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EXHIBIT 10.46
ACME COMMUNICATIONS, INC.
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") dated ________,
1999, by and among ACME Communications, Inc., a Delaware corporation (the
"Company") and the persons owning Registrable Securities (as defined in Section
1.2 below) whose signatures appear on the signature page hereto (each a "Holder"
and collectively with each other and their permitted transferees and assigns,
the "Holders") is effective as of and conditioned upon the closing of the
Company's initial public offering of common stock ("IPO").
RECITALS
A. Certain of the Holders previously were parties to the Registration
Rights Agreement, dated as of June 17, 1997, (together with TCW Leveraged Income
Trust, L.P. and TCW Shared Opportunity Fund II, L.P., the "Initial Holders") by
and among such Initial Holders and ACME Television Holdings, LLC ("Holdings")
and certain other Holders were parties to the Membership Unitholders Agreement,
dated September 30, 1997, by and among such other Holders, Holdings and ACME
Intermediate Holdings, LLC ("Intermediate") which agreement also contained
registration rights.
B. It is proposed that Holders will become stockholders of the Company in
exchange for their holdings of securities of Holdings or Intermediate pursuant
to a reorganization to be consummated before the closing of the Company's IPO
(the "Reorganization").
C. This Agreement is intended to replace the Registration Rights Agreement
of Holdings and the Membership Unitholders Agreement of Intermediate and thereby
provide registration rights to the Holders of the Company's Common Stock, par
value $.01 per share ("Common Stock"), as well as provide registration rights to
all other pre-IPO stockholders of the Company.
D. This Agreement is intended as a final expression of any agreements
among the parties hereto with respect to any registration rights with respect to
the securities of the Company or any of its affiliates and is intended to
supersede the Registration Rights Agreement of Holdings, the Membership
Unitholders Agreement of Intermediate and any other agreement regarding
registration rights.
The Company and the Holders, in consideration of the mutual agreements
herein, intending to be legally bound, agree as follows:
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OPTIONAL REGISTRATIONS
1.1 Optional Registrations. If at any time or times after the date hereof, the
Company determines to register any of its equity securities (for whatever
reason) for its own account or the account of any of its stockholders
(whether in connection with a primary offering, a secondary offering or
any combination thereof) under the Securities Act of 1933, as amended (the
"Securities Act") (other than in connection with a registration effected
solely to implement an employee benefit plan or a business combination
transaction or any other similar transaction for which a registration
statement on Form S-4 under the Securities Act or any comparable successor
form is applicable), the Company will promptly give written notice thereof
to the Holders of Registrable Securities (as defined in Section 1.2). In
connection with any such registration, if within thirty (30) days after
receipt by the Holders of such notice, the Company receives a written
request from a Holder or Holders for the inclusion of some or all of the
Registrable Securities owned by it or them in such registration (such
request to state the number of Registrable Securities intended to be
disposed of by such Holder or Holders), the Company will use its best
efforts to include in such registration under the Securities Act all
Registrable Securities which such Holder or Holders requested to be
registered.
1.2 "Registrable Securities" means: (i) any shares of Common Stock held as of
the closing of the IPO by Holders (after giving effect to the
Reorganization), (ii) any shares of Common Stock issuable upon the
exercise or conversion of any outstanding securities of the Company or any
of its affiliates held by Holders (other than stock options and similar
derivative securities held by employees) which are not converted to Common
Stock by the closing of the IPO and (iii) any securities issued or
issuable with respect to such shares by way of a stock dividend or stock
split or in connection with a combination of such shares,
recapitalization, merger, consolidation, reclassification or other
reorganization. Such securities will cease to be Registrable Securities:
(A) when a registration statement with respect to the sale of such
securities has become effective under the Securities Act and such
securities have been disposed of in accordance therewith; (B) when such
securities may be distributed pursuant to the provisions of Rule 144(k)
(or any successor provisions thereto) under the Securities Act; or (C)
when such securities have otherwise been transferred and subsequent
disposition of them by the transferee thereof will not require
registration or qualification under the Securities Act or any similar
state law then in force.
1.3 Conditions. Notwithstanding the foregoing, in the case of an underwritten
offering under this Section 1, the Company will not be required to include
any Holder's securities in the underwritten offering unless such Holder
accepts the terms of the underwriting as agreed upon between the Company
and the underwriters.
1.4 Limitations on Amount. If the managing underwriter of the offering, if
any, advises the Company in writing that marketing factors require a
limitation of the number of securities to be underwritten, then in such
instance the Company may give first priority to those shares to be
registered for the Company's account and may limit the number of
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Registrable Securities included in such offering to the amount which the
managing underwriter, acting in good faith, advises the Company may be
sold. The Company will promptly notify all Holders who requested
registration pursuant to this Section 1 of a determination by the managing
underwriter that such a reduction is necessary, and the number of
Registrable Securities that may be included in the registration and
underwriting will be allocated among the Holders requesting registration
in proportion, as nearly as practicable, to their respective holdings of
Registrable Securities 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 managing underwriters. All Holders
who have requested registration pursuant to this Agreement will be
entitled to participate in the underwriting before any other holders of
the Company's securities will be entitled to participate in such
underwriting (and no securities requested to be included in such
underwriting for the account of anyone other than the Holders hereunder
will be included unless all Registrable Securities requested to be
included by the Holders in accordance with this Section 1 are so
included).
1.5 Withdrawal. Any Holder will have the right to withdraw its request for
inclusion of its Registrable Securities in any registration statement
pursuant to this Section 1 by giving written notice to the Company of its
request to withdraw. If as a result of the proration provision of Section
1.4, any Holder will not be entitled to include all the Registrable
Securities in an Optional Registration that such Holder has requested to
be included, such Holder may elect to withdraw its request to include
Registrable Securities in such registration; provided, however, that such
election will be irrevocable and, after making such election, a Holder
will no longer have any right to include Registrable Securities in the
registration as to which such election was made, provided such
registration becomes effective within 90 days of the date of such
withdrawal. The Company may withdraw an Optional Registration initiated by
the Company at any time before it becomes effective, provided that the
Company gives prompt notice to the Holders participating in such
registration.
1.6 Expenses. All expenses of such registrations and offerings (other than
underwriting and selling commissions attributable to, and transfer taxes
assessed on, the Registrable Securities), and the reasonable fees and
expenses of not more than one independent counsel for the Holders, will be
borne by the Company. If any Initial Holders are selling Registrable
Securities in a registration statement pursuant to this Section 1, then
the independent counsel will be selected by such Initial Holders.
1.7 Miscellaneous. Without in any way limiting the types of registrations to
which this Section 1 will apply, if the Company effects a "shelf
registration" under Rule 415 promulgated under the Securities Act, or any
other similar rule or regulation ("Rule 415") (other than a shelf
registration effected solely to implement an employee benefit plan or a
transaction to which Rule 145 or any other similar rule of the Securities
and Exchange Commission (the "Commission") under the Securities Act is
applicable), the Company will take all necessary actions, including,
without limitation, the prompt filing of post-effective amendments, to
permit the Holders to dispose of
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their Registrable Securities in such registration in accordance with the
terms of this Section 1.
2. REQUIRED REGISTRATIONS
2.1 Required Registrations. If on any two (2) occasions 180 days after the
consummation of the IPO, Holders holding in the aggregate, 25% of the
Registrable Securities outstanding from time to time (hereinafter referred
to as the "Initiating Holders") notify the Company in writing that they
intend to offer or cause to be offered for public sale all or any portion
of their Registrable Securities with an aggregate anticipated offering
price (before any underwriters' discounts or commissions) of at least an
amount greater than $10,000,000 (any such notice to specify the number of
Registrable Securities to be disposed of and the intended method of
distribution), then the Company will notify all Holders entitled to notice
of a proposed registration under Section 1 above of its receipt of such
notification from the Initiating Holders and will allow such Holders
thirty (30) days to exercise their rights hereunder. Upon the expiration
of such thirty (30) day period (or earlier, with the written consent of
Holders holding in aggregate 25% in interest of the Registrable
Securities), the Company will either: (A) elect to make a registered
primary offering including Registrable Securities on Form S-1 or
equivalent form (including, when the Company is eligible, a Form S-3 with
additional information concerning the business of the Company, its
finances and its management as the Holders or underwriters participating
in an underwritten offering may reasonably request for purposes of
marketing the securities) in which case the rights of such Holders
(including the Initiating Holders) will be as set forth in Section 1 above
(except that the Company will not be permitted to include securities for
its own account unless at least 50% of the total number of securities
requested to be included by the Holders (including the Initiating Holders)
are so included); or (B) use its best efforts to cause such of the
Registrable Securities as may be requested by any Holders (including the
Initiating Holders) to be registered under the Securities Act on Form S-1
or equivalent form (including a Form S-3 as described above) and in
accordance with the terms of this Section 2, all to the extent required to
permit the distribution of such Registrable Securities in accordance with
the intended method set forth in the notification from the Initiating
Holders.
2.2 Conditions. If the Initiating Holders intend to distribute by means of an
underwritten offering the Registrable Securities that, at their request,
are to be registered, the right of any Holder to include its Registrable
Securities in such registration will be conditioned upon such Holder's
participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting. All Holders proposing to
distribute Registrable Securities through such underwriting will enter
into an underwriting agreement in customary form with the underwriter or
underwriters selected for such underwriting. The Initiating Holders will
select one or more nationally recognized firms of investment bankers, who
will be reasonably acceptable to the Company, to act as the managing
underwriter or underwriters in connection with such offering and will
select any additional investment bankers and managers to be used in
connection with the offering.
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2.3 Limitations on Amount. Notwithstanding any other provision of this
Agreement, if the managing underwriter, if any, advises the Holders and
the Company in writing that marketing factors require a limitation of the
number of securities to be underwritten in any offering effected pursuant
to this Section 2, then the number of securities that may be included in
the underwriting will be allocated: first, among the Holders requesting
registration in proportion, as nearly as practicable, to their respective
holdings of Registrable Securities 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 managing
underwriters; and second, if the number of Registrable Securities
requested to be registered is less than the number which, in the opinion
of the managing underwriter, can be sold, the Company for its own account
up to the number of securities, in the opinion of the managing
underwriter, can be sold; provided, however, that if the number of
Registrable Securities included in any offering is limited to a number
which would represent less than 50% of the total number of securities for
which registration has been requested hereunder, such offering will not be
counted towards the two required registrations of the Holders under this
Section 2.
2.4 Miscellaneous. If so requested by the Initiating Holders exercising their
rights for a registration under this Section 2, regardless of the
Securities Act form used for such registration, the Company will take such
steps as are required to register such Holders' Registrable Securities for
sale on a delayed or continuous basis under Rule 415, and to keep such
registration effective for 180 days or until all of such Holders'
Registrable Securities registered thereunder are sold, whichever is
shorter.
2.5 Expenses. All expenses of such registrations and offerings (other than
underwriting and selling commissions attributable to, and transfer taxes
assessed on, the Registrable Securities), and the reasonable fees and
expenses of not more than one independent counsel for the Holders, will be
borne by the Company. If any Initial Holders are selling Registrable
Securities in a registration statement pursuant to this Section 2, then
the independent counsel will be selected by such Initial Holders.
2.6 Postponement. The Company may postpone the filing of any registration
statement requested under this Section 2 for a reasonable period of time,
not to exceed an aggregate of ninety (90) days during any twelve (12)
month period, if the Company has made a good faith, reasonable
determination, evidenced by a resolution of its Board of Directors, that
such filing would either: (A) require the disclosure of a material
transaction and such disclosure would have a material adverse effect on
the Company; or (B) otherwise have a material adverse effect on the
Company because of unusual market conditions or other circumstances. The
Company will not be required to cause a registration statement requested
pursuant to this Section 2 to become effective prior to 180 days following
the effective date of a registration statement initiated by the Company,
if the request of the Initiating Holders for registration pursuant to this
Section 2 has been received by the Company subsequent to the giving of
written notice by the Company, pursuant to Section 1 hereof, to the
Holders to the effect that the Company is commencing to prepare a
Company-initiated registration statement; provided, however, that the
Company will use its best efforts to achieve such
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effectiveness promptly following (a) such 180 day period if the request
pursuant to this Section 2 has been made prior to the expiration of such
180 day period or (b) the withdrawal by the Company of the registration
statement. Any registration effected pursuant to this Section 2 and so
designated by the Initiating Holders will be subject to this Section 2,
regardless of the Securities Act form on which such registration is
effected.
3. FORM S-3
3.1 Form S-3. The Company will use its best efforts to become eligible to use
Form S-3 for secondary sales under the Securities Act or a comparable
successor form and to continue to qualify at all times for registration of
its securities on Form S-3 or such successor form. In addition to the
required registration in Section 2.1, any Holders, holding in the
aggregate at least 25% of the Registrable Securities are entitled to
demand that the Company file and cause to be declared effective a
registration statement on Form S-3 that includes only those items and that
information that is required to be included in Parts I and II of such
Form, and does not include any additional or extraneous items of
information (e.g. a lengthy description of the Company or the Company's
business) (an "Ordinary S-3 Registration Statement"). The Holders will be
entitled to have filed and declared effective not more than one Ordinary
S-3 Registration Statements in any twelve (12) consecutive month period.
3.2 Shelf Registration. Notwithstanding the foregoing provision, the Holders
will not be permitted in this Section 3 to demand the Company to file a
registration statement under Rule 415.
3.3 Notice. Pursuant to Section 1 hereof, the Company will give notice to all
Holders of the receipt of a request for registration pursuant to this
Section 3.
3.4 Effectiveness. Subject to the foregoing, the Company will use its best
efforts to effect promptly the registration of all Registrable Securities
on Form S-3 or such successor form to the extent requested by the Holder
or Holders thereof; provided, however, that the Company will not be
obligated to effect such a registration for Registrable Securities having
an aggregate anticipated offering price (before any underwriters'
discounts or commissions) of less than $2,000,000.
3.5 Conditions. If the Holder initially seeking registration under this
Section 3 intends to distribute by means of an underwriting the
Registrable Securities that, by its request, are to be registered, the
right of any Holder to include its Registrable Securities in such
registration will be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable Securities in
such underwriting. All Holders proposing to distribute their Registrable
Securities in such underwriting will enter into an underwriting agreement
in customary form with the underwriter or underwriters selected for such
underwriting.
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3.6 Limitations on Amount. Notwithstanding any other provision of this Section
3, if the managing underwriter, if any, advises the Holders and the
Company in writing that marketing factors require a limitation of the
number of securities to be underwritten, then the number of Registrable
Securities that may be included in the underwriting will be allocated
among the Holders requesting registration in proportion, as nearly as
practicable, to their respective holdings of Registrable Securities 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 managing underwriters.
3.7 Expenses. All expenses incurred in connection with a registration
requested pursuant to this Section 3 (other than underwriting and selling
commissions attributable to, and transfer taxes assessed on, the
Registrable Securities), and the reasonable fees and expenses of not more
than one independent counsel for the Holders, will be borne by the
Company. If any Initial Holders are selling Registrable Securities in a
registration statement pursuant to this Section 3, then the independent
counsel will be selected by such Initial Holders.
3.9 Postponement. The Company may postpone the filing of any registration
statement requested under this Section 3 for a reasonable period of time,
not to exceed an aggregate of ninety (90) days during any twelve (12)
month period, if the Company has made a good faith, reasonable
determination, evidenced by a resolution of its Board of Directors, that
such filing would either: (A) require the disclosure of a material
transaction and such disclosure would have a material adverse effect on
the Company; or (B) otherwise have a material adverse effect on the
Company because of unusual market conditions or other circumstances. The
Company will not be required to cause more than two (2) registration
statements requested pursuant to this Section 3 to become effective in any
twelve (12) month period. The Company will not be required to cause a
registration statement requested pursuant to this Section 3 to become
effective prior to 180 days following the effective date of a registration
statement initiated by the Company, if the request by the Holder for
registration pursuant to this Section 3 has been received by the Company
subsequent to the giving of written notice by the Company, pursuant to
Section 1 hereof, to the Holders to the effect that the Company is
commencing to prepare a Company-initiated registration statement;
provided, however, that the Company will use its best efforts to achieve
such effectiveness promptly following such 180 day period if the request
pursuant to this Section 3 has been made prior to the expiration of such
180-day period.
4. FURTHER OBLIGATIONS OF THE COMPANY
Whenever under the preceding sections of this Agreement the Company is
required to register any Registrable Securities, it agrees that it will also do
the following:
4.1 Diligently prepare and file with the Commission a registration statement
on the appropriate form under the Securities Act, which registration
statement will comply as to form in all material respects with the
requirements of the applicable form and will
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include all financial statements required by the Commission to be filed
therewith, and diligently prepare and file such amendments and supplements
to said registration statement and the prospectus used in connection
therewith as may be necessary to cause such registration statement to
become effective and remain effective for so long as such registration is
required to remain effective pursuant to the terms hereof.
4.2 Make every reasonable effort to obtain a withdrawal of any order
suspending the effectiveness of a registration statement at the earliest
possible moment.
4.3 Furnish to each selling Holder without charge such number of copies of
each preliminary and final prospectus and such other documents as such
Holder may reasonably request to facilitate the public offering of his
Registrable Securities.
4.4 Enter into any reasonable underwriting agreement containing customary
terms required by the proposed underwriter for the selling Holders, if
any. Make reasonably available for inspection by a representative of, and
counsel for, any underwriter participating in any disposition pursuant to
a registration statement, all relevant financial and other records,
pertinent corporate documents and properties of the Company and cause the
officers, directors and employees of the Company to supply all relevant
information reasonably requested by such representative, counsel or any
such underwriter in connection with any such registration statement.
4.5 Use its best efforts to register or qualify the securities covered by said
registration statement under the securities or "blue-sky" laws of such
jurisdictions as any selling Holder may reasonably request, provided that
the Company will not be required to register or qualify the securities in
any jurisdictions which require it to qualify to do business or subject
itself to general service of process therein.
4.6 Immediately notify each selling Holder, at any time when a prospectus
relating to his Registrable Securities is required to be delivered under
the Securities Act, of the happening of any event as a result of which
such prospectus contains an untrue statement of a material fact or omits
any material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, and, at the
request of any such selling Holder, prepare a supplement or amendment to
such prospectus so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus will not contain any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in light of the circumstances under which
they were made, not misleading.
4.7 Cause all such Registrable Securities to be quoted on the market or listed
on each securities exchange, as applicable, on which similar securities
issued by the Company are then quoted or listed.
4.8 If requested by the Holders in connection with any Required Registration,
the Company will use its best efforts to cause (a) counsel for the Company
to deliver an opinion relating to the registration statement and
Registrable Securities, in customary form,
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(b) its officers to execute and deliver all customary documents and
certificates requested by a representative of the Holders or any
underwriter, as applicable, and (c) its independent public accountants to
provide a comfort letter in customary form.
4.9 Otherwise use its best efforts to comply with all applicable rules and
regulations of the Commission.
5. INDEMNIFICATION; CONTRIBUTION
5.1 Indemnification. Incident to any registration statement referred to in
this Agreement, and subject to applicable law, the Company will enter into
a commercially reasonable indemnification arrangement with each
underwriter and will indemnify and hold harmless each Holder (including
its partners, directors, officers, employees and agents) and each person
who either controls such Holder within the meaning of Section 15 of the
Securities Act or Section 20 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), is under common control with, or is
controlled by, such Holder, together with the partners, directors,
officers, employees and agents of such controlling persons (collectively,
the "Controlling Persons"), from and against any and all losses, claims,
damages, expenses and liabilities, joint or several (including any
investigation, legal and other expenses incurred in connection with, and
any amount paid in settlement of (subject to Section 6(b) below), any
action, suit or proceeding or any claim asserted), to which any
Controlling Person may become subject under the Securities Act, the
Exchange Act or other federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages, expenses
or liabilities arise out of or are based on any of the following
statements, omissions, or violations (each a "Violation"): (i) any untrue
statement or alleged untrue statement of a material fact contained in such
registration statement (including any related preliminary or definitive
prospectus, any amendment or supplement to such registration statement or
prospectus and any documents incorporated in such registration statement
by reference) (collectively, the "Registration Documents"); (ii) any
omission or alleged omission to state in any such Registration Document a
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; or (iii) any violation by the Company of the
Securities Act, the Exchange Act, any state securities or "blue sky" laws
or any rule or regulation thereunder in connection with such registration;
provided, however, that the Company will not be liable to the extent that
such loss, claim, damage, expense or liability arises from and is based
on: (A) a Violation which occurs in reliance on and in conformity with
written information furnished to the Company, expressly for use in any
registration statement, by any Holder; or (B) any preliminary prospectus,
to the extent that any such loss, claim, damage or liability results
solely from an untrue statement of a material fact contained in, or the
omission of a material fact from, such preliminary prospectus which untrue
statement or omission was corrected in the amended preliminary prospectus
or in the final prospectus, if a Holder sold Registrable Securities to the
person alleging such loss, claim, damage or liability without sending or
giving, at or prior to the written confirmation of such sale, a copy of
such amended preliminary prospectus or such final prospectus (so long as
the Company had previously furnished
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copies of such amended preliminary prospectus or final prospectus to such
Holder). With respect to a Violation specified in clause (A) above, the
selling Holder who provided such written information will indemnify and
hold harmless the Company (including its partners, directors, officers,
employees and agents), each other Holder of Registrable Securities
(including its partners, directors, officers, employees and agents), and
each Controlling Person of the Company and such other Holder, from and
against any and all losses, claims, damages, expenses and liabilities,
joint or several, to which they, or any of them, may become subject under
the Securities Act, the Exchange Act or other federal or state statutory
law or regulation, at common law or otherwise, to the same extent provided
in the immediately preceding sentence (including any investigation, legal
and other expenses incurred in connection with, and any amount paid in
settlement of (subject to Section 6(b) below), any action, suit or
proceeding or any claim asserted). In no event, however, will the
liability of a Holder for indemnification under this Section 6(a) exceed
the lesser of: (i) that proportion of the total of such losses, claims,
damages or liabilities indemnified against as is equal to the proportion
of the total amount of securities sold under such registration statement
which is being sold by such Holder; or (ii) the net proceeds received by
such Holder from its sale of Registrable Securities under such
registration statement.
5.2 Indemnification Procedures. Promptly after receipt by an indemnified party
under this Section 6 of notice of the commencement of any action
(including any governmental action), such indemnified party will, if a
claim in respect thereof is to be made against any indemnifying party
under this Section 6, deliver to the indemnifying party a written notice
of the commencement of such action, and the indemnifying party will have
the right to participate in, and, to the extent the indemnifying party so
desires, jointly with any other indemnifying party similarly notified,
assume the defense thereof with counsel mutually satisfactory to all
parties; provided, however, that an indemnified party will have the right
to retain its own counsel, with the fees and expenses to be paid by the
indemnifying party if, in the reasonable opinion of the indemnified party,
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to the actual or potential
differing interests between such indemnified party and any other party
represented by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable period of
time of the commencement of any such action will relieve such indemnifying
party of liability to the indemnified party under this Section 6 only to
the extent such failure was prejudicial to the indemnifying party's
ability to defend such action, but the omission so to deliver written
notice to the indemnifying party will not relieve the indemnifying party
of any liability that it may have to any indemnified party otherwise than
under this Section 6. The indemnifying party will not be liable for any
amounts paid in settlement of any proceeding effected without its consent,
which consent will not be unreasonably withheld.
5.3 Contribution. If the indemnification provided for in Section 6(a) above
for any reason is held by a court of competent jurisdiction to be
unavailable to an indemnified party in respect of any losses, claims,
damages, expenses or liabilities, then each indemnifying
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party under this Section 6, in lieu of indemnifying such indemnified party
thereunder, will contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, expenses or
liabilities: (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the other selling Holders
from the offering; or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above
but also the relative fault of the Company and the other selling Holders
in connection with the Violation(s) which resulted in such losses, claims,
damages, expenses or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the
selling Holders will be deemed to be in the same respective proportions as
the net proceeds from the offering (before deducting expenses) received by
the Company and the selling Holders, in each case as set forth in the
table on the cover page of the applicable prospectus, bear to the
aggregate public offering price. The relative fault of the Company and the
selling Holders will be determined by reference to, among other things,
whether the Violation relates to information supplied by the Company or
the selling Holders and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Company and the Holders agree that it would not be just and
equitable if contribution pursuant to this Section 6(c) were determined by
pro rata or per capita allocation or by any other method of allocation
which does not take account of the equitable considerations referred to in
the immediately preceding paragraph. In no event, however, will a Holder
be required to contribute any amount under this Section 6(c) in excess of
the lesser of: (i) that proportion of the total of such losses, claims,
damages or liabilities indemnified against equal to the proportion of the
total amount of securities sold under such registration statement which is
being sold by such Holder; or (ii) the net proceeds received by such
Holder from its sale of Registrable Securities under such registration
statement. No person found guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) will be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
5.4 Miscellaneous. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages and liabilities referred to in this
Section 6 will be deemed to include, subject to the limitations set forth
above, any reasonable legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim. The indemnification and contribution provided for in this
Section 6 will remain in full force and effect regardless of any
investigation made by or on behalf of the indemnified parties or any
officer, director, employee, agent or Controlling Person of the
indemnified parties.
6. RULE 144 REQUIREMENTS
If the Company becomes, and for so long as it remains, subject to the
reporting requirements of either Section 13 or 15(d) of the Exchange Act, the
Company will use its best efforts to file with the Commission such information
as the Commission may require under
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either of said Sections; and in such event, the Company will use its best
efforts to provide such current public information as may be required as a
condition to the availability of Rule 144 under the Securities Act (or any
successor or similar exemptive rules hereafter in effect). The Company will
furnish to any Holder upon request a written statement executed by the Company
as to the steps it has taken to comply with the current public information
requirements of Rule 144 or such successor rules.
7. TRANSFER OF REGISTRATION RIGHTS
The registration rights of the Holders under this Agreement may be
transferred to any transferee of the Registrable Securities; provided that such
transferee will give its written consent to be bound by the terms of this
Agreement. Each such transferee will be deemed to be a "Holder" for purposes of
this Agreement. The transferring Holder will notify the Company at the time of
such transfer.
8. MARKET STAND-OFF
Each Holder agrees, if requested by any underwriter, not to sell or
otherwise transfer or dispose of any securities of the Company held by it for up
to 90 days (unless the managing underwriter (if any) reasonably requests a
longer period not to exceed 120 days) following the effective date of any
registration statement of the Company filed under the Securities Act and in
which the Holders participate pursuant to this Agreement, subject to the
condition that all directors and executive officers of the Company enter into
similar agreements.
9. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Holders as follows:
9.1 The execution, delivery and performance of this Agreement by the Company
have been duly authorized by all requisite action, will not violate any
provision of law, any order of any court or other agency of government,
the Certificate of Incorporation, bylaws or any provision of any
indenture, agreement or other instrument to which it or any of its
properties or assets is bound, and will not conflict with, result in a
breach of or constitute (with due notice or lapse of time or both) a
default under any such indenture, agreement or other instrument or result
in the creation or imposition of any lien, charge or encumbrance of any
nature whatsoever upon any of the properties or assets of the Company.
9.2 This Agreement has been duly executed and delivered by the Company and
constitutes the legal, valid and binding obligation of the Company,
enforceable in accordance with its terms, except as the enforcement
thereof may be limited by bankruptcy and other laws of general application
relating to creditor's rights or general principles of equity.
10. MISCELLANEOUS
10.1 Survival of Covenants. All covenants and agreements contained in this
Agreement by or on behalf of any of the parties hereto will bind and inure
to the benefit of the respective
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successors and assigns of the parties hereto (including without limitation
transferees of any Registrable Securities), whether so expressed or not.
10.2 Notices and Demands. Any notice or demand which, by any provision of this
Agreement or any agreement, document or instrument executed pursuant
hereto or thereto, except as otherwise provided therein, is required to be
given will be deemed to have been sufficiently given or served and
received for all purposes when delivered in hand, by facsimile
transmission with receipt acknowledged or by express delivery providing
receipt of delivery, to the following addresses and numbers: if to the
Company, ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or
at any other address designated by the Company to the Holders in writing;
if to a Holder, at its mailing address or facsimile number shown on the
signature page hereto, or at any other address or facsimile number
designated by such Holder to the Company and the other Holders in writing;
and if to an assignee of a Holder, at its address or facsimile number as
designated to the Company and the other Holders in writing.
10.3 Governing Law. This Agreement will be deemed to be a contract made under,
and will be construed in accordance with, the internal laws of the State
of Delaware.
10.4 Severability. If any provision of this Agreement will be held to be
illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability will attach only to such provision and will not in any
manner affect or render illegal, invalid or unenforceable any other
provision of this Agreement, and this Agreement will be carried out as if
any such illegal, invalid or unenforceable provision were not contained
herein.
10.5 Successors and Assigns. This Agreement will inure to the benefit and be
binding on the successors, assigns and transferees of each of the parties.
10.6 Amendment. This Agreement may be amended only with the prior written
consent of the Company, the Holders of a majority in interest of the
Registrable Securities and, provided that at the time of such amendment
the Initial Holders hold at least ten percent (10%) of the Registrable
Securities, a majority in interest of the Initial Holders.
10.7 Counterparts. This Agreement may be executed in any number of counterparts
and by the parties hereto in separate counterparts, each of which when so
executed will be deemed to be an original and all of which taken together
will constitute one and the same agreement.
10.8 Headings. The headings in this Agreement are for convenience of reference
only and do not limit or otherwise affect the meaning hereof.
10.9 Entire Agreement. This Agreement is intended by the parties as a final
expression of their agreement and is intended to be a complete and
exclusive statement of the agreement and understanding of the parties
hereto with respect to their registration rights with respect to any
securities of the Company or any of its subsidiaries or affiliates. There
are no restrictions, promises, warranties or undertakings, other than
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those set forth or referred to herein with respect to the Registrable
Securities. This Agreement is intended to amend the Registration Rights
Agreement of Holdings and the Membership Unitholders Agreement of
Intermediate and supersede any inconsistent provisions with respect to
such registration rights and to supersede any other agreements between any
Holder and the Company or any of its subsidiaries or affiliates with
respect to registration rights covering any of their respective
securities.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the undersigned have executed this Registration Rights
Agreement which will be effective as of the closing of the Company's IPO.
ACME COMMUNICATIONS, INC.
By:
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial Officer
ALTA COMMUNICATIONS VI, L.P.
By: Alta Communications VI Management
Partners, L.P, its general partner
By:
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: G.P.
ALTA SUBORDINATED DEBT
PARTNERS III, L.P.
By: Alta Subordinated Debt
Management III,
L.P., its general partner
By:
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: G.P.
ALTA-COMM S BY S, LLC
By:
------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇, a member
c/o Alta Communications
One ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇
▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
CEA CAPITAL PARTNERS USA, L.P.
By: CEA Management Corp., its authorized
representative
By:
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
CEA CAPITAL PARTNERS USA CI, L.P.,
a Cayman Islands limited partnership
By: CEA Management Corp., its authorized
representative
By:
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
c/o CEA Capital Partners
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
BANCBOSTON VENTURES INC.
By:
------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
c/o BancBoston Capital
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
----------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
c/o ACME Communications, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
----------------------------------------
▇▇▇ ▇▇▇▇▇
c/o ACME Communications, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
----------------------------------------
▇▇▇▇ ▇▇▇▇▇
c/o ACME Communications, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
ACME CAPITAL PARTNERS
By:
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: EVP
c/o CEA Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
PEREGRINE CAPITAL, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice President
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----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, individually
----------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, individually
----------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇, individually
1994 EMBRESCIA FAMILY TRUST F/B/O
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, KEY TRUST
COMPANY OF OHIO, N.A., TRUSTEE
By:
------------------------------------
Name:
Title:
1994 EMBRESCIA FAMILY TRUST F/B/O
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, KEY TRUST
COMPANY OF OHIO, N.A., TRUSTEE
By:
------------------------------------
Name:
Title:
1994 EMBRESCIA FAMILY TRUST F/B/O
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, KEY TRUST
COMPANY OF OHIO, N.A., TRUSTEE
By:
------------------------------------
Name:
Title:
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▇▇▇▇▇ ▇. ▇▇▇▇ LIVING TRUST
By:
------------------------------------
Name:
Its: Trustee
TCW LEVERAGED INCOME TRUST, L.P.
By: TCW Investment Management Company,
as investment advisor
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
TCW SHARED OPPORTUNITY FUND II, L.P.
By: TCW Investment Management Company,
as investment advisor
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
CONTINENTAL CASUALTY COMPANY
By:
------------------------------------
Name:
Title:
Its:
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20
AMERICAN HIGH-INCOME TRUST
By: Capital Research &
Management Company
as Investment Advisor
By:
------------------------------------
Name:
Title:
Its:
AMERICAN VARIABLE INSURANCE SERIES-
HIGH-YIELD BOND
By: Capital Research &
Management Company
as Investment Advisor
By:
------------------------------------
Name:
Title:
Its:
THE LINCOLN NATIONAL LIFE INSURANCE
COMPANY
By:
------------------------------------
Name:
Title:
Its:
CANYON VALUE REALIZATION
FUND (Cayman) LTD., a Cayman Corporation
By:
------------------------------------
Name:
Title:
Its:
VALUE REALIZATION FUND, L.P.,
a Delaware limited partnership
By: CanPartners Investments III, L.P.,
a California limited partnership
Its: General Partner
By: Canyon Capital Advisors, LLC
a Delaware limited liability
company
Its: General Partner
By:
-------------------------------
Name:
Its:
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▇▇▇▇▇▇▇▇ PINCH & ▇▇▇▇▇ PINCH
----------------------------------------
----------------------------------------
POST TOTAL RETURN FUND, L.P.
By:
------------------------------------
Name:
Title:
Its:
21