FORM OF REGISTRATION RIGHTS AGREEMENT by and among TELEWEST GLOBAL, INC. and THE HOLDERS LISTED ON THE SIGNATURE PAGES HERETO dated as of

 

Exhibit 4.35

 

FORM OF REGISTRATION RIGHTS AGREEMENT

 

by and among

 

TELEWEST GLOBAL, INC.

 

and

 

THE HOLDERS LISTED ON THE SIGNATURE PAGES HERETO

 

dated as of

 

                     , 2004

 

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REGISTRATION RIGHTS AGREEMENT, dated as of                      , 2004, by and among Telewest Global, Inc., a Delaware corporation (the “Company”), and the Holders listed on the signatures pages hereto.

 

WHEREAS, the Company is a wholly-owned subsidiary of Telewest Communications plc, a public limited company incorporated under the laws of England and Wales (“Old Telewest”), and Telewest Finance (Jersey) Limited, a limited liability company incorporated under the laws of Jersey, is a wholly-owned finance subsidiary of Old Telewest (“Telewest Jersey”).

 

WHEREAS, Old Telewest, pursuant to a scheme of arrangement under the laws of England and Wales involving certain creditors of Old Telewest (the “Telewest Scheme”) and Telewest Jersey, pursuant to both a scheme of arrangement under Jersey law and a scheme of arrangement under the laws of England and Wales, each involving certain creditors of Telewest Jersey (together with the Telewest Scheme, the “Schemes”), propose to effect a financial restructuring of Old Telewest (the “Financial Restructuring”) pursuant to which:

 

(i) the Company will become the holder of substantially all of the businesses and operations of Old Telewest and both Old Telewest and Telewest Jersey will be liquidated;

 

(ii) the holders of the outstanding notes and debentures of Old Telewest and Telewest Jersey will receive 98.5% of the then-issued Common Stock in a transaction exempt from the registration requirements of the Securities Act, pursuant to section 3(a)(10) thereof;

 

(iii) the existing shareholders of Old Telewest will receive the remaining 1.5% of the then-issued Common Stock pursuant to an effective registration statement of the Company; and;

 

(iv) the Common Stock will be quoted for trading on the Nasdaq National Market.

 

WHEREAS, in connection with the Financial Restructuring the Company has agreed to grant the registration rights described in this Agreement to holders of shares of Common Stock transferred pursuant to the Schemes that are subject to restrictions on resale under Rule 145 under the Securities Act (as hereinafter defined).

 

Accordingly, the parties hereto agree as follows:

 

1. Definitions. As used herein, unless the context otherwise requires, the following terms have the following respective meanings:

 

“Business Days” means a day (other than a Saturday or a Sunday) on which banks are open for general business in New York.

 

“Certificate of Incorporation” means the Certificate of Incorporation of the Company, as it may be amended or restated hereafter from time to time.

 

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“Commission” means the Securities and Exchange Commission or any other United States federal agency at the time administering the Securities Act.

 

“Common Stock” means any shares of common stock, par value $0.01 per share, of the Company, now or hereafter authorized to be issued and any and all securities of any kind whatsoever of the Company which may be exchanged for or converted into Common Stock.

 

“Effective Date” has the meaning given to that term in the Telewest Scheme.

 

“Exchange Act” means the Securities Exchange Act of 1934, as amended, or any similar United States federal statute, and the rules and regulations of the Commission thereunder, all as the same shall be in effect at the time. Reference to a particular section of the Exchange Act shall include a reference to the comparable section, if any, of any such similar United States federal statute.

 

“Holder” means a party hereto that is (or upon the Effective Date, will become) the registered holder of Registrable Securities (including any Person that, after the date hereof enters into a Joinder Agreement pursuant to Section 8 hereof, but not including any such Person whose rights under this Agreement shall have terminated pursuant to Section 9 hereof.

 

“Majority Participating Holders” means Participating Holders holding at least a majority of the Registrable Securities proposed to be included in any offering of Registrable Securities by such Participating Holders pursuant to Section 3.1 or Section 3.2 hereto.

 

“Participating Holders” means any Holder participating in any offering of Registrable Securities pursuant to Section 2, Section 3.1 or Section 3.2 hereto.

 

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

 

“Registrable Securities” means any shares of Common Stock beneficially owned by any Holder, including without limitation shares of Common Stock distributed to the Holders pursuant to the Schemes and any Common Stock issued in respect thereof by way of a stock dividend, stock split or reverse stock split or in connection with a combination of shares, recapitalization, merger, consolidation or otherwise. 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 or (ii) such securities shall have been disposed of pursuant to Rule 144 or Rule 145 under the Securities Act.

 

“Registration Expenses” means all expenses incident to the registration and disposition of the Registrable Securities pursuant to Section 2 or Section 3 hereof, as applicable, including, without limitation, all registration, filing and applicable national securities exchange fees, all fees and expenses of complying with state securities or blue sky laws (including reasonable fees and disbursements of counsel to the underwriters and the Holders in connection

 

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with “blue sky” qualification of the Registrable Securities and determination of their eligibility for investment under the laws of the various jurisdictions), all word processing, duplicating and printing expenses, all messenger and delivery expenses, the fees and disbursements of counsel for the Company and of its independent public accountants, including the expenses of “cold comfort” letters or any special audits required by, or incident to, such registration, all transfer taxes, and the reasonable fees and expenses of one counsel to the Participating Holders; provided, however, that Registration Expenses shall exclude, and each Holder shall pay, underwriting discounts and commissions in respect of the Registrable Securities being registered for such Holder. Notwithstanding the foregoing, the provisions of this definition shall be deemed amended to the extent necessary to cause these expense provisions to comply with “blue sky” laws of each state or the securities laws of any other jurisdiction in the United States and its territories in which the offering pursuant to which Registration Expenses are payable is made.

 

“Securities Act” means the Securities Act of 1933, as amended, or any similar United States federal statute, and the rules and regulations of the Commission thereunder, all as the same shall be in effect at the time. References to a particular section of the Securities Act shall include a reference to the comparable section, if any, of any such similar United States federal statute.

 

2. Shelf Registration.

 

(a) Within 45 days after the Effective Date, the Company shall file with the Commission a registration statement (the “Shelf Registration Statement”) relating to the offer and sale of Registrable Securities by the Holders to the public, from time to time, on a delayed or continuous basis (but not involving any underwriting). The Company shall use its reasonable best efforts to cause the Shelf Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall pay, and shall be responsible for, all Registration Expenses in connection with any registration pursuant to this Section 2.

 

(b) The Company agrees to use its reasonable best efforts to keep the Shelf Registration Statement continuously effective and not to suspend use of the prospectus included therein in order to permit the prospectus included therein to be usable by the Holders until the earlier of: (1) the termination date of this Agreement and (2) two years from the Effective Date plus the number of days (if any) that the effectiveness of the Shelf Registration Statement is postponed or suspended pursuant to the next following sentence. Without limiting the generality of the foregoing, the Company shall be deemed not to have used its reasonable best efforts to keep the Shelf Registration Statement effective during the requisite period if it voluntarily takes any action that would result in Holders of the Registrable Securities covered thereby not being able to offer and sell such Registrable Securities during that period, unless such action is required by applicable law; provided that the foregoing shall not apply to actions if the Company determines, in its reasonable judgment, as authorized by a resolution of its Board of Directors, that the filing of such Shelf Registration Statement or the maintenance of effectiveness of such Shelf Registration Statement or prospectus included therein would materially interfere with any material financing, corporate reorganization or other material transaction involving the Company or any subsidiary, or would require premature disclosure thereof, and the Company promptly gives the Participating Holders written notice of such determination, containing a general statement of the reasons for such postponement or

 

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suspension and an approximation of the anticipated delay; provided, however, that the failure to keep the Shelf Registration Statement effective and usable for offers and sales of Registrable Securities for such reasons shall last no longer than (i) 120 days in the aggregate in any 12-month period and (ii) 180 days in the aggregate during the period of effectiveness of the Shelf Registration Statement, in either case without the consent of the Holders of a majority of the Registrable Securities then covered thereby.

 

3. Registration Under Securities Act, etc.

 

3.1 Registration on Request.

 

(a) Request. At any time or from time to time commencing (i) in connection with an underwritten offering by Holders, from the Effective Date and (ii) in connection with any offering that is not an underwritten offering, two years after the Effective Date, any Holder or Holders holding Registrable Securities shall, subject to paragraph (h) of this Section 3.1, have the right to require the Company to effect the registration under the Securities Act of all or part of their respective Registrable Securities, by delivering a written request (a “Holder Request”) therefor to the Company specifying the number of shares of Registrable Securities and the intended method of distribution. The party or parties delivering a Holder Request shall be referred to as the “Initiating Holder.” As promptly as practicable, but no later than ten days after receipt of a Holder Request, the Company shall give written notice of the Holder Request to all Holders (the “Demand Exercise Notice”) and shall (subject to the limitations below) include in such registration all other Registrable Securities requested by the Holders thereof to be so included by written notice (which notice shall specify the maximum number of Registrable Securities intended to be disposed of by such Holder) within 20 days after the giving of the Demand Exercise Notice (or, 10 days if, at the request of the Initiating Holder participating in such registration, the Company states in such written notice or gives telephonic notice to all Holders, with written confirmation to follow promptly thereafter, that such registration will be on a Form S-3 under the Securities Act). The Company shall as expeditiously as possible (but in any event within 30 days of receipt of a Holder Request if the Company is eligible to use Form S-3 to register the transaction described in the Holder Request, or otherwise within 90 days of receipt of a Holder Request) use its reasonable best efforts to file a registration statement under the Securities Act covering the Registrable Securities which the Company has been so requested to register by the Initiating Holder and any other Holders which have duly made a written request to the Company for inclusion in such registration. The Company shall (i) use its reasonable best efforts to effect the registration of Registrable Securities for distribution in accordance with the intended method of distribution set forth in a written request delivered by the Majority Participating Holders, and (ii) if requested by the Majority Participating Holders, obtain acceleration of the effective date of the registration statement relating to such registration as promptly as practicable following such request.

 

(b) Registration of Other Securities. Whenever the Company shall effect a registration pursuant to this Section 3.1 in connection with an underwritten offering by Holders, no securities other than Registrable Securities shall be included among the securities covered by such registration unless the Majority Participating Holders shall have consented in

 

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writing to the inclusion therein of such other securities, which consent may be subject to terms and conditions determined by the Majority Participating Holders in their sole discretion.

 

(c) Registration Statement Form. Registrations under this Section 3.1 shall be on the registration form of the Commission as shall be selected by the Company which form shall be reasonably acceptable to the Majority Participating Holders. The Company agrees to include in any such registration statement all information which, in the reasonable opinion of counsel to the Participating Holders and counsel to the Company, is necessary or desirable to be included therein.

 

(d) Expenses. The Company shall pay, and shall be responsible for, all Registration Expenses in connection with any registration requested pursuant to this Section 3.1.

 

(e) Effective Registration Statement. A registration requested pursuant to this Section 3.1 shall not be deemed to have been effected (including for purposes of paragraph (h) of this Section 3.1) (i) unless a registration statement with respect thereto has become effective and has been kept continuously effective for a period of at least 120 days (or such shorter period which shall terminate when all the Registrable Securities covered by such registration statement have been sold pursuant thereto), (ii) if after it 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 not attributable to the Participating Holder and has not thereafter become effective, or (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived.

 

(f) Selection of Underwriters. The underwriters of each underwritten offering of the Registrable Securities so to be registered pursuant to this Section 3.1 shall be selected by the Majority Participating Holders taking into account among other things any contractual obligations of the Company with respect to the engagement of underwriters by the Company for such transactions, and shall be reasonably acceptable to the Company.

 

(g) Right to Withdraw. If the managing underwriter of any underwritten offering shall advise the Participating Holders that the Registrable Securities covered by the registration statement cannot be sold in such offering within a price range acceptable to the Majority Participating Holders, then the Majority Participating Holders shall have the right to notify the Company in writing that they have determined that the registration statement be abandoned or withdrawn, in which event the Company shall abandon or withdraw such registration statement. In the event of such abandonment or withdrawal at the request of the Majority Participating Holders, the Initiating Holder’s request for registration pursuant to this Section 3.1 shall be counted for purposes of the requests for registration to which the Holders are entitled pursuant to this Section 3.1 unless the Participating Holders promptly reimburse the Company (pro rata in accordance with the number of Registrable Securities that were to have been included in such registration, or as otherwise agreed by the Participating Holders) for all the Company’s documentations and expenses of such withdrawn or abandoned Registration Statement.

 

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(h) Limitations on Registration on Request. The Holders shall be entitled to require the Company to effect, and the Company shall upon due demand be required to effect (i) one registration pursuant to this Section 3.1 upon the demand of each Holder that beneficially owns Registrable Securities representing at least five per cent (5%) of the Common Stock outstanding immediately following completion of the Financial Restructuring or (ii) any number of registrations pursuant to this Section 3.1 upon the demand of any group of Holders that in aggregate beneficially own Registrable Securities representing at least five per cent (5%) of the Common Stock outstanding at the time of the demand, provided, however, that (x) the aggregate offering value of the Registrable Securities to be registered pursuant to any such registration pursuant to this Section 3.1 shall be at least $15,000,000 (based on the market price on the date the demand is made) (y) such Registrable Securities shall represent at least 3% of the number of shares of Common Stock outstanding on the date the demand is made, and (z) only one such demand registration shall be required to become effective in any 180-day period. In addition, the Company shall have no obligations under this Agreement with respect to any Holder Request submitted during any period after the Company shall have made a public announcement of a public offering, acquisition or other similar transaction or proposed transaction involving the offer or sale of securities by the Company and prior to the earlier of 60 days following such public announcement and the completion or publicly-announced abandonment of such transaction.

 

(i) Priority in Registrations on Request. If any registration pursuant to a Holder Request involves an underwritten offering and the managing underwriter of such offering shall inform the Company in writing of its belief that the number of Registrable Securities requested to be included in such registration pursuant to this Section 3.1, when added to the number of any other securities to be offered in such registration, would materially adversely affect such offering, then the Participating Holders shall be entitled to participate on a pro rata basis based on the number of Registrable Securities requested to be included in the offering by each such Participating Holder. The Company and any other Company stockholders not holding Registrable Securities shall have no right to participate in such a registration unless all Registrable Securities requested to be included are included.

 

(j) Postponement. The Company shall be entitled once in any twelve-month period to postpone for a reasonable period of time (but not exceeding 120 days) (the “Postponement Period”) the filing of any registration statement required to be prepared and filed by it pursuant to this Section 3.1 if the Company determines, in its reasonable judgment, as authorized by a resolution of its Board of Directors, that such registration and offering would materially interfere with any material financing, equity offering, corporate reorganization or other material transaction involving the Company or any subsidiary, or would require premature disclosure thereof, and promptly gives the Participating Holders written notice of such determination, containing a general statement of the reasons for such postponement and an approximation of the anticipated delay. If the Company shall so postpone the filing of a registration statement, the Majority Participating Holders shall have the right to withdraw the request for registration by giving written notice to the Company within ten business days following the giving of notice by the Company of its determination to postpone and, in the event of such withdrawal, such request shall not be counted for purposes of the requests for registration to which the Holders are entitled pursuant to this Section 3.1.

 

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3.2 Incidental Registration.

 

(a) Right to Include Registrable Securities. If the Company at any time proposes to register any of its equity securities under the Securities Act by registration on Form ▇-▇, ▇-▇ or S-3 or any successor or similar form(s) (except registrations on any such Form or similar form(s) solely for registration of securities in connection with an employee benefit plan or dividend reinvestment plan or a merger or consolidation or for a rights offering or an offering exclusively to existing security holders of the Company), whether or not for sale for its own account, it will each such time give prompt written notice to each of the Holders of its intention to do so and of the Holders’ rights under this Section 3.2. Upon the written request of any of the Holders (which request shall specify the maximum number of Registrable Securities intended to be disposed of by such Holder), made as promptly as practicable and in any event within 20 days after the giving of any such notice by the Company (10 days if the Company states in such written notice or gives telephonic notice to each Holder, with written confirmation to follow promptly thereafter, stating that (i) such registration will be on Form S-3 under the Securities Act and (ii) such shorter period of time is required because of a planned filing date), the Company shall use its reasonable efforts to effect the registration under the Securities Act of all Registrable Securities which the Company has been so requested to register by each Holder; provided, however, that 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 or to delay registration of such equity securities, the Company shall give written notice of such determination and its reasons therefor to the Holders and in the case of a determination not to register, shall be relieved of its obligation to register any Registrable Securities in connection with such registration (but not from any obligation of the Company to pay the Registration Expenses in connection therewith), without prejudice, however, to the rights of the Holders to request that such registration be effected as a registration under Section 3.1. No registration effected under this Section 3.2 shall relieve the Company of its obligation to effect any registration upon request under Section 3.1. The Company will pay all Registration Expenses in connection with any registration of Registrable Securities requested pursuant to this Section 3.2.

 

(b) Right to Withdraw. Any Holder shall have the right to withdraw its request for inclusion of Registrable Securities in any registration statement pursuant to this Section 3.2 at any time prior to the execution of an underwriting agreement with respect thereto by giving written notice to the Company of its request to withdraw.

 

(c) Priority in Incidental Registrations. If any registration pursuant to this Section 3.2 involves an underwritten offering and the managing underwriter of such offering shall inform the Company in writing of its belief that the number of Registrable Securities requested to be included in such registration, when added to the number of other equity securities to be offered in such registration, would materially adversely affect such offering, then the Company shall include in such registration, to the extent of the number and type which the Company is so advised can be sold in (or during the time of) such offering without so materially adversely affecting such offering (the “Section 3.2 Sale Amount”), (i) all of the equity securities proposed by the Company to be sold for its own account; (ii) thereafter, to the extent the Section 3.2 Sale Amount is not exceeded, the Registrable Securities requested by the Participating Holders (provided that if all of the Registrable Securities requested by the Participating Holders

 

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may not be included, the Participating Holders shall be entitled to participate on a pro rata basis based on the aggregate number of shares of Registrable Securities requested by the Participating Holders to be registered); and (iii) thereafter, to the extent the Section 3.2 Sale Amount is not exceeded, any other equity securities of the Company requested to be included by Company stockholders holding other such registration rights.

 

(d) Plan of Distribution. Any participation by Holders in a registration under this Section 3.2 shall be in accordance with the plan of distribution determined by the Company (or the other Person that initiated such registration).

 

3.3 Registration Procedures. If and whenever the Company is required to use its reasonable efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Sections 2, 3.1 and 3.2 hereof, the Company shall as expeditiously as possible:

 

(a) prepare and file with the Commission as soon as practicable the requisite registration statement to effect such registration (and shall include all financial statements required by the Commission to be filed therewith) and thereafter use its reasonable efforts to cause such registration statement to become effective; provided, however, that before filing such registration statement (including all exhibits) or any amendment or supplement thereto or comparable statements under securities or blue sky laws of any jurisdiction, the Company shall furnish such documents to each Participating Holder and each underwriter, and counsel to the Participating Holders, which documents will be subject to the review and comments of each Participating Holder, each underwriter and their respective counsel; and provided, further, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto;

 

(b) notify the Participating Holders of the Commission’s requests for amending or supplementing the registration statement and the prospectus, and prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by such registration statement for such period as shall be required for the disposition of all of such Registrable Securities in accordance with the intended method of distribution thereof; provided, that except with respect to any such registration statement filed pursuant to Rule 415 under the Securities Act, such period need not exceed 120 days;

 

(c) furnish, without charge, to each Participating Holder and each underwriter such number of conformed copies of such registration statement and of each such amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents, as the Participating Holders and such underwriters may reasonably request;

 

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(d) use its reasonable efforts (i) to register or qualify all Registrable Securities and other securities covered by such registration statement under such securities or blue sky laws of such States of the United States of America where an exemption is not available and as the Participating Holders or any managing underwriter shall reasonably request, (ii) to keep such registration or qualification in effect for so long as such registration statement remains in effect, and (iii) to take any other action which may be reasonably necessary or advisable to enable the Participating Holders to consummate the disposition in such jurisdictions of the securities to be sold by the Participating Holders, except that the Company shall not for any such purpose be required to qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this subsection (d), (x) be obligated to be so qualified or to consent to general service of process in any such jurisdiction or (y) be subject to additional taxes (other than de minimis amounts);

 

(e) use its reasonable efforts to cause all Registrable Securities covered by such registration statement to be registered with or approved by such other federal or state governmental agencies or authorities as may be necessary in the opinion of counsel to the Company and counsel to each of the Participating Holders to consummate the disposition of such Registrable Securities;

 

(f) if requested by the lead underwriter, furnish to each Participating Holder and each underwriter, if any, participating in the offering of the securities covered by such registration statement, a signed counterpart of (i) an opinion of counsel for the Company, and (ii) provided that such Holder furnishes any written confirmation reasonably requested by the accountants in connection therewith, a “comfort” letter signed by the independent public accountants who have certified the Company’s financial statements included or incorporated by reference in such registration statement, covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of the accountants’ comfort letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer’s counsel and in accountants’ comfort letters delivered to the underwriters in underwritten public offerings of securities (and dated the dates such opinions and comfort letters are customarily dated) and, in the case of the legal opinion, such other legal matters, and, in the case of the accountants’ comfort letter, such other financial matters as the underwriters may reasonably request;

 

(g) promptly notify each Participating Holder and each managing underwriter, if any, participating in the offering of the securities covered by such registration statement (i) when such registration statement, any pre-effective amendment, the prospectus or any prospectus supplement related thereto or post-effective amendment to such registration statement 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 or supplements to such registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the Commission of any stop order suspending the effectiveness of such registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification of any of the Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation of any proceeding for such purpose; (v) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery

 

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that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, in the light of the circumstances under which they were made, and in the case of this clause (v), at the request of a Participating Holder promptly prepare and furnish to each Participating Holder and each managing underwriter, if any, participating in the offering of the Registrable Securities, 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 the light of the circumstances under which they were made; and (vi) at any time when the representations and warranties of the Company contemplated by Section 3.4(a) or (b) hereof cease to be true and correct;

 

(h) otherwise comply with all applicable rules and regulations of the Commission, and make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve months beginning with the first full calendar month after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 promulgated thereunder, and promptly furnish to each Participating Holder a copy of any amendment or supplement to such registration statement or prospectus;

 

(i) provide and cause to be maintained a transfer agent and registrar (which, in each case, may be the Company) for all Registrable Securities covered by such registration statement from and after a date not later than the effective date of such registration statement;

 

(j) use its reasonable best efforts to cause all Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by the Company are then listed (if any), if the listing of such Registrable Securities is then permitted under the rules of such exchange;

 

(k) deliver promptly to counsel to the Participating Holders and each underwriter, if any, participating in the offering of the Registrable Securities, copies of all correspondence between the Commission and the Company with respect to such registration statement;

 

(l) use its reasonable best efforts to obtain the prompt withdrawal of any order suspending the effectiveness of the registration statement;

 

(m) provide a CUSIP number for all Registrable Securities, no later than the effective date of the registration statement;

 

(n) make available its employees and personnel and otherwise provide reasonable assistance to the underwriters (taking into account the needs of the Company’s business) in their marketing of Registrable Securities; and

 

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(o) do such other things as are necessary or reasonably desirable to facilitate the sale of the Registered Securities by the holders thereof.

 

The Company may require the Participating Holders to furnish the Company such information regarding such Participating Holders and the distribution of the Registrable Securities as the Company may from time to time reasonably request in writing and the Company shall not be obligated to effect the registration of any Registrable Securities of a particular Participating Holder unless such information regarding such Participating Holder is provided to the Company.

 

Each Participating Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in paragraph (g)(iii) or (v) of this Section 3.3, each Participating Holder will, to the extent appropriate, discontinue its disposition of Registrable Securities pursuant to the registration statement relating to such Registrable Securities until, in the case of paragraph (g)(v) of this Section 3.3, its receipt of the copies of the supplemented or amended prospectus contemplated by paragraph (g)(v) of this Section 3.3 and, if so directed by the Company, will deliver to the Company (at the Company’s expense) all copies, other than permanent file copies, then in its possession, of the prospectus relating to such Registrable Securities current at the time of receipt of such notice. If the disposition by a Participating Holder of its securities is discontinued pursuant to the foregoing sentence, the Company shall extend the period of effectiveness of the registration statement by the number of days during the period from and including the date of the giving of notice to and including the date when the Participating Holder shall have received copies of the supplemented or amended prospectus contemplated by paragraph (g)(v) of this Section 3.3; and, if the Company shall not so extend such period, the Participating Holder’s request pursuant to which such registration statement was filed shall not be counted for purposes of the requests for registration to which the Participating Holder is entitled pursuant to Section 3.1 hereof.

 

3.4 Underwritten Offerings.

 

(a) Requested Underwritten Offerings. If requested by the underwriters for any underwritten offering by the Participating Holders pursuant to a registration requested under Section 3.1, the Company shall enter into a customary underwriting agreement with the Participating Holders and a managing underwriter or underwriters selected by the Majority Participating Holders (in accordance with Section 3.1(f) hereto). Such underwriting agreement shall be satisfactory in form and substance to the Majority Participating Holders and shall contain such representations and warranties by, and such other agreements on the part of, the Company and such other terms as are generally prevailing in agreements of that type, including, without limitation, customary provisions relating to indemnification and contribution.

 

(b) Incidental Underwritten Offerings. In the case of a registration pursuant to Section 3.2 hereof, if the Company or the other Person(s) initiating such registration shall have determined to enter into any underwriting agreements in connection therewith, all of the Registrable Securities to be included in such registration shall be subject to such underwriting agreements.

 

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3.5 Preparation; Reasonable Investigation. In connection with the preparation and filing of each registration statement under the Securities Act pursuant to this Agreement, the Company will give the Participating Holders, their underwriters, if any, and their respective counsel, accountants and other representatives and agents the opportunity to participate in the preparation of such registration statement, each prospectus included therein or filed with the Commission, and each amendment thereof or supplement thereto, and give each of them such access to its books and records and such opportunities to discuss the business of the Company with its officers and employees and the independent public accountants who have certified its financial statements, and supply all other information reasonably requested by each of them, as shall be necessary or appropriate, in the opinion of the Participating Holders and such underwriters’ respective counsel, to conduct a reasonable investigation within the meaning of the Securities Act provided that the foregoing investigation shall be coordinated by one counsel to the Participating Holders.

 

3.6 Indemnification.

 

(a) Indemnification by the Company. The Company agrees that in the event of any registration of any securities of the Company under the Securities Act pursuant to this Agreement, the Company shall, and hereby does, indemnify and hold harmless each of the Participating Holders, and their respective directors, officers, partners, agents, investment advisors, investment managers and affiliates and each other Person who participates as an underwriter in the offering or sale of such securities and each other Person, if any, who controls such Participating Holder or any such underwriter within the meaning of the Securities Act (collectively, the “Indemnitees”), against any losses, claims, damages, costs and reasonable expenses (including, without limitation, reasonable attorney’s fees) or liabilities, joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof) (“Losses”), to which such Indemnitee may become subject under the Securities Act or otherwise, insofar as such Losses arise out of or are based upon (i) any untrue statement or alleged untrue statement of any material fact contained in any registration statement under which such securities were registered under the Securities Act, any preliminary prospectus, final prospectus or summary prospectus contained therein, or any amendment or supplement thereto or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances in which they were made not misleading, and the Company shall reimburse such Indemnitee for any reasonable legal or any other expenses reasonably incurred by them in connection with investigating or defending any such Loss; provided that the Company shall not be liable in any such case to an Indemnitee to the extent that any such Loss arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, or any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement in reliance upon and in conformity with written information furnished to the Company through an instrument duly executed by or on behalf of such Indemnitee. Such indemnity shall remain in full force regardless of any investigation made by or on behalf of any Indemnitee and shall survive the transfer of such securities by such seller.

 

(b) Indemnification by Participating Holders. As a condition to including any Registrable Securities in any registration statement, the Company shall have received an undertaking reasonably satisfactory to it from each Participating Holder so including

 

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any Registrable Securities to, severally and not jointly, indemnify and hold harmless (in the same manner and to the same extent as set forth in paragraph (a) of this Section 3.6) the Company, and each director of the Company, each officer of the Company and each other Person, if any, who controls the Company within the meaning of the Securities Act, 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, but only to the extent such statement or alleged statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company through an instrument duly executed by such Participating Holder specifically stating that it is for use in the preparation of such registration statement, preliminary prospectus, final prospectus, summary prospectus, amendment or supplement; provided, however, that the liability of such indemnifying party under this Section 3.6(b) shall be limited to the amount of proceeds (net of expenses and underwriting discounts and commissions) received by such indemnifying party in the offering giving rise to such liability. 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 securities by such Participating Holder.

 

(c) Notices of Claims, etc. Promptly after receipt by an indemnified party of notice of the commencement of any action or proceeding involving a claim referred to in the preceding subsections of this Section 3.6, such indemnified party shall, 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, however, that the failure of any indemnified party to give notice as provided herein shall not relieve the indemnifying party of its obligations under the preceding subsections of this Section 3.6, except to the extent that the indemnifying party is actually prejudiced by such failure to give notice, and shall not relieve the indemnifying party from any liability which it may have to the indemnified party otherwise than under this Section 3.6. In case any such action or proceeding is brought against an indemnified party, the indemnifying party shall be entitled to participate therein and, unless in the opinion of outside counsel to the indemnified party a conflict of interest between such indemnified and indemnifying parties may exist in respect of such claim, to assume the defense thereof, jointly with any other indemnifying party similarly notified to the extent that it may wish, with counsel reasonably satisfactory to such indemnified party; provided, however, that if the defendants in any such action or proceeding include both the indemnified party and the indemnifying party and if in the opinion of outside counsel to the indemnified party there may be legal defenses available to such indemnified party and/or other indemnified parties which are different from or in addition to those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel to defend such action or proceeding on behalf of such indemnified party or parties, provided, however, that the indemnifying party shall be obligated to pay for only one counsel (together with appropriate local counsel) for all indemnified parties. After notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by the latter in connection with the defense thereof other than reasonable costs of investigation (unless the first proviso in the preceding sentence shall be applicable). No indemnifying party shall be liable for any settlement of any action or proceeding effected without its written consent. No indemnifying party shall, without the consent of the indemnified party, consent to entry of

 

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any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation.

 

(d) Contribution. If the indemnification provided for in this Section 3.6 shall for any reason be held by a court to be unavailable to an indemnified party under subsection (a) or (b) hereof in respect of any Loss, then, in lieu of the amount paid or payable under subsection (a) or (b) hereof, the indemnified party and the indemnifying party under subsection (a) or (b) hereof shall contribute to the aggregate Losses (i) in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand, and the indemnified party on the other, which resulted in such Loss, with respect to the statements or omissions which resulted in such Loss, as well as any other relevant equitable considerations, or (ii) if the allocation provided by clause (i) above is not permitted by applicable law or if the allocation provided in this clause (ii) provides a greater amount to the indemnified party than clause (i) above, in such proportion as shall be appropriate to reflect not only the relative fault but also the relative benefits received by the indemnifying party and the indemnified party from the offering of the securities covered by such registration statement as well as any other relevant equitable considerations. The parties hereto agree that it would not be just and equitable if contributions pursuant to this Section 3.6(d) were to be determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in the preceding sentence of this Section 3.6(d). 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. The Participating Holders’ obligations to contribute as provided in this subsection (d) are several and not joint and shall be in proportion to the relative value of their respective Registrable Securities covered by such registration statement. In addition, no Person shall be obligated to contribute hereunder any amounts in payment for any settlement of any action or claim effected without such Person’s consent, which consent shall not be unreasonably withheld. Notwithstanding anything in this subsection (d) to the contrary, no indemnifying party (other than the Company) shall be required to contribute any amount in excess of the proceeds (net of expenses and underwriting discounts and commissions) received by such party from the sale of the Registrable Securities in the offering to which the Losses of the indemnified parties relate.

 

(e) Other Indemnification. Indemnification and contribution similar to that specified in the preceding subsections of this Section 3.6 (with appropriate modifications) shall be given by the Company and the Participating Holders with respect to any required registration or other qualification of securities under any federal, state or blue sky law or regulation of any governmental authority other than the Securities Act. The indemnification agreements contained in this Section 3.6 shall be in addition to any other rights to indemnification or contribution which any indemnified party may have pursuant to law or contract and shall remain operative and in full force and effect regardless of any investigation made by or on behalf of any indemnified party and shall survive the transfer of any of the Registrable Securities by any such party.

 

(f) Indemnification Payments. The indemnification and contribution required by this Section 3.6 shall be made by periodic payments of the amount thereof during the

 

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course of the investigation or defense, as and when bills with reasonably sufficient detail thereof are received or a Loss is incurred.

 

3.7 Unlegended Certificates. In connection with the offering of any Registrable Securities registered pursuant to this Section 3, the Company shall (i) facilitate, if necessary, the timely preparation and delivery to the Participating Holders and the underwriters, if any, participating in such offering, of unlegended certificates representing ownership of such Registrable Securities being sold in such denominations and registered in such names as requested by the Participating Holders or such underwriters and (ii) instruct any transfer agent and registrar of such Registrable Securities to release any stop transfer orders with respect to any such Registrable Securities. During the effectiveness of the Shelf Registration Statement, any Participating Holder who so requests, and who satisfies the Company that it will comply with applicable restrictions under the Securities Act, shall be entitled to delivery of unlegended certificates in respect of their Registrable Securities.

 

3.8 Limitation on Sale of Securities. The Company hereby agrees that if it shall previously have received a proper request for registration pursuant to Sections 3.1 or 3.2 hereof and it has not postponed such registration pursuant to Section 3.1(j) hereto, and if such previous registration shall not have been withdrawn or abandoned, the Company shall not effect any public or private offer, sale or distribution of its equity securities (other than pursuant to rights of conversion or exercise or other rights in existence on the effective date of such previous registration) or effect any registration of any of its equity securities under the Securities Act (other than a registration on Form S-8 or any successor or similar form which is then in effect), whether or not for sale for its own account, until a period of 45 days (or such shorter period as the Holders shall be advised by their managing underwriter) shall have elapsed from the effective date of such previous registration, and the Company shall so provide in any registration rights agreements hereafter entered into with respect to any of its equity securities.

 

3.9 No Required Sale. Nothing in this Agreement shall be deemed to create an independent obligation on the part of any of the Holders to sell any Registrable Securities pursuant to any effective registration statement.

 

4. Rule 144. The Company shall take all actions reasonably necessary to enable holders of Registrable Securities to sell such securities without registration under the Securities Act within the limitation of the exemptions provided by (i) Rule 144 under the Securities Act, or (ii) any similar rule or regulation hereafter adopted by the Commission including, without limiting the generality of the foregoing, filing on a timely basis all reports required to be filed by the Exchange Act. Upon the request of a Holder, the Company will promptly deliver to such holder a written statement as to whether it has complied with such requirements.

 

5. Amendments and Waivers. This Agreement may be amended, waived, modified or supplemented only by written agreement of the Company and the holders of a majority of the Registrable Securities then outstanding; provided, however, that any amendment, waiver, modification or supplement of Section 3.6 hereto shall require the written agreement of the Company and each Holder against whom such amendment, waiver, modification or supplement is to be enforced.

 

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6. Limitations on Subsequent Registration Rights. From and after the date hereof until this Agreement is terminated, the Company shall not, without the prior written consent of the holders of a majority of the Registrable Securities, enter into any agreement with any holder or prospective holder of any equity securities of the Company giving such holder or prospective holder demand or incidental registration rights containing cut-back provisions that are by their terms not subordinate to the registration rights granted in this Agreement.

 

7. Notice. All notices and other communications hereunder shall be in writing or via facsimile and, unless otherwise provided herein, shall be deemed to have been delivered:

 

(a) if via facsimile, on the next Business Day following transmission thereof and receipt of confirmation of transmission in respect thereof; and

 

(b) if by writing, upon the receipt thereof by the party to whom such notice is to be given or, if later:

 

(i)

three Business Days after depositing it in the United States mail or the United Kingdom mail with first class postage prepaid; or

 

(iii)

two Business Days after collection for delivery by internationally recognized overnight courier delivery service,

 

in either case properly addressed to the party to whom such notice is to be given at its address set forth below, or such other address for the party as shall be specified by notice given pursuant hereto:

 

If to any of the Holders: at its last address as it appears upon the Company’s registry books.

 

If to the Company:		Telewest Global, Inc. C/- ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇   Attention: General Counsel Fax: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
With a copy to:		Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇   Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Fax: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇

 

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8. Assignment; Joinder; Third Party Beneficiaries.

 

(a) This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors and permitted assigns. This Agreement may not be assigned by the Company without the prior written consent of the holders of a majority of the Registrable Securities. Any Holder may, at its election, at any time or from time to time, assign its rights under this Agreement, in whole or in part, to any purchaser of Registrable Securities held by it that enters into a Joinder Agreement in substantially the form attached hereto as Exhibit A, and such assignee shall thereafter be treated for all purposes as a party to this Agreement.

 

(b) Any Person who, after the date hereof, delivers to the Company (i) a written statement indicating that such Person could reasonably be considered to be an “underwriter” under Rule 145 under the Securities Act of shares of Common Stock transferred to such Person pursuant to the Schemes, together with (ii) a duly executed Joinder Agreement in substantially the form attached hereto as Exhibit A, shall become a party hereto and a Holder hereunder. Notwithstanding the foregoing, any such Person shall not become a party hereto or a Holder hereunder if promptly after such delivery, the Company provides an opinion of its counsel to such Person and to the transfer agent of the Common Stock to the effect that such Person should not reasonably be considered such an “underwriter,” and (unless otherwise required) arranges for the removal of any restrictive legends, stop transfer orders or other restrictions on transfer on the shares of Common Stock held by such Person.

 

(c) Except as expressly provided in the preceding paragraph, a person who is not a party to this Agreement (or a successor of a party to this agreement) shall not have any rights hereunder.

 

9. Termination.

 

(a) If the Effective Date shall not have occurred on or before [drop dead date], this Agreement shall immediately terminate, and otherwise, this Agreement shall terminate on the later of (i) the date all Holders could sell Registrable Securities free of any volume limitations imposed by Rule 144 and Rule 145 of the Securities Act and (ii) the date all Holders have disposed of all Registrable Securities.

 

(b) In addition, commencing on the second anniversary of the Effective Date, the rights of any Holder hereunder shall terminate (and such person shall cease to be a Holder) on the date that such Holder (together with its affiliates) beneficially owns Registrable Securities that constitute less than 1% of the Common Stock.

 

(c) Rights of the Holders that have accrued prior to termination (including, without limitation, rights under Section 3.6 hereof) shall survive any termination of this Agreement pursuant to Section 9(a) or (b).

 

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10. Remedies. The parties hereto agree that money damages or other remedy at law would not be sufficient or adequate remedy for any breach or violation of, or a default under, this Agreement by them and that, in addition to all other remedies available to them, each of them shall be entitled to an injunction restraining such breach, violation or default or threatened breach, violation or default and to any other equitable relief, including without limitation specific performance, without bond or other security being required. In any action or proceeding brought to enforce any provision of this Agreement (including the indemnification provisions thereof), the successful party shall be entitled to recover reasonable attorneys’ fees in addition to its costs and expenses and any other available remedy.

 

11. No Inconsistent Agreements. The Company will not, on or after the date of this Agreement, enter into any agreement with respect to its securities which is inconsistent with the rights granted to the Holders in this Agreement or otherwise conflicts with the provisions hereof, other than any customary lock-up agreement with the underwriters in connection with any offering effected hereunder, pursuant to which the Company shall agree not to register for sale, and the Company shall agree not to sell or otherwise dispose of, Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock in a primary offering or, to the extent the Holders are similarly bound, in a secondary offering, for a specified period (not to exceed 180 days) following such offering. The Company represents and warrants that the rights granted to the Holders hereunder do not in any way conflict with and are not inconsistent with any other agreements to which the Company is a party or by which it is bound after the Effective Date.

 

12. Descriptive Headings; Section References. The descriptive headings of the several sections and paragraphs of this Agreement are inserted for reference only and shall not control or otherwise affect the meaning hereof. All references to any Section refer to Sections of this Agreement unless otherwise specifically provided.

 

13. Governing Law. This Agreement shall be construed and enforced in accordance with, and the rights and obligations of the parties hereto shall be governed by, the laws of the State of New York, without giving effect to the conflicts of law principles thereof. Each of the parties hereto hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of New York and the United States of America located in the State of New York for any action or proceeding arising out of or relating to this Agreement and the transactions contemplated hereby (and agrees not to commence any action or proceeding relating thereto except in such courts), and further agrees that service of any process, summons, notice or document by U.S. or U.K. registered mail or by internationally recognized overnight courier delivery service to its respective address set forth in Section 7 hereof shall be effective service of process for any action or proceeding brought against it in any such court. Each of the parties hereto hereby irrevocably and unconditionally waives any objection to the laying of venue of any action or proceeding arising out of this Agreement or the transactions contemplated hereby in the courts of the State of New York or the United States of America located in the State of New York, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum.

 

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

 

15. 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. If any restriction or provision of this Agreement is held unreasonable, unlawful or unenforceable in any respect, such restriction or provision shall be interpreted, revised or applied in a manner that renders it lawful and enforceable to the fullest extent possible under law.

 

16. Further Assurances. Each party hereto shall do and perform or cause to be done and performed all further acts and things and shall execute and deliver all other agreements, certificates, instruments, and documents as any other party hereto reasonably may request in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby.

 

17. Entire Agreement. This Agreement constitutes the entire agreement, and supersedes all prior agreements and understandings, oral and written, between the parties hereto with respect to the subject matter hereof.

 

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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and delivered by their respective officers thereunto duly authorized.

 

 

[Signature Page to Equity Registration Rights Agreement]

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[Signature Page to Equity Registration Rights Agreement]

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[Signature Page to Equity Registration Rights Agreement]

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[Signature Page to Equity Registration Rights Agreement]