Exhibit 10.15


 


SECURITYHOLDERS AGREEMENT


 


AMONG


 


NuCO2 PARENT INC.


 


AND


 


CERTAIN OF ITS STOCKHOLDERS


 


AND


 


OPTIONHOLDERS


 


 


May 28, 2008


 





















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
   

  	
  Page(s)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1.

  	
  Definitions

  	
  1

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  1.1

  	
  Certain
  Defined Terms

  	
  1

  
	
   

  	
   

  	
  1.2

  	
  Index
  of Other Defined  Terms

  	
  8

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
  Compliance
  with Securities Laws

  	
  9

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  2.1

  	
  Restrictions
  on Transfer

  	
  9

  
	
   

  	
   

  	
  2.2

  	
  Cooperation
  of Company

  	
  9

  
	
   

  	
   

  	
  2.3

  	
  Rule 144
  Acknowledgment

  	
  9

  
	
   

  	
   

  	
  2.4

  	
  Restrictions
  on Transfer for Benefit of Securityholders

  	
  10

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
  Further
  Restrictions

  	
  10

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  3.1

  	
  Prohibition
  on Transfer Prior to Qualified IPO Date

  	
  10

  
	
   

  	
   

  	
  3.2

  	
  Certain
  Releases Required

  	
  10

  
	
   

  	
   

  	
  3.3

  	
  Certain
  Restrictions on Releases of Securities of Managing Directors

  	
  10

  
	
   

  	
   

  	
  3.4

  	
  Restriction
  on Transfer Subsequent to Qualified IPO Date

  	
  11

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
  First
  Refusal Rights

  	
  11

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  4.1

  	
  Restrictions
  Cumulative

  	
  11

  
	
   

  	
   

  	
  4.2

  	
  Bona
  Fide Offers

  	
  11

  
	
   

  	
   

  	
  4.3

  	
  Involuntary
  Transfers

  	
  13

  
	
   

  	
   

  	
  4.4

  	
  Application
  of First Refusal Rights

  	
  15

  
	
   

  	
   

  	
  4.5

  	
  Termination
  of First Refusal Rights

  	
  15

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
  Third-Party
  Offer for All Outstanding Securities

  	
  15

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  5.1

  	
  Drag-Along
  Obligations

  	
  15

  
	
   

  	
   

  	
  5.2

  	
  Termination
  of Drag-Along Obligations

  	
  16

  
	
   

  	
   

  	
  5.3

  	
  Restrictions
  Cumulative

  	
  16

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.

  	
  “Tag-Along”
  Rights

  	
  16

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  6.1

  	
  Tag-Along
  Sales

  	
  16

  
	
   

  	
   

  	
  6.2

  	
  Notice
  of Tag-Along Opportunity

  	
  17

  
	
   

  	
   

  	
  6.3

  	
  Notice
  and Terms of Acceptance of Tag-Along Opportunity

  	
  18

  
	
   

  	
   

  	
  6.4

  	
  Application
  of Tag-Along Provisions

  	
  19

  
	
   

  	
   

  	
  6.5

  	
  Termination
  of Tag-Along Rights

  	
  19

  
	
   

  	
   

  	
  6.6

  	
  Restrictions
  Cumulative

  	
  19

  
							



 


i





















 


	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.

  	
  Certain
  Voting Agreements

  	
  19

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  7.1

  	
  Grant
  of Irrevocable Proxy

  	
  19

  
	
   

  	
   

  	
  7.2

  	
  Agreement
  of Each ERISA Holder

  	
  20

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  8.

  	
  Registration
  Rights

  	
  21

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9.

  	
  Right
  of First Offer

  	
  21

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  9.1

  	
  Right
  of First Offer

  	
  21

  
	
   

  	
   

  	
  9.2

  	
  Definition
  of New Securities

  	
  21

  
	
   

  	
   

  	
  9.3

  	
  Notice
  of Right

  	
  22

  
	
   

  	
   

  	
  9.4

  	
  Exercise
  of Right

  	
  22

  
	
   

  	
   

  	
  9.5

  	
  Lapse
  and Reinstatement of Right

  	
  22

  
	
   

  	
   

  	
  9.6

  	
  Termination
  of Right

  	
  23

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  10.

  	
  Termination

  	
  23

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  10

  	
  Termination

  	
  23

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  11.

  	
  Information
  Rights; Access Rights and Board Designation Rights; Certain Other Covenants

  	
  23

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  11.1

  	
  Information
  Rights

  	
  23

  
	
   

  	
   

  	
  11.2

  	
  Board
  Designation Rights

  	
  24

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  12.

  	
  Miscellaneous

  	
  25

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  12.1

  	
  Governing
  Law

  	
  25

  
	
   

  	
   

  	
  12.2

  	
  Entire
  Agreement; Amendments

  	
  25

  
	
   

  	
   

  	
  12.3

  	
  Legend
  on Stock Certificates

  	
  25

  
	
   

  	
   

  	
  12.4

  	
  Specific
  Performance

  	
  26

  
	
   

  	
   

  	
  12.5

  	
  Waiver

  	
  26

  
	
   

  	
   

  	
  12.6

  	
  Successors
  and Assigns

  	
  26

  
	
   

  	
   

  	
  12.7

  	
  Severability

  	
  26

  
	
   

  	
   

  	
  12.8

  	
  Headings

  	
  27

  
	
   

  	
   

  	
  12.9

  	
  Further
  Assurances

  	
  27

  
	
   

  	
   

  	
  12.10

  	
  Gender

  	
  27

  
	
   

  	
   

  	
  12.11

  	
  Notices

  	
  27

  
	
   

  	
   

  	
  12.12

  	
  Counterparts

  	
  27

  
	
   

  	
   

  	
  12.13

  	
  Arbitration

  	
  27

  
	
   

  	
   

  	
  12.14

  	
  Effective
  Date

  	
  28

  
	
   

  	
   

  	
  12.15

  	
  Relationship
  with General Electric Company

  	
  28

  
	
   

  	
   

  	
  12.16

  	
  Transactions with General Electric Company or Its
  Affiliates

  	
  28

  



 


ii





















 




	
  EXHIBIT A

  	
   

  	
  Class A
  Securityholders

  
	
   

  	
   

  	
   

  
	
  EXHIBIT B

  	
   

  	
  Class B
  Securityholders

  
	
   

  	
   

  	
   

  
	
  EXHIBIT C

  	
   

  	
  Registration Rights

  






 


iii


















 


SECURITYHOLDERS AGREEMENT


 


This
Securityholders Agreement (the “Agreement”) is made and entered into as
of May 28, 2008, by and among (a) NuCO2 Parent Inc., a Delaware corporation (together
with its permitted successors, the “Company”), (b) each of the stockholders
and optionholders of the Company whose names and addresses are listed on Exhibit A
hereto, as the same may be supplemented or amended from time to time
(collectively, the “Class A Securityholders,” which term shall
include any Permitted Transferees thereof), and (c) each of the
stockholders of the Company whose names and addresses are listed on Exhibit B
hereto, as the same may be supplemented or amended from time to time
(collectively, the “Class B Securityholders,” which term shall
include any Permitted Transferees thereof). 
The Class A Securityholders and the Class B Securityholders
are referred to herein collectively as the “Securityholders.”


 


RECITALS


 


WHEREAS,
the Company is authorized to issue an aggregate of 215,000 shares of capital
stock, including 200,000 shares of common stock, par value $0.01 per share, and
15,000 shares of preferred stock, par value $0.01 per share, 10,000 shares of
which have been designated as Series A Redeemable Cumulative Preferred
Stock, par value $0.01 per share (“Series A Preferred”); and


 


WHEREAS,
the Securityholders desire to enter into an agreement with each other and the
Company concerning, inter alia,
the transfer or other disposition of securities of the Company;


 


AGREEMENT


 


NOW,
THEREFORE, in consideration of the foregoing recitals and the mutual covenants
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:


 


1.             Definitions.


 


1.1           Certain Defined Terms.  The following
terms, as used herein or in the Exhibits hereto, have the following meanings:


 


“Act”
means the Securities Act of 1933, as amended, or any similar federal statute,
and the rules and regulations of the Commission thereunder, all as the same
shall be in effect at the time.


 


“AEP
III” means Aurora Equity Partners III L.P., a Delaware limited partnership.


 


“Affiliate,”
when used with reference to any Person, means any other Person directly or
indirectly, through one or more intermediaries, Controlling, Controlled by or
under common Control with such first Person and, when used with reference to (i) the
Aurora Entities, shall also include, but shall not be limited to, all of the
limited partnership’s general partners and their respective Affiliates and (ii) any
natural person, shall also include such person’s spouse, parents 


 


1

















 


and descendants (whether by blood or adoption, and
including stepchildren) and the spouses of such persons.  “Affiliated with” shall have a correlative
meaning to the term “Affiliate.”


 


“AOEP
III” means Aurora Overseas Equity Partners III, L.P., a Cayman Islands
exempted limited partnership.


 


“Associate”
means, when used to indicate a relationship with any Person, (a) any other
Person of which such Person is an officer, director or partner or is, directly
or indirectly, the beneficial owner of ten percent (10%) or more of any class
of equity securities issued by such other Person, (b) any trust or estate
in which such Person has a substantial beneficial interest or as to which such
Person serves as a trustee or in a similar fiduciary capacity, and (c) any
spouse of such Person, or any relative of such Person who has the same home as
such Person.


 


“Aurora
Entities” means, collectively, AEP III and AOEP III.


 


“Beneficial
Owner” has the meaning attributed to it in Rules 13d-3 and 13d-5 under
the Exchange Act (as in effect on the Initial Date), whether or not applicable,
except that a “person” shall not be deemed to have “beneficial ownership” of
any shares that any such person has the right to acquire, whether or not such
right is exercisable immediately or within sixty (60) days after the date as of
which such determination is being made.  “Beneficially
Owned” shall have a correlative meaning to the term “Beneficial Owner.”


 


“Board”
means the Board of Directors of the Company.


 


“Business
Day” means Monday through Friday of each week, except that no legal holiday
recognized as such by the government of the United States or the State of
California shall be regarded as a Business Day.


 


“Capital
Stock” means, with respect to any corporation, any and all shares,
interests, rights to purchase (other than convertible or exchangeable
indebtedness), warrants, options, participations or other equivalents of or
interests (however designated) in stock issued by that corporation.


 


“Certificate
of Designations” means, (a) with respect to any series of Preferred
Stock of the Company outstanding on the date hereof the designations of the
preferences and relative and optional and other special rights of such
Preferred Stock and the qualifications, limitations and restrictions applicable
thereto contained in the Company’s Amended and Restated Certificate of
Incorporation, as in effect on the date hereof or as amended from time to time
after the date hereof in accordance with its terms, and (b) with respect
to any series of Preferred Stock issued after the date hereof, the Certificate
of Designations, Preferences, and Relative, Optional and Other Special Rights
of Preferred Stock and Qualifications, Limitations and Restrictions Thereof of
such series of Preferred Stock of the Company, as in effect on the date of
issuance thereof or as amended from time to time after such date of issuance in
accordance with its terms.


 


“Co-Investor”
means any Class A Securityholder identified in Exhibit A hereto as a
designated Co-Investor.


 


“Commission”
means the Securities and Exchange Commission.


 


2

















 


“Common
Stock” means the Company’s common stock, par value $0.01 per share, and all
other stock of any class or classes (however designated) of the Company the
holders of which have the right, without limitation as to amount, either to all
or to a share of the balance of current dividends and liquidating dividends
after the payment of dividends and distributions on any shares entitled to
preference.


 


“Control”
means the possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract, or otherwise.


 


“Eligible
Holders” means all Securityholders.


 


“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended from time
to time.


 


“Exchange
Act” means the Securities Exchange Act of 1934, as amended, or any similar
federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.


 


“Fair
Market Value” of any Securities as of a particular date means the average
value of the Securities of such class for the ten (10) Business Day period
immediately preceding such date.  Such
average value shall be the average of the last reported sales price of the
Securities of such class on the New York Stock Exchange for each of such ten (10) Business
Days, or, if not reported on such exchange, on the composite tape, or, in case
no such reported sales take place for each of such ten (10) Business Days,
the average of the reported closing bid and asked quotations on the New York
Stock Exchange for each of such ten (10) Business Days, or if no such
quotations are available, the last reported sale prices for such ten (10) Business
Days on the principal national securities exchange on which such class of
Securities is listed, or if not listed on any national securities exchange, the
last reported sales prices for such ten (10) Business Days in the
over-the-counter market as reported by the National Quotation Bureau,
Incorporated or similar organization, or if none of such sale prices are
available for each Business Day in such ten (10) Business Day period, the
average of the high bid and low asked quotations in the over-the-counter market
as so reported for such ten (10) Business Days, or if no such quotations
are available, the fair market value per share as determined in good faith by
the Board, whose determination shall be conclusive.


 


“GEPT”
means General Electric Pension Trust.


 


“HSR
Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended.


 


“Initial
Date” means May 28, 2008 or, in the case of an employee of the Company
or a Subsidiary, the date on which such employee first acquires Securities of
the Company.


 


“Involuntary
Transfer” means any transfer, proceeding or action (other than to a Permitted
Transferee) by or in which a Securityholder shall be deprived or divested of
any right, title or interest in or to any Securities, including, without
limitation, (i) any seizure under levy of attachment or execution, (ii) any
foreclosure upon a pledge of such Securities, (iii) any transfer 


 


3

















 


in connection with bankruptcy (whether pursuant to the
filing of a voluntary or an involuntary petition under the Federal Bankruptcy
Code of 1978, or any modifications or revisions thereto or any similar state
laws) or other court proceeding to a debtor in possession, trustee in
bankruptcy or receiver or other officer or agency, (iv) any transfer to a
state or to a public officer or agency pursuant to any statute pertaining to
escheat or abandoned property, (v) any transfer to such Securityholder,
with respect to the disposition of the community property interest of such
Securityholder’s spouse in all or any part of the Securities upon the death of
such spouse, and any transfer occasioned by the incompetence of such
Securityholder, or (vi) any transfer to a Securityholder’s spouse as a
result of the termination of the marital relationship of the Securityholder and
the Securityholder’s spouse.  “Involuntary
Transferee” shall have a correlative meaning to “Involuntary Transfer.”


 


“Liens”
means any and all liens, claims, options, charges, encumbrances, voting trusts,
irrevocable proxies or other rights of any kind or nature.


 


“Managing
Director” means, as of any date, any individual who is then designated as a
Managing Director of the general partner of AEP III or a Managing Director of
the general partner of AOEP III.


 


“NM”
means The Northwestern Mutual Life Insurance Company.


 


“Options”
means any stock option now or hereafter granted or issued by the Company
entitling the holder thereof to purchase shares of Common Stock.


 


“Permitted Transferee” means:


 


(a)           as to any Securityholder who is a natural person, (i) the
successors in interest to such Securityholder, in the case of a Transfer upon
the death of such Securityholder, provided
that such successors in interest would be a Permitted Transferee under
clauses (a)(ii) or (a)(iv) of this definition, (ii) such
Securityholder’s spouse, parents and descendants (whether by blood or adoption,
and including stepchildren) and the spouses of such persons, (iii) such
Securityholder, with respect to the disposition of the community property
interest of such Securityholder’s spouse in all or any part of the Securities
upon the death of such spouse, and any Transfer occasioned by the incompetence
of such Securityholder and (iv) in the case of a Transfer during such
Securityholder’s lifetime, any Person in which no Person has any interest
(directly or indirectly) except for any of such Securityholder, such
Securityholder’s spouse, parents and descendants (whether by blood or adoption,
and including stepchildren) and the spouses of such persons; provided, however,
that in respect of any Transfer by any Securityholder during such Securityholder’s
lifetime pursuant to clause (ii) or (iv), such Securityholder shall retain
voting power over all of the outstanding Securities being Transferred; and provided, further,
that, in the case of a Transfer to a Person (such as a partnership or a trust)
as to which a governing instrument exists, (x) such Securityholder shall
furnish a copy of such governing instrument to the Company in advance, (y) the
terms of such governing instrument shall not be inconsistent with the terms of
this Agreement and (z) during the period that such Securities are held by
such Person, the relevant Securityholder and all other relevant parties shall
agree in writing that the terms of such governing instrument shall not be
amended in any manner that results in such 


 


4

















 


governing instrument being inconsistent with the terms
of this Agreement without the prior written consent of the Company;


 


(b)           as to any Securityholder that is a trust, all the
beneficiaries of which are natural persons, such beneficiaries or the grantor
of the trust; provided, however, that if such trust is a Permitted
Transferee under clause (a)(i) or (a)(iv) of this definition,
each such beneficiary or grantor of such trust is a Person who would be
permitted to have an interest in such trust under such clause (a)(i) or
(a)(iv);


 


(c)           as to any Securityholder that is a limited partnership
or limited liability company, (i) any limited or general partner, member,
officer, employee or Affiliate of such Securityholder, or (ii) any
Affiliate of any limited or general partner or member of such Securityholder; provided, however,
that if such limited partnership or limited liability company is a Permitted
Transferee under clause (a)(i) or (a)(iv) of this definition,
each such limited or general partner, member, officer, employer or Affiliate is
a Person who would be permitted to have an interest in such partnership or
limited liability company under such clause (a)(i) or (a)(iv);


 


(d)           as to any Securityholder, a bank or other financial
institution to which Securities are Transferred by way of pledge or to which
Securities are Transferred upon the foreclosure thereof; provided, however,
that as to any Securityholder, any such pledge must be approved in advance in
writing by a majority of the disinterested directors of the Board;


 


(e)           as to any Securityholder that is a corporation, all
Affiliates of such Securityholder; provided,
however, that if such corporation
is a Permitted Transferee under clause (a)(i) or (a)(iv) of this
definition, each such Affiliate is a Person who would be permitted to have an
interest in such corporation under such clause (a)(i) or (a)(iv); and


 


(f)            any successor to any Person that is (i) an
employee benefit plan under the ERISA, or any successor statute, or (ii) whose
assets are deemed to be “plan assets” under ERISA, or (iii) is subject to
the fiduciary responsibility provisions of Part 4 of Title I of ERISA, or (iv) is
a government plan or church plan within the meaning of Section 3(32) and Section 3(33),
respectively, of ERISA;


 


provided, in each such case, that prior written
notice of any such Transfer is given to the Company by such Securityholder and
that the Permitted Transferee shall agree in advance of such Transfer to be
designated as a Securityholder and to be bound by the terms of this Agreement
pursuant to a written agreement reasonably satisfactory to the Company and the
Aurora Entities.


 


“Person”
means a company, a corporation, an association, a partnership, a limited
liability company, an organization, a joint venture, a trust or other legal
entity, an individual, a government or political subdivision thereof or a
governmental agency.


 


“Preferred
Stock” means the Company’s Series A Preferred and any other preferred
stock of the Company issued after the date hereof howsoever designated that is
entitled to any preference over the Common Stock in the payment of dividends or
in the distribution of assets upon liquidation of the Company.


 


5

















 


“Pro
Rata” means, with respect to any Securityholder in reference to any class
or group of Securityholders, the ratio of the number of shares of Common Stock
held by such Securityholder or issuable to such Securityholder to the aggregate
number of shares of Common Stock at the time outstanding held by or issuable to
all Securityholders of such class or group, in each case calculated on a fully
diluted basis.


 


“Qualified
IPO” means an underwritten public offering of Common Stock pursuant to a
registration statement filed with the Commission; provided that there are sales pursuant to such registration
statement of shares of Common Stock for an aggregate offering price of not less
than $100,000,000.


 


“Qualified
IPO Date” means the closing date of the sale of shares pursuant to the
registration statement for the Qualified IPO.


 


“Qualifying
Class A Securityholder” means, as of any date, any Class A
Securityholder that, as of the applicable date, continues to Beneficially Own (i) at
least fifty percent (50%) of the shares of Common Stock Beneficially Owned by
such Class A Securityholder on the Initial Date (excluding for such
purpose the effects of any redemptions of shares of Common Stock or a reverse
stock split) and (ii) at least fifty percent (50%) of the shares of Series A
Preferred Beneficially Owned by such Class A Securityholder on the Initial
Date (excluding for such purpose the effects of any redemptions of shares of Series A
Preferred or a reverse stock split).


 


“Reference
Rate” means the per annum rate of interest publicly announced from time to
time by Bank of America as its prime rate (or reference rate).  Any change in the Reference Rate shall take
effect at the opening of business on the day specified in the public announcement
of such change.  Notwithstanding the
foregoing, in no event shall the rate of interest payable by any party hereto
under this Agreement exceed the maximum rate permitted by applicable law with
respect to such payments under this Agreement.


 


“Registrable Securities” means:


 


(a)           any shares of Common Stock issued and outstanding on
the date hereof or issuable upon exercise of options issued and outstanding on
the date hereof sold to the Securityholders (or any options issued after the
date hereof upon transfer or exchange of such options pursuant to the terms
thereof);


 


(b)           any shares of Common Stock issued after the date
hereof or issuable upon exercise of options issued after the date hereof that,
in any such case, are designated by the Company as Registrable Securities for
purposes of this Agreement to Persons who are or become Securityholders;


 


(c)           any shares of Common Stock purchased pursuant to this
Agreement; and


 


(d)           any securities issued or issuable with respect to any
Common Stock referred to in clauses (a), (b) or (c) of this
definition by way of stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization or otherwise.


 


6

















 


As to any particular Registrable Securities, once issued such
Securities shall cease to be Registrable Securities when:


 


(x)            a registration statement with respect to the sale of
such Securities shall have become effective under the Act and such Securities
shall have been disposed of in accordance with such registration statement;


 


(y)           all of such Securities held by any Person and his, her
or its Affiliates may be distributed to the public pursuant to Rule 144
(or any successor provision) under the Act, as modified by Section 3.4
below, in any three (3) month period unless the aggregate Fair Market
Value of such securities at the start of such three (3) month period is
greater than Twenty-Five Million Dollars ($25,000,000); or


 


(z)            such Securities shall have ceased to be outstanding.


 


Except as set forth in the preceding sentence, no Transfer of
Registrable Securities shall cause such Registrable Securities to lose such
status.


 


“Registration
Expenses” means all expenses incident to the Company’s performance of or
compliance with Section 8 and Exhibit C hereto, including,
without limitation, all registration, filing and NASD fees, all fees and
expenses of complying with securities or blue sky laws, all word processing,
duplicating and printing expenses, messenger and delivery expenses, the fees
and expenses of counsel for the Company and of its independent public
accountants, including the expenses of any special audits or “cold comfort”
letters required by or incident to such performance and compliance, the
reasonable fees and expenses of a single counsel retained by the holders of a
majority of the Registrable Securities being registered, the reasonable fees
and expenses of a single counsel retained by senior executive management
holding Registrable Securities being registered, and any fees and disbursements
of underwriters customarily paid by issuers or sellers of securities, but
excluding underwriting discounts and commissions and transfer taxes, if any.


 


“Securities”
means the shares of Common Stock and Preferred Stock and the Options now or hereafter
issued to or otherwise acquired by the Securityholders (including acquisitions
of such securities concurrent with the execution of this Agreement and
acquisitions of any such securities of the Company after the date hereof
whether or not pursuant to the terms hereof and including issuances of any such
securities pursuant to any Option existing on the date hereof or issued
subsequent to the date hereof) and all shares of Capital Stock or other
securities (including convertible securities and the securities into which such
convertible securities convert) of the Company or any successor of the Company
issued or issuable in respect thereof as a result of any stock dividend on, or
stock split or reclassification or conversion of, or in exchange for, any such
Common Stock and Preferred Stock or issued or issuable with respect to such
Common Stock, Preferred Stock or Options in connection with any merger or
reorganization or similar transaction involving the Company.


 


“Shelf
Registration” means a “shelf” registration statement on an appropriate form
pursuant to Rule 415 under the Act and/or any similar rule that may
be adopted by the Commission.


 


7














 


“Subsidiary”
with respect to any Person means (i) a corporation a majority of whose
Capital Stock with voting power, under ordinary circumstances, to elect
directors is at the time, directly or indirectly, owned by such Person, by such
Person and one or more direct or indirect Subsidiaries of such Person or by one
or more direct or indirect Subsidiaries of such Person, or (ii) any other
Person (other than a corporation) in which such Person, one or more direct or
indirect Subsidiaries of such Person, or such Person and one or more direct or
indirect Subsidiaries of such Person, directly or indirectly, at the date of
determination thereof has at least majority ownership interest.


 


“Transfer”
means any direct or indirect disposition of an interest whether by sale,
exchange, merger, consolidation, transfer, assignment, conveyance,
distribution, pledge, inheritance, gift, mortgage, the creation of any security
interest in, or lien or encumbrance upon, any other disposition of any kind and
in any manner, by operation of law or otherwise, or any other transfer or
agreement which would result in a change in the percentage of the Company’s
Capital Stock Beneficially Owned by a Securityholder or a Beneficial Owner.


 


1.2           Index of Other Defined Terms. 
In addition to those terms defined in Section 1.1, the following
terms shall have the respective meanings given thereto in the sections or
paragraphs indicated below:


 


	
  Defined Term

  	
   

  	
  Section

  
	
   

  	
   

  	
   

  
	
  Acquisition Notice

  	
   

  	
  5.1

  
	
  Acquisition Proposal

  	
   

  	
  5.1

  
	
  Agreement

  	
   

  	
  Preamble

  
	
  Bona Fide Offer

  	
   

  	
  4.2

  
	
  Claims

  	
   

  	
  Exh. C, ¶ 7(a)

  
	
  Class A Securityholder

  	
   

  	
  Preamble

  
	
  Class B Securityholder

  	
   

  	
  Preamble

  
	
  Company

  	
   

  	
  Preamble

  
	
  Counter-Notice

  	
   

  	
  4.2

  
	
  Demand Holder

  	
   

  	
  Exh. C., ¶ 2(a)

  
	
  Demand Registration

  	
   

  	
  Exh. C., ¶ 2(a)

  
	
  Drag-Along Securityholder

  	
   

  	
  5.1

  
	
  Involuntary Transfer Notice

  	
   

  	
  4.3

  
	
  Notice Date

  	
   

  	
  6.2

  
	
  Option Notice

  	
   

  	
  4.2

  
	
  Other Securityholder

  	
   

  	
  6.1

  
	
  Outside Party

  	
   

  	
  4.2

  
	
  Proposed Transferor

  	
   

  	
  6.1

  
	
  Proposed Transferor Notice

  	
   

  	
  6.2

  
	
  Proxy Holder

  	
   

  	
  7

  
	
  Registration Demand Securities

  	
   

  	
  Exh. C., ¶ 2(a)

  
	
  Registration Documents

  	
   

  	
  Exh. C, ¶ 7(a)

  
	
  Rule 144

  	
   

  	
  2.3

  
	
  Securityholder

  	
   

  	
  Preamble

  
	
  Series A Preferred

  	
   

  	
  Recitals

  
	
  Tag-Along Notice

  	
   

  	
  6.3

  
	
  Tag-Along Sale

  	
   

  	
  6.1

  
	
  Third-Party Offeror

  	
   

  	
  5.1

  
	
  Transferred Securities

  	
   

  	
  4.3

  



 


8

















 


2.             Compliance with Securities Laws.


 


2.1           Restrictions on Transfer. 
Notwithstanding anything herein to the contrary and in addition to, and
not in lieu of, the terms of Sections 3, 4, 5, 6 and 7 of this Agreement,
each Securityholder agrees that, prior to making any Transfer of any Securities
(other than a Transfer to the Company or to another Securityholder as required
or permitted by this Agreement), such Securityholder will give written notice
to the Company describing the manner and terms of such proposed Transfer, the
identity of the proposed transferee and such other information as the Company
may reasonably request.  Each such
Securityholder further agrees that such proposed Transfer will not be effected
until:


 


(a)           the Company has notified such Securityholder that
either:


 


(i)        in the opinion of Company counsel, no
registration of such Securities under the Act is required in connection with
such proposed Transfer; or


 


(ii)       a registration statement under the Act covering such
proposed disposition has been filed by the Company with the Commission and has
become effective under the Act; and


 


(b)           the Company has notified such Securityholder that
either:


 


(i)        in the opinion of Company counsel, no
registration or qualification under the securities or “blue sky” laws of any
state is required in connection with such proposed disposition; or


 


(ii)       compliance with applicable state securities or “blue
sky” laws has been effected.


 


The Company will use its best efforts to respond to any such notice
from a Securityholder within fifteen (15) days of its receipt of such notice.


 


2.2           Cooperation of Company.  In the case
of any proposed Transfer under this Section 2, the Company will use
reasonable efforts to comply with any such applicable state securities or “blue
sky” laws, but shall in no event be required, in connection therewith, to
qualify to do business in any state where it is not then qualified or to take
any action that would subject it to tax or to the general service of process in
any state where it is not then subject, unless the Company was otherwise
required to do so prior to the proposed Transfer.  The restrictions on Transfer contained in Section 2.1
shall be in addition to, and not by way of limitation of, any other
restrictions on Transfer contained in any other section of this Agreement.


 


2.3           Rule 144 Acknowledgment. 
Each Securityholder acknowledges that such Person is familiar with Rule 144
of the Rules and Regulations of the Commission, as amended, 


 


9

















 


promulgated pursuant to the Act (“Rule 144”), and that such
Person has been advised that Rule 144 permits, only under certain
circumstances, the resale of restricted securities such as the Securities being
purchased on the date hereof or that may become subject hereto after the date
hereof, but that Rule 144 is not currently, and may not in the future
become, available to permit resales by such Person of any Securities.  Each Securityholder understands that, to the
extent that Rule 144 is not available, such Person will be unable to sell
any Securities without either registration under the Act or the existence of
another exemption from such registration requirement, and that the Company has
no obligation whatsoever (except as set forth herein) to any Securityholder to
register any Securities.


 


2.4           Restrictions on Transfer for Benefit of
Securityholders.  Each Securityholder agrees that such
Securityholder will not Transfer any Securities (or any direct or indirect
interest therein) or any stock certificate representing the same, now or
hereafter at any time owned by such Securityholder, except (i) to the
Company, (ii) to a Permitted Transferee, and, in each such case, as
required or permitted by the provisions of Sections 2, 3, 4, 5, 6 and 7 of
this Agreement.


 


3.             Further Restrictions.


 


3.1           Prohibition on Transfer Prior to Qualified IPO Date. 
Each Class A Securityholder agrees that, prior to the occurrence of
the Qualified IPO Date, such Class A Securityholder will not Transfer any
Securities now or hereafter owned by such Class A Securityholder except to
a Permitted Transferee or with the consent of either one or both of the Aurora
Entities (which may be given or withheld in their respective sole and absolute
discretion with or without any reason or liability therefor except as
hereinafter provided in this Section 3). 
The foregoing restriction shall be in addition to, and not in lieu of,
the terms of Sections 2, 4, 5, 6 and 7 of this Agreement.


 


3.2           Certain Releases Required. 
Notwithstanding the provisions of the first sentence of Section 3.1,
if either Aurora Entity, either directly or indirectly, shall make a
distribution of Common Stock or Preferred Stock in kind to the partners of any
such partnership, then promptly after such Aurora Entity’s receipt of a written
request to do so from any Class A Securityholder identified in Exhibit A
hereto as a designated Class A Securityholder, given at any time or from
time to time, such Aurora Entity shall consent to the release from the terms of
this Section 3 of the same proportion of such class of Securities which
are then held subject to the terms of this Section 3 by such Class A
Securityholder as the number of shares of such class being distributed by the
relevant Aurora Entity to its partners bears to the total number of shares of
such class which would be distributed to such partners if such Aurora Entity
then distributed in kind all Securities of such class to its partners.


 


3.3           Certain Restrictions on Releases of Securities of
Managing Directors.  None of the Aurora Entities may release any
Securities of a Managing Director from the restrictions imposed by this Section 3
or consent to the Transfer of any such Securities unless, in either such case,
concurrent therewith such Aurora Entity shall consent to the release from the
terms of this Section 3 of the same proportion of such class of Securities
subject to the terms of this Section 3 by each Class A Securityholder
as the number of Securities of such class held by such Managing Director being
released from such restrictions or being Transferred bears to the 


 


10

















 


total number of Securities of such class held by such Managing
Director; provided, however, that this sentence shall not
apply (a) to any Securities released from such restrictions pursuant to Section 3.2
or (b) to Securities held by a Managing Director which are Transferred (i) to
either Aurora Entity or any Affiliate thereof or any Associate of any of the
foregoing or (ii) to any other Person acceptable to any Aurora Entity if,
in any such case, the general partner of such Aurora Entity shall have
determined that such Transfer is reasonably necessary to avoid financial or
other hardship to such Affiliate or Associate.


 


3.4           Restriction on Transfer Subsequent to Qualified IPO
Date.  Each Class A Securityholder agrees that,
without the consent of either one or both of the Aurora Entities, after the
occurrence of the Qualified IPO Date, such Class A Securityholder will not
effectuate any Transfer, or submit to any broker any sell order with respect to
a proposed Transfer, of Securities that would exceed the lesser of the volume
limitations set forth in clauses (i), (ii) or (iii) of Rule 144(e)(1),
regardless of whether such Transfer or such Securities are otherwise subject to
Rule 144.


 


4.             First Refusal Rights.


 


4.1           Restrictions Cumulative.  Each
Securityholder agrees that such Securityholder will not Transfer any Securities
(or any direct or indirect interest therein) or any stock certificate
representing the same, now or hereafter at any time owned by him, except to a
Permitted Transferee or as required or permitted by the provisions of
Sections 2, 3, 4, 5 and 6 of this Agreement.  The restrictions on transfer imposed by this Section 4
on any Securityholder shall be in addition to, and not in lieu of, the
restrictions on transfer imposed by Sections 2, 3, 5, 6 and 7 of this
Agreement to the extent the same are otherwise applicable to such
Securityholder.


 


4.2           Bona Fide Offers.  (a) If
any Securityholder (other than a Class B Securityholder) desires to
Transfer any Securities and such Securityholder shall have received a bona fide
arms’-length written offer (a “Bona Fide Offer”) from a Person other
than an Affiliate or Associate of such Securityholder (the “Outside Party”)
for the Transfer of such Securities, such Securityholder shall give written
notice (the “Option Notice”) to each Aurora Entity, the Company, GEPT
and NM (so long as, with respect to GEPT and NM, such Securityholder is a
Qualifying Class A Securityholder as of the date of such notice) setting
forth such desire, which notice shall set forth at least the name and address
of the Outside Party and the price and terms of the Bona Fide Offer and shall
be accompanied by a copy of the Bona Fide Offer and evidence demonstrating, to
the reasonable satisfaction of the Aurora Entities and the Company, the Outside
Party’s ability to consummate such offer. 
Upon the giving of such Option Notice, the Aurora Entities or any of
their respective Affiliates shall have the option to purchase, on a Pro Rata
basis, at the price offered by the Outside Party in the Bona Fide Offer, all or
any portion of the Securities specified in the Option Notice, said option to be
exercised within ten (10) Business Days following the giving of such
Option Notice, by giving a counter-notice (a “Counter-Notice”) to the
selling Securityholder (with a copy of such Counter-Notice to the Company, GEPT
and NM).  In the event that a
determination must be made (as described below) as to the fair market value of
non-cash consideration, the ten (10) Business Day period referred to in
the immediately preceding sentence shall be extended to such greater period of
time, not to exceed twenty (20) Business Days after said Option Notice,
specified in good faith by a disinterested majority of the Board.  In the event that the Bona Fide Offer
provides, in whole or in part, for 


 


11

















 


non-cash consideration, the “price” offered by the Outside Party shall
be deemed to be the amount of cash, if any, provided in the Bona Fide Offer
plus the fair market value of the non-cash consideration as determined in good
faith by a disinterested majority of the Board. 
Notwithstanding the foregoing, no Aurora Entity shall be permitted to purchase
any Securities pursuant to this Section 4 from any Securityholder that is
subject to ERISA if such purchase would constitute a non-exempt prohibited
transaction under ERISA.


 


(b)           Subject to paragraph (e) of this Section 4.2,
if either or both of the Aurora Entities or any of their respective Affiliates
elect to purchase such Securities, each such electing entity shall be obligated
to purchase, and such Securityholder shall be obligated to sell, such
Securities at a closing to be held on the fifteenth (15th) Business Day after
the giving of the Counter-Notice at the principal executive offices of the
Company, or at such other time and place as may be mutually acceptable to each
purchasing entity and such selling Securityholder.  The closing of any such purchase by an Aurora
Entity or any of their respective Affiliates may, at the election of the
purchasing entity, be delayed up to thirty (30) Business Days in order to
permit such acquisition of such Securities to be made in conformity with
applicable laws, including the HSR Act.


 


(c)           Subject to paragraph (e) of this Section 4.2,
if the Aurora Entities or any of their respective Affiliates do not elect to
purchase all of such Securities proposed to be sold by such Securityholder
within the time limits specified in paragraph (a) of this Section 4.2,
then the Company shall have the option, exercisable by the delivery of a
counter-notice to such Securityholder no later than fifteen (15) Business Days
following the date of the Option Notice, to purchase, at the price offered by
the Outside Party in the Bona Fide Offer, all or any portion of the Securities
specified in the Option Notice and not purchased by the Aurora Entities or any
of their respective Affiliates.  In the
event that the Company elects to purchase Securities pursuant to this Section 4.2(c),
the Company will be obligated to purchase, and such Securityholder shall be
obligated to sell, such Securities at a closing to be held on the fifteenth
(15th) Business Day after the delivery of the Company’s counter-notice to such
Securityholder at the principal executive offices of the Company, or at such
other time and place as may be mutually acceptable to each Aurora Entity, the
Company and such selling Securityholder. 
The closing of any such purchase by the Company may, at the election of
the Company, be delayed up to thirty (30) Business Days in order to permit such
acquisition of such Securities to be made in conformity with applicable laws,
including the HSR Act.  Notwithstanding
the foregoing, the Company shall not be permitted to purchase any Securities
pursuant to this Section 4 from any Securityholder that is subject to
ERISA if such purchase would constitute a non-exempt prohibited transaction
under ERISA.


 


(d)           Subject to paragraph (e) of this Section 4.2,
if neither the Aurora Entities nor any of their respective Affiliates elect to
purchase all of such Securities proposed to be sold by such Securityholder
within the time limits specified in paragraph (a) of this Section 4.2
and the Company does not elect to purchase all of such Securities proposed to
be sold by such Securityholder within the time limits specified in
paragraph (c) of this Section 4.2, then each of GEPT and NM
shall have the option, exercisable by the delivery of a counter-notice to such
Securityholder no later than thirty (30) Business Days following the date of
the Option Notice, to purchase on a Pro Rata basis, at the price offered by the
Outside Party in the Bona Fide Offer, all or any portion of the Securities
specified in the Option Notice and not purchased 


 


12

















 


by the Aurora Entities or any of their respective Affiliates or the
Company.  In the event that either GEPT
or NM elects to purchase Securities on a Pro Rata basis pursuant to this Section 4.2(d),
GEPT and/or NM will be obligated to purchase, and such Securityholder shall be
obligated to sell, such Securities at a closing to be held on the fifteenth
(15th) Business Day after the delivery of GEPT and/or NM’s counter-notice to
such Securityholder at the principal executive offices of the Company, or at
such other time and place as may be mutually acceptable to each Aurora Entity,
the Company, GEPT and/or NM, as applicable, and such selling Securityholder.  The closing of any such purchase by GEPT
and/or NM may, at the election of GEPT and/or NM, be delayed up to thirty (30)
Business Days in order to permit such acquisition of such Securities to be made
in conformity with applicable laws, including the HSR Act.  Notwithstanding the foregoing, neither GEPT
nor NM shall be permitted to purchase any Securities pursuant to this Section 4
from any Securityholder that is subject to ERISA if such purchase would
constitute a non-exempt prohibited transaction under ERISA.


 


(e)           If the Aurora Entities or any of their respective
Affiliates, the Company, GEPT and NM elect not to purchase all of the
Securities subject to the Bona Fide Offer within the time limits specified
above, then the offer to sell such Securities that the Aurora Entities, their
Affiliates, the Company, GEPT and NM have not elected to purchase (the “Remaining
Securities”) shall be deemed revoked and the selling Securityholder, at any
time within a period of three months from the giving of said Option Notice, may
Transfer all (but not less than all) of the Remaining Securities to the Outside
Party at the price and on the terms contained in the Bona Fide Offer; provided, however,
that in the event such selling Securityholder has not so Transferred said
Remaining Securities to the Outside Party within said three month period, then
said Remaining Securities thereafter shall continue to be subject to all of the
restrictions contained in this Agreement as though no Option Notice had ever
been given.


 


(f)            At the closing of any purchase of Securities pursuant
to this Section 4.2, the selling Securityholder shall deliver certificates
representing such Securities duly endorsed for transfer and accompanied by all
requisite stock transfer taxes.  Any
Securities purchased pursuant to this Section 4.2 shall be free and clear
of any and all Liens (other than those arising under this Agreement) and at the
Closing of the purchase the selling Securityholder shall represent and warrant
to such effect and to the effect that such selling Securityholder is the
Beneficial Owner of such Securities.  The
Person making such purchase shall deliver at such closing, by certified or bank
check, payment in full for the Securities being purchased by such Person.  At such closing, all of the parties to the
transaction shall execute such additional documents as are otherwise reasonably
necessary or appropriate, consistent with the terms hereof.


 


(g)           If, in any instance, any Aurora Entity or any of their
respective Affiliates, the Company, GEPT or NM elects not to exercise its
rights hereunder or elects to waive such rights, such election shall not
constitute a waiver of such Person’s rights to receive an Option Notice in the
case of any Transfer subsequently proposed by such or any other Securityholder.


 


4.3           Involuntary Transfers.  (a) Each
Securityholder shall notify the Company and the Aurora Entities promptly upon
the occurrence of an Involuntary Transfer of any Securities (including
Involuntary Transfers of any beneficial interest by a Beneficial Owner).  If 


 


13

















 


an Involuntary Transfer of any of the Securities owned by any
Securityholder shall occur, such Securities shall remain subject to all the
terms of this Agreement and the Aurora Entities, any of their respective
Affiliates, the Company, GEPT and NM shall have the same rights of first
refusal under Section 4.2 above with respect thereto (the “Transferred
Securities”) as if the Involuntary Transfer had been a proposed voluntary
Transfer by such Securityholder, except that:


 


(i)        the periods within which such rights must
be exercised shall run from the date notice of the Involuntary Transfer is
received from the Securityholder or its legal representatives with respect to
which such Involuntary Transfer has occurred; and


 


(ii)       such rights shall be exercised by notice (an “Involuntary
Transfer Notice”) to the Involuntary Transferee rather than to the
Securityholder with respect to which such Involuntary Transfer has occurred.


 


If such Transferred Securities were shares of Common Stock or Preferred
Stock, the purchase price thereof shall be the lesser of the Fair Market Value
of such Securities on the date of such Involuntary Transfer or on the date of
the relevant Involuntary Transfer Notice from the Securityholder from whom such
Involuntary Transfer took place (or from such Involuntary Transferee).  If such Transferred Securities are Options
that are then exercisable, the purchase price thereof shall be equal to (i) the
lesser of (y) the aggregate Fair Market Value on the date of such
Involuntary Transfer of the number of shares of Common Stock which the holder
of such Options is entitled to receive upon exercise of such Transferred
Securities or (z) the aggregate Fair Market Value of such number of shares
on the date of the relevant Involuntary Transfer Notice from the Securityholder
from whom such Involuntary Transfer took place (or from such Involuntary
Transferee), less (ii) the aggregate exercise price of such Transferred
Securities, but not less than zero.  If
such Involuntary Transfer Securities are Options that are not then exercisable,
the purchase price thereof shall be as set forth in the immediately preceding
sentence after such appropriate discount for the fact that such Transferred
Securities are not then exercisable as may be determined by the Board, in good
faith and in the exercise of business judgment.


 


(b)           At the closing of any purchase of Transferred
Securities, the Involuntary Transferee shall deliver certificates representing
the Transferred Securities being purchased by the relevant Aurora Entity, any
of their respective Affiliates, the Company, GEPT or NM as the case may be,
duly endorsed for transfer and accompanied by all requisite stock transfer
taxes, and such Securities shall be free and clear of any and all Liens arising
through the action or inaction of the Involuntary Transferee (other than those
arising under this Agreement) and the Involuntary Transferee shall represent
and warrant to such effect and to the effect that such Involuntary Transferee
is the Beneficial Owner of such Securities. 
At the closing of any such purchase, the Securityholder that was the
transferor in respect of the Involuntary Transfer shall represent and warrant
to the purchaser or purchasers that such Securityholder had conveyed to the
Involuntary Transferee good and valid title to the Transferred Securities.  The Person making such purchase shall deliver
at closing, by a certified or bank check, payment in full of the purchase price
for the Securities being purchased by such Person.  At such closing, all of the 


 


14

















 


parties to the transaction shall execute such additional documents as
are otherwise necessary or appropriate.


 


(c)           In the event that the provisions of this Section 4.3
shall be held to be unenforceable with respect to any particular Involuntary
Transfer of Securities, such Securities shall remain subject to all the terms
of this Agreement and the Aurora Entities, any of their respective Affiliates,
the Company, GEPT and NM shall have a right of first refusal as set forth in Section 4.2
hereof if the Involuntary Transferee subsequently obtains a Bona Fide Offer for
and desires to Transfer such Transferred Securities.


 


4.4           Application of First Refusal Rights. 
The first refusal rights provided in Sections 4.2 and 4.3 shall not
apply to any Transfer of Securities:


 


(a)           to the Company, to an Aurora Entity, GEPT or NM or any
of their respective Affiliates, or to a Permitted Transferee of the relevant
Securityholder;


 


(b)           pursuant to an effective registration statement under
the Act or pursuant to Rule 144;


 


(c)           to an Other Securityholder (as defined in Section 6.1)
pursuant to Section 6 below; or


 


(d)           by a Drag-Along Securityholder (as defined in Section 5.1)
pursuant to Section 5 below.


 


4.5           Termination of First Refusal Rights. 
Notwithstanding anything herein to the contrary, the rights of first
refusal provided in this Section 4 shall terminate, with respect to all
Securities held by each Securityholder, upon the occurrence of the
Qualified IPO Date.


 


5.             Third-Party Offer for All Outstanding Securities.


 


5.1           “Drag-Along” Obligations.  If either Aurora Entity shall receive an
offer in writing from a third party which is not an Affiliate of such Aurora
Entity (a “Third-Party Offeror”) to purchase all of the issued and
outstanding Securities held by such Aurora Entity for purposes of effecting a
business combination of the Company with such Person or an Affiliate thereof or
to purchase all or substantially all the assets of the Company (each an “Acquisition
Proposal”), and the Aurora Entities desires to accept or cause the Company
to accept such Acquisition Proposal, either of the Aurora Entities shall
deliver a notice (an “Acquisition Notice”) to the Company (which shall
deliver a copy of such Acquisition Notice to each of the other Securityholders
within three (3) Business Days of its receipt thereof).  Such Acquisition Notice shall contain a copy
of such Acquisition Proposal, including the name and address of the Third-Party
Offeror and the terms of the Acquisition Proposal.  If any other Securityholder receives any
Acquisition Proposal (which, for this purpose, includes an offer to purchase
all of the issued and outstanding Common Stock and any other securities exercisable
for or convertible into Common Stock but not an offer to purchase only such
other Securityholder’s Common Stock and any other securities exercisable for or
convertible into Common Stock), such Securityholder shall promptly transmit
such Acquisition Proposal to the Company and each Aurora Entities (which the
Aurora Entities may elect not to pursue without any liability or 


 


15

















 


obligation to any Securityholder or the Company).  The other Securityholders (other than the
Aurora Entities) (the “Drag-Along Securityholders”) severally agree
that, upon receipt of such Acquisition Notice, they shall be obligated to sell,
at the same time the Aurora Entities sells, all of its Securities to the
Third-Party Offeror upon the terms and conditions set forth in the Acquisition
Proposal, or, as the case may be, to vote their Securities in favor of the
merger or sale of all or substantially all of the assets of the Company as
described in the Acquisition Proposal, and otherwise to take all actions
reasonably necessary or appropriate to cause the Company to consummate the
proposed transaction.  In any such
transaction, all of such shares of Common Stock shall be purchased at, or be
converted into the right to receive, the same price per share of Common Stock
(and the same type of consideration) as received by the Aurora Entities and all
of such shares of Preferred Stock shall be purchased at, or be converted into
the right to receive, the same price per share of Preferred Stock (and the same
type of consideration) as received by the Aurora Entities and the terms and
conditions of such sale, including the sale and exit rights with respect to any
non-cash consideration to be received in such sale, shall be the same terms and
conditions for all Securityholders, including the Aurora Entities, subject to
any rights the Aurora Entities may receive solely by reason of the size of the
collective holdings of the Aurora Entities in any such non-cash consideration.   Notwithstanding the foregoing, GEPT shall
not be obligated to sell any Securities to any Third Party Offeror pursuant to
this Section 5 if such sale would constitute a non-exempt prohibited
transaction under ERISA.  In that regard,
the Aurora Entities may, in their sole discretion and at their own expense,
seek an administrative exemption from the U.S. Department of Labor (or other
appropriate governmental agency) to allow such sale.


 


5.2           Termination of Drag-Along Obligations. 
Notwithstanding anything herein to the contrary, the rights and
obligations provided for in this Section 5 shall terminate, with respect
to all Securities held by any Securityholder, upon the occurrence of the
Qualified IPO Date.


 


5.3           Restrictions Cumulative.  The
restrictions on transfer imposed by this Section 5 on any Securityholder
shall be in addition to, and not in lieu of, the restrictions on transfer
imposed by Sections 2, 3, 4, 6 and 7 of this Agreement to the extent the
same are otherwise applicable to such Securityholder.


 


6.             “Tag-Along” Rights.


 


6.1           “Tag-Along” Sales.  If either
Aurora Entity (for purposes of this Section 6, the “Proposed Transferor”),
at any time or from time to time, in one transaction or in a series of
related transactions, desires to enter into an agreement (whether oral or written)
to Transfer (for
purposes of this Section 6, a “Tag-Along Sale”) shares of
Common Stock and/or Preferred Stock to any Person, then each of the other Securityholders (other than
an Aurora Entity only if such Aurora Entity is such Proposed Transferor) (for
purposes of this Section 6, collectively, the “Other Securityholders”)
shall have the right, but not the obligation, to elect that the Proposed
Transferor be obligated to require, as a condition to such Tag-Along Sale, that
the proposed purchaser purchase from each such electing Other Securityholder:


 


(a)           up to the number of shares of Common Stock derived by
multiplying the total number of shares of Common Stock owned by or issuable to
such electing 


 


16

















 


Other Securityholder by a fraction, the numerator of which is equal to
the number of shares of Common Stock then owned by or issuable to the Proposed
Transferor that are to be purchased by the proposed purchaser (without giving
effect to any reduction in such number of shares by reason of any Other
Securityholder’s election to exercise the “tag-along” rights provided in this Section 6
in connection with such transaction) and the denominator of which is the total
number of shares of Common Stock owned by or issuable to the Proposed
Transferor prior to such sale; provided, that
holders of vested Options shall be advised with reasonable advance notice so as
to provide such holders with an opportunity to exercise such number of vested
Options as are necessary to allow each such holder to fully participate in the
Tag-Along Sale on the same basis as Other Securityholders on a pro rata basis
(with all such vested options to be included in the denominator set forth above
for the purpose of this Section 6.1(a)), if the holder so elects; and


 


(b)           up to the number of shares of Preferred Stock having
an aggregate redemption value equal to the amount derived by multiplying the
aggregate redemption value of all the shares of Preferred Stock owned by or
issuable to such electing Other Securityholder by a fraction, the numerator of
which is equal to the aggregate redemption value of all the shares of Preferred
Stock then owned by or issuable to the Proposed Transferor that are to be
purchased by the proposed purchaser (without giving effect to any reduction in
such number of shares by reason of any Other Securityholder’s election to
exercise the “tag-along” rights provided in this Section 6 in connection
with such transaction) and the denominator of which is the aggregate redemption
value of all the shares of Preferred Stock owned by or issuable to the Proposed
Transferor prior to such sale;


 


provided,  however, that if any Other Securityholder
chooses not to sell any or all Securities which such Other Securityholder may
be entitled to sell under this Section 6.1, the Proposed Transferor may
sell, in the same transaction, (x) additional shares of Common Stock equal
to the difference between the number of shares of Common Stock which such Other
Securityholder is entitled to sell and the number of shares of Common Stock
such Other Securityholder chooses to sell, if any, and (y) additional
shares of Preferred Stock equal to the difference between the number of shares
of Preferred Stock which such Other Securityholder is entitled to sell and the
number of shares of Preferred Stock such Other Securityholder chooses to sell,
if any.  Any such sales by any Other
Securityholder shall be on the same terms and conditions as the proposed
Tag-Along Sale by the Proposed Transferor. 
Each Other Securityholder whose Securities are sold in a Tag-Along Sale
shall be required to bear a proportionate share of the expenses of the
transaction, including, without limitation, legal, accounting and investment
banking fees and expenses.


 


6.2           Notice of Tag-Along Opportunity. 
The Proposed Transferor participating in a Tag-Along Sale shall promptly
(and in no event less than twenty (20) Business Days prior to the consummation
thereof) provide the Company with notice (for purposes of this Section 6,
the “Proposed Transferor Notice”) of the proposed Tag-Along Sale (which
the Company shall transmit to each Other Securityholder within three (3) Business
Days after its receipt thereof) containing the following:


 


(a)           the name and address of the proposed transferee in the
Tag-Along Sale and a summary of the terms and conditions of such Tag-Along
Sale;


 


17














 


(b)           the number of shares of Common Stock
and each series of Preferred Stock proposed to be Transferred by the Proposed
Transferor in the event none of the Other Securityholders elects to
participate;


 


(c)           the proposed amount and form of
consideration to be paid for such Securities and the terms and conditions of
payment offered by the proposed transferee;


 


(d)           the aggregate number of shares of
Common Stock and each series of Preferred Stock held of record by the Proposed
Transferor as of the date of the notice (for purposes of this Section 6,
the “Notice Date”) from the Proposed Transferor to the Company;


 


(e)           the aggregate number of shares of
Common Stock and each series of Preferred Stock held of record as of the Notice
Date by all Other Securityholders as a group;


 


(f)            the maximum number of shares of
Common Stock and each series of Preferred Stock each such Other Securityholder
is entitled to include in the Tag-Along Sale (as computed in accordance with
the equations set forth in Section 6.1); and


 


(g)           that the proposed transferee has been
informed of the “tag-along” rights provided for in Section 6.1.


 


6.3          Notice
and Terms of Acceptance of Tag-Along Opportunity.


 


(a)           If an Other Securityholder desires to
participate in such Tag-Along Sale, such Other Securityholder shall provide
written notice (the “Tag-Along Notice”) to such Proposed Transferor not
later than ten (10) Business Days after the Notice Date setting forth the
number of shares of Common Stock and each series of Preferred Stock, if any,
such Other Securityholder elects to include in the Tag-Along Sale.


 


(b)           Any Other Securityholder who at the
time of a Proposed Transferor Notice then owns Preferred Stock of any series as
well as Common Stock may elect to include Preferred Stock and/or Common Stock
in a Tag-Along Sale only in the same proportion as the shares of Preferred
Stock and Common Stock to be sold by the Proposed Transferor as set forth in
the Proposed Transferor Notice.


 


(c)           The Tag-Along Notice given by any
Other Securityholder shall constitute such Other Securityholder’s binding
agreement to sell such Securities as are included therein on the terms and
conditions applicable to such sale (including the requirements of this Section 6).  In the event that the proposed transferee
does not purchase the Securities of the Proposed Transferor, then the proposed
Tag-Along Sale by the Other Securityholders to such proposed transferee shall
not take place.  If the Tag-Along Notice
from any Other Securityholder is not received by the Proposed Transferor within
the ten (10) Business Day period specified above in this Section 6.3,
the Proposed Transferor shall have the right to consummate the Tag-Along Sale
with the proposed transferee without any participation by such Other
Securityholder, but only on the terms and conditions stated in the notice to
such Other Securityholders or on terms and 


 


18

















 


conditions no more favorable to the Proposed
Transferor and only if a definitive and binding agreement to consummate such
Tag-Along Sale is entered into not later than thirty (30) days after the end of
such ten (10) Business Day period specified above in this Section 6.3.


 


6.4          Application
of Tag-Along Provisions.  The
provisions of this Section 6 shall not apply to:


 


(a)           any transaction in which shares of
Common Stock or Preferred Stock are proposed to be sold publicly pursuant to a
registration statement filed under the Act or pursuant to Rule 144;


 


(b)           any Transfer to a Permitted
Transferee;


 


(c)           any one transaction or series of
related transactions involving the Transfer (other than to a Permitted
Transferee) by the Proposed Transferor of less than 1% of the issued and
outstanding shares of Common Stock or less than 1% of the issued and
outstanding shares of Preferred Stock of any series;


 


(d)           any shares of Common Stock or
Preferred Stock proposed to be Transferred by the Proposed Transferor which are
purchased by the Company or any Other Securityholder pursuant to Section 4;
or


 


(e)           any Transfer of shares of Common
Stock in connection with an Acquisition Proposal subject to the provisions of Section 5
hereof.


 


6.5          Termination
of Tag-Along Rights.  Notwithstanding
anything herein to the contrary, the rights and obligations provided for in
this Section 6 shall terminate, with respect to all Securities held by
each Other Securityholder, upon the occurrence of the Qualified IPO Date.


 


6.6          Restrictions
Cumulative.  The restrictions on
transfer imposed by this Section 6 on any Securityholder shall be in
addition to, and not in lieu of, the restrictions on transfer imposed by
Sections 2, 3, 4, 5 and 7 of this Agreement to the extent the same are
otherwise applicable to such Securityholder.


 


7.            Certain
Voting Agreements.


 


7.1           Grant of Irrevocable Proxy.  Each Class A Securityholder (other than
a Securityholder that is subject to ERISA or other comparable governmental
regulation prohibiting the granting of a proxy with respect to the Securities
(an “ERISA Holder”)) hereby irrevocably appoints the Aurora Entities,
and each of them (with full power of substitution), as such Class A
Securityholder’s proxy and attorney in fact (each, in such capacity, a “Proxy
Holder”) to vote and to give or withhold consent with respect to all shares
of Common Stock and Preferred Stock (if any such rights exists) held by such Class A
Securityholder from time to time in such manner as such Proxy Holder or Proxy
Holders shall determine in their respective sole and absolute discretion, at
any meeting (whether annual or special and whether or not an adjourned meeting)
of the Company or by written consent or otherwise, giving and granting to the
Proxy Holders all powers such Class A Securityholder would possess if
personally present and hereby ratifying and 


 


19

















 


confirming all that said Proxy Holders or either shall
lawfully do or cause to be done by virtue hereof, provided, however, that the foregoing proxy shall not apply
to, and cannot be used by the Aurora Entities for, any action to be taken or
consent to be given by any such Class A Securityholder, in its capacity as
such, under the terms of Sections 10 and 12.2 of this Agreement and provided, further, that the Aurora
Entities shall be prohibited from using any of such proxies to amend the terms
and conditions set forth in Sections 10 and 12.2 hereof.  Neither of the Proxy Holders shall have any
liability to any Securityholder as a result of any action taken or failure to
take action pursuant to the foregoing proxy except for any action or failure to
take action not taken or omitted in good faith or which involves intentional
misconduct or a knowing violation of applicable law.  Each such Class A Securityholder
represents that any proxies heretofore given by such Class A
Securityholder in respect of its Securities are not irrevocable; any such prior
proxies are hereby revoked.  Each such Class A
Securityholder hereby affirms that this irrevocable proxy is given in
consideration for the mutual agreements contained in this Agreement and in
connection with such Class A Securityholder’s subscription for its
Securities and constitutes a material inducement to the Company and the Aurora
Entities to approve such subscription, and that this irrevocable proxy is
coupled with an interest and may, under no circumstances, be revoked.  The Company hereby acknowledges receipt of
and the validity of the foregoing irrevocable proxy, and agrees to recognize
the Proxy Holder as the sole attorney and proxy for each such Class A
Securityholder at all times prior to the termination date of such irrevocable
proxy as hereinafter provided in this Section 7.  Each such Class A Securityholder intends
that this irrevocable proxy is executed and intended to be irrevocable in
accordance with the provisions of Section 212 of the Delaware General
Corporation Law to the extent that the same is or may be applicable.  The proxy granted by this Section 7
shall terminate with respect to any share of Common Stock or Preferred Stock
held by any such Class A Securityholder only at such time as such share is
no longer owned beneficially or of record by such Class A Securityholder
or any of his, her or its Permitted Transferees.


 


7.2           Agreement of Each ERISA Holder.  Each ERISA Holder hereby irrevocably agrees,
with respect to any matter, to vote and to give or withhold consent with
respect to all shares of Common Stock and Preferred Stock held by such ERISA
Holder as a Class A Securityholder from time to time in such manner as the
Aurora Entities shall vote or give or withhold consent with respect to such
matter; provided, however, that no ERISA Holder shall be so
obligated to the extent that it reasonably believes, based on advice of
counsel, that its fiduciary duties under ERISA shall require otherwise; and provided,
further, that the foregoing shall not apply to any action to be taken or
consent to be given by an ERISA Holder, in its capacity as Class A
Stockholder, under the terms of Sections 10 and 12.2 of this Agreement.  Each ERISA Holder represents that it has not
heretofore given any proxies in respect of the Securities, and agrees that so
long as such Securities are subject to this Section 7.2, it will not grant
any proxy to any Person in conflict with the provisions of this Section 7.2.  Each ERISA Holder hereby affirms that its
agreement to vote its Securities set forth in this Section 7.2 is given in
consideration for the mutual agreements contained in this Agreement and in
connection with its subscription for its Securities and constitutes a material
inducement to the Company and the Aurora Entities to approve such subscription,
and that this agreement to vote is coupled with an interest and may, under no
circumstances, be revoked.  The agreement
set forth in this Section 7.2 shall terminate with respect to each
Security only at such time as such Security is no longer owned beneficially or
of record by such ERISA Holder or any of its Permitted Transferees.


 


20

















 


8.             Registration
Rights.


 


The Company agrees to afford to each Eligible Holder
the registration rights set forth in Exhibit C hereto and each
party hereby agrees to be bound by the terms and conditions included in Exhibit C
hereto as if such terms and conditions were included in the body of this
Agreement.  If the Company or any of its
successors or assignees consolidates with or merges into any other person and
is not the continuing or surviving corporation or entity of such consolidation
or merger, then to the extent necessary, proper provision shall be made so that
the successors and assignees of the Company assume the obligations of the
Company with respect to the registration rights set forth in Exhibit C
as in effect immediately before such transaction.  The Company
further agrees to register all shares authorized for award under the Company’s
2008 Stock Incentive Plan (and any successor or other equity-based incentive
plan of the Company or a successor of the Company), pursuant to a Form S-8
registration (or any successor or similar form), in connection with a
Qualified IPO.


 


9.            Right
of First Offer.


 


9.1           Right
of First Offer.  Subject to the terms
and conditions contained in this Section 9, the Company grants to each Class B
Securityholder and each Qualifying Class A Securityholder (each a “New
Securities Offeree” and, collectively, the “New Security Offerees”)
the right of first offer to purchase such New Security Offeree’s Pro-Rata
Portion (as defined below) of any New Securities (as defined below), that the
Company or any of its Subsidiaries may, from time to time, propose to sell and
issue (the “Right of First Offer”). 
With respect to each New Security Offeree, its “Pro Rata Portion”
in respect of any New Securities shall be the ratio that (x) the sum of
the number of shares of Common Stock then held by such New Security Offeree or
issuable to such New Security Offeree bears to (y) the sum of the
aggregate number of shares of Common Stock then outstanding, in each case
calculated on a fully-diluted basis. 
Subject to the terms and conditions contained in this Section 9,
any portion of the New Securities not purchased pursuant to the Right of First
Offer may be sold to any other Person.


 


9.2           Definition
of New Securities.  Except as set
forth below, “New Securities” shall mean any shares of capital stock of
the Company or any of its Subsidiaries, including Common Stock or Preferred
Stock, whether authorized or not, and rights, options or warrants to purchase
shares of capital stock of the Company or any of its Subsidiaries, and
securities of any type whatsoever that are, or may become, convertible into
said shares of capital stock of the Company or any of its Subsidiaries, issued
after the date hereof.  Notwithstanding
the foregoing, “New Securities” does not include (i) shares of
Common Stock or Series A Preferred to be issued by the Company
concurrently with the execution of this Agreement; (ii) securities offered
to the public generally pursuant to a registration statement under the
Securities Act; (iii) securities issued in connection with the acquisition
of another corporation by the Company by merger, purchase of all or
substantially all of the assets or shares or other reorganization whereby the
Company or its stockholders own not less than a majority of the voting power of
the surviving or successor corporation, provided
such transaction is approved by the Board in accordance with the Certificate of
Incorporation of the Company as then in effect; (iv) any shares of Common
Stock or common stock of the Subsidiaries of the Company or related options
convertible into or exercisable for such Common Stock or common stock issued to
employees, officers and directors of, and consultants to, the Company or any of
its Subsidiaries, pursuant to any of the Company’s 


 


21

















 


or any of its Subsidiaries’ option plan or plans, provided that such shares of common stock
shall not exceed the number of shares allocated or reserved for issuance under
the Company’s or any of its Subsidiaries’ option plan or plans (subject to
appropriate adjustment for stock splits, stock dividends, combinations,
recapitalizations and the like); (v) securities issued in connection with
any stock split, stock dividend or recapitalization by the Company or any of
its Subsidiaries; and (vi) shares of Common Stock and Series A Preferred
to be issued by the Company with an aggregate value of up to $10,000,000, from
time to time but by no later than the sixty-first day following the date of
this Agreement, directly or indirectly, on substantially the same terms and
conditions as the shares of Common Stock and Series A Preferred to be
issued by the Company concurrently with the execution of this Agreement, to the
directors, officers, employees of or consultants to the Company or any of its
Affiliates, or to any limited partner of AEP III or any Affiliate of such
limited partner.


 


9.3           Notice
of Right.  In the event the Company
proposes to undertake an issuance of New Securities, it shall give to each New
Security Offeree written notice of its intention, describing the type of New
Securities and the price and terms upon which the Company proposes to issue the
same and, if available, the definitive documents for such a financing (a “Financing
Notice”).  Each New Security Offeree
shall have ten (10) Business Days from the date of receipt of any such
Financing Notice to agree to purchase its Pro Rata Portion of such New
Securities for the price and upon the terms specified in the notice, by giving
written notice to the Company and stating therein the quantity of New
Securities to be purchased (the “Election Notice”).


 


9.4           Exercise
of Right.  If any New Security
Offeree exercises its Right of First Offer hereunder, the closing of the
purchase of the New Securities with respect to which such right has been
exercised shall take place within fifteen (15) Business Days after such New
Security Offeree gives notice of such exercise, which period of time may be
delayed up to thirty (30) Business Days in order to permit such
acquisition of such New Securities to be made in conformity with applicable laws,
including the HSR Act.  Upon exercise of
such Right of First Offer, the Company and such New Security Offerees that
exercises their Right of First Offer shall be legally obligated to consummate
the purchase contemplated thereby and shall use their best efforts to secure
any approvals required in connection therewith.


 


9.5           Lapse
and Reinstatement of Right.  In the
event any New Security Offeree fails to exercise the Right of First Offer
provided in this Section 9 within said ten (10) Business Day period,
then any other New Security Offeree that elects to purchase all of its Pro Rata
Portion of the New Securities in said ten (10) Business Day period shall
have the option to purchase such unsubscribed shares of New Securities on the
same terms and conditions set forth in this Section 9 within fifteen (15)
Business Days after such New Security Offeree receives notice from the Company
of such unsubscribed shares, which period of time may be delayed up to
thirty (30) Business Days in order to permit such acquisition of such New
Securities to be made in conformity with applicable laws, including the HSR
Act.  In the event any New Security
Offeree fails to exercise the Right of First Offer provided in this Section 9
to purchase all of the New Securities set forth in the Financing Notice within
said ten (10) Business Day period, the Company shall have a period of
three (3) months thereafter to sell or enter into an agreement (pursuant
to which the sale of New Securities covered thereby shall be closed, if at all,
within thirty (30) Business Days from the date of said agreement) to sell the
New Securities not elected 


 


22

















 


to be purchased by such New Security Offeree at the
price and upon terms no less favorable to the Company than those contained in
the Financing Notice.  In the event the
Company has not sold the New Securities or entered into an agreement to sell
the New Securities within said three (3) month period (or sold and issued
New Securities in accordance with the foregoing within thirty (30) Business
Days from the date of said agreement), the Company shall not thereafter issue
or sell any New Securities without first offering such securities to each New
Security Offeree as provided in Section 9.1 above.


 


9.6           Termination
of Right.  Notwithstanding anything
herein to the contrary, the rights and obligations provided in this Section 9
shall terminate upon the occurrence of a Qualified IPO.


 


10.          Termination.


 


Except
for the provisions of Sections 8 and 11, which shall survive the
expiration or other termination of this Agreement, this Agreement shall
terminate on the earliest to occur of (a)  May 28, 2018, (b) a
change in Control of the Company and (c) upon the written approval of (i) the
Company and (ii) the holders of a majority in voting interest of the
issued and outstanding shares of Common Stock and Preferred Stock, voting
together as a single class and each such share being entitled to one vote per
share, held by all the Securityholders; provided
that any termination that would adversely affect the rights of any
Securityholder (other than any termination that would adversely affect the
rights of all Securityholders in the same manner) under this Agreement must be
consented to by such Securityholder before such termination may be deemed
effective against such Securityholder.  A
Securityholder shall cease to be deemed a Securityholder hereunder, and shall
no longer be a party to this Agreement, at such time as such Securityholder ceases
to own any Securities.


 


11.          Information
Rights; Access Rights and Board Designation Rights; Certain Other Covenants.


 


11.1         Information
Rights.


 


(a)           Subject
to the terms and conditions set forth herein, each Qualifying Class A
Securityholder will have rights to receive (i) as soon as available, but in
any event within forty-five (45) days after the end of each month, copies of
the consolidated balance sheets of NuCO2 Inc., a Florida corporation and wholly-owned
subsidiary of the Company (“NuCO2”) and its subsidiaries as at the end of such
month, and consolidated statements of income, stockholders’ equity and cash
flows of NuCO2 and its subsidiaries, for such month and for
the portion of the fiscal year ending with such month, in each case prepared in
accordance with GAAP applicable to periodic financial statements generally,
subject to changes resulting from normal year-end adjustments and (ii) as
soon as available, but in any event within ninety (90) days after the end of
each fiscal year of NuCO2, copies of the consolidated
balance sheets of NuCO2 and its subsidiaries as at
the end of such year, and consolidated statements of income, stockholders’
equity and cash flows of NuCO2 and its
subsidiaries for such year, in each case prepared in accordance with GAAP
applicable to periodic financial statements generally, and accompanied by an
opinion thereon of independent certified public accountants of recognized
national standing, which opinion shall state that such financial statements
present fairly, in all 


 


23

















 


material respects, the
financial position of the Persons being reported upon and their results of
operations and cash flows and have been prepared in conformity with GAAP and (iii) the annual consolidated
business plan of the Company and its Subsidiaries, including without
limitation, NuCO2; provided, however,
that the right to receive the information described in clauses (i) and (ii) above
shall not apply during any period in which the Company or NuCO2 is required to file, or voluntarily files, with the
Commission periodic and other reports required by the Exchange Act.


 


(b)           Each Qualifying Class A Securityholder’s
rights under this Section 11.1 are conditioned upon and subject to such Qualifying Class A Securityholder
agreeing in writing pursuant to a confidentiality and nondisclosure agreement,
in form and substance reasonably acceptable to the Company and its counsel, and
the terms of which are customary and reasonable in nature, prior to being
furnished any information pursuant to this Section 11.1, to hold in
confidence and trust and not use or disclose any confidential information
provided to or learned by it in connection with its rights under this Agreement
during the time such Qualifying
Class A Securityholder has the information rights set forth
in this Section 11.1 and thereafter.


 


11.2         Board
Designation Rights.  Each of GEPT
and NM (so long as
such Securityholder is a Qualifying Class A Securityholder) shall have the right to send one non-voting
representative on its behalf (each, an “Observer”) to attend all
meetings of the Board, including all committees thereof, solely in a non-voting
observer capacity; provided, however, that each such Observer shall be
reasonably acceptable to a majority of the members of the Board elected by the
holders of the Common Stock.  The Company
will furnish to the Observer copies of all notices, minutes, consents, board
package materials and other materials that it generally makes available to its
directors as and when such materials are provided to its directors.  The Observer may participate in discussions
of matters under consideration by the Board and any matters brought before any
committee thereof but will not be entitled to vote on any matter presented to
the Board; provided, however, that a majority of the Board
shall have the right, after deliberation in a closed session in which they can
exclude the Observer, to exclude the Observer from portions of meetings of the
Board or any committee thereof or omit to provide the Observer with certain
information to the extent that a majority of the members of the Board believe
in good faith after consultation with counsel that such exclusion or omission
is necessary in order to preserve any attorney-client privilege, attorney-work
product privilege or other similar legal privileges or such attendance or
distribution of materials is otherwise prohibited by applicable law; provided, further,
however, that the Observer shall
agree in writing pursuant to a confidentiality and nondisclosure agreement,
prior to attending any such meetings or to being furnished any such written
materials, to hold in confidence and trust and not use or disclose any
confidential information provided to or learned by him or her in connection
with his or her rights under this Agreement during the time the Observer has
observation rights and thereafter.  Each
of GEPT and NM will have the right to remove and replace its Observer in its
sole discretion and to designate a substitute representative if such Observer
is unable or unwilling to attend any of the Board’s meetings, including any
committees thereof.  Each of GEPT and NM
shall be solely responsible for any expenses or charges incurred by its
Observer in the performance of its duties as an Observer pursuant to this Section 11.2.


 


24

















 


12.          Miscellaneous.


 


12.1         Governing Law.  This Agreement shall be governed by and
construed and enforced in accordance with the internal laws of the State of
Delaware without regard to principles of conflicts of law.


 


12.2         Entire Agreement; Amendments.  This Agreement (including the exhibits
hereto) constitutes the entire agreement of the parties with respect to the
subject matter hereof and may not be modified or amended except by a written
agreement signed by (a) the Company, (b) the holders of a majority in
interest of the issued and outstanding shares of Common Stock and Preferred
Stock, voting together as a single class and each such share being entitled to
one vote per share, held by the Securityholders and (c)  the holders
of a majority in interest of the issued and outstanding shares of Common Stock
and Preferred Stock, voting together as a single class and each such share
being entitled to one vote per share, held by the Class B Securityholders;
provided that any amendment that
would adversely affect the rights of any Securityholder or Class of
Securityholders (other than any amendment that would adversely affect the
rights of all Securityholders in the same manner) under this Agreement must be
consented to by such Securityholder or Class of Securityholders before
such amendment may be deemed effective against such Securityholder.  Notwithstanding the foregoing, subject to any
limitations set forth in its Amended and Restated Certificate of Incorporation
or Bylaws and any other applicable provisions of this Agreement, the Company
shall have the right, from and after the date hereof, in the sole discretion of
the Board, to issue shares of Common Stock or Preferred Stock, or Options to
purchase securities convertible into such shares, to any Person (whether or not
such Person is already party to this Agreement) and to cause such securities
and such Persons (to the extent not already subject to this Agreement) to
become subject to this Agreement (including, at the option of the Company, the
designation of any of such securities as Registrable Securities) and as a
Securityholder of whatever class as the Company may determine, respectively.


 


12.3         Legend on Stock Certificates.  Each certificate representing Securities
which are subject to this Agreement shall be endorsed with a legend
substantially to the following effect (in addition to any legend required by
applicable state securities or “blue sky” laws):


 


THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE
SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS REGISTERED UNDER THAT ACT AND UNDER APPLICABLE STATE
SECURITIES LAWS OR NuCO2 PARENT INC. (THE “COMPANY”) SHALL HAVE
RECEIVED AN OPINION OF ITS COUNSEL THAT REGISTRATION OF SUCH SECURITIES UNDER
THAT ACT AND UNDER THE PROVISIONS OF APPLICABLE STATE SECURITIES LAWS IS NOT
REQUIRED.  THE SALE, TRANSFER OR OTHER
DISPOSITION OF THE SECURITIES IS ALSO SUBJECT TO COMPLIANCE WITH THE TERMS AND
CONDITIONS OF THAT CERTAIN 


 


25

















 


SECURITYHOLDERS AGREEMENT, DATED AS OF MAY 28,
2008, AS SUPPLEMENTED, MODIFIED AND AMENDED FROM TIME TO TIME, AMONG THE
COMPANY AND THE STOCKHOLDERS AND OPTIONHOLDERS SIGNATORY THERETO, A COPY OF
WHICH AGREEMENT IS AVAILABLE FOR INSPECTION DURING REGULAR BUSINESS HOURS AT
THE PRINCIPAL EXECUTIVE OFFICES OF THE COMPANY.


 


Any stock certificate issued at any time in exchange
or substitution for any certificate bearing such legend (except a new
certificate issued upon the completion of a public distribution of securities
of the Company represented thereby) shall also bear such legend, unless the
restrictions contained in Sections 3, 4, 5, 6, 7 and 8 of this Agreement
are no longer in effect and, in the opinion of counsel for the Company, the
Securities represented thereby need no longer be subject to the restrictions
contained in Section 2 of this Agreement. 
The provisions of this Agreement shall be binding upon, and shall inure
to the benefit of, the Securityholders and all subsequent holders of Securities
who acquired the same directly or indirectly from a Securityholder in a
transaction or series of transactions not involving any public offering.  The Company agrees that it will not transfer
on its books any certificate representing Securities in violation of the
provisions of this Agreement.


 


12.4         Specific Performance.  Due to the fact that the securities of the
Company cannot be readily purchased or sold in the open market, and for other
reasons, the parties will be irreparably damaged in the event that this
Agreement is not specifically enforced. 
In the event of a breach or threatened breach of the terms, covenants
and/or conditions of this Agreement by any of the parties hereto, the other
parties shall, in addition to all other remedies, be entitled (without any bond
or other security being required) to a temporary and/or permanent injunction,
without showing any actual damage or that monetary damages would not provide an
adequate remedy, and/or a decree for specific performance, in accordance with
the provisions hereof.


 


12.5         Waiver.  No waiver of any breach or default hereunder
shall be considered valid unless in writing, and no such waiver shall be deemed
a waiver of any subsequent breach or default of the same or similar
nature.  Anything in this Agreement to
the contrary notwithstanding, any waiver, consent or other instrument under or
pursuant to this Agreement signed by, or binding upon, a Securityholder shall
be valid and binding upon any and all persons or entities (other than the
Company) who may, at any time, have or claim any rights under or pursuant to
this Agreement in respect of the Securities originally acquired by such Securityholder.


 


12.6         Successors and Assigns.  Except as otherwise expressly provided
herein, this Agreement shall be binding upon and inure to the benefit of the
Company, its successors and assigns, and the Securityholders and their
respective heirs, personal representatives, successors and permitted assigns.


 


12.7         Severability.  If any provision of this Agreement shall be
invalid or unenforceable, such invalidity or unenforceability shall attach only
to such provision and shall not in any manner affect or render invalid or
unenforceable any other severable provision of this 


 


26

















 


Agreement, and this Agreement shall be carried out as
if any such invalid or unenforceable provision were not contained herein.


 


12.8         Headings.  The section headings contained herein are for
the purposes of convenience of reference only and are not intended to define or
limit the contents of said sections.


 


12.9         Further Assurances.  Each party hereto shall cooperate and shall
take such further action and shall execute and deliver such further documents
as may be reasonably requested by any other party in order to carry out the
provisions and purposes of this Agreement.


 


12.10       Gender.  Whenever the pronouns “he” or “his” are used
herein they shall also be deemed to mean “she” or “hers” or “it” or “its”
whenever applicable.  Words in the
singular shall be read and construed as though in the plural and words in the
plural shall be construed as though in the singular in all cases where they would
so apply.


 


12.11       Notices.  Any notice or other communication to be given
hereunder by any party to any other party shall be in writing and delivered in
person or by courier or by facsimile transmission or by mail, postage prepaid,
as follows:


 


(a)           if to the Company, to NuCO2 Parent Inc.,
c/o Aurora Capital Group, 10877 Wilshire Boulevard, Los Angeles, California
90024, Attention:  Timothy J. Hart,
Telecopier No. (310) 277-5591 (with a copy to Gibson, Dunn &
Crutcher LLP, 333 South Grand Avenue, Los Angeles, California 90071,
Attention:  Bruce D. Meyer, Esq.,
Telecopier No.:  (213) 229-6979)),
or at such other place as the Company shall have designated by notice as herein
provided to each of the Securityholders; and


 


(b)           if to a Securityholder, to the address
of such Securityholder as it appears on Exhibit  A or Exhibit B
hereto, or at such other place as such Securityholder shall have designated by
notice as herein provided to the Company.


 


12.12       Counterparts.  This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original for all purposes,
but all of which shall constitute but one and the same instrument.


 


12.13       Arbitration.


 


(a)           Any disputes or differences between
the parties arising out of this Agreement which the parties are unable to
resolve themselves shall be submitted to and resolved by arbitration as herein
provided.  Within ten (10) Business
Days after commencement of arbitration in accordance with the rules then
obtaining of the American Arbitration Association, any of the parties hereto in
dispute may request the American Arbitration Association to designate one
arbitrator, who shall be a retired or former judge of any appellate court of
the State of California, any United States appellate court or the United States
District Court for any California District who is, in any such case, not
affiliated with any party in interest to such arbitration and who has
substantial professional experience with regard to corporate legal matters.


 


27














 


(b)           The arbitrator shall consider the
dispute at issue at a mutually agreed upon time within thirty (30) days (or
such longer period as may be acceptable to the parties hereto in dispute) of
the designation of the arbitrator.  The
arbitration proceeding shall be held in accordance with the rules for
commercial arbitration of the American Arbitration Association in effect on the
date of commencement of such arbitration and shall include an opportunity for
the parties to conduct discovery in advance of the proceeding.  Notwithstanding the foregoing, the parties
hereto agree that they will attempt, and they intend that they and the
arbitrator should use their best efforts in that attempt, to conclude the
arbitration proceeding and have a final decision from the arbitrator within
ninety (90) days from the date of selection of the arbitrator; provided, however, that the arbitrator
shall be entitled to extend such ninety (90) day period one or more times to
the extent necessary for such arbitrator to place a dollar value on any claim
that may be unliquidated.  The arbitrator
shall promptly deliver a decision with respect to the dispute to each of the
parties, who shall promptly act in accordance therewith.  Each party to such arbitration agrees that
any decision of the arbitrator shall be final, conclusive and binding and that
they will not contest any action by any other party thereto in accordance with
a decision of the arbitrator.  It is
specifically understood and agreed that any party may enforce any award rendered
pursuant to the arbitration provisions of this Section 12.13 by bringing
suit in any court of competent jurisdiction. 
The parties hereto agree that the arbitrator shall have authority to
grant injunctive or other forms of equitable relief to any party that prevails
in any such arbitration.


 


(c)           All costs and expenses attributable
to the arbitrator shall be allocated among the parties to the arbitration in
such manner as the arbitrator shall determine to be appropriate under the
circumstances.


 


12.14       Effective Date.  The effective date of this Agreement shall be
the Initial Date, and each reference herein to the date of this Agreement shall
be deemed to be a reference to the Initial Date.


 


12.15       Relationship with General Electric
Company. Neither the Company nor any of its subsidiaries has any equity,
creditor or similar relationship (including, without limitation, any investment
in (or right to acquire an investment in), or any debtor, revolving credit,
leasing or creditor relationship, but excluding any vendor or vendee
relationship) with General Electric Company or any subsidiary or affiliate
thereof.


 


12.16       Transactions With General Electric
Company or Its Affiliates.  The
Company hereby covenants and agrees that it will provide GEPT written notice no
less than 15 days prior to the occurrence of any of the following events: (i) the
issuance by the Company or any of its subsidiaries of any securities (including
without limitation any capital stock or notes, debentures or other
indebtedness, whether or not convertible into or exchangeable for capital
stock) of the Company to General Electric Company or any subsidiary, division
or affiliate of General Electric Company known after reasonable inquiry to the
Company to be a subsidiary, division or affiliate of General Electric Company;
or (ii) the grant by the Company or any of its subsidiaries of any
options, warrants or other rights to acquire any securities of the Company or
any of its subsidiaries to General Electric Company or any subsidiary, division
or affiliate of General Electric Company known after reasonable inquiry to the
Company to be a subsidiary, division or affiliate of General Electric Company.


 


28

















 


IN
WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement
as of the date first above written.


 


	
   

  	
  THE COMPANY:

  
	
   

  	
   

  
	
   

  	
  NuCO2 PARENT INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Timothy
  J. Hart

  
	
   

  	
   

  	
  Name:
  Timothy J. Hart

  
	
   

  	
   

  	
  Title:
  Vice President, Secretary and General Counsel

  



 

















 


	
   

  	
  THE CLASS A SECURITYHOLDERS:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE NORTHWESTERN MUTUAL
  LIFE INSURANCE COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Timothy S. Collins

  
	
   

  	
  Name:
  

  	
  Timothy
  S. Collins

  
	
   

  	
  Title:

  	
  Its
  Authorized Representative

  



 

















 


	
   

  	
  NORTHWESTERN MUTUAL
  CAPITAL MEZZANINE FUND I, LP

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Richard A. Strait

  
	
   

  	
  Name:

  	
  Richard
  A. Strait

  
	
   

  	
  Title:
  

  	
  Its
  Authorized Representative

  



 

















 


	
   

  	
  GENERAL ELECTRIC
  PENSION TRUST

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  GE Asset Management
  Incorporated, its Investment Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Daniel L. Furman

  
	
   

  	
  Name:

  	
  Daniel L. Furman

  
	
   

  	
  Title:

  	
  Vice President

  



 

















 


	
   

  	
  HUNT EQUITIES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Chris Kleinert

  
	
   

  	
  Name: 

  	
  Chris Kleinert

  
	
   

  	
  Title: 

  	
  Vice President

  



 

















 


	
   

  	
  THE
  NANCY ANN AND RAY L. HUNT FOUNDATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Elizabeth A. Lund

  
	
   

  	
  Name:
  

  	
  Elizabeth
  A. Lund

  
	
   

  	
  Title:
  

  	
  Treasurer
  and Assistant Secretary

  



 

















 


	
   

  	
  CINNABAR INVESTORS, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Paul L. Davies III

  
	
   

  	
  Name:
  

  	
  Paul
  L. Davies III

  
	
   

  	
  Title:
  

  	
  Manager

  



 

















 


	
   

  	
  SYCAMORE VENTURE
  PARTNERS, L.P.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  R.C. Johnstone Jr.

  
	
   

  	
  Name:
  

  	
  R.C.
  Johnstone Jr.

  
	
   

  	
  Title:
  

  	
  Managing
  Partner

  



 














 


	
   

  	
  LEXINGTON VENTURES, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Harvey S. Gettleson

  
	
   

  	
  Name:

  	
  Harvey
  S. Gettleson

  
	
   

  	
  Title:

  	
  Chief Financial Officer

  



 

















 


	
   

  	
  FREY FAMILY PARTNERSHIP

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Kyle F. Frey

  
	
   

  	
  Name:

  	
  Kyle
  F. Frey

  
	
   

  	
  Title:

  	
  GP

  



 

















 


	
   

  	
  /s/ Lawrence A. Bossidy

  
	
   

  	
  LAWRENCE A. BOSSIDY

  



 





















 


	
   

  	
  MCP Co-Invest
  (Tropicana), LP,

  
	
   

  	
  a Delaware limited
  partnership

  
	
   

  	
   

  
	
   

  	
  By:

  	
  MCP Co-Invest
  (Tropicana) GP,  LLC,

  
	
   

  	
   

  	
  a Delaware limited
  liability company

  
	
   

  	
  Its:

  	
  General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Moelis Capital Partners
  LLC,

  
	
   

  	
   

  	
   

  	
  a Delaware limited
  liability company

  
	
   

  	
   

  	
  Its:

  	
  Member

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Kenneth D. Moelis

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Kenneth D. Moelis

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Chief Executive Officer

  



 

















 


	
   

  	
  WEINTRAUB FAMILY TRUST

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jerome Weintraub

  
	
   

  	
  Name:

  	
  Jerome
  Weintraub

  
	
   

  	
  Title:

  	
  Trustee

  



 

















 


	
   

  	
  WEINTRAUB FAMILY
  PARTNERSHIP

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jerome Weintraub

  
	
   

  	
  Name:

  	
  Jerome
  Weintraub

  
	
   

  	
  Title:

  	
  President of General
  Partner

  



 

















 


	
   

  	
  /s/ Michael DeDomenico

  
	
   

  	
  MICHAEL
  DEDOMENICO

  



 





















 


	
   

  	
  /s/ William Scott Wade

  
	
   

  	
  WILLIAM
  SCOTT WADE

  



 





















 


	
   

  	
  /s/ Randy Gold

  
	
   

  	
  RANDY
  GOLD

  



 





















 


	
   

  	
  NuCO2
  EQUITY PARTNERS L.P.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:
  

  	
  Aurora
  Advisors III LLC

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Timothy J. Hart

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Timothy J. Hart

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President and Secretary

  



 


















 


	
   

  	
  /s/ J. Robert
  Vipond

  
	
   

  	
  J. ROBERT VIPOND

  



 

















 


	
   

  	
  OPTIONHOLDERS:

  



 


 


	
   

  	
  /s/ Michael DeDomenico

  
	
   

  	
  MICHAEL
  DeDOMENICO

  



 


 


	
   

  	
  /s/ William Scott Wade

  
	
   

  	
  WILLIAM
  SCOTT WADE

  



 


 


	
   

  	
  /s/ Randy Gold

  
	
   

  	
  RANDY
  GOLD

  



 


 


	
   

  	
  /s/ Eric M. Wechsler

  
	
   

  	
  ERIC
  M. WECHSLER

  



 

















 


	
   

  	
  OPTIONHOLDERS:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Dale F. Frey

  
	
   

  	
  DALE
  F. FREY

  



 


 


	
   

  	
  /s/ Lawrence A.Bossidy

  
	
   

  	
  LAWRENCE
  A. BOSSIDY

  



 


 


	
   

  	
  /s/ Michael Wickham

  
	
   

  	
  MICHAEL
  WICKHAM

  



 


 


	
   

  	
  /s/ William Harrison

  
	
   

  	
  WILLIAM
  HARRISON

  



 


 


	
   

  	
  /s/ John Myers

  
	
   

  	
  JOHN
  MYERS

  



 


 


	
   

  	
  /s/ John Anderson

  
	
   

  	
  JOHN
  ANDERSON

  



 

















 


	
   

  	
  OPTIONHOLDERS:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Jeffrey D. Wilson

  
	
   

  	
  JEFFREY D. WILSON

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Elizabeth L.
  Fernandez

  
	
   

  	
  ELIZABETH L. FERNANDEZ

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Tobin A. Boschetti

  
	
   

  	
  TOBIN A. BOSCHETTI

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Adrian L. Foltz

  
	
   

  	
  ADRIAN L. FOLTZ

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ David N. Parker

  
	
   

  	
  DAVID N. PARKER

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ John J. Scollard

  
	
   

  	
  JOHN J. SCOLLARD

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Jeffrey S. Gilheney

  
	
   

  	
  JEFFREY S. GILHENEY

  



 

















 


	
   

  	
  OPTIONHOLDERS:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ J. Robert Vipond

  
	
   

  	
  J. ROBERT VIPOND

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ J. Thomas Zusi

  
	
   

  	
  J. THOMAS ZUSI

  



 

















 


	
   

  	
  OPTIONHOLDERS:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Kevin Breheny

  
	
   

  	
  KEVIN BREHENY

  



 

















 


	
   

  	
  OPTIONHOLDERS:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Keith Gordon

  
	
   

  	
  KEITH GORDON

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Thomas B. Willetts

  
	
   

  	
  THOMAS B. WILLETTS

  



 

















 


	
   

  	
  OPTIONHOLDERS:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ David Marek

  
	
   

  	
  DAVID
  MAREK

  



 

















 


	
   

  	
  OPTIONHOLDERS:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Victoria Strauss

  
	
   

  	
  VICTORIA STRAUSS

  



 

















 


	
   

  	
  THE CLASS B
  SECURITYHOLDERS:

  
	
   

  	
   

  
	
   

  	
  AURORA EQUITY PARTNERS
  III, L.P.

  
	
   

  	
  By: 

  	
  Aurora Capital Partners
  III L.P.,

  
	
   

  	
   

  	
  its general partner

  
	
   

  	
  By: 

  	
  Aurora Advisors III
  LLC,

  
	
   

  	
   

  	
  its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Timothy J. Hart

  
	
   

  	
  Name: 

  	
  Timothy J. Hart

  
	
   

  	
  Title: 

  	
  Vice President,
  Secretary and

  
	
   

  	
   

  	
  General Counsel

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  AURORA OVERSEAS EQUITY

  
	
   

  	
  PARTNERS III, L.P.

  
	
   

  	
  By: 

  	
  Aurora Overseas Capital
  Partners III, L.P.,

  
	
   

  	
   

  	
  its general partner

  
	
   

  	
  By: 

  	
  Aurora Overseas
  Advisors III, LDC,

  
	
   

  	
   

  	
  its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Timothy J. Hart

  
	
   

  	
  Name: 

  	
  Timothy J. Hart

  
	
   

  	
  Title: 

  	
  Vice President,
  Secretary and

  
	
   

  	
   

  	
  General Counsel

  



 














 


EXHIBIT
A


 


NuCO2 Parent Inc.


Class A
Securityholders


 


as
of November 18, 2009


 


 


	
   

  	
   

  	
   

  	
   

  	
  Shares of

  	
   

  	
  Shares of

  	
   

  
	
   

  	
   

  	
  Shares of 

  	
   

  	
  Series A

  	
   

  	
  Series B

  	
   

  
	
  Name
  and Address of

  Class A Securityholder

  	
   

  	
  Common Stock Owned

  	
   

  	
  Preferred Stock Owned

  	
   

  	
  Preferred Stock Owned

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The Northwestern Mutual Life
  Insurance Company

  	
   

  	
  13,669.25

  	
   

  	
  1,366.925

  	
   

  	
  0

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Northwestern Mutual Capital Mezzanine Fund I, LP

  	
   

  	
  3,830.75

  	
   

  	
  383.075

  	
   

  	
  0

  	
   

  



 


A-1

















 


 


	
   

  	
   

  	
   

  	
   

  	
  Shares of

  	
   

  	
  Shares of

  	
   

  
	
   

  	
   

  	
  Shares of 

  	
   

  	
  Series A

  	
   

  	
  Series B

  	
   

  
	
  Name
  and Address of

  Class A Securityholder

  	
   

  	
  Common Stock Owned

  	
   

  	
  Preferred Stock Owned

  	
   

  	
  Preferred Stock Owned

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  General Electric Pension Trust

  	
   

  	
  5,000

  	
   

  	
  500

  	
   

  	
  0

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Hunt Equities, Inc.

  	
   

  	
  150

  	
   

  	
  15

  	
   

  	
  0

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The Nancy Ann and Ray L. Hunt Foundation

  	
   

  	
  150

  	
   

  	
  15

  	
   

  	
  0

  	
   

  



 


A-2

















 


 


	
   

  	
   

  	
   

  	
   

  	
  Shares of

  	
   

  	
  Shares of

  	
   

  
	
   

  	
   

  	
  Shares of 

  	
   

  	
  Series A

  	
   

  	
  Series B

  	
   

  
	
  Name
  and Address of

  Class A Securityholder

  	
   

  	
  Common Stock Owned

  	
   

  	
  Preferred Stock Owned

  	
   

  	
  Preferred Stock Owned

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Cinnabar Investors, LLC

  	
   

  	
  100

  	
   

  	
  10

  	
   

  	
  0

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sycamore Venture Partners, L.P.

  	
   

  	
  90

  	
   

  	
  7.5

  	
   

  	
  1.5

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Lexington Ventures, LLC

  	
   

  	
  425

  	
   

  	
  42.5

  	
   

  	
  0

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Frey Family Partnership

  	
   

  	
  120

  	
   

  	
  10

  	
   

  	
  2

  	
   

  



 


A-3

















 


	
   

  	
   

  	
   

  	
   

  	
  Shares of

  	
   

  	
  Shares of

  	
   

  
	
   

  	
   

  	
  Shares of 

  	
   

  	
  Series A

  	
   

  	
  Series B

  	
   

  
	
  Name
  and Address of

  Class A Securityholder

  	
   

  	
  Common Stock Owned

  	
   

  	
  Preferred Stock Owned

  	
   

  	
  Preferred Stock Owned

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Lawrence A. Bossidy

  	
   

  	
  412.888

  	
   

  	
  34.3888

  	
   

  	
  6.9

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MCP Co-Invest (Tropicana), LP

  	
   

  	
  3,719

  	
   

  	
  310

  	
   

  	
  61.9

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Weintraub Family Trust

  	
   

  	
  175

  	
   

  	
  12.5

  	
   

  	
  5

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Weintraub Family Partnership

  	
   

  	
  75

  	
   

  	
  5

  	
   

  	
  2.5

  	
   

  



 


A-4

















 


	
   

  	
   

  	
   

  	
   

  	
  Shares of

  	
   

  	
  Shares of

  	
   

  
	
   

  	
   

  	
  Shares of 

  	
   

  	
  Series A

  	
   

  	
  Series B

  	
   

  
	
  Name
  and Address of

  Class A Securityholder

  	
   

  	
  Common Stock Owned

  	
   

  	
  Preferred Stock Owned

  	
   

  	
  Preferred Stock Owned

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Michael DeDomenico

  	
   

  	
  1,625

  	
   

  	
  125

  	
   

  	
  37.5

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  William Scott Wade

  	
   

  	
  572

  	
   

  	
  47.7

  	
   

  	
  9.5

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Randy Gold

  	
   

  	
  195

  	
   

  	
  16

  	
   

  	
  3.2

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  NuCO2 Equity Partners L.P.

  	
   

  	
  998

  	
   

  	
  82.4

  	
   

  	
  17.4

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  J. Robert Vipond

  	
   

  	
  120

  	
   

  	
  10

  	
   

  	
  2

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  David N. Parker

  	
   

  	
  13

  	
   

  	
  0

  	
   

  	
  0

  	
   

  



 


A-5














 


EXHIBIT B


 


NuCO2 Parent, Inc.

Class B Securityholders


 


as of November 18,
2009


 


	
   

  	
   

  	
   

  	
   

  	
  Shares of

  	
   

  	
  Shares of

  	
   

  
	
   

  	
   

  	
  Shares of 

  	
   

  	
  Series A

  	
   

  	
  Series B

  	
   

  
	
  Name
  and Address of

  Class B Securityholder

  	
   

  	
  Common

  Stock Owned

  	
   

  	
  Preferred Stock Owned

  	
   

  	
  Preferred Stock Owned

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Aurora Equity Partners III L.P.

  	
   

  	
  87,426

  	
   

  	
  6,946.8

  	
   

  	
  1,795.8

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Aurora Overseas Equity Partners III, L.P.

  	
   

  	
  984

  	
   

  	
  78.2

  	
   

  	
  20.2

  	
   

  



 


B-1

















 


EXHIBIT C


 


Registration Rights


 


1.             “Piggy-Back” Registration.


 


(a)           Right to Include Registrable Securities. 
If the Company at any time following a Qualified IPO, proposes to
register any of its equity securities under the Act (other than by a
registration on Form S-4 or Form S-8 or any successor or similar
forms), 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
Act, then the Company will each such time give prompt written notice (which
shall be at least thirty (30) days prior to filing) to all Eligible Holders of
Registrable Securities of its intention to do so, of such Eligible Holders’
rights under this Paragraph 1 and, to the extent such information is
available, of the type and number of equity securities to be registered, the
distribution arrangements and, if the offering is underwritten, the proposed
price and identity of the lead underwriter(s). 
Upon the written request of any such Eligible Holder made within twenty
(20) days after the receipt of any such notice (which request shall specify the
Registrable Securities intended to be disposed of by such Eligible Holder and
the intended method of disposition thereof), the Company will use its best
efforts to effect the registration under the 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 (in accordance with the intended
methods thereof as aforesaid) of the Registrable Securities so to be
registered, by inclusion of such Registrable Securities in the registration
statement which covers the securities which the Company proposes to register or
in a separate registration statement concurrently filed and on terms
substantially the same as those being offered to the Company; provided, however, that 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 Eligible Holder of
Registrable Securities and, thereupon:


 


(i)     in the case of a determination not to register, shall
be relieved of its obligation to register any Registrable Securities in
connection with such registration (but not from its obligation to pay the
Registration Expenses in connection therewith), and


 


(ii)      in the case of a delay in registering, shall be
permitted to delay registering any Registrable Securities for the same period
as the delay in registering such other securities.


 


(b)           Priority in “Piggy-Back” Registrations. 
If a registration pursuant to this Paragraph 1 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 without
adversely affecting the offering, the Company will include in such registration
to the extent of the number which the 


 


C-1

















 


Company is so advised can be sold in such offering without adversely
affecting the offering, securities determined as follows:


 


(i)     first, the securities proposed by the Company to be
sold for its own account,


 


(ii)      second, any Registrable Securities requested to be
included in such registration pro rata among the holders
thereof requesting such registration on the basis of the number of shares of
such securities requested to be included by such holders, and


 


(iii)      third, any other securities of the Company proposed to
be included in such registration statement in accordance with the priorities,
if any, then existing among the holders of such securities.


 


2.             Demand Registration Right of Certain Securityholders.


 


(a)           Right to Require Registration. 
Subject to the provisions of this Paragraph 2, at any time after
the date nine (9) months following a Qualified IPO, any Eligible Holder of
10% or more of the outstanding Common Stock (a “Demand Holder”) shall
have the right to require the Company to file a registration statement under
the Securities Act for a public offering of all or any portion of the
Registrable Securities held by such Demand Holder when such right is exercised
(the shares subject to the demand, the “Registration Demand Securities”),
provided that any request for a
Demand Registration (as defined below) shall not be otherwise deemed to be
effective unless such request is with respect to Registrable Securities
constituting at least five percent (5%) of the outstanding shares of the class
of Registrable Securities.  The demand
registration rights granted to the Demand Holders in this Paragraph 2 are
subject to the following limitations:  (i) each
Demand Holder may make a demand under this Paragraph 2 only one (1) time
(a “Demand Registration”), provided,
however, that if after a Demand Holder executes a Demand
Registration, such Demand Holder continues to hold 10% or more of the
outstanding Common Stock, such Demand Holder shall have the right to execute
one additional Demand Registration; (ii) the Company shall not be obligated to
cause any registration statement filed under this Paragraph 2 to be declared
effective less than six months after the effective date of the most recent
registration statement filed by the Company on its own behalf; (iii) the
managing underwriter of any such offering shall be a nationally recognized
investment banking firm selected by the Company and approved by the Demand
Holder making the Demand Registration (which approval shall not be unreasonably
withheld); (iv) notwithstanding the giving of notice by a Demand Holder of
the exercise of its right to require registration under this Paragraph 2,
the Company may elect to convert such registration into a registration of
shares for sale by the Company pursuant to Paragraph 1 hereof by providing
notice to the Securityholders in accordance with Paragraph 1, and in such
event the provisions of Paragraph 1 shall apply to such registration
rather than the provisions of this Paragraph 2 and such registration shall
not count as a Demand Registration; (v) during any two-year period, the
Company may make a one-time election to postpone the filing or the
effectiveness of a registration statement for a Demand Registration for up to
six months if the Board determines, in its good faith judgment, that (x) such
Demand Registration would reasonably be expected to have an adverse effect on,
interfere with or delay any proposal or plan by the Company or any of its
subsidiaries to engage 


 


C-2

















 


in any acquisition of assets (other than in the ordinary course of
business) or any merger, consolidation, tender offer or similar transaction, (y) the
filing of a registration statement or a sale of Registrable Securities pursuant
thereto would require disclosure of material information that the Company has a
bona fide business purpose for preserving as confidential or (z) the
Company is unable to comply with the registration requirements of the
Commission; provided, that, in
such event, the holders of Registrable Securities initially requesting such
Demand Registration will be entitled to withdraw such request and, if such
request is withdrawn, such request for Demand Registration will not count as a
request for Demand Registration hereunder and the Company will pay all
Registration Expenses in connection with such withdrawn registration request;
and (vi) any demand under this Paragraph 2 shall be for a firm
commitment underwritten offering, with respect to which the Company shall be
required to maintain an effective registration statement for a maximum of
thirty (30) days.


 


(b)           Notice of Exercise of Demand Registration Right;
Participation Rights.  Any Demand Holder shall provide written
notice to the Company of the Demand Registration (which notice shall state the
number of shares of Registrable Securities the Demand Holder desires the
Company to register and the intended method of disposition of such securities),
and the Company promptly shall provide written notice of such Demand
Registration to all of the other Securityholders and all of the Securityholders
then will have the opportunity to include in the offering shares of Registrable
Securities then owned by such Securityholders, but in each case only to the
extent permitted by Paragraph 2(c) below.  In addition, subject to Paragraph 2(c) below,
the Company may elect to include in any registration statement and offering
pursuant to this Paragraph 2 newly issued shares of Registrable
Securities.  Solely for purposes of
Paragraphs 3 through 9 below, any securities registered pursuant to this
Paragraph 2 shall be deemed to be Registrable Securities.


 


(c)           Priority. 
Notwithstanding the foregoing, if the registration pursuant to this
Paragraph 2 involves an underwritten offering and the managing underwriter
advises the Company in writing that the number of securities desired to be
offered by the Company and the shares of Registrable Securities desired to be
offered by Securityholders (including the Registration Demand Securities of the
Demand Holder) exceeds the maximum number of such shares which the managing
underwriter considers, in good faith, to be appropriate based on market
conditions and other relevant factors (including, without limitation, pricing),
then the Company will include in such registration to the extent of the number
which the Company is so advised can be sold in such offering without adversely
affecting the offering, securities determined as follows:


 


(i)     first, any Registrable Securities requested to be
included in such registration pro rata among the holders
thereof requesting such registration (including the Registration Demand
Securities of the Demand Holder) on the basis of the number of shares of such
securities requested to be included by such holders; and


 


(ii)      second, any securities proposed by the Company to be
sold for its own account,


 


C-3

















 


Each of the Demand Holder, any other Securityholder and the Company (in
the event that any securities are to be offered by the Company) may withdraw
from any demand registration pursuant to this Paragraph 2 by giving
written notice to the Company prior to the filing date of such registration
statement and, in the event of a withdrawal by the Demand Holder, such
withdrawn Demand Registration shall not be deemed to be a Demand Registration
counting against the maximum of one Demand Registrations set forth in Paragraph 2(a) if
the Demand Holder pays or promptly reimburses the Company for all Registration
Expenses incurred by the Company in connection with such withdrawn Demand
Registration.


 


3.             Registration Procedures.  If and
whenever the Company is required to use its best efforts to effect the
registration of any Registrable Securities under the Act as provided in
Paragraph 1 or 2, the Company will, subject to the terms and conditions of
Paragraph 1 or 2:


 


(a)           prepare and file with the Commission as expeditiously
as possible (and, in any event, within ninety (90) days), the requisite
registration statement to effect such registration and use its best efforts to
cause such registration statement to become effective; provided, however, that as provided in
Paragraphs 1 and 2 hereof, the Company may discontinue any registration of
its securities at any time prior to the effective date of the registration
statement relating thereto;


 


(b)           prepare and file with the Commission 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 and to comply with the provisions of the Act with respect to the
disposition of all securities covered by such registration statement until the
earlier of such time as all of such securities have been disposed of in
accordance with the intended methods of disposition by the seller or sellers
thereof set forth in such registration statement or the expiration of ninety
(90) days after such registration statement becomes effective; provided, however,
that if less than all the Registrable Securities are withdrawn from
registration after the expiration of such period, the shares so withdrawn shall
be allocated pro rata among the holders thereof on the basis
of the respective numbers of Registrable Securities held by them included in
such registration;


 


(c)           promptly furnish to each seller of Registrable
Securities covered by such registration statement such number of conformed
copies of such registration statement and of each such amendment and supplement
thereto (in each case including all exhibits), such number of copies of the
prospectus contained in such registration statement (including each preliminary
prospectus and any summary prospectus) and any other prospectus filed under Rule 424
under the Act, in conformity with the requirements of the Act, and such other
documents as such seller may reasonably request;


 


(d)           use its best efforts to register or qualify, prior to
the effective date of such registration, all Registrable Securities and other
securities covered by such registration statement under such securities or blue
sky laws of such jurisdictions as each seller thereof shall reasonably request,
to keep such registration or qualification in effect for so long as such
registration statement remains in effect, and take any other action which may
be reasonably necessary or advisable to enable such seller to consummate the
disposition in such jurisdictions of the 


 


C-4

















 


securities owned by such seller, except that the Company shall not for
any such purpose be required to:


 


(i)     qualify generally to do business as a foreign
corporation in any jurisdiction wherein it would not but for the requirements
of this Paragraph 2(d) be obligated to be so qualified,


 


(ii)      subject itself to taxation in any such jurisdiction,
or


 


(iii)      consent to general service of process in any such
jurisdiction;


 


(e)           use its best efforts to cause, prior to the effective
date of such registration statement, all 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;


 


(f)            furnish to each seller of Registrable Securities
covered by such registration statement a signed counterpart, addressed to such
seller (and the underwriters, if any), of:


 


(i)     an opinion of counsel for the Company, dated the
effective date of such registration statement (or, if such registration
includes an underwritten public offering, an opinion of counsel for the Company
dated the date of the closing under the underwriting agreement), reasonably
satisfactory in form and substance to such seller, and


 


(ii)      a “comfort” letter, dated the effective date of such
registration statement (and, if such registration includes an underwritten
public offering, a “comfort” letter dated the date of the closing under the
underwriting agreement), signed by the independent public accountants who have
certified the Company’s financial statements included in such registration
statement,


 


covering substantially the same matters with respect to such
registration statement (and the prospectus included therein) and, in the case
of the accountants’ letter, with respect to events subsequent to the date of
such financial statements, as are customarily covered in opinions of issuer’s
counsel and in accountants’ letters delivered to the underwriters in
underwritten public offerings of securities and, in the case of the accountants’
letter, such other financial matters as such seller or such holder (or the
underwriters, if any) may reasonably request;


 


(g)           immediately notify each holder of Registrable
Securities covered by such registration statement, at any time when a
prospectus relating thereto is required to be delivered under the Act, of the
happening of any event or the existence of any condition as a result of which
the prospectus included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances under which they were made, or
if in the opinion of counsel for the Company it is necessary to supplement or
amend such prospectus to comply with law and, at the request of any such holder
promptly prepare and furnish to such holder a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary so that,
as thereafter delivered to the


 


C-5














 


purchasers of such securities, such prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
in light of the circumstances under which they were made or such prospectus, as
supplemented or amended, shall comply with law;


 


(h)           otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make available to
its security holders, as soon as reasonably practicable, an earnings statement
covering the period of at least twelve (12) months, but not more than eighteen
(18) months, beginning with the first full calendar month after the effective
date of such registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Act and the rules and
regulations of the Commission thereunder, and not file any amendment or
supplement to such registration statement or prospectus to which any such
seller of Registrable Securities covered by such registration statement shall
have reasonably objected on the grounds that such amendment or supplement does
not comply in all material respects with the requirements of the Act or of the rules or
regulations thereunder, having been furnished with a copy thereof at least five
(5) Business Days prior to the filing thereof;


 


(i)            provide a transfer agent and registrar for all
Registrable Securities covered by such registration statement not later than
the effective date of such registration statement;


 


(j)            use its best efforts to list, not later than the
effective date of such registration statement, all Registrable Securities
covered by such registration statement on any securities exchange on which any
of the Registrable Securities are then listed or any other trading market on
which any of the Registrable Securities are then admitted for trading; and


 


(k)           pay all Registration Expenses relating to any such
registration.


 


The Company may require each seller of Registrable Securities as to
which any registration is being effected to furnish the Company with such
information and undertakings as it may reasonably request regarding such seller
and the distribution of such securities as the Company may from time to time
reasonably request in writing.


 


Each
holder of Registrable Securities agrees by acquisition of such Registrable
Securities as follows:


 


(A)          that upon receipt of any notice from the Company of
the happening of any event of the kind described in Paragraph 3(g), such
holder will forthwith discontinue such holder’s disposition of Registrable
Securities pursuant to the registration statement relating to such Registrable
Securities until such holder’s receipt of the copies of the supplemented or
amended prospectus contemplated by Paragraph 3(g) and, if so directed
by the Company, will deliver to the Company (at the Company’s expense) all
copies, other than permanent file copies, then in such holder’s possession of
the prospectus relating to such Registrable Securities current at the time of
receipt of such notice, and


 


(B)           that it will immediately notify the Company, at any
time when a prospectus relating to the registration of such Registrable
Securities is required to be delivered under the Act, of the happening of any
event as a result of which information previously furnished by such holder to
the Company in writing for inclusion in such 


 


C-6

















 


prospectus contains an untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances under which
they were made.


 


In the event the Company or any such holder shall give any such notice,
the period referred to in Paragraph 3(h) shall be extended by a
number of days equal to the number of days during the period from and including
the giving of notice pursuant to Paragraph 3(g) to and including the
date when each seller of any Registrable Securities covered by such registration
statement shall have received the copies of the supplemented or amended
prospectus contemplated by Paragraph 3(h).


 


4.             Underwritten Offerings.


 


(a)           Underwriting Agreement.  If the
Company at any time proposes to register any of its securities under the Act as
contemplated by Paragraph 1 or 2 and such securities are to be distributed
by or through one or more underwriters, the Company will, subject to the
provisions of Paragraph 1(b) or 2(c), use its best efforts to arrange
for such underwriters to include the Registrable Securities to be offered and
sold by a holder who elects to exercise his rights pursuant to Paragraph 1(a) or
2(a) or (b) among the securities to be distributed by such
underwriters for and on the same price, terms, and conditions offered to the
Company, and each holder of Registrable Securities agrees, by acquisition of
such Registrable Securities, that all Registrable Securities of such holder to
be included in such registration shall be distributed and sold through such
underwriters.  The holders of Registrable
Securities to be distributed by such underwriters shall be parties to the
underwriting agreement between the Company and such underwriters and may, at
their option, require that any or all of the representations and warranties by,
and the other agreements on the part of, the Company to and for the benefit of
such underwriters shall also be made to and for the benefit of such holders of
Registrable Securities and that any or all of the conditions precedent to the
obligations of such underwriters shall also be made to and for the benefit of
such holders of Registrable Securities. 
The Company will use its best efforts to ensure that no underwriter
shall require any holder of Registrable Securities to make any representations
or warranties to or agreements with the Company or the underwriters other than
representations, warranties or agreements regarding such holder and such holder’s
intended method of distribution and any other representation required by law,
and, despite the Company’s best efforts, if an underwriter requires any holder
of Registrable Securities to make additional representation or warranties to or
agreements with such underwriter, such holder may elect not to participate in
such underwritten offering (but shall not have any claims against the Company
as a result of such election).


 


(b)           Selection of Underwriters. 
The selection of the underwriter or underwriters for the public offering
to be made pursuant to a registration statement filed under Paragraph 1
above shall be made by the Company, in its sole discretion, from amongst
underwriting firms of national reputation.


 


(c)           Holdback Agreements.


 


(i)     Whether or not a holder of Registrable Securities
participates in a registration pursuant to Paragraph 1, such holder agrees by
acquisition of its


 


C-7

















 


Registrable
Securities, if so requested by the Company or required by the managing
underwriter, not to effect any public sale or distribution of such securities
or sales of such securities pursuant to Rule 144 under the Act or
otherwise, during the ninety (90) days prior to and the ninety (90) days after
any firm commitment underwritten registration pursuant to Paragraph 1 has
become effective; provided, however, that either the Company or such
managing underwriter shall be entitled, in its discretion, to extend the period
during which the sale or distribution of Registrable Securities is restricted
pursuant to this paragraph by up to an additional one hundred and eighty (180)
days following the effective date of any such registration; provided, further, that this paragraph (i) shall
not apply to any holder unless all executive officers and directors and greater
than five percent (5%) stockholders of the Company enter into similar
agreements.


 


(ii)         The Company agrees:


 


(A)      not to effect any public sale or distribution of its
equity securities or securities convertible into or exchangeable or exercisable
for any of such securities during the seven (7) days prior to and the
ninety (90) days after any firm commitment underwritten registration pursuant
to Paragraph 1 or 2 has become effective, except as part of such
underwritten registration and except pursuant to registrations on Form S-4
or Form S-8 or any successor or similar forms thereto, and


 


(B)       to use its best efforts to cause each holder of its
equity securities or any securities convertible into or exchangeable or
exercisable for any of such securities, in each case purchased from the Company
at any time after the date hereof (other than in a public offering) to agree
not to effect any such public sale or distribution of such securities, during
such period or, in either case, if the managing underwriter advises the Company
in writing that in its opinion, no such public sale or distribution should be
effected for a specified period longer than ninety (90) days after such
underwritten registration in order to complete the sale and distribution of
securities included in such registration, during a reasonably longer period after
such underwritten registration, except as part of such underwritten
registration.


 


5.             Preparation; Reasonable Investigation. 
In connection with the preparation and filing of each registration
statement under the Act, the Company will give the holders of Registrable
Securities registered under such registration statement, their underwriters, if
any, and their respective counsel and accountants, the opportunity to
participate in the preparation of such registration statement, each prospectus
included therein or filed with the Commission, and each amendment thereof or
supplement thereto, and will give each of them such access to its books and
records and such opportunities to discuss the business, finances and accounts
of the Company and its subsidiaries with its officers, directors and the
independent public accountants who have certified its financial statements as
shall be necessary, in the opinion of such holders’ and such underwriters’
respective counsel, to conduct a reasonable investigation within the meaning of
the Act.


 


C-8

















 


6.             Certain Rights of Holders. 
The Company will not file any registration statement under the Act which
refers to any holder of Registrable Securities by name or otherwise without the
prior written approval of such holder, which may not be unreasonably withheld.


 


7.             Indemnification.


 


(a)           Indemnification by the Company. 
In the event of any registration of any securities of the Company under
the Act, the Company will, and hereby does, indemnify and hold harmless the
seller of any Registrable Securities covered by any registration statement
filed pursuant to Paragraph 1 or 2, its directors, officers, partners,
employees, agents and investment advisors, 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 either Section 15 of the Act or Section 20 of the Exchange
Act, from and against any losses, claims, damages or liabilities, joint or
several (or actions or proceedings, whether commenced or threatened, in respect
thereof) (collectively, “Claims”), to which such seller or any such
director or officer or employee or agent or investment advisor or underwriter
or controlling person may become subject under either Section 15 of the
Act or Section 20 of the Exchange Act or otherwise, insofar as such Claims
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in any registration statement under which such
securities were registered under the Act, any preliminary prospectus, final
prospectus or summary prospectus contained therein, or any amendment or
supplement thereto (if used during the period the Company is required to keep
the registration statement current) (collectively, “Registration Documents”),
or any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading
in light of the circumstances in which made, or any violation by the Company of
the Act or any state securities law, or any rule or regulation promulgated
under the Act or any state securities law, or any other law applicable to the
Company relating to any such registration or qualification, and the Company
will reimburse such seller and each such director, officer, employee, agent,
investment advisor, underwriter and controlling person for any legal or any
other expenses reasonably incurred by them in connection with investigating or
defending any such Claim; provided,
however, that the Company shall
not be liable in any such case to the extent that any such Claim or expense
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any such Registration Document in
reliance upon and in conformity with written information furnished to the
Company through an instrument duly executed by such seller stating that it is
for use in the preparation thereof; provided,  further,
that the Company shall not be liable to any 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 either Section 15
of the Act or Section 20 of the Exchange Act (or the selling holder of
Registrable Securities, if the sale is not made through an underwriter) in any
such case to the extent that any such Claim or expense arises out of such
Person’s failure to send or give a copy of the final prospectus to the Person
claiming an untrue statement or alleged untrue statement or omission or alleged
omission at or prior to the written confirmation of the sale of Registrable
Securities to such Person if such statement or omission was corrected in such
final prospectus.  Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of such seller or any such director, officer, employee, agent,
investment advisor, partner, underwriter or controlling person and shall
survive the transfer of such securities by such seller.


 


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(b)           Indemnification by the Sellers. 
The Company may require, as a condition to including any Registrable
Securities in any registration statement filed pursuant to Paragraph 1 or
2, that the Company shall have received an undertaking satisfactory to it from
the prospective seller of such securities, to indemnify and hold harmless (in
the same manner and to the same extent as set forth in this
Paragraph 7(b)) the Company, each director of the Company, each officer of
the Company and each other person, if any, who controls the Company within the
meaning of either Section 15 of the Act or Section 20 of the Exchange
Act and each underwriter participating in any distribution being made pursuant
to such registration statement, with respect to any statement or alleged
statement or omission or alleged omission from such Registration Document, if
such statement or alleged statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished to the
Company through an instrument duly executed by such seller specifically stating
that it is for use in the preparation of such Registration Document.  Notwithstanding the foregoing, in no event
shall any selling stockholder or any director, officer, employee, agent,
investment advisor or controlling person thereof be liable to indemnify the
Company pursuant to this Paragraph 7(b) in an amount in excess of the
amount of the net proceeds of the Registrable Securities sold by him, her or it
in any such offering.  Such indemnity
shall remain in full force and effect regardless of any investigation made by
or on behalf of the Company of any such director, officer or controlling person
and shall survive the transfer of such securities by such seller.  The Company shall use its best efforts to
ensure that no underwriter shall require any holder of Registrable Securities
to provide any indemnification other than that provided hereinabove in this
Paragraph 7(b), and, if, despite the Company’s best efforts, an
underwriter requires any holder of Registrable Securities to provide additional
indemnification, such holder may elect not to participate in such underwritten
offering (but shall not have any claim against the Company as a result of such
election).


 


(c)           Notices of Claims, etc.  Promptly
after receipt by an indemnified party of notice of the commencement of any
action or proceeding involving a Claim referred to in the preceding
subdivisions of this Paragraph 7, 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, however,
that the failure of any indemnified party to give notice as provided herein
shall not relieve the indemnifying party of its obligations under the preceding
subdivisions of this Paragraph 7, except to the extent that the
indemnifying party is actually 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 and indemnifying parties may
exist in respect of such claim, the indemnifying party shall 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 shall 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
shall consent to entry of any judgment or enter into any settlement of any
pending or threatened proceeding in respect of which an indemnified party is or
could have been a party and indemnity could have been sought under
Paragraph 7(a) without the consent of the indemnified party which
does not include as an unconditional term thereof the 


 


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giving by the claimant or plaintiff to such indemnified party of a
release from all liability in respect to such claim or litigation.


 


(d)           Other Indemnification. 
Indemnification similar to that specified in the preceding subdivisions
of this Paragraph 7 (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 of any governmental authority, other than the Act.  If the indemnification provided for in
Paragraphs 7(a), (b) or (c) is unavailable to an indemnified
party or insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the indemnifying party or parties on the one hand
and the indemnified party or parties on the other hand from the offering of the
securities or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the indemnified party or parties on the other hand
in connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations; provided, however, that in no event shall any
contribution by the selling stockholder or any director, officer, employee,
agent, investment advisor or controlling person thereof pursuant to this
Paragraph 7(d) exceed the amount of the net proceeds of the
Registrable Securities sold by him, her or it in any such offering.


 


(e)           Indemnification Payments. 
The indemnification required by this Paragraph 7 shall be made by
periodic payments of the amount thereof during the course of the investigation
or defense, as and when bills are received or expense, loss, damage or
liability is incurred.


 


8.             Adjustment Affecting Registrable Securities. 
The Company will not effect or permit to occur any combination or
subdivision of shares which would adversely affect the ability of the holders
of Registrable Securities to effect the registration of such securities in the
manner contemplated by these registration rights provisions.


 


9.             Covenants Relating to Rule 144. 
At all times after the effective date of the registration statement
under the Act of the initial underwritten public offering of Common Stock, and
until such time as all of the Registrable Securities cease to be Registrable
Securities, the Company will file reports in compliance with the Exchange Act
and will, at its expense, forthwith upon the request of any holder of “restricted
securities” (as defined in Rule 144 (or any successor provision under the Act)),
deliver to such holder a certificate, signed by the Company’s principal
financial officer, stating:


 


(a)           the Company’s name, address and telephone number
(including area code);


 


(b)           the Company’s Internal Revenue Service identification
number;


 


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(c)           the Company’s Commission file number;


 


(d)           the number of shares of Common Stock of the Company
outstanding as shown by the most recent report or statement published by the
Company; and


 


(e)           whether the Company has filed the reports required to
be filed under the Exchange Act for a period of at least ninety (90) days
prior to the date of such certificate and in addition has filed the most recent
annual report required to be filed thereunder.


 


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