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EXHIBIT 4.3C
CLASSIC COMMUNICATIONS, INC.
(formerly Classic Telecommunications, Corp.
THIS AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this
"Agreement"), dated as of October 31, 1995, by and among CLASSIC COMMUNICATIONS,
INC. (formerly Classic Telecommunications Corp.), a Delaware corporation (the
"COMPANY"), J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇"), ▇▇▇▇▇▇ VENTURES, L.P., a Delaware
limited partnership ("AUSTIN"), AUSTIN VENTURES III-A, L.P., a Delaware limited
partnership ("AUSTIN III-A"), AUSTIN VENTURE III-B, L.P., a Delaware limited
partnership ("AUSTIN III-B"), Austin , Austin III-A and Austin III-B are
collectively referred to as "AUSTIN VENTURES"), BT CAPITAL PARTNERS, INC., a
Delaware corporation ("BT CAPITAL"), TEXAS GROWTH FUND, a trust fund created by
the Constitution of the State of Texas ("GROWTH FUND"), NATIONSBANC CAPITAL
CORP., a Texas corporation ("NATIONSBANC"), and THE CHASE MANHATTAN BANK, N.A.
("CHASE"). Austin, Austin III-A, Austin III-B, BT Capital, Growth Fund,
NationsBanc and Chase are collectively referred to as the "INVESTORS" and
individually as an "INVESTOR".
WHEREAS, the Investors are the owners of all of the issued and
outstanding capital stock of the Company and all warrants to acquire capital
stock of the Company: and
'WHEREAS. the Company, Austin Ventures. BT Capital. Growth Fund, NationsBanc and
▇▇▇▇▇▇▇ are parties to that certain Registration Rights Agreement dated as of
October 15. 1995 the "Prior Agreement"); and
WHEREAS, the Company wishes to induce the Investors to recapitalize the
Company on and as of the date hereof by granting certain registration rights to
the Investors.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the parties hereto agree as follows:
1. Definitions. As used herein the following defined terms shall have
the following respective meanings:
(a) The term "CAPITAL STOCK" means the Company's Voting Common Stock.
Nonvoting Common Stock and any other class of common stock created by the
Company in the future.
(b) The term "EXCHANGE ACT" means the Securities Exchange Act of 1934,
as amended.
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(c) The term "EXCHANGE ACT REGISTRATION STATEMENT" means a registration
statement filed with the SEC pursuant to the Exchange Act.
(d) The "HOLDERS" means any holder or holders of shares of Capital Stock
issued to the Investors.
(e) The term "INDEMNIFIED PARTY" has the meaning set forth in
subparagraph 6(c).
(r) The term "INDEMNIFYING PARTY" as the meaning set forth in
subparagraph 6(c).
(g) The term "NONVOTING COMMON STOCK" means the Company's Nonvoting
Common Stock, par value $0.01 per share.
(h) The terms "REGISTER," "REGISTERED" and "REGISTRATION" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act (as defined below) or the Exchange Act and
the declaration or ordering of the effectiveness of such registration statement.
(i) The term "REGISTRABLE SECURITIES" means all shares of Capital Stock
of the company which are Shares.
(j) The term "SEC" means the Securities and Exchange Commission.
(k) The term "SECURITIES ACT" means the Securities Act of 1933, as
amended.
(1) The term "SHARES" means all shares of Capital Stock of the Company
held by the Investors or which the Holders shall have acquired by or through the
Investors (including such shares as may represent stock dividends or a stock
split or those acquired pursuant to any conversion right or preemptive right of
purchase).
(m) The term "VOTING COMMON STOCK" means the Company's Voting Common
Stock. par value $0.01 per share.
2. Company Registration.
(a) If at any time or from time to time the Company shall
determine to register any of its securities, either for its own account
or the account of a security holder or
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holders, in a registration statement covering the sale of Capital Stock
to the general public pursuant to an underwritten public offering
(except with respect to any registration filed on Form ▇-▇, ▇▇▇▇ ▇-▇ or
any successor forms thereto), the Company will: (i) give to each Holder
written notice thereof at least ninety (90) days before the initial
filing of such registration if such registration relates to the
Company's initial public offering of Capital Stock, or forty-five (45)
days before filing if such registration is a subsequent registration;
provided, however, in the case of a Registration Statement for Form S-3,
the company shall be required to give each Holder written notice of the
proposed filing thereof promptly after a decision to make such filing
has been made and in no event less than ten (10) business days prior to
filing: and (ii) use its best efforts to include in such registration
(and any related qualification under blue sky laws) and in any
underwriting involved therein, all the Registrable Securities specified
in a written request or requests made within thirty days after receipt
of such written notice from the Company, or, in the case of a
Registration Statement on Form S-3, within seven (7) business days after
receipt of such written notice, by any Holder or Holders, except as set
forth in subparagraph 2(b) below. The notice referred to in this
subparagraph shall include a list of the jurisdictions in which the
Company intends to attempt to qualify such securities under the
applicable blue sky or other state securities laws.
(b) The right of any holder to registration pursuant to this
Paragraph 2 shall be conditioned upon such Holder's participation in the
underwriting to the extent provided herein. All Holders proposing to
distribute their securities through such underwriting shall (together
with the Company) enter into an underwriting agreement in customary form
with the underwriter or underwriters selected for such underwriting by
the Company, and may, at their option, require that any or all of the
representations and warranties by and the covenants and other agreements
on the part of, the Company to and for the benefit of such underwriter
shall also be made to and for the benefit of such Holders. Such Holders
shall not be required to make any representations or warranties to or
agreements with the company or the underwriter other than those relating
to such Holders., their Shares and their intended methods of
distribution and information about such Holders provided by such Holders
for use in the registration statement. If requested by the underwriter,
the Holders will agree, for themselves and their affiliates, not to sell
or offer to sell any shares of their Capital Stock for a reasonable
period of time (not to exceed one hundred eighty (180) days) after the
effective date of the registration statement. Notwithstanding any other
provision of this Paragraph 2, if the underwriter determines that
marketing factors require a limitation of the numbers of shares to be
underwritten, the underwriter may limit the number of Registrable
Securities to be included in the registration and underwriting;
provided, however, that with respect to such registration, the
underwriter may not limit the amount of Registrable Securities included
in such registration and underwriting to less than an amount equal to
the product of (i) the total number of shares of Capital Stock held
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by all shareholders of the company (including the Holders) that are
proposed to be included such registration and underwriting and (ii) a
fraction, the numerator of which is the total number of Registrable
Securities held by all selling Holders and the denominator of which is
the total number of shares held by all selling shareholders (including
the selling Holders). The Company shall so advise all Holders of
Registrable Securities which would otherwise be registered and
underwritten pursuant hereto, and the number of shares of Registrable
Securities that may be included in the registration and underwriting
shall be allocated among all Holders thereof in proportion, as nearly as
practicable, to the respective amounts of Registrable Securities held by
such Holders at the time of filing the registration statement. If any
selling shareholder withdraws from the registration and underwriting the
Company will include in any such registration a proportional number of
additional shares of Registrable Securities which were requested to be
included by a Holder and which were excluded pursuant to the
above-described underwriter limitation up to the maximum set by such
underwriter.
3. Requested Registration
(a) If at any time following the consummation of an initial public
offering of Capital Stock, the Company receives from any one (1) of (x)
Austin Ventures, (y) BT Capital, or (z) NationsBanc, a written request
that the Company effect a registration under the Securities Act with
respect to Registrable Securities, the Company will, as expeditiously as
possible, notify in writing all the Holders of such request and use its
diligent best efforts to effect all such registrations (Including,
without limitation, the execution of an undertaking to file
post-effective amendments and appropriate qualifications and approvals
under the laws and regulations applicable to the Company of any
applicable governmental agencies and authorities, including the
applicable blue sky or other state securities laws) as may be so
requested and as would permit or facilitate the sale and distribution of
all or such portion of the Registrable Securities as are specified in
such request, together with any Registrable Securities held by other
Holders who may desire to participate in such registration; provided,
however, that a Holder's request may not be made within three months
following the effectiveness of any registered public offering of Capital
Stock or within one hundred twenty (120) days following the Company's
receipt of any effective request for registration pursuant to this
subparagraph 3(a); and provided, further, that before filing any such
registration statement or any amendments or supplements thereto, the
Company will (x) furnish to the Holders of Registrable Securities which
are to be included in such registration copies of all such documents
proposed to be filed, which documents will be subject to the review of
such Holders and their counsel, and (y) give the Holders of Registrable
Securities to be included in such registration statement and their
representatives the opportunity to conduct a reasonable investigation of
the records and business of the Company and to participate in the
preparation of any such
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registration statement or any amendments or supplements thereto; and
provided, further, that after the Company has effect one such
registration pursuant to this subparagraph 3(a) at the request of the
Holders and such registration has been declared or ordered effective,
then at the request of any one (1) of (x) Austin Ventures, (y) BT
Capital, or (z) NationsBanc (other than the Investor that requested the
first registration pursuant to this subparagraph 3(a)), the Company
shall effect one (1) additional registration upon the same terms and
conditions as set forth in this subparagraph 3(a) for the initial
registration. With respect to any registration requested pursuant to
this paragraph 3, the company may include in such registration any other
shares of Capital Stock, subject to the restrictions set forth in
subparagraph 3(c) only upon the written consent of the Holders of a
majority of the shares of Registrable Securities being registered in the
registration.
(b) Subject to subparagraph 3(a) above and the other terms and
conditions contained herein, the Company shall file a registration
statement covering the Registrable Securities so requested to be
registered as soon as practicable, but in any event within ninety (90)
days after (i) receipt of the request or requests of the Holders or (ii)
the date on which the Holders agree, pursuant to subparagraph 3(c), on
the terms and conditions of an underwriting, if applicable, as evidenced
by its acceptance of a letter of intent describing such terms and
conditions, whichever is later; provided, however, that if the Company
shall furnish to the Holders a certificate signed by the President of
the Company stating that in the good faith judgment of the Board of
Directors it would be seriously detrimental to the company and its
stockholders for such registration statement to be filed at the date
filing would be required hereunder and it is therefore essential to
defer the filing of such registration statement, the Company shall have
an additional period of not more than sixty(60) days within which to
file such registration statement (which additional period may be
extended to ninety (90) days if such deferral will materially reduce the
expenses of such registration due to the elimination of the need for any
special audits to be performed in connection with such registration.)
(c) If the Holders intend to distribute the Registrable Securities
covered by their request by means of an underwriting, they shall so
advise the Company as a part of their request made pursuant to
subparagraph 3(a). In such event. if so requested in writing by the
Company, the Holders shall negotiate in good faith with a nationally
recognized underwriter, or underwriters, or major regional underwriter
or underwriters acceptable to the Holders, selected by the Company and
reasonably satisfactory to the Holders with regard to the underwriting
of such requested registration; provided, however, that if the Holders
of the majority of shares to be registered have not agreed with such
underwriter(s), in their discretion. as to the terms and conditions of
such underwriting within thirty (30) days following commencement of such
negotiations, the Holders may select an underwriter of their choice. The
right of the Holders to registration pursuant to
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this Paragraph 3 shall be conditioned upon the Holder's participation in
such underwriting to the extent provided herein. The Company shall
(together with all Holders proposing to distribute their securities
through such underwriting) enter into an underwriting agreement in
customary form with the underwriter or underwriters selected pursuant to
this Paragraph 3. Notwithstanding any other provision of this Paragraph
3, if the underwriter advises the Company in writing with a copy to the
Holders that marketing factors require a limitation of the number of
shares to be underwritten. the Company shall so advise all Holders. and
the Company will include in such registration up to the maximum allowed
by such underwriter (x) first. as many shares as possible of Registrable
Securities requested to be included by the applicable Holders. which
shall be allocated among all Holders thereof in proportion. as nearly as
practicable, to the respective amounts of Registrable Securities
entitled to inclusion in such registration held by such Holders at the
time of filing the registration statement, and (y) second, shares to be
sold by the Company or other holders of Capital Stock, if any. If any
Holder of Registrable Securities disapproves of the terms of the
underwriting, he may elect to withdraw therefrom by written notice to
the Company. the underwriter and the other Holders. In the event of any
such withdrawal, the Company will include in any such registration in
lieu thereof any additional shares of Registrable Securities which were
requested to be included by a Holder and which were excluded pursuant to
the above-described underwriter limitation up to the maximum set by such
underwriter.
(d) The Company will use its best efforts to do any and all other
acts which may be necessary or advisable to enable each selling Holder
to dispose of the Registrable Securities being sold including, without
limitation, furnishing to each such seller (x) the number of copies of
the registration statement and of the exhibits and the prospectus
contained therein reasonably requested by each such Holders, and (y)
signed counterparts, addressed to each such Holders, of an opinion of
the Company's counsel and a "cold comfort" letter of the Company's
independent certified public accountants with respect to the matters
customarily covered in such documents delivered to underwriters in
underwritten public offerings.
4. Expenses of Registration. All expenses incurred in connection with
any registration or qualification pursuant to this Agreement, including, without
limitation, all registration, filing and qualification fees, printing expenses,
fees and disbursements of counsel for the Company, and expenses and fees of any
special audits incidental to or required by such registration, shall be borne by
the Company; provided, however, that the Company shall not be required to pay
fees of legal counsel of the Holders, or underwriters' discounts or commissions
relating to registrable Securities (such underwriters' fees, discounts or
commissions to be borne by the Holders, on a pro rata basis, based on the number
of shares of Registrable Securities sold by each of them).
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5. Registration Procedures. In the case of each registration effected
by the Company pursuant to this Agreement, the Company will keep each Holder
participating therein advised in writing as to the initiation of such
registration (any state qualification) and as to the completion thereof.)
6. Indemnification.
(a) The Company will indemnify each Holder of Registrable
Securities. each of the Holder's officers directors. partners and
employees, and each person controlling such Holder. with respect to such
registration or qualification effected pursuant to this Agreement and in
which Registrable Securities of the Holders are included, against all
claims, losses, damages, and liabilities (or actions in respect thereto)
arising out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in any prospectus, registration
statement or other document incident to any such registration or
qualification. or based on any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, or any violation by the
Company of any rule or regulation promulgated pursuant to any Federal,
state or common law rule or regulation including, without limitations
the Securities Act, applicable to the Company and relating to action or
inaction required of the Company in connection with any such
registration. qualification or compliance and will reimburse each such
Holder, each of such Holder's officers. directors, partners, and
employees, and each person controlling such Holder, for any legal and
any other reasonable expenses incurred in connection with investigating
or defending any such claim. loss. damage, liability or action.
including reasonable attorneys fees and expenses; provided, however,
that the Company will not be liable in any such case to the extent that
any such claim, loss, damage or liability arises out of or is based on
any untrue statement or omission based upon and in conformity with
written information furnished to the company by such Holder in a signed
document. Such indemnity shall be effective notwithstanding any
investigation made by or on behalf of any Holder or any such officer,
director, partner, employee or controller person and shall survive any
transfer by the same of the Registrable Securities.
(b) Each Holder will, if Registrable Securities held by or issuable
to such Holder are included in the securities as to which such
registration or qualification is being effected, indemnify the Company,
each of its directors, officers and employees, each person who controls
the Company, and each other such Holder, each of such other Holder's
officers, directors, partners and employees, and each person controlling
such other Holder, against all claims, losses, damages and liabilities
(or actions in respect thereto) arising out of or based upon any untrue
statement (alleges untrue statement) of a material fact contained in any
such registration statement, prospectus or other document,
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or any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse the Company, such Holders,
such directors, officers, partners, employees or persons for any legal
or any other reasonable expenses incurred in connection with
investigating or defending any such claim, loss, damage, liability or
action, including reasonable attorneys' fees and expenses, in each case
to the extent, but only to the extent, that such untrue statement (or
alleged untrue statement) or omission (or alleged omission) is made in
such registration statement, prospectus or other document in reliance
upon and in conformity with written information furnished to the company
by such Holder. Notwithstanding the foregoing, the liability of any such
Holder shall not exceed an amount equal to the proceeds realized by each
such Holder of Registrable Securities sold as contemplated herein. Such
indemnity shall be effective notwithstanding any investigation made by
or on behalf of the company, any such director, officer, partner,
employee, or controlling person and shall survive the transfer of such
securities by such Holder.
(c) Each party entitled to indemnification under this Paragraph 6
(the "INDEMNIFIED PARTY") shall give notice to the party required to
provide indemnification (the "INDEMNIFYING PARTY") promptly after such
Indemnified Party has actual knowledge of any claim as to which
indemnity may be sought. Unless in the reasonable judgment of the
Indemnified Party a conflict of interest may exist between the
Indemnifying Party and the Indemnified Party, the indemnifying Party
shall be permitted to assume the defense of any such claim or any
litigation resulting therefrom; provided, however, that in any event
counsel for the Indemnifying Party or Indemnified Party who shall
conduct the defense of such claim or litigation as provided above shall
be approved by the other Party (which approval shall not be unreasonably
withheld), and such other Party may participate in such defense at such
party's expense; provided, further, that the failure of any Indemnified
Party to give notice as provided herein shall not relieve the
Indemnifying party of its obligations under this Paragraph 6 unless such
failure shall have had a material adverse effect on the Indemnifying
party's ability to defend such claim.
(d) The Indemnified Party shall make no settlement of any claim or
litigation which would give rise to liability on the part of the
Indemnifying Party under any indemnity contained in this Paragraph 6
without the written consent of the Indemnifying Party, which consent
shall not be unreasonably withhold or delayed, and no Indemnifying Party
shall make any settlement of any such claim or litigation without the
consent of the Indemnified Party, which consent shall not be
unreasonably withheld or delayed. If the Indemnified Party notifies the
Indemnifying Party in writing that the Indemnified Party desired to
accept and agree to such offer, but the Indemnifying Party elects not to
accept or agree to such offer within ten 910) days after receipt of
written notice from the Indemnified Party of the terms of such offer,
then, in such event, the Indemnified party
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shall continue to contest or defend such claim or litigation and, if
such claim or litigation is within the scope of the Indemnifying Party's
indemnity contained in this paragraph 6, the indemnified Party shall be
indemnified pursuant to the terms hereof. If a firm offer is made to
settle a claim or litigation defended by the Indemnifying Party and the
Indemnifying Party notifies the Indemnified Party in writing and the
Indemnifying Party desires to accept and agree to such offer, but the
Indemnified Party elects not to accept or agree to such offer within ten
910) days after receipt of written notice from the Indemnifying party of
the terms of such offer, then, in such event, the Indemnified Party may
continue to content or defend such claim or litigation and, in such
event, the total maximum liability of the Indemnifying Party to
indemnify or otherwise reimburse the Indemnified Party in accordance
with this Agreement with respect to such claim or litigation shall be
limited to and shall not exceed the amount of such settlement offer,
plus reasonable out-of-pocket costs and expenses (including reasonable
fees and disbursements of counsel) to the date of notice that the
Indemnifying Party desired to accept such settlement offer.
(e) The indemnification payments required pursuant to this
Paragraph 6 for expenses of the investigation or defense of a claim or
lawsuit shall be made from time to time during the course of the
investigation or defense, as the case may be, upon submission of
reasonably sufficient documentation that any such expenses have been
incurred.
7. Information by Holder. The Holder or Holders of Registrable
Securities included in any registration shall furnish to the Company such
written information regarding such Holder or Holders and the distribution
proposed by such Holder or Holders as the Company may reasonably request in
writing and as shall be required in connection with any registration or
qualification referred to in this Agreement. The Company agrees to include in
any such registration statement all information concerning the Holders and their
distribution which the Holders shall reasonably request.
8. Filing of Reports Under the Exchange Act. The Company shall give
prompt notice to the Holders of (a) the filing of any Exchange Act Registration
Statement relating to any class of equity securities of the company, and (b) the
effectiveness of such exchange Act Registration Statement, in order to enable
the Holders to comply with any reporting requirements under the Exchange Act or
the Securities Act. The Company shall, at any time after the Company shall
register any shares of Common Stock under the Securities Act and upon the
written request of the Holders, file an Exchange Act Registration Statement
relating to any class of equity securities of the Company then held by the
Holders or issuable upon conversion or exercise of any class of debt or equity
securities or warrant or options of the company then held by the Holders,
whether or not the class of equity securities with respect to which such request
is made shall be held by at least
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the number of persons which would require the filing of a registration statement
under Section 12(g)(1) of the Exchange Act.
9. Rule 144 Reporting. With a view to making available to the Holders
benefits of certain rules and regulations of the SEC which may permit the sale
of the Shares to the public without registration, after the completion of any
registration pursuant to Paragraph 2 above, the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in SEC Rule 144 or any successor provision thereto,
at all times;
(b) use its best efforts to file with the SEC in a timely manner all
reports and other documents required of the Company under the Securities
Act and the Exchange Act;
(c) so long as a Holder owns any Shares (or other securities of the
company), to furnish to such Holder forthwith upon its request a written
statement by the Company as to the Company's compliance with the reporting
requirements of Rule 144 and of the Securities Act and the Exchange act, a
copy of the most recent annual or quarterly report of the Company, and such
other reports and documents so filed by the Company as such Holder may
reasonably request in availing itself of any rule or regulation of the SEC
allowing such Holder to sell any such securities without registration; and
(d) take any further action reasonably requested by a Holder to
enable such Holder to sell its Registrable Securities without registration
under Rule 144, under any successor provision, or any similar rule or
regulation promulgated by the SEC from time to time.
10. Transfer of Registration Rights. The Rights to cause the Company to
register Registrable Securities that are granted by the Company under Paragraph
2 may be assigned by a Holder to a permitted transferee or assignee of any of
its Registrable Securities; provided, however, that the Company is given written
notice by the Holder at the time of or within a reasonable time after the
transfer, stating the name and address of the transferee or assignee and
identifying the securities with respect to which such registration rights are
being assigned. Subject to the foregoing provision, this Agreement shall be
binding upon, and inure to the benefit of, the parties hereto and their
respective successors and assign; provided , further, that the registration
rights granted in this Agreement shall not be transferred to persons who
received Registrable securities pursuant to a registration statement under the
Securities Act or pursuant to a transaction under Rule 144 or any successor
provision thereto.
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11. Changes. The terms and provisions of this Agreement may not be
modified or amended, except that they may be modified or amended with the
written consent of (a) the Company and (b) the Holders of a majority of the
Shares outstanding. None of the terms and provisions of this Agreement may be
waived except in writing by the person so waiving.
12. Granting of Registration Rights. The Company shall not, without the
prior written consent of Holders of seventy-five percent (75%) of the Shares
then outstanding which have not already been registered , grant any rights to
any persons to register any shares of Capital stock or other securities of the
company if such rights could reasonably be expected to conflict with or be on
parity with the rights of the Holders of the Shares.
13. Governing Laws. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without reference to the
principles of conflicts of law thereof.
14. Notice. All notices and other communications required or permitted to
be given in respect of this Agreement shall be deemed to have been given or made
if delivered personally or if mailed by registered or certified mail return
receipt requested, to the following parties at the following addresses, or, in
each case, at such other address or addresses as any party shall hereafter
specify by written notice to the others:
To the Company: Classic Communications, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy (which shall
not constitute notice) to: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.C.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
To ▇▇▇▇▇▇▇: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
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With a copy (which shall
not constitute notice) to: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.C.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
To Austin Ventures: Austin Ventures, ▇.▇.
▇▇▇▇▇▇ Ventures III-A, ▇.▇.
▇▇▇▇▇▇ Ventures III-B, L.P.
▇/▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
To BT Capital: BT Capital partners, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
To Growth Fund: Texas Growth Fund
c/o TGF Management Corp.
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
12
13
As to Austin Ventures,
BT Capital and Growth
Fund, with copies (which
shall not constitute notice
to: Edens, Snodgrass, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ P.C.
111 Congress, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Jenkens & ▇▇▇▇▇▇▇▇▇
2200 One American Center
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
To NationsBanc: NationsBanc Capital Corp.
NationsBanc Corporate Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy (which shall not
constitute notice to: Fennebresque, Clark, ▇▇▇▇▇▇▇▇ & Hay
NationsBanc Corporate Center
Suite 2900
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
To Chase: The Chase Manhattan Bank, N.A.
One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy (which shall not
constitute notice) to: Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇
One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile Nol: (▇▇▇) ▇▇▇-▇▇▇▇
13
14
All such notices and communications, if mailed, shall be deemed to have been
given on the third business day after the mailing thereof.
15. Termination. This Agreement shall terminate with respect to any Holder
upon the later to occur of (a) ninety (90) days following the effective date of
a registration under the Securities Act or 9b) such Holder's ownership of Shares
falls below one percent (!) Of the issued and outstanding shares of Capital
Stock.
16. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original and which together shall constitute a single
agreement.
17. Headings. The headings of the paragraphs of this Agreement are
inserted for convenience only and shall not be deemed to constitute a part
hereof.
18. Severability. If any provision or any portion of any provision of this
Agreement shall be held to be void or unenforceable, the remaining portions of
this Agreement shall continue in full force and effect.
19. Prior Agreement. This Agreement supersedes and replaces in its
entirety the Prior Agreement.
IN WITNESS WHERE, the undersigned have cause this Amended and Restated
Registration Rights Agreement to be duly executed by their authorized officers
as of the day and year first above written.
CLASSIC TELECOMMUNICATIONS CORP.
By: /s/
----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ President
▇▇▇▇▇▇▇:
/s/
-------------------------------------------
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
14
15
AUSTIN VENTURES, L.P.
By: AV Partners, L.P., Its General Partner
By: /s/
----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
AUSTIN VENTURES III-A, L.P.
By: AV Partners III, L.P., Its General Partner
By: /s/
----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
AUSTIN VENTURES III-B, L.P.
By: AV Partners III, L.P., Its General Partner
By: /s/
----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
BT CAPITAL PARTNERS, INC.
By: /s/
---------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Board of Trustees of TEXAS GROWTH FUND -
1991 Trust, as Trustees
By: TGF Management Corp.,
its Executive Directors
By: /s/
----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, President
NATIONSBANC CAPITAL CORP.
By: /s/
---------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. Vice President
CHASE MANHATTAN BANK
(National Association)
By: /s/
---------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇, Vice President
15
16
EXHIBIT A
[FORM OF SECURITY]
(Face of Security)
CUSIP No. ▇▇▇▇▇▇▇▇▇
CLASSIC COMMUNICATIONS, INC.
-------------------------------------
13 1/4% SENIOR DISCOUNT NOTE DUE 2009
No. 1 $114,000,000
Classic Communications, Inc. hereby promises to pay to CEDE & CO. or
registered assigns the principal sum of ONE HUNDRED FOURTEEN MILLION DOLLARS on
the Maturity Date of August 1, 2009.
Interest Payment Dates: February 1 and August 1, commencing February 1, 2004
Record Dates: January 15 or July 15
Reference is hereby made to the further provisions on this Security set forth on
the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
IN WITNESS WHEREOF, Classic Communications, Inc. and Bank One, N.A.
have caused this instrument to be signed manually or by facsimile by each of
their respective duly authorized officers.
Dated: July 29, 1998
CLASSIC COMMUNICATIONS, INC., as Issuer
By:
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. Seach
Title: President and Chief Financial Officer
Certificate of Authentication:
This is one of the 13 1/4% Senior Discount Notes due 2009 referred to
in the within-mentioned Indenture.
BANK ONE, N.A., as Trustee
By Date of Authentication: July 29, 1998
----------------------------------
Authorized Signatory
17
(Reverse Of Security)
CLASSIC COMMUNICATIONS, INC.
-------------------------------------
13 1/4% Senior Discount Note Due 2009
1. Interest.
Classic Communications, Inc., a Delaware corporation (the "Issuer")
promises to pay the principal of this Security on August 1, 2009. Beginning on
August 1, 2003, cash interest on the Securities will accrue at the rate of
13 1/4 per annum and will be payable semiannually in arrears on February 1 and
August 1, commencing February 1, 2004, to holders of record at the close of
business on the January 15 and July 15 immediately preceding the interest
payment date. Cash interest will accrue from the most recent Interest Payment
Date to which interest has been paid or duly provided for, or, if no interest
has been paid or duly provided for, from August 1, 2003. If an Interest Payment
Date falls on a day that is not a Business Day, the interest payment to be made
on such Interest Payment Date will be made on the next succeeding Business Day
with the same force and effect as if made on such Interest Payment Date, and no
additional interest will accrue as a result of such delayed payment. No cash
interest will accrue on the Discount Notes until August 1, 2003, except as
provided in the next paragraph. Interest will be computed on the basis of a
360-day year of twelve 30-day months.
In the event that (i) an exchange offer registration statement under
the Securities Act ("Exchange Offer Registration Statement") is not filed with
the SEC on or prior to 60 days following July 29, 1998, (ii) the Exchange Offer
Registration Statement is not declared effective on or prior to 120 days
following July 29, 1998 or (iii) the Exchange Offer is not consummated on or
prior to 150 days following July 29, 1998, cash interest will accrue on the
Securities (in addition to the accretion of original issue discount on the
Securities) at a rate per annum of one-quarter of one percent of the Accreted
Value of the Securities (a) following such 60-day period in the case of (i)
above, (b) following such 120-day period in the case of clause (ii) above, (c)
following such 150-day period in the case of (iii) above and (d) following each
such subsequent 90-day period in the case of clauses (i), (ii) and (iii) above;
provided that the aggregate increase in such interest rate will in no event
exceed one percent per annum. Upon (x) the filing of the Exchange Offer
Registration Statement in the case of clause (i) above, (y) the effectiveness of
the Exchange Offer Registration Statement in the case of clause (ii) above or
(z) the day before the date of the consummation of the Exchange Offer or the
effectiveness of the Shelf Registration Statement. as the case may be, in the
case of clause (iii) above, the payment of cash interest will cease, from the
date of such filing, effectiveness or day before the date of the consummation,
as the case may be.
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2. Method of Payment.
The interest payable on the Securities, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture,
be paid to the Person in whose name this Security is registered at the close of
business on the regular record date, which shall be the January 15 or July 15
(whether or not a Business Day) next preceding such Interest Payment Date. Any
such interest not so punctually paid or duly provided for, and any interest
payable on such defaulted interest (to the extent lawful), will forthwith cease
to be payable to the Holder on such regular record date and shall be paid to the
person in whose name this Security is registered at the close of business on a
special record date for the payment of such defaulted interest to be fixed by
the Issuer, notice of which shall be given to Holders not less than 15 days
prior to such special record date. Payment of the principal of and interest on
this Security will be made at the agency of the Issuer maintained for that
purpose in New York, New York and at any other office or agency maintained by
the Issuer for such purpose, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that at the option of the Issuer payment of
interest may be made by check mailed to the address of the person entitled
thereto as such address shall appear in the Security register.
3. Paying Agent and Registrar.
Initially, Bank One, N.A. (the "Trustee") will act as Paying Agent and
Registrar. The Issuer may change any Paying Agent, Registrar or co-Registrar
without notice to the Holders of Securities. The Issuer or any of its
Subsidiaries may act as Registrar, co-Registrar or, except in certain
circumstances specified in the Indenture, Paying Agent.
4. Indenture.
This Security is one of a duly authorized issue of Securities of the
Issuer, designated as its 13 1/4% Senior Discount Notes due 2009 (the
"Securities"), limited in aggregate principal amount at maturity to $114,000,000
(except for Securities issued in substitution for destroyed, lost or stolen
Securities) issuable under an indenture dated as of July 29, 1998 (the
"Indenture"), among the Issuer and the Trustee. The terms of the Securities
include those stated in the Indenture and those required to be made part of the
Indenture by the Trust Indenture Act of 1939 (the "Act") (15 U.S. Code Sections
77aaa-77bbbb) as in effect on the date of the Indenture and the date the
Indenture is qualified under the Act. The Securities are subject to all such
terms, and Holders of Securities are referred to the Indenture and the Act for a
statement of them. Each Securityholder, by accepting a Security, agrees to be
bound by all of the terms and provisions of the Indenture, as the same may be
amended from time to time.
Capitalized terms contained in this Security to the extent not defined
herein shall have the meanings assigned to them in the Indenture.
5. Optional Redemption.
(a) The Securities are not redeemable prior to August 1, 2003, except
as provided in clause (b) or (c) below of this paragraph 5. On and after such
date, the Securities may
3
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be redeemed at any time, in whole or in part, at the option of the Issuer,
at redemption prices (expressed as percentages of the Accreted Value) set forth
below, if redeemed during the 12-month period beginning August 1 of the year
indicated below, in each case together with interest accrued and unpaid to but
excluding the date fixed for redemption:
Year Percentage
---- ----------
2003......................................... 106.63%
2004......................................... 104.42%
2005......................................... 102.21%
2006 and thereafter.......................... 100.000%
(b) At any time prior to August 1, 2001, the Issuer may redeem all (but
not less than all) of the Securities with the Net Cash Proceeds of one or more
Equity Offerings of or Strategic Equity Investment in the Issuer, at a
redemption price in cash equal to (expressed as a percentage of the Accreted
Value) 113.25% of the principal amount at maturity thereof, plus accrued and
unpaid interest to the date fixed for redemption. Any such redemption pursuant
to this paragraph will be required to occur within 45 days following the closing
of any such Equity Offering or Strategic Equity Investment.
(c) Upon the occurrence of a Change of Control, the Issuer may redeem
all, but not less than all, the Securities in cash, at a redemption price equal
to the Accreted Value thereof plus accrued and unpaid interest to the date of
redemption plus the Applicable Premium. Notice of redemption of the Securities
pursuant to this paragraph shall be mailed to holders of the Securities not more
than 30 days following the occurrence of a Change of Control. The Issuer may not
redeem Securities pursuant to this paragraph if it has made a Change of Control
Offer with respect to such Change of Control.
6. Notice of Redemption.
Notice of redemption will be mailed by first-class mail at least 30 and
not less than 60 days before the redemption date to each Holder of Securities to
be redeemed at the address appearing in the register of Securities maintained by
the Registrar. Securities in denominations larger than $1,000 may be redeemed in
part. On and after the redemption date, interest ceases to accrue on those
Securities or portion of them called for redemption.
7. Purchase upon Occurrence of a Change of Control.
Within 30 days of the occurrence of a Change of Control, the Issuer
will offer to purchase the Securities, in whole and not in part, at a purchase
price equal to 101% of the Accreted Value thereof plus any accrued and unpaid
interest thereon.
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8. Denominations; Transfer; Exchange.
The Securities are in registered form without coupons in denominations
of $1,000 and integral multiples of $1,000. A Holder may transfer or exchange
Securities in accordance with the Indenture. The Registrar may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
and to pay any taxes and fees required by law or permitted by the Indenture. The
Registrar need not transfer or exchange any Securities selected for redemption.
9. Persons Deemed Owners.
The registered Holder of a Security may be treated as the owner of it
for all purposes.
10. Unclaimed Funds.
If funds for the payment of principal or interest remain unclaimed for
two years, the Trustee or Paying Agent will repay the funds to the Issuer at its
request. After such repayment Holders of Securities entitled to such funds must
look to the Issuer for payment unless an abandoned property law designates
another person.
11. Discharge Prior to Redemption or Maturity.
The Indenture will be discharged and canceled except for certain
Sections thereof, subject to the terms of the Indenture, upon the payment of all
the Securities or upon the irrevocable deposit with the Trustee of funds or
United States Government Obligations sufficient for such payment or redemption.
12. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Securities may be
amended or supplemented with the consent of the Holders of at least a majority
in principal amount of the outstanding Securities, and any past default or
compliance with any provision may be waived with the consent of the Holders of a
majority in principal amount of the outstanding Securities. Without notice to or
the consent of any Holder, the Issuer and the Trustee may amend or supplement
the Indenture or the Securities to cure any ambiguity, defect or inconsistency,
or to make any change that does not materially and adversely affect the rights
of any Holder of Securities.
13. Restrictive Covenants.
The Securities are senior unsecured Indebtedness of the Issuer limited
to the aggregate principal amount at maturity of $114,000,000. The Indenture
restricts, among other things, the ability of the Issuer or any of its
Restricted Subsidiaries to permit any Liens to be imposed on their assets, to
make certain payments and investments, limits the Indebtedness which the Issuer
and its Restricted Subsidiaries may incur and limits the terms on which the
Issuer and its Restricted Subsidiaries may engage in Asset Sales. The Issuer is
also obligated under certain circumstances to make an offer to purchase
Securities with the net cash proceeds of certain Asset
5
21
Sales. The Issuer must report annually to the Trustee on compliance with
certain covenants in the Indenture.
14. Successor Corporation.
Pursuant to the Indenture, the ability of the Issuer to consolidate
with, merge with or into or transfer its assets to another person is conditioned
upon certain requirements, including certain financial requirements applicable
to the surviving Person.
15. Defaults and Remedies.
If an Event of Default shall occur and be continuing, the principal of
all of the outstanding Securities, plus all accrued and unpaid interest, if any,
to the date the Securities become due and payable, may be declared due and
payable in the manner and with the effect provided in the Indenture.
16. Trustee Dealings with Issuer.
The Trustee in its individual or any other capacity, may become the
owner or pledgee of Securities and make loans to, accept deposits from, and
perform services for the Issuer or its Affiliates, and may otherwise deal with
the Issuer or its Affiliates, as if it were not Trustee.
17. No Recourse Against Others.
A director, officer, employee, incorporator, limited or general partner
or stockholder, as such, of the Issuer shall not have any liability for any
obligations of the Issuer or under the Securities or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. Each Holder of a Security by accepting a Security waives and releases
all such liability. The waiver and release are part of the consideration for the
issue of the Securities.
18. Authentication.
This Security shall not be valid until the Trustee signs the
certificate of authentication on the other side of this Security.
19. Abbreviations.
Customary abbreviations may be used in the name of a Securityholder or
an assignee, such as TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors
Act).
6
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20. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Issuer has caused CUSIP numbers to be
printed on the Securities and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Securityholders. No representation is
made as to the accuracy of such numbers either as printed on the Securities or
as contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
21. GOVERNING LAW.
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE, THIS
SECURITY AND ANY SUBSIDIARY GUARANTEE WITHOUT REGARD TO PRINCIPLES OF CONFLICTS
OF LAW.
22. Units.
Until the Separability Date (as defined below), this certificate shall
also represent 342,000 shares of common stock of the Issuer (three shares per
$1,000 principal amount at maturity of the 13 1/4% Senior Discount Notes due
2009). The Separability Date shall be the earlier of the following dates: (i)
February 1, 1999; (ii) the date on which a registration statement with respect
to a registered exchange offer for the Securities is declared effective under
the Securities Act; (iii) the occurrence of an Event of Default; or (iv) such
earlier date as determined by the Initial Purchaser in its sole discretion. On
or after the Separability Date, this certificate shall represent only the
13 1/4% Senior Discount Notes due 2009.
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ASSIGNMENT FORM
If you the Holder want to assign this Security, fill in the form below
and have your signature guaranteed:
I or we assign and transfer this Security to:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint ,
--------------------------------------------------------
agent to transfer this Security on the books of the Issuer. The agent may
substitute another to act for him.
Dated: Signed:
-------------------- -------------------------------------
(Sign exactly as your name appears
on the other side of this Security)
Signature Guarantee:(1)
---------------------------------------------------------
------------------
(1) Signature must be guaranteed by a member of the Medallion Signature
Program.
8
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OPTION OF HOLDER TO ELECT PURCHASE
If you the Holder want to elect to have this Security purchased by the Issuer,
check the box: |_|
If you want to elect to have only part of this Security purchased by the Issuer,
state the amount: $ __________
Dated: Signed:
-------------------- -------------------------------------
(Sign exactly as your name appears
on the other side of this Security)
Signature Guarantee:(2)
---------------------------------------------------------
------------------
(2) Signature must be guaranteed by a member of the Medallion Signature
Program.
9
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EXHIBIT B
FORM OF LEGENDS FOR SECURITIES
Any Global Security authenticated and delivered hereunder
shall bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR DEPOSITARY. THIS
SECURITY IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A
PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS
SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY
BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
Any Global Security which represents the Initial Securities (and all
Securities issued in substitution thereof) shall bear a legend in substantially
the following form:
THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR OTHER SECURITIES LAWS.
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
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B-2
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION. THE HOLDER OF THIS
SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT ("RULE
144A")), (2) AGREES THAT IT WILL NOT PRIOR TO (X) THE DATE WHICH IS TWO YEARS
(OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES
ACT AND ANY SUCCESSOR PROVISION THEREUNDER) AFTER THE LATER OF THE ORIGINAL
ISSUE DATE HEREOF (OR OF ANY PREDECESSOR OF THIS SECURITY) OR THE LAST DAY ON
WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY
(OR ANY PREDECESSOR OF THIS SECURITY) AND (Y) SUCH LATER DATE, IF ANY, AS MAY
BE REQUIRED BY APPLICABLE LAWS (THE "RESALE RESTRICTION TERMINATION DATE"),
OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE ISSUER, (B)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER
THE SECURITIES ACT, (C) FOR AS LONG AS THE NOTES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (3)
AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED THAT THE ISSUER,
THE TRUSTEE, THE TRANSFER AGENT AND THE REGISTRAR SHALL HAVE THE RIGHT PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE (D) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM AND (ii) IN EACH OF THE FOREGOING CASES, TO
REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE
OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE.
THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE.
27
B-3
SCHEDULE OF EXCHANGES
The following exchanges of a part of this Global Security for Physical
Securities have been made:
Principal Amount
Amount of Amount of at Maturity Signature of
decrease in increase of this Global authorized
Principal Amount in Principal Security officer of
at Maturity Amount at following such Trustee or
Date of of this Global Maturity of this decrease Securities
Exchange Security Global Security (or increase) Custodian
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