EX-10.39



 





Exhibit 10.39




 





REGISTRATION RIGHTS AGREEMENT




CVR ENERGY, INC.




Dated as of                    , 2007




 





 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Page
	Section 1.	 	Registrations Upon Request	 	 	1	 
	 

	 	 	1.1.	 	 	Requests by the Stockholders
	 	 	1	 
	 

	 	 	1.2.	 	 	Registration Statement Form
	 	 	4	 
	 

	 	 	1.3.	 	 	Expenses
	 	 	4	 
	 

	 	 	1.4.	 	 	Effective Registration Statement
	 	 	5	 
	 

	 	 	1.5.	 	 	Right to Withdraw
	 	 	5	 
	 

	 	 	1.6.	 	 	Priority in Demand Registrations
	 	 	5	 
	 
	 	 	 	 	 	 	 	 	 	 
	Section 2.	 	Incidental Registrations	 	 	6	 
	 
	 	 	 	 	 	 	 	 	 	 
	Section 3.	 	Registration Procedures	 	 	8	 
	 
	 	 	 	 	 	 	 	 	 	 
	Section 4.	 	Underwritten Offerings	 	 	13	 
	 

	 	 	4.1.	 	 	Underwriting Agreement
	 	 	13	 
	 

	 	 	4.2.	 	 	Selection of Underwriters
	 	 	14	 
	 
	 	 	 	 	 	 	 	 	 	 
	Section 5.	 	Holdback Agreements	 	 	14	 
	 
	 	 	 	 	 	 	 	 	 	 
	Section 6.	 	Preparation; Reasonable Investigation	 	 	15	 
	 
	 	 	 	 	 	 	 	 	 	 
	Section 7.	 	No Grant of Future Registration Rights	 	 	16	 
	 
	 	 	 	 	 	 	 	 	 	 
	Section 8.	 	Indemnification	 	 	16	 
	 

	 	 	8.1.	 	 	Indemnification by the Company
	 	 	16	 
	 

	 	 	8.2.	 	 	Indemnification by the Sellers
	 	 	17	 
	 

	 	 	8.3.	 	 	Notices of Claims, etc
	 	 	17	 
	 

	 	 	8.4.	 	 	Other Indemnification
	 	 	18	 
	 

	 	 	8.5.	 	 	Indemnification Payments
	 	 	18	 
	 

	 	 	8.6.	 	 	Other Remedies
	 	 	18	 
	 
	 	 	 	 	 	 	 	 	 	 
	Section 9.	 	Representations and Warranties	 	 	19	 
	 
	 	 	 	 	 	 	 	 	 	 
	Section 10.	 	Definitions	 	 	20	 
	 
	 	 	 	 	 	 	 	 	 	 
	Section 11.	 	Miscellaneous	 	 	22	 
	 

	 	 	11.1.	 	 	Rule 144, etc
	 	 	22	 
	 

	 	 	11.2.	 	 	Successors, Assigns and Transferees
	 	 	22	 
	 

	 	 	11.3.	 	 	Stock Splits, etc
	 	 	23	 
	 

	 	 	11.4.	 	 	Amendment and Modification
	 	 	23	 
	 

	 	 	11.5.	 	 	Governing Law; Venue and Service of Process
	 	 	23	 
	 

	 	 	11.6.	 	 	Invalidity of Provision
	 	 	24	 
	 

	 	 	11.7.	 	 	Notices
	 	 	24	 






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	11.8.     Headings: Execution in Counterparts

	 	 	25	 
	11.9.     Injunctive Relief

	 	 	25	 
	11.10.   Term

	 	 	25	 
	11.11.   Further Assurances

	 	 	26	 
	11.12.   Entire Agreement

	 	 	26	 
	11.13.   No
Third Party Beneficiaries

	 	 	26	 






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REGISTRATION RIGHTS AGREEMENT

OF CVR ENERGY, INC.




          REGISTRATION RIGHTS AGREEMENT, dated as of                     , 2007 (the “Agreement”), by and
among CVR Energy, Inc., a Delaware corporation (the “Company”), Coffeyville Acquisition
LLC, a Delaware limited liability company (“CA”), and Coffeyville Acquisition II LLC, a
Delaware limited liability company (“CA II” and, collectively with CA, the
“Stockholders”). Capitalized terms used herein without definition are defined in
Section 10.




          WHEREAS, the Company is proposing to sell shares of Common Stock to the public in an initial
public offering (“IPO”);




          WHEREAS, immediately after the completion of the Company’s IPO, it is expected that the
Stockholders will own approximately 80.6% (78.2% if the underwriters exercise their option to
purchase additional shares from the Stockholders) of the issued and outstanding shares of Common
Stock; and




          WHEREAS, the parties hereto wish to set forth certain rights and obligations with respect to
the registration of the shares of Common Stock under the Securities Act.




          NOW, THEREFORE, in consideration of the mutual covenants and obligations set forth in this
Agreement, the parties hereto agree as follows:




     Section 1. Registrations Upon Request.



     1.1. Requests by the Stockholders. 




     (a) Notice of Request. Each Stockholder shall have the right to make up
to three requests (each, a “Demand Registration”) that the Company effect
the registration under the Securities Act of all or a portion of the Registrable
Securities Beneficially Owned by such Stockholder (such Stockholder, in such
capacity, the “Initiating Stockholder”), each such request to specify the
number of Registrable Securities to be registered and the intended method or methods
of disposition thereof; provided that, with respect to any shelf
registration requested by an Initiating Stockholder pursuant to Section
1.1(b) (which initial request shall count as a request for purposes of this
Section 1.1), each subsequent request by an Initiating Stockholder that the
Company sell Registrable Securities from such Shelf Registration Statement (as such
term is defined in part (b) of this Section 1.1) that is not made
simultaneously with such initial request shall be counted as an additional request
for purposes of this Section 1.1. Upon any such request (each, a
“Demand Request Notice”), the Company will promptly, but in any event within
5 days, give written notice of such request to all holders of Registrable Securities
and thereupon the Company will, subject to Section 1.4:




     (i) use its best efforts to effect the prompt registration under the
Securities Act of



 









 






     (A) the Registrable Securities which the Company has been so
requested to register by the Initiating Stockholder, and




     (B) all other Registrable Securities which the Company has been
requested to register by the holders thereof by written request given
to the Company by such holders within 30 days after the giving of
such written notice by the Company to such holders (or, 15 days if,
at the request of the Initiating Stockholder, the Company states in
such written notice or gives telephonic notice to each holder of
Registrable Securities, with written confirmation to follow promptly
thereafter, stating that (i) such registration will be on Form S-3
and (ii) such shorter period of time is required because of a planned
filing date),




all to the extent required to permit the disposition of the
Registrable Securities so to be registered in accordance with the
intended method or methods of disposition of the Initiating
Stockholder and any “Participating Stockholder,” which term
shall refer to any Stockholder that exercises its right to
participate in the registration initiated by the Initiating
Stockholder, which intended method or methods of distribution may
include, at the option of the Initiating Stockholder or the
Participating Stockholder, as applicable, a distribution of such
Registrable Securities to, and resale of such Registrable Securities
by, the partners of the members of such Stockholder or Stockholders
(a “Partner Distribution”); and




     (ii) if requested by the Initiating Stockholder or any Participating
Stockholder, as applicable, obtain acceleration of the effective date of the
registration statement relating to such registration. Notwithstanding
anything contained herein to the contrary, the Company shall, at the request
of any Initiating Stockholder or any Participating Stockholder, as
applicable, seeking to effect a Partner Distribution, file any prospectus
supplement or post-effective amendments and shall otherwise take any action
necessary to include such language, if such language was not included in the
initial registration statement, or revise such language if deemed necessary
by such Stockholder or Stockholders, to effect such Partner Distribution.



     (b) Shelf Registration. The right of each Stockholder to request a
registration of Registrable Securities pursuant to Section 1.1(a) shall
include the right from and after the first anniversary of the IPO to request that
the Company file a registration statement to permit the requesting holder to sell
Registrable Securities on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act (or any similar rule that may be adopted by the Commission) in
accordance with the intended method or methods of disposition by such



2









 




requesting holder (a “Shelf Registration Statement”). Notwithstanding
anything to the contrary herein,





     (i) upon any Shelf Registration Statement having been declared
effective, the Company shall use reasonable best efforts to keep such Shelf
Registration Statement continuously effective in order to permit the
prospectus included therein to be usable by the holders of Registrable
Securities until the earlier of (x) such time as all Registrable Securities
that could be sold under such Shelf Registration Statement have been sold or
are no longer outstanding; (y) two years from the date of effectiveness; and
(z) the date that each Stockholder can sell all Registrable Securities
Beneficially Owned by it in accordance with Rule 144(k) under the Securities
Act;




     (ii) if, at any time following the effectiveness of any Shelf
Registration Statement, either Stockholder desires to sell Registrable
Securities pursuant thereto, such Stockholder shall notify the Company of
such intent at least ten Business Days prior to any such sale (any such
proposed transaction, a “Take-down Transaction”), and the Company
thereupon shall prepare and file within ten Business Days after receipt of
such notice a prospectus supplement or post-effective amendment to the Shelf
Registration Statement, as necessary, to permit the consummation of such
Take-down Transaction;




     (iii) upon receipt of notice from a Stockholder regarding a Take-down
Transaction as provided in clause (ii) of this Section 1.1(b), the
Company shall immediately deliver notice to any other holders of Registrable
Securities whose Registrable Securities have been included in such Shelf
Registration Statement and shall permit such holders to participate in such
Take-down Transaction (subject to Section 1.4), it being understood,
for the avoidance of doubt, that no holder other the Stockholders shall have
the right to initiate a Take-down Transaction;




     (iv) each holder who participates in a Take-down Transaction shall be
deemed through such participation to have represented to the Company that
any information previously supplied by such holder to the Company in writing
for inclusion in the Shelf Registration Statement, unless modified by such
holder by written notice to the Company, remains accurate as of the date of
the prospectus supplement or amendment to the Shelf Registration Statement,
as applicable; and




     (v) if the continued use of such Shelf Registration Statement at any
time would require the Company to make any public disclosure of material,
non-public information, disclosure of which, in the Board’s good faith
judgment, after consultation with independent outside counsel to the
Company, (i) would be required to be made in any registration statement



3









 






filed with the Commission by the Company so that such registration
statement would not be materially misleading and (ii) would not be required
to be made at such time but for the filing of such registration statement;
and the Company has a bona fide business purpose for not disclosing such
information publicly, the Company may, upon giving prompt written notice of
such action to the holders of Registrable Securities, suspend use of the
Shelf Registration Statement (a “Shelf Suspension”);
provided, however, that the Company shall not be permitted
to exercise a Shelf Suspension (x) more than once during any 12 month period
or (y) for a period exceeding 45 days on any one occasion. In the case of a
Shelf Suspension, the holders of Registrable Securities agree to suspend use
of the applicable prospectus in connection with any sale or purchase of, or
offer to sell or purchase, Registrable Securities, upon receipt of the
notice referred to above. Upon the written request of either the Initiating
Stockholder or any Participating Stockholder, the Company shall provide such
holder of Registrable Securities in writing with a general statement of the
reasons for such postponement and an approximation of the anticipated delay.
The Company shall immediately notify the holders of Registrable Securities
upon the termination of any Shelf Suspension, amend or supplement the
prospectus, if necessary, so it does not contain any untrue statement of a
material fact or omission and furnish to the holders of Registrable
Securities such numbers of copies of the prospectus as so amended or
supplemented as such holders may reasonably request. The Company agrees, if
necessary, to supplement or make amendments to the Shelf Registration
Statement, if required by the registration form used by the Company for the
shelf registration or by the instructions applicable to such registration
form or by the Securities Act or as may reasonably be requested by the
Majority Holders.



     1.2. Registration Statement Form. A registration requested pursuant to Section
1.1 shall be effected by the filing of a registration statement on a form of the Commission (i)
selected by the Majority Holders, which form shall be reasonably acceptable to the Company;
provided that the Company agrees that, at the request of the Initiating Stockholder, at such time
as the Company becomes a “well-known seasoned issuer,” as such term is defined in Rule 405 under
the Securities Act, the Company will register an offering pursuant to Section 1.1 on an
“automatic shelf registration statement,” as such term is defined in Rule 405 under the Securities
Act and (ii) which shall permit the disposition of Registrable Securities in accordance with the
intended method or methods of disposition specified in such request for registration, including,
without limitation, a Partner Distribution or, as provided above, a continuous or delayed basis
offering pursuant to Rule 415 under the Securities Act. The Company agrees to include in any such
registration statement all information which, in the opinion of counsel to the Initiating
Stockholder, counsel to any Participating Stockholder and counsel to the Company, is necessary or
desirable to be included therein.



     1.3. Expenses. The Company shall pay, and shall be responsible for, all Registration
Expenses in connection with any registration requested under Section 1.1; provided that
each



4









 




seller of Registrable Securities shall pay all Registration Expenses to the extent required to
be paid by such seller under applicable law and all underwriting discounts and commissions and
transfer taxes, if any, in respect of the Registrable Securities being registered for such seller.




     1.4. Effective Registration Statement. A registration requested pursuant to this
Section 1.1 shall not be deemed a Demand Registration (including for purposes of
Section 1.1(a)) unless a registration statement with respect thereto has become effective
and has been kept continuously effective for a period of at least 180 days (or such shorter period
which shall terminate when all the Registrable Securities covered by such registration statement
have been sold pursuant thereto) or, if such registration statement relates to an underwritten
offering, such longer period as in the opinion of counsel for the underwriter or underwriters a
prospectus is required by law to be delivered in connection with sales of Registrable Securities by
an underwriter or dealer. Should a Demand Registration not become effective due to the failure of
a holder of Registrable Securities participating in such offering of Registrable Securities (a
“Participating Holder”) to perform its obligations under this Agreement, or in the event the
Initiating Stockholder withdraws or does not pursue its request for the Demand Registration as
provided for in Section 1.6 below (in each of the foregoing cases, provided that at such
time the Company is in compliance in all material respects with its obligations under this
Agreement), then, such Demand Registration shall be deemed to have been effected (including for
purposes of Section 1.1(a)); provided, that, if (i) the Demand Registration does not become
effective because a material adverse change has occurred, or is reasonably likely to occur, in the
condition (financial or otherwise), prospects, business, assets or results of operations of the
Company and its subsidiaries taken as a whole subsequent to the date of the delivery of the Demand
Request Notice, (ii) after the Demand Registration has become effective, such registration is
interfered with by any stop order, injunction, or other order or requirement of the Commission or
other governmental agency or court, (iii) the Demand Registration is withdrawn at the request of
the Initiating Stockholder due to the advice of the managing underwriter(s) that the Registrable
Securities covered by the registration statement could not be sold in such offering within a price
range acceptable to the Initiating Stockholder, or (iv) the Initiating Stockholder reimburses the
Company for any and all Registration Expenses incurred by the Company in connection with such
request for a Demand Registration that was withdrawn or not pursued, then the Demand Registration
shall not be deemed to have been effected and will not count as a Demand Registration.



     1.5. Right to Withdraw. Any Participating Holder shall have the right to withdraw its
request for inclusion of Registrable Securities in any registration statement pursuant to
Section 1.1 at any time prior to the effective date of such registration statement by
giving written notice to the Company of its request to withdraw. Upon receipt of notices from all
Participating Holders to such effect, the Company shall cease all efforts to obtain effectiveness
of the applicable registration statement, and whether the Initiating Stockholder’s request for
registration pursuant to Section 1.1 shall be counted as a Demand Registration for purposes
of Section 1.6 shall be determined in accordance with Section 1.4 above.



     1.6. Priority in Demand Registrations. Whenever the Company effects a registration
pursuant to Section 1.1 in connection with an underwritten offering, no securities other
than Registrable Securities shall be included among the securities covered by such registration
unless



5









 




the Majority Holders consent in writing to the inclusion therein of such other securities,
which consent may be subject to terms and conditions determined by the Majority Holders in their
sole discretion. If a registration pursuant to Section 1.1 involves an underwritten
offering, and the managing underwriter (or, in the case of an offering which is not underwritten, a
nationally recognized investment banking firm) shall advise the Company in writing (with a copy to
each Person requesting registration of Registrable Securities) that, in its opinion, the number of
securities requested, and otherwise proposed to be included in such registration, exceeds the
number which can be sold in such offering without materially and adversely affecting the offering
price, the Company shall include in such registration, to the extent of the number which the
Company is so advised can be sold in such offering without such material adverse effect, first, the
Registrable Securities of the Initiating Stockholder and the Participating Stockholders and the
Management Stockholders requesting inclusion in such registration, on a pro rata basis (based on
the number of shares of Registrable Securities owned by each such holder), and second, the
securities, if any, being sold by the Company. Notwithstanding the foregoing, the Management
Stockholders shall not be entitled to participate in any such registration requested by an
Initiating Stockholder to the extent that the managing underwriter (or, in the case of an offering
that is not underwritten, a nationally recognized investment banking firm) shall determine in good
faith and in writing (with a copy to each affected Person requesting registration of Registrable
Securities), that the participation of the Management Stockholders would materially and adversely
affect the marketability or offering price of the securities being sold in such registration, it
being understood that the Company shall include in such registration that number of shares of the
Management Stockholders which can be sold in such offering without materially and adversely
affecting the marketability or offering price of the other securities to be sold in such
registration. In the event of any such determination under this
Section 1.6, the Company
shall give the affected holders of Registrable Securities notice of such determination and in lieu
of the notice otherwise required under Section 1.1.




     Section 2. Incidental Registrations. If the Company at any time proposes to register
any of its equity securities under the Securities Act (including, but not limited to, a shelf
registration statement on Form S-3, but other than pursuant to a registration on Form S-4 or S-8 or
any successor form) whether or not for sale for its own account, then the Company shall give prompt
written notice (but in no event less than 30 days prior to the initial filing with respect thereto)
to all holders of Registrable Securities regarding such proposed registration. Upon the
written request of any such holder made within 15 days after the receipt of any such notice
(which request shall specify the number of Registrable Securities intended to be disposed of by
such holder and the intended method or methods of disposition thereof), the Company shall use
its best efforts to effect the registration under the Securities Act of such Registrable Securities
on a pro rata basis in accordance with such intended method or methods of disposition;
provided that:




     (a) (i) the Company shall not include Registrable Securities in such proposed
registration to the extent that the Board shall have determined, after consultation
with the managing underwriter for such offering, that it would materially and
adversely affect the offering price to include any Registrable Securities in such
registration and (ii) the Company shall not include Registrable Securities of any
Management Stockholder in any proposed registration to the



6









 






extent that the managing underwriter (or, in the case of an offering that is
not underwritten, a nationally recognized investment banker) shall determine in good
faith that the participation of such Management Stockholder would materially and
adversely affect the marketability or the offering price of the securities being
sold in such registration and provided, further, that in the event
of any such determination under clause (i) or (ii), the Company shall give the
affected holders of Registrable Securities notice of such determination and in lieu
of the notice otherwise required by the first sentence of this Section 2;




     (b) if, at any time after giving written notice (pursuant to this Section
2) of its intention to register equity 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 such equity securities, the
Company may, at its election, give written notice of such determination to each
holder of Registrable Securities and, thereupon, shall not be obligated to register
any Registrable Securities in connection with such registration (but shall
nevertheless pay the Registration Expenses in connection therewith), without
prejudice, however, to the rights of the Stockholders that a registration be
effected under Section 1.1; and




     (c) if in connection with a registration pursuant to this Section 2,
the managing underwriter of such registration (or, in the case of an offering that
is not underwritten, a nationally recognized investment banking firm) shall advise
the Company in writing (with a copy to each holder of Registrable Securities
requesting. registration thereof) that the number of securities requested
and otherwise proposed to be included in such registration exceeds the number which
can be sold in such offering without materially and adversely affecting the offering
price of the securities being sold in such registration, then in the case of any
registration pursuant to this Section 2, the Company shall include in such
registration to the extent of the number which the Company is so advised can be sold
in such offering without such material adverse effect, first, the
securities, if any, being sold by the Company, and second, the Registrable
Securities of the Stockholders and the Management Stockholders requesting inclusion
in such registration, on a pro rata basis (based on the number of shares of
Registrable Securities owned by each such Stockholder).



          The Company shall pay all Registration Expenses in connection with each registration of
Registrable Securities requested pursuant to this Section 2; provided that each seller of
Registrable Securities shall pay all Registration Expenses to the extent required to be paid by
such seller under applicable law and all underwriting discounts and commissions and transfer taxes,
if any, in respect of the Registrable Securities being registered for such seller. No registration
effected under this Section 2 shall relieve the Company from its obligation to effect
registrations under Section 1.1.




7









 








     Section 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 Securities Act
pursuant to Sections 1.1 or 2, the Company shall promptly:




     (a) prepare, and as soon as practicable, but in any event within 30 days
thereafter, file with the Commission, a registration statement with respect to such
Registrable Securities, make all required filings with the NASD and use its best
efforts to cause such registration statement to become and remain effective as soon
as practicable;




     (b) prepare and promptly file with the Commission such amendments and
post-effective amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to keep such
registration statement effective for so long as is required to comply with the
provisions of the Securities Act and to complete the disposition of all securities
covered by such registration statement in accordance with the intended method or
methods of disposition thereof, but in no event for a period of more than six months
after such registration statement becomes effective (except as provided in
Section 1.1(b)(i));




     (c) furnish copies of all documents proposed to be filed with the Commission in
connection with such registration to (i) counsel selected by the Initiating
Stockholder and counsel selected by any Participating Stockholder either of which
counsel may also be counsel to the Company, and (ii) each seller of Registrable
Securities (or in the case of the initial filing of a registration statement, within
five business days of such initial filing) and such documents shall be subject to
the review of such counsel; provided that the Company shall not file any
registration statement or any amendment or post-effective amendment or supplement to
such registration statement or the prospectus used in connection therewith or any
free writing prospectus related thereto to which such counsel shall have reasonably
objected on the grounds that such registration statement amendment, supplement or
prospectus or free writing prospectus does not comply (explaining why) in all
material respects with the requirements of the Securities Act or of the rules or
regulations thereunder;




     (d) furnish to each seller of Registrable Securities, without charge, such
number of conformed copies of such registration statement and of each such amendment
and supplement thereto (in each case including all exhibits and documents filed
therewith) and such number of copies of the prospectus included in such registration
statement (including each preliminary prospectus and any summary prospectus) and any
other prospectus filed under Rule 424 under the Securities Act, in conformity with
the requirements of the Securities Act, each free writing prospectus utilized in
connection therewith, and such other documents, as such seller may reasonably
request in order to facilitate the disposition of the Registrable Securities owned
by such seller in accordance with the intended method or methods of disposition
thereof;



8









 






     (e) use its best efforts to register or qualify such Registrable Securities and
other securities covered by such registration statement under the securities or blue
sky laws of such jurisdictions as each seller shall reasonably request, and do any
and all other acts and things which may be necessary or advisable to enable such
seller to consummate the disposition of such Registrable Securities in such
jurisdictions in accordance with the intended method or methods of disposition
thereof; provided that the Company shall not for any such purpose be
required to qualify generally to do business as a foreign corporation in any
jurisdiction wherein it is not so qualified, subject itself to taxation in any
jurisdiction wherein it is not so subject, or take any action which would subject it
to general service of process in any jurisdiction wherein it is not so subject;




     (f) use its best efforts to cause all Registrable Securities covered by such
registration statement to be registered with or approved by such other governmental
agencies, authorities or self-regulatory bodies as may be necessary by virtue of the
business and operations of the Company to enable the seller or sellers thereof to
consummate the disposition of such Registrable Securities in accordance with the
intended method or methods of disposition thereof;




     (g) furnish to the Initiating Stockholder and any Participating Stockholder:




     (i) an opinion of counsel for the Company experienced in securities law
matters, dated the effective date of the registration statement (and, if
such registration includes an underwritten public offering, the date of the
closing under the underwriting agreement), and




     (ii) a “comfort” letter (unless the registration is pursuant to
Section 2 and such a letter is not otherwise being furnished to the
Company), dated the effective date of such registration statement (and if
such registration includes an underwritten public offering, dated the date
of the closing under the underwriting agreement), signed by the independent
public accountants who have issued an audit report on the Company’s
financial statements included in the registration statement,




covering such matters 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 such other matters as the Initiating Stockholder and any
Participating Stockholder may reasonably request;




     (h) promptly notify each seller of any Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is required to
be delivered under the Securities Act of the happening of any event or existence of
any fact 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



9









 






make the statements therein not misleading in light of the circumstances then
existing, and, as promptly as is practicable, prepare and furnish to such seller 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 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 then existing;




     (i) otherwise comply with all applicable rules and regulations of the
Commission, and make available to its security holders, as soon as reasonably
practicable and in any event within 16 months after the effective date of the
registration statement, an earnings statement of the Company (in form complying with
the provisions of Rule 158 under the Securities Act) covering the period of at least
12 months, but not more than 18 consecutive months, beginning with the first full
calendar month after the effective date of such registration statement;




     (j) notify each seller of any Registrable Securities covered by such
registration statement (i) when the prospectus or any prospectus supplement or
post-effective amendment or any “free writing prospectus” has been filed and/or used,
and, with respect to such registration statement or any post-effective amendment,
when the same has become effective, (ii) of the receipt by the Company of any
comments from the Commission or of any request by the Commission for amendments or
supplements to such registration statement or to amend or to supplement such
prospectus or for additional information, (iii) of the issuance by the Commission of
any stop order suspending the effectiveness of such registration statement or the
initiation of any proceedings for that purpose and (iv) of the suspension of the
qualification of such securities for offering or sale in any jurisdiction, or of the
institution of any proceedings for any of such purposes;




     (k) use every reasonable effort to obtain the lifting of any stop order that
might be issued suspending the effectiveness of such registration statement at the
earliest possible moment;




     (l) use its best efforts (i) (A) to list such Registrable Securities on any
securities exchange on which the equity securities of the Company are then listed
or, if no such equity securities are then listed, on an exchange selected by the
Company, if such listing is then permitted under the rules of such exchange, or (B)
if such listing is not practicable, to secure designation of such securities as a
NASDAQ “national market system security” within the meaning of Rule 11Aa2-1 under
the Exchange Act or, failing that, to secure NASDAQ authorization for such
Registrable Securities, and, without limiting the foregoing, to arrange for at least
two market makers to register as such with respect to such Registrable Securities
with the NASD, and (ii) to provide a transfer agent and registrar for such
Registrable Securities not later than the effective date of such registration



10









 






statement and to instruct such transfer agent (A) to release any stop transfer
order with respect to the certificates with respect to the Registrable Securities
being sold and (B) to furnish certificates without restrictive legends representing
ownership of the shares being sold, in such denominations requested by the sellers
of the Registrable Securities or the lead underwriter;




     (m) enter into such agreements and take such other actions as the sellers of
Registrable Securities or the underwriters reasonably request in order to expedite
or facilitate the disposition of such Registrable Securities, including, without
limitation, preparing for, and participating in, such number of “road shows” and all
such other customary selling efforts as the underwriters reasonably request in order
to expedite or facilitate such disposition;




     (n) furnish to any holder of such Registrable Securities such information and
assistance as such holder may reasonably request in connection with any “due
diligence” effort which such seller deems appropriate;




     (o) cooperate with each seller of Registrable Securities and each underwriter
and their respective counsel in connection with any filings required to be made with
the NASD, New York Stock Exchange, or any other securities exchange on which such
Registrable Securities are traded or will be traded;




     (p) cooperate with the sellers of the Registrable Securities and the managing
underwriter to facilitate the timely preparation and delivery of certificates not
bearing any restrictive legends representing the Registrable Securities to be sold,
and cause such Registrable Securities to be issued in such denominations and
registered in such names in accordance with the underwriting agreement prior to any
sale of Registrable Securities to the underwriters or, if not an underwritten
offering, in accordance with the instructions of the Majority Holders at least five
business days prior to any sale of Registrable Securities and instruct any transfer
agent and registrar of Registrable Securities to release any stop transfer orders in
respect thereof;




     (q) cause its officers and employees to participate in, and to otherwise
facilitate and cooperate with the preparation of the registration statement and
prospectus and any amendments or supplements thereto (including participating in
meetings, drafting sessions and due diligence sessions) taking into account the
Company’s business needs;




     (r) use its best efforts to take all other steps necessary to effect the
registration of such Registrable Securities contemplated hereby;




     (s) take all reasonable action to ensure that any “free writing prospectus”
utilized in connection with any registration covered by this agreement complies in
all material respects with the Securities Act, is filed in accordance with the
Securities Act to the extent required thereby, is retained in accordance with the
Securities Act to the extent required thereby and, when taken together with the



11









 






related prospectus, prospectus supplement and related documents, will not
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances under which
they were made, not misleading; and




     (t) in connection with any underwritten offering, if at any time the
information conveyed to a purchaser at the time of sale includes any untrue
statement of a material fact or omits to state any material fact necessary in order
to make the statements therein, in light of the circumstances under which they were
made, not misleading, promptly file with the Commission such amendments or
supplements to such information as may be necessary so that the statements as so
amended or supplemented will not, in light of the circumstances, be misleading.



          To the extent the Company is a well-known seasoned issuer (as defined in Rule 405 under the
Securities Act) (a “WKSI”) at the time any Demand Request Notice is submitted to the Company, and
such Demand Request Notice requests that the Company file an automatic shelf registration statement
(as defined in Rule 405 under the Securities Act) (an “automatic shelf registration statement”) on
Form S-3, the Company shall file an automatic shelf registration statement which covers those
Registrable Securities which are requested to be registered. The Company shall use its
commercially reasonable best efforts to remain a WKSI (and not become an ineligible issuer (as
defined in Rule 405 under the Securities Act)) during the period during which such automatic shelf
registration statement is required to remain effective. If the Company does not pay the filing fee
covering the Registrable Securities at the time the automatic shelf registration statement is
filed, the Company agrees to pay such fee at such time or times as the Registrable Securities are
to be sold. If the automatic shelf registration statement has been outstanding for at least three
years, at the end of the third year the Company shall refile a new automatic shelf registration
statement covering the Registrable Securities. If at any time when the Company is required to
re-evaluate its WKSI status the Company determines that it is not a WKSI, the Company shall use its
commercially reasonable best efforts to refile the shelf registration statement on Form S-3 and, if
such form is not available, Form S-1 and keep such registration statement effective during the
period during which such registration statement is required to be kept effective.




          If the Company files any shelf registration statement for the benefit of the holders of any of
its securities other than the Stockholders, the Company agrees that it shall include in such
registration statement such disclosures as may be required by Rule 430B (referring to the unnamed
selling security holders in a generic manner by identifying the initial issuance and sale of the
securities to the Stockholders) in order to ensure that the Stockholders may be added to such shelf
registration statement at a later time through the filing of a prospectus supplement rather than a
post-effective amendment.




          As a condition to its registration of Registrable Securities of any prospective seller, the
Company may require such seller of any Registrable Securities as to which any registration is being
effected to execute powers-of-attorney, custody arrangements and other customary agreements
appropriate to facilitate the offering and to furnish to the Company such




12









 




information regarding such seller, its ownership of Registrable Securities and the disposition
of such Registrable Securities as the Company may from time to time reasonably request in writing
and as shall be required by law in connection therewith. Each such holder agrees to furnish
promptly to the Company all information required to be disclosed in such registration statement in
order to make the information previously furnished to the Company by such holder and disclosed in
such registration statement not materially misleading.




          The Company agrees not to file or make any amendment to any registration statement with
respect to any Registrable Securities, or any amendment of or supplement to the prospectus used in
connection therewith, which refers to any holder of Registrable Securities, or otherwise identifies
any holder of Registrable Securities as the holder of any Registrable Securities, without the prior
consent of such holder, such consent not to be unreasonably withheld or delayed, unless such
disclosure is required by law. Notwithstanding the foregoing, if any such registration statement or
comparable statement under “blue sky” laws refers to any holder of Registrable Securities by name
or otherwise as the holder of any securities of the Company, then such holder shall have the right
to require (i) the insertion therein of language, in form and substance satisfactory to such holder
and the Company, to the effect that the holding by such holder of such Registrable Securities is
not to be construed as a recommendation by such holder of the investment quality of the Company’s
securities covered thereby and that such holding does not imply that such holder will assist in
meeting any future financial requirements of the Company, or (ii) in the event that such reference
to such holder by name or otherwise is not in the judgment of the Company, as advised by counsel,
required by the Securities Act or any similar federal statute or any state “blue sky” or securities
law then in force, the deletion of the reference to such holder.




          By acquisition of Registrable Securities, each holder of such Registrable Securities shall be
deemed to have agreed that upon receipt of any notice from the Company of the happening of any
event of the kind described in Section 3(h), such holder will promptly discontinue such
holder’s disposition of Registrable Securities pursuant to the registration statement covering such
Registrable Securities until such holder’s receipt of the copies of the supplemented or amended
prospectus contemplated by Section 3(h). If so directed by the Company, each holder of
Registrable Securities will deliver to the Company (at the Company’s expense) all copies, other
than permanent file copies, in such holder’s possession of the prospectus covering such Registrable
Securities at the time of receipt of such notice. In the event that the Company shall give any
such notice, the period mentioned in Section 3(a) shall be extended by the number of days
during the period from and including the date of the giving of such notice to and including the
date when each seller of any Registrable Securities covered by such registration statement shall
have received the copies of the supplemented or amended prospectus contemplated by Section
3(h).




     Section 4. Underwritten Offerings.



     4.1. Underwriting Agreement. If requested by the underwriters for any underwritten
offering pursuant to a registration requested under Section 1.1 or 2, the Company
shall enter into an underwriting agreement with the underwriters for such offering, such agreement
to be reasonably satisfactory in substance and form to the underwriters and to any Stockholder



13









 




participating in such registration (unless none of the Stockholders is participating in such
registration, in which case, counsel to the Majority Holders). Any such underwriting agreement
shall contain such representations and warranties by, and such other agreements on the part of, the
Company and such other terms and provisions as are customarily contained in agreements of this
type, including, without limitation, indemnities to the effect and to the extent provided in
Section 8. Each Stockholder and each other holder of Registrable Securities to be
distributed by such underwriter who owns 10% or more of the Common Stock of the Company (computed
on a fully-diluted basis) at the time of such offering shall be a party to such underwriting
agreement and may, at such holder’s option, require that any or all of the representations and
warranties by, and the agreements on the part of, the Company to and for the benefit of such
underwriters be made to and for the benefit of such holder of Registrable Securities and that any
or all of the conditions precedent to the obligations of such underwriters under such underwriting
agreement shall also be conditions precedent to the obligations of such holder of Registrable
Securities. The Stockholders in their capacities as stockholders and/or controlling persons shall
not be required by any underwriting agreement to make any representations or warranties to or
agreements with the Company or the underwriters other than representations, warranties or
agreements regarding such holder, the ownership of such holder’s Registrable Securities and such
holder’s intended method or methods of disposition and any other representation required by law or
to furnish any indemnity to any Person which is broader than the indemnity furnished by such holder
pursuant to Section 8.2.




     4.2. Selection of Underwriters. If the Company at any time proposes to register any
of its securities under the Securities Act for sale for its own account pursuant to an underwritten
offering, the Company will have the right to select the managing underwriter (which shall be of
nationally recognized standing) to administer the offering, but if a Stockholder at such time owns
at least 51% of the number of shares of Common Stock it owns on the date hereof, only with the
approval of such Stockholder(s), such approval not to be unreasonably withheld. Notwithstanding
the foregoing sentence, whenever a registration requested pursuant to Section 1.1 is for an
underwritten offering, the Initiating Stockholder will have the right to select the managing
underwriter (which shall be of nationally recognized standing and reasonably acceptable to any
Participating Stockholder) to administer the offering, but only with the approval of the Company,
such approval not to be unreasonably withheld. In connection with an underwritten registered
offering pursuant to Section 1.1, if Goldman, Sachs & Co. acts as a managing underwriter in
any such registered offering, to the extent required by applicable law, the Company shall retain a
Qualified Independent Underwriter reasonably acceptable to Goldman, Sachs & Co., and the Company
shall pay all fees and expenses (other than underwriting discounts and commissions) of such
Qualified Independent Underwriter.



     Section 5. Holdback Agreements.




     (a) If and whenever the Company proposes to register any of its equity
securities under the Securities Act for its own account (other than on Form S-4 or
S-8 or any successor form) or is required to use its best efforts to effect the
registration of any Registrable Securities under the Securities Act pursuant to
Section 1.1 or 2, each holder of Registrable Securities agrees by
acquisition of such Registrable Securities not to effect any offer, sale or
distribution, including



14









 






any sale pursuant to Rule 144 under the Securities Act, or to request
registration under Section 1.1 of any Registrable Securities within seven
days prior to the reasonably expected effective date of the contemplated
registration statement and during the period beginning on the effective date of the
registration statement relating to such registration (the “Trigger Date”)
and until 90 days (unless advised by the managing underwriter that a longer period,
not to exceed 180 days, is required, or such shorter period as the managing
underwriter for any underwritten offering may agree) after the Trigger Date, except
as part of such registration or unless, in the case of a sale or distribution not
involving a public offering, the transferee agrees in writing to be subject to this
Section 5, even if such Registrable Securities cease to be Registrable
Securities upon such transfer. If requested by such managing underwriter, each
holder of Registrable Securities agrees to execute an agreement to such effect with
the Company and consistent with such managing underwriter’s customary form of
holdback agreement.




     (b) The Company agrees not to effect any public offer, sale or distribution of
its equity securities or securities convertible into or exchangeable or exercisable
for any of such securities within seven days prior to the reasonably expected
effective date of the contemplated registration statement and during the period
beginning on the Trigger Date and until 90 days (or such longer period, not to
exceed 180 days, which may be required by the managing underwriter, or such shorter
period as the managing underwriter may agree) after the Trigger Date with respect to
any registration statement filed pursuant to Section 1.1 (except (i) as part
of such registration, (ii) as permitted by any related underwriting agreement, (iii)
pursuant to an employee equity compensation plan, or (iv) pursuant to an acquisition
or strategic relationship or similar transaction or (v) pursuant to a registration
on Form S-4 or S-8 or any successor form). In addition, if, and to the extent
requested by the managing underwriter, the Company shall use its best efforts to
cause each holder (other than any holder already subject to Section 5(a)) of
its equity securities or any securities convertible into or exchangeable or
exercisable for any of such securities, whether outstanding on the date of this
Agreement or issued at any time after the date of this Agreement (other than any
such securities acquired in a public offering), to agree not to effect any such
public offer, sale or distribution of such securities during such period, except as
part of any such registration if permitted, and to cause each such holder to enter
into an agreement to such effect with the Company and consistent with such managing
underwriter’s customary form of holdback agreement.



     Section 6. Preparation; Reasonable Investigation. In connection with the preparation
and filing of each registration statement registering Registrable Securities under the Securities
Act, the Company shall give counsel to the holders of such Registrable Securities so to be
registered, the managing underwriter(s), and their respective counsel, accountants and other
representatives and agents 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 shall give each of the foregoing parties access to the financial
and other records, pertinent corporate documents and properties of the Company and its



15









 




subsidiaries and opportunities to discuss the business of the Company with its officers and
the independent public accountants who have issued audit reports on its financial statements in
each case as shall be reasonably requested by each of the foregoing parties in connection with such
registration statement.




     Section 7. No Grant of Future Registration Rights. The Company shall not grant any
other demand or incidental registration rights to any other Person without the prior written
consent of each Stockholder who, together with its Affiliates, continues to own at least 20% of the
number of shares of Common Stock that such Stockholder owns on the date hereof. Notwithstanding
the foregoing, the Company may grant incidental registration rights to
John J. Lipinksi pursuant to the Management Registration Rights Agreement.



     Section 8. Indemnification.



     8.1. Indemnification by the Company. The Company agrees that in the event of any
registration of any Registrable Securities pursuant to this Agreement, the Company shall indemnify,
defend and hold harmless (a) each holder of Registrable Securities, (b) the Affiliates of such
holder and the respective directors, members, stockholders, officers, partners, employees,
advisors, representatives, agents of such holder and its Affiliates, (c) each Person who
participates as an underwriter or Qualified Independent Underwriter in the offering or sale of such
securities and (d) each person, if any, who controls (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) any of the foregoing against any and all losses,
penalties, fines, liens, judgments, claims, damages or liabilities (or actions or proceedings in
respect thereof) and expenses (including reasonable fees of counsel and any amounts paid in
settlement effected with the Company’s consent, which consent shall not be unreasonably withheld or
delayed if such settlement is solely with respect to monetary damages), jointly or severally,
directly or indirectly, based upon or arising out of (i) any untrue statement or alleged untrue
statement of a material fact contained in any registration statement under which such Registrable
Securities were registered under the Securities Act, any preliminary prospectus, final prospectus
or summary prospectus contained therein or used in connection with the offering of securities
covered thereby, or any amendment or supplement thereto, or any documents incorporated by reference
therein, or any “free writing prospectus,” as such term is defined in Rule 405 under the Securities
Act, utilized in connection with any related offering, (ii) any omission or alleged omission to
state a material fact required to be stated therein or necessary to make the statements therein not
misleading or (iii) any untrue statement or alleged untrue statement of a material fact in the
information conveyed to any purchaser at the time of the sale to such purchaser, or the omission or
alleged omission to state therein a material fact required to be stated therein; and the Company
will reimburse each such indemnified party for any legal or any other expenses reasonably incurred
by them in connection with enforcing its rights hereunder or under the underwriting agreement
entered into in connection with such offering or investigating, preparing, pursuing or defending
any such loss, claim, damage, liability, action or proceeding as such expenses are incurred, except
insofar as any such loss, penalty, fine, lien, judgment, claim, damage, liability, action,
proceeding or expense arises out of or is based upon an untrue statement of a material fact or
omission of a material fact made in such registration statement, any such preliminary prospectus,
final prospectus, summary prospectus, amendment or supplement, document incorporated by reference
therein or “free writing prospectus” utilized



16









 




in connection with any related offering in reliance upon and in conformity with written
information furnished to the Company by such holder expressly for use in the preparation thereof in
accordance with the second sentence of Section 8.2. Such indemnity shall remain in full
force and effect, regardless of any investigation made by such indemnified party and shall survive
the transfer of such Registrable Securities by such seller.




     8.2. Indemnification by the Sellers. The Company may require, as a condition to
including any Registrable Securities in any registration statement filed pursuant to Section
1.1 or 2, that the Company shall have received an undertaking satisfactory to it from
each of the prospective sellers of such Registrable Securities to indemnify and hold harmless,
severally, not jointly, in the same manner and to the same extent as set forth in Section
8.1, the Company, its directors, officers, employees, agents and each person, if any, who
controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)
the Company, with respect to any statement of a material fact or alleged statement of a material
fact in or omission of a material fact or alleged omission of a material fact from such
registration statement, any preliminary prospectus, final prospectus or summary prospectus
contained therein, or any amendment or supplement thereto, or any “free writing prospectus”
utilized in connection with any related offering, but only to the extent such statement or alleged
statement or such omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company by such seller expressly for use in the preparation of
such registration statement, preliminary prospectus, final prospectus, summary prospectus,
amendment or supplement or “free writing prospectus”. The Company and the holders of the Registrable
Securities in their capacities as stockholders and/or controlling persons hereby acknowledge and
agree that, unless otherwise expressly agreed to in writing by such holders, the only information
furnished or to be furnished to the Company for use in any registration statement or prospectus
relating to the Registrable Securities or in any amendment, supplement or preliminary materials
associated therewith or any “free writing prospectus” related thereto are statements specifically
relating to (a) transactions between such holder and its Affiliates, on the one hand, and the
Company, on the other hand, (b) the beneficial ownership of shares of Common Stock by such holder
and its Affiliates and (c) the name and address of such holder. If any additional information
about such holder or the plan of distribution (other than for an underwritten offering) is required
by law to be disclosed in any such document, then such holder shall not unreasonably withhold its
agreement referred to in the immediately preceding sentence of this Section 8.2. Such
indemnity shall remain in full force and effect, regardless of any investigation made by or on
behalf of the Company or any such director, officer or controlling person and shall survive the
transfer of such Registrable Securities by such seller. The indemnity agreement contained in this
Section 8.2 shall not apply to amounts paid in settlement of any such loss, claim, damage,
liability, action or proceeding if such settlement is effected without the consent of such seller
(which consent shall not be unreasonably withheld or delayed if such settlement is solely with
respect to monetary damages). The indemnity provided by each seller of Registrable Securities
under this Section 8.2 shall be limited in amount to the net amount of proceeds (i.e., net
of expenses, underwriting discounts and commissions) actually received by such seller from the sale
of Registrable Securities pursuant to such registration statement.



     8.3. 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



17









 




paragraphs of this Section 8, such indemnified party shall, if a claim in respect
thereof is to be made against an indemnifying party, give written notice to the indemnifying party
of the commencement of such action or proceeding; provided 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 paragraphs of this Section 8, except to the extent that the
indemnifying party is materially prejudiced by such failure to give notice. In case any such
action is brought against an indemnified party, the indemnifying party shall be entitled to
participate therein and to assume the defense thereof, jointly with any other indemnifying party
similarly notified, to the extent that it may wish, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not be liable to such
indemnified party for any legal or other expenses subsequently incurred by the latter in connection
with the defense thereof except for the reasonable fees and expenses of any counsel retained by
such indemnified party to monitor such action or proceeding. Notwithstanding the foregoing, if
such indemnified party reasonably determines, based upon advice of independent counsel, that a
conflict of interest may exist between the indemnified party and the indemnifying party with
respect to such action and that it is advisable for such indemnified party to be represented by
separate counsel, such indemnified party may retain other counsel, reasonably satisfactory to the
indemnifying party, to represent such indemnified party, and the indemnifying party shall pay all
reasonable fees and expenses of such counsel. No indemnifying party, in the defense of any such
claim or litigation, shall, except with the consent of such indemnified party, which consent shall
not be unreasonably withheld, consent to entry of any judgment or enter into any settlement unless
such judgment, compromise or settlement (A) includes as an unconditional term thereof the giving by
the claimant or plaintiff to such indemnified party of a release from all liability in respect of
such claim or litigation, (B) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party, and (C) does not require
any action other than the payment of money by the indemnifying party.




     8.4. Other Indemnification. Indemnification similar to that specified in the
preceding paragraphs of this Section 8 (with appropriate modifications) shall be given by
the Company and each seller of Registrable Securities with respect to any required registration
(other than under the Securities Act) or other qualification of such Registrable Securities under
any federal or state law or regulation of any governmental authority.



     8.5. Indemnification Payments. Any indemnification required to be made by an
indemnifying party pursuant to this Section 8 shall be made by periodic payments to the
indemnified party during the course of the action or proceeding, as and when bills are received by
such indemnifying party with respect to an indemnifiable loss, penalty, fine, lien, judgment,
claim, damage, liability or expense incurred by such indemnified party.



     8.6. Other Remedies. If for any reason any indemnification specified in the preceding
paragraphs of this Section 8 is unavailable, or is insufficient to hold harmless an
indemnified party, other than by reason of the exceptions provided therein, then the indemnifying
party shall contribute to the amount paid or payable by the indemnified party as a result of such
losses, penalties, fines, liens, judgments, claims, damages, liabilities, actions, proceedings or
expenses in such proportion as is appropriate to reflect the relative benefits to and faults of the



18









 




indemnifying party on the one hand and the indemnified party on the other and the statements
or omissions or alleged statements or omissions which resulted in such loss, penalty, fine, lien,
judgment, claim, damage, liability, action, proceeding or expense, as well as any other relevant
equitable considerations. The relative fault of the indemnifying party and of the indemnified
party shall be determined by reference to, among other things, whether the untrue statement of a
material fact or the omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties’ relative intent, knowledge, access
to information and opportunity to correct or prevent such statements or omissions. The parties
hereto agree that it would not be just and equitable if contributions pursuant to this Section
8.6 were to be determined by pro rata allocation or by any other method of allocation which
does not take into account the equitable considerations referred to in the preceding sentence of
this Section 8.6. No person guilty of fraudulent misrepresentation (within the meaning of
Section 11 (f) of the Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. Notwithstanding the other provisions of this
Section 8, in respect of any claim for indemnification pursuant to this Section 8,
no indemnifying party (other than the Company) shall be required to contribute pursuant to this
Section 8.6 any amount in excess of (a) the net proceeds (i.e., net of expenses,
underwriting discounts and commissions) received and retained by such indemnifying party from the
sale of its Registrable Securities covered by the applicable registration statement, preliminary
prospectus, final prospectus, or supplement or amendment thereto, filed pursuant hereto minus (b)
any amounts previously paid by such indemnifying party pursuant to this Section 8 in
respect of such claim, it being understood that insofar as such net proceeds have been distributed
by any indemnifying party to its partners, stockholders or members, the amount of such indemnifying
party’s contribution hereunder shall be limited to the net proceeds which it actually recovers from
its partners, stockholders or members based upon their relative fault and that to the extent that
such indemnifying party has not distributed such net proceeds, the amount such indemnifying party’s
contribution hereunder shall be limited by the percentage of such net proceeds which corresponds to
the percentage equity interests in such indemnifying party held by those of its partners,
stockholders or members who have been determined to be at fault. No party shall be liable for
contribution under this Section 8.6 except to the extent and under such circumstances as
such party would have been liable for indemnification under this Section 8 if such
indemnification were enforceable under applicable law.




     Section 9. Representations and Warranties. Each Stockholder represents and warrants
to the Company and each other Stockholder that:




     (a) such Stockholder has the power, authority and capacity (or, in the case of
any Stockholder that is a corporation, limited liability company or limited
partnership, all corporate, limited liability company or limited partnership power
and authority, as the case may be) to execute, deliver and perform this Agreement;




     (b) in the case of a Stockholder that is a corporation, limited liability
company or limited partnership, the execution, delivery and performance of this
Agreement by such Stockholder has been duly and validly authorized and



19









 






approved by all necessary corporate, limited liability company or limited
partnership action, as the case may be;




     (c) this Agreement has been duly and validly executed and delivered by such
Stockholder and constitutes a valid and legally binding obligation of such
Stockholder, enforceable in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting or relating
to creditors’ rights generally and general principles of equity; and




     (d) the execution, delivery and performance of this Agreement by such
Stockholder does not and will not violate the terms of or result in the acceleration
of any obligation under (i) any material contract, commitment or other material
instrument to which such Stockholder is a party or by which such Stockholder is
bound or (ii) in the case of a Stockholder that is a corporation, limited liability
company or limited partnership, the certificate of incorporation, certificate of
formation, certificate of limited partnership, by-laws, limited liability company
agreement or limited partnership agreement, as the case may be.



     Section 10. Definitions. For purposes of this Agreement, the following terms shall
have the following respective meanings:



          “Affiliate”: a Person that directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with, the Person
specified.




          “Board”: the board of directors of the Company.




          “Commission”: the Securities and Exchange Commission.




          “Common Stock”: the common stock of the Company, par value $.01 per share, now or
hereafter authorized to be issued, and any and all securities of any kind whatsoever of the Company
or any successor thereof (such securities, “Convertible Securities”) which may be issued on
or after the date hereof in respect of, in exchange for, or upon conversion of shares of Common
Stock pursuant to a merger, consolidation, stock split, reverse split, stock dividend,
recapitalization of the Company or otherwise.




          “Exchange Act”: the Securities Exchange Act of 1934, as amended, or any successor
federal statute, and the rules and regulations thereunder which shall be in effect at the time.




          “IPO”: the initial public offering of Common Stock.




          “Majority Holders”: the holders of at least 51% of the Registrable Securities that
are participating in the registration at issue.




          “Majority Voting Holders”: the holders of at least 51% of the Registrable Securities.






          “Management
Registration Rights Agreement”: the management registration
rights
agreement, dated the date hereof, by and among the Company, John J.
Lipinski and any other parties added thereto in accordance with
Section 7 hereof, as amended from time to time.





20









 





          “Management Stockholders”: employees of the Company or its subsidiaries who hold
Common Stock and who have entered into a Management Registration Rights Agreement with the Company.




          “NASD”: National Association of Securities Dealers, Inc.




          “NASDAQ”: the Nasdaq National Market.




          “Person”: an individual, corporation, partnership, limited liability company, joint
venture, business association, trust or any other entity or organization, including a government or
political subdivision or an agency or instrumentality thereof.




          “Registrable Securities”: the shares of Common Stock Beneficially Owned by the
Stockholders, the Management Stockholders or their respective Permitted Transferees (as such term
is defined in Section 11.2), as applicable, except for any shares of Common Stock
Beneficially Owned by a Management Stockholder that (i) were issued to such Management Stockholder
pursuant to an effective registration statement under the Securities Act on Form S-8 or (ii) may be
sold by such Management Stockholder pursuant to Rule 144 under the Securities Act, which shares of
Common Stock Beneficially Owned by a Management Stockholder shall not be Registrable Securities.
For purposes of this Agreement, a Person will be deemed to “Beneficially Own” or
“hold” Registrable Securities whenever such Person has the right to acquire, directly or
indirectly, such Registrable Securities (upon conversion, exercise or exchange of any Convertible
Securities but disregarding any restrictions or limitations upon the exercise of such right),
whether or not such acquisition has actually been effected, and such Person shall not be required
to convert, exercise or exchange such Convertible Security (or otherwise acquire such Registrable
Security) to participate in any registered offering hereunder prior to the closing of such
offering. As to any particular Registrable Securities, such securities shall cease to be
Registrable Securities when (i) a registration statement with respect to the sale of such
securities shall have become effective under the Securities Act and such securities shall have been
disposed of in accordance with such registration statement, (ii) a registration statement on Form
S-8 with respect to the sale of such securities shall have become effective under the Securities
Act, (iii) such securities shall have been sold to the public pursuant to Rule 144 under the
Securities Act, or (iv) such securities shall have ceased to be outstanding. Any and all shares of
Common Stock which may be issued in respect of, in exchange for, upon conversion of, or in
substitution for any Registrable Securities, whether by reason of any stock split, stock dividend,
reverse stock split, recapitalization, combination, merger, consolidation or otherwise, shall also
be “Registrable Securities” hereunder.




          “Registration Expenses”: all fees and expenses incurred in connection with the
Company’s performance of or compliance with any registration pursuant to this Agreement, including,
without limitation, (i) registration, filing and applicable Commission and NASD fees, (ii) fees and
expenses of complying with securities or blue sky laws, (iii) fees and expenses associated with
listing securities on an exchange or NASDAQ, (iv) word processing, duplicating and printing
expenses, (v) messenger and delivery expenses, (vi) transfer agents’, trustees’, depositories’,
registrars’ and fiscal agents’ fees, (vii) fees and disbursements of counsel for the Company and of
its independent public accountants, including the expenses of any special audits




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or “cold comfort” letters required by, or incident to, such registration, (viii) reasonable
fees and disbursements of any one counsel retained by the Initiating Stockholder and any one
counsel retained by the Participating Stockholder, and (ix) 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 Act”: the Securities Act of 1933, as amended, or any successor federal
statute, and the rules and regulations thereunder which shall be in effect at the time.




     Section 11. Miscellaneous.



     11.1. Rule 144, etc. If the Company shall have filed a registration statement
pursuant to the requirements of Section 12 of the Exchange Act or a registration statement pursuant
to the requirements of the Securities Act relating to any class of equity securities, the Company
shall file the reports required to be filed by it under the Securities Act and the Exchange Act and
the rules and regulations adopted by the Commission thereunder, and shall take such further action
as any holder of Registrable Securities may reasonably request, all to the extent required from
time to time to enable such holder to sell Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by (a) Rule 144 under the
Securities Act, as such rule may be amended from time to time, or (b) any successor rule or
regulation hereafter adopted by the Commission. Upon the request of any holder of Registrable
Securities, the Company shall deliver to such holder a written statement as to whether it has
complied with such requirements, a copy of the most recent annual or quarterly report of the
Company, and such other reports and documents as such holder may reasonably request in order to
avail itself of any rule or regulation of the Commission allowing it to sell any Registrable
Securities without registration.



     11.2. Successors, Assigns and Transferees. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties hereto and their respective permitted
successors, personal representatives and assigns under this Section 11.2. The Company may
not assign any of its rights or delegate any of its duties under this Agreement without the prior
written consent of the Majority Voting Holders. The provisions of this Agreement which are for the
benefit of a holder of Registrable Securities shall be for the benefit of and enforceable by any
transferee of such Registrable Securities. Any holder of Registrable Securities may, at its
election and at any time or from time to time, assign its rights under this Agreement, in whole or
in part, to any Person to whom such holder sells, assigns or otherwise transfers its shares of
Registrable Securities; provided that (i) such transferee acquires such Registrable Securities in
accordance with any then applicable transfer restrictions in respect of such Registrable
Securities, (ii) no such assignment shall be binding upon or obligate the Company to any such
transferee unless and until such transferee executes a joinder agreement agreeing to be bound by
all of the transferor’s obligations hereunder, including, without limitation, Section 5
hereof, copies of which shall have been delivered to the Company (each such transferee, a
“Permitted Transferee”) and (iii) the rights of CA and CA II to make a Demand Registration pursuant
to Section 1.1 may only be assigned as a whole and not in part (and otherwise in accordance
with the other provisions of this proviso).



22









 





     11.3. Stock Splits, etc. Each holder of Registrable Securities agrees that it will
vote to effect a stock split, reverse stock split, recapitalization or combination with respect to
any Registrable Securities in connection with any registration of any Registrable Securities
hereunder, or otherwise, if (i) the managing underwriter shall advise the Company in writing (or,
in connection with an offering that is not underwritten, if an investment banker shall advise the
Company in writing) that in its opinion such a stock split, reverse stock split, recapitalization
or combination would facilitate or increase the likelihood of success of the offering, and (ii)
such stock split, reverse stock split, recapitalization or combination does not impact the
respective ownership percentages of each such holder of Registrable Securities in the Company. The
Company shall cooperate in all respects in effecting any such stock split, reverse stock split,
recapitalization or combination.



     11.4. Amendment and Modification. This Agreement may be amended, waived, modified or
supplemented by the Company only with the prior written consent of each of CA and CA II and a
majority (by number of shares) of any other holders of Registrable Securities whose interests would
be adversely affected by such amendment, waiver modification or supplement; provided that the
interests of any existing holders of Registrable Securities shall not be adversely affected by an
amendment, waiver, modification or settlement of this Agreement that provides for or has the effect
of providing for an additional grant of incidental registration rights with a lower or the same
priority as the rights held by such existing holders of Registrable Securities, as long as any such
grant of incidental registration rights with the same priority are pari passu with those held by
such existing holders of Registrable Securities. Each holder of Registrable Securities shall be
bound by any such amendment, waiver, modification or supplement authorized in accordance with this
Section 11.4, whether or not such Registrable Securities shall have been marked to indicate
such amendment, waiver, modification or supplement. The waiver by any party hereto of a breach of
any provision of this Agreement shall not operate or be construed as a further or continuing waiver
of such breach or as a waiver of any other or subsequent breach, except as otherwise explicitly
provided for in such waiver. Except as otherwise expressly provided herein, no failure on the part
of any party to exercise, and no delay in exercising, any right, power or remedy hereunder, or
otherwise available in respect hereof at law or in equity, shall operate as a waiver thereof, nor
shall any single or partial exercise of such right, power or remedy by such party preclude any
other or further exercise thereof or the exercise of any other right, power or remedy. The
execution of a counterpart signature page to this Agreement by a Permitted Transferee pursuant to
Section 11.2 shall not require consent of any party hereto and shall not be deemed an
amendment to this Agreement.



     11.5. Governing Law; Venue and Service of Process. This Agreement and the rights and
obligations of the parties hereunder and the Persons subject hereto shall be governed by, and
construed and interpreted in accordance with, the law of the State of Delaware, without giving
effect to the choice of law principles thereof. By execution and delivery of this Agreement, each
of the parties hereto hereby irrevocably and unconditionally (i) consents to submit to the
exclusive jurisdiction of the courts of the State of New York in New York County and the United
States District Court for the Southern District of New York (collectively, the “Selected Courts”)
for any action or proceeding arising out of or relating to this Agreement and the transactions
contemplated hereby, and agrees not to commence any action or proceeding relating thereto except in
the Selected Courts, provided, that, a party may commence any action or proceeding in



23









 




a court other than a Selected Court solely for the purpose of enforcing an order or judgment
issued by one of the Selected Courts; (ii) consents to service of any process, summons, notice or
document in any action or proceeding by registered first-class mail, postage prepaid, return
receipt requested or by nationally recognized courier guaranteeing overnight delivery in accordance
with Section 11.8 hereof and agrees that such service of process shall be effective service
of process for any action or proceeding brought against it in any such court, provided, that,
nothing herein shall affect the right of any party hereto to serve process in any other manner
permitted by law; (iii) waives any objection to the laying of venue of any action or proceeding
arising out of this Agreement or the transactions contemplated hereby in the Selected Courts; and
(iv) waives and agrees not to plead or claim in any court that any such action or proceeding
brought in any such Selected Court has been brought in an inconvenient forum.




     11.6. Invalidity of Provision. The invalidity or unenforceability of any provision of
this Agreement in any jurisdiction shall not affect the validity or enforceability of the remainder
of this Agreement in that jurisdiction or the validity or enforceability of this Agreement,
including that provision, in any other jurisdiction.



     11.7. Notices. All notices, requests, demands, letters, waivers and other
communications required or permitted to be given under this Agreement shall be in writing and shall
be deemed to have been duly given if (a) delivered personally, (b) mailed, certified or registered
mail with postage prepaid, (c) sent by next-day or overnight mail or delivery or (d) sent by fax,
as follows:




	 	(i)	 	If to the Company, to it at:






10 E. Cambridge Circle, Ste. 250

Kansas City, Kansas 66103

Attention: Edmund S. Gross

Facsimile No.: 913-981-0000




with copies (which shall not constitute notice) to the Stockholders and their respective
counsel at their respective addresses set forth in clauses (iv) and (v) below.






	 	(ii)	 	If to CA, to it at:






c/o GS Capital Partners V Fund, L.P.

c/o Goldman, Sachs & Co.

85 Broad Street

New York, New York 10004


Attention: Kenneth Pontarelli

Facsimile No.: 212-357-5505




with a copy (which shall not constitute notice) to:




Fried, Frank, Harris, Shriver & Jacobson LLP

One New York Plaza



24









 






New York, New York 10004

Attention:     Robert C. Schwenkel

                     Steven Steinman

Facsimile No.: (212) 859-4000




	 	(iii)	 	If to CA II, to it at:






c/o Kelso & Company, L.P.

320 Park Avenue, 24th Floor

New York, New York 10022

Attention: General Counsel

Facsimile No.: 212-223-2379




with a copy (which shall not constitute notice) to:




Debevoise & Plimpton LLP

919 Third Avenue

New York, New York 10022

Attention: Kevin M. Schmidt

Facsimile No.: (212) 909-6836




or to such other Person or address as any party shall specify by notice in writing
to the Company. All such notices, requests, demands, letters, waivers and other
communications shall be deemed to have been received (w) if by personal delivery, at
the time delivered by hand (x) if by certified or registered mail, on the fifth
business day after the mailing thereof, (y) if by next-day or overnight mail or
delivery, on the day delivered, or (z) if by fax, on the day delivered; provided
that such delivery is confirmed.



     11.8. Headings: Execution in Counterparts. The headings and captions contained herein
are for convenience and shall not control or affect the meaning or construction of any provision
hereof. This Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original and which together shall constitute one and the same instrument.



     11.9. Injunctive Relief. Each of the parties recognizes and agrees that money damages
may be insufficient and, therefore, in the event of a breach of any provision of this Agreement,
the aggrieved party may elect to institute and prosecute proceedings in any court of competent
jurisdiction to enforce specific performance or to enjoin the continuing breach of this Agreement.
Such remedies shall, however, be cumulative and not exclusive, and shall be in addition to any
other remedy which such party may have.



     11.10. Term. This Agreement shall be effective as of the date hereof and shall
continue in effect thereafter until the earlier of (a) its termination by the written consent of
the parties hereto or their respective successors in interest and (b) the date on which no
Registrable Securities remain outstanding.



25









 





     11.11. Further Assurances. Subject to the specific terms of this Agreement, each of
the Company and the Stockholders shall make, execute, acknowledge and deliver such other
instruments and documents, and take all such other actions, as may be reasonably required in order
to effectuate the purposes of this Agreement and to consummate the transactions contemplated
hereby.



     11.12. Entire Agreement. This Agreement and any agreements entered into in connection
with this Agreement constitute the entire agreement and the understanding of the parties hereto
with respect to the matters referred to herein. This Agreement and the agreements referred to in
the preceding sentence supersede all prior agreements and understandings between the parties with
respect to such matters.



     11.13.
No Third Party Beneficiaries. This Agreement is not intended
to, and does not, confer upon any Person, except for the parties
hereto, any rights or remedies hereunder.



[Signature page follows]




26









 





          IN WITNESS WHEREOF this Agreement has been signed by each of the parties hereto, and shall be
effective as of the date first above written.




	 	 	 	 	 
	 	CVR ENERGY, INC. 

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	COFFEYVILLE ACQUISITION LLC 

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	COFFEYVILLE ACQUISITION II LLC 

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[Signature page to Registration Rights Agreement]