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EQUITY REGISTRATION RIGHTS AGREEMENT
Dated as of February 16, 1999
among
COMPLETEL LLC,
COMPLETEL HOLDINGS LLC,
COMPLETEL (N.A.) N.V.
and
COMPLETEL EUROPE N.V.
as Issuers
MADISON DEARBORN CAPITAL PARTNERS II, L.P.
and
▇▇▇▇▇▇▇▇ HOLDINGS LIMITED PARTNERSHIP
as Shareholders to the limited extent set forth herein
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.,
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED,
TD SECURITIES (USA) INC.
and
PARIBAS CORPORATION
as Initial Purchasers,
AND
U.S. BANK TRUST NATIONAL ASSOCIATION
as Transfer Agent to the limited extent
set forth herein
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THIS EQUITY REGISTRATION RIGHTS AGREEMENT (the "AGREEMENT") is
made and entered into as of February 16, 1999, among CompleTel LLC, a Delaware
limited liability company ("PARENT"), CompleTel Holdings LLC, a Delaware limited
liability company (the "LLC"), CompleTel (N.A.) N.V., a Netherlands Antilles
limited liability company ("CNANV"), CompleTel Europe N.V., a Netherlands
private company with limited liability (the "COMPANY," and together with Parent,
LLC and CNANV, the "ISSUERS"), Madison Dearborn Capital Partners II, L.P.
("MDP"), ▇▇▇▇▇▇▇▇ Holdings Limited Partnership ("LPL," and together with MDP,
the "SHAREHOLDERS"), and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. ("SALOMON"), ▇▇▇▇▇▇▇ Lynch,
Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, TD
Securities (USA) Inc. And Paribas Corporation (collectively, the "INITIAL
PURCHASERS") and, as to Sections 3.2, 3.5, 3.6 and 8(d) only, U.S. Bank Trust
National Association (the "TRANSFER AGENT"). The Shareholders shall be deemed
not to be a party to Sections 2.1, 2.2, 3.5, 3.6, 3.7, 4, 5 and 6 hereof.
This Agreement is made pursuant to the Purchase Agreement, dated
as of February 16, 1999, among the Company, the LLC and the Initial Purchasers
(the "PURCHASE AGREEMENT"), relating to the sale by the Company and the LLC to
the Initial Purchasers of an aggregate of 147,500 Units (the "UNITS"), each Unit
consisting of US$1,000 principal amount at maturity of 14% Senior Discount Notes
due 2009 (the "NOTES") of the Company and 1,475,000 Non-Voting Class B
Membership Interests (each an "LLC SHARE") of the LLC. Pursuant to an agreement
among the Company, CNANV and the LLC dated February 16, 1999 (the "SUBSCRIPTION
AGREEMENT"), 31 capital shares of Netherlands Guilders ("NLG") 1,000 each of the
Company will be issued and delivered by the Company to CNANV for the benefit of
the LLC and 753 capital shares of US$1.00 each of CNANV will be issued and
delivered by CNANV to the LLC for the capital accounts of the holders of LLC
Shares issued as a part of the Units. In order to induce the Initial Purchasers
to enter into the Purchase Agreement, the Issuers have agreed to provide to the
Holders (as defined herein) the registration rights for the Registrable
Securities (as defined herein) set forth in this Agreement and the Shareholders,
for themselves and their Affiliates, and have agreed to provide the Holders,
among other things, the tag-along rights for the Shares (as defined herein) and
Registrable Securities set forth herein. The execution and delivery of this
Agreement by each of the parties hereto is a condition to the obligations of the
Initial Purchasers to purchase the Units under the Purchase Agreement.
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In consideration of the foregoing, the parties hereto agree as
follows:
1. DEFINITIONS. As used in this Agreement, the following capitalized
defined terms shall have the following meanings:
"ADVICE" shall have the meaning ascribed to that term in the last
paragraph of Section 4.
"AFFILIATE" means, when used with reference to any Person, any
other Person directly or indirectly controlling, controlled by, or under direct
or indirect common control with, the referent Person or such other Person, as
the case may be. For the purposes of this definition, "control" (including,
with correlative meanings, the terms "controlling," "controlled by," and "under
common control with"), when used with respect to any specified Person, means the
power to direct or cause the direction of management or policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise as such term is understood in the context of the Exchange
Act. For purposes of this definition of Affiliate, (i) the family group of
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ comprised of his spouse, siblings and descendants (whether
natural or adopted) and any of such descendants' spouses, any trust which at all
times is and remains solely for the benefit of ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and/or his
spouse, siblings, and/or descendants and/or such descendants' spouses, and any
family partnership the partners of which consists solely of ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, such spouse, such siblings, such descendants, such descendants'
spouses, and/or such trusts shall be deemed to be Affiliates of ▇▇▇▇▇▇▇▇
Holdings Limited Partnership and (ii) any partner of Madison Dearborn Capital
Partners II, L.P. on the date of this Agreement shall be deemed to be an
Affiliate of Madison Dearborn Capital Partners II, L.P.
"BLACK OUT PERIOD" shall have the meaning ascribed to that term in
Section 2.1(a).
"BUSINESS DAY" shall mean a day that is not a Legal Holiday.
"CAPITAL STOCK" shall mean, with respect to any Person, any and
all shares or other equivalents (however designated) of capital stock, capital
shares, partnership interests, member interests or any other participation,
right or other interest in the nature of an equity interest in such Person or
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any option, warrant or other security convertible into or exercisable or
exchangeable for any of the foregoing.
"CHANGE OF CONTROL" shall have the meaning ascribed to that term
in the Indenture governing the Notes, as in effect on the date hereof.
"COMMON STOCK" shall mean the capital shares of NLG 1,000 each of
the Company, and any capital share equivalents, participations or interests
comparable to any of the foregoing and any options, warrants, subscription bonds
or security convertible into or exercisable or exchangeable for any of the
foregoing.
"COMPANY REGISTRABLE SECURITIES" means Registrable Securities
issued by the Company or any of its successors, or the LLC or any of its
successors, as the case may be.
"CURRENT-MARKET VALUE" per share of Common Stock of the Company or
any other security at any date means (i) if the security is not registered under
the Exchange Act, the Fair Market Value of the security or (ii)(a) if the
security is registered under the Exchange Act, the average of the daily market
prices of the securities for the 20 consecutive trading days immediately
preceding such date, or (b) if the securities have been registered under the
Exchange Act for less than 20 consecutive trading days before such date, then
the average of the closing sales prices for all of the trading days before such
date for which closing sales prices are available, in the case of each of
(ii)(a) and (ii)(b), as certified to the Holders by the President, any Vice
President or the Chief Financial Officer of the Company. The market price for
each such trading day shall be: (A) in the case of a security listed or
admitted to trading on any United States national securities exchange or
quotation system, the closing sales price, regular way on such day, or if no
sale takes place on such day, the average of the closing bid and asked prices on
such day, (B) in the case of a security not then listed or admitted to trading
on any United States national securities exchange or quotation system, the last
reported sale price on such day, or if no sale takes place on such day, the
average of the closing bid and asked prices on such day, as reported by a
reputable quotation source designated by the Company, (C) in the case of a
security not then listed or admitted to trading on any national securities
exchange or quotation system and as to which no such reported sale price or bid
and asked prices are available, the average of the reported high bid and low
asked prices on such day, as reported by a reputable quotation service, or a
newspaper of
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general circulation in the Borough of Manhattan, City and State of New York,
customarily published on each Business Day, designated by the Company, or, if
there shall be no bid and asked prices on such day, the average ofthe high bid
and low asked prices, as so reported, on the most recent day (not more than 30
days prior to the date in question) for which prices have been so reported and
(D) if there are no bid and asked prices reported during the 30 days prior to
the date in question, the Current Market Value shall be determined as if the
securities were not registered under the Exchange Act.
"DEFINITIVE CERTIFICATE" refers to Shares that are not represented
by the Global Certificate and, instead, are issued in definitive registered
form.
"DEMAND REGISTRATION" shall have the meaning ascribed to that term
in Section 2.1(a).
"DEPOSITARY" means The Depository Trust Company, its nominees and
successors.
"EFFECTIVENESS PERIOD" shall have the meaning ascribed to that
term in Section 2.1(a).
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"EXCLUDED TRANSFER" shall mean (i) a Transfer by a Shareholder or
any of its Affiliates to a Shareholder or an Affiliate of a Shareholder, so long
as such transferee agrees to be bound by the transferor's obligations under this
Agreement to the same extent as the transferor, (ii) a Transfer pursuant to a
registered public offering, in which holders of Registrable Securities have
available to them (without cut-back) the rights provided under Section 2.2,
(iii) Transfers in the aggregate resulting in gross proceeds of $5,000,000 or
less to the Shareholders (which will be allocated pro rata among the
Shareholders based on their holdings of Parent Capital Stock on the date hereof,
unless otherwise agreed by the Shareholders) or (iv) Transfers to directors,
officers or other employees of Parent or CENV having a fair market value
(determined in each such case at the time of any such Transfer) not to exceed
$5,000,000 in aggregate amount.
"FAIR MARKET VALUE" shall mean the value of any securities as
determined (without any discount for lack of liquidity, the amount of such
securities proposed to be sold or the fact that such securities held by any
Holder of such security
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may represent a minority interest in a private company) by an Independent
Financial Expert selected by the Company for the determination of such value.
"FULLY DILUTED SHARES" shall mean the outstanding shares of Common
Stock of the Company, after giving effect to the exercise of all outstanding
options, subscription bonds, warrants or other rights or securities to acquire
Common Stock.
"GLOBAL CERTIFICATE" refers to the initial form of Share
certificates which, unless otherwise instructed, will be issued in global form
and held by the Depositary.
"HOLDER" shall mean the Initial Purchasers, for so long as the
Initial Purchasers own any Registrable Securities, and their successors, assigns
and direct and indirect transferees who become registered owners of Registrable
Securities.
"INCLUDED SECURITIES" shall have the meaning ascribed to that term
in the Section 3.3.
"INDEPENDENT FINANCIAL EXPERT" means a United States investment
banking firm of international standing in the United States and the European
Community (i) which does not, and whose directors, officers and employees or
Affiliates do not, have a direct or indirect material financial interest for its
proprietary account in the Company or any of its Affiliates and (ii) which, in
the judgment of the Board of Directors of Parent, is otherwise independent with
respect to the Company and its Affiliates and qualified to perform the task for
which it is to be engaged.
"INITIAL PUBLIC EQUITY OFFERING" means a primary public offering
(whether or not underwritten, but excluding any offering pursuant to Form S-8
under the Securities Act or any other publicly registered offering pursuant to
the Securities Act pertaining to an issuance of shares of Common Stock or
Membership Interests or securities exercisable therefor under any benefit plan,
employee compensation plan, or employee or director stock purchase plan) of
Common Stock or Membership Interests pursuant to an effective registration
statement under the Securities Act.
"INITIAL PURCHASERS" shall have the meaning ascribed to that term
in the preamble hereto.
"ISSUERS" shall have the meaning ascribed to that term in the
preamble hereto.
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"LEGAL HOLIDAY" shall mean a Saturday, a Sunday or a day on which
banking institutions in New York, New York or Amsterdam, the Netherlands are
required by law, regulation or executive order to remain closed.
"LIQUIDATION EVENT" shall have the meaning set forth in the LLC
Agreement.
"LLC AGREEMENT" shall mean the Limited Liability Company Agreement
of the LLC.
"LLC SHARES" shall have the meaning ascribed to that term in the
preamble hereto.
"LOCK UP PERIOD" shall have the meaning ascribed to that term in
Section 2.1(a).
"MEMBERSHIP INTERESTS" means any Capital Stock of the LLC, however
designated, and any other securities issued or issuable to or in exchange for
Membership Interests in connection with a recapitalizations merger,
consolidation or other reorganization or otherwise of the LLC.
"PARTICIPATING HOLDER" shall have the meaning ascribed to that
term in Section 3.3(a).
"PERSON" shall mean an individual, partnership, corporation,
limited liability company, trust or unincorporated organization, or a government
or agency or political subdivision thereof.
"PIGGY-BACK REGISTRATION" shall have the meaning ascribed to that
term in Section 2.2.
"PROPOSED PURCHASER" shall have the meaning ascribed to that term
in Section 3.3(a).
"PROPOSED TRANSFER DATE" shall have the meaning ascribed to that
term in Section 3.3(a).
"PROSPECTUS" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated pursuant to the
Securities Act), as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the Registrable
Securities covered by such Registration
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Statement, and all other amendments and supplements to any such prospectus,
including post-effective amendments, and all material incorporated by reference
or deemed to be incorporated by reference, if any, in such prospectus.
"PUBLIC OFFERING" means an offering (whether or not underwritten,
but excluding any offering pursuant to Form S-8 under the Securities Act or any
other publicly registered offering (regardless of the jurisdiction of any such
registration) pertaining to the issuance of shares of Common Stock or Membership
Interests or securities exercisable therefor under any employee or director
stock purchase plan) of Capital Stock of any Person which is eligible for sale
to the general public in the United States of America or in any jurisdiction
within the European Community.
"PURCHASE AGREEMENT" shall have the meaning ascribed to that term
in the preamble hereto.
"REGISTRABLE SECURITIES" shall mean any of (a) the Shares and (b)
any other securities issued or issuable with respect to or in exchange for the
Shares by way of stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization or otherwise. As to any particular Registrable Securities, such
securities shall cease to be Registrable Securities when (a) a Registration
Statement with respect to the offering of such securities by the Holder thereof
shall have been declared effective under the Securities Act and such securities
shall have been disposed of by such Holder pursuant to such Registration
Statement, (b) such securities have been sold to the public pursuant to Rule 144
(or any similar provision then in force, but not Rule 144A) promulgated under
the Securities Act or are eligible for sale in all respects to the public
without volume or manner of sale restrictions under Rule 144(k) (or any similar
provision then in force, but not Rule 144A) promulgated under the Securities
Act, (c) such securities shall have been otherwise transferred and new
certificates for such securities not bearing a legend restricting further
transfer shall have been delivered by the Company or the LLC, as the case may
be, or its transfer agent and subsequent disposition of such securities shall
not require registration or qualification under the Securities Act or any
similar state law then in force or (d) such securities shall have ceased to be
outstanding.
"REGISTRATION EXPENSES" shall mean all expenses incident to the
Company's performance of or compliance with this Agreement, including, without
limitation, all SEC and stock ex-
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change or National Association of Securities Dealers, Inc. registration and
filing fees and expenses, fees and expenses of compliance with securities or
blue sky laws (including, without limitation, in the event of an underwritten
offering, reasonable fees and disbursements of counsel for the underwriters in
connection with blue sky qualifications of the Registrable Securities), rating
agency fees, printing expenses, messenger, telephone and delivery expenses, fees
and disbursements of counsel for the Company and all independent certified
public accountants, and, in the event of an underwritten offering, the fees and
disbursements of underwriters customarily paid by issuers or sellers of
securities (but not including any underwriting discounts or commissions or
transfer taxes, if any, attributable to the sale of Registrable Securities by
Holders of such Registrable Securities).
"REGISTRATION STATEMENT" shall mean any registration statement of
the Company which covers any of the Registrable Securities pursuant to the
provisions of this Agreement and all amendments and supplements to any such
Registration Statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"REQUISITE SHARES" shall mean a number of Registrable Securities
equivalent to not less than 35% of the Registrable Securities.
"RULE 144" shall mean Rule 144 under the Securities Act, as such
Rule may be amended from time to time, or any similar rule (other than Rule
144A) or regulation hereafter adopted by the SEC providing for offers and sales
of securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
"RULE 144A" shall mean Rule 144A under the Securities Act, as such
Rule may be amended from time to time.
"SEC" shall mean the Securities and Exchange Commission.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended
from time to time.
"SHARES" shall mean (a) the LLC Shares sold to the Initial
Purchasers as part of the Units pursuant to the Pur-
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chase Agreement, whether held by any Initial Purchaser or any subsequent
assignee or transferee, (b) the Common Stock issued to CNANV for the benefit of
the LLC in connection with the transactions contemplated by the Purchase
Agreement, whether held by CNANV, the LLC or any subsequent assignee or
transferee and (c) any other securities issued or issuable with respect to or in
exchange for the foregoing by way of stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization or otherwise.
"TAG-ALONG NOTICE" shall have the meaning ascribed to that term in
Section 3.3(a).
"TAG-ALONG RIGHT" shall have the meaning ascribed to that term in
Section 3.3(a).
"TRANSFER" shall mean, with respect to Common Stock or LLC Shares,
any sale, assignment, gift, transfer, exchange, pledge or other disposition of
beneficial ownership of such securities.
"TRANSFER AGENT" shall have the meaning ascribed to that term in
the preamble hereto and shall include any other transfer agent or registrar for
any of the Shares. The Issuers will be required to cause each such transfer
agent to become a party hereto for purposes of Sections 3.5 to 3.7.
"TRANSFER NOTICE" shall have the meaning ascribed to that term in
Section 3.3 (a) .
"TRIGGERING DATE" shall mean the day on which a bona fide
underwritten public offering of Common Stock is consummated, as a result of
which at least 20% of the outstanding shares of Common Stock of the Company are
listed on a national securities exchange or the Nasdaq National Market System.
"TRIGGERING EVENT" shall mean the occurrence of any of the
following: (a) an Initial Public Equity Offering, (b) a Change of Control or (c)
the later to occur of (1) a Liquidation Event or (2) the fifth anniversary of
the date hereof.
"WITHDRAWAL ELECTION" shall have the meaning ascribed to that term
in Section 2.3(c).
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2. REGISTRATION RIGHTS.
2.1. DEMAND REGISTRATION. (a) REQUEST FOR REGISTRATION. At any
time on or after a Triggering Event, Holders owning, individually or in the
aggregate, at least the Requisite Shares may make two written requests for
registration (each a "DEMAND REGISTRATION") under the Securities Act of their
Company Registrable Securities. Any such request will specify the number of
Company Registrable Securities proposed to be sold and will also specify the
intended method of disposition thereof. Subject to the other provisions of this
Section 2.1, the Company or the LLC, as the case may be, shall give written
notice of such registration request within 10 days after the receipt thereof to
all other Holders. Within 30 days after receipt of such notice by any Holder,
such Holder may request in writing that its Company Registrable Securities be
included in such registration and the Company or the LLC, as the case may be,
shall include in the Demand Registration the Company Registrable Securities of
any such selling Holder requested to be so included. Each such request by such
other selling Holders shall specify the number of Company Registrable Securities
proposed to be sold and the intended method of disposition thereof. Upon a
demand, the Company or the LLC, as the case may be, will (i) prepare, file with
the SEC and use its reasonable best efforts to cause to become effective within
120 days of such demand a Registration Statement in respect-of all the Company
Registrable Securities which Holders request for inclusion therein; PROVIDED
that if such demand occurs during a Black Out Period or a period (not to exceed
180 days) during which the Company, or the LLC, as the case may be, is
prohibited or restricted from issuing or selling Common Stock or Membership
Interests generally pursuant to any underwriting or purchase agreement relating
to an offering of any such securities or securities convertible into or
exchangeable for any such securities in an offering under Rule 144A or an
underwritten public offering under the Securities Act (a "LOCK UP PERIOD"), the
Company or the LLC, as the case may be, shall not be required to notify the
Holders of such demand or file such Registration Statement prior to the end of
the Black out Period or Lock Up Period, as the case may be, in which event, the
Company or the LLC, as the case may be, will use its best efforts to cause such
Registration Statement to become effective no later than 30 days after the end
of the Black Out Period or Lock Up Period, as the case may be, and (ii) keep
such Registration Statement continuously effective for the shorter of (a) 180
days (the "EFFECTIVENESS PERIOD") and (b) such period of time as all of the
Company Registrable Securities included in such Registration Statement have been
sold thereunder; PROVIDED
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that the Company or the LLC, as the case may be, may postpone the filing period,
suspend the effectiveness of any registration, suspend the use of any Prospectus
and shall not be required to amend or supplement the Registration Statement, any
related Prospectus or any document incorporated therein by reference (other than
an effective registration statement being used for an underwritten offering) in
the event that, and for a period, in the case of any particular Demand
Registration, not to exceed an aggregate of 30 days ("BLACK OUT PERIOD") if (i)
an event or circumstance occurs and is continuing as a result of which the
Registration Statement, any related Prospectus or any document incorporated
therein by reference as then amended or supplemented would, in the Company's or
the LLC's, as the case may be, good faith judgment, contain an untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements therein (in the case of any Prospectus, in the light of the
circumstances under which they were made), not misleading, and (ii) the
disclosure otherwise relates to a material business transaction which has not
yet been publicly disclosed; PROVIDED, FURTHER, that the Effectiveness Period
shall be extended by the number of days in any Black Out Period.
In the event of the occurrence of any Black Out Period during an
Effectiveness Period or Lock Up Period, the Company or if the LLC has
consummated a Public Offering, the LLC will promptly notify the Holders of
Company Registrable Securities thereof in writing.
(b) EFFECTIVE REGISTRATION. A registration will not be deemed to
have been effected as a Demand Registration, and thereby satisfy the obligation
hereunder, unless it has been declared effective by the SEC and the Company or
the LLC, as the case may be, has complied in all material respects with its
obligations under this Agreement with respect thereto; PROVIDED that if, after
it has become effective, the offering of Company Registrable Securities pursuant
to such registration is or becomes the subject of any stop order, injunction or
other order or requirement of the SEC or any other governmental or
administrative agency, or if any court prevents or otherwise limits the sale of
Company Registrable Securities pursuant to the registration (for any reason
other than the act or omissions of the Holders) for the period of time
contemplated hereby, such registration will be deemed not to have been effected.
If (i) a registration requested pursuant to this Section 2.1 is deemed not to
have been effected or (ii) the registration requested pursuant to this Section
2.1 does not remain effective for the Effectiveness Period, then the Company or
the LLC, as the case
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may be, shall continue to be obligated to effect an additional registration
pursuant to this Section 2.1. The Holders of Company Registrable Securities
shall be permitted to withdraw all or any part of the Company Registrable
Securities from a Demand Registration at any time prior to the effective date of
such Demand Registration. If at any time a Registration Statement is filed with
the SEC pursuant to a Demand Registration, and subsequently a sufficient number
of the Company Registrable Securities are withdrawn from the Demand Registration
so that such Registration Statement does not cover that number of Company
Registrable Securities at least equal to 25% of the Registrable Securities, the
Holders who have not withdrawn their Company Registrable Securities shall have
the opportunity to include an additional number of Company Registrable
Securities in the Demand Registration so that such Registration Statement covers
that number of Company Registrable Securities at least equal to 25% of the
Registrable Securities. If an additional number of Company Registrable
Securities is not so included, the Company or the LLC, as the case may be, may
withdraw the Registration Statement. Such withdrawn Registration Statement ill
not count as a Demand Registration and the Company or the LLC, as the case may
be, shall continue to be obligated to effect a registration pursuant to this
Section 2.1; PROVIDED the Holders that requested withdrawal shall be obligated
to reimburse the Company or the LLC, as the case may be, for all customary and
reasonable out-of-pocket expenses incurred by it in performing its obligations
hereunder with respect to such withdrawn Registration Statement.
(c) PRIORITY IN DEMAND REGISTRATIONS PURSUANT TO SECTION 2.1. If
a Demand Registration pursuant to this Section 2.1 involves an underwritten
offering and the lead managing underwriter advises the Company or the LLC, as
the case may be, in writing that, in its view, the number of Company Registrable
Securities requested by the Holders to be included in such registration,
together with any other securities to be included in such registration exceeds
the number which, can be sold without adversely affecting the offering: FIRST,
the securities other than the Company Registrable Securities of the Holders
included in such registration shall be reduced in their entirety before any
reduction of Company Registrable Securities; and SECOND, to the extent the
reduction set forth in the immediately preceding clause is insufficient to
reduce the number of securities requested for inclusion in such registration to
a number, which, in the view of such lead managing underwriter, can be sold
without adversely affecting the offering, the number of such Company Registrable
Securities to be included in such registration shall be allocated PRO RATA among
all requesting Holders
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on the basis of the relative number of Company Registrable Securities then held
by each such Holder (provided that any Company Registrable Securities thereby
allocated to any such Holder that exceed such Holder's request shall be
reallocated among the remaining requesting Holders in like manner). In the
event that the number of Company Registrable Securities requested to be included
in such registration is less than the number which, in the view of the lead
managing underwriter, can be sold without adversely affecting the offering, the
Company or the LLC, as the case may be, may include in such registration the
securities of the Company or the LLC, as the case may be, or any other Person up
to the number of securities that, in the view of the lead managing underwriter,
can be sold without adversely affecting the offering.
(d) SELECTION OF UNDERWRITER. If the Holders so elect, the
offering of such Company Registrable Securities pursuant to a Demand
Registration shall be in the form of an underwritten offering. The Company or
the LLC, as the case may be, shall select one or more nationally (in the United
States) recognized firms of investment bankers (to whom a majority of Holders
making such Demand Registration shall not have reasonably objected) to act as
the managing underwriter or underwriters (and if more than one Managing
Underwriter is selected, the Company or the LLC, as the case may be, shall also
name the lead managing underwriter) in connection with such offering and shall
select any additional investment bankers and managers to be used in connection
with the offering.
(e) EXPENSES. The Company or the LLC, as the case may be, will
pay all Registration Expenses in connection with the registration requested
pursuant to Section 2.1(a). Each Holder shall pay all underwriting discounts
and commissions and transfer taxes, if any, relating to the sale or disposition
of such Holder's Company Registrable Securities pursuant to a registration
statement requested pursuant to this Section 2.1.
(f) ABILITY OF HOLDERS OF LLC SHARES TO EFFECT RIGHTS. In the
event that the Initial Public Equity Offering occurs but a Liquidation Event has
not occurred, Holders of Registrable Securities of the LLC will be entitled to
the rights and privileges pertaining to Company Registrable Securities in
accordance with each such Holder's Percentage Interest (as defined in the
limited liability company agreement of the LLC) with respect to the Company
Registrable Securities held by the LLC notwithstanding that a Liquidation Event
has not occurred and Holders may cause the LLC to deliver Company Regis-
-14-
trable Securities for inclusion in a Demand Registration pursuant to this
Section 2.1.
2.2. PIGGY-BACK REGISTRATION. If at any time any of the Issuers
proposes to file a Registration Statement under the Securities Act with respect
to an offering by such Issuer for its own account or for the account of any of
its respective securityholders of any class of Common Stock or of securities
representing beneficial ownership of Common Stock (other than (i) a registration
statement on Form ▇-▇, ▇-▇ or F-4 (or any substitute form that may be adopted by
the SEC), (ii) a registration statement filed in connection with an offer or
offering of securities solely to such Issuer's existing securityholders or (iii)
a Demand Registration), then such Issuer shall give written notice of such
proposed filing to the Holders of Registrable Securities as soon as practicable
(but in no event less than 20 Business Days before the anticipated filing date),
and such notice shall offer such Holders the opportunity to register such number
of Registrable Securities as each such Holder may request (which request shall
specify the Registrable Securities intended to be disposed of by such Holder (a
"PIGGY-BACK REGISTRATION"). Such Issuer shall use its reasonable best efforts
to cause the managing underwriter or underwriters of such proposed underwritten
offering to permit the Registrable Securities requested to be included in a
Piggy-Back Registration and to permit the sale or other disposition of such
Registrable Securities in accordance with the intended method of distribution
thereof; PROVIDED, HOWEVER, in no event shall such Issuer be required to reduce
the number of securities proposed to be sold by such Issuer or alter the terms
of the securities proposed to be sold by such issuer in order to induce the
managing underwriter or underwriters to permit Registrable Securities to be
included. The Registrable Securities shall be included on the same terms and
conditions as any similar securities of such Issuer or any other securityholder
included therein. Any Holder shall have the right to withdraw its request for
inclusion of its Registrable Securities in any Registration Statement pursuant
to this Section 2.2 by giving written notice to such Issuer of its request to
withdraw prior to the effectiveness of the Registration Statement. An Issuer
may withdraw a Piggy-Back Registration at any time prior to the time it becomes
effective; PROVIDED that such Issuer shall give prompt notice thereof to
participating Holders. The Company will pay all Registration Expenses in
connection with each registration of Registrable Securities requested pursuant
to this Section 2.2, and each Holder shall pay all underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or
-15-
disposition of such Holder's Registrable Securities pursuant to a registration
statement effected pursuant to this Section 2.2.
No registration effected under this Section 2.2, and no failure to
effect a registration under this Section 2.2, shall relieve an Issuer of its
obligation to effect a registration upon the request of Holders pursuant to
Section 2.1, and no failure to effect a registration under this Section 2.2 and
to complete the sale of Registrable Securities in connection therewith shall
relieve an Issuer of any other obligation under this Agreement.
Notwithstanding anything in this Agreement to the contrary,
Holders of Registrable Securities will not have Piggyback Registration rights in
respect of an Initial Public Equity Offering in which no shareholder or member,
as the case may be, of any of the Issuers is a participant.
2.3. REDUCTION OF OFFERING. (a) If the lead managing
underwriter of any underwritten offering described in Section 2.2 has informed,
in writing, the Holders of the Registrable Securities requesting inclusion in
such offering that it is its view that the total number of securities which an
Issuer, the Holders and any other Persons desiring to participate in such
registration intend to include in such offering is such as to materially and
adversely affect the success of such offering, including the price at which such
securities can be sold, then the number of Registrable Securities to be offered
for the account of such Holders and the number of such securities to be offered
for the account of all such other Persons (other than the Company) participating
in such registration shall be reduced or limited PRO RATA in proportion to the
respective number of securities requested to be registered to the extent
necessary to reduce the total number of securities requested to be included in
such offering to the number of securities, if any, recommended by such lead
managing underwriter; PROVIDED that if such offering is effected for the account
of any securityholder of the Company other than the Holders or the Shareholders
(either directly or through any of the Issuers), pursuant to the demand
registration rights of any such securityholder, then the number of securities to
be offered for the account of the Company (if any) and the Holders (but not such
securityholders who have exercised their demand registration rights) shall be
reduced or limited PRO RATA in proportion to the respective number of securities
requested to be registered to the extent necessary to reduce the total number of
securities requested to be included in such offering to the number of
securities, if any, recommended by such lead managing underwriter.
-16-
(b) If the lead managing underwriter of any underwritten offering
described in Section 2.2 notifies the Holders requesting inclusion of
Registrable Securities in such offering, that the kind of securities that such
Holders, the Company and any other Persons desiring to participate in such
registration intend to include in such offering is such as to materially and
adversely affect the success of such offering, (x) the Registrable Securities to
be included in such offering shall be reduced as described in clause (i) above
or (y) if a reduction in the Registrable Securities pursuant to clause (i) above
would, in the judgment of the lead managing underwriter, be insufficient to
substantially eliminate the adverse effect that inclusion of the Registrable
Securities requested to be included would have on such offering, such
Registrable Securities will be excluded from such offering.
(c) If, as a result of the proration provisions of this Section
2.3, any Holder shall not be entitled to include all Registrable Securities in a
Piggy-Back Registration that such Holder has requested to be included, such
Holder may elect to withdraw his request to include Registrable Securities in
such registration (a "WITHDRAWAL ELECTION"); PROVIDED that a Withdrawal Election
shall be made prior to the effectiveness of the Registration Statement and shall
be irrevocable and, after making a Withdrawal Election, a Holder shall no longer
have any right to include Registrable Securities in the registration as to which
such Withdrawal Election was made.
(d) Holders of Registrable Securities of the LLC will be entitled
to the rights and privileges pertaining to Company Registrable Securities in
accordance with each such Holder's Percentage Interest with respect to the
Company Registrable Securities held by the LLC notwithstanding that a
Liquidation Event has not occurred and Holders may cause the LLC to deliver
Company Registrable Securities for inclusion in a Piggy-Back Registration
pursuant to this Section 2.3.
3. TRANSFERS.
3.1. GENERALLY. All Shares and Registrable Securities at any
time and from time to time outstanding shall be held subject to the conditions
and restrictions set forth in this Section 3. All shares of Capital Stock of
the Issuers now or hereafter beneficially owned by the Shareholders and each of
their Affiliates shall be held subject to the conditions and restrictions set
forth in Section 3.2 and 3.3 and certain other restrictions on transfers under
the Securities Act. Each Holder of Shares and Registrable Securities and each
of the
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Shareholders by executing this Agreement or by accepting a certificate
representing Capital Stock or other indicia of ownership therefor from an Issuer
agree with each Issuer to such conditions and restrictions.
3.2. RESTRICTIONS ON TRANSFER. (a) The LLC shall keep, at the
office or agency maintained by the LLC for such purpose in the City of New York,
Borough of Manhattan, a register or registers in which, subject to such
reasonable regulations as it may prescribe, the LLC shall provide for the
registration of, and registration of transfer of, Shares of the LLC as provided
in this Article. The Company shall at all times maintain appropriate and
customary arrangements providing for the registration of, and registration of
transfer of, Shares as provided in this Article. Each person designated by an
Issuer from time to time as a person authorized to register the transfer and
exchange of the Shares of such Issuer is hereinafter called, individually and
collectively, the "TRANSFER AGENT" and shall be required to agree to Sections
3.2 through 3.5 hereof. The LLC has initially appointed U.S. Bank Trust
National Association as Transfer Agent with respect to Shares of the LLC. The
Company has initially appointed U.S. Bank Trust National Association as Transfer
Agent with respect to Shares of the Company. Upon written notice by any Issuer
to any acting Transfer Agent, such Issuer may appoint a successor Transfer Agent
for such purposes.
(b) Any Transfer made in violation of this Agreement by a
Shareholder or any of its Affiliates shall be deemed null and void and shall not
be recorded as a transfer upon the transfer books of the applicable Issuer.
Each certificate representing beneficial ownership of shares of Common Stock
held by a Shareholder and each of its Affiliates shall contain conspicuous
notation on such certificate indicating that the transfer of such shares is
subject to the terms and restrictions of this Agreement, and each of the
Shareholders hereby consents to the placement of such legend on the certificate
or certificates representing the beneficial ownership of shares of Common Stock
owned by such party.
3.3. TAG-ALONG RIGHTS. (a) In the event of any proposed direct
or indirect Transfer of beneficial ownership of Common Stock (whether now or
hereafter issued) by Parent (in the case of the LLC), the LLC (in the case of
CNANV), CNANV (in the case of the Company) or a Shareholder or any of its
Affiliates (in the case of Parent) (the "PROPOSED SELLER") in any transaction or
series of related transactions (including any proposed direct or indirect
transfer of Common Stock by the LLC
-18-
for the capital account of any Shareholder or any Affiliate having an interest
in the LLC) to any Person (other than an Excluded Transfer or a Transfer of
beneficial ownership of Common Stock by the LLC to the Member of the LLC whose
capital account is at such time credited with such Common Stock upon the
occurrence of a Liquidation Event) (such other Person being hereinafter referred
to as the "PROPOSED PURCHASER") at any time prior to the Triggering Date, the
holders of Shares and Registrable Securities shall have the irrevocable and
exclusive right, but not the obligation (the "TAG-ALONG RIGHT"), to require the
Proposed Purchaser to purchase from each of them up to such number of Shares and
Registrable Securities (the "INCLUDED SECURITIES") determined in accordance with
Section 3.3(c). The Proposed Seller shall give written notice (a "TRANSFER
NOTICE") at least 30 days prior to the date of the proposed Transfer (the
"PROPOSED TRANSFER DATE") to the holders of Shares and Registrable Securities
stating (i) the name and address of the Proposed Purchaser, (ii) the proposed
amount of consideration, terms and conditions of payment offered by such
Proposed Purchaser (if the proposed consideration is not cash, the Transfer
Notice shall describe the terms of the proposed consideration) and the time and
place of the closing for the proposed Transfer, (iii) the number of shares of
Common Stock and other securities proposed to be directly or indirectly
Transferred by the Proposed Seller and/or its Affiliates and (iv) either that
the Proposed Purchaser has been informed of the Tag-Along Right and has agreed
to purchase Shares and Registrable Securities in accordance with the terms
hereof or that the Proposed Seller or any of its Affiliates will make such
purchase. The Tag-Along Right shall be exercised by any or all of the holders
of Shares and Registrable Securities by giving written notice to the Issuers of
the Shares or Registrable Securities proposed to be sold ("TAG-ALONG NOTICE"),
within 20 days of receipt of the Transfer Notice, indicating its election to
exercise the Tag-Along Right (the "PARTICIPATING HOLDERS"). The Tag-Along
Notice shall state the amount of Shares and Registrable Securities that such
holder proposes to include in such Transfer to the Proposed Purchaser. Failure
by any holder to give such notice within the 20-day period shall be deemed an
election by such holder not to sell its Shares and Registrable Securities
pursuant to that Transfer. The closing with respect to any sale to a Proposed
Purchaser pursuant to this Section shall be held at the time and place specified
in the Transfer Notice but in any event within 60 days of the Proposed Transfer
Date; PROVIDED that if through the exercise of reasonable efforts the Proposed
Seller or any of its Affiliates is unable to cause such transaction to close
within 60 days, such period may be extended for such reasonable period of time
as may be neces-
-19-
sary to close such transaction. Consummation of the sale of Common Stock or
other securities by the Proposed Seller and/or its Affiliates to a Proposed
Purchaser shall be conditioned upon consummation of the sale by each
Participating Holder to such Proposed Purchaser (or the Proposed Seller) of the
Included Securities, if any.
(b) In the event that the Proposed Purchaser does not purchase
Included Securities from the holders on the same terms and conditions as
purchased from the Proposed Seller and its Affiliates, then the Proposed Seller
or such Affiliate shall purchase, or cause another Person to purchase, such
Included Securities if the Transfer occurs.
(c) Each holder of Shares and Registrable Securities shall have
the right to require the Proposed Purchaser to purchase from such holder up to a
percentage of the number of Shares and Registrable Securities owned by such
holder equaling the percentage derived by dividing the total number of shares of
Common Stock that the Proposed Seller and its Affiliates propose to directly or
indirectly Transfer by the total number of shares of Common Stock at the time
beneficially owned by the Proposed Seller and its Affiliates; PROVIDED that in
the event of any proposed Transfer, either at the time or as a result of which
there would result a Change of Control, each holder of Shares and Registrable
Securities shall have the right to require the Proposed Purchaser to purchase
all of the Shares and Registrable Securities owned by such holder.
(d) Any Shares and/or Registrable Securities purchased from the
Participating Holders pursuant to this Section 3.3 shall be paid for in the same
type of consideration and at the same price per share of Common Stock and upon
the same terms and conditions of such proposed Transfer of Common Stock by the
Proposed Seller and/or any of its Affiliates. If the proposed Transfer involves
the transfer of equity interests other than Common Stock, the price to be paid
for any Shares and/or Registrable securities purchased from the Participating
Holders pursuant to this Section 3.3 shall be the same price per share of Common
Stock implied by the number of shares of beneficially owned Common Stock
directly or indirectly represented by the equity interests which are proposed
for Transfer. The Proposed Seller shall arrange for payment directly by the
Proposed Purchaser to each Participating Holder, upon delivery of the
certificate or certificates representing the Shares and/or Registrable
Securities duly endorsed for transfer, together with such other documents as the
Proposed Purchaser may reasonably request.
-20-
(e) If at the end of 60 days following the Proposed Transfer
Date, or as otherwise extended pursuant to the provisions of Section 3.3(a), the
sale of Common Stock by the Proposed Seller and/or its Affiliates and the sale
of the Included Securities have not been completed in accordance with the terms
of the Proposed Purchaser's offer, all certificates representing the Included
Securities shall be returned to the Participating Holders, and all the
restrictions on Transfer contained in this Agreement with respect to Common
Stock beneficially owned by the Proposed Seller and its Affiliates shall remain
in effect.
3.4. OBLIGATION TO SELL. If at any time prior to the Triggering
Date Parent and/or any of its Affiliates determine to sell all of the Capital
Stock of the Company (other than Capital Stock of the Company owned by
individuals who are directors and officers of Parent and who in the aggregate
own less than 25% of the Capital Stock of the Company) then beneficially owned
by Parent to a Person other than an Affiliate of Parent or Shareholder, Parent
shall have the right to require the Holders of Registrable Securities to sell
such Registrable Securities to such transferee; PROVIDED that (a) the
consideration to be received by the Shareholders of Registrable Securities shall
be the same type of consideration received by Parent and, in any event, shall be
cash and/or securities registered under the Securities Act and listed on a
national securities exchange or authorized for quotation on the Nasdaq National
Market System, (b) after giving effect to such transaction, Parent, its
Affiliates and the Shareholders and their Affiliates shall not beneficially own,
directly or indirectly, any Capital Stock or rights to purchase Capital Stock of
the Company and (c) the foregoing provisions shall not apply to sales of Common
Stock by the Company in a registered public offering under the Securities Act or
an offering pursuant to Rule 144A. Any Registrable Securities purchased from
the Holders pursuant to this Section 3.4 shall be paid for at the same price per
share of Common Stock and upon the same terms and conditions of such proposed
transfer of Common Stock by Parent. If the Registrable Securities to be
purchased include securities other than Common Stock, the price to be paid for
such securities shall be the same price per share or other denomination paid by
the Proposed Purchaser for like securities purchased from Parent, or, if like
securities are not purchased from the Shareholders and their Affiliates, the
Fair Market Value of such securities.
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3.5. REGISTRATION OF TRANSFERS OR EXCHANGES.
(a) TRANSFER OR EXCHANGE OF DEFINITIVE CERTIFICATES. When
Definitive Certificates are presented to the Transfer Agent with a request from
the holder:
(i) to register the transfer of the Definitive Certificates; or
(ii) to exchange such Definitive Certificates for an equal
number of Definitive Certificates of other authorized denominations,
the Transfer Agent shall register the transfer or make the exchange as requested
if the requirements under this Agreement as set forth in this Section 3.5 for
such transactions are met; PROVIDED, HOWEVER, that the Definitive Certificates
presented or surrendered by a holder for registration of transfer or ex- change:
(x) shall be duly endorsed or accompanied by a written instruction of
transfer or exchange in form satisfactory to the Company or the
LLC, as applicable, and the Transfer Agent, duly executed by such
holder or by his attorney, duly authorized in writing; and
(y) in the case of Registrable Securities which are presented for
transfer or exchange prior to (X) the date which is two years (or
such shorter period as may be prescribed by Rule 144(k) (or any
successor provision thereto)) after the later of the date of
original issuance of the Shares and the last date on which the
Company or the LLC or any or their affiliates was the owner of
such Shares, or any predecessor thereto, and (Y) such later date,
if any, as may be required by any subsequent change in applicable
law (the "RESALE RESTRICTION TERMINATION DATE"), such Shares shall
be accompanied by the following additional information and
documents, as applicable:
(A) if such Shares are being delivered to the Transfer Agent by
a holder for registration in the name of such holder,
without transfer, a certification from such holder to that
effect (in substantially the form of EXHIBIT C hereto); or
(B) if such Shares are being transferred to a qualified
institutional buyer (as defined in Rule
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144A under the Securities Act) (a "QIB") in accordance with
Rule 144A under the Securities Act, a certification from
the transferor to that effect (in substantially the form of
EXHIBIT C hereto); or
(C) if such Shares are being transferred to an institutional
"accredited investor" within the meaning of subparagraphs
(a)(1), (a)(2), (a)(3) or (a)(7) of Rule 501 under the
Securities Act (an "INSTITUTIONAL ACCREDITED INVESTOR"),
delivery by the transferor of a certification to that
effect (in substantially the form of EXHIBIT C hereto), and
delivery by the proposed transferee of a Transferee
Certificate for Institutional Accredited Investors (in
substantially the form of EXHIBIT D hereto); or
(D) if such Shares are being transferred in reliance on
Regulation S under the Securities Act, delivery by the
transferor of a certification to that effect (in
substantially the form of EXHIBIT C hereto), and a
Certificate for Regulation S Transfers in the form of
EXHIBIT E hereto; or
(E) if such Shares are being transferred in reliance on Rule
144 under the Securities Act, delivery by the transferor of
(i) a certification from the transferor to that effect (in
substantially the form of EXHIBIT C hereto), and (ii) an
opinion of counsel reasonably satisfactory to the Company
or the LLC, as the case may be, to the effect that such
transfer is in compliance with the Securities Act; or
(F) if such Shares are being transferred in reliance on another
exemption from the registration requirements of the
Securities Act, a certification from the transferor to that
effect (in substantially the form of EXHIBIT C hereto) and
an opinion of counsel reasonably satisfactory to the
Company or the LLC, as the case may be, to the effect that
such transfer is in compliance with the Securities Act;
PROVIDED that the Company or the LLC, as the case may be,
may, based upon the views of its own counsel, instruct the
Transfer Agent not to register such transfer in any case
where the proposed transferee is not a
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QIB, non-U.S. Person (as defined in Regulation S) or
Institutional Accredited Investor.
(b) RESTRICTIONS ON TRANSFER OF A DEFINITIVE CERTIFICATE FOR A
BENEFICIAL INTEREST IN A GLOBAL CERTIFICATE. A Definitive Certificate may not
be transferred by a holder for a beneficial interest in a Global Certificate
except upon satisfaction of the requirements set forth below. Upon receipt by
the Transfer Agent of a Definitive Certificate, duly endorsed or accompanied by
appropriate instruments of transfer, in form satisfactory to the Transfer Agent,
together with:
(A)(i) certification from such holder (in substantially the form
of EXHIBIT C hereto) that such Definitive Certificate is
being transferred to a QIB in accordance with Rule 144A
under the Securities Act; or
(ii) certification from such holder (in substantially the form
of EXHIBIT C hereto) that such Definitive Certificate is
being transferred to an Institutional Accredited Investor
and delivery by the proposed transferee of a Transferee
Certificate for Institutional Accredited Investors (in
substantially the form of EXHIBIT D hereto); or
(iii) certification form such holder (in substantially the form
of EXHIBIT C hereto) that such Definitive Certificate is
being transferred in reliance on Regulation S under the
Securities Act and delivery of a Certificate for Regulation
S Transfers in the form of EXHIBIT E hereto; or
(iv) certification form such holder (in substantially the form
of EXHIBIT C) that such Definitive Certificate is being
transferred in reliance on Rule 144 under the Securities
Act and delivery of an opinion of counsel reasonably
satisfactory to the Company or the LLC, as the case may be,
to the effect that such transfer is in compliance with the
Securities Act; or
(v) certification from such holder (in substantially in the
form of EXHIBIT C hereto)
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that such Definitive Certificate is being transferred
pursuant to another exemption from registration
requirements of the Securities Act and delivery of an
opinion of counsel reasonably satisfactory to the Company
or the LLC, as the case may be, to the effect that such
transfer is in compliance with the Securities Act; PROVIDED
that the Company or the LLC, as the case may be, may, based
upon the views of its own counsel, instruct the Transfer
Agent not to register such transfer in any case where the
proposed transferee is not a QIB, non-U.S. Person (as
defined in Regulation S) or Institutional Accredited
Investor; and
(B) written instructions directing the Transfer Agent to make,
or to direct the Depositary to make, an endorsement on the
Global Certificate to reflect an increase in the aggregate
amount of the Shares represented by the Global Certificate,
then the Transfer Agent shall cancel such Definitive Certificate and cause, or
direct the Depositary to cause, in accordance with the standing instructions and
procedures existing between the Depositary and the Transfer Agent, the number of
Shares represented by the Global Certificate to be increased accordingly. If no
Global Certificate is then outstanding, the Company shall issue and the Transfer
Agent shall upon written instructions from the Company authenticate a new Global
Certificate in the appropriate amount.
(c) TRANSFER OR EXCHANGE OF GLOBAL CERTIFICATE. The transfer or
exchange of Global Certificates or beneficial interests therein shall be
effected through the Depositary, in accordance with this Section 3.5, the
Private Placement Legend, this Agreement (including the restrictions on transfer
set forth herein) and the procedures of the Depositary therefor.
(d) TRANSFER OR EXCHANGE OF A BENEFICIAL INTEREST IN A GLOBAL
CERTIFICATE FOR A DEFINITIVE CERTIFICATE.
(i) Any person having a beneficial interest in a Global
Certificate may transfer or exchange such beneficial interest for a
Definitive Certificate upon receipt by the Transfer Agent of written
instructions or such other form of instructions as is customary for the
Depositary
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from the Depositary or its nominee on behalf of any person having a
beneficial interest in a Global Certificate, including a written order
containing registration instructions and, in the case of any such
transfer or exchange prior to the Resale Restriction Termination Date,
the following additional information and documents:
(A) if such beneficial interest is being transferred to the
person designated by the Depositary as being the beneficial
owner, a certification from such person to that effect (in
substantially the form of EXHIBIT C hereto); or
(B) if such beneficial interest is being transferred to a QIB
in accordance with Rule 144A under the Securities Act, a
certification from the transferor to that effect (in
substantially the form of EXHIBIT C hereto); or
(C) if such beneficial interest is being transferred to an
Institutional Accredited Investor, delivery by the
transferor of a certification to that effect (in
substantially the form of EXHIBIT C hereto), and delivery
by the proposed transferee of a Transferee Certificate for
Institutional Accredited Investors (in substantially the
form of EXHIBIT D hereto); or
(D) if such beneficial interest is being transferred in
reliance on Regulation S under the Securities Act, delivery
by the transferor of (i) a certification to that effect (in
substantially in the form of EXHIBIT C a hereto), and (ii)
a Certificate for Regulation S Transfers in the form of
EXHIBIT E hereto; or
(E) if such beneficial interest is being transferred in
reliance on Rule 144 under the Securities Act, delivery by
the transferor of (i) a certification to that effect (in
substantially the form of EXHIBIT C hereto) and (ii) an
opinion of counsel reasonably satisfactory to the Company
or the LLC, as the case may be, to the effect that such
transfer is in compliance with the Securities Act; or
(F) if such beneficial interest is being transferred in
reliance on another exemption from the regis-
-26-
tration requirements of the Securities Act, a certification
from the transferor to that effect (in substantially the
form of EXHIBIT C hereto) and an opinion of counsel
reasonably satisfactory to the Company or the LLC, as the
case may be, to the effect that such transfer is in
compliance with the Securities Act; PROVIDED that the
Company or the LLC, as the case may be, may instruct the
Transfer Agent not to register such transfer in any case
where the proposed transferee is not a QIB, non-U.S. Person
or Institutional Accredited Investor;
then the Transfer Agent will cause, in accordance with the standing
instructions and procedures existing between the Depositary and the
Transfer Agent, the aggregate amount of the Global Certificate to be
reduced and, following such reduction, the Company will execute and, upon
receipt of an authentication order in the form of an officers'
certificate (a certificate signed by two officers of such company, one of
whom must be the principal executive officer, principal financial officer
or principal accounting officer) (an "OFFICERS' CERTIFICATE"), the
Transfer Agent will authenticate and deliver to the transferee a
Definitive Certificate.
(ii) Definitive Certificates issued in exchange for a beneficial
interest in a Global Certificate pursuant to this Section 3.5(d) shall be
registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Transfer Agent in writing.
The Transfer Agent shall deliver such Definitive Certificates to the
persons in whose names such Shares are so registered and adjust the
Global Certificate pursuant to paragraph (h) of this Section 3.5.
(e) RESTRICTIONS ON TRANSFER OR EXCHANGE OF GLOBAL CERTIFICATES.
Notwithstanding any other provisions of this Agreement (other than the
provisions set forth in subsection (f) of this Section 3.5), a Global
Certificate may not be transferred or exchanged as a whole except by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary.
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(f) AUTHENTICATION OF DEFINITIVE CERTIFICATES IN ABSENCE OF
DEPOSITARY. If at any time:
(i) the Depositary for the Global Certificates notifies the
Company that the Depositary is unwilling or unable to continue as
Depositary for the Global Certificate and a successor Depositary for the
Global Certificate is not appointed by the Company within 90 days after
delivery of such notice; or
(ii) the Company and, if prior to the occurrence of a
Liquidation Event, the LLC, notify the Transfer Agent in writing that it
elects to cause the issuance of Definitive Certificates for all Global
Certificates under this Agreement,
then the Company and, if applicable, the LLC, will execute, and the Transfer
Agent will, upon receipt of an Officers' Certificate requesting the
authentication and delivery of Definitive Certificates, authenticate and deliver
Definitive Certificates, in an aggregate number equal to the aggregate number of
Shares represented by the Global Certificate, in exchange for such Global
Certificate.
(g) PRIVATE PLACEMENT LEGEND. Upon the registration of transfer,
exchange or replacement of Share certificates not bearing the legend set forth
in the first paragraph of EXHIBIT A attached hereto (the "PRIVATE PLACEMENT
LEGEND"), the Transfer Agent shall deliver Share certificates that do not bear
the Private Placement Legend. Upon the registration of transfer, exchange or
replacement of Share certificates bearing the Private Placement Legend, the
Transfer Agent shall deliver Share certificates that bear the Private Placement
Legend unless, and the Transfer Agent is hereby authorized to deliver Share
certificates without the Private Placement Legend if, (i) the requested transfer
is not prior to the date which is two years (or such shorter period as may be
prescribed by Rule 144(k) (or any successor provision thereto) under the
Securities Act or any successor provision thereunder) after the later of the
original Issue Date of the Shares or the last day on which the Company or the
LLC, as the case may be, or any of its Affiliates was the owner of the Shares or
any predecessor security, (ii) there is delivered to the Transfer Agent an
opinion of counsel reasonably satisfactory to the Company and the Transfer Agent
to the effect that neither such legend nor the related restrictions on transfer
are required in order to maintain compliance with the provisions of the
Securities Act or (iii) the Shares to be transferred or exchanged represented
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by such Share Certificates are being transferred or exchanged pursuant to an
effective registration statement under the Securities Act.
(h) CANCELLATION OR ADJUSTMENT OF A GLOBAL CERTIFICATE. At such
time as all beneficial interests in a Global Certificate have either been
exchanged for Definitive Certificates, redeemed, repurchased or canceled, such
Global Certificate shall be returned to the Company or the LLC, as the case may
be, or, upon written order to the Transfer Agent in the form of an Officers'
Certificate from the Company or the LLC, as the case may be, retained and
canceled by the Transfer Agent. At any time prior to such cancellation, if any
beneficial interest in a Global Certificate is exchanged for Definitive
Certificates, redeemed, repurchased or canceled, the number of Shares
represented by such Global Certificate shall be reduced and an endorsement shall
be made on such Global Certificate by the Transfer Agent to reflect such
reduction.
(i) OBLIGATIONS WITH RESPECT TO TRANSFERS OR EXCHANGES OF
DEFINITIVE CERTIFICATES.
(i) To permit registrations of transfers or exchanges, the
Company or the LLC, as the case may be, shall execute, at the Transfer
Agent's request, and the Transfer Agent shall authenticate Definitive
Certificates and Global Certificates.
(ii) All Definitive Certificates and Global Certificates issued
upon any registration, transfer or exchange of Definitive Certificates or
Global Certificates shall be the valid obligations of the Company or the
LLC, as the case may be, entitled to the same benefits under this
Agreement as the Definitive Certificates or Global Certificates
surrendered upon the registration of transfer or exchange.
(iii) Prior to due presentment for registration of transfer of
any Shares, the Transfer Agent and the Company or the LLC, as the case
may be, may deem and treat the person in whose name any Shares are
registered as the absolute owner of such Shares, and neither the Transfer
Agent nor the Company or the LLC, as the case may be, shall be affected
by notice to the contrary.
(j) COMPLIANCE. Other than following the applicable terms and
requirements of this Agreement, the Transfer Agent
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shall have no additional duty to monitor compliance with federal, state or other
securities laws.
3.6. LOST, STOLEN, DESTROYED, DEFACED OR MUTILATED SHARE
CERTIFICATES. Upon receipt by the Company and the Transfer Agent (or any agent
of the Company or the Transfer Agent, if requested by the Company) of evidence
satisfactory to them of the loss, theft, destruction, defacement, or mutilation
of any Share certificate and of an indemnity bond satisfactory to them and, in
the case of mutilation or defacement, upon surrender thereof to the Transfer
Agent for cancellation, then, in the absence of notice to the Company or the
Transfer Agent that such Share certificate has been acquired by a BONA FIDE
purchaser or holder in due course, the Company shall execute, and an authorized
signatory of the Transfer Agent shall manually authenticate and deliver, in
exchange for or in lieu of the lost, stolen, destroyed, defaced or mutilated
Share certificate, a new Share certificate representing a like number of Shares,
bearing a number or other distinguishing symbol not contemporaneously
outstanding. Upon the issuance of any new Share certificate under this Section
in a name other than the prior registered holder of the lost, stolen, destroyed,
defaced or mutilated Share certificate, the Company or the LLC, as the case may
be, may require the payment from the holder of such Share certificate of a sum
sufficient to cover any tax, stamp tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees expenses
of the Transfer Agent) in connection therewith. Every substitute Share
certificate executed and delivered pursuant to this Section in lieu of any lost,
stolen or destroyed Share certificate shall constitute an additional contractual
obligation of the Company or the LLC, as the case may be, whether or not the
lost, stolen or destroyed Share certificate shall be at any time enforceable by
anyone, and shall be entitled to the benefits of (but shall be subject to all
the limitations of rights set forth in) this Agreement-equally and
proportionately with any and all other Share certificates duly executed and
delivered hereunder. The provisions of this Section 3.6 are exclusive with
respect to the replacement of lost, stolen, destroyed, defaced or mutilated
Share certificates and shall preclude (to the extent lawful) any and all other
rights or remedies notwithstanding any law or statute existing or hereafter
enacted to the contrary with respect to the replacement of lost, stolen,
destroyed, defaced or mutilated Share certificates.
3.7. SEPARATION OF SHARES AND NOTES. The Notes and the LLC
Shares will not be separately transferable until the
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Separability Date. "SEPARABILITY DATE" shall mean the earliest to occur of:
(i) six months after the date hereof, (ii) the date on which a registration
statement under the Securities Act, with respect to a registered exchange offer
for the Notes or covering the sale by holders of the Notes is declared effective
under the Securities Act, (iii) the occurrence of an Event of Default (as
defined in the Indenture), (iv) immediately prior to the occurrence of a Change
of Control (as defined in the Indenture) or (v) such earlier date as may be
determined by Salomon in its sole discretion and specified to the Company, the
LLC, each Trustee (as defined in the Indenture) and the Transfer Agent in
writing. Notwithstanding the foregoing, in the event a Change of Control (as
defined in the Indenture) is proposed and the Company commences a Change of
Control Offer (as defined in the Indenture) prior to the Separability Date, as
determined by the preceding sentence, the Separability Date shall be such
earlier date of commencement. The separation of the Shares and the Notes is
herein referred to as a "SEPARATION."
4. REGISTRATION PROCEDURES.
In connection with the obligations of the Company or the LLC, as
the case may be, with respect to any Registration Statement pursuant to Sections
2.1 and 2.2 hereof, the Company or the LLC, as the case may be, shall:
(a) A reasonable period of time prior to the initial filing of a
Registration Statement or Prospectus and a reasonable period of time
prior to the filing of any amendment or supplement thereto (including any
document that would be incorporated or deemed to be incorporated therein
by reference), furnish to the Holders of the Registrable Securities
included in such Registration Statement, and the managing underwriters,
if any, copies of all such documents proposed to be filed, which
documents (other than those incorporated or deemed to be incorporated by
reference) will be subject to the review of such Holders, and such
underwriters, if any, and use reasonable commercial efforts to cause the
officers and directors of the Company or the LLC, as the case may be,
counsel to the Company or the LLC, as the case may be, and independent
certified public accountants to the Company or the LLC, as the case may
be, to respond to such reasonable inquiries as shall be necessary, in the
opinion of respective counsel to such Holders and such underwriters, to
conduct a reasonable investigation within the meaning of the Securities
Act. The Company or the LLC, as the case may be,
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shall not file any such Registration Statement in respect of a Demand
Registration or related Prospectus or any amendments or supplements
thereto to which the Holders of a majority of the Registrable Securities
included in such Registration Statement shall reasonably object on a
timely basis;
(b) Prepare and file with the SEC such amendments, including
post-effective amendments, to each Registration statement as may be
necessary to keep such Registration Statement continuously effective for
the applicable time period required hereunder (except for Black Out
Periods); cause the related Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 under the Securities Act; and comply with the provisions of the
Securities Act and the Exchange Act with respect to the disposition of
all securities covered by such Registration Statement during such period
in accordance with the intended methods of disposition by the sellers
thereof set forth in such Registration Statement as so amended or in such
Prospectus as so supplemented;
(c) Notify the holders of Registrable Securities to be sold and
the managing underwriters, if any, promptly, and (if requested by any
such person), confirm such notice in writing, (i)(A) when a Prospectus or
any Prospectus supplement or post-effective amendment is proposed to be
filed, and (B) with respect to a Registration Statement or any
post-effective amendment, when the same has become effective, (ii) of any
request by the SEC or any other Federal or state governmental authority
for amendments or supplements to a Registration Statement or related
Prospectus or for additional information, (iii) of the issuance by the
SEC, any state securities commission, any other governmental agency or
any court or any stop order, order or injunction suspending or enjoining
the use of a Prospectus or the effectiveness of a Registration Statement
or the initiation of any proceedings for that purpose, (iv) of the
receipt by the Company or the LLC, as the case may be, of any
notification with respect to the suspension of the qualification or
exemption from qualification of any of the Registrable Securities for
sale in any jurisdiction, or the initiation or threatening of any
proceeding for such purpose, and (v) of the happening of any event or
information becoming known that makes any statement made in a
Registration Statement or related Prospectus untrue in any material
respect or that requires
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the making of any changes in such Registration Statement or Prospectus so
that, in the case of a Registration Statement, it will not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, and that in the case of a Prospectus, it will not contain
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading;
(d) Use its reasonable best efforts to avoid the issuance of or,
if issued, obtain the withdrawal of any order enjoining or suspending the
use of a Prospectus or the effectiveness of a Registration Statement or
the lifting of any suspension of the qualification (or exemption from
qualification) of any of the Registrable Securities for sale in any
jurisdiction described in Section 4(h), at the earliest practicable
moment;
(e) If requested by the managing underwriters, if any, (i)
promptly incorporate in a Prospectus supplement or post-effective
amendment such information as the managing underwriters, if any,
reasonably believe should be included therein, and (ii) make all required
filings of such Prospectus supplement or such post-effective amendment
under the Securities Act as soon as practicable after the Company has
received notification of the matters to be incorporated in such
Prospectus supplement or post-effective amendment; PROVIDED, that the
Company or the LLC, as the case may be, shall not be required to take any
action pursuant to this Section 4(e) that would, in the opinion of
counsel for the Company or the LLC, as the case may be, violate
applicable law;
(f) Upon written request to the Company or the LLC, as the case
may be, furnish to each Holder of Registrable Securities to be sold
pursuant to a Registration Statement and each managing underwriter, if
any, without charge, at least one conformed copy of such Registration
Statement and each amendment thereto, including financial statements and
schedules, all documents incorporated or deemed to be incorporated
therein by reference, and all exhibits to the extent requested (including
those previously furnished or incorporated by reference) as soon as
practicable after the filing of such documents with the SEC;
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(g) Deliver to each Holder of Registrable Securities to be sold
pursuant to a Registration Statement, and the underwriters, if any,
without charge, as many copies of the Prospectus (including each form of
prospectus) and each amendment or supplement thereto as such persons
reasonably request; and the Company or the LLC, as the case may be,
hereby consents to the use of such Prospectus and each amendment or
supplement thereto by each of the selling holders of Registrable
Securities and the underwriters, if any, in connection with the offering
and sale of the Registrable Securities covered by such Prospectus and any
amendment or supplement thereto;
(h) Prior to any public offering of Registrable Securities, use
its reasonable best efforts to register or qualify or cooperate with the
Holders of Registrable Securities to be sold, the underwriters, if any,
and their respective counsel in connection with the registration or
qualification (or exemption from such registration or qualification) of
such Registrable Securities for offer and sale under the securities or
Blue Sky laws of such jurisdictions as any such Holder or underwriter
reasonably requests in writing; keep each such registration or
qualification (or exemption therefrom) effective during the period such
Registration Statement is required to be kept effective hereunder and do
any and all other acts or things necessary or advisable to enable the
disposition in such jurisdictions of the Registrable Securities covered
by the applicable Registration Statement; PROVIDED that the Company or
the LLC, as the case may be, shall not be required to (i) qualify
generally to do business in any jurisdiction where it is not then so
qualified or (ii) take any action which would subject it to general
service of process or to taxation in any jurisdiction where they are not
so subject;
(i) In connection with any sale or transfer of Registrable
Securities that will result in such securities no longer being
Registrable Securities, cooperate with the Holders thereof and the
managing underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold,
which certificates shall not bear any restrictive legends and shall be in
a form eligible for deposit with The Depository Trust Company and to
enable such Registrable Securities to be in such denominations and
registered in such names as the managing underwriters, if any, or such
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Holders may request at least two Business Days prior to any sale of
Registrable Securities;
(j) Upon the occurrence of any event contemplated by Section
4(c)(v), except during Black Out Periods as promptly as practicable,
prepare a supplement or amendment, including, if appropriate, a
post-effective amendment, to each Registration Statement or a supplement
to the related Prospectus or any document incorporated or deemed to be
incorporated therein by reference, and file any other required document
so that, as thereafter delivered, such Prospectus will not contain 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, in the light of the circumstances under which they were made,
not misleading;
(k) Enter into such agreements (including an underwriting
agreement in form, scope and substance as is customary in underwritten
offerings) and take all such other reasonable actions in connection
therewith (including those reasonably requested by the managing
underwriters, if any) in order to expedite or facilitate the disposition
of such Registrable Securities, and, whether or not an underwriting
agreement is entered into and whether or not the registration is an
underwritten registration, (i) make such representations and warranties
to the underwriters and selling Holders, if any, with respect to the
business of the Company and its subsidiaries (including with respect to
businesses or assets acquired or to be acquired by any of them), and the
Registration Statement, Prospectus and documents, if any, incorporated or
deemed to be incorporated by reference therein, in each case, in form,
substance and scope as are customarily made by issuers to underwriters in
underwritten offerings, and confirm the same if and when requested; (ii)
in the case of an underwritten offering, obtain opinions of counsel and
updates thereof (which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to the managing underwriters,
addressed to each of the underwriters, and selling Holders), covering the
matters customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably requested by such
underwriters or selling Holders; (iii) use their reasonable best efforts
to obtain customary "cold comfort" letters and updates thereof from the
independent certified public accountants of the Company or the LLC, as
the case may be (and, if necessary, any other independent certified
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public accountants of any subsidiary of the Company or the LLC, as the
case may be, or of any acquired business for which financial statements
and financial data is, or is required to be, included in the Registration
Statement), addressed (where reasonably possible) to each of the
underwriters nd selling Holders, if any, such letters to be in customary
form and covering matters of the type customarily covered in "cold
comfort" letters in connection with underwritten offerings; (iv) if an
underwriting agreement is entered into, the same shall contain
indemnification provisions and procedures no less favorable to the
underwriters, if any, than those set forth in Section 5 hereof (or such
other provisions and procedures acceptable to the managing underwriters,
if any); and (v) deliver such documents and certificates as may be
reasonably requested by the managing underwriters, if any, to evidence
the continued validity of the representations and warranties made
pursuant to clause (i) above and to evidence compliance with any
customary conditions contained in the underwriting agreement or other
agreement entered into by the Company or the LLC, as the case may be;
(l) Make available for inspection by a representative of any
underwriter participating in any such disposition of Registrable
Securities, and any attorney, consultant or accountant retained by such
selling Holders or underwriter, at the offices where normally kept,
during reasonable business hours, all pertinent financial and other
records, corporate documents and properties of the Company or the LLC, as
the case may be, and its subsidiaries (including with respect to
businesses and assets acquired or to be acquired to the extent that such
information is available), and cause its and its subsidiaries' officers,
directors, agents and employees (including with respect to businesses and
assets acquired or to be acquired to the extent that such information is
available) to supply all information in each case reasonably requested by
any such representative, underwriter, attorney, consultant or accountant
in connection with such Registration Statement; PROVIDED, that such
persons shall first agree in writing with the Company or the LLC, as the
case may be, that any information that is reasonably and in good faith
designated by the Company or the LLC, as the case may be, in writing as
confidential at the time of delivery of such information shall be kept
confidential by such Persons, unless (i) disclosure of such information
is required by court or administrative order or is necessary to respond
to inquiries of regulatory authorities, (ii) disclosure of
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such information is required by law (including any disclosure
requirements pursuant to Federal securities laws in connection with the
filing of the Registration Statement or the use of any Prospectus), (iii)
such information becomes generally available to the public other than as
a result of a disclosure or failure to safeguard such information by such
Person or their Affiliates or agents or (iv) such information becomes
available to such Person from a source other than the Company or the LLC,
as the case may be, and their respective subsidiaries and such source is
not bound by a confidentiality obligations;
(m) Comply with all applicable rules and regulations of the SEC
and make generally available to their securityholders earnings statements
satisfying the provisions of Section 11(a) of the Securities Act and Rule
158 under the Securities Act, no later than 45 days after the end of any
12-month period (or 90 days after the end of any 12-month period if such
period is a fiscal year) (i) commencing at the end of any fiscal quarter
in which Registrable Securities are sold to underwriters in a firm
commitment or reasonable efforts underwritten offering and (ii) if not
sold to underwriters in such an offering, commencing on the first day of
the first fiscal quarter after the effective date of a Registration
Statement, which statement shall cover said period, consistent with the
requirements of Rule 158 under the Securities Act; and
(n) Cooperate with each seller of Registrable Securities covered
by any Registration Statement and each underwriter, if any, participating
in the disposition of such Registrable Securities and their respective
counsel in connection with any filings required to be made with the
National Association of Securities Dealers, Inc.
The Company or the LLC, as the case may be, may require a Holder
of Registrable Securities to be included in a Registration Statement to furnish
to the Company or the LLC, as the case may be, such information regarding (i)
the intended method of distribution of such Registrable Securities, (ii) such
Holder and (iii) the Registrable Securities held by such Holder as is required
by law to be disclosed in such Registration Statement and the Company or the
LLC, as the case may be, may exclude from such Registration Statement the
Registrable Securities of any Holder who unreasonably fails to furnish such
information within a reasonable time after receiving such request. The Company
or the LLC, as the case may be, shall not be required to provide indemnification
to any Underwriter or
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any other person relating to information referred to in clauses (i) and (ii)
provided to the Company or the LLC, as the case may be, in writing specifically
for inclusion in such Registration Statement.
If any such Registration Statement refers to any Holder by name or
otherwise as the Holder of any securities of the Company or the LLC, as the case
may be, then such Holder shall have the right to require (i) the insertion
therein of language, in form and substance reasonably satisfactory to such
Holder, to the effect that the holding by such Holder of such securities is not
to be construed as a recommendation by such Holder of the investment quality of
the securities covered thereby and that such holding does not imply that such
Holder will assist in meeting any future financial requirements of the Company
or the LLC, as the case may be, or (ii) in the event that such reference to such
Holder by name or otherwise is not required by the Securities Act, the deletion
of the reference to such Holder in any amendment or supplement to the
Registration Statement filed or prepared subsequent to the time that such
reference ceases to be required.
Each Holder of Registrable Securities agrees by acquisition of
such Registrable Securities that, upon receipt of any notice from the Company or
the LLC, as the case may be, of the happening of any event of the kind described
in Section 4(c)(ii), 4(c)(iii), 4(c)(iv) or 4(c)(v) hereof, such Holder will
forthwith discontinue disposition of such Registrable Securities covered by such
Registration Statement or Prospectus until such Holder's receipt of the copies
of the supplemented or amended Prospectus contemplated by Section 4(j) hereof,
or until it is advised in writing (the "ADVICE") by the Company or the LLC, as
the case may be, that the use of the applicable Prospectus may be resumed, and,
in either case, has received copies of any additional or supplemental filings
that are incorporated or deemed to be incorporated by reference in such
Prospectus. If the Company or the LLC, as the case may be, shall give any such
notice, the Effectiveness Period shall be extended by the number of days during
such period from and including the date of the giving of such notice to and
including the date when each Holder of Registrable Securities covered by such
Registration Statement shall have received (x) the copies of the supplemented or
amended Prospectus contemplated by Section 4(j) hereof or (y) the Advice, and,
in either case, has received copies of any additional or supplemental filings
that are incorporated or deemed to be incorporated by reference in such
Prospectus.
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5. INDEMNIFICATION AND CONTRIBUTION.
(a) Each Issuer agrees, jointly and severally, to indemnify and
hold harmless each initial Purchaser, each Holder, each underwriter who
participates in an offering of Registrable Securities, their respective
Affiliates, each Person, if any, who controls any of such parties within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
and each of their respective directors, officers, employees and agents, as
follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, joint or several, as incurred, arising out of any
untrue statement or alleged untrue statement of a material fact contained
in any Registration Statement (or any amendment thereto), covering
Registrable Securities, including all documents incorporated therein by
reference, or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any Prospectus (or any
amendment or supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made not
misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, joint or several, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any court or governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission; PROVIDED that (subject to Section 5(d) below) any such
settlement is effected with the written consent of the Issuers; and
(iii) against any and all expenses whatsoever, as incurred
(including reasonable fees and disbursements of one counsel chosen by
Salomon), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any court
or governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omis-
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sion, to the extent that any such expense is not paid under subparagraph
(i) or (ii) of this Section 5(a);
PROVIDED that this indemnity does not apply to any loss, liability, claim,
damage or expense to the extent arising out of an untrue statement or omission
or alleged untrue statement or omission (i) made in reliance upon and in
conformity with written information furnished to any Issuer by an Initial
Purchaser, such Holder or any underwriter in writing expressly for use in the
Registration Statement (or any amendment thereto) or any Prospectus (or any
amendment or supplement thereto) or (ii) contained in any preliminary prospectus
if such Initial Purchaser, such Holder or such underwriter failed to send or
deliver a copy of the Prospectus (in the form it was first provided to such
parties for confirmation of sales) to the Person asserting such losses, claims,
damages or liabilities on or prior to the delivery of written confirmation of
any sale of securities covered thereby to such Person in any case where such
delivery is required by the Securities Act and such Prospectus would have
corrected such untrue statement or omission. Any amounts advanced by any Issuer
to an indemnified party pursuant to this Section 5 as a result of such losses
shall be returned to such Issuer if it shall be finally determined by such a
court in a judgment not subject to appeal or final review that such indemnified
party was not entitled to indemnification by any Issuer.
(b) By accepting the benefits of this Agreement, each Holder
agrees, severally and not jointly, to indemnify and hold harmless the Issuers,
each Initial Purchaser, each underwriter who participates in an offering of
Registrable Securities and the other selling Holders and each of their
respective directors, officers (including each officer of the Issuers who signed
the Registration Statement), employees and agents and each Person, if any, who
controls the Issuers, within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any and all loss, liability,
claim, damage and expense whatsoever described in the indemnity contained in
Section 5(a) hereof, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto) or any Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
furnished to the Issuers by such selling Holder expressly for use in the
Registration Statement (or any amendment thereto), or any such Prospectus (or
any amendment or supplement thereto).
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(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability hereunder to
the extent it is not materially prejudiced as a result thereof and in any event
shall not relieve it from any liability which it may have otherwise than on
account of this indemnity agreement. In the case of parties indemnified
pursuant to Section 5(a) above, counsel to the indemnified parties shall be
selected by Salomon and, in the case of parties indemnified pursuant to Section
5(b) above, counsel to the indemnified parties shall be selected by the Issuers.
Notwithstanding the foregoing sentence, in case any such action is brought
against any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent it may wish, jointly with any other indemnifying
party similarly notified, unless such indemnified party shall have one or more
legal defenses available to it which are not available to the indemnifying
party, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party. After notice from the indemnifying party to such
indemnified party of its election as aforesaid to assume the defense thereof and
approval by such indemnified party of counsel appointed to defend such action,
the indemnifying party will not be liable to such indemnified party under this
Section 5 for any legal or other expenses other than reasonable costs of
investigation, subsequently incurred by such indemnified party in connection
with the defense thereof. An indemnifying party may participate at its own
expense in the defense of any such action; PROVIDED, HOWEVER, that counsel to
the indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall the
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution could
be sought under this Section 5 (whether or not the indemnified parties are
actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional
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release of each indemnified party from all liability arising out of such
litigation, investigation, proceeding or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act by or
on behalf of any indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel to which they are entitled pursuant to the provisions of this Agreement,
such indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 5(a)(ii) effected without its written consent if
(i) such settlement is entered into more than 60 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement.
(e) In order to provide for just and equitable contribution in
circumstances under which any of the indemnity provisions set forth in this
Section 5 is for any reason held to be unavailable to the indemnified parties
although applicable in accordance with its terms, the Issuers, each Initial
Purchaser and the Holders shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by such indemnity
agreement incurred by the Issuers, the Initial Purchasers and the Holders, as
incurred; PROVIDED that 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 that was not guilty of such fraudulent
misrepresentation. As between the Issuers, the Initial Purchasers and the
Holders, such parties shall contribute to such aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by such indemnity
agreement in such proportion as shall be appropriate to reflect the relative
fault of either of the Issuers, on the one hand, and the Initial Purchasers and
the Holders, on the other hand, with respect to the statements or omissions
which resulted in such loss, liability, claim, damage or expense, or action in
respect thereof, as well as any other relevant equitable considerations. The
relative fault of either of the Issuers, on the one hand, and of the Initial
Purchasers and the Holders, on the other hand, shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omis-
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sion to state a material fact relates to information supplied by either of the
Issuers, on the one hand, or by or on behalf of an Initial Purchaser or the
Holders, on the other, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Issuers, the Initial Purchasers and the Holders of the Registrable
Securities agree that it would not be just and equitable if contribution
pursuant to this Section 5 were to be determined by pro rata allocation or by
any other method of allocation that does not take into account the relevant
equitable considerations. For purposes of this Section 5, each Affiliate of
each Initial Purchaser or a Holder, and each director, officer, employee, agent
and Person, if any, who controls an Initial Purchaser or Holder or such
Affiliate within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act shall have he same rights to contribution as such Initial
Purchaser or Holder, and each director of the any Issuer, each officer of any
Issuer who signed the Registration Statement, and each Person, if any, who
controls either Issuer within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act shall have the same rights to contribution as the
Issuers.
6. RULE 144A AND FUTURE IPOS.
(a) The Company and the LLC shall use their respective best
efforts to file the reports required to be filed by it under the Securities Act
and the Exchange Act in a timely manner and, if at any time it is not required
to file such reports, it will, upon the request of any holder or beneficial
owner of Registrable Securities, make available other information as required
by, and so long as necessary to permit, sales of Registrable Securities pursuant
to Rule 144A. Notwithstanding the foregoing, nothing in this Section 6 shall be
deemed to require the Company or the LLC to register any of its securities
pursuant to the Exchange Act.
(b) Parent and the Shareholders each agree not to allow the LLC
or the Company to make a Public Offering of any class of Capital Stock or other
equity interests unless, prior to commencing such Public Offering, any necessary
changes are made to provide that the Shares are convertible into such class of
Capital Stock or other equity interests of the LLC or the Company, as
applicable, on a share-for-share basis and that rights, conditions and
privileges attaching to such class of Capital Stock or other equity interests
are not adverse to holders of Shares as compared with the terms of Class A
Interests (as defined in the LLC Agreement) (except with respect to
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voting rights). Parent also agrees, for so long as any Registrable Securities
are outstanding, (i) not to make, and not to allow any of its direct or indirect
subsidiaries other than the Company or the LLC to make, a Public Offering of any
class of Capital Stock and (ii) not to engage in any business other than
beneficially owning Capital Stock of the Company and CableTel Management Inc.
and administrative and managerial activities reasonably related thereto.
7. UNDERWRITTEN REGISTRATIONS.
No Person may participate in any underwritten registration
hereunder unless such person (i) agrees to sell such Registrable Securities on
the basis reasonably provided in any underwriting arrangements approved by the
Persons entitled hereunder to approve such arrangements and (ii) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting
arrangements.
8. MISCELLANEOUS. (a) REMEDIES. In the event of a breach by
Parent, the LLC, CNANV, the Company, or any Shareholder or by a holder of Shares
of any of its obligations under this Agreement, each holder of Shares and any
Shareholder, Parent, the LLC, CNANV, and the Company, in addition to being
entitled to exercise all rights granted by law, including recovery of damages,
will be entitled to specific performance of its rights under this Agreement.
Parent, the LLC, CNANV, the Company and each Shareholder and each holder of
Shares agree that monetary damages would not be adequate compensation for any
loss incurred by reason of a breach of any of the provisions of this Agreement
and each hereby further agrees that, in the event of any action for specific
performance in respect of such breach, it shall waive the defense that a remedy
at law would be adequate.
(b) NO INCONSISTENT AGREEMENTS. Parent, the LLC, CNANV, the
Company and the Shareholders have not entered into any agreement that is
inconsistent with the rights granted to the holders of Shares and indemnified
persons in this Agreement or otherwise conflicts with the provisions hereof.
Without the written consent of the holders of a majority of the outstanding
Shares, Parent, the LLC, CNANV, the Company and the Shareholders shall not grant
to any Person any rights which conflict with or are inconsistent with the
provisions of this Agreement.
(c) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not
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be amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, otherwise than with the prior written
consent of the holders of not less than a majority of the then outstanding
Shares and/or Registrable Securities, as applicable. Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof with respect
to a matter that relates exclusively to the rights of Holders whose securities
are being sold pursuant to a Registration Statement and that does not directly
or indirectly affect the rights of other Holders may be given by Holders of a
majority of the Registrable Securities being sold by such Holders pursuant to
such Registration Statement; PROVIDED, that the provisions of this sentence may
not be amended, modified or supplemented except in accordance with the
provisions of the immediately preceding sentence. Notwithstanding the
foregoing, no amendment, modification, supplement, waiver or consent with
respect to Section 5 shall be made or given otherwise than with the prior
written consent of each Holder or former Holder affected thereby.
(d) NOTICES. All notices and other communications provided for
herein shall be made in writing by hand-delivery, next-day air courier,
certified first-class mail, return receipt requested, telex or telecopier:
(i) if to Parent, the LLC, CNANV or the Company:
c/o CompleTel LLC
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
(ii) if to the Shareholders:
Madison Dearborn Capital Partners II, L.P.
c/o Madison Dearborn Partners, Inc.
Three First ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. Finnegon
▇▇▇▇▇▇▇▇ Holdings Limited Partnership
c/o LPL Investment Group, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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(iii) if to the Transfer Agent:
U.S. Bank Trust National Association
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
(iv) if to the Initial Purchasers, as provided in the Purchase
Agreement.
(v) if to any other Person who is then the registered holder of
Shares or Registrable Securities, to the address of such holder as it
appears in the register therefor of the Company or the LLC, as the case
may be.
Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given: when delivered by hand,
if personally delivered; when received if delivered by a next-day air courier;
ten Business Days after being deposited in the mail, postage prepaid, if mailed;
and when receipt is acknowledged by the recipient's telecopier machine, if
telecopied.
(e) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and permitted assigns of each of
the parties hereto and shall inure to the benefit of each holder of Shares and
Registrable Securities. None of Parent, the LLC, CNANV, the Company or any
Shareholder may assign any of its rights hereunder without the prior written
consent of each holder of Shares and Registrable Securities other than in
connection with an Excluded Transfer of the type described in clause (i) or the
definition thereof. If any transferee of any holder shall acquire Shares or
Registrable Securities, in any manner, whether by operation of law or otherwise,
such Shares or Registrable Securities shall be held subject to all of the terms
of this Agreement, and by taking and holding such Shares or Registrable
Securities such person shall be conclusively deemed to have agreed to be bound
by and to perform all of the terms and provisions of this Agreement and such
person shall be entitled to receive the benefits hereof.
(f) COUNTERPARTS. This Agreement may be executed by manual or
facsimile signature in any number of counterparts and by the parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and, all of
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which taken together shall constitute one and the same Agreement.
(g) GOVERNING LAW; SUBMISSION TO JURISDICTION. THIS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THIS THE LAWS OF THE STATE
OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW
YORK. PARENT, THE LLC, CNANV, THE COMPANY, THE SHAREHOLDERS AND THE INITIAL
PURCHASERS HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION OF ANY NEW YORK STATE
COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL
COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF
ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND
EACH IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY
AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS.
(h) SEVERABILITY. The remedies provided herein are cumulative
and not exclusive of any remedies provided by law. If any term, provision,
covenant or restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions 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 reasonable efforts to find and employ an
alternative means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It is hereby
stipulated and declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions without
including any of such that may be hereafter declared invalid, illegal, void or
unenforceable.
(i) HEADINGS. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
All references made in this Agreement to "Section" and "paragraph" refer to such
Section or paragraph of this Agreement, unless expressly stated otherwise.
(j) AGENT FOR SERVICE; SUBMISSION TO JURISDICTION; WAIVER OF
IMMUNITIES. By the execution and delivery of this Agreement, each of CNANV and
the Company (i) hereby designates and appoints CT Corporation System, ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ("CT CORPORATION SYSTEM") (and any successor
entity), as its authorized agent upon which process may be served in any suit or
proceeding arising out of or relating to this Agreement that may be instituted
in any federal or state court in The
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City of New York, Borough of Manhattan, State of New York or brought under
federal or state securities laws, and agrees to furnish to each other party
hereto, promptly following the execution hereof, satisfactory evidence that CT
Corporation system has accepted such designation, (ii) submits to the
jurisdiction of any such court in any such suit or proceeding and (iii) agrees
that service of process upon CT Corporation System and written notice of said
service to the Company in accordance with Section 8(d) shall be deemed in every
respect effective service of process upon each of such Persons, in any such suit
or proceeding. Each of the CNANV and the Company further agrees to take any and
all action, including the execution and filing of any and all such documents and
instruments, as may be necessary to continue such designation and appointment of
CT Corporation System in full force and effect so long as any of the Units,
Notes or Registrable Securities shall be outstanding; PROVIDED that each of
CNANV and the Company may and to the extent CT Corporation System ceases to be
able to be served on the basis contemplated herein shall, by written notice to
the holders of Registrable Securities, designate such additional or alternative
agent for service of process under this Section 8(j) that (i) maintains an
office located in the Borough of Manhattan, City of New York, State of New York
and (ii) is either (x) counsel for such person or (y) a corporate service
company which acts as agent for service of process for other persons in the
ordinary course of its business. Such written notice shall identify the name of
such agent for service of process and the address of the office of such agent
for service of process in the Borough of Manhattan, City of New York, State of
New York.
To the extent that any of the CNANV or the Company has or
hereafter may acquire any immunity from jurisdiction of any court of (i) any
jurisdiction in which they own or lease property or assets, (ii) the United
States or the State of New York, (iii) the Netherlands or any political
subdivision thereof or (iv) the Netherlands Antilles or any political
subdivision thereof or from any legal process (whether through service of
notice, attachment prior to judgment, attachment in aid of execution, execution
or otherwise) with respect to itself or its property and assets or this
Agreement or any of the Units, the Notes or the Registrable Securities or
actions to enforce judgments in respect of any thereof, each of the CNANV and
the Company hereby irrevocably waives such immunity in respect of its
obligations under the above-referenced documents, to the extent permitted by
law.
-48-
IN WITNESS WHEREOF, the parties have caused this Equity
Registration Rights Agreement to be duly executed as of the date first written
above.
COMPLETEL LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Executive Officer
COMPLETEL HOLDINGS LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Executive Officer
COMPLETEL (N.A.) N.V.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Attorney-in-fact
COMPLETEL EUROPE N.V.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Attorney-in-fact
-49-
MADISION DEARBORN CAPITAL
PARTNERS II, L.P.
By: Madison Dearborn Partners II, L.P., its
general partner
By: Madison Dearborn Partners, Inc., its
general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. Fnnegan
Title: Managing Director
▇▇▇▇▇▇▇▇ HOLDINGS LIMITED
PARTNERSHIP
By:
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chairman
U.S. BANK TRUST NATIONAL
ASSOCIATION
as Transfer Agent with respect to Sections
3.2, 3.5 and 8(d) hereof only
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Turst Officer
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▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
TD SECURITIES (USA) INC.
PARIBAS CORPORATION
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ Clipper
----------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ Clipper
Title: Vice President