REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and entered
into as of May 27, 1999, by and among Penton Media, Inc., a Delaware corporation
(the "Company"), and New Hope Communications, Inc., a Colorado corporation ("New
Hope").
1. Definitions.
As used in this Agreement:
1.1 "Act" shall mean the Securities Act of 1933, as amended, or any
successor statute thereto;
1.2 "Commission" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Act;
1.3 "Exchange Act" shall mean the Securities Exchange Act, as amended, or
any successor statute thereto;
1.4 "Holder" shall mean New Hope or any of its Permitted Assignees;
1.5 "Other Holder" shall mean any stockholder of the Company, other than
any Holder who has requested or is entitled, by contract with the Company or
otherwise, to have securities included in a registration by the Company that is
subject to Section 2 hereof;
1.6 "Permitted Assignees" shall mean any current or future shareholders of
New Hope and any person or entity to whom R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ or any such
shareholder may assign his or its Registrable Securities and rights hereunder
for estate planning purposes.
1.7 "Person" shall mean any natural person, corporation, limited liability
company, general partnership, proprietorship, other business organization,
trust, union or association;
1.8 The terms "register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Act (and any post-effective amendments filed or required to
be filed) and the declaration or ordering of effectiveness of such registration
statement;
1.9 "Registrable Securities" means (A) Shares held by a Holder, (B) any
additional Shares acquired by a Holder and (C) any equity securities of the
Company issued as a dividend or other distribution with respect to, or in
exchange for or in replacement of, the Shares referred to in clause (A) or (B)
above;
1.10 "Registration Expenses" shall mean all expenses incurred by the
Company in connection with any registration by the Company which is subject to
Section 2 hereof, including, without limitation, all registration and filing
fees, printing expenses, fees and disbursements of counsel for the Company, fees
and disbursements of one counsel for all the Holders in an amount
not to exceed $10,000, listing fees, blue sky fees and expenses and the expense
of any special audits incident to or required by any such registration (but
excluding the compensation of regular employees of the Company, which shall be
paid in any event by the Company);
1.11 "Securities Act" means the Securities Act of 1933, as amended, or any
successor statute thereto;
1.12 "Selling Expenses" shall mean all underwriting discounts and selling
commissions applicle to the sale of Registrable Securities and all fees and
disbursements of counsel for each of the Holders, if other than counsel for the
Company, in connection with such sale other than fees and expenses of one
counsel for all of the Holders in an amount not to exceed $10,000;
1.13 "Shares" shall mean the shares of common stock, par value $0.01 per
share, of the Company; and
1.14 Capitalized terms used but not defined herein shall have the meaning
given such terms in the Asset Purchase Agreement, dated as of May 18, 1999, by
and among the Company, Seller and R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
2. Company Registration
2.1 From and after the Closing Date, if the Company shall determine to
register any of its equity securities either for its own account or for the
account of a security holder or holders, if any, other than a registration
relating solely to employee benefit plans or a registration relating solely to a
transaction covered by Rule 145 under the Securities Act, or a registration on
any registration form that does not permit secondary sales or does not include
substantially the same information as would be required to be included in a
registration statement covering the sale of Registrable Securities, the Company
will:
(a) promptly give to each Holder a written notice thereof (which shall
include a list of the jurisdictions in which the Company intends to attempt
to qualify such securities under the applicle blue sky or other state
securities laws); and
(b) include in such registration (and any related qualification under
blue sky laws or other compliance), and in any underwriting involved
therein, all the Registrable Securities specified in a written request or
requests, made by the Holders within 15 days after receipt of the written
notice from the Company described in clause (a) above, except as set forth
in Section 2.2 below. Such written request may specify all or a part of a
Holder's Registrable Securities.
2.2 Underwriting. If the registration of which the Company gives notice is
for a registered public offering involving an underwriting, the Company shall so
advise the Holders as a part of the written notice given pursuant to Section
2.1(a). In such event, the right of each Holder to registration pursuant to this
Section 2 shall be conditioned upon the Holder's participation in such
underwriting and the inclusion of the Holder's Registrable Securities in the
underwriting to the extent provided herein. The Holders shall (together with the
Company and the Other Holders distributing their securities through such
underwriting) enter into underwriting
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agreement in customary form with the representative of the underwriter or
underwriters selected for underwriting by the Company. Notwithstanding any other
provision of this Section 2, if the representative determines that marketing
factors require a limitation on the number of securities to be underwritten, the
representative may (subject to the allocation priority set forth below) limit
the number of Registrable Securities to be included in the registration and
underwriting. The Company shall so advise all holders of securities requesting
registration, and the number of securities that are entitled to be included in
the registration and underwriting shall be allocated in the following manner:
(i) first, if the registration pursuant to this Section 2 was initiated by Other
Holders exercising demand registration rights, 100% of the securities such Other
Holders propose to sell (except to the extent the terms of such Other Holders'
registration rights provide otherwise); (ii) second, 100% of the securities the
Company proposes to sell for its own account; and (iii) third, to the extent
that the number of securities which such Other Holders exercising demand
registration rights and the Company propose to sell is less than the number of
securities that the Company has been advised can be sold in such offering
without having the adverse effect referred to above, such number of Registrable
Securities which the Holders have requested to be included in such registration
and such number of securities which Other Holders have requested to be included
in such registration, in each case pursuant to Section 2(a) hereof or other
piggyback or incidental registration rights and which, in the opinion of such
managing underwriter or underwriters, can be sold without having the adverse
effect referred to above, such number of Registrable Securities and other
securities to be included on a pro rata basis among the Holders and Other
Holders on the basis of the relative number of Shares beneficially owned (as
such term is used in Rule 13d-3 of the Exchange Act) by the Holders and Other
Holders, (provided that if the number of Registrable Securities requested to be
included in such registration by the Holders pursuant to this Section 2.2 and
the Other Holders exceeds the number that the Company has been advised can be
sold in such offering without having the adverse effect referred to above, the
number of such Registrable Securities to be included in such registration by the
Holders shall be allocated pro rata among the Holders and such Other Holders on
the basis of the relative number of Registrable Securities each such Holder has
requested to be included in such registration). No Holder of Registrable
Securities may participate in any registration that is underwritten unless such
Holder (a) agrees to sell such securities on the basis provided in any
underwriting arrangements approved by the Company and (b) completes and executes
all questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required under the terms of such underwriting arrangements. If
any Holder disapproves of the terms of any such underwriting, such person may
elect to withdraw therefrom by written notice to the Company and the
underwriter. Any Registrable Securities or other securities excluded or
withdrawn from such underwriting shall be withdrawn from such registration.
2.3 Minimum Amount. Notwithstanding Section 2.2 hereof, the Company will
not be required to include the Holders' Registrable Securities with respect to
any request under Section 2.2 if the Registrable Securities covered thereby
constitute less than the amount that the Holders at the time of such
registration would be permitted to sell pursuant to Rule 144 of the Act.
3. Expenses of Registration. All Registration Expenses incurred in connection
with any registration, qualification or compliance pursuant to this Agreement
shall be borne by the Company, and all Selling Expenses shall be borne by the
Holders of the securities so registered pro rata on the basis of its securities
so registered.
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4. Registration Procedures. In the case of each registration effected by the
Company pursuant to this Agreement, the Company will keep the Holders, as
applicable, advised in writing as to initiation of each registration and as to
the completion thereof. At its expense, the Company will:
4.1 keep such registration effective for a period of 120 days or until the
Holders, as applicable, have completed the distribution described in the
registration statement relating thereto, whichever first occurs; provided,
however, that in the case of any registration of Registrable Securities on Form
S-3 which are intended to be offered on a continuous or delayed basis, such
120-day period shall be extended until all such Registrable Securities are sold,
provided that Rule 415, or any successor rule under the Act, permits an offering
on a continuous or delayed basis, and provided further that applicable rules
under the Act governing the obligation to file a post-effective amendment
permit, in lieu of filing a post-effective amendment which (y) includes any
prospectus required by Section 10(a) of the Act or (z) reflects facts or events
representing a material or fundamental change in the information set forth in
the registration statement, the incorporation by reference of information
required to be included in (y) and (z) above to be contained in periodic reports
filed pursuant to Section 12 or 15 (d) of the Exchange Act in the registration
statement; and
4.2 furnish such number of prospectuses and other documents incident
thereto as the Holders, as applicable, from time to time may reasonably request.
5. Indemnification.
5.1 The Company will indemnify the Holders, their officers, directors and
partners, and each person controlling the Holders, as applicable, with respect
to each registration which has been effected pursuant to this Agreement, and
each underwriter, if any, and each person who controls any underwriter, against
all claims, losses, damages and liabilities (or actions in respect thereof)
arising out of or based on any true untrue statement (or alleged untrue
statement) of a material fact contained in any prospectus, offering circular or
other document (including any related registration statement, notification or
the like) incident to any such registration, qualification or compliance, 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 the Act or any rule or regulation
thereunder 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 the Holders, their officers, directors and
partners, and each person controlling the Holders, each such underwriter and
each person who controls any such underwriter, for any legal and any other
expenses reasonably incurred in connection with investigating and defending any
such claim, loss, damage, liability or action; provided, however, that the
Company will not be liable in any such case to the extent that any such claim,
loss, damage, liability or expense arises out of or is based on any untrue
statement or omission based upon written information furnished in writing to the
Company by the Holders (including their representatives) or underwriter and
stated to be specifically for use therein.
5.2 The Holders will, if Registrable Securities held by them are included
in the securities as to which such registration, qualification or compliance is
being effected, jointly and severally indemnify the Company, each of its
directors and officers and each underwriter, if any,
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of the Company's securities covered by such a registration statement, each
person who controls the Company or such underwriter within the meaning of the
Act and the rules and regulations thereunder, each Other Holder and each of
their officers, directors, and partners, and each person controlling such Other
Holder against all claims, losses, damages and liabilities (or actions in
respect thereof) arising out of or based on any untrue statement (or alleged
untrue statement) of a material fact contained in any such registration
statement, prospectus, offering circular or other document made by such Holder,
or any omission (or alleged omission) to state therein a material fact required
to be stated therein or necessary to make the statements by such Holder therein
not misleading, and will reimburse the Company and such Other Holders,
directors, officers, partners, persons, underwriters or control persons for any
legal or any other expenses reasonly incurred in connection with investigating
or defending any such claim, loss, damage, liability or action, 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, offering circular or other document in reliance upon and
in conformity with written information furnished in writing to the Company by
such Holder or its representatives and stated to be specifically for use
therein; provided, however, that the obligations of the Holders hereunder shall
be limited to an amount equal to the net proceeds to such Holders of securities
sold as contemplated herein.
5.3 Each party entitled to indemnification under this Section 5 (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, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom; provided, however, that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or any
litigation resulting therefrom, shall be approved by the Indemnified Party
(whose approval shall not unreasonably be withheld) and the Indemnified Party
may participate in such defense at such party's expense (unless the Indemnified
Party shall have reasonably concluded that there may be a conflict of interest
between the Indemnifying Party and the Indemnified Party in such action, in
which case the fees and expenses of counsel shall be at the expense of the
Indemnifying Party), and 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 Section 5 unless the Indemnifying Party is
materially prejudiced thereby. No Indemnifying Party, in the defense of any such
claim or litigation, shall, except with the consent of each Indemnified Party,
consent to entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such Indemnified Party of a release from all liability in respect to such
claim or litigation. Each Indemnified Party shall furnish such information
regarding itself or the claim in question as an Indemnifying Party may
reasonably request in writing and as shall be reasonably required in connection
with the defense of such claim and litigation resulting therefrom.
5.4 If the indemnification provided for in this Section 5 is held by a
court of competent jurisdiction to be unavailable to an Indemnified Party with
respect to any loss, liability, claim, damage or expense referred to herein,
then the Indemnifying Party, in lieu of indemnifying such Indemnified Party
hereunder, shall contribute to the amount paid or payable by such Indemnified
Party as a result of such loss, liability, claim, damage or expense in such
proportion as is appropriate to reflect the relative fault of the Indemnifying
Party on the one hand and of the Indemnified Party on the other in connection
with the statements or omissions which
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resulted in such loss, liability, claim, damage or expense, as well as any other
relevant equitable considerations. The relative fault of the Indemnifying Party
and of the Indemnified Party shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
Indemnifying Party or by the Indemnified Party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
5.5 Notwithstanding the foregoing, to the extent that the provisions on
indemnification and contribution contained in the underwriting agreement entered
into in connection with any underwritten public offering contemplated by this
Agreement are in conflict with the foregoing provisions, the provisions in such
underwriting agreement shall be controlling.
5.6 The foregoing indemnity agreement of the Company and the Holders is
subject to the condition that, insofar as they relate to any loss, claim,
liability or damage relating to an alleged untrue statement of a material fact
or an omission to state a material fact required to be stated therein or
necessary to make a statement therein not misleading made in a preliminary
prospectus but eliminated or remedied in the amended prospectus on file with the
Commission at the time the registration statement in question becomes effective
or the amended prospectus filed with the Commission pursuant to Commission Rule
424(b) (the "Final Prospectus"), such indemnity agreement shall not inure to the
benefit of any underwriter if a copy of the Final Prospectus was furnished to
the underwriter and was not furnished to the person asserting the loss,
liability, claim or damage at or prior to the time such action is required by
the Act.
6. Information by the Holders. Each Holder, and each Other Holder holding
securities included in any registration, shall, from and after the Closing Date,
furnish to the Company such information regarding itself and the distribution
proposed by it as the Company may reasonably request in writing and as shall be
reasonably required in connection with any registration, qualification or
compliance referred to in this Agreement.
7. Rule 144 Reporting. With a view to making available the benefits of certain
rules and regulations of the Commission which may permit the sale of restricted
securities to the public without registration, from the Closing Date until no
Holder is entitled to further participation in registrations pursuant to Section
2, the Company agrees to:
7.1 make and keep public information available as those terms are
understood and defined in Rule 144 under the Securities Act, at all times from
and after the date hereof;
7.2 use its best efforts to file with the Commission in a timely manner all
reports and other documents required of the Company under the Act and the
Exchange Act at any time after it has become subject to such reporting
requirements; and
7.3 so long as any Holder owns any Registrable Securities, furnish to such
Holder upon request a written statement by the Company as to its compliance with
the reporting requirements of Rule 144 and of the 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 as such Holder may reasonably request in
availing itself of any rule or regulation of the Commission allowing such Holder
to sell any such securities without registration.
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8. Notices. Any notice or other communication required or permitted to be
given hereunder shall be in writing and shall be effective (a) upon hand
delivery or delivery by telecopy or facsimile at the address or number
designated below (if delivered on a business day during normal business hours
where such notice is to be received), or the first business day following such
delivery (if delivered other than on a business day during normal business hours
where such notice is to be received) or (b) on the third business day following
the date of mailing by express courier service, fully prepaid, addressed to such
address, or upon actual service, fully prepaid, addressed to such address, or
upon actual receipt of such mailing, whichever shall first occur. The addresses
for such communications shall be:
To the Company:
Penton Media, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Chief Executive Officer
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇
North Point
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
To New Hope:
New Hope Communications, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Chairman and Chief Executive Officer
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
If to any other Holder, to such name at such address as such Holder shall
have indicated in a written notice delivered to the other parties to this
Agreement.
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Any party hereto may from time to time change its address for notices under
this Section 8 by giving at least 10 days' notice of such changes to the other
parties hereto.
9. Termination. This Agreement will terminate when the number of Registrable
Securities falls below 1% of the issued and outstanding Shares.
10. Waivers. No waiver by any party of any default with respect to any
provision, condition or requirement hereof shall be deemed to be a continuing
waiver in the future thereof or a waiver of any other provision, condition or
requirement hereof; nor shall any delay or omission of any party to exercise any
right hereunder in any manner impair the exercise of any such right accruing to
it thereafter.
11. Headings. The headings herein are for convenience only, do not constitute
a part of this Agreement and shall not be deemed to limit or affect any of the
provisions hereof.
12. Successors and Assigns; Amendments. This Agreement shall be binding upon
and inure to the benefit of the parties and their successors and assigns,
including without limitation and without the need for an express assignment each
subsequent Holder of any Registrable Securities. Except as provided in this
Section 12, neither the Company nor any Holder shall assign this Agreement or
any rights hereunder without the prior written consent of the other parties
hereto; provided, however, that New Hope may assign its rights hereunder in
whole or in part to each and to any of the Permitted Assignees without the
written consent of the Company. The assignment by a party of this Agreement or
any rights hereunder shall not affect the obligations of such party hereunder.
This Agreement may not be amended except by a written instrument by the parties
hereto.
13. No Third Party Beneficiaries. This Agreement is intended for the benefit
of the parties hereto and their respective permitted successors and assigns and
is not for the benefit of, nor may any provision hereof be enforced by, any
other person except R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
14. Governing Law. This Agreement shall he governed by and construed and
enforced in accordance with the internal laws of the State of New York without
regard to the principles of conflicts of laws.
15. Entire Agreement. This Agreement contains the entire agreement of the
parties hereto in respect of the subject matter hereof and supersedes all prior
agreements and understandings between the parties with respect to the subject
matter hereof.
16. Counterparts. This Agreement may be executed in two or more counterparts,
all of which shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to the
other party, it being understood that both parties need not sign the same
counterpart.
17. Severability. If any term or provisions of this Agreement is held by a
court of competent jurisdiction to be invalid, void, or unenforceable, the
remainder of the terms and provisions set forth herein shall remain in full
force and effect and shall in no way be affected, impaired or invalidated, and
the parties hereto shall use their best efforts to find and employ an
alternative
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means to achieve the same or substantially the same result as that contemplated
by such term or provision.
18. Further Assurances. Subject to the specific terms of this Agreement, each
Holder and the Company shall make, execute, acknowledge and deliver such other
instruments and documents, and take all such other actions, as may be reasonably
required in order to effectuate the purposes of this Agreement and to consummate
the transactions contemplated hereby.
19. Recapitalization, Exchanges, etc., Affecting the Company's Capital Stock.
The provisions of this Agreement shall apply to the full extent set forth herein
with respect to any and all shares of capital stock of the Company or any
successor or assign of the Company (whether by merger, consolidation, sale of
assets or otherwise), or at the election of the Holders, any person who controls
any of the foregoing, which may be issued in respect of, in exchange for or in
substitution of, the Registrable Securities.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date and year first above written.
PENTON MEDIA, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Chief Executive Officer
NEW HOPE COMMUNICATIONS, INC.
By: /s/ R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
Name: R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President and Chief
Executive Officer