be offered (i)
for the account of the members of the Demanding Qualified Holder Group and (ii)
for the account of all such other Persons (other than members of the Demanding
Qualified Holder Group) shall be reduced to the extent necessary to reduce the
total amount of securities to be included in such offering to the amount
recommended by such
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managing underwriter or underwriters by first reducing, or eliminating if
necessary, all securities of the Company requested to be included by such other
Persons and then, if necessary, reducing the Registrable Securities requested to
be included by the members of the Demanding Qualified Holder Group, pro rata
among such members on the basis of the percentage of the Registrable Securities
requested to be included in such Registration Statement by such members. In
connection with any Demand Registration to which the provisions of this
subsection (b) apply, no securities other than Registrable Securities shall be
covered by such Demand Registration except as provided in subsection 3(d)(ii)
hereof, and such registration shall not reduce the number of available
registrations with respect to the Demanding Qualified Holder Group under this
Section 3 in the event that the Registration Statement excludes more than 25% of
the aggregate number of Registrable Securities that members of the Demanding
Qualified Holder Group requested be included.
(c) Postponement of Demand Registration. The Company shall be
entitled to postpone (but not more than once in any twelve month period), for a
reasonable period of time not in excess of 90 days, the filing of a Registration
Statement if the Company delivers to the members of the Demanding Qualified
Holder Group a certificate signed by both the Chief Executive Officer and Chief
Financial Officer of the Company certifying that, in the good faith judgment of
the Board of Directors of the Company, such registration and offering would
reasonably be expected to materially adversely affect or materially interfere
with any bona fide material financing of the Company or any material transaction
under consideration by the Company or would require disclosure of information
that has not been disclosed to the public, the premature disclosure of which
would materially adversely affect the Company. Such certificate shall contain a
statement of the reasons for such postponement and an approximation of the
anticipated delay. The Persons receiving such certificate shall keep the
information contained in such certificate confidential subject to the same terms
set forth in Section 6(p). If the Company shall so postpone the filing of a
Registration Statement, the Demanding Qualified Holder Group shall have the
right to withdraw the request for registration by giving written notice to the
Company within 20 days of the anticipated termination date of the postponement
period, as provided in the certificate delivered thereto, and in the event of
such withdrawal, such request shall not be counted for purposes of the number of
Demand Registrations to which the Demanding Qualified Holder Group is entitled
pursuant to the terms of this Agreement.
(d) Registration of Other Securities. Whenever the Company
shall effect a Demand Registration pursuant to this Section 3 in connection with
an underwritten offering, no securities other than Registrable Securities shall
be included among the securities covered by such Demand Registration unless (i)
the managing underwriter of such offering shall have advised each holder of
Registrable Securities requesting such registration in writing that it believes
that the inclusion of such other securities would not adversely affect such
offering or (ii) the inclusion of such other securities is approved by the
affirmative vote of the holders of at least a majority of the Registrable
Securities included in such Demand Registration by the members of the Demanding
Qualified Holder Group.
Section 4. Piggyback Registration.
(a) Right to Piggyback. If, at any time after a Qualified
Public Offering, the Company proposes to file a registration statement under the
Securities Act with respect to an
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offering of Common Stock (other than a registration statement (i) on Form X-0,
Xxxx X-0 or any successor forms thereto, (ii) filed as a "shelf" registration
statement pursuant to Rule 415 under the Securities Act or (iii) filed solely in
connection with an exchange offer or any employee benefit or dividend
reinvestment plan), whether or not for its own account, then, each such time,
the Company shall give prompt written notice of such proposed filing at least
fifteen (15) days before the anticipated filing date (the "Piggyback Notice") to
all of the holders of Registrable Securities. The Piggyback Notice shall offer
such holders the opportunity to include in such registration statement the
number of Registrable Securities as each such holder may request (a "Piggyback
Registration"). Subject to Section 4(b) hereof, the Company shall include in
each such Piggyback Registration all Registrable Securities with respect to
which the Company has received written requests for inclusion therein within ten
(10) days after notice has been given to the applicable holder. The eligible
holders of Registrable Securities shall be permitted to withdraw all or part of
the Registrable Securities from a Piggyback Registration at any time prior to
the effective date of such Piggyback Registration. The Company shall not be
required to maintain the effectiveness of the Registration Statement for a
Piggyback Registration beyond the earlier to occur of (i) 120 days after the
effective date thereof and (ii) consummation of the distribution by the holders
of the Registrable Securities included in such Registration Statement.
(b) Priority on Piggyback Registrations. The Company shall use
reasonable efforts to cause the managing underwriter or underwriters of a
proposed underwritten offering to permit holders of Registrable Securities
requested to be included in the registration for such offering to include all
such Registrable Securities on the same terms and conditions as any other shares
of capital stock, if any, of the Company included therein. Notwithstanding the
foregoing, if the managing underwriter or underwriters of such underwritten
offering have informed the Company in writing that it is their good faith
opinion that the total amount of securities that such holders, the Company and
any other Persons having rights to participate in such registration, intend to
include in such offering is such as to adversely affect the success of such
offering, then the amount of securities to be offered (i) for the account of
holders of Registrable Securities and (ii) for the account of all such other
Persons (other than the Company and holders of Registrable Securities) shall be
reduced to the extent necessary to reduce the total amount of securities to be
included in such offering to the amount recommended by such managing underwriter
or underwriters by first reducing, or eliminating if necessary, all securities
of the Company requested to be included by such other Persons (other than the
Company) and then, if necessary, reducing the securities requested to be
included by the holders of Registrable Securities requesting such registration
pro rata among such holders on the basis of the percentage of the Registrable
Securities requested to be included in such Registration Statement by such
holders.
Section 5. Restrictions on Public Sale by Holders of Registrable
Securities. Each holder of Registrable Securities agrees, in connection with the
Initial Public Offering and any underwritten offering made pursuant to a
Registration Statement filed pursuant to Section 3 or Section 4 hereof (whether
or not such holder elected to include Registrable Securities in such
Registration Statement), if requested (pursuant to a written notice) by the
managing underwriter or underwriters in an underwritten offering, not to effect
any public sale or distribution of any of the Company's securities (except as
part of such underwritten offering), including a sale pursuant to Rule 144, or
to give any Demand Notice during the period commencing on the date of the
request (which shall be no earlier than 14 days prior to the expected "pricing"
of such offering)
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and continuing for not more than 180 days (with respect to the Initial Public
Offering) or 120 days (with respect to any underwritten public offering other
than the Initial Public Offering made prior to the second anniversary of the
Initial Public Offering and thereafter 60 days rather than 120) after the date
of the Prospectus pursuant to which such public offering shall be made or such
lesser period as is required by the managing underwriter, provided, however,
that all officers and directors of the Company must be subject to similar
restrictions.
Section 6. Registration Procedures. If and whenever the Company is
required to use its reasonable best efforts to effect the registration of any
Registrable Securities under the Securities Act as provided in Section 3 and
Section 4 hereof, the Company shall effect such registration to permit the sale
of such Registrable Securities in accordance with the intended method or methods
of disposition thereof, and pursuant thereto the Company shall cooperate in the
sale of the securities and shall, as expeditiously as possible:
(a) Prepare and file with the SEC a Registration Statement or
Registration Statements on such form which shall be available for the sale of
the Registrable Securities by the holders thereof in accordance with the
intended method or methods of distribution thereof, and use its reasonable best
efforts to cause such Registration Statement to become effective and to remain
effective as provided herein; provided, however, that before filing a
Registration Statement or Prospectus or any amendments or supplements thereto
(including documents that would be incorporated or deemed to be incorporated
therein by reference), the Company shall furnish or otherwise make available to
the holders of the Registrable Securities covered by such Registration
Statement, their counsel and the managing underwriters, if any, copies of all
such documents proposed to be filed. The Company shall not file any such
Registration Statement or Prospectus or any amendments or supplements thereto
(including such documents that, upon filing, would be incorporated or deemed to
be incorporated by reference therein) with respect to a Demand Registration to
which the holders of a majority of the Registrable Securities covered by such
Registration Statement, their counsel, or the managing underwriters, if any,
shall reasonably object, in writing, on a timely basis, unless, in the opinion
of the Company, such filing is necessary to comply with applicable law.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be necessary to
keep such Registration Statement continuously effective during the period
provided herein with respect to the disposition of all securities covered by
such Registration Statement; and cause the related Prospectus to be supplemented
by any Prospectus supplement as may be necessary to comply with the provisions
of the Securities Act with respect to the disposition of the securities covered
by such Registration Statement, and as so supplemented to be filed pursuant to
Rule 424 (or any similar provisions then in force) under the Securities Act.
(c) Notify each selling holder of Registrable Securities, its
counsel and the managing underwriters, if any, promptly, and (if requested by
any such Person) confirm such notice in writing, (i) when a Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and, with
respect to a Registration Statement or any post-effective amendment, when the
same has become effective, (ii) of any request by the SEC or any other Federal
or state governmental authority for amendments or supplements to a Registration
Statement or related Prospectus or for additional information, (iii) of the
issuance by the SEC of
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any stop order suspending the effectiveness of a Registration Statement or the
initiation of any proceedings for that purpose, (iv) if at any time the
representations and warranties of the Company contained in any agreement
(including any underwriting agreement) contemplated by Section 6(o) below cease
to be true and correct, (v) of the receipt by the Company of any notification
with respect to the suspension of the qualification or exemption from
qualification of any of the Registrable Securities for sale in any jurisdiction,
or the initiation or threatening of any proceeding for such purpose, and (vi) of
the happening of any event that makes any statement made in such Registration
Statement or related Prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue in any material respect or that
requires the making of any changes in such Registration Statement, Prospectus or
documents so that, in the case of the Registration Statement, it will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
not misleading, and that in the case of the Prospectus, it will not contain any
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(d) Use its reasonable best efforts to obtain the withdrawal
of any order suspending the effectiveness of a Registration Statement, or the
lifting of any suspension of the qualification (or exemption from qualification)
of any of the Registrable Securities for sale in any jurisdiction.
(e) If requested by the managing underwriters, if any, or the
holders of a majority of the then outstanding Registrable Securities being sold
in connection with an underwritten offering, promptly include in a Prospectus
supplement or post-effective amendment such information as the managing
underwriters, if any, and such holders may reasonably request in order to permit
the intended method of distribution of such securities and make all required
filings of such Prospectus supplement or such post-effective amendment as soon
as practicable after the Company has received such request; provided, however,
that the Company shall not be required to take any actions under this Section
6(e) that are not, in the opinion of counsel for the Company, in compliance with
applicable law.
(f) Furnish to each selling holder of Registrable Securities,
its counsel and each managing underwriter, if any, without charge, at least one
conformed copy of the Registration Statement, the Prospectus and Prospectus
supplements, if applicable, and each post-effective amendment thereto, including
financial statements (but excluding schedules, all documents incorporated or
deemed to be incorporated therein by reference, and all exhibits, unless
requested in writing by such holder, counsel or underwriter).
(g) Deliver to each selling holder of Registrable Securities,
its counsel, and the underwriters, if any, without charge, as many copies of the
Prospectus or Prospectuses (including each form of Prospectus) and each
amendment or supplement thereto as such Persons may reasonably request in
connection with the distribution of the Registrable Securities; and the Company,
subject to the last paragraph of this Section 6, hereby consents to the use of
such Prospectus and each amendment or supplement thereto by each of the selling
holders of Registrable Securities and the underwriters, if any, in connection
with the offering and sale of the
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Registrable Securities covered by such Prospectus and any such amendment or
supplement thereto.
(h) Prior to any public offering of Registrable Securities,
use its reasonable best efforts to register or qualify or cooperate with the
selling holders of Registrable Securities, the underwriters, if any, and their
respective counsel in connection with the registration or qualification (or
exemption from such registration or qualification) of such Registrable
Securities for offer and sale under the securities or "Blue Sky" laws of such
jurisdictions within the United States as any seller or underwriter reasonably
requests in writing and to keep each such registration or qualification (or
exemption therefrom) effective during the period such Registration Statement is
required to be kept effective and to take any other action that may be necessary
or advisable to enable such holders of Registrable Securities to consummate the
disposition of such Registrable Securities in such jurisdiction; provided,
however, that the Company will not be required to (i) qualify generally to do
business in any jurisdiction where it is not then so qualified or (ii) take any
action that would subject it to general service of process in any such
jurisdiction where it is not then so subject.
(i) Cooperate with the selling holders of Registrable
Securities and the managing underwriters, if any, to facilitate the timely
preparation and delivery of certificates (not bearing any legends) representing
Registrable Securities to be sold after receiving written representations from
each holder of such Registrable Securities that the Registrable Securities
represented by the certificates so delivered by such holder will be transferred
in accordance with the Registration Statement, and enable such Registrable
Securities to be in such denominations and registered in such names as the
managing underwriters, if any, or holders may request at least two (2) business
days prior to any sale of Registrable Securities in a firm commitment public
offering, but in any other such sale, within ten (10) business days prior to
having to issue the securities.
(j) Use its reasonable best efforts to cause the Registrable
Securities covered by the Registration Statement to be registered with or
approved by such other governmental agencies or authorities within the United
States, except as may be required solely as a consequence of the nature of such
selling holder's business, in which case the Company will cooperate in all
reasonable respects with the filing of such Registration Statement and the
granting of such approvals, as may be necessary to enable the seller or sellers
thereof or the underwriters, if any, to consummate the disposition of such
Registrable Securities.
(k) Upon the occurrence of any event contemplated by Section
6(c)(vi) above, prepare a supplement or post-effective amendment to the
Registration Statement or a supplement to the related Prospectus or any document
incorporated or deemed to be incorporated therein by reference, or file any
other required document so that, as thereafter delivered to the purchasers of
the Registrable Securities being sold thereunder, such Prospectus will not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
(l) Prior to the effective date of the Registration Statement
relating to the Registrable Securities, provide a CUSIP number for the
Registrable Securities.
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(m) Provide and cause to be maintained a transfer agent and
registrar for all Registrable Securities covered by such Registration Statement
from and after a date not later than the effective date of such Registration
Statement.
(n) Use its reasonable best efforts to cause all shares of
Registrable Securities covered by such Registration Statement to be authorized
to be quoted on the Nasdaq National Market or listed on a national securities
exchange if shares of the particular class of Registrable Securities are at that
time quoted on the Nasdaq National Market or listed on such exchange, as the
case may be.
(o) Enter into such agreements (including an underwriting
agreement in form, scope and substance as is customary in underwritten
offerings) and take all such other actions reasonably requested by the holders
of a majority of the Registrable Securities being sold in connection therewith
(including those reasonably requested by the managing underwriters, if any) to
expedite or facilitate the disposition of such Registrable Securities, and in
such connection, whether or not an underwriting agreement is entered into and
whether or not the registration is an underwritten registration, (i) make such
representations and warranties to the holders of such Registrable Securities and
the underwriters, if any, with respect to the business of the Company and its
subsidiaries, and the Registration Statement, Prospectus and documents, if any,
incorporated or deemed to be incorporated by reference therein, in each case, in
form, substance and scope as are customarily made by issuers to underwriters in
underwritten offerings, and, if true, confirm the same if and when requested,
(ii) use its reasonable best efforts to furnish to the selling holders of such
Registrable Securities opinions of counsel to the Company and updates thereof
(which counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the managing underwriters, if any, and counsels to the selling
holders of the Registrable Securities), addressed to each selling holder of
Registrable Securities and each of the underwriters, if any, covering the
matters customarily covered in opinions requested in underwritten offerings and
such other matters as may be reasonably requested by such counsel and
underwriters, (iii) use its reasonable best efforts to obtain "cold comfort"
letters and updates thereof from the independent certified public accountants of
the Company (and, if necessary, any other independent certified public
accountants of any subsidiary of the Company or of any business acquired by the
Company for which financial statements and financial data are, or are required
to be, included in the Registration Statement) who have certified the financial
statements included in such Registration Statement, addressed to each selling
holder of Registrable Securities (unless such accountants shall be prohibited
from so addressing such letters by applicable standards of the accounting
profession) and each of the underwriters, if any, such letters to be in
customary form and covering matters of the type customarily covered in "cold
comfort" letters in connection with underwritten offerings, (iv) if an
underwriting agreement is entered into, the same shall contain indemnification
provisions and procedures substantially to the effect set forth in Section 8
hereof with respect to all parties to be indemnified pursuant to said Section
and (v) deliver such documents and certificates as may be reasonably requested
by the holders of a majority of the Registrable Securities being sold, their
counsel and the managing underwriters, if any, to evidence the continued
validity of the representations and warranties made pursuant to Section 6(o)(i)
above and to evidence compliance with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Company. The above
shall be done at each closing under such underwriting or similar agreement, or
as and to the extent required thereunder.
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(p) Make available for inspection by a representative of the
selling holders of Registrable Securities, any underwriter participating in any
such disposition of Registrable Securities, if any, and any attorneys or
accountants retained by such selling holders or underwriter, at the offices
where normally kept, during reasonable business hours, all financial and other
records, pertinent corporate documents and properties of the Company and its
subsidiaries, and cause the officers, directors and employees of the Company and
its subsidiaries to supply all information in each case reasonably requested by
any such representative, underwriter, attorney or accountant in connection with
such Registration Statement; provided, however, that any information that is not
generally publicly available at the time of delivery of such information shall
be kept confidential by such Persons unless (i) disclosure of such information
is required by court or administrative order, (ii) disclosure of such
information, in the opinion of counsel to such Person, is required by law, or
(iii) such information becomes generally available to the public other than as a
result of a disclosure or failure to safeguard by such Person. In the case of a
proposed disclosure pursuant to (i) or (ii) above, such Person shall be required
to give the Company written notice of the proposed disclosure prior to such
disclosure and, if requested by the Company, assist the Company in seeking to
prevent or limit the proposed disclosure. Without limiting the foregoing, no
such information shall be used by such Person as the basis for any market
transactions in securities of the Company or its subsidiaries in violation of
law.
(q) Comply with all applicable rules and regulations of the
SEC and make available to its security holders earning statements satisfying the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder, or
any similar rule promulgated under the Securities Act, no later than forty-five
(45) days after the end of any twelve (12) month period (or ninety (90) days
after the end of any twelve (12) month period if such period is a fiscal year)
(i) commencing at the end of any fiscal quarter in which Registrable Securities
are sold to underwriters in a firm commitment or best efforts underwritten
offering and (ii) if not sold to underwriters in such an offering, commencing on
the first day of the first fiscal quarter of the Company after the effective
date of a Registration Statement, which statements shall cover one of said
twelve (12) month periods.
(r) Cause its officers to use their reasonable best efforts to
support the marketing of the Registrable Securities covered by the Registration
Statement (including, without limitation, participation in "road shows") taking
into account the Company's business needs.
The Company may require each seller of Registrable Securities as to
which any registration is being effected to furnish to the Company in writing
such information required in connection with such registration regarding such
seller and the distribution of such Registrable Securities as the Company may,
from time to time, reasonably request in writing and the Company may exclude
from such registration the Registrable Securities of any seller who unreasonably
fails to furnish such information within a reasonable time after receiving such
request.
Each holder of Registrable Securities agrees if such holder has
Registrable Securities covered by such Registration Statement that, upon receipt
of any notice from the Company of the happening of any event of the kind
described in Section 6(c)(ii), 6(c)(iii), 6(c)(v)
11
or 6(c)(vi) hereof, such holder will forthwith discontinue disposition of such
Registrable Securities covered by such Registration Statement or Prospectus
until such holder's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 6(k) hereof, or until it is advised in
writing by the Company that the use of the applicable Prospectus may be resumed,
and has received copies of any additional or supplemental filings that are
incorporated or deemed to be incorporated by reference in such Prospectus;
provided, however that the Company shall extend the time periods under Section 3
with respect to the length of time that the effectiveness of a Registration
Statement must be maintained by the amount of time the holder is required to
discontinue disposition of such securities.
Section 7. Registration Expenses. All reasonable fees and expenses
incident to the performance of or compliance with this Agreement by the Company
(including, without limitation, (i) all registration and filing fees (including,
without limitation, fees and expenses (A) with respect to filings required to be
made with the National Association of Securities Dealers, Inc. and (B) of
compliance with securities or Blue Sky laws, including, without limitation, any
fees and disbursements of counsel for the underwriters in connection with Blue
Sky qualifications of the Registrable Securities pursuant to Section 6(h)), (ii)
printing expenses (including, without limitation, expenses of printing
certificates for Registrable Securities in a form eligible for deposit with The
Depository Trust Company and of printing Prospectuses if the printing of
Prospectuses is requested by the managing underwriters, if any, or by the
holders of a majority of the Registrable Securities included in any Registration
Statement), (iii) messenger, telephone and delivery expenses of the Company,
(iv) fees and disbursements of counsel for the Company, (v) expenses of the
Company incurred in connection with any road show, (vi) fees and disbursements
of all independent certified public accountants referred to in Section 6(o)(iii)
hereof (including, without limitation, the expenses of any "cold comfort"
letters required by this Agreement) and any other persons, including special
experts retained by the Company, and (vii) fees and disbursements of one counsel
for the Management Qualified Holders and one counsel for the Xxxxxx Qualified
Holders, in each case whose Registrable Securities are included in a
Registration Statement, which counsel shall be selected by the holders of a
majority of the Registrable Securities held by the Management Qualified Holders
or the Xxxxxx Qualified Holders, as applicable, included in such Registration
Statement) shall be borne by the Company whether or not any Registration
Statement is filed or becomes effective. In addition, the Company shall pay its
internal expenses (including, without limitation, all salaries and expenses of
its officers and employees performing legal or accounting duties), the expense
of any annual audit, the fees and expenses incurred in connection with the
listing of the securities to be registered on any securities exchange on which
similar securities issued by the Company are then listed and rating agency fees
and the fees and expenses of any Person, including special experts, retained by
the Company.
The Company shall not be required to pay (i) fees and disbursements
of any counsel retained by any holder of Registrable Securities or by any
underwriter (except as set forth in clauses 7(i)(B) and 7(vii)), (ii) any
underwriter's fees (including discounts, commissions or fees of underwriters,
selling brokers, dealer managers or similar securities industry professionals)
relating to the distribution of the Registrable Securities, or (iii) any other
expenses of the holders of Registrable Securities not specifically required to
be paid by the Company pursuant to the first paragraph of this Section 7.
12
Section 8. Indemnification.
(a) Indemnification by the Company. The Company shall, without
limitation as to time, indemnify and hold harmless, to the fullest extent
permitted by law, each holder of Registrable Securities whose Registrable
Securities are covered by a Registration Statement or Prospectus, the officers,
directors, partners, members, managers, stockholders, accountants, attorneys,
agents and employees of each of them, each Person who controls each such holder
(within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act) and the officers, directors, partners, members, managers,
stockholders, accountants, attorneys, agents and employees of each such
controlling person, each underwriter, if any, and each Person who controls
(within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act) such underwriter, from and against any and all losses, claims,
damages, liabilities, costs (including, without limitation, costs of preparation
and reasonable attorneys' fees and any legal or other fees or expenses incurred
by such party in connection with any investigation or Proceeding), expenses,
judgments, fines, penalties, charges and amounts paid in settlement
(collectively, "Losses"), as incurred, arising out of or based upon any untrue
statement (or alleged untrue statement) of a material fact contained in any
Prospectus, offering circular, or other document (including any related
Registration Statement, notification, or the like) incident to any such
registration, qualification, or compliance, or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or any violation by the
Company of the Securities Act or any rule or regulation thereunder applicable to
the Company and relating to action or inaction required of the Company in
connection with any such registration, qualification, or compliance, and will
reimburse each such holder, each of its officers, directors, partners, members,
managers, stockholders, accountants, attorneys, agents and employees and each
person controlling such holder, each such underwriter, and each person who
controls any such underwriter, for any legal and any other expenses reasonably
incurred in connection with investigating and defending or settling any such
claim, loss, damage, liability, or action, provided that the Company will not be
liable in any such case to the extent that any such claim, loss, damage,
liability, or expense arises out of or is based on any untrue statement or
omission by such holder or underwriter, but only to the extent, that such untrue
statement (or alleged untrue statement) or omission (or alleged omission) is
made in such Registration Statement, Prospectus, offering circular, or other
document in reliance upon and in conformity with written information furnished
to the Company by such holder. It is agreed that the indemnity agreement
contained in this Section 8(a) shall not apply to amounts paid in settlement of
any such loss, claim, damage, liability, or action if such settlement is
effected without the consent of the Company (which consent shall not be
unreasonably withheld).
(b) Indemnification by Holder of Registrable Securities. In
connection with any Registration Statement in which a holder of Registrable
Securities is participating, such holder of Registrable Securities shall furnish
to the Company in writing such information as the Company reasonably requests
for use in connection with any Registration Statement or Prospectus and agrees
to indemnify, to the fullest extent permitted by law, severally and not jointly,
the Company, its directors, officers, accountants, attorneys, agents and
employees, each Person who controls the Company (within the meaning of Section
15 of the Securities Act and Section 20 of the Exchange Act), and the directors,
officers, partners, members, managers, stockholders, accountants, attorneys,
agents or employees of such controlling persons, and each
13
underwriter, if any, and each person who controls such underwriter (within the
meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act),
from and against all Losses arising out of or based on any untrue statement of a
material fact contained in any such Registration Statement, Prospectus, offering
circular, or other document, or any omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse the Company and such directors, officers,
partners, members, managers, stockholders, accountants, attorneys, employees,
agents, persons, underwriters, or control persons for any legal or any other
expenses reasonably incurred in connection with investigating or defending any
such claim, loss, damage, liability, or action, in each case to the extent, but
only to the extent, that such untrue statement or omission is made in such
Registration Statement, Prospectus, offering circular, or other document in
reliance upon and in conformity with written information furnished to the
Company by such holder specifically for use in connection with the preparation
of such Registration Statement, Prospectus, offering circular or other document;
provided, however, that the obligations of such holder hereunder shall not apply
to amounts paid in settlement of any such claims, losses, damages, or
liabilities (or actions in respect thereof) if such settlement is effected
without the consent of such holder (which consent shall not be unreasonably
withheld); and provided, further, that the liability of each selling holder of
Registrable Securities hereunder shall be limited to the net proceeds received
by such selling holder from the sale of Registrable Securities covered by such
Registration Statement. In addition, insofar as the foregoing indemnity relates
to any such untrue statement or omission made in the preliminary Prospectus but
eliminated or remedied in the amended Prospectus on file with the SEC at the
time the Registration Statement becomes effective or in the final Prospectus
filed pursuant to applicable rules of the SEC or in any supplement or addendum
thereto and such new Prospectus is delivered to the underwriter, the indemnity
agreement herein shall not inure to the benefit of such underwriter, any
controlling person of such underwriter and their respective Representatives, if
a copy of the final Prospectus filed pursuant to such rules, together with all
supplements and addenda thereto was not furnished to the Person asserting the
loss, liability, claim or damage at or prior to the time such furnishing is
required by the Securities Act.
(c) Conduct of Indemnification Proceedings. If any Person
shall be entitled to indemnity hereunder (an "indemnified party"), such
indemnified party shall give prompt notice to the party from which such
indemnity is sought (the "indemnifying party") of any claim or of the
commencement of any Proceeding with respect to which such indemnified party
seeks indemnification or contribution pursuant hereto; provided, however, that
the delay or failure to so notify the indemnifying party shall not relieve the
indemnifying party from any obligation or liability except to the extent that
the indemnifying party has been prejudiced by such delay or failure. The
indemnifying party shall have the right, exercisable by giving written notice to
an indemnified party promptly after the receipt of written notice from such
indemnified party of such claim or Proceeding, to, unless in the indemnified
party's reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim, assume, at the
indemnifying party's expense, the defense of any such claim or Proceeding, with
counsel reasonably satisfactory to such indemnified party; provided, however,
that an indemnified party shall have the right to employ separate counsel in any
such claim or Proceeding and to participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of such indemnified party
unless: (i) the indemnifying party agrees to pay such fees and expenses; or (ii)
the indemnifying party fails promptly to assume the defense of such claim or
Proceeding or fails to employ counsel reasonably satisfactory to such
indemnified
14
party; in which case the indemnified party shall have the right to employ
counsel and to assume the defense of such claim or proceeding; provided,
however, that the indemnifying party shall not, in connection with any one such
claim or Proceeding or separate but substantially similar or related claims or
Proceedings in the same jurisdiction, arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than
one firm of attorneys (together with appropriate local counsel) at any time for
all of the indemnified parties, or for fees and expenses that are not
reasonable. Whether or not such defense is assumed by the indemnifying party,
such indemnified party will not be subject to any liability for any settlement
made without its consent (but such consent will not be unreasonably withheld).
The indemnifying party shall not consent to entry of any judgment or enter into
any settlement that does not include as an unconditional term thereof the giving
by the claimant or plaintiff to such indemnified party of a release, in form and
substance reasonably satisfactory to the indemnified party, from all liability
in respect of such claim or litigation for which such indemnified party would be
entitled to indemnification hereunder.
(d) Contribution. If the indemnification provided for in this
Section 8 is unavailable to an indemnified party in respect of any Losses (other
than in accordance with its terms), then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such Losses, in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party, on the one hand, and such indemnified party, on the other hand, in
connection with the actions, statements or omissions that resulted in such
Losses as well as any other relevant equitable considerations. The relative
fault of such indemnifying party, on the one hand, and indemnified party, on the
other hand, shall be determined by reference to, among other things, whether any
action in question, including any untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact, has been
taken by, or relates to information supplied by, such indemnifying party or
indemnified party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent any such action, statement or
omission.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 8(d) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 8(d), an indemnifying party that
is a selling holder of Registrable Securities shall not be required to
contribute any amount in excess of the amount by which the net proceeds from the
sale of the Registrable Securities sold by such indemnifying party exceeds the
amount of any damages that such indemnifying party has otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering are
in conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
15
Section 9. Rule 144. After an Initial Public Offering, the Company shall
file the reports required to be filed by it under the Securities Act and the
Exchange Act, and will take such further action as any holder of Registrable
Securities may reasonably request, all to the extent required from time to time
to enable such holder to sell Registrable Securities without registration under
the Securities Act within the limitations of the exemption provided by Rule 144.
Upon the request of any holder of Registrable Securities, the Company shall
deliver to such holder a written statement as to whether it has complied with
such requirements.
Section 10. Underwritten Registrations. If any Demand Registration is an
underwritten offering, the Company shall have the right to select the investment
banker or investment bankers and managers to administer the offering, subject to
approval by the holders of a majority of the Registrable Securities covered by
such Demand Registration, not to be unreasonably withheld. The Company shall
have the right to select the investment banker or investment bankers and
managers to administer any Piggyback Registration.
No Person may participate in any underwritten registration hereunder
unless such Person (i) agrees to sell the Registrable Securities it desires to
have covered by the Demand Registration on the basis provided in any
underwriting arrangements in customary form and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required under the terms of such underwriting arrangements,
provided that such Person shall not be required to make any representations or
warranties other than those related to title and ownership of shares and as to
the accuracy and completeness of statements made in a Registration Statement,
Prospectus, offering circular, or other document in reliance upon and in
conformity with written information furnished to the Company or the managing
underwriter by such Person.
Section 11. Limitation on Subsequent Registration Rights. From and after
the date of this Agreement, the Company shall not, without the prior written
consent of the holders of at least a majority of the then outstanding
Registrable Securities, enter into any agreement with any holder or prospective
holder of any securities of the Company giving such holder or prospective holder
any registration rights the terms of which would reduce the amount of
Registrable Securities the holders can include in any registration filed
pursuant to Section 3 hereof, unless such rights are subordinate to those of the
holders of Registrable Securities.
Section 12. Miscellaneous.
(a) 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 departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of holders
of at least a majority of the then outstanding Registrable Securities; provided,
however, that in no event shall the obligations of any holder of Registrable
Securities be materially increased or the rights of any holder of Registrable
Securities be adversely affected (without similarly adversely affecting the
rights of all holders of Registrable Securities), except upon the written
consent of such holder. Notwithstanding the foregoing, a waiver or consent to
depart from the provisions hereof with respect to a matter that relates
exclusively to the rights of holders of Registrable Securities whose securities
are being sold pursuant to a Registration Statement and that does not directly
or
16
indirectly affect the rights of other holders of Registrable Securities may be
given by holders of at least a majority of the Registrable Securities being sold
by such holders pursuant to such Registration Statement.
(b) Notices. All notices required to be given hereunder shall
be in writing and shall be deemed to be duly given if personally delivered,
telecopied and confirmed, or mailed by certified mail, return receipt requested,
or overnight delivery service with proof of receipt maintained, at the following
address (or any other address that any such party may designate by written
notice to the other parties):
if to the Company:
0000 Xx. 000 Xxxx, Xxxxx #000
Xxxxxxx, Xxxxxxxxxxxx 00000
Fax: 000-000-0000
Attn: Xxxxx X. Xxxxxxx, Chief Executive Officer
and a copy to:
T. Xxxx Xxxxx
Xxxxxx & Xxxxxx LLP
2300 First City Tower
0000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Fax: 000-000-0000
If to any holder of Registrable Securities, at such Person's address
as set forth on the records of the Company. Any such notice shall, if delivered
personally, be deemed received upon delivery; shall, if delivered by telecopy,
be deemed received on the first business day following confirmation; shall, if
delivered by overnight delivery service, be deemed received the first business
day after being sent; and shall, if delivered by mail, be deemed received upon
the earlier of actual receipt thereof or five business days after the date of
deposit in the United States mail.
(c) Successors and Assigns; Status. This Agreement shall inure
to the benefit of and be binding upon the successors and assigns of each of the
parties, including subsequent holders of Registrable Securities; provided,
however, that such successor or assign shall not be entitled to such rights
unless the successor or assign shall have executed and delivered to the Company
an Addendum Agreement substantially in the form of Exhibit A hereto promptly
following the acquisition of such Registrable Securities, in which event such
successor or assign shall be deemed a Management Qualified Holder or a Xxxxxx
Qualified Holder, as applicable, for purposes of this Agreement. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any Person other than the parties hereto and their respective permitted
successors and assigns any legal or equitable right, remedy or claim under, in
or in respect of this Agreement or any provision herein contained.
17
(d) Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(e) Headings. The section and paragraph headings contained in
this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
(f) Governing Law. This agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Pennsylvania
(without giving effect to the choice of law principles thereof).
(g) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(h) Entire Agreement. This Agreement is intended by the
parties 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. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein, with respect to the registration rights granted by the
Company with respect to Registrable Securities. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
(i) Securities Held by the Company or its subsidiaries.
Whenever the consent or approval of holders of a specified percentage of
Registrable Securities is required hereunder, Registrable Securities held by the
Company or its subsidiaries shall not be counted in determining whether such
consent or approval was given by the holders of such required percentage.
(j) Termination. This Agreement shall terminate when no
Registrable Securities remain outstanding; provided that Sections 7 and 8 shall
survive any termination hereof.
(k) Specific Performance. The parties hereto recognize and
agree that money damages may be insufficient to compensate the holders of any
Registrable Securities for breaches by the Company of the terms hereof and,
consequently, that the equitable remedy of specific performance of the terms
hereof will be available in the event of any such breach.
[signature pages follow]
18
IN WITNESS WHEREOF, the parties hereto have caused this Registration
Rights Agreement to be duly executed as of the date first above written.
SUPERIOR WELL SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: CEO
BUFFALO VALLEY REAL ESTATE COMPANY
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
/s/ Xxxxxx X. Xxxxxx
-----------------------------------------------
Xxxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxx
-----------------------------------------------
Xxxxx X. Xxxxxx
/s/ Xxxx X. Xxxxxx
-----------------------------------------------
Xxxx X. Xxxxxx
X.X. Xxxxxx, Xx. Grantor Retained Annuity Trust
Dated November 1, 2004
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Trustee
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Trustee
/s/ Xxxxxx X. Xxxxxx
-----------------------------------------------
Xxxxxx X. Xxxxxx
Signature Page to Registration Rights Agreement
/s/ Xxxxxxx X. Xxxxxx
-----------------------------------------------
Xxxxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxxx
-----------------------------------------------
Xxxxx X. Xxxxxxx
/s/ Rhys X. Xxxxx
-----------------------------------------------
Rhys X. Xxxxx
/s/ Xxxxx X. Xxxxxxxxxx
-----------------------------------------------
Xxxxx X. Xxxxxxxxxx
EASTERN MATERIAL CORP.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
ALLEGHENY MINERAL CORP.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
XXXXXXXXX CEMENT & SUPPLY CORP.
By: /s/ X. X. Xxxxxx, Xx.
-------------------------------------------
Name: X. X. Xxxxxx, Xx.
Title: President
GLACIAL SAND & GRAVEL CO.
By: /s/ Xxxx X. Xxxxxx
-------------------------------------------
Name: Xxxx X. Xxxxxx
Title: President
Signature Page to Registration Rights Agreement
EXHIBIT A
ADDENDUM AGREEMENT
This Addendum Agreement is made this ___ day of ______________, 20___, by
and between ________________________________ (the "New Stockholder") and
Superior Well Services, Inc., a Delaware corporation (the "Company"), pursuant
to a Registration Rights Agreement dated as of July 28, 2005 (the "Agreement"),
between and among the Company and certain of its stockholders (the
"Stockholders"). Capitalized terms used but not otherwise defined herein shall
have the meanings given to such terms in the Agreement.
WITNESSETH:
WHEREAS, the New Stockholder has acquired Registrable Securities (as
defined in the Agreement) directly or indirectly from a [Management] [Xxxxxx]
Qualified Holder; and
WHEREAS, the Agreement requires that all persons desiring registration
rights must enter into an Addendum Agreement binding the New Stockholder to the
Agreement to the same extent as if it were an original party thereto;
NOW, THEREFORE, in consideration of the mutual promises of the parties,
the New Stockholder acknowledges that it has received and read the Agreement and
that the New Stockholder shall be bound by, and shall have the benefit of, all
of the terms and conditions set out in the Agreement to the same extent as if it
were an original party to the Agreement and shall be deemed to be a [Management]
[Xxxxxx] Qualified Holder thereunder.
_________________________________
New Stockholder
Address:
____________________________
____________________________
Exhibit A-1
AGREED TO on behalf of the Company pursuant to Section 12(c) of the
Agreement.
SUPERIOR WELL SERVICES, INC.
By:______________________________
Name:
Title:
