EXHIBIT 10.20
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REGISTRATION RIGHTS AGREEMENT
among
CCA HOLDINGS CORP.
and
▇▇▇▇▇ INVESTMENT ASSOCIATES V, L.P.
and
▇▇▇▇▇ EQUITY PARTNERS V, L.P.
and
CHARTER COMMUNICATIONS, INC.
Dated as of January 18, 1995
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TABLE OF CONTENTS
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Page
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1. Registrations Upon Request.................. 1
1.1. Requests.............................. 1
1.2. Registration Statement Form........... 3
1.3. Expenses.............................. 3
1.4. Priority in Demand Registrations...... 3
1.5. No Company Initiated Registration..... 3
2. Incidental Registrations.................... 4
3. Registration Procedures..................... 5
4. Underwritten Offerings...................... 10
4.1. Underwriting Agreement................ 10
4.2. Selection of Underwriters............. 11
5. Holdback Agreements......................... 11
6. Preparation; Reasonable Investigation....... 12
7. No Grant of Future Registration Rights...... 12
8. ▇▇▇▇▇ Designees and Permitted Transferees... 12
9. Indemnification............................. 13
9.1. Indemnification by the Company........ 13
9.2. Indemnification by the Sellers........ 13
9.3. Notices of Claims, etc................ 14
9.4. Other Indemnification................. 15
9.5. Indemnification Payments.............. 15
9.6. Other Remedies........................ 15
10. Definitions................................. 16
11. Miscellaneous............................... 18
11.1. Rule 144 etc......................... 18
11.2. Successors, Assigns and Transferees.. 19
11.3. Stock Splits, etc.................... 19
11.4. Amendment and Modification........... 19
11.5. Governing Law........................ 19
11.6. Invalidity of Provision.............. 20
11.7. Notices.............................. 20
11.8. Headings; Execution in Counterparts.. 21
11.9. Injunctive Relief.................... 21
11.10 Entire Agreement..................... 21
11.11. Term................................. 22
REGISTRATION RIGHTS AGREEMENT
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REGISTRATION RIGHTS AGREEMENT, dated as of January 18, 1995, among CCA
Holdings Corp., a Delaware corporation (the "Company"), ▇▇▇▇▇ Investment
Associates V, L.P., a Delaware limited partnership ("KIA V"), ▇▇▇▇▇ Equity
Partners V, L.P., a Delaware limited partnership ("KEP V", together with KIA V,
"▇▇▇▇▇"), and Charter Communications, Inc., a Delaware corporation ("Charter").
Capitalized terms used herein without definition are defined in Section 10.
1. Registrations Upon Request.
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1.1. Requests. At any time after the first anniversary hereof, the
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Majority Stockholder shall have the right to make up to four requests and at any
time after an IPO, Charter shall have the right to make up to two requests that
the Company effect the registration under the Securities Act of any of the
Registrable Securities of the Majority Stockholder or Charter, as the case may
be, each such request to specify the intended method or methods of disposition
thereof, provided, that the Company shall not be required to effect a
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registration pursuant to this Section 1.1 upon the request of any Requesting
Stockholder until a period of 180 days shall have elapsed from the effective
date of the most recent registration previously effected pursuant to this
Section 1.1 upon the request of such Requesting Stockholder and, provided,
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further, that (a) if the Requesting Stockholder determines in its good faith
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judgment to withdraw the proposed registration of any Registrable Securities
requested to be registered pursuant to this Section 1.1 due to marketing or
regulatory reasons or (b) the registration statement relating to any such
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request is not declared effective within 90 days of the date such registration
statement is first filed with the Commission or (c) if, within 180 days after
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the registration relating to any such request 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 for any
reason and the Company fails to have such stop order, injunction or other order
or requirement removed, withdrawn or resolved to such Requesting Stockholder's
reasonable satisfaction within 30 days or (d) the conditions to closing
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specified in the purchase agreement or indemnity agreement entered into in
connection with the registration relating to any such request are not satisfied
(other than conditions to be satisfied by such Requesting Stockholder), then
such request, shall not
be counted for purposes of such Requesting Shareholder's request limitations set
forth above. Upon any request by a Requesting Stockholder pursuant to this
Section 1.1, the Company will promptly, but in any event within 15 days, give
written notice of such request to the other Requesting Stockholder and thereupon
the Company will use its best efforts to effect the registration under the
Securities Act of:
(i) the Registrable Securities which the Company has been so
requested to register by the Requesting Stockholder, and
(ii) all other Registrable Securities which the Company has been
requested to register by the other Requesting Stockholder by written
request given to the Company within 20 days after the giving of such
written notice by the Company,
all to the extent required to permit the disposition (in accordance with the
Requesting Stockholder's intended method or methods of disposition) of the
Registrable Securities so to be registered. Notwithstanding the foregoing, but
subject to the rights of holders of Registrable Securities under Section 2, (a)
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if the Board determines in its good faith judgment, after consultation with a
firm of nationally recognized underwriters, that there will be an adverse effect
on a then contemplated initial public offering of the Company's equity
securities, the Company may defer the filing (but not the preparation) of the
registration statement which is required to effect any registration pursuant to
this Section 1.1, during the period starting with the thirtieth day immediately
preceding the date of anticipated filing by the Company of, and ending on a date
60 days following the effective date of, the registration statement relating to
such initial public offering, provided that at all times the Company is in good
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faith using all reasonable efforts to cause such registration statement to
become effective and provided, further, that such period shall end on such
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earlier date as may be permitted by the underwriters of such underwritten public
offering and (b) if the Company shall at any time furnish to the Requesting
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Stockholder a certificate signed by the President of the Company stating that
the Company has pending or in process a material transaction, the disclosure of
which would, in the good faith judgment of the Board, materially and adversely
affect the Company, the Company may defer the filing (but not the preparation)
of a registration statement for up to 60 days (but the Company shall use its
best efforts to
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resolve the transaction and file the registration statement as soon as
possible).
1.2. Registration Statement Form. Each registration requested
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pursuant to Section 1.1 shall be effected by the filing of a registration
statement on a form agreed to by the Requesting Stockholder.
1.3. Expenses. The Company will pay all Registration Expenses in
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connection with any registrations requested under Section 1.1; provided that any
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seller thereunder shall pay all Registration Expenses to the extent required to
be paid by such seller under applicable law.
1.4. Priority in Demand Registrations. If a registration pursuant to
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this Section 1 involves an underwritten offering, and the managing underwriter
(or, in the case of an offering which is not underwritten, an investment banker)
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, 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, first, the Registrable Securities of the
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Requesting Stockholder requested to be included in such registration and the
Registrable Securities of the other Requesting Stockholder requested to be
included in such registration, pro rata, among such holders, on the basis of the
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number of Registrable Securities requested to be included by such holders, and
second, the securities, if any, being sold by the Company. Notwithstanding the
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foregoing, Charter (or any successor manager of the Company and its
subsidiaries) will not be entitled to participate in any such registration
requested by the Majority Stockholder if the managing underwriter (or, in the
case of an offering that is not underwritten, an investment banker) shall
determine in good faith that the participation of management would adversely
affect the marketability of the securities being sold by the Majority
Stockholder in such registration.
1.5. No Company Initiated Registration. After receipt of notice of a
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requested registration pursuant to Section 1.1, the Company shall not initiate a
registration of any of its securities for its own account until 90 days after
such registration has been effected or such registration has been terminated.
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2. Incidental Registrations. If the Company at any time proposes to
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register any of its equity securities under the Securities Act (other than
pursuant to Section 1 or a registration on Form S-4 or S-8 or any successor
form), and the registration form to be used may be used for the registration of
Registrable Securities, it will give prompt written notice to all holders of
Registrable Securities of its intention to do so. Upon the written request of
any such holder made within 30 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 will use its best efforts to effect the registration under
the Securities Act of all such Registrable Securities in accordance with such
intended method or methods of disposition, provided that:
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(a) if such registration shall be in connection with an initial
public offering by the Company, the Company shall not include any
Registrable Securities in such proposed registration if the Board shall
have determined, after consultation with the managing underwriter for such
offering, that it is not in the best interests of the Company to include
any Registrable Securities in such registration;
(b) if, at any time after giving written notice of its intention to
register any 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 Majority Stockholder to request that a registration be
effected under Section 1; and
(c) if a registration pursuant to this Section 2 involves an
underwritten offering, and the managing underwriter (or, in the case of an
offering that is not underwritten, an investment banker) shall advise the
Company in writing (with a copy to each holder of Registrable Securities
requesting registration thereof) that, in its opinion, the number of
securities requested and otherwise proposed to be included in such
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registration exceeds the number which can be sold in such offering, 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, first, the
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securities if any, being sold by the Company, and second, the Registrable
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Securities of each holder requesting registration thereof, pro rata, among
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such holders, on the basis of the number of Registrable Securities
requested to be included by such holders. Notwithstanding the foregoing,
Charter will not be entitled to participate in any such registration if the
managing underwriter (or, in the case of an offering that is not
underwritten, an investment banker) shall determine in good faith that the
participation of management would adversely affect the marketability of the
securities being sold by the Company in such registration.
The Company will 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
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Expenses to the extent required to be paid by such seller under applicable law.
No registration effected under this Section 2 shall relieve the Company from its
obligation to effect registrations under Section 1.
3. Registration Procedures. If and whenever the Company is required
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to use its best efforts to effect the registration of any Registrable Securities
under the Securities Act as provided in Sections 1 and 2, the Company will
promptly:
(a) prepare, and within 60 days thereafter file with the Commission,
a registration statement with respect to such Registrable Securities, make
all required filings with the NASD and use best efforts to cause such
registration statement to become effective;
(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
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event for a period of more than six months after such registration
statement becomes effective;
(c) furnish to counsel selected by the Majority Stockholder and each
seller of Registrable Securities copies of all documents proposed to be
filed with the Commission in connection with such registration, which
documents will be subject to the review of such counsel and each seller and
the Company shall not file any amendment and post-effective amendments or
supplement to such registration statement or the prospectus used in
connection therewith which any such seller shall have reasonably objected
in writing on the grounds that such amendment or supplement 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, 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;
(e) use its best efforts to register or qualify such Registrable
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
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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
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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 or authorities 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 each seller of Registrable Securities a signed
counterpart, addressed to the sellers, of
(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
Majority Stockholder may reasonably request;
(h) 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
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material fact or omits to state any material fact required to be stated
therein or necessary to 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 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 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 months, beginning with the first month after the effective date of
the registration statement;
(j) notify each seller of any Registrable Securities covered by such
registration statement (i) when the prospectus or any prospectus
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supplement or post-effective amendment has been filed, and, with respect to
such registration statement or any post-effective amendment, when the same
has become effective, (ii) of any request by the Commission for amendments
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or supplements to such registration statement or to amend or to supplement
such prospectus or for additional information, (iii) of the issuance by the
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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
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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
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on any securities exchange on
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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)
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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
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provide a transfer agent and registrar for such Registrable Securities not
later than the effective date of such registration statement;
(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; and
(n) use its reasonable best efforts to take all other steps necessary
to effect the registration of such Registrable Securities contemplated
hereby.
The Company may require each seller of any Registrable Securities as
to which any registration is being effected to furnish to the Company such
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 order to make the information previously
furnished to the Company by such holder 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 seller of any Registrable Securities covered thereby by name, or
otherwise identifies such seller as the holder of any Registrable Securities,
without the consent of such
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seller, such consent not to be unreasonably withheld, unless such disclosure is
required by law.
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(b) 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).
4. Underwritten Offerings.
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4.1. Underwriting Agreement. If requested by the underwriters for
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any underwritten offering by holders of Registrable Securities pursuant to a
registration requested under Section 1 or Section 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 Majority
Stockholder and to the underwriters and to contain such representations and
warranties by 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 9.
The holders of Registrable Securities to be distributed by such underwriters
shall be parties to such underwriting agreement and may, at their 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 holders 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
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the obligations of such holders of Registrable Securities. No underwriting
agreement (or other agreement in connection with such offering) 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, 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 in Section 9.2.
4.2. Selection of Underwriters. If the Company at any time proposes
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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 only with the approval of the Majority
Stockholder, such approval not to be unreasonably withheld, provided that
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whenever a registration requested pursuant to Section 1 is for an underwritten
offering, the Majority Stockholder will have the right to select the managing
underwriter (which shall be of nationally recognized standing) to administer the
offering, but only with the approval of the Company, such approval not to be
unreasonably withheld.
5. Holdback Agreements. (a) If and whenever the Company proposes to
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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 or 2, each holder of Registrable
Securities agrees by acquisition of such Registrable Securities not to effect
any public sale or distribution, including any sale pursuant to Rule 144 under
the Securities Act, of any Registrable Securities within seven days prior to and
90 days (unless advised in writing by the managing underwriter that a longer
period, not to exceed 180 days, is required) after the effective date of the
registration statement relating to such registration, except as part of such
registration.
(b) The Company agrees 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 within seven days prior to and 90 days
(unless advised in writing by the managing underwriter that a longer period, not
to exceed 180 days, is required) after
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the effective date of such registration statement (except as part of such
registration or pursuant to a registration on Form S-4 or S-8 or any successor
form). In addition, the Company shall cause each holder 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 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 a similar agreement to such effect with the Company.
6. Preparation; Reasonable Investigation. In connection with the
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preparation and filing of each regis tration statement registering Registrable
Securities under the Securities Act, the Company will give the holders of such
Registrable Securities so to be registered and 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 the financial and other records, pertinent
corporate documents and properties of the Company and its subsidiaries and such
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 as shall be reasonably requested by such holders in connection with
such registration statement.
7. No Grant of Future Registration Rights. The Company shall not
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grant any other demand or incidental registration rights to any other Person
without the prior written consent of the Majority Stockholder.
8. ▇▇▇▇▇ Designees and Permitted Transferees. The Majority
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Stockholder shall have the right to have included in any registration pursuant
to Section 1 or Section 2 any shares of Common Stock owned by any of the ▇▇▇▇▇
Designees as though such shares were Registrable Securities owned by the
Majority Stockholder. Charter shall have the right to have included in any
registration pursuant to Section 1 or Section 2 any shares of Common Stock owned
by any permitted transferees of Charter under the Stockholders' Agreement as
those such shares were Registrable Securities owned by Charter.
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9. Indemnification.
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9.1. Indemnification by the Company. In the event of any
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registration of any Registrable Securities pursuant to this Agreement, the
Company will indemnify and hold harmless (a) the seller of such Registrable
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Securities, (b) the directors, officers, partners, employees, agents and
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Affiliates of such seller, (c) each Person who participates as an underwriter in
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the offering or sale of such securities and (d) each person, if any, who
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controls (with the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act) any such seller, partner or underwriter against any and all
losses, claims, damages or liabilities (or actions or proceedings in respect
thereof), joint or several, directly or indirectly based upon or arising out of
(i) any untrue statement or alleged untrue statement of a fact contained in any
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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 (ii) any
--
omission or alleged omission to state a fact required to be stated therein or
necessary to make the statements therein not misleading; and the Company will
reimburse each such indemnified party for any legal or any other expenses
reasonably incurred by them in connection with investigating, preparing,
pursuing or defending any such loss, claim, damage, liability, action or
proceeding, except insofar as any such loss, claim, damage, liability, action,
proceeding or expense arises out of or is based upon an untrue statement or
omission made in such registration statement, any such preliminary prospectus,
final prospectus, summary prospectus, amendment or supplement in reliance upon
and in conformity with written information furnished to the Company by such
seller expressly for use in the preparation thereof. 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. The indemnity agreement contained in this Section 9.1 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 the Company (which consent shall not be unreasonably withheld).
9.2. Indemnification by the Sellers. The Company may require, as a
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condition to including any Registrable Securities in any registration statement
filed pursuant to
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Section 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 9.1, the Company, its directors and
officers 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 or alleged statement in or omission or alleged omission
from such registration statement, any preliminary prospectus, final prospectus
or summary prospectus contained therein, or any amendment or supplement
thereto, 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 by such seller expressly for use in the preparation of such
registration statement, preliminary prospectus, final prospectus, summary
prospectus, amendment or supplement. 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 9.2 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). The indemnity provided by each seller of Registrable
Securities under this Section 9.2 shall be limited in amount to the net amount
of proceeds actually received by such seller from the sale of Registrable
Securities pursuant to such registration statement.
9.3. 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 paragraphs of this Section 9,
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 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 9, 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 will be entitled to participate therein and to assume the
defense thereof,
-14-
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 and the indemnifying party reasonably determine, based upon
advice of their respective 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 which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such indemnified party
of a release from all liability in respect of such claim or litigation.
9.4. Other Indemnification. Indemnification similar to that
---------------------
specified in the preceding paragraphs of this Section 9 (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.
9.5. Indemnification Payments. Any indemnification required to be
------------------------
made by an indemnifying party pursuant to this Section 9 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, claim, damage, liability or expense incurred
by such indemnified party.
9.6. Other Remedies. If for any reason the foregoing indemnity is
--------------
unavailable, or is insufficient to hold
-15-
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, claims, damages,
liabilities, actions, proceedings or expenses in such proportion as is
appropriate to reflect the relative benefits to and faults of the indemnifying
party on the one hand and the indemnified party on the other in connection with
the offering of Registrable Securities (taking into account the portion of the
proceeds of the offering realized by each such party) and the statements or
omissions or alleged statements or omissions which resulted in such loss, 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.
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. No party shall be
liable for contribution under this Section 9.6 except to the extent and under
such circumstances as such party would have been liable to indemnify under this
Section 9 if such indemnification were enforceable under applicable law.
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 Company's Class A Common Stock, par value $.01
------------
per share.
-16-
"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": as defined in the Stockholders' Agreement.
---
"▇▇▇▇▇ Designees": Any of the following individuals or entities:
---------------
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Trust, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and any of their permitted
assigns under the Stockholders' Agreement.
"Majority Stockholder": Any holder or holders of at least 50% of the
--------------------
Registrable Securities then outstanding.
"NASD": National Association of Securities Dealers, Inc.
----
"NASDAQ": The Nasdaq National Market.
------
"Person": An individual, corporation, partnership, joint venture,
------
association, trust or 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 (within the meaning of Section 13d-3 of the Exchange Act) by ▇▇▇▇▇,
Charter or any other Person made a party hereto pursuant to Section 11.2. 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) they shall have been sold to the public pursuant to Rule 144
--
under the Securities Act, (iii) they shall have been otherwise transferred and
---
subsequent disposition of them shall not require registration or qualification
of them under the Securities Act of or any similar state law then in force or
(iv) they shall have ceased to be outstanding.
---
"Registration Expenses": All expenses incident to the Company's
---------------------
performance of or compliance with Section 1 and Section 2, including, without
limitation, (i) registration, filing and NASD fees, (ii) fees and expenses of
- --
complying with securities or blue sky laws, (iii) fees and
---
-17-
expenses associated with listing securities on an exchange or NASDAQ, (iv) word
--
processing, duplicating and printing expenses, (v) messenger and delivery
-
expenses, (vi) fees and disbursements of counsel for the Company and of its
--
independent public accountants, including the expenses of any special audits or
"cold comfort" letters, (vii) reasonable fees and disbursements of any one
---
counsel retained by the sellers of Registrable Securities, which counsel shall
be designated by the Majority Stockholder, and (viii) 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.
"Requesting Stockholder": shall mean any stockholder which is
----------------------
exercising its rights to request that the Company effect a registration pursuant
to Section 1.1.
"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.
"Stockholders' Agreement": The Stockholders' Agreement, dated as of
-----------------------
the date hereof, as the same shall be amended from time to time, among the
Company, KIA V, KEP V and Charter.
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 will file the reports
required to be filed by it under the Securities Act and the Exchange Act and the
rules and regulations adopted by the Commission thereunder, and will take such
further action as any holder of Registrable Securities may reasonably request,
all to the extent required from time to time to enable such holder to sell
Registrable Securities without registration under the Securities Act within the
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 the commission. Upon the request of any holder of
Registrable Securities, the Company will deliver to such holder a written
statement as to whether it has complied with such requirements.
-18-
11.2. Successors, Assigns and Transferees. This Agreement shall be
-----------------------------------
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns. In addition, and provided that an
express assignment shall have been made, and a copy of which shall have been
delivered to the Company, 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 subsequent holder of any Registrable Securities, provided
--------
that Charter may only assign its rights hereunder to one or more of its
Affiliates which have acquired Registrable Securities in accordance with the
terms of the Stockholders' Agreement or any third party transferee which has
acquired Charter's Registrable Securities in accordance with Section 2.2 of the
Stockholders' Agreement and which the Majority Stockholder has approved, such
approval not to be unreasonably withheld. Notwithstanding anything herein to
the contrary, Charter shall exercise all rights hereunder on behalf of any such
Affiliates and the Company and ▇▇▇▇▇ shall be entitled to deal exclusively with
Charter and rely on the consent, waiver or any other action by Charter as the
consent, waiver or other action, as the case may be, of any such Affiliates.
11.3. Stock Splits, etc. Each holder of Registrable Securities
-----------------
agrees that it will vote to effect a stock split or combination with respect to
any Registrable Securities in connection with any registration of such
Registrable Securities hereunder, or otherwise, if 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 or combination would facilitate or
increase the likelihood of success of the offering.
11.4. Amendment and Modification. This Agreement may be amended,
--------------------------
modified or supplemented by the Company with the written consent of the Majority
Stockholder and a majority (by number of shares) of any other holder of
Registrable Securities whose interests would be adversely affected by such
amendment.
11.5. Governing Law. 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 princples thereof.
-19-
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 telecopy or
-
telegram, as follows:
(i) If to the Company, to it at:
CCA Holdings Corp.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
with a copy to:
▇▇▇▇▇ & Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇, Esq.
(ii) If to Charter, to it at:
Charter Communications, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
with a copy to:
Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
-20-
(iii) If to ▇▇▇▇▇, to it at:
KIA Investment Associates V, ▇.▇.
▇▇▇▇▇ Equity Partners V, L.P.
c/▇ ▇▇▇▇▇ & Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇, Esq.
(iv) If to any other holder of Registrable Securities, to the address of
such holder as set forth in the books and records of the Company
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 on the day after such delivery, (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
-
telecopy or telegram, on the next day following the day on which such telecopy
or telegram was sent, provided that a copy is also sent by certified or
registered mail.
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. Entire Agreement. This Agreement, together with the
----------------
Stockholders' Agreement, is intended by the parties hereto as a final expression
of their agreement and intended to be a complete and exclusive statement of
their agreement and understanding in respect of the subject
-21-
matter contained herein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
11.11. 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 consent of the parties hereto or their respective successors
in interest and (b) the date on which no Registrable Securities remain
-
outstanding.
IN WITNESS WHEREOF, this Agreement has been signed by each of the
parties hereto, effective as of the date first written above.
CCA HOLDINGS CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Executive Vice President
▇▇▇▇▇ INVESTMENT ASSOCIATES V, L.P.
By: ▇▇▇▇▇ Partners V, L.P.
General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
General Partner
▇▇▇▇▇ EQUITY PARTNERS V, L.P.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
General Partner
CHARTER COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Executive Vice President
-22-