EX-10.8
Registration Rights Agreement
EXHIBIT 10.8
REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
CSA ACQUISITION CORP.
AND
THE STOCKHOLDERS NAMED HEREIN
DATED AS OF DECEMBER 23, 2004
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of December 23, 2004 (the
"Agreement"), by and among CSA Acquisition Corp., a Delaware corporation (the
"Company") and Cypress Merchant Banking Partners II L.P., a Delaware limited
partnership ("Cypress Onshore"), Cypress Merchant B II C.V., a limited
partnership formed under the laws of The Netherlands ("Cypress Offshore"), 55th
Street Partners II L.P., a Delaware limited partnership ("55th Street"), Cypress
Side-By-Side LLC, a Delaware limited liability company ("Side-by-Side" and,
together with Cypress Onshore, Cypress Offshore and 55th Street, "Cypress"), GS
Capital Partners 2000, L.P. ("Goldman Onshore"), GS Capital Partners 2000
Offshore, L.P. ("Goldman Offshore"), GS Capital Partners 2000 GmbH & Co.
Beteiligungs KG ("Goldman KG"), GS Capital Partners 2000 Employee Fund, L.P.
("Goldman Employee") and Xxxxxxx Xxxxx Direct Investment Fund 2000, L.P.
("Goldman Direct" and, together with Goldman Onshore, Goldman Offshore, Goldman
KG and Goldman Employee, "Goldman"; Goldman and Cypress are referred to herein
as the "Sponsor Stockholders"), the Management Stockholders (as defined in the
Stockholders Agreement) and the Director Stockholders (as defined in the
Stockholders Agreement) (the Sponsor Stockholders, Management Stockholders and
Director Stockholders, collectively, the "Stockholders").
RECITALS
WHEREAS, the Company has entered into that certain Stock Purchase
Agreement, dated as of September 16, 2004 and amended as of December 3, 2004
(the "Purchase Agreement"), by and among Xxxxxx Tire & Rubber Company, a
Delaware corporation ("Cooper"), Xxxxxx Tyre & Rubber Company UK Limited, a
company organized under the laws of England and Wales ("Xxxxxx UK", and,
together with Cooper, the "Sellers") and the Company, pursuant to which the
Company will purchase equity interests held by the Sellers in the Sold Companies
(as defined in the Purchase Agreement);
WHEREAS, the Company and each Stockholder have entered into a
Subscription Agreement and a Stockholders Agreement pursuant to which the
Company will issue and sell, and the Stockholders will purchase, shares of
Common Stock (as defined below);
WHEREAS, the Company desires to provide to the Stockholders and to
each other Holder (as defined below) rights to registration under the Securities
Act (as defined below) of Registrable Securities (as defined below), on the
terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing recitals and of the
mutual promises hereinafter set forth, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Defined Terms. As used in this Agreement, the following
capitalized terms shall have the following respective meanings:
"Common Stock" means the common stock, par value $0.01 per share, of
the Company and any securities issued in respect thereof, or in
substitution therefor, in connection with any stock split, dividend or
combination, or any reclassification, recapitalization, merger,
consolidation, exchange or other similar reorganization.
"Demand Party" means one or more Sponsor Holders; provided that to be
a Demand Party such Holder or Holders must either individually or in the
aggregate own at least five percent (5%) of the total number of Registrable
Securities.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any similar federal statute then in effect, and a reference to a
particular section thereof shall be deemed to include a reference to the
comparable section, if any, of any such similar federal statute.
"Holder" means each of the Stockholders and any Permitted Transferee
of such Stockholder who or which holds Registrable Securities (including
Sponsor Holders), provided, in the case of a Permitted Transferee, that
such Permitted Transferee agrees in writing to be bound by the provisions
of this Agreement.
"IPO" means the initial public offering of Common Stock pursuant to an
effective registration statement under the Securities Act.
"IPO Date" means the first date of the issuance of Common Stock in an
IPO.
"Permitted Transferee" as to any Stockholder, has the meaning given to
such term in the Stockholders Agreement.
"Person" means any individual, corporation, limited liability company,
limited or general partnership, joint venture, association, joint-stock
company, trust, unincorporated organization, government or any agency or
political subdivisions thereof or any group comprised of two or more of the
foregoing.
"Qualified Sale Date" means the date upon which Cypress and Goldman
have sold to the public pursuant to one or more effective registration
statements under the Securities Act (or pursuant to Rule 144 (or any
successor provision) under the Securities Act) at least 25% of the
outstanding shares of Common Stock (the number of shares representing such
percentage to be adjusted following the date hereof to reflect any stock
dividend or stock split or other distribution, recapitalization,
reclassification or similar event following the date hereof) held by the
Sponsor Stockholders in the aggregate on the date hereof.
"Registrable Securities" means any Common Stock held at any time by
the Stockholders (including shares of Common Stock issued upon exercise of
options or issued to Management Stockholders and Director Stockholders
pursuant to the Original Subscription Agreements (as defined in the
Stockholders Agreement) following the date hereof), and any Common Stock
which may be issued or distributed in respect thereof by way of stock
dividend or stock split or other distribution, recapitalization,
reclassification or similar event following the date hereof. Any particular
Registrable Securities that are
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issued shall cease to be Registrable Securities when (i) a registration
statement with respect to the sale by the Holder of such securities shall
have become effective under the Securities Act and such securities shall
have been disposed of in accordance with such registration statement, (ii)
such securities shall have been transferred to the public pursuant to Rule
144 (or any successor provision) under the Securities Act, or (iii) such
securities shall have ceased to be outstanding.
"Registration Expenses" means any and all expenses incident to
performance of or compliance with this Agreement, including, without
limitation, (i) all SEC and stock exchange or National Association of
Securities Dealers, Inc. (the "NASD") registration and filing fees
(including, if applicable, the fees and expenses of any "qualified
independent underwriter," as such term is defined in NASD conduct rule
2720, and of its counsel), (ii) all fees and expenses of complying with
securities or blue sky laws (including fees and disbursements of counsel
for the underwriters in connection with blue sky qualifications of the
Registrable Securities), (iii) all printing, messenger and delivery
expenses, (iv) all fees and expenses incurred in connection with the
listing of the Registrable Securities on any securities exchange pursuant
to clause (viii) of Section 4.1(a) and all rating agency fees, (v) the fees
and disbursements of counsel for the Company and of its independent public
accountants, including the expenses of any special audits and/or "cold
comfort" letters required by or incident to such performance and
compliance, (vi) the reasonable fees and disbursements of counsel selected
pursuant to Section 7.1 hereof by the Holders of the Registrable Securities
being registered to represent such Holders in connection with each such
registration, (vii) any fees and disbursements of underwriters customarily
paid by the issuers or sellers of securities, including liability insurance
if the Company so desires or if the underwriters so require, and the
reasonable fees and expenses of any special experts retained in connection
with the requested registration, but excluding underwriting discounts and
commissions and transfer taxes, if any, and (viii) other reasonable
out-of-pocket expenses of Holders (provided that such expenses shall not
include expenses of counsel other than those provided for in clause (vi)
above).
"Securities Act" means the Securities Act of 1933, as amended, or any
similar federal statute then in effect, and a reference to a particular
section thereof shall be deemed to include a reference to the comparable
section, if any, of any such similar federal statute.
"SEC" means the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act or the Exchange
Act.
"Sponsor Holder" means each of the Sponsor Stockholders and any other
Permitted Transferee of such Sponsor Stockholder) who or which holds
Registrable Securities and is a direct or indirect transferee of a Sponsor
Stockholder, provided such Permitted Transferee agrees in writing to be
bound by the provisions of this Agreement.
"Stockholders Agreement" means the Stockholders Agreement, dated as of
the date hereof, by and among the Company, Cypress, Goldman, the Management
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Stockholders and the Director Stockholders, as it may be amended,
supplemented or restated from time to time.
ARTICLE II
INCIDENTAL REGISTRATIONS
Section 2.1. Right to Include Registrable Securities. (a) If the
Company at any time after the IPO Date (or in the case of a Management
Stockholder, the Qualified Sale Date) proposes to register its Common Stock
under the Securities Act (other than a registration filed by the Company in
connection with the IPO or a registration statement on Form S-4 or S-8, or any
successor or other forms promulgated for similar purposes), whether or not for
sale for its own account, in a manner which would permit registration of
Registrable Securities for sale to the public under the Securities Act, it will,
at each such time, give prompt written notice to all eligible Holders of
Registrable Securities of its intention to do so and of such Holders' rights
under this Article II. Upon the written request of any such Holder made within
fifteen (15) days after the receipt of any such notice (which request shall
specify the Registrable Securities intended to be disposed of by such Holder),
the Company will use its reasonable best efforts to effect the registration
under the Securities Act of all Registrable Securities which the Company has
been so requested to register by the Holders thereof, to the extent requisite to
permit the disposition of the Registrable Securities so to be registered;
provided that (a) 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 proceed with the proposed registration of the
securities to be sold by it, the Company may, at its election, give written
notice of such determination to each Holder of Registrable Securities and,
thereupon, shall be relieved of its obligation to register any Registrable
Securities in connection with such registration (but not from its obligation to
pay the Registration Expenses in connection therewith), and (b) if such
registration involves an underwritten offering, all Holders of Registrable
Securities requesting to be included in the Company's registration must sell
their Registrable Securities to the underwriters selected by the Company on the
same terms and conditions as apply to the Company, with such differences,
including any with respect to indemnification and liability insurance, as may be
customary or appropriate in combined primary and secondary offerings. If a
registration requested pursuant to this Section 2.1 involves an underwritten
public offering, any Holder of Registrable Securities requesting to be included
in such registration may elect, in writing prior to the effective date of the
registration statement filed in connection with such registration, not to
register such securities in connection with such registration.
(b) For the avoidance of doubt, no Management Stockholder or Director
Stockholder (or Permitted Transferee thereof) will have the right to require the
Company to effect the registration under the Securities Act of Registrable
Securities of such Management Stockholder or Director Stockholder (or Permitted
Transferee thereof) pursuant to this Section 2.1 prior to the Qualified Sale
Date.
Section 2.2. Expenses. The Company will pay all Registration Expenses
in connection with each registration of Registrable Securities pursuant to this
Article II.
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Section 2.3. Priority in Incidental Registrations. If a registration
pursuant to this Article II involves an underwritten offering and the managing
underwriter advises the Company in writing that, in its opinion, the number of
securities requested to be included in such registration exceeds the number
which can be sold in such offering, so as to be likely to have an adverse effect
on the price, timing or distribution of the securities offered in such offering
as contemplated by the Company (other than the Registrable Securities), then the
Company will include in such registration (i) first, 100% of the securities the
Company proposes to sell, (ii) second, to the extent of the number of
Registrable Securities requested to be included in such registration pursuant to
Article III which, in the opinion of such managing underwriter, can be sold
without having the adverse effect referred to above, the number of Registrable
Securities which the Holders have requested to be included in such registration,
such amount to be allocated pro rata among all requesting Holders pursuant to
Article III on the basis of the relative number of shares of Registrable
Securities then held by each such Holder (provided that any shares thereby
allocated to any such Holder that exceed such Holder's request will be
reallocated among the remaining requesting Holders in like manner) and (iii)
third, to the extent of the number of Registrable Securities requested to be
included in such registration pursuant to this Article II which, in the opinion
of such managing underwriter, can be sold without having the adverse effect
referred to above, the number of Registrable Securities which the Holders have
requested to be included in such registration, such amount to be allocated pro
rata among all requesting Holders on the basis of the relative number of shares
of Registrable Securities then held by each such Holder (provided that any
shares thereby allocated to any such Holder that exceed such Holder's request
will be reallocated among the remaining requesting Holders in like manner). The
priority of registration of any shares being registered by the Company pursuant
to the exercise of (a) "demand registration rights" granted following the date
of this Agreement to holders of shares of Common Stock other than the Sponsor
Stockholders or the Management Stockholders and Director Stockholders relative
to other shares being registered pursuant to this Article II shall be on the
basis provided in clause (ii) above and (b) "piggyback registration rights"
granted following the date of this Agreement to holders of shares of Common
Stock other than the Sponsor Stockholders or the Management Stockholders and
Director Stockholders relative to other shares being registered pursuant to this
Article II shall be pro rata with such shares on the basis provided in clause
(iii) above.
ARTICLE III
REGISTRATION ON REQUEST
Section 3.1. Request by the Demand Party. (a) At any time, after the
IPO Date, upon the written request of the Demand Party requesting that the
Company effect the registration under the Securities Act of all or part of such
Demand Party's Registrable Securities and specifying the amount and intended
method of disposition thereof, the Company will promptly give written notice of
such requested registration to all other Holders of Registrable Securities, and
thereupon will, as expeditiously as possible, use its reasonable best efforts to
effect the registration under the Securities Act of:
(i) such Registrable Securities which the Company has been so
requested to register by the Demand Party; and
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(ii) all other Registrable Securities of the same class or series
as to which the Company has been requested by a Demand Party and which
the Company has been requested to register by any other Holder thereof
by written request given to the Company within fifteen (15) days after
the giving of such written notice by the Company (which notice shall
specify the amount and intended method of disposition of such
Registrable Securities),
all to the extent necessary to permit the disposition (in accordance with the
intended method thereof as aforesaid) of the Registrable Securities so to be
registered in accordance with the timing specified in Section 4.1(a)(i).
Notwithstanding the foregoing, the Company shall not be obligated to file a
registration statement relating to any registration request under this Section
3.1 within a period of 180 days after the IPO Date or ninety (90) days after the
effective date of any other registration statement relating to any registration
request under this Section 3.1 or relating to any registration effected under
Article II unless Holders of a majority of the shares of Registrable Securities
held by Sponsor Holders consent thereto in writing. In the case of a Sponsor
Holder requesting registration pursuant to clause (ii) above, such Sponsor
Holder shall have the option to specify whether the Registrable Securities such
Sponsor Holder wishes to include in such registration are to be included
pursuant to this Article III or pursuant to Article II. In the absence of such a
specification, the Registrable Securities requested to be included will be
included on the basis set forth in Article II.
(b) For the avoidance of doubt, no Management Stockholders or Director
Stockholders (or Permitted Transferee thereof) will have the right to require
the Company to effect the registration under the Securities Act of Registrable
Securities of such Management Stockholder or Director Stockholders (or Permitted
Transferee thereof) pursuant to this Section 3.1 (it being understood that such
rights may be exercised pursuant to Article II and only after the Qualified Sale
Date).
Section 3.2. Registration Statement Form. If any registration
requested pursuant to this Article III which is proposed by the Company to be
effected by the filing of a registration statement on Form S-3 (or any successor
or similar short-form registration statement) shall be in connection with an
underwritten public offering, and if the managing underwriter shall advise the
Company in writing that, in its opinion, the use of another form of registration
statement is of material importance to the success of such proposed offering,
then such registration shall be effected on such other form.
Section 3.3. Expenses. The Company will pay all Registration Expenses
in connection with registrations of each class or series of Registrable
Securities pursuant to this Article III.
Section 3.4. Effective Registration Statement. A registration
requested pursuant to this Article III will not be deemed to have been effected
unless it has become effective and remains effective for the period provided in
Section 4.1(a)(ii); provided that if, within 180 days after it has become
effective, the offering of Registrable Securities pursuant to such registration
is interfered with by any stop order, injunction or other order or requirement
of the SEC or other governmental agency or court, such registration will be
deemed not to have been effected.
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Section 3.5. Selection of Underwriters. If a requested registration
pursuant to this Article III involves an underwritten offering, the Holders of a
majority of the shares of Registrable Securities which are held by Holders and
which the Company has been requested to register pursuant to Article III shall
have the right to select the investment banker or bankers and managers to
administer the offering; provided, however, that such investment banker or
bankers and managers shall be reasonably satisfactory to the Company.
Section 3.6. Priority in Requested Registrations. (a) If a requested
registration pursuant to this Article III involves an underwritten offering and
the managing underwriter advises the Company in writing that, in its opinion,
the number of securities requested to be included in such registration
(including securities of the Company which are not Registrable Securities or
which are Registrable Securities proposed to be sold pursuant to Article II)
exceeds the number which can be sold in such offering, the Company will first
include in such registration only the Registrable Securities of the Holders
requested to be included in such registration pursuant to this Article III. In
the event that the number of Registrable Securities of the Holders requested to
be included in such registration pursuant to this Article III exceeds the number
which, in the opinion of such managing underwriter, can be sold, the number of
such Registrable Securities to be included in such registration shall be
allocated pro rata among all such requesting Holders pursuant to this Article
III on the basis of the relative number of shares of Registrable Securities then
held by each such Holder (provided that any shares thereby allocated to any such
Holder that exceed such Holder's request shall be reallocated among the
remaining requesting Holders in like manner).
(b) In the event that the number of Registrable Securities requested
to be included in such registration is less than the number which, in the
opinion of the managing underwriter, can be sold, the Company may include in
such registration the securities the Company proposes to sell up, for its own
account or for the account of others (including pursuant to Article II) to the
number of securities that, in the opinion of the underwriter, can be sold.
Section 3.7. Limitation on Registration on Request. Notwithstanding
anything in this Article III to the contrary, the Company shall not be obligated
to take any action to effect any registration pursuant to this Article III if
the Company has previously effected a number of registrations upon the request
of a Sponsor Stockholder pursuant to this Article III equaling or exceeding, in
accordance with Section 3.4 above, (a) five (5) registrations in the aggregate,
in the case of Cypress and its Permitted Transferees and (b) five (5)
registrations in the aggregate, in the case of Goldman and its Permitted
Transferees. For purposes of the foregoing, a Sponsor Holder requesting
registration of Registrable Securities pursuant to Section 3.1(a)(ii) which
chooses to include such shares pursuant to this Article III shall be treated as
having made a request pursuant to this Article III.
Section 3.8. Postponements in Requested Registrations. (a) If the
Company shall at any time furnish to the Holders a certificate signed by its
chairman of the board, chief executive officer, president or any other of its
authorized officers stating that the filing of a registration statement would
require the disclosure of material information the disclosure of which would, in
the good faith judgment of the Board of Directors of the Company, have a
material adverse effect on the business, operations or prospects of the Company,
the Company may postpone the filing (but not the preparation) of a registration
statement required
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by this Article III for up to forty-five (45) days and (b) if the Board of
Directors of the Company determines in its good faith judgment, that the
registration and offering otherwise required by this Article III would have an
adverse effect on a then contemplated public offering of the Company's Common
Stock, the Company may postpone the filing (but not the preparation) of a
registration statement required by this Article III, during the period starting
with the thirtieth (30th) day immediately preceding the date of the anticipated
filing of, and ending on a date ninety (90) days (or such shorter period as the
managing underwriter may permit) following the effective date of, the
registration statement relating to such other public offering; provided that the
Company shall at all times in good faith use its reasonable best efforts to
cause any registration statement required by this Article III to be filed as
soon as possible and; provided, further, that the Company shall not be permitted
to postpone registration pursuant to this Section 3.8 more than once in any
360-day period. The Company shall promptly give the Holders requesting
registration thereof pursuant to this Article III written notice of any
postponement made in accordance with the preceding sentence. If the Company
gives the Holders such a notice, the Holders shall have the right, within
fifteen (15) days after receipt thereof, to withdraw their request in which
case, such request will not be counted for purposes of Section 3.7.
ARTICLE IV
REGISTRATION PROCEDURES
Section 4.1. Procedures. (a) If and whenever the Company is required
to use its reasonable best efforts to effect or cause the registration of any
Registrable Securities under the Securities Act as provided in this Agreement,
the Company will, as expeditiously as possible:
(i) prepare and, in any event within ninety (90) days after the
end of the period within which a request for registration may be given
to the Company pursuant to Article II or III, file with the SEC a
registration statement with respect to such Registrable Securities and
use its reasonable best efforts to cause such registration statement
to become effective as promptly as practicable, provided, however,
that the Company may discontinue any registration of its securities
which is being effected pursuant to Article II at any time prior to
the effective date of the registration statement relating thereto;
(ii) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective for a period not in excess of 180 days and to
comply with the provisions of the Securities Act, the Exchange Act and
the rules and regulations of the SEC thereunder with respect to the
disposition of all securities covered by such registration statement
during such period in accordance with the intended methods of
disposition by the seller or sellers thereof set forth in such
registration statement; provided that before filing a registration
statement or prospectus, or any amendments or supplements thereto, the
Company will furnish to counsel selected pursuant to Article VII
hereof by the Holders of the Registrable Securities covered by such
registration statement to
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represent such Holders, copies of all documents proposed to be filed,
which documents will be subject to the review of such counsel;
(iii) furnish to each seller of such Registrable Securities such
number of copies of such registration statement and of each amendment
and supplement thereto (in each case including all exhibits filed
therewith, including any documents incorporated by reference), such
number of copies of the prospectus included in such registration
statement (including each preliminary prospectus and summary
prospectus), in conformity with the requirements of the Securities
Act, and such other documents as such seller may reasonably request in
order to facilitate the disposition of the Registrable Securities by
such seller;
(iv) use its reasonable best efforts to register or qualify such
Registrable Securities covered by such registration under such other
securities or blue sky laws in such jurisdictions as each seller shall
reasonably request, and do any and all other acts and things which may
be reasonably necessary or advisable to enable such seller to
consummate the disposition in such jurisdictions of the Registrable
Securities owned by such seller, except that the Company shall not for
any such purpose be required to qualify generally to do business as a
foreign corporation in any jurisdiction where, but for the
requirements of this subclause (iv), it would not be obligated to be
so qualified, to subject itself to taxation in any such jurisdiction
or to consent to general service of process in any such jurisdiction;
(v) use its reasonable best efforts to cause such Registrable
Securities covered by such 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 to consummate
the disposition of such Registrable Securities;
(vi) notify each seller of any such Registrable Securities
covered by such registration statement, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act
within the appropriate period mentioned in subclause (ii) of this
Section 4.1(a), of the Company's becoming aware that the prospectus
included in such registration statement, as then in effect, includes
an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then
existing, and at the request of any such seller, prepare and furnish
to such seller a reasonable number of copies of an amended or
supplemental prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such Registrable Securities, such
prospectus shall not include an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light
of the circumstances then existing;
(vii) use its reasonable best efforts to comply with all
applicable rules and regulations of the SEC, and make available to its
security holders, as soon as
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reasonably practicable (but not more than eighteen months) after the
effective date of the registration statement, an earnings statement
which shall satisfy the provisions of Section 11(a) of the Securities
Act and the rules and regulations promulgated thereunder;
(viii) (A) use its reasonable best efforts to list such
Registrable Securities on any securities exchange on which the Common
Stock is then listed if such Registrable Securities are not already so
listed and if such listing is then permitted under the rules of such
exchange; and (B) use its reasonable best efforts to provide a
transfer agent and registrar for such Registrable Securities covered
by such registration statement not later than the effective date of
such registration statement;
(ix) enter into such customary agreements (including an
underwriting agreement in customary form), which may include
indemnification provisions in favor of underwriters and other persons
in addition to, or in substitution for the provisions of Article V
hereof, and take such other actions as sellers of a majority of shares
of such Registrable Securities or the underwriters, if any, reasonably
request in order to expedite or facilitate the disposition of such
Registrable Securities;
(x) obtain a "cold comfort" letter or letters from the Company's
independent public accounts in customary form and covering matters of
the type customarily covered by "cold comfort" letters as the seller
or sellers of a majority of shares of such Registrable Securities
shall reasonably request;
(xi) make available for inspection by any seller of such
Registrable Securities covered by such registration statement, by any
underwriter participating in any disposition to be effected pursuant
to such registration statement and by any attorney, accountant or
other agent retained by any such seller or any such underwriter, all
pertinent financial and other records, pertinent corporate documents
and properties of the Company, and cause all of the Company's
officers, directors and employees to supply all information reasonably
requested by any such seller, underwriter, attorney, accountant or
agent in connection with such registration statement;
(xii) notify counsel (selected pursuant to Article VII hereof)
for the Holders of Registrable Securities included in such
registration statement and the managing underwriter or agent,
immediately, and confirm the notice in writing (i) when the
registration statement, or any post-effective amendment to the
registration statement, shall have become effective, or any supplement
to the prospectus or any amendment prospectus shall have been filed,
(ii) of the receipt of any comments from the SEC, (iii) of any request
of the SEC to amend the registration statement or amend or supplement
the prospectus or for additional information, and (iv) of the issuance
by the SEC of any stop order suspending the effectiveness of the
registration statement or of any order preventing or suspending the
use of any preliminary prospectus, or of the suspension of the
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qualification of the registration statement for offering or sale in
any jurisdiction, or of the institution or threatening of any
proceedings for any of such purposes;
(xiii) make every reasonable effort to prevent the issuance of
any stop order suspending the effectiveness of the registration
statement or of any order preventing or suspending the use of any
preliminary prospectus and, if any such order is issued, to obtain the
withdrawal of any such order at the earliest possible moment;
(xiv) if requested by the managing underwriter or agent or any
Holder of Registrable Securities covered by the registration
statement, promptly incorporate in a prospectus supplement or
post-effective amendment such information as the managing underwriter
or agent or such Holder reasonably requests to be included therein,
including, without limitation, with respect to the number of
Registrable Securities being sold by such Holder to such underwriter
or agent, the purchase price being paid therefor by such underwriter
or agent and with respect to any other terms of the underwritten
offering of the Registrable Securities to be sold in such offering;
and make all required filings of such prospectus supplement or
post-effective amendment as soon as practicable after being notified
of the matters incorporated in such prospectus supplement or
post-effective amendment;
(xv) cooperate with the Holders of Registrable Securities covered
by the registration statement and the managing underwriter or agent,
if any, to facilitate the timely preparation and delivery of
certificates (not bearing any restrictive legends) representing
securities to be sold under the registration statement, and enable
such securities to be in such denominations and registered in such
names as the managing underwriter or agent, if any, or such Holders
may request;
(xvi) obtain for delivery to the Holders of Registrable
Securities being registered and to the underwriter or agent an opinion
or opinions from counsel for the Company in customary form and in
form, substance and scope reasonably satisfactory to such Holders,
underwriters or agents and their counsel;
(xvii) cooperate with each seller of Registrable Securities and
each underwriter or agent participating in the disposition of such
Registrable Securities and their respective counsel in connection with
any filings required to be made with the NASD; and
(xviii) cause management of the Company to participate in
investor "road shows" and other investor efforts or meetings.
(b) The Company may require each seller of Registrable Securities as
to which any registration is being effected to furnish the Company with such
information regarding such seller and pertinent to the disclosure requirements
relating to the registration and the distribution of such securities as the
Company may from time to time reasonably request in writing.
(c) Each Holder of Registrable Securities agrees that, upon receipt of
any notice from the Company of the happening of any event of the kind described
in subclause (vi) of this
12
Section 4.1(a), such Holder will forthwith discontinue disposition of
Registrable Securities pursuant to the registration statement covering such
Registrable Securities until such Holder's receipt of the copies of the
supplemented or amended prospectus contemplated by subclause (vi) of this
Section 4.1(a), and, if so directed by the Company, such Holder will deliver to
the Company (at the Company's expense) all copies, other than permanent file
copies then in such Holder's possession, of the prospectus covering such
Registrable Securities current at the time of receipt of such notice. In the
event the Company shall give any such notice, the period mentioned in subclause
(ii) of this Section 4.1(a) shall be extended by the number of days during the
period from and including the date of the giving of such notice pursuant to
subclause (vi) of this Section 4.1(a) and including the date when each seller of
Registrable Securities covered by such registration statement shall have
received the copies of the supplemented or amended prospectus contemplated by
subclause (vi) of this Section 4.1(a).
ARTICLE V
INDEMNIFICATION
Section 5.1. Indemnification by the Company. In the event of any
registration of any securities of the Company under the Securities Act pursuant
to Article II or Article III, the Company will, and it hereby does, indemnify
and hold harmless, to the extent permitted by law, the seller of any Registrable
Securities covered by such registration statement, each affiliate of such seller
and their respective directors and officers, members or general and limited
partners (including any director, officer, affiliate, employee, agent and
controlling Person of any of the foregoing), each other Person who participates
as an underwriter in the offering or sale of such securities and each other
Person, if any, who controls such seller or any such underwriter within the
meaning of the Securities Act (collectively, the "Indemnified Parties"), against
any and all losses, claims, damages or liabilities, joint or several, and
expenses (including reasonable attorney's fees and reasonable expenses of
investigation) to which such Indemnified Party may become subject under the
Securities Act, common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions or proceedings in respect thereof, whether or not
such Indemnified Party is a party thereto) arise out of or are based upon (a)
any untrue statement or alleged untrue statement of any material fact contained
in any registration statement under which such securities were registered under
the Securities Act, any preliminary, final or summary prospectus contained
therein, or any amendment or supplement thereto, or (b) 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, in light
of the circumstances under which they were made) not misleading, and the Company
will reimburse such Indemnified Party for any legal or any other expenses
reasonably incurred by it in connection with investigating or defending against
any such loss, claim, liability, action or proceeding; provided that the Company
shall not be liable to any Indemnified Party in any such case to the extent that
any such loss, claim, damage, liability (or action or proceeding in respect
thereof) or expense arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission made in such
registration statement or amendment or supplement thereto or in any such
preliminary, final or summary prospectus in reliance upon and in conformity with
written information furnished to the Company through an instrument duly executed
by such seller specifically stating that it is for use in the preparation
thereof; and provided, further, that the Company will not be liable to any
Person who participates as an underwriter in the offering or
13
sale of Registrable Securities or any other Person, if any, who controls such
underwriter within the meaning of the Securities Act, under the indemnity
agreement in this Section 5.1 with respect to any preliminary prospectus or the
final prospectus or the final prospectus as amended or supplemented, as the case
may be, to the extent that any such loss, claim, damage or liability of such
underwriter or controlling Person results from the fact that such underwriter
sold Registrable Securities to a person to whom there was not sent or given, at
or prior to the written confirmation of such sale, a copy of the final
prospectus or of the final prospectus as then amended or supplemented, whichever
is most recent, if the Company has previously furnished copies thereof to such
underwriter. For purposes of the last proviso to the immediately preceding
sentence, the term "prospectus" shall not be deemed to include the documents, if
any, incorporated therein by reference, and no Person who participates as an
underwriter in the offering or sale of Registrable Securities or any other
Person, if any, who controls such underwriter within the meaning of the
Securities Act, shall be obligated to send or give any supplement or amendment
to any document incorporated by reference in any preliminary prospectus or the
final prospectus to any person other than a person to whom such underwriter had
delivered such incorporated document or documents in response to a written
request therefor. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of such seller or any
Indemnified Party and shall survive the transfer of such securities by such
seller.
Section 5.2. Indemnification by the Seller. The Company may require,
as a condition to including any Registrable Securities in any registration
statement filed in accordance with Section 4.1 herein, that the Company shall
have received an undertaking reasonably satisfactory to it from the prospective
seller of such Registrable Securities or any underwriter to indemnify and hold
harmless (in the same manner and to the same extent as set forth in Section 5.1)
the Company and all other prospective sellers with respect to any untrue
statement or alleged untrue statement in or omission or alleged omission from
such registration statement, any preliminary, final or summary prospectus
contained therein, or any amendment or supplement, if such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company through
an instrument duly executed by such seller or underwriter specifically stating
that it is for use in the preparation of such registration statement,
preliminary, final or summary prospectus or amendment or supplement, or a
document incorporated by reference into any of the foregoing. Such indemnity
shall remain in full force and effect regardless of any investigation made by or
on behalf of the Company or any of the prospective sellers, or any of their
respective affiliates, directors, officers or controlling Persons and shall
survive the transfer of such securities by such seller. In no event shall the
liability of any selling Holder of Registrable Securities hereunder be greater
in amount than the dollar amount of the net proceeds received by such Holder
upon the sale of the Registrable Securities giving rise to such indemnification
obligation.
Section 5.3. Notices of Claims, Etc. Promptly after receipt by an
Indemnified Party hereunder of written notice of the commencement of any action
or proceeding with respect to which a claim for indemnification may be made
pursuant to this Article V, such Indemnified Party will, if a claim in respect
thereof is to be made against an indemnifying party, give written notice to the
latter of the commencement of such action; provided that the failure of the
Indemnified Party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under this Article V, except to the extent
that the indemnifying party is actually
14
prejudiced by such failure to give notice. In case any such action is brought
against an Indemnified Party, unless in such Indemnified Party's reasonable
judgment a conflict of interest between such Indemnified Party and indemnifying
parties may exist in respect of such claim, the indemnifying party will be
entitled to participate in and to assume the defense thereof, jointly with any
other indemnifying party similarly notified to the extent that it may wish, with
counsel reasonably satisfactory to such Indemnified Party, and after notice from
the indemnifying party to such Indemnified Party of its election so to assume
the defense thereof, the indemnifying party will not be liable to such
Indemnified Party for any legal or other expenses subsequently incurred by the
latter in connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party will 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 such Indemnified Party of a
release from all liability in respect to such claim or litigation.
Section 5.4. Contribution. If the indemnification provided for in this
Article V from the indemnifying party is unavailable to an Indemnified Party
hereunder in respect of any losses, claims, damages, liabilities or expenses
referred to herein, then the indemnifying party, in lieu of indemnifying such
Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such losses, claims, damages, liabilities or
expenses in such proportion as is appropriate to reflect the relative fault of
the indemnifying party and such Indemnified Party in connection with the actions
which resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations. The relative fault of such
indemnifying party and such Indemnified Party shall be determined by reference
to, among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact, has been made by, or relates to information supplied by,
such indemnifying party or Indemnified Parties, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such action. The amount paid or payable by a party under this Section 5.4 as a
result of the losses, claims, damages, liabilities and expenses referred to
above shall be deemed to include any legal or other fees or expenses reasonably
incurred by such party in connection with any investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 5.4 were determined by pro rata allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph. 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 5.5. Other Indemnification. Indemnification similar to that
specified in the preceding provisions of this Article V (with appropriate
modifications) shall be given by the Company and each seller of Registrable
Securities with respect to any required registration or other qualification of
securities under any federal or state law or regulation or governmental
authority other than the Securities Act.
Section 5.6. Non-Exclusivity. The obligations of the parties under
this Article V shall be in addition to any liability which any party may
otherwise have to any other party.
15
ARTICLE VI
RULE 144
Section 6.1. Rule 144. The Company covenants that, following the IPO
Date, 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 is not required to file such reports, it will,
upon the request of any Demand Party, make publicly available such information),
and it will take such further action as any Holder of Registrable Securities
(or, if the Company is not required to file reports as provided above, any
Demand Party) may reasonably request, all to the extent required from time to
time to enable such Holder to sell shares of Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by (i) Rule 144 under the Securities Act, as such Rule 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. Notwithstanding anything contained in this Section 6.1,
the Company may deregister under Section 12 of the Exchange Act if it then is
permitted to do so pursuant to the Exchange Act and the rules and regulations
thereunder.
ARTICLE VII
SELECTION OF COUNSEL
Section 7.1. Selection of Counsel. In connection with any registration
of Registrable Securities pursuant to Article II or III hereof, the Holders of a
majority of the Registrable Securities covered by any such registration may
select one counsel to represent all Holders of Registrable Securities covered by
such registration; provided, however, that in the event that the counsel
selected as provided above is also acting as counsel to the Company in
connection with such registration, the remaining Holders shall be entitled to
select one additional counsel to represent all such remaining Holders.
ARTICLE VIII
MISCELLANEOUS
Section 8.1. Holdback Agreement. Notwithstanding anything to the
contrary contained in this Agreement, if any registration shall be in connection
with an underwritten public offering (including the IPO), each Holder of
Registrable Securities agrees not to effect any public sale or distribution,
including any sale pursuant to Rule 144 under the Securities Act, of any equity
securities of the Company, or of any security convertible into or exchangeable
or exercisable for any equity security of the Company (in each case, other than
as part of such underwritten public offering), within seven (7) days before, or
such period not to exceed ninety (90) days (or 180 days in the case of an IPO)
as the underwriting agreement may require (or such lesser period as the managing
underwriters may permit) after, the effective date of such registration, and the
Company hereby also so agrees and agrees to cause each other holder of any
equity security, or of any security convertible into or exchangeable or
exercisable for any equity security, of the Company purchased from the Company
(at any time other than in a public
16
offering) to so agree; provided, however, that such restrictions shall not apply
more than once in any twelve month period.
Section 8.2. Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company has agreed and has obtained the prior
written consent of (a) the Sponsor Stockholders (and each other Holder of
Registrable Securities to whom an Sponsor Stockholder transfers Registrable
Securities so long as such other Holder owns at least ten percent (10%) of the
total outstanding shares of Common Stock), (b) the Holders of a majority of the
Registrable Securities, and (c) if any such amendment, modification, supplement,
waiver or consent would materially adversely affect the rights of any Holder
hereunder in a different manner or degree than would affect the rights of all
Holders, the written consent of each such adversely affected Holder shall be
obtained; provided, however, that nothing herein shall prohibit any amendment,
modification, supplement, waiver or consent the effect of which is limited only
to those Holders who have agreed to such amendment, modification, supplement,
waiver or consent and which does not materially adversely affect the rights of
any Holder hereunder. Each Holder of any Registrable Securities at the time or
thereafter outstanding shall be bound by any consent authorized by this Section
8.2, whether or not such Registrable Securities shall have been marked to
indicate such consent.
Section 8.3. Successors, Assigns and Transferees. This Agreement shall
be binding upon and shall inure to the benefit of the parties hereto and their
respective permitted successors and assigns. In addition, and whether or not any
express assignment shall have been made, the provisions of this Agreement which
are for the benefit of the parties hereto other than the Company shall also be
for the benefit of and enforceable by any subsequent Holder of any Registrable
Securities, subject to the provisions contained herein. Without limitation to
the foregoing, in the event that a Sponsor Holder or any of its successors or
assigns or any other subsequent Holder of any Registrable Securities distributes
or otherwise transfers any shares of the Registrable Securities to any of its
present or future shareholders, members, or general or limited partners, the
Company hereby acknowledges that the registration rights granted pursuant to
this Agreement shall be transferred to such shareholders, members or general or
limited partners on a pro rata basis, and that at or after the time of any such
distribution or transfer, any such shareholder, member, general or limited
partner or group of shareholders, members or general or limited partners may
designate a Person to act on its behalf in delivering any notices or making any
requests hereunder.
Section 8.4. Notices. All notices and other communications required or
permitted hereunder shall be in writing and shall be deemed effectively given:
(a) upon personal delivery to the party to be notified; (b) when sent by
confirmed facsimile if sent during normal business hours of the recipient, if
not, then on the next Business Day, provided that a copy of such notice is also
sent via nationally recognized overnight courier, specifying next day delivery,
with written verification of receipt; (c) five (5) days after having been sent
by registered or certified mail, return receipt requested, postage prepaid; or
(d) one (1) Business Day after deposit with a nationally recognized overnight
courier, specifying next day delivery, with written verification of receipt. All
communications shall be sent to such party's address as set forth
17
below or at such other address as the party shall have furnished to each other
party in writing in accordance with this provision:
If to the Company CSA Acquisition Corp.
c/o The Cypress Group L.L.C.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxxxx
Telecopy: (000) 000-0000
with a copy to: Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
(which shall not 000 Xxxxxxxxx Xxxxxx
constitute notice) Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
and
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx LLP
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxx
Telecopy: (000) 000-0000
If to Cypress: The Cypress Group L.L.C.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxxxx
Telecopy: (000) 000-0000
with a copy to: Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
(which shall not 000 Xxxxxxxxx Xxxxxx
constitute notice) Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
If to Goldman: GS Capital Partners 2000, L.P.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxxxx
Telecopy: (000) 000-0000
with a copy to: Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx LLP
(which shall not One New York Plaza
constitute notice) Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxx
Telecopy: (000) 000-0000
If to any other Stockholder: At the address set forth below such Stockholder's
signature hereto.
18
If to any other holder of Registrable Securities, to the address of such
other holder as shown in the stock record book of the Company, or to such other
address as any of the above shall have designated in writing to all of the other
above.
Section 8.5. Descriptive Headings. The headings in this Agreement are
for convenience of reference only and shall not limit or otherwise affect the
meaning of terms contained herein.
Section 8.6. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
Section 8.7. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but all of which
together shall constitute one instrument. This Agreement may be executed by
facsimile signature(s).
Section 8.8. Governing Law; Submission to Jurisdiction. THIS AGREEMENT
SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH
STATE. Any claim arising out of or relating to this Agreement may be instituted
in Federal or State court in the State of New York (unless personal or subject
matter jurisdiction cannot be obtained therein), and each party agrees not to
assert, by way of motion, as a defense or otherwise, in any such claim, that it
is not subject personally to the jurisdiction of such court, that the claim is
brought in an inconvenient forum, that the venue of the claim is improper or
that this Agreement or the subject matter hereof may not be enforced in or by
such court. Each party further irrevocably submits to the jurisdiction of such
courts in any such claim. Any and all service of process and any other notice in
any such claim shall be effective against any party if given personally or by
registered or certified mail, return receipt requested, or by any other means of
mail that requires a signed receipt, postage prepaid, mailed to such party as
herein provided. Nothing herein contained shall be deemed to affect the right of
any party to serve process in any manner permitted by law or to commence legal
proceedings or otherwise against any other party in any other jurisdiction.
Section 8.9. Specific Performance. Each party hereto acknowledges that
money damages would not be an adequate remedy in the event that any of the
covenants or agreements in this Agreement are not performed in accordance with
its terms, and it is therefore agreed that in addition to and without limiting
any other remedy or right it may have, the non-breaching party will have the
right to an injunction, temporary restraining order or other equitable relief in
any court of competent jurisdiction enjoining any such breach and enforcing
specifically the terms and provisions hereof.
19
Section 8.10. Further Assurances. At any time or from time to time
after the date hereof, the parties agree to cooperate with each other, and at
the request of any other party, to execute and deliver any further instruments
or documents and to take all such further action as the other party may
reasonably request in order to evidence or effectuate the consummation of the
transactions contemplated hereby and to otherwise carry out the intent of the
parties hereunder.
Section 8.11. Termination. The provisions of this Agreement (other
than Article V) shall terminate at such time as there shall be no Registrable
Securities outstanding. Nothing herein shall relieve any party from any
liability for the breach of any of the agreements set forth in this Agreement.
[Remainder of page left intentionally blank]
20
IN WITNESS WHEREOF, each of the undersigned has executed this
Agreement or caused this Agreement to be duly executed on its behalf as of the
date first written above.
CSA ACQUISITION CORP.
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
CYPRESS MERCHANT BANKING PARTNERS
II L.P.
By: Cypress Associates II LLC, its
general partner
By: /s/ Xxxxx Xxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Managing Member
CYPRESS MERCHANT B II C.V.
By: Cypress Associates II LLC, its
managing general partner
By: /s/ Xxxxx Xxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Managing Member
55th STREET PARTNERS II L.P.
By: Cypress Associates II LLC, its
general partner
By: /s/ Xxxxx Xxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Managing Member
CYPRESS SIDE-BY-SIDE LLC
By: /s/ Xxxxx Xxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Managing Member
GS CAPITAL PARTNERS 2000, L.P.
By: GS Advisors 2000, L.L.C., its
general partner
By: /s/ Xxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxx Sachs
Title: Managing Member
GS CAPITAL PARTNERS 2000 OFFSHORE, L.P.
By: GS Advisors 2000, L.L.C., its
general partner
By: /s/ Xxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxx Sachs
Title: Managing Member
GS CAPITAL PARTNERS 2000 GMBH & CO.
BETEILIGUNGS KG
By: Xxxxxxx Xxxxx Management GP GmbH,
its general partner
By: /s/ Xxxxxxx Sachs
------------------------------------
Name: Xxxxxxx Xxxxx
Title: Managing Member
GS CAPITAL PARTNERS 2000 EMPLOYEE FUND,
L.P.
By: GS Employee Funds 2000 GP, L.L.C.,
its general partner
By: /s/ Xxxxxxx Sachs
------------------------------------
Name: Xxxxxxx Xxxxx
Title: Managing Member
XXXXXXX SACHS DIRECT INVESTMENT FUND
2000, L.P.
By: GS Employee Funds 2000 GP, L.L.C.,
its general partner
By: /s/ Xxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxx Sachs
Title: Managing Member
X.X. XXXXXXX
/s/ X.X. Xxxxxxx
----------------------------------------
XXXXXXX X. WAY
/s/ Xxxxxxx X. Way
----------------------------------------
XXXXX X. XxXXXX
/s/ Xxxxx X. XxXxxx
----------------------------------------
XXXXX X. XXXXX
/s/ Xxxxx X. Xxxxx
----------------------------------------
XXXXX X. XXXXXXXX
/s/ Xxxxx X. Xxxxxxxx
----------------------------------------
XXXX X. XXXXXXX
/s/ Xxxx X. Xxxxxxx
----------------------------------------
XXXXXX X. XXXXXX
/s/ Xxxxxx X. Xxxxxx
----------------------------------------
XXXX X. XXXXXXXX
/s/ Xxxx X. Xxxxxxxx
----------------------------------------
XXXXX X. XXXXX
/s/ Xxxxx X. Xxxxx
----------------------------------------
XXXXXXX X. XXXXXXXX
/s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
XXXXX X. XXXXX
/s/ Xxxxx X. Xxxxx
----------------------------------------
