REGISTRATION RIGHTS AGREEMENT BY AND AMONG LULU HOLDING, INC., AND THE INVESTORS NAMED AS INVESTORS HEREIN Dated as of December 5, 2005
Exhibit 10.9
Execution Copy
BY AND AMONG
LULU HOLDING, INC.,
AND
THE INVESTORS NAMED AS INVESTORS HEREIN
Dated as of December 5, 2005
This Registration Rights Agreement (this “Agreement”) is entered into as of
December 5, 2005 by and among:
| • | Lulu Holding, Inc., a Delaware corporation (the “Company”); | ||
| • | each of the stockholders of the Company’s Series A Preferred Stock, par value $0.01 per share (“Series A Preferred Stock”), whose names and addresses are set forth under Schedule A (the “Series A Holders”); and | ||
| • | each of the stockholders of the Company’s Series TS Preferred Stock, par value $0.01 per share (“Series TS Preferred Stock”), whose names and addresses are set forth under Schedule B (the “Series TS Holders”). |
BACKGROUND
The Company is authorized to issue Forty Million Seven Hundred Fifty (40,750,000) shares of
capital stock, consisting of Thirty Five Million (35,000,000) shares of common stock, $0.01 per
share (the “Common Stock”) and Five Million Seven Hundred Fifty Thousand (5,750,000), $0.01
per share (the “Preferred Stock”). Of the authorized shares of Preferred Stock, Two
Hundred Fifty Thousand (250,000) shares have been designated as Series A Preferred Stock, Two
Hundred Fifty Thousand (250,000) shares have been designated as Series B Preferred Stock (the
“Series B Preferred Stock”), and Two Hundred Fifty Thousand (250,000) shares of Preferred
Stock have been designated as Series TS Preferred Stock.
The Company has entered into a Subscription Agreement, dated as of the date hereof, with each
of the Series A Holders (collectively, the “Subscription Agreements”) pursuant to which the
Series A Holders acquired shares of Series A Preferred Stock.
As a result of the consummation of the transactions contemplated by the Stock Purchase
Agreement, dated as of the date hereof, by and among Lululemon Athletica USA Inc., a Nevada
corporation (“USA”), Advent International GPE V-A Limited Partnership, a Delaware limited
partnership, the Highland Funds (as defined therein), Oyoyo Holdings, Inc., a company organized
under the laws of British Columbia, LIPO Investments (USA), Inc., a company organized under the
laws of British Columbia (“LIPO (USA)”), and LIPO (USA) became a stockholder of the
Company.
The parties anticipate that upon or prior to the initial public offering of the Company’s
securities, LIPO Investments (Canada), Inc., a company organized under the laws of British Columbia
(“LIPO (Canada)”) will become a holder of Series B Preferred Stock and in relation thereto
the Company desire to give LIPO (Canada) the benefit of the registration rights provided herein
upon the issuance of Series B Preferred Stock to LIPO (Canada).
The parties hereto desire to enter into this agreement to provide for certain matters with
respect to the registration of Shares currently held by them or may be held by them upon completion
of certain reorganization transactions contemplated by the Certificate of Incorporation, Company
Stockholders Agreement, LAI Stockholders Agreement and USA Stockholders Agreement (as such terms
are defined herein).
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as
follows:
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ARTICLE 1
RULES OF CONSTRUCTION AND DEFINITIONS
RULES OF CONSTRUCTION AND DEFINITIONS
Section 1.1 Rules of Construction. In this Agreement, unless otherwise specified or where the context otherwise requires:
(a) the headings of particular provisions of this Agreement are inserted for convenience only
and will not be construed as a part of this Agreement or serve as a limitation or expansion of the
scope of any term or provision of this Agreement;
(b) words importing the singular only shall include the plural and vice versa;
(c) words importing any gender shall include other genders;
(d) the words “include,” “includes” or “including” shall be deemed followed by the words
“without limitation”;
(e) the words “hereof,” “herein” and “herewith” and words of similar import, shall, unless
otherwise stated, be construed to refer to this Agreement as a whole and not to any particular
provision of this Agreement;
(f) unless otherwise specified, the term “days” shall mean calendar days;
(g) a “percentage” (or a “majority”) of the Registrable Securities (or, where applicable, any
class of securities) shall be determined based on the number of shares of such securities; and
(h) unless otherwise provided, the currency for all dollar figures included in this Agreement
shall be the US Dollar.
Section 1.2 Defined Terms. As used in this Agreement, the following terms shall have the following meanings:
“Advent” means Advent International Corporation, a Delaware corporation.
“Advent Funds” has the meaning set forth in the Company Stockholders Agreement.
“Adverse Disclosure” means public disclosure of non-public information relating to a
material proposed acquisition, disposition, financing, reorganization, recapitalization or similar
transaction involving the Company or one of its Affiliates, which disclosure in the good faith
judgment of the Board of Directors, after consultation with external legal counsel, (a) would be
required to be made in any Registration Statement so that such Registration Statement would not be
materially misleading, (b) would not be required to be made at such time but for the filing,
effectiveness or continued use of such Registration Statement and (c) would have a material adverse
effect on the Company or its business or on the Company’s ability to effect such material proposed
acquisition, disposition, financing, reorganization, recapitalization or similar transaction.
“Adversely Affected Holder” has the meaning set forth in Section 3.6(a).
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“Affiliate” means, as to any specified Person, (a) any other person controlling,
controlled by or under common control with such specified Person, (b) any other Person of which
such specified Person is
an officer, employee, agent, director, shareholder or partner or (c) any member of the Family
Group of such specified Person or of any individual who is an Affiliate of such specified Person by
reason of clause (a) of this definition; provided, however, that no Person shall be deemed an
Affiliate of any other Person solely by reason of any investment in the Company or the Lululemon
Group. The term “control,” with respect to any Person, means possession, direct or
indirect, of the power to direct or cause the direction of the management and policies of such
Person, whether through the ownership of voting securities or a partnership interest, by contract
or otherwise. With respect to each of the Institutional Holders, the term “Affiliate” shall also
include (i) any entity in which such Institutional Holder (or one of its Affiliates) is a general
partner or member, and (ii) each investor in such Institutional Holder, but only in connection with
the liquidation, winding up or dissolution of the Institutional Holder, and only to the extent of
such investor’s pro rata share in the Institutional Investor. With respect to each Advent Fund,
the term “Affiliate” shall also include any investment fund managed by Advent.
“Aggregate Offering Price” means the aggregate offering price of Registrable
Securities in any offering, calculated based upon the Fair Market Value of the Registrable
Securities, in the case of a Minimum Demand Amount, as of the date that the applicable Request is
delivered, and in the case of a Shelf Underwritten Offering, as of the date that the applicable
Underwriting Notice is delivered.
“Agreement” has the meaning set forth in the preamble.
“Amendment” has the meaning set forth in Section 3.6(a).
“Beneficial Owner” and “beneficially own” shall be determined in accordance
with Rule 13d-3 promulgated under the Exchange Act.
“Board of Directors” means the Company’s board of directors.
“Business Day” shall mean any day other than (i) a Saturday or Sunday or (ii) a day on
which banks in New York, New York are required or authorized by law, executive order or
governmental decree to be closed.
“Certificate of Incorporation” means the Certificate of Incorporation of the Company,
as filed with the Delaware Secretary of State, including, without limitation, any certificate of
designations filed therewith relating to any class or series of capital stock of the Company, as
further amended or supplement from time to time in accordance with the terms thereof.
“Common Stock” has the meaning set forth in the recitals.
“Company” has the meaning set forth in the preamble and shall include the Company’s
successors by merger, acquisition, reorganization or otherwise.
“Company Stockholders Agreement” means the Stockholders Agreement by and among the
Company and the Persons listed therein, dated as of the date hereof, as amended from time to time
in accordance with the terms therein, relating to the capital stock, governance and affairs of the
Company.
“Counterpart Signature Page” means a counterpart signature page to this Agreement in
substantially the same form of Schedule C.
“Cutback Notice” has the meaning set forth in Section 2.1(h)(5).
“Demand Participation Notice” has the meaning set forth in Section 2.1(d).
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“Demand Registration” has the meaning set forth in Section 2.1(a).
“Demand Right” has the meaning set forth in Section 2.1(a).
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and any
successor thereto, and any rules and regulations promulgated thereunder, all as the same shall be
in effect from time to time.
“Fair Market Value” means, with respect to any Registrable Securities, (a) if the
Registrable Securities trade on a stock exchange or trading mechanism which publishes the closing
sales price of the Registrable Securities, the average closing sales price, calculated for the five
(5) trading days immediately preceding the date of a determination, (b) if the Registrable
Securities trade on a stock exchange or trading mechanism which does not publish the closing sales
price of the Registrable Securities, then the average of the bid and ask prices, calculated for the
five (5) trading days immediately preceding the date of a determination; or (c) in all other cases
the price determined in good faith by the board of directors of the Company.
“Holder” means any holder or holders of Registrable Securities who is a party to this
Agreement or who otherwise agrees in writing to be bound by the provisions of this Agreement
pursuant to Section 3.3.
“Incidental Cutback Notice” has the meaning set forth in Section 2.2(b).
“Incidental Registration” means any registration of the Registrable Securities of a
Holder pursuant to Section 2.2(a), but shall exclude any registration which constitutes a Demand
Registration, Shelf Underwritten Offering or non-underwritten offering under a Shelf Registration
Statement.
“Incidental Registration Notice” has the meaning set forth in Section 2.2(a)(1).
“Indemnified Person” has the meaning set forth in Section 2.7(a).
“Initiating Holders” means the Holder or Holders who made the Request to initiate a
Demand Registration, together with all Affiliates of such Holder or Holders.
“Institutional Holders” has the meaning set forth in the Company Stockholders
Agreement.
“LAI” has the meaning set forth in the recitals.
“LAI Stockholders Agreement” means the Stockholders Agreement by and among LAI and the
Persons listed therein, dated as of the date hereof, as amended from time to time in accordance
with the terms therein, relating to the capital stock, governance and affairs of LAI.
“LIPO (Canada)” has the meaning ret forth in the recitals.
“LIPO (USA)” has the meaning ret forth in the recitals.
“Loss” or “Losses” has the meaning set forth in Section 2.7(a).
“Minimum Demand Amount” means an amount of Registrable Securities that either (i) is
equal to or greater than 500,000 shares of Common Stock (as such number may be adjusted hereafter
to reflect any stock dividend, subdivision, recapitalization, reclassification, split,
distribution, combination or similar event) or (ii) has an Aggregate Offering Price of at least $5
million.
“NASD” means the National Association of Securities Dealers, Inc.
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“NASDAQ” means The Nasdaq Stock Market, Inc.
“Non-Underwritten Period” means, with respect to any offering which is not a Shelf
Registration and which does not contemplate an Underwritten Offering, a period of not less than 180
days (or such shorter period as will terminate when all Registrable Securities covered by such
Registration Statement have been sold or withdrawn).
“Participating Holder” means any Holder exercising its right to participate in a
Demand Registration under Section 2.1(d).
“Person” or “person” means any individual, firm, limited liability company,
partnership, joint venture, corporation, joint stock company, trust or unincorporated organization,
incorporated or unincorporated association, government (or any department, agency or political
subdivision thereof) or other entity of any kind.
“Permitted Transferee” has the meaning set forth in the Stockholders Agreement.
“Preferred Stock” has the meaning set forth in the recitals.
“Prospectus” means the prospectus included in any Registration Statement, all
amendments and supplements to such prospectus and all material incorporated by reference in such
prospectus.
“Registrable Securities” means (a) shares of Common Stock acquired (i) pursuant to an
award agreement under the Lulu Holding, Inc. 2005 Equity Plan, (ii) in accordance with the
Stockholders Agreement, (iii) as a result of a conversion of the Company’s Series A Preferred
Stock, Series B Preferred Stock or Series TS Preferred Stock into shares of Common Stock, or (iv)
as result of a conversion or exchange of shares of capital stock of LAI or USA into shares of
Common Stock pursuant to a reorganization effected pursuant to Article IV of the Company
Stockholders Agreement, Section 3.2 of the LAI Stockholders Agreement or Section 3.2 of the USA
Stockholders Agreement, and (b) any shares of Common Stock that may be issued or distributed by way
of stock dividend, stock split or other distribution, merger, consolidation, exchange offer,
recapitalization or reclassification or similar transaction, or exercise or conversion of any of
the foregoing; provided, however, that any of the foregoing securities shall cease to be
“Registrable Securities” (x) to the extent that a Registration Statement with respect to their sale
has been declared effective under the Securities Act and they have been disposed of pursuant to
such Registration Statement, (y) to the extent that they have been distributed pursuant to Rule 144
or Rule 145 (or any similar provisions then in force) under the Securities Act, or (z) at any time
after the ten (10) year anniversary of the date hereof, to the extent that they are eligible for
resale without registration by the Holder thereof under paragraph (k) of Rule 144 (or any similar
provision then in force) under the Securities Act.
“registration” means a registration of the Company’s securities for sale to the public
under a Registration Statement.
“Registration Period” means either the Shelf Period, the Underwritten Period or the
Non-Underwritten Period, as applicable.
“Registration Statement” means any registration statement of the Company filed with,
or to be filed with, the SEC under the Securities Act, including the Prospectus, amendments,
supplements and post-effective amendments to such registration statement, and all exhibits to, and
all material incorporated by reference in, such registration statement.
“Request” has the meaning set forth in Section 2.1(c).
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“SEC” means the Securities and Exchange Commission, or any successor U.S. governmental
agency.
“Securities Act” means the Securities Act of 1933, as amended, and any successor
thereto, and any rules and regulations promulgated thereunder, all as the same shall be in effect
from time to time.
“Series A Holders” has the meaning set forth in the preambles to this Agreement, and
includes each of the Series A Holder’s successors and Permitted Transferees.
“Series A Preferred Stock” has the meaning set forth in the recitals.
“Series B Preferred Stock” has the meaning set forth in the recitals.
“Series TS Holders” has the meaning set forth in the preambles to this Agreement, and
includes LIPO (Canada) and each of the Series TS Holder’s successors and Permitted Transferees.
Upon conversion or exchange of Series TS Preferred Stock into or for shares of Series B Preferred
Stock in accordance with the terms of the LAI Stockholders Agreement, the Company Stockholders
Agreement or the Certificate of Incorporation, the term “Series TS Holder” shall be deemed to
include a holder of Series B Preferred Stock, provided that such holder has signed a Counterpart
Signature Page or is otherwise a party to this Agreement.
“Series TS Preferred Stock” has the meaning set forth in the recitals.
“Shelf Demand” has the meaning set forth in Section 2.1(b).
“Shelf Period” means, with respect to any Shelf Registration Statement (other than a
Shelf Underwritten Offering), a period of thirty-six (36) consecutive months (or such shorter
period as will terminate when all Registrable Securities covered by such Registration Statement
have been sold or withdrawn) plus the period of time, if any, during which use of such Shelf
Registration Statement has been suspended pursuant to Section 2.1(g).
“Shelf Registration” means a registration effected pursuant to a Shelf Demand.
“Shelf Registration Statement” means a Registration Statement of the Company filed
with the SEC on Form S-3 (or any successor form or other appropriate form under the Securities Act)
for an offering to be made on a continuous or delayed basis pursuant to Rule 415 under the
Securities Act (or any similar rule that may be adopted by the SEC) covering the Registrable
Securities.
“Shelf Underwritten Offering” means an Underwritten Offering of Registrable Securities
by a Holder pursuant to a take down from a Shelf Registration Statement in accordance with Section
2.1(h)(2).
“Similar Securities” means, in connection with any registration of securities of the
Issuer, all securities of the Issuer which are (i) the same as or similar to those being
registered, (ii) convertible into or exchangeable or exercisable for the securities being
registered, or (iii) the same as or similar to the securities into which the securities being
registered are convertible into, exchangeable or exercisable for.
“Target Registration” means a Registration Statement filed pursuant to an obligation
incurred by the Company in connection with an acquisition of the stock or assets of another
company.
“Underwritten Offering” means a registration in which securities of the Company are
sold by the Company or a Holder to an underwriter or underwriters on a firm commitment basis for
reoffering to the public, including a Shelf Underwritten Offering.
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“Underwritten Period” means, with respect to any offering which is an Underwritten
Offering (including a Shelf Underwritten Offering), a period of not less than 180 days plus such
longer period (not to exceed 90 days after such 180th day) as, in the opinion of counsel for the
underwriter or underwriters, is required by law for the delivery of a Prospectus in connection with
the sale of Registrable Securities by an underwriter or dealer.
“Underwriting Notice” has the meaning set forth in Section 2.1(h).
“Underwriter Cutback Condition” has the meaning set forth in Section 2.2(b).
“USA” has the meaning set forth in the recitals.
“USA Stockholders Agreement” means the Stockholders Agreement by and among USA and the
parties listed therein, dated as of the date hereof, as amended from time to time in accordance
with the terms therein, relating to the capital stock, governance and affairs of USA.
ARTICLE 2
REGISTRATION RIGHTS
REGISTRATION RIGHTS
Section 2.1 Demand Registrations.
(a) Demand by Series A Holders, Series B Holders and Series TS Holders. At any time,
or from time to time, following the 180th day after the Company has become subject to
the periodic reporting requirements of the Exchange Act, (i) the Series A Holders who beneficially
own a majority of the outstanding Registrable Securities beneficially owned by all Series A Holders
or (ii) the Series TS Holders who beneficially own a majority of the outstanding Registrable
Securities beneficially owned by all Series TS Holders, shall have the right to require the Company
to register all or part of the Registrable Securities under the Securities Act (each such right, a
“Demand Right”); provided, that each registration made pursuant to a Demand Right must
include Registrable Securities in an amount not less than the Minimum Demand Amount. The Company
shall file with the SEC, as expeditiously as reasonably possible after the initiation of a Demand
Right, a Registration Statement relating to the offer and sale of the Registrable Securities
requested to be included therein by the Holders thereof (each, a “Demand Registration”) in
accordance with the methods of distribution elected by such Holders and shall use its best efforts
to cause such Registration Statement to be declared effective under the Securities Act as
expeditiously as reasonably possible thereafter. The Company shall use its best efforts to keep
the Registration Statement relating to such Demand Registration continuously effective in order to
permit the Prospectus forming a part thereof to be usable by the Holders, the underwriters and any
brokers or dealers during the period set forth in Section 2.1(f). In no event shall (i) the Series
A Holders have the right to require the Company to effect more than three (3) Demand Registrations
pursuant to this Agreement or (ii) the Series TS Holders and Series B Holders, acting as a single
class, have the right to require the Company to effect more than three (3) Demand Registrations
pursuant to this Agreement, including, in the case of each of clause (i) and (ii) of this sentence,
Demand Registrations which are Shelf Demands as set forth in Section 2.1(b). A registration shall
not be counted as “effected” for purposes of this Section 2.1 until such time as the applicable
registration statement has been declared effective by the SEC, unless the Initiating Holders
withdraw their request for such registration, elect not to pay the registration expenses therefor,
and forfeit their right to one demand registration statement pursuant to Section 2.6, in which case
such withdrawn registration statement shall be counted as “effected” for purposes of this Section
2.1.
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(b) Shelf Registrations. The Initiating Holders shall have the right, at any time
that the Company is legally eligible to file a Shelf Registration Statement, to elect that a Demand
Registration be made pursuant to a Shelf Registration Statement (a “Shelf Demand”);
provided, that each registration made pursuant to a Shelf Demand must include Registrable
Securities in an amount not less than the Minimum Demand Amount. If the Company shall receive a
Request specifying a Shelf Demand, the Company shall file with the SEC, as expeditiously as
reasonably possible after the initiation of a Shelf Demand, a Shelf Registration Statement relating
to the offer and sale of the Registrable Securities requested to be included therein by the Holders
thereof from time to time in accordance with the methods of distribution elected by such Holders
and shall use its best efforts to cause such Shelf Registration Statement to be declared effective
under the Securities Act as expeditiously as reasonably possible thereafter. The Company shall use
its best efforts to keep the Shelf Registration Statement continuously effective in order to permit
the Prospectus forming a part thereof to be usable by the Holders, the underwriters and any brokers
or dealers during the period set forth in Section 2.1(f).
(c) Demand Notice. All requests to initiate a Demand Right must be made by notice (a
“Request”):
(1) provided to the Company in writing;
(2) stating that it is a notice to initiate Demand Rights under this Agreement;
(3) stating whether a Shelf Demand is being requested;
(4) identifying the Holder(s) effecting the request; and
(5) stating the number of Registrable Securities to be included and the intended method of
disposition.
After a Request has been given for a Demand Registration or a Shelf Demand another Request cannot
be given until the date that is sixty (60) days following the date of withdrawal or the effective
date of the Registration Statement relating to such previous Demand Registration or Shelf Demand.
(d) Participations in Demand Rights. Within five (5) days following receipt of any
Request, the Company shall deliver written notice of such request (a “Demand Participation
Notice”) to all Holders of Registrable Securities other than the Initiating Holders.
Thereafter, the Company shall include in such Demand Registration any additional Registrable
Securities which the Holder or Holders thereof have, within fifteen (15) days after the Demand
Participation Notice has been given, requested in writing be included in such Demand Registration.
All such requests shall specify the aggregate amount of Registrable Securities to be registered.
(e) Demand Withdrawal. A Holder may withdraw its Registrable Securities from a Demand
Registration at any time prior to the effective time of the Registration Statement covering the
applicable Demand Registration by giving written notice of such withdraw prior to the effective
time of such Registration Statement. If all Holders withdraw their Registrable Securities from a
Demand Registration, the Company shall cease all efforts to secure registration. The Company shall
not withdraw a Registration Statement relating to a Demand Registration without the written consent
of the Initiating Holders, unless required to do so by law, regulation or upon the request of the
SEC.
(f) Effective Registration. The Company shall be deemed to have effected a Demand
Registration if the applicable Registration Statement is declared effective by the SEC and remains
effective as follows:
(1) if it is a Shelf Registration that is not a Shelf Underwritten Offering, it must remain
effective for the Shelf Period;
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(2) if it is a Shelf Registration that is a Shelf Underwritten Offering, it must remain
effective for the Underwritten Period;
(3) if it is not a Shelf Registration and such Registration Statement does not contemplate an
Underwritten Offering, it must remain effective for the Non-Underwritten Period; or
(4) if it is not a Shelf Registration and such Registration Statement contemplates an
Underwritten Offering, it must remain effective for the Underwritten Period.
Notwithstanding the foregoing, no Demand Registration (including any Shelf Demand) shall be deemed
to have been effected if an Underwritten Offering is contemplated by such Demand Registration and
the conditions to closing specified in the applicable underwriting agreement are not satisfied.
Subject to Section 2.1(g), the Company shall not be deemed to have effected a Registration
Statement, or to have used its best efforts to keep the Registration Statement effective, if the
Company voluntarily takes any action or omits to take any action that would result in the inability
of any Holder of Registrable Securities covered by such Registration Statement to be able to offer
and sell any such Registrable Securities during the applicable Registration Period, unless such
action or omission is required by applicable law.
(g) Delay or Suspension of Registration. If the filing, initial effectiveness or
continued use of a Registration Statement, including a Shelf Registration Statement, in respect of
a Demand Registration at any time would require the Company to make an Adverse Disclosure, then the
Company may, upon giving prompt written notice of such action to the Holders which are included in
such Demand Registration, delay the filing or initial effectiveness of, or suspend use of, such
Registration Statement; provided, that the Company shall not be permitted to do so in the aggregate
pursuant to this Section 2.1(g) and Section 2.2(c) (i) more than two (2) times during any twelve
(12) month period, (ii) for a period exceeding sixty (60) days on any one occasion or (iii) for a
period exceeding one hundred twenty (120) days in any twelve (12) month period. In the event the
Company exercises its rights under the preceding sentence, the Holders agree to suspend, promptly
upon their receipt of the notice referred to above, their use of the Prospectus relating to the
Demand Registration in connection with any sale or offer to sell Registrable Securities. The
Company shall promptly notify the Holders of the expiration of any period during which it exercised
its rights under this Section 2.1(g). The Company agrees that, in the event it exercises its
rights under this Section 2.1(g), it shall, as promptly as reasonably practicable following the
completion or abandonment of the transaction giving rise to the Corporation’s suspension notice,
and in any event within the time requirements set forth in this Section 2.1(g), file an amendment
to, or a Prospectus supplement with respect to, and otherwise use its best efforts to, update, the
suspended Registration Statement as may be necessary to permit the Holders to resume use thereof in
connection with the offer and sale of their Registrable Securities in accordance with applicable
law. The Company shall not be obligated to effect, or to take any action to effect, any
registration pursuant to this Section 2.1 (i) during the period that is sixty (60) days before the
Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred
twenty (120) days after the effective date of, a Company-initiated registration, provided,
that the Company is actively employing in good faith commercially reasonable efforts to cause such
Registration Statement to become effective.
(h) Underwritten Offerings.
(1) Demand Registrations. Any offering pursuant to a Demand Registration, other than
a Shelf Demand, shall be in the form of an Underwritten Offering upon the
request of the Holders of not less than a majority of the Registrable Securities included in
any offering pursuant to a Demand Registration.
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(2) Shelf Registrations. At any time that a Shelf Registration Statement is
effective, if any Holder or group of Holders delivers a notice to the Company (an “Underwriting
Notice”) stating that it intends to effect a Shelf Underwritten Offering of all or part of its
Registrable Securities included by it on the Shelf Registration Statement and stating the Aggregate
Offering Price and/or number of the Registrable Securities to be included in the Shelf Underwritten
Offering, then the Company shall amend or supplement the Shelf Registration Statement as may be
necessary in order to enable such Registrable Securities to be distributed pursuant to the Shelf
Underwritten Offering (taking into account the inclusion of Registrable Securities by any other
Holders pursuant to this Section 2.1(h)(2)); provided, that any Shelf Underwritten Offering must
include Registrable Securities in an amount not less than the Minimum Demand Amount. In connection
with any Shelf Underwritten Offering:
(A) such proposing Holder(s) shall also deliver the Underwriting Notice to all other Holders
and permit each Holder to include its Registrable Securities included on the Shelf Registration
Statement in the Shelf Underwritten Offering if such Holder notifies the proposing Holders and the
Company within 5 Business Days after delivery of the Underwriting Notice to such Holder;
(B) in the event that an Underwriter Cutback Condition occurs with respect to the Registrable
Securities proposed to be included in the Shelf Underwritten Offering, then (1) the number of
Registrable Securities which will be included in the Shelf Underwritten Offering shall only be that
number which, in the good faith opinion of the underwriter, can be included without being likely to
have a significant adverse effect on the price, timing or distribution of the class of securities
offered or the market for the class of securities offered or the Common Stock, and (2) each Holder
shall be entitled to include Registrable Securities in the Shelf Underwritten Offering pro rata
based on the number of Registrable Securities owned by such Holder as a percentage of the number of
Registrable Securities owned by all Holders seeking to participate in such Shelf Underwritten
Offering, subject to the priority allocation provisions set forth in Section 2.1(h)(5); and
(C) the Underwriting Notice shall state that Holders must respond to the Underwriting Notice
within 5 Business Days of the delivery thereof.
(3) Selection of Underwriters. In the event that a Demand Registration is an
Underwritten Offering (including a Shelf Underwritten Offering), the Initiating Holders in such
Underwritten Offering shall have the right to select the managing underwriter or underwriters for
the offering, which underwriters must be (x) nationally recognized investment banking firm(s), and
(y) reasonably acceptable to the Company.
(4) Similar Securities. Without the prior written consent of the Initiating Holders
and the managing underwriter or managing underwriters of any Underwritten Offering, the Company
shall not include any securities in such Underwritten Offering unless such securities are Similar
Securities.
(5) Priority of Securities Registered Pursuant to Demand Registrations. If the
managing underwriter of a proposed Underwritten Offering (other than a Shelf Underwritten Offering,
which shall be governed by Section 2.1(h)(2)(B)) of Registrable Securities included in a Demand
Registration informs the Holders of such Registrable Securities in writing (a “Cutback
Notice”) that, in its or their opinion, the number of securities requested to be included in
such
Demand Registration exceeds the number which can be sold in such offering without being likely
to have a significant adverse effect on the price, timing or distribution of the class of
securities offered or the market for the class of securities offered or the Common Stock, then the
Company shall include in such registration only the number of Registrable Securities which, in the
good faith opinion of such underwriter, can be included without having such an adverse effect,
selected in the following order:
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(A) first, the Registrable Securities requested to be included by the Initiating
Holders and the Holders who are Participating Holders with respect thereto, allocated pro rata
based on the number of Registrable Securities owned by such Holder as a percentage of the number of
Registrable Securities owned by all Holders seeking to participate in such Underwritten Offering;
and
(B) second, Similar Securities, if any, requested to be included by the Company or by
other Holders, allocated among them as they shall so determine;
provided, however, in no event shall any particular Holder be permitted to include in such
registration any Registrable Securities in excess of the number of Registrable Securities which
such Holder originally sought to include in such registration. In the event of a cutback pursuant
to this Section 2.1(h), each of the Holders agrees that it will not include Registrable Securities
in any registration effected pursuant to the Securities Act in a manner that is not in compliance
with the foregoing priorities.
(i) Registration Statement Form. Demand Registrations shall be on such appropriate
registration form of the SEC (i) as shall be selected by the Initiating Holders of the Demand
Registration and as shall be reasonably acceptable to the Company, and (ii) as shall facilitate and
permit the disposition of the Registrable Securities in accordance with the intended method or
methods of disposition specified in the applicable Holders’ requests for such registration.
Notwithstanding the foregoing, if, pursuant to a Demand Registration, (x) the registration is
proposed to be effected by filing a Registration Statement on Form S-3 (or any successor form under
the Securities Act), (y) such registration is in connection with an Underwritten Offering and (z)
the managing underwriter or underwriters advises the Company that, in its or their opinion, the
inclusion, rather than the incorporation by reference, of information in the Prospectus is of
material importance to the success of such proposed offering, then such information shall be so
included in such Prospectus.
Section 2.2 Incidental Registrations.
(a) Participation.
(1) At any time, or from time to time, after the Company has become subject to the periodic
reporting requirements of the Exchange Act or otherwise lists shares of its Common Stock on a
recognized securities exchange, Nasdaq or another trading medium, if the Company at any time files
a Registration Statement with respect to any offering of its securities for its own account or for
the account of any stockholder who holds its securities (other than (A) a registration on Form X-0,
X-0, X-0, F-10 or S-8 or any successor form to such forms, (B) a registration of securities solely
relating to an offering and sale to employees, directors or consultants of the Company pursuant to
any employee stock plan or other employee benefit plan arrangement or (C) a registration of
non-convertible debt securities) then, as expeditiously as reasonably possible, the Company shall
give written notice (the “Incidental Registration Notice”) of such filing to all Holders of
Registrable Securities, and such notice shall offer the Holders of such Registrable Securities the
opportunity to register such number of Registrable Securities as each such Holder may request in
writing. Subject to Section 2.2(b), the Company shall include in such Registration Statement all
such Registrable Securities which are requested to be included therein within fifteen (15) days
after the Incidental Registration Notice is given to such Holders. If at any time after giving
written notice of its intention to register any securities and prior to the
effective date of the Registration Statement filed in connection with such registration, the
Company shall determine for any reason not to register or to delay registration of such securities,
the Company may, at its election, give written notice of such determination to each Holder of
Registrable Securities and,
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(A) in the case of a determination not to register, shall be relieved of its obligation to
register any Registrable Securities in connection with such registration, and
(B) in the case of a determination to delay registering, shall be permitted to delay
registering any Registrable Securities for the same period as the delay in registering such other
securities.
(2) If the offering described in an Incidental Registration Notice is to be an Underwritten
Offering, then each Holder making a request for its Registrable Securities to be included therein
must, and the Company shall make such arrangements with the underwriters so that each such Holder
may, participate in such Underwritten Offering on the same terms as the Company and other Persons
selling securities in such Underwritten Offering, subject to the provisions of Section 2.4. If the
offering pursuant to such registration is to be on any other basis, then each Holder making a
request for an Incidental Registration pursuant to this Section 2.2(a) must participate in such
offering on such basis.
(3) Each Holder of Registrable Securities making a request for an Incidental Registration
pursuant to this Section 2.2(a) shall be permitted to withdraw all or part of such Holder’s
Registrable Securities from such Incidental Registration at any time prior to the effective time of
the Registration Statement covering the applicable Incidental Registration by giving written notice
of such withdraw prior to the effective time of such Registration Statement.
(b) Priority of Incidental Registration. If the managing underwriter or underwriters
of any proposed Underwritten Offering of securities included in an Incidental Registration informs
the Holders of Registrable Securities sought to be included in such registration pursuant to
Section 2.2(a) in writing (an “Incidental Cutback Notice”) that, in its or their opinion,
the total amount or kind of securities which such Holders and any other Persons intend to include
in such offering exceeds the number which can be sold in such offering without being likely to have
a significant adverse effect on the price, timing or distribution of the class of the securities
offered or the market for the class of securities offered or for the Common Stock (the foregoing,
an “Underwriter Cutback Condition”), then the Company shall include in such registration
only the number of Registrable Securities which, in the good faith opinion of such underwriter can
be included without having such an adverse effect, selected in the following order:
(1) if the registration is being effected by stockholders of the Company pursuant to the
exercise of contractual demand registration rights (other than pursuant to the exercise of Demand
Rights under this Agreement, in which event the provisions of Section 2.1(h)(5) shall govern),
(A) first, the securities, if any, being sold by such other stockholders exercising
such demand registration rights, allocated as they and the Company shall so determine;
(B) second, the Registrable Securities, if any, requested to be included by the
Holders pursuant to this Section 2.2 allocated pro rata based on the number of Registrable
Securities owned by such Holder as a percentage of the number of Registrable Securities held by all
Holders seeking to participate in such registration; and
(C) third, securities, if any, requested to be included by the Company and by any
other stockholders of the Company in accordance with agreements between the Company and such other
stockholders, allocated among them as they shall so determine;
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provided, however, in no event shall any particular Holder be permitted to include in such
registration any Registrable Securities in excess of the number of Registrable Securities which
such Holder originally sought to include in such registration; and
(2) if the registration is being effected by the Company for its own account or is a Target
Registration,
(A) first, the securities, if any, being sold by the Company and the Holders of the
Company’s securities for whom the Target Registration is undertaken, allocated among them as they
shall so determine;
(B) second, the Registrable Securities, if any, requested to be included by the
Holders pursuant to Section 2.2, allocated pro rata based on the on the number of Registrable
Securities owned by such Holder as a percentage of the number of Registrable Securities held by all
Holders seeking to participate in such registration; and
(C) third, the securities, if any, requested to be included by any other stockholders
of the Company in accordance with agreements between the Company and such other, allocated in
accordance with such agreements;
provided, however, in no event shall any particular Holder be permitted to include in such
registration any Registrable Securities in excess of the number of Registrable Securities which
such Holder originally sought to include in such registration. In the event of a cutback pursuant
to this Section 2.2(b), each of the Holders agrees that it will not include Registrable Securities
in any registration effected pursuant to the Securities Act in a manner that is not in compliance
with the foregoing priorities set forth in Section 2.2(b)(1) and Section 2.2(b)(2).
(c) Suspension or Termination of Registration. If the filing, initial effectiveness
or continued use of a Registration Statement, including a Shelf Registration Statement, in respect
of an Incidental Registration at any time would require the Company to make an Adverse Disclosure,
then the Company may, upon giving prompt written notice of such action to the Holders which are
included in such Incidental Registration, delay the filing or initial effectiveness of, or suspend
use of, such Registration Statement; provided, that the Company shall not be permitted to do so in
the aggregate pursuant to this Section 2.2(c) and Section 2.1(g) (i) more than two (2) times during
any twelve (12) month period, (ii) for a period exceeding 60 days on any one occasion or (iii) for
a period exceeding one hundred twenty (120) days in any twelve (12) month period. In the event the
Company exercises its rights under the preceding sentence, promptly upon their receipt of the
notice referred to above the Holders agree to suspend, and in the case of an Underwritten Offering
(including a Shelf Underwritten Offering), the Company and the Holders agree to cause any
underwriter to suspend, their use of the Prospectus relating to the Incidental Registration in
connection with any sale or offer to sell Registrable Securities. The Company shall promptly
notify the Holders of the expiration of any period during which it exercised its rights under this
Section 2.2(c). The Company agrees that, in the event it exercises its rights under this Section
2.2(c), it shall, as promptly as reasonably practicable following the completion or abandonment of
the transaction giving rise to the Corporation’s suspension notice, and in any event within the
time requirements set forth in this Section 2.2(c), file an amendment to, or a Prospectus
supplement with respect to, and otherwise use its best efforts to, update, the suspended
Registration Statement as may be necessary to permit the Holders to resume use thereof in
connection with the offer
and sale of their Registrable Securities in accordance with applicable law. Notwithstanding
any other provision of this (c), the Company shall have the right to terminate or withdraw any
registration initiated by it under this (c) before the effective date of such registration, whether
or not any Holder has elected to include Registrable Securities in such registration.
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Section 2.3 Registration Procedures.
(a) In connection with the Company’s registration obligations in this Agreement, the Company
will, subject to the limitations set forth herein, use its best efforts to effect any such
registration so as to permit the sale of the applicable Registrable Securities in accordance with
the intended method or methods of distribution thereof as expeditiously as reasonably possible and,
in connection therewith, the Company will:
(1) before filing a Registration Statement or Prospectus, or any amendments or supplements
thereto and in connection therewith, furnish to the managing underwriter or underwriters, if any,
and to one representative of each Holder (and its Affiliates) which has requested that Registrable
Securities be covered by such Registration Statement, copies of all documents prepared to be filed,
which documents will be subject to the review of such underwriters and such Holders and their
respective counsel and not file any Registration Statement or Prospectus or amendments or
supplements thereto to which the Holders of a majority of the Registrable Securities covered by the
same or the underwriter or underwriters, if any, shall reasonably object;
(2) prepare and file with the SEC such amendments or supplements to the applicable
Registration Statement or Prospectus as may be (A) reasonably requested by any selling Holder (to
the extent such request relates to information relating to such Holder), or (B) necessary to keep
such registration effective for the period of time required by this Agreement;
(3) notify the selling Holders of Registrable Securities and the managing underwriter or
underwriters, if any, and (if requested) confirm such advice in writing, as expeditiously as
reasonably possible after notice thereof is received by the Company (A) when the applicable
Registration Statement or any amendment thereto has been filed or becomes effective and when the
applicable Prospectus or any amendment or supplement thereto has been filed, (B) of any written or
material oral comments by the SEC or any request by the SEC or any other federal or state
governmental authority for amendments or supplements to such Registration Statement or Prospectus
or for additional information, (C) of the issuance by the SEC of any stop order suspending the
effectiveness of such Registration Statement or any order preventing or suspending the use of any
preliminary or final Prospectus or the initiation or threat of any proceedings for such purposes
and (D) of the receipt by the Company of any notification with respect to the suspension of the
qualification of the Registrable Securities for offering or sale in any jurisdiction or the
initiation or threat of any proceeding for such purpose;
(4) promptly notify each selling Holder of Registrable Securities and the managing underwriter
or underwriters, if any, when the Company becomes aware of the happening of any event as a result
of which the applicable Registration Statement or Prospectus (as then in effect) contains any
untrue statement of a material fact or omits to state a material fact necessary to make the
statements therein (in the case of the Prospectus and any preliminary Prospectus, in light of the
circumstances under which they were made) not misleading or, if for any other reason it shall be
necessary to amend or supplement such Registration Statement or Prospectus in order to comply with
the Securities Act and, in either case as promptly as reasonably practicable thereafter (except as
otherwise provided under Section 2.1(g) or Section 2.2(c)), prepare and file with the SEC an
amendment or
supplement to such Registration Statement or Prospectus which will correct such statement or
omission or effect such compliance;
(5) use its best efforts to prevent or obtain at the earliest possible moment the withdrawal
of any stop order with respect to the applicable Registration Statement or other order suspending
the use of any preliminary or final Prospectus;
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(6) promptly incorporate in a Prospectus supplement or post-effective amendment to the
applicable Registration Statement such information as the managing underwriter or underwriters, if
any, or the Initiating Holders agree should be included therein relating to the plan of
distribution with respect to such Registrable Securities; and make all required filings of such
Prospectus supplement or post-effective amendment as expeditiously as reasonably possible after
being notified of the matters to be incorporated in such Prospectus supplement or post-effective
amendment;
(7) furnish to each selling Holder of Registrable Securities, its counsel and each managing
underwriter, if any, without charge, as many conformed copies as such Holder or managing
underwriter may reasonably request of the applicable Registration Statement and each amendment
thereto;
(8) deliver to each selling Holder of Registrable Securities and each managing underwriter, if
any, without charge, as many copies of the applicable Prospectus (including each preliminary
Prospectus) as such Holder or managing underwriter may reasonably request, and such other documents
as such selling Holder or managing underwriter may reasonably request in order to facilitate the
disposition of the Registrable Securities by such Holder or underwriter;
(9) on or prior to the date on which the applicable Registration Statement is declared
effective, use its best efforts to register or qualify such Registrable Securities for offer and
sale under the securities or “blue sky” laws of each state and other jurisdiction of the United
States, as any such selling Holder or underwriter, if any, or their respective counsel reasonably
requests in writing, and do any and all other acts or things reasonably necessary or advisable to
keep such registration or qualification in effect so as to permit the commencement and continuance
of sales and dealings in such jurisdictions for as long as may be necessary to complete the
distribution of the Registrable Securities covered by the Registration Statement; provided, that
the Company will not be required to qualify generally to do business in any jurisdiction where it
is not then so qualified or to take any action which would subject it to taxation or general
service of process in any such jurisdiction where it is not then so subject;
(10) cooperate with the selling Holders of Registrable Securities and the managing
underwriter, underwriters or agent, if any, to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold and not bearing any restrictive
legends;
(11) use its best efforts to cause the Registrable Securities covered by the applicable
Registration Statement to be registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers thereof or the underwriter or
underwriters, if any, to consummate the disposition of such Registrable Securities;
(12) not later than the effective date of the applicable Registration Statement, provide a
CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed
certificates for the Registrable Securities which certificates shall be in a form eligible for
deposit with The Depository Trust Company;
(13) obtain for delivery to (and addressed to) the underwriter or underwriters, an opinion or
opinions from counsel for the Company dated the date of the closing under the underwriting
agreement, in customary form, scope and substance, which counsel and opinions shall be reasonably
satisfactory to a majority of such Holders and the managing underwriter or underwriters, if any,
and their respective counsel;
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(14) in the case of an Underwritten Offering (including a Shelf Underwritten Offering), obtain
for delivery to (and addressed to) the Company and the underwriter or underwriters, a cold comfort
letter from the Company’s independent certified public accountants in customary form and covering
such matters of the type customarily covered by cold comfort letters as the managing underwriter or
underwriters reasonably request, dated the date of execution of the underwriting agreement and
brought down to the closing under the underwriting agreement;
(15) cooperate with each selling holder of Registrable Securities and each underwriter or
agent, if any, participating in the disposition of such Registrable Securities and their respective
counsel in connection with any filings required to be made with the NASD;
(16) use its best efforts to comply with all applicable rules and regulations of the SEC and
make generally available to its security holders, as expeditiously as reasonably possible after the
effective date of the applicable Registration Statement, but not later than sixty (60) days after
the date of the most recent fiscal quarter, an earnings statement satisfying the provisions of
Section 11(a) of the Securities Act and the rules and regulations promulgated thereunder;
(17) provide and cause to be maintained a transfer agent and registrar for all Registrable
Securities covered by the applicable Registration Statement from and after a date not later than
the effective date of such Registration Statement;
(18) cause all Registrable Securities of a class covered by the applicable Registration
Statement to be listed on each securities exchange and inter-dealer quotation system on which any
of the Company’s securities of such class are then listed or quoted;
(19) make available upon reasonable notice at reasonable times and for reasonable periods for
inspection by representatives appointed by the Holders of a majority of the Registrable Securities
covered by the applicable Registration Statement, by any managing underwriter or underwriters
participating in any disposition to be effected pursuant to such Registration Statement, and by any
attorney, accountant or other agent retained by such sellers or any such managing underwriter, all
pertinent financial and other records, pertinent corporate documents and properties of the Company,
and cause the Company’s senior executive officers, directors and employees and the independent
public accountants who have certified its financial statements to make themselves available at
mutually convenient times to discuss the business of the Company and to supply all information
reasonably requested by any such sellers, underwriter or agent thereof in connection with such
Registration Statement as shall be necessary (subject to the Company’s compliance with Regulation
FD) to to enable them to exercise their due diligence responsibility;
(20) in the case of an Underwritten Offering (including any Shelf Underwritten Offering),
cause the senior executive officers of the Company to participate in the customary “road show”
presentations that may be reasonably requested by the managing underwriter in any such Underwritten
Offering and otherwise to facilitate, cooperate with, and participate in each proposed offering
contemplated herein and customary selling efforts related thereto;
(21) upon the request of any Holder, promptly amend any Shelf Registration Statement or take
such other action as may be necessary to de-register, remove or withdraw
all or a portion of the Holder’s Registrable Shares from a Shelf Registration Statement, as
requested by such Holder; and
(22) use its best efforts to take all other steps necessary to effect the registration of the
Registrable Securities contemplated hereby.
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(b) It shall be a condition precedent to the obligations of the Company to take any action
pursuant to this Article 2 with respect to the Registrable Securities of any selling Holder that
each selling Holder of Registrable Securities as to which any registration is being effected shall
furnish to the Company such information regarding the distribution of such Registrable Securities
and such other customary information relating to such Holder and its ownership of the applicable
Registrable Securities as the Company may from time to time reasonably request and as shall be
reasonably required in connection with any Registration Statement. Each Holder of Registrable
Securities agrees to furnish such information to the Company and to reasonably cooperate with the
Company as necessary to enable the Company to comply with the provisions of this Agreement.
(c) Each Holder of Registrable Securities agrees by acquisition of such Registrable Securities
that, upon receipt of any notice from the Company of the happening of any event of the kind
described in Section 2.3(a)(4), such Holder will use its best efforts to discontinue disposition of
its Registrable Securities pursuant to such Registration Statement until such Holder’s receipt of
the copies of the supplemented or amended Prospectus contemplated by Section 2.3(a)(4), or until
such Holder is advised by the Company that the use of the Prospectus may be resumed, and has
received copies of any additional or supplemental filings that are incorporated by reference in the
Prospectus. In the event that the Company shall give any such notice in respect of a Demand
Registration, the period during which the applicable Registration Statement is required to be
maintained effective shall be extended by the number of days during the period from and including
the date of the giving of such notice to and including the date when each seller of Registrable
Securities covered by such Registration Statement either receives the copies of the supplemented or
amended Prospectus contemplated by Section 2.3(a)(4) or is advised in writing by the Company that
the use of the Prospectus may be resumed.
Section 2.4 Underwritten Offerings.
(a) Underwriting Agreements. If requested by the managing underwriter or underwriters
for any Demand Registration that is an Underwritten Offering (including a Shelf Underwritten
Offering), the Company and the Holders of Registrable Securities to be included therein shall enter
into an underwriting agreement with such underwriters, to contain such terms and conditions as are
generally prevailing in agreements of that type, including indemnities no more burdensome to the
indemnifying party and no less favorable to the recipient thereof than those provided in Section
2.7. The Holders of any Registrable Securities to be included pursuant to Section 2.2(a) in any
Incidental Registration that is an Underwritten Offering (excluding any Demand Registration or
Shelf Underwritten Offering) shall enter into such an underwriting agreement at the request of the
Company. No Holder shall be required in any such underwriting agreement to make any
representations or warranties to or agreements with the Company or the underwriters other than
customary representations, warranties or agreements regarding such Holders’ title to Registrable
Securities and any written information provided by the Holder to the Company expressly for
inclusion in the related registration statement.
(b) Price and Underwriting Discounts. In the case of a Demand Registration that is an
Underwritten Offering (including a Shelf Underwritten Offering), the price, underwriting discount
and other financial terms for the sale of the Registrable Securities shall be determined by the
Initiating Holders of such Demand Registration. In the case of any Incidental Registration that is
an Underwritten Offering (excluding any Demand Registration or Shelf Underwritten Offering), such
price,
discount and other terms shall be determined (i) by the Company in the case of a registration
governed by Section 2.2(b)(2), or (ii) by the holders of a majority of the Registrable Securities
registered for the account of stockholders exercising demand registration rights, in the case of a
registration governed by Section 2.2(b)(1), or in accordance with an agreement among the Company
and such majority holders.
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(c) Participation in Underwritten Offerings. No Person may participate in an
Underwritten Offering (including a Shelf Underwritten Offering) unless such Person (i) agrees to
sell such Person’s securities on the basis provided in any underwriting arrangements approved by
officers of such Persons authorized to approve such arrangements, (ii) executes and delivers the
underwriting agreement and all other documents required under the terms of such underwriting
arrangements and (iii) completes, executes and delivers all questionnaires, powers of attorney,
custody agreements, indemnities and opinions reasonably requested by the Company and customary for
secondary offerings.
Section 2.5 No Inconsistent Agreements; Additional Rights. The Company will not enter into, and is not currently a party to, any agreement which is
inconsistent with the rights granted to the Holders of Registrable Securities by this Agreement.
If the Company enters into any agreement after the date hereof granting any person registration
rights with respect to any security of the Company which agreement contains any material provisions
more favorable to such person than those set forth in this Agreement, the Company will notify the
Holders and will agree to such amendments to this Agreement as may be necessary to provide these
rights to the Holders.
Section 2.6 Registration Expenses.
(a) The Company shall pay all of the expenses incurred in connection with its compliance with
Article 2, including (i) all registration and filing fees, and any other fees and expenses
associated with filings required to be made with the SEC or the NASD, (ii) all fees and expenses of
compliance with state securities or “blue sky” laws, including all reasonable fees and
disbursements of one counsel in connection with any survey of state securities or “blue sky” laws
and the preparation of any memorandum thereon, (iii) all printing, duplicating, word processing,
messenger, telephone, facsimile and delivery expenses related to the preparation by the Company of
any Registration Statement or Prospectus, agreements with underwriters, and any other ancillary
agreements, certificates or documents arising out of or related to the foregoing (including
expenses of printing certificates for the Registrable Securities in a form eligible for deposit
with The Depository Trust Company and of printing prospectuses), (iv) all fees and disbursements of
counsel for the Company and of all independent certified public accountants of the Company, and (v)
all fees and expenses incurred in connection with the listing of the Registrable Securities on any
securities exchange, Nasdaq, or other trading medium. In addition, in all cases the Company shall
pay its internal expenses (including all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any audit and the fees and expenses of any
Person, including special experts, retained by the Company. In addition, the Company shall pay all
reasonable fees and disbursements of one law firm or other counsel selected by the holders of a
majority of the Registrable Securities being registered, subject to a reasonable cap to be agreed
upon by the Issuer and the holders in light of the laws and regulations existing at the time of the
applicable Registration, and if there exists no material change in legal requirements imposed on
registering holders after the date of this Agreement, then such cap will not exceed $25,000;
provided, however, that the Company shall not be required to pay for any expenses of any
registration proceeding begun pursuant to Section 2.1 if the registration request is subsequently
withdrawn at the request of the Initiating Holders (in which case the Initiating Holders shall bear
such expenses pro rata based upon the number of Registrable Securities that were to be included in
the withdrawn registration), unless such Holders agree to forfeit their right to one registration
pursuant to Section 2.1.
(b) The Company shall not be required to pay any other costs or expenses in the course of an
offering of Registrable Securities pursuant to this Agreement, including underwriting discounts and
commissions and transfer taxes attributable to the sale of Registrable Securities and the fees and
expenses of counsel to the Holders or the underwriters, other than pursuant to Section 2.6(a).
Section 2.7 Indemnification.
(a) Indemnification by the Company. The Company agrees to indemnify and hold
harmless, to the full extent permitted by law, each selling Holder of Registrable Securities and
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their respective directors, officers and partners, and each Person who controls (within the meaning
of the Securities Act or the Exchange Act) such Persons (each, an “Indemnified Person”)
from and against any and all losses, claims, damages, liabilities (or actions or proceedings in
respect thereof, whether or not such Indemnified Person is a party thereto) and expenses (including
reasonable costs of investigation and legal expenses), joint or several (each, a “Loss” and
collectively “Losses”), arising out of or based upon (i) any misstatement in or omission
from any representation or warranty, or any breach of covenant or agreement, in each case made or
deemed made by the Company in any underwriting or similar agreement entered into by the Company in
connection with any Registration Statement, (ii) any violation by the Company of the Securities Act
or any state securities or “blue sky” laws, rules or regulations, in either case in connection with
any Registration Statement, (iii) any untrue or alleged untrue statement of a material fact
contained in any Registration Statement under which such Registrable Securities were registered
under the Securities Act (including any final, preliminary or summary Prospectus contained therein
or any amendment thereof or supplement thereto or any documents incorporated by reference therein)
or (iv) any omission or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein (in the case of a Prospectus or preliminary
Prospectus, in light of the circumstances under which they were made) not misleading; provided,
however, that the Company shall not be liable to indemnify an Indemnified Person to the extent that
any such Loss arises out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in any such Registration Statement in reliance upon and in
conformity with written information furnished to the Company by such Holder expressly for use in
the preparation thereof or arises out of or is based upon such Holder’s failure to deliver a copy
of the Prospectus or any amendments or supplements thereto to a purchaser (if so required) after
the Company has furnished such Holder with a copy of the same. This indemnity shall be in addition
to any liability the Company may otherwise have. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of such Holder or any Indemnified
Person and shall survive the transfer of such securities by such Holder. The Company will also
indemnify, if the offering is an Underwritten Offering (including a Shelf Underwritten Offering)
and if requested, underwriters participating in any distribution pursuant to this Agreement, their
officers, directors and partners, and each Person who controls such Persons (within the meaning of
the Securities Act and the Exchange Act) to the same extent as provided above (with appropriate
modifications) with respect to the indemnification of each Holder.
(b) Indemnification by the Holders. Each selling Holder of Registrable Securities
agrees (severally and not jointly) to indemnify and hold harmless, to the full extent permitted by
law, the Company, its directors, officers and partners, and each Person who controls the Company
(within the meaning of the Securities Act and the Exchange Act), and each other selling Holder of
Registrable Securities, their respective officers, directors and partners, and each Person who
controls (within the meaning of the Securities Act or the Exchange Act) such Person, from and
against any Losses resulting from (i) any untrue or allegedly untrue statement of a material fact
or any omission or alleged omission of a material fact required to be stated in the Registration
Statement under which such Registrable Securities were registered under the Securities Act
(including any final, preliminary or summary Prospectus contained therein or any amendment thereof
or supplement thereto or any documents incorporated by reference therein), or necessary to make the
statements therein (in the case of
a Prospectus or preliminary Prospectus, in light of the circumstances under which they were
made) not misleading, to the extent, but only to the extent, that such untrue statement or omission
had been contained in any information furnished in writing by such selling Holder to the Company
expressly for inclusion in such Registration Statement, and (ii) any misstatement in or omission
from any representation or warranty, or any breach of covenant or agreement, in each case made or
deemed made by such Holder in any underwriting or similar agreement entered by into by such Holder
in connection with the particular registration. Each Holder also shall indemnify any underwriters
of the Registrable Securities, their officers, directors and partners, and each Person who controls
such underwriters (within the meaning of the Securities Act) to the same extent as provided above
with respect to the
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indemnification of the Company. The liability of any Holder for
indemnification under this Section 2.7 in its capacity as a seller of Registrable Securities shall
not exceed the lesser of (i) that proportion of the total of such losses, claims, damages, expenses
or liabilities indemnified against equal to the proportion of the total securities sold under such
registration statement held by such Investor, and (ii) the amount equal to the net proceeds to
such Holder of the securities sold in any such registration; provided that no selling holder shall
be required to indemnify any Person against any Losses arising from any untrue statement or alleged
untrue statement of a material fact contained in, or omission or alleged omission of a material
fact from, a preliminary Prospectus (or necessary to make the statements therein not misleading)
that has been corrected in the form of Prospectus included in the Registration Statement at the
time it becomes effective, or any amendment or supplement thereto filed with the SEC pursuant to
Rule 424(b) under the Securities Act prior to the time of sale of Registrable Securities that gives
rise to such Losses.
(c) Indemnification by Securities Industry Professionals. The Company shall use
commercially reasonable efforts to obtain the agreement of the underwriters, if any, participating
in a particular Underwritten Offering (including a Shelf Underwritten Offering), to provide
indemnities for the benefit of the Company and the Holders of Registrable Securities participating
in the distribution, to the same extent as provided in Section 2.7(b) (with appropriate
modification) with respect to information so furnished in writing by such underwriters specifically
for inclusion in any Prospectus or Registration Statement.
(d) Conduct of Indemnification Proceedings. Any Person entitled to indemnification
hereunder will (i) give prompt written notice to the indemnifying party of any claim with respect
to which it seeks indemnification (provided, that any delay or failure to so notify the
indemnifying party shall relieve the indemnifying party of its obligations hereunder only to the
extent, if at all, that it is actually and materially prejudiced by reason of such delay or
failure) and (ii) permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the Indemnified Person; provided, that any Person entitled to
indemnification hereunder shall have the right to select and employ separate counsel and to
participate in the defense of such claim, but the fees and expenses of such counsel shall be at the
expense of such Person unless (A) the indemnifying party has agreed in writing to pay such fees or
expenses, (B) the indemnifying party shall have failed to assume the defense of such claim within a
reasonable time after having received notice of such claim from the Person entitled to
indemnification hereunder and to employ counsel reasonably satisfactory to such Person, (C) in the
reasonable judgment of any such Person, based upon advice of its counsel, a conflict of interest
exists or may potentially exist between such Person and the indemnifying party with respect to such
claims or (D) the Indemnified Person has reasonably concluded (based on advice of counsel) that
there may be legal defenses available to it or other indemnified parties that are different from or
in addition to those available to the indemnifying party (in the case of (B), (C) and (D), if the
Person notifies the indemnifying party in writing that such Person elects to employ separate
counsel at the expense of the indemnifying party, the indemnifying party shall not have the right
to assume the defense of such claim on behalf of such Person). If such defense is not assumed by
the indemnifying party, the indemnifying party will not be subject to any liability for any
settlement made without its consent, but such consent may not be unreasonably withheld; provided,
that an indemnifying party may withhold its consent to any settlement involving the
imposition of equitable remedies or involving the imposition of any material obligations on
such indemnifying party other than financial obligations for which such Indemnified Person will be
indemnified hereunder. No indemnifying party shall consent to entry of any judgment or enter into
any settlement which does not include as an unconditional term thereof the giving by the claimant
or plaintiff to each Indemnified Person of an unconditional release from all liability in respect
to such claim or litigation. The indemnifying party or parties shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm (together with one firm of local
counsel) at any one time for all Indemnified Parties unless (x) the employment of more than one
counsel has been authorized in writing by the
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indemnifying party or parties, (y) a conflict or
potential conflict exists or may exist (based on advice of counsel to an Indemnified Person)
between such Indemnified Person and the other Indemnified Parties or (z) an Indemnified Person has
reasonably concluded (based on advice of counsel) that there may be legal defenses available to it
that are different from or in addition to those available to the other Indemnified Parties, in each
of which cases the indemnifying party shall be obligated to pay the reasonable fees and expenses of
such additional counsel or counsels.
(e) Contribution. If for any reason the indemnification provided for in Section
2.7(a) and Section 2.7(b) is unavailable to an Indemnified Person or insufficient to hold it
harmless as contemplated by Section 2.7(a) and Section 2.7(b), then the indemnifying party shall
contribute to the amount paid or payable by the Indemnified Person as a result of such Loss in such
proportion as is appropriate to reflect the relative fault of the indemnifying party on the one
hand and the Indemnified Person on the other. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information supplied by the
indemnifying party or the Indemnified Person and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or omission.
Notwithstanding anything in this Section 2.7(e) to the contrary, no indemnifying party (other than
the Company) shall be required pursuant to this Section 2.7(e) to contribute any amount in excess
of the amount by which the net proceeds received by such indemnifying party from the sale of
Registrable Securities in the offering to which the Losses of the Indemnified Parties relate
exceeds the amount of any damages which such indemnifying party has otherwise been required to pay
by reason of such untrue statement or omission. The parties to this Agreement agree that it would
not be just and equitable if contribution pursuant to this Section 2.7(e) 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 this Section 2.7(e). 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.
Section 2.8 Rules 144 and 144A. The Company covenants that, from and after the time it becomes subject to the periodic
reporting requirements of the Exchange Act, it will file the reports required to be filed by it
under the Securities Act and the Exchange Act and the rules and regulations adopted by the SEC
thereunder (or, if the Company thereafter is no longer required to file such reports, it will, upon
the request of any Holder of Registrable Securities, make publicly available other information so
long as necessary to permit sales pursuant to Rule 144 and 144A under the Securities Act), and it
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 limitation of the exemptions provided by
(i) Rule 144 or 144A or Regulation S under the Securities Act, as such Rules may be amended from
time to time, or (ii) any similar rule or regulation hereafter adopted by the SEC. Upon the request
of any Holder of Registrable Securities, the Company will deliver to such Holder a written
statement as to whether it has complied with such requirements and, if not, the specifics thereof.
Section 2.9 Holdback. The parties acknowledge that they are parties to the Stockholders Agreement which contains
restrictions on the sale of securities during specified periods of time in connection with the
Company’s filing of a Registration Statement.
Section 2.10 Canadian Registration. If, after the date of this Agreement, the Company files a prospectus with any Canadian
provincial securities commission from time to time, the Company will use its best efforts to
facilitate and enable the Holders to make a secondary offering of Registrable Securities in Canada
to the fullest extent permitted by applicable securities laws, subject to the approval by the
underwriters or agents involved in the offering and the applicable securities regulators.
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ARTICLE 3
MISCELLANEOUS
MISCELLANEOUS
Section 3.1 Injunctive Relief. It is hereby agreed and acknowledged that it will be impossible to measure in money the
damages that would be suffered if the parties fail to comply with any of the obligations herein
imposed on them and that in the event of any such failure, an aggrieved Person will be irreparably
damaged and will not have an adequate remedy at law. Any such Person shall, therefore, be entitled
(in addition to any other remedy to which it may be entitled in law or in equity) to injunctive
relief, including specific performance, to enforce such obligations, without the requirement that a
bond be posted and, if any action should be brought in equity to enforce any of the provisions of
this Agreement, none of the parties to this Agreement shall raise the defense that there is an
adequate remedy at law. Notwithstanding the foregoing, no Holder shall have any right to obtain or
seek an injunction restraining or otherwise delaying any registration pursuant to this Agreement as
the result of any controversy that might arise with respect to the interpretation or implementation
of Section 2 hereof.
Section 3.2 Notices. All notices or other communications which are required or permitted hereunder shall be in
writing and sufficient if delivered by hand, by facsimile transmission, by registered or certified
mail, postage pre-paid, or by courier or overnight carrier, to the Persons at the addresses set
forth in Schedule A and Schedule B in the case of a Holder and to the address set
forth below in the case of the Company (or at such other address as may be provided hereunder), and
shall be deemed to have been delivered (a) on the date of delivery if delivered personally, or by
telecopy or facsimile, upon confirmation of receipt, (b) on the first Business Day following the
date of dispatch if delivered by a recognized next-day courier service, or (c) on the fifth
Business Day following the date of mailing if delivered by registered or certified mail return
receipt requested, postage prepaid:
if to the Company to:
Lulu Holding, Inc.
x/x Xxxxxx Xxxxxxxxxxxxx Xxxxxxxxxxx
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
x/x Xxxxxx Xxxxxxxxxxxxx Xxxxxxxxxxx
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
with copies to:
Advent International Corporation
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
and
Xxxxxx Xxxxxxxx LLP
3000 Two Xxxxx Xxxxxx
Xxxxxxxxxx & Xxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
3000 Two Xxxxx Xxxxxx
Xxxxxxxxxx & Xxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
-24-
Section 3.3 Successors, Assigns and Transferees.
(a) The registration rights of any Holder under this Agreement with respect to any Registrable
Securities may be transferred and assigned; provided, that no such assignment shall be binding upon
or obligate the Company to any such assignee unless and until the Company shall have received
notice of such assignment as herein provided and a written agreement of the assignee to be bound by
the provisions of this Agreement by executing a Counterpart Signature Page. Any transfer or
assignment made other than as provided in the first sentence of this Section 3.3 shall be null and
void. Schedule A and Schedule B shall be deemed to be amended to add any party
delivering a Counterpart Signature Page pursuant to this Section 3.3.
(b) Upon a reorganization in connection with the LAI Stockholders Agreement, Company
Stockholders Agreement, US Stockholders or any other conversion or exchange of shares of Series TS
Preferred Stock into or for shares of Series B Preferred Stock, all of the rights provided pursuant
to and obligations set in, this Agreement with respect to the shares of Series TS Preferred Stock
shall thereafter apply to the shares of Series B Preferred Stock issued upon such conversion or in
such exchange.
(c) This Agreement shall be binding upon and shall inure to the benefit of the parties to this
Agreement, and their respective successors and permitted assigns.
Section 3.4 Choice of Law; Jurisdiction; Venue; WAIVER OF JURY TRIAL.
(a) This Agreement shall be construed and enforced in accordance with the laws of the State of
Delaware without regard to the application of the principles of conflicts or choice of laws.
(b) Each of the parties hereto hereby submit to the exclusive jurisdiction of the federal or
state courts of the State of Delaware with respect to any action or legal proceeding commenced by
either of them with respect to this Agreement. Each of them irrevocably waives any objection they
now have or hereafter may have respecting the venue of any such action or proceeding brought in
such a court or respecting the fact that such court is an inconvenient forum and consents to the
service of process in any such action or proceeding by means of registered or certified mail,
return receipt requested, in care of the address set forth herein or at such other address as
either of them shall furnish in writing to the other.
(c) THE PARTIES HERETO EACH HEREBY WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING INVOLVING
ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT, FRAUD OR OTHERWISE) IN ANY WAY ARISING OUT OF OR
RELATING TO THIS AGREEMENT.
Section 3.5 Severability. Whenever possible, each provision or portion of any provision of this Agreement will be
interpreted in such manner as to be effective and valid under applicable law but if any provision
or portion of any provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law in any jurisdiction, such invalidity, illegality or
unenforceability will not affect any other provision or portion of any provision in such
jurisdiction, and this agreement will be reformed, construed and enforced in such jurisdiction as
if such invalid, illegal or unenforceable provision or portion of any provision had never been
contained therein.
-25-
Section 3.6 Amendment; Waiver.
(a) This Agreement may not be amended or modified and waivers and consents to departures from
the provisions hereof (each, an “Amendment”) may not be given, except by an instrument or
instruments in writing making specific reference to this Agreement and signed by the Company and
the Holders of Registrable Securities representing at least a majority of the aggregate Registrable
Securities held by the Holders; provided, however, that any Amendment that treats any Holder in a
series or class of stock (the “Adversely Affected Holder”) in a manner which is
disproportionate and adverse relative to its treatment of the other Holders in such series or class
of stock shall require the consent of the Adversely Affected Holder. For purposes of the foregoing
sentence, the Series A Holders shall be considered a “group of Holders” and the Series TS Holders
and the holders of Series B Preferred Stock shall be considered a “group of Holders.” Each Holder
of any Registrable Securities at the time or thereafter outstanding shall be bound by any Amendment
authorized by this Section 3.6(a). For purposes of this Section 3.6(a), determinations of whether
an Amendment disproportionately effects any Holder or group of Holders, or whether the Amendment
provides a disproportionate benefit to any Holder or group of Holders, shall be based on such
Holder’s (or group’s) contractual rights as of the time of the Amendment.
(b) The waiver by any party to this Agreement of a breach of any provision of this Agreement
shall not operate or be construed as a further or continuing waiver of such breach or as a waiver
of any other or subsequent breach. Except as otherwise expressly provided herein, no failure on
the part of any party to exercise, and no delay in exercising, any right, power or remedy
hereunder, or otherwise available in respect hereof at law or in equity, shall operate as a waiver
thereof, nor shall any single or partial exercise of such right, power or remedy by such party
preclude any other or further exercise thereof or the exercise of any other right, power or remedy.
Section 3.7 Counterparts; Facsimile Signatures. This Agreement may be executed in any number of separate counterparts and by the parties to
this Agreement in separate counterparts each of which when so executed, including by facsimile
signature, shall be deemed to be an original and all of which together shall constitute one and the
same agreement.
Section 3.8 Entire Agreement. This Agreement constitutes the entire agreement and understanding between the parties hereto
and supersedes any and all prior agreements and understandings, written or oral, relating to the
subject matter of this Agreement.
[Signature Page Follows]
-26-
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the date
first written above.
LULU HOLDING, INC.
By: /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: President
Name: Xxxxx X. Xxxxxxxx
Title: President
SERIES A HOLDERS:
ADVENT INTERNATIONAL GPE V LIMITED PARTNERSHIP
ADVENT INTERNATIONAL GPE V-A LIMITED PARTNERSHIP
ADVENT INTERNATIONAL GPE V-B LIMITED PARTNERSHIP
ADVENT INTERNATIONAL GPE V-G LIMITED PARTNERSHIP
ADVENT INTERNATIONAL GPE V-I LIMITED PARTNERSHIP
ADVENT INTERNATIONAL GPE V-A LIMITED PARTNERSHIP
ADVENT INTERNATIONAL GPE V-B LIMITED PARTNERSHIP
ADVENT INTERNATIONAL GPE V-G LIMITED PARTNERSHIP
ADVENT INTERNATIONAL GPE V-I LIMITED PARTNERSHIP
By: GPE V GP Limited Partnership, General Partner
By: Advent International LLC, General Partner
By: Advent International Corporation, Manager
By: /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Managing Director
Name: Xxxxx X. Xxxxxxxx
Title: Managing Director
ADVENT PARTNERS III LIMITED PARTNERSHIP
ADVENT PARTNERS GPE V LIMITED PARTNERSHIP
ADVENT PARTNERS GPE V-A LIMITED PARTNERSHIP
ADVENT PARTNERS GPE V-B LIMITED PARTNERSHIP
ADVENT PARTNERS GPE V LIMITED PARTNERSHIP
ADVENT PARTNERS GPE V-A LIMITED PARTNERSHIP
ADVENT PARTNERS GPE V-B LIMITED PARTNERSHIP
By: Advent International LLC, General Partner
By: Advent International Corporation, Manager
By: /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Managing Director
Name: Xxxxx X. Xxxxxxxx
Title: Managing Director
BROOKE PRIVATE EQUITY ADVISORS FUND I-A, L.P.
By: Brooke Private Equity Advisors, L.P., its General Partner
By: Brooke Private Equity Management LLC, its General Partner
By:
/s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Manager
Name: Xxxx X. Xxxxxx
Title: Manager
BROOKE PRIVATE EQUITY ADVISORS FUND I (D), L.P.
By: Brooke Private Equity Advisors, L.P., its General Partner
By: Brooke Private Equity Management LLC, its General Partner
By: Brooke Private Equity Advisors, L.P., its General Partner
By: Brooke Private Equity Management LLC, its General Partner
By:
/s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Manager
Name: Xxxx X. Xxxxxx
Title: Manager
HIGHLAND CAPITAL PARTNERS VI LIMITED PARTNERSHIP
By: Highland Management Partners VI
Limited Partnership, its General Partner
By: Highland Management Partners VI, Inc.,
its General Partner
Limited Partnership, its General Partner
By: Highland Management Partners VI, Inc.,
its General Partner
By: /s/ Xxxxxx X. Nova
Authorized Officer
Authorized Officer
HIGHLAND CAPITAL PARTNERS VI-B LIMITED PARTNERSHIP
By: Highland Management Partners VI Limited Partnership,
its General Partner
By: Highland Management Partners VI, Inc.,
its General Partner
its General Partner
By: Highland Management Partners VI, Inc.,
its General Partner
By: /s/ Xxxxxx X. Nova
Authorized Officer
Authorized Officer
HIGHLAND ENTREPRENEURS’ FUND VI LIMITED PARTNERSHIP
By: HEF VI Limited Partnership,
its General Partner
By: Highland Management Partners VI, Inc.,
its General Partner
By: HEF VI Limited Partnership,
its General Partner
By: Highland Management Partners VI, Inc.,
its General Partner
By: /s/ Xxxxxx X. Nova
Authorized Officer
Authorized Officer
SERIES TS HOLDERS:
LIPO INVESTMENTS (USA) INC.
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Authorized Signatory
Name: Xxxxxx Xxxxxx
Title: Authorized Signatory
LIPO INVESTMENTS (CANADA) INC.
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Authorized Signatory
Name: Xxxxxx Xxxxxx
Title: Authorized Signatory
SCHEDULE A
Series A Holders
| Name of Stockholder | Address for Notice | |
Advent International GPE V Limited Partnership
|
c/o Advent International Corporation | |
Advent International GPE V-A Limited Partnership
|
00 Xxxxx Xxxxxx | |
Advent International GPE V-B Limited Partnership
|
Xxxxxx, XX 00000 | |
Advent International GPE V-G Limited Partnership
|
Facsimile: (000) 000-0000 | |
Advent International GPE V-I Limited Partnership
|
Attention: Xxxxxx X. Xxxxxxx | |
Advent Partners III Limited Partnership |
||
Advent Partners GPE V Limited Partnership
|
with a copy to: | |
Advent Partners GPE V-A Limited Partnership |
||
Advent Partners GPE V-B Limited Partnership
|
Xxxxxx Xxxxxxxx LLP | |
| 3000 Two Xxxxx Xxxxxx | ||
| Xxxxxxxxxx & Xxxx Xxxxxxx | ||
| Xxxxxxxxxxxx, XX 00000 | ||
| Facsimile: (000) 000-0000 | ||
| Attention: Xxxxxx X. Xxxxxxx | ||
Xxxxxx Private Equity Advisors Fund I-A, L.P.
|
c/o Brooke Private Equity Advisors | |
Brooke Private Equity Advisors Fund I (D), L.P.
|
000 Xxxxx Xxxxxx, 0xx Xxxxx | |
| Xxxxxx, XX 00000 | ||
| Attention: |
||
| Facsimile Number:
|
||
| with a copy to:
|
||
| Attention: |
||
| Facsimile Number:
|
||
Highland Capital Partners VI Limited Partnership
|
c/o Highland Capital Partners, Inc. | |
Highland Capital Partners VI-B Limited Partnership
|
00 Xxxxxx Xxxxxx | |
Xxxxxxxx Xxxxxxxxxxxxx’ Fund VI Limited Partnership
|
Xxxxxxxxx, Xxxxxxxxxxxxx 00000 | |
| Facsimile: (000) 000-0000 | ||
| Attention: Xxxxxxxx X. Xxxxx, | ||
Chief Financial Officer |
||
| with a copy to: | ||
| Xxxxxxx Procter LLP | ||
| 00 Xxxxx Xxxxxx | ||
| Xxxxxx XX 00000 | ||
| Facsimile Number: (000) 000-0000 | ||
| Attention: Xxxxxxx X. Xxxxxxx, Xx. |
A-1
SCHEDULE B
Series TS Holders
| Name of Stockholder | Address for Notice | |
LIPO Investments (USA) Inc.
|
c/o Lululemon Athletica Inc. | |
| 0000 XxXxxx Xxxxx | ||
| Xxxxxxxxx, XX X0X-0X0 | ||
| Attention: Xxxxxx Xxxxxx | ||
| Fax: (000) 000-0000 | ||
| with a copy to: | ||
| XxXxxxxxxx O’Xxxxxx Xxxxx LLP | ||
| #1100 – 000 Xxxxxxxx Xx. | ||
| Xxxxxxxxx, XX X0X 0X0 | ||
| Facsimile: (000) 000-0000 | ||
| Attention: Xxxxxxxx XxXxxxxxxx | ||
LIPO Investments (Canada) Inc.
|
c/o Lululemon Athletica Inc. | |
| 0000 XxXxxx Xxxxx | ||
| Xxxxxxxxx, XX X0X-0X0 | ||
| Attention: Xxxxxx Xxxxxx | ||
| Fax: (000) 000-0000 | ||
| with a copy to: | ||
| XxXxxxxxxx O’Xxxxxx Xxxxx LLP | ||
| #1100 – 000 Xxxxxxxx Xx. | ||
| Xxxxxxxxx, XX X0X 0X0 | ||
| Facsimile: (000) 000-0000 | ||
| Attention: Xxxxxxxx XxXxxxxxxx |
B-1
