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EXHIBIT 4.12
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
dated as of December 13, 1999
among
CLASSIC COMMUNICATIONS, INC.,
BRERA CLASSIC, LLC,
and
the additional parties named herein.
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TABLE OF CONTENTS
Page
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SECTION 1. DEFINITIONS ...................................................................... 2
1.1 Capitalized Terms .......................................................... 2
1.2 Defined Terms .............................................................. 2
1.3 General Interpretive Principles ............................................ 7
SECTION 2. REGISTRATION RIGHTS .............................................................. 7
2.1 Demand Registrations ....................................................... 7
2.2 Piggyback Registrations .................................................... 12
2.3 Lock-Up Period for the Company and Others .................................. 14
2.4 Registration Procedures .................................................... 15
2.5 Underwritten Offerings ..................................................... 23
2.6 No Inconsistent Agreements; Additional Rights .............................. 24
2.7 Registration Expenses ...................................................... 24
2.8 Indemnification ............................................................ 25
2.9 Rules 144 and 144A ......................................................... 30
2.10 Effectiveness .............................................................. 31
2.11 Star Cable Associates ...................................................... 31
SECTION 3. MISCELLANEOUS .................................................................... 31
3.1 Entire Agreement ........................................................... 31
3.2 Injunctive Relief .......................................................... 31
3.3 Attorneys' Fees ............................................................ 31
3.4 Notices .................................................................... 32
3.5 Successors, Assigns and Transferees ........................................ 33
3.6 Headings ................................................................... 34
3.7 Severability ............................................................... 34
3.8 Amendment; Waiver .......................................................... 34
3.9 Counterparts ............................................................... 35
3.10 Representations and Warranties ............................................. 35
3.11 Governing Law .............................................................. 35
3.12 Consent to Jurisdiction and Service of Process; Appointment of Agent for
Service of Process ......................................................... 35
3.13 Waiver of Jury Trial ....................................................... 36
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AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
THIS AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this
"Agreement"), dated as of December 13, 1999, is by and among Classic
Communications, Inc., a Delaware corporation (the "Company"), Brera Classic,
LLC, a Delaware limited liability company ("Brera"), J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
("▇▇▇▇▇▇▇"), ▇▇▇▇▇▇ ▇. Seach ("Seach") and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇")
(▇▇▇▇▇▇▇, Seach, and ▇▇▇▇▇▇▇▇ are collectively referred to as the "Management
Stockholders" and individually as a "Management Stockholder"), BT Capital
Partners, Inc., a Delaware corporation ("BT Capital"), Union Bancal Venture
Corporation, a Delaware corporation ("Union Bancal"), The Chase Manhattan Bank,
N.A. ("Chase"), Austin Ventures, L.P., a Delaware limited partnership
("Austin"), Austin Ventures III-A, L.P., a Delaware limited partnership ("Austin
III-A"), Austin Ventures III-B, L.P., a Delaware limited partnership ("Austin
III-B"), Texas Growth Fund, a trust fund created by the Constitution of the
State of Texas ("Growth Fund"), and BA Capital Company, L.P., successor in
interest to NationsBanc Capital Corp., a Texas Corporation ("BA Capital") (BT
Capital, Union Bancal, Chase, Austin, Austin III-A, Austin III-B, Growth Fund
and BA Capital are collectively referred to as the "Current Investors" and
individually as a "Current Investor"). The parties (other than the Company) and
any Person who hereafter acquires shares of Equity Securities (as defined
herein) pursuant to the provisions of, and subject to the restrictions and
rights set forth in, this Agreement, shall sometimes hereinafter be referred to
individually as a "Stockholder" and collectively as the "Stockholders."
WHEREAS, the Company and Brera have entered into an Investment
Agreement, dated as of May 24, 1999 (the "Investment Agreement"), pursuant to
which Brera has purchased, in the aggregate, from the Company, and the Company
has sold to Brera, 6,490,734 shares of voting common stock, par value $0.01 per
share (the "Voting Common Stock"), of the Company;
WHEREAS, the Company is in the process of conducting an
Initial Public Offering;
WHEREAS, as part of the Initial Public Offering, all of the
currently outstanding shares of Voting Common Stock will be converted to Class B
Voting Common Stock, par value $0.01 per share ("Class B Common Stock")
convertible into Class A Voting Common Stock, par value $0.01 per share ("Class
A Common Stock"), on a one-for-one basis;
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WHEREAS, the parties to this Agreement wish to provide for
certain registration rights relating to the shares of Class A Common Stock
issuable upon the conversion of shares of Class B Common Stock;
WHEREAS, the parties to this Agreement wish to amend certain
provisions of the Registration Rights Agreement, dated as of July 28, 1999 (the
"Previous Registration Rights Agreement"), among the parties hereto, relating to
the allocation of registrable securities; and
WHEREAS, this Agreement shall not become effective until
completion of the Closing.
NOW, THEREFORE, in consideration of the foregoing and the
mutual premises, covenants and agreements of the parties hereto, and for other
good and valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. DEFINITIONS.
1.1 Capitalized Terms. Capitalized terms used but not defined
herein shall have the respective meanings given to them in the Investment
Agreement.
1.2 Defined Terms. As used in this Agreement, the following
terms shall have the following meanings:
"Adverse Disclosure" means public disclosure of material
non-public information, which disclosure in the Board's good faith judgment
after consultation with counsel to the Company (i) would be required to be made
in any registration statement filed with the SEC by the Company so that such
registration statement would not be materially misleading; (ii) would not be
required to be made at such time but for the filing of such registration
statement; and (iii) the Company has a bona fide business purpose for not
disclosing publicly.
"Affiliate", as applied to any Person, means any other Person
directly or indirectly controlling, controlled by or under common control with
that Person. The term "control" (including, with correlative meanings, the terms
"controlling," "controlled by" and "under common control with"), as applied to
any Person, means the possession, directly or indirectly, of power to direct the
management and policies of that Person, whether through voting power, by
contract or otherwise.
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"Agreement" has the meaning set forth in the preamble hereto.
"Brera" has the meaning set forth in the preamble hereto.
"Brera Registrable Securities" means any Class A Common Stock
held by or issuable to Brera upon conversion of shares of Class B Common Stock,
and any securities that may be issued or distributed or be issuable in respect
of any Brera Registrable Securities by way of stock dividend, stock split or
other distribution, merger, consolidation, exchange offer, recapitalization or
reclassification or similar transaction; provided, however, that any such Brera
Registrable Securities shall cease to be Brera Registrable Securities to the
extent a Registration Statement with respect to the sale of such Brera
Registrable Securities has been declared effective under the Securities Act and
such Brera Registrable Securities have been disposed of in accordance with the
plan of distribution set forth in such Registration Statement. Unless otherwise
provided herein, a percentage (or a majority) of the Brera Registrable
Securities shall be determined based on the number of securities remaining
unregistered.
"Board" means the board of directors of the Company.
"Business Day" has the meaning set forth in the Investment
Agreement.
"Class A Common Stock" has the meaning set forth in the
preamble hereto.
"Class B Common Stock" has the meaning set forth in the
preamble hereto.
"Closing" means the closing of the Initial Public Offering of
the Company.
"Common Stock" means the Voting Common Stock and Nonvoting
Common Stock, par value $0.01 per share, of the Company.
"Company" has the meaning set forth in the preamble and
includes the Company's successors by merger, acquisition, reorganization or
otherwise.
"Company Public Sale" has the meaning set forth in Section
2.2(a).
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"Current Investors" has the meaning set forth in the preamble
hereto.
"Current Investors Registrable Securities" means any Class A
Common Stock held by or issuable to the Current Investors upon conversion of
shares of Class B Common Stock, and any securities that may be issued or
distributed or be issuable in respect of any Current Investors Registrable
Securities by way of stock dividend, stock split or other distribution, merger,
consolidation, exchange offer, recapitalization or reclassification or similar
transaction; provided, however, that any such Current Investors Registrable
Securities shall cease to be Current Investors Registrable Securities to the
extent a Registration Statement with respect to the sale of such Current
Investors Registrable Securities has been declared effective under the
Securities Act and such Current Investors Registrable Securities have been
disposed of in accordance with the plan of distribution set forth in such
Registration Statement. Unless otherwise provided herein, a percentage (or a
majority) of the Current Investors Registrable Securities shall be determined
based on the number of securities remaining unregistered.
"Demand Notice" has the meaning set forth in Section 2.1(f).
"Demand Period" has the meaning set forth in Section 2.1(e).
"Demand Registration" has the meaning set forth in Section
2.1(a)(iii).
"Demand Registration Statement" has the meaning set forth in
Section 2.1(a).
"Equity Securities" has the meaning set forth in the
Investment Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and any successor thereto, and any rules and regulations promulgated
thereunder, all as the same shall be in effect from time to time.
A "holder" or "holders" means, unless the context otherwise
requires, any holder or holders of Registrable Securities (whether or not
acquired pursuant to the Investment Agreement) who is a party hereto or who
otherwise agrees in writing to be bound by the provisions of this Agreement.
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"Indemnified Company Parties" has the meaning set forth in
Section 2.8(b).
"Indemnified Holder Parties" has the meaning set forth in
Section 2.8(a).
"Initial Public Offering" means a registered offering of
Common Stock that results in net proceeds to the Company of at least $100
million and listing of the Common Stock on a national securities exchange or the
Nasdaq Stock Market's National Market.
"Investment Agreement" has the meaning set forth in the
recitals.
"Long-Form Registration" has the meaning set forth in Section
2.1(a)(i).
"Long-Form Demand Registration" has the meaning set forth in
Section 2.1(a)(iii).
"Loss" has the meaning set forth in Section 2.8(a).
"Management Registrable Securities" means any Class A Common
Stock held by or issuable to ▇▇▇▇▇▇▇, Seach or ▇▇▇▇▇▇▇▇ upon conversion of
shares of Class B Common Stock, and any securities that may be issued or
distributed or be issuable in respect of any Management Registrable Securities
by way of stock dividend, stock split or other distribution, merger,
consolidation, exchange offer, recapitalization or reclassification or similar
transaction; provided, however, that any such Management Registrable Securities
shall cease to be Management Registrable Securities to the extent a Registration
Statement with respect to the sale of such Management Registrable Securities has
been declared effective under the Securities Act and such Management Registrable
Securities have been disposed of in accordance with the plan of distribution set
forth in such Registration Statement. Unless otherwise provided herein, a
percentage (or a majority) of the Management Registrable Securities shall be
determined based on the number of securities remaining unregistered.
"NASD" means the National Association of Securities Dealers,
Inc.
"Person" means any individual, firm, limited liability company
or partnership, joint venture, corporation, joint stock company, trust or
unincorporated organization, incorporated or unincorporated association,
government (or any department, agency or political subdivision thereof) or other
entity of any kind, and shall include any successor (by merger or otherwise) of
such entity.
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"Piggyback Registration" has the meaning set forth in Section
2.2(a).
"Prospectus" means the prospectus included in any Registration
Statement 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 the Registration Statement and all other amendments and supplements
to the prospectus, including post-effective amendments and all other material
incorporated by reference in such prospectus.
"Registrable Securities" means the Brera Registrable
Securities, the Current Investors Registrable Securities and the Management
Registrable Securities. For purposes of this Agreement, a "class" of Registrable
Securities means the Brera Registrable Securities or the Current Investors
Registrable Securities, as applicable.
"Registration" means a registration of the Company's
securities for sale to the public under a Registration Statement.
"Registration Expenses" has the meaning set forth in Section
2.7(a).
"Registration Statement" means any registration statement of
the Company filed with, or to be filed with, the SEC under the rules and
regulations promulgated under the Securities Act, including the Prospectus,
amendments and supplements to such registration statement, including
post-effective amendments, and all exhibits and all material incorporated by
reference in such registration statement.
"Requesting Class" has the meaning set forth in Section
2.1(i).
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended,
and any successor thereto, and any rules and regulations promulgated thereunder,
all as the same shall be in effect from time to time.
"Short-Form Registration" has the meaning set forth in Section
2.1(a)(i).
"Short-Form Demand Registration" has the meaning set forth in
Section 2.1(a)(iii).
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"Underwritten Offering" means a Registration in which
securities of the Company are sold to an underwriter on a firm commitment basis
for reoffering to the public.
"Voting Common Stock" means the voting Common Stock, par value
$.01 per share, of the Company
1.3 General Interpretive Principles. Whenever used in this
Agreement, except as otherwise expressly provided or unless the context
otherwise requires, any noun or pronoun shall be deemed to include the plural as
well as the singular and to cover all genders. The name assigned this Agreement
and the section captions used herein are for convenience of reference only and
shall not be construed to affect the meaning, construction or effect hereof.
Unless otherwise specified, the terms "hereof," "herein" and similar terms refer
to this Agreement as a whole (including the exhibits, schedules and disclosure
statements hereto), and references herein to Sections refer to Sections of this
Agreement.
SECTION 2. REGISTRATION RIGHTS.
2.1 Demand Registrations.
(a) Demand by Holders. (i) At any time after the
Closing, but in no event within one hundred eighty (180) days of the
effective date of a Registration Statement, the holder or holders of
twenty (20%) or more of the Brera Registrable Securities at any time
may request Registration under the Securities Act of all or part of
their Brera Registrable Securities on Form S-1 or any similar
long-form registration ("Long-Form Registration") or, if available, on
Form S-3 or any similar short-form registration ("Short-Form
Registration") by delivering a written notice to the Company to that
effect; provided, however, that the aggregate offering value of the
Brera Registrable Securities requested to be registered in any such
Registration must be reasonably expected to equal at least
$10,000,000.
(ii) At any time after the Closing, but in no event
within one hundred eighty (180) days of the effective date of a
Registration Statement, Current Investors holding a majority of the
Current Investors' Registrable Securities at any time may request
Registration under the Securities Act of all or part of their Current
Investors Registrable Securities on any Long-Form Registration or, if
available, any Short-Form Registration by delivering a written notice
to the
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Company to that effect; provided, however, that the aggregate offering
value of the Current Investors Registrable Securities requested to be
registered in any such Registration must be reasonably expected to
equal at least $10,000,000.
(iii) Any Long-Form Registration and Short-Form
Registration requested pursuant to this Section 2.1(a), other than a
Registration in which the Company sells any of its securities in a
primary offering, are referred to herein, respectively, as a
"Long-Form Demand Registration" and a "Short-Form Demand
Registration." All Long-Form Demand Registrations and Short-Form
Demand Registrations shall collectively be referred to herein as
"Demand Registrations." Notwithstanding the foregoing, the Company
will have the right to register and sell any of its securities in a
Registration requested pursuant to this Section 2.1 (a) and all
Registrations requested pursuant to this Section 2.1(a) in which the
Company sells any of its securities in a primary offering, other than
pursuant to an over-allotment option granted to underwriters in
connection with such offering, shall not be deemed to be Demand
Registrations and shall be considered Piggyback Registrations and will
be governed by Section 2.2.
Each request for a Demand Registration shall specify the kind and aggregate
amount of the class of Registrable Securities to be registered and the intended
methods of disposition thereof. Upon such request for a Demand Registration, the
Company shall file a Registration Statement relating to such Demand Registration
(the "Demand Registration Statement"), and shall use its best efforts promptly
to cause to become effective the Registration of such class of Registrable
Securities (and all other Registrable Securities which the Company has been
requested to register by any other holder pursuant to Section 2.1(f) hereof)
under (i) the Securities Act, and (ii) the "Blue Sky" laws of such jurisdictions
as any holder of Registrable Securities being registered under such Registration
or any underwriter, if any, reasonably requests.
(b) Long-Form Demand Registrations. A maximum of four (4)
Long-Form Demand Registrations may be requested by the holders of the Brera
Registrable Securities pursuant to subparagraph (i) of Section 2.1(a), and a
maximum of three (3) Long-Form Demand Registration may be requested by the
holders of the Current Investors Registrable Securities pursuant to subparagraph
(ii) of Section 2.1(a). A Registration will not count as a Long-Form Demand
Registration until it has become effective and unless the holders of Registrable
Securities initially request-
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ing such Registration are able to register and sell at least seventy-five
percent (75%) of the Registrable Securities requested to be included in such
registration.
(c) Short-Form Demand Registrations. In addition to the
Long-Form Demand Registrations that may be requested pursuant to Section 2.1(b),
the holders of Brera Registrable Securities and the Current Investors
Registrable Securities will each, as a class, be entitled to request, pursuant
and subject to the terms of Section 2.1(a), four (4) Short-Form Demand
Registrations. Once the Company has become subject to the reporting requirements
of the Securities Exchange Act, the Corporation will use its best efforts to
make Short-Form Demand Registrations available for the sale of Registrable
Securities.
(d) Demand Withdrawal. In the event that a Demand Registration
is requested under Section 2.1(a), and the holders of the class of Registrable
Securities later determine not to sell their Registrable Securities in
connection with the registration requested, then prompt notice shall be given by
such holders to the Company that the registration requested is no longer
required and that the request is thereby withdrawn. Upon receipt of such notice,
the Company shall cease all efforts to secure registration and shall take all
action necessary and reasonably practicable to prevent the commencement of
effectiveness for any registration statement that it is preparing or has
prepared in connection with the withdrawn request. Such registration shall be
deemed a Demand Registration for purposes of Sections 2.1(b) and (c) above,
unless the withdrawing holders shall have paid or reimbursed the Company for all
of the reasonable out-of-pocket fees and expenses incurred by the Company in
connection with the registration of such withdrawn Registrable Securities.
(e) Effective Registration. The Company shall be deemed to
have effected a Demand Registration if the Demand Registration Statement is
declared effective by the SEC and remains effective for not fewer than 180 days
(or such shorter period as will terminate when all Registrable Securities
covered by such Demand Registration Statement have been sold or withdrawn), or,
if such Registration Statement relates to an Underwritten Offering, such longer
period as in the opinion of counsel for the underwriter or underwriters a
Prospectus is required by law to be delivered in connection with sales of
Registrable Securities by an underwriter or dealer (in either case, such period
being the "Demand Period"). No Demand Registration shall be deemed to have been
effected if (i) during the Demand Period, such Registration is interfered with
by any stop order, injunction or other order or requirement of the SEC or other
governmental agency or court or (ii) the conditions to closing specified in the
underwriting agreement, if any, entered into in connection with such
Registration are not satisfied.
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(f) Demand Notice. Promptly upon receipt of any request for a
Demand Registration pursuant to Section 2.1(a) (but in no event more than five
(5) Business Days thereafter), the Company shall serve written notice (a "Demand
Notice") of any such Registration request to all other holders of Registrable
Securities, and the Company shall include in such Registration all such
Registrable Securities of any holder with respect to which the Company has
received written requests for inclusion therein within 30 days after the Demand
Notice has been given to it. All requests made pursuant to this Section 2.1(f)
shall specify the kind and aggregate amount of Registrable Securities to be
registered and the intended method of distribution of such securities.
(g) Delay in Filing; Suspension of Registration. If the
continued effectiveness of the Demand Registration Statement at any time would
require the Company to make an Adverse Disclosure, the Company may, upon giving
prompt written notice of such action to the holders, suspend use of the Demand
Registration Statement (a "Demand Suspension"); provided, however, that the
Company shall not be permitted to exercise a Demand Suspension (i) more than
three times during any twenty-four (24) month period, (ii) for a period
exceeding forty (40) days on any one occasion, or (iii) for an aggregate period
exceeding one hundred twenty (120) days in any twelve (12) month period with
respect to more than one Demand Suspension. In the case of a Demand Suspension,
the holders agree to suspend use of the Prospectus related to the Demand
Registration in connection with any such sale or purchase or offer to sell or
purchase of Registrable Securities upon receipt of the notice referred to above.
The Company shall immediately notify the holders upon the termination of any
Demand Suspension, amend or supplement the Prospectus, if necessary, so it does
not contain any untrue statement or omission therein and furnish to the holders
such numbers of copies of the Prospectus as so amended or supplemented as the
holders may reasonably request. The Company agrees, if necessary, to supplement
or make amendments to the Demand Registration Statement, if required by the
registration form used by the Company for the Demand Registration or by the
instructions applicable to such registration form or by the Securities Act or
the rules or regulations promulgated thereunder or as may reasonably be
requested by the Holders of a majority of the Registrable Securities to be
included in such Registration.
(h) Underwritten Offering. If not less than a majority of the
holders of any class of Registrable Securities requesting a Demand Registration
so elect, the offering of Registrable Securities pursuant to such Demand
Registration shall be in the form of an Underwritten Offering. If any offering
pursuant to a Demand Registration involves an Underwritten Offering, the holders
of a majority of
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the Registrable Securities included in such Demand Registration shall, after
consulting with the Company, have the right to select the managing underwriter
or underwriters to administer the offering.
(i) Priority of Securities Registered Pursuant to Demand
Registrations. If the managing underwriter or underwriters of a Demand
Registration (or, in the case of a Demand Registration not being underwritten,
holders of a majority of the class of Registrable Securities requesting the
Demand Registration (the "Requesting Class")), advise the Company in writing
that, in its or their opinion, the number of securities requested to be included
in such Demand Registration (including securities of the Company for its own
account or for the account of other Persons which are not holders of Registrable
Securities) exceeds the number which can be sold in such offering without being
likely to have a significant adverse effect on the price, timing or distribution
of the securities offered or the market for the Company's Common Stock, the
Company will include in such Registration, Registrable Securities sought to be
registered therein and only such lesser number of other securities as shall, in
the opinion of the managing underwriter or underwriters (or, in the case of a
Demand Registration not being underwritten, holders of a majority of the
Requesting Class) not be likely to have such an effect, allocated as follows:
(i) first, pro rata among all holders of Registrable Securities that have
requested pursuant to this Section 2.1 to be included in such Registration,
based on the fully diluted ownership of such holders (provided that any
Registrable Securities allocated to any such holder pursuant to this clause (i)
that exceed such holder's request will be reallocated among the remaining
requesting holders of Registrable Securities in like manner) and (ii) second,
and only if all of the Registrable Securities referenced in clause (i) have been
included, any other securities eligible for inclusion in such Registration.
2.2 Piggyback Registrations.
(a) Participation. If the Company at any time proposes to file
a Registration Statement under the Securities Act with respect to any offering
of its Equity Securities for its own account or for the account of any holders
(other than (i) a Registration under Section 2.1 hereof, (ii) a Registration on
Form S-4 or S-8 or any successor form to such Forms, (iii) a Registration of
securities solely relating to an offering and sale to employees or directors of
the Company pursuant to any employee stock plan or other employee benefit plan
arrangement, or (iv) a Registration of securities issued solely in an
acquisition or business combination) (a "Company Public Sale"), then, as soon as
practicable (but in no event less than thirty (30) days prior to the proposed
date of filing such Registration Statement), the Company shall
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give written notice of such proposed filing to all holders of Registrable
Securities and (unless all such Registrable Securities are then registered
pursuant to Section 2.1) such notice shall offer the holders of such Registrable
Securities the opportunity to register such number of Registrable Securities as
each such holder may request in writing (a "Piggyback Registration"). Subject to
Section 2.2(b), the Company shall include in such Registration Statement all
Registrable Securities requested within fifteen (15) Business Days after the
receipt by the holder of any such notice (which request shall specify the
Registrable Securities intended to be disposed of by such holder) to be included
in the Registration for such offering pursuant to a Piggyback Registration;
provided, however, that if at any time after giving written notice of its
intention to register any securities and prior to the effective date of the
Registration Statement filed in connection with such Registration, the Company
shall determine for any reason not to register or to delay registration of such
securities, the Company may, at its election, give written notice of such
determination to each holder of Registrable Securities and, thereupon, (i) in
the case of a determination not to register, shall be relieved of its obligation
to register any Registrable Securities in connection with such Registration (but
not from its obligation to pay the Registration Expenses in connection
therewith), without prejudice, however, to the rights of any holders of
Registrable Securities entitled to request that such Registration be effected as
a Demand Registration under Section 2.1, and (ii) in the case of a determination
to delay registering and in the absence of a request for a Demand Registration,
shall be permitted to delay registering any Registrable Securities, for the same
period as the delay in registering such other securities. If the offering
pursuant to such Registration Statement is to be underwritten, then each holder
making a request for a Piggyback Registration pursuant to this Section 2.2(a)
must participate in such Underwritten Offering. If the offering pursuant to such
Registration Statement is to be on any other basis, then each holder making a
request for a Piggyback Registration pursuant to this Section 2.2(a) must
participate in such offering on such basis. Each holder of Registrable
Securities shall be permitted to withdraw all or part of such holder's
Registrable Securities from a Piggyback Registration at any time prior to the
effective date thereof. No registration effected under this Section 2.2 shall
relieve the Company of its obligation to effect any registration upon request
under Section 2.1, nor shall any such registration hereunder be deemed to have
been effected pursuant to Section 2.1. The Company will pay all Registration
Expenses in connection with each registration of Registrable Securities
requested pursuant to this Section 2.2.
(b) Priority of Piggyback Registration. If the managing
underwriter or underwriters of any proposed Underwritten Offering in a Piggyback
Registration inform the Company and the holders of such Registrable Securities
in writing that the total amount or kind of securities which such holders and
any other
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Persons intend to include in such offering exceeds the number which can be sold
in such offering so as to have a significant adverse effect on the price, timing
or distribution of the securities offered in such offering or the market for the
Company's Common Stock, then the securities to be included in such Registration
shall be (i) first, 100% of the securities that the Company proposes to sell,
(ii) second, and only if all the securities referenced in clause (i) have been
included, the number of Registrable Securities that, in the opinion of such
underwriter or underwriters, can be sold without having such adverse effect,
allocated pro rata among the holders of all Registrable Securities that have
requested pursuant to Section 2.2(a) to be included in such Registration, based
on the fully diluted ownership of such holders (provided that any Registrable
Securities allocated to any such holder pursuant to this clause (ii) that exceed
such holder's request will be reallocated among the remaining requesting holders
of Registrable Securities in like manner) and (iii) third, and only if all of
the Registrable Securities referenced in clauses (i) and (ii) have been
included, any other securities eligible for inclusion in such Registration.
(c) No Effect on Demand Registrations. No Registration of
Registrable Securities effected pursuant to a request under this Section 2.2
shall be deemed to have been effected pursuant to Section 2.1 hereof or shall
relieve the Company of its obligations under Section 2.1 hereof.
2.3 Lock-Up Period for the Company and Others. In the case of an
Underwritten Offering, the Company agrees, if requested by the holders of a
majority of any class of Registrable Securities or the managing underwriters in
such Underwritten Offering, not to effect any public sale or distribution of any
securities the same as or similar to those being registered, or any securities
convertible into or exchangeable or exercisable for such securities, during the
period beginning 7 days before, and ending 180 days (or such lesser period as
may be permitted by such holders or such underwriter) after, the effective date
of the Registration Statement filed in connection with such registration (or, in
the case of an underwriting under a shelf registration, the date of the closing
under the underwriting agreement), to the extent timely notified in writing by a
holder of Registrable Securities covered by such Registration Statement or the
managing underwriters (except, in each case, as part of such Underwritten
Offering, if permitted, or pursuant to registrations on Forms S-4 or S-8 or any
successor form to such Forms or otherwise as part of any registration of
securities for offering and sale to management of the Company pursuant to any
employee stock plan or other employee benefit plan arrangement or Registration
of securities issued solely in an acquisition or business combination). The
Company agrees to use all reasonable efforts to obtain from each Current
Investor and each holder of restricted securities of the Company the same as or
similar to those being registered by the
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Company, or any restricted securities convertible into or exchangeable or
exercisable for any of its securities, an agreement not to effect any public
sale or distribution of such securities during any such period referred to in
this paragraph, except as part of any such Registration if permitted. Without
limiting the foregoing (but subject to Section 2.6), if after the date hereof
the Company grants any Person any rights to demand or participate in, a
Registration, the Company agrees that the agreement with respect thereto shall
include such Person's agreement as contemplated by the previous sentence. In
addition to the foregoing, each holder of Registrable Securities hereby agrees
not to effect any public sale or distribution of equity securities of the
Company, including any public sale pursuant to Rule 144 under the Securities
Act, or any securities convertible into or exchangeable or exercisable for such
securities, during the seven days prior to and the 180-day period beginning on
the effective date of the Company's Initial Public Offering, unless the
underwriters managing the Initial Public Offering otherwise agree. During such
period, the Company may impose stop transfer instructions with respect to
Registrable Securities to prohibit transfers in violation of the previous
sentence.
2.4 Registration Procedures.
(a) Actions by Company. In connection with the Company's
registration obligations under Sections 2.1 and 2.2 hereof, the Company will use
its best efforts to effect such registration to permit the sale of such
Registrable Securities in accordance with the intended method or methods of
distribution thereof as expeditiously as possible, and pursuant thereto the
Company will, as expeditiously as possible:
(i) before filing a Registration Statement or
Prospectus, or any amendments or supplements thereto and in connection
therewith, (x) furnish to the underwriters, if any, and to the holders
of the Registrable Securities covered by such Registration Statement,
copies of all documents prepared to be filed, which documents will be
subject to the review of such underwriters and such holders and their
respective counsel and (y) except in the case of a registration under
Section 2.2, not file any Registration Statement or Prospectus or
amendments or supplements thereto to which the holders of a majority of
Registrable Securities covered by such Registration Statement or the
underwriters, if any, shall reasonably object;
(ii) prepare and, in the case of a Demand
Registration, no later than 45 days after a request for a Demand
Registration,
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file with the SEC a Registration Statement relating to the Registrable
Securities including all exhibits and financial statements required by
the SEC to be filed therewith, and use its best efforts to cause such
Registration Statement to become effective under the Securities Act;
provided, however, that such period shall be 90 days if a request for a
Demand Registration is made in the first 45 days of any year, and the
Company cannot file such Demand Registration without audited financial
statements for the prior calendar year under the rules of the SEC;
(iii) prepare and file with the SEC such amendments
and post-effective amendments to such Registration Statement and
supplements to the Prospectus as may be (x) reasonably requested by the
holders of a majority of the participating Registrable Securities, (y)
reasonably requested by any participating holder (to the extent such
request relates to information relating to such holder), or (z)
necessary to keep such Registration effective for the Demand Period (in
the case of a Demand Registration);
(iv) notify the selling holders of Registrable
Securities and the managing underwriter or underwriters, if any, and
(if requested) confirm such advice in writing, as soon as reasonably
practicable after notice thereof is received by the Company (a) when
the Registration Statement or any amendment thereto has been filed or
becomes effective, when the Prospectus or any amendment or supplement
to the Prospectus has been filed, and, to furnish such selling holders
and managing underwriter or underwriters, if any, with copies thereof,
(b) of any written comments by the SEC or any request by the SEC or any
other federal or state governmental authority for amendments or
supplements to the Registration Statement or the Prospectus or for
additional information, (c) of the issuance by the SEC of any stop
order suspending the effectiveness of the Registration Statement or any
order preventing or suspending the use of any preliminary or final
Prospectus or the initiation or threatening of any proceedings for such
purposes, (d) if, at any time, the representations and warranties of
the Company contemplated by paragraph (xiv) below cease to be true and
correct in all material respects and (e) of any notification with
respect to the suspension of the qualification of the Registrable
Securities for offering or sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose;
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(v) promptly notify each selling holder of
Registrable Securities and the managing underwriter or underwriters, if
any, when the Company becomes aware of the happening of any event as a
result of which the Registration Statement or the Prospectus included
in such Registration Statement (as then in effect) contains any untrue
statement of a material fact or omits to state a material fact
necessary to make the statements therein (in the case of the Prospectus
and any preliminary Prospectus, in light of the circumstances under
which they were made) not misleading or, if for any other reason it
shall be necessary during such time period to amend or supplement the
Registration Statement or the Prospectus in order to comply with the
Securities Act and, in either case as promptly as reasonably
practicable thereafter, prepare and file with the SEC, and furnish
without charge to the selling holders and the managing underwriter or
underwriters, if any, an amendment or supplement to such Registration
Statement or Prospectus which will correct such statement or omission
or effect such compliance;
(vi) make every reasonable effort to prevent or
obtain the withdrawal of any stop order or other order suspending the
use of any preliminary or final Prospectus or suspending any
qualification of the Registrable Securities at the earliest possible
moment;
(vii) if reasonably requested by the managing
underwriter or underwriters or a holder of Registrable Securities being
sold in connection with an Underwritten Offering, promptly incorporate
in a Prospectus supplement or post-effective amendment such information
as the managing underwriter or underwriters and the holders of a
majority of the Registrable Securities being sold agree should be
included therein relating to the plan of distribution with respect to
such Registrable Securities, including, without limitation, information
with respect to the number of Registrable Securities being sold to, and
the purchase price being paid therefor by, such underwriter or
underwriters and with respect to any other terms of the underwritten
(or best efforts underwritten) offering of the Registrable Securities
to be sold in such offering; and make all required filings of such
Prospectus supplement or post-effective amendment as soon as reasonably
practicable after being notified of the matters to be incorporated in
such Prospectus supplement or post-effective amendment;
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(viii) furnish to each selling holder of Registrable
Securities and each managing underwriter, if any, without charge, as
many conformed copies as such holder or managing underwriter may
reasonably request of the Registration Statement and any amendment or
post-effective amendment thereto, including financial statements and
schedules, all documents incorporated therein by reference and all
exhibits (including those incorporated by reference);
(ix) deliver to each selling holder of Registrable
Securities and each managing underwriter, if any, without charge, as
many copies of the Prospectus (including each preliminary prospectus)
and any amendment or supplement thereto as such holder or managing
underwriter may reasonably request (it being understood that the
Company consents to the use of the Prospectus or any 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 the
Prospectus or any amendment or supplement thereto) and such other
documents as such selling holder or managing underwriter may reasonably
request in order to facilitate the disposition of the Registrable
Securities by such holder or underwriter;
(x) on or prior to the date on which the Registration
Statement is declared effective, use its best efforts to register or
qualify, and cooperate with the selling holders of Registrable
Securities, the managing underwriter, underwriters or agent, if any,
and their respective counsel, in connection with the registration or
qualification of such Registrable Securities for offer and sale under
the securities or "Blue Sky" laws of each state and other jurisdiction
of the United States as any such selling holder, underwriter or agent,
if any, or their respective counsel, reasonably request in writing and
do any and all other acts or things reasonably necessary or advisable
to keep such registration or qualification in effect for so long as
such Registration Statement remains in effect and so as to permit the
continuance of sales and dealings in such jurisdictions for as long as
may be necessary to complete the distribution of the Registrable
Securities covered by the Registration Statement; provided that the
Company will not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified or to take any action
which would subject it to
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taxation or general service of process in any such jurisdiction where
it is not then so subject;
(xi) cooperate with the selling holders of
Registrable Securities and the managing underwriter, underwriters or
agent, if any, to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold and not
bearing any restrictive legends; and enable such Registrable Securities
to be in such denominations and registered in such names as the
managing underwriters may request at least two (2) Business Days prior
to any sale of Registrable Securities to the underwriters;
(xii) use its best efforts to cause the Registrable
Securities covered by the applicable Registration Statement to be
registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers thereof
or the underwriter or underwriters, if any, to consummate the
disposition of such Registrable Securities;
(xiii) not later than the effective date of the
applicable Registration Statement, provide a CUSIP number for all
Registrable Securities and provide the applicable transfer agent with
printed certificates for the Registrable Securities which are in a form
eligible for deposit with The Depository Trust Company or such other
form as is reasonably requested by the selling holders;
(xiv) make such representations and warranties to the
holders of Registrable Securities being registered, and the
underwriters or agents, if any, in form, substance and scope as are
customarily made by issuers in secondary underwritten public offerings;
(xv) enter into such customary agreements (including
underwriting and indemnification agreements) and take all such other
actions as the holders of at least a majority of any class of
Registrable Securities being sold or the managing underwriter or agent,
if any, reasonably request in order to expedite or facilitate the
registration and disposition of such Registrable Securities;
(xvi) obtain for delivery to the holders of
Registrable Securities being registered and to the underwriter,
underwriters
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or agent, if any, an opinion or opinions from counsel for the Company
dated the effective date of the Registration Statement and, in the
event of an Underwritten Offering, brought down to the date of
execution of the underwriting agreement (if different from such
effective date) and to the closing under the underwriting agreement, in
customary form, scope and substance, which counsel and opinions shall
be reasonably satisfactory to such holders, underwriters or agents and
their respective counsel;
(xvii) obtain for delivery to the Company and the
underwriter, underwriters or agent, if any, with copies to the holders
of Registrable Securities (unless precluded by applicable accounting
rules), a "comfort" letter from the Company's independent certified
public accountants in customary form and covering such matters of the
type customarily covered by "comfort" letters and such other matters as
the managing underwriter or underwriters reasonably request, dated the
date of execution of the underwriting agreement and brought down to the
closing under the underwriting agreement;
(xviii) notify each seller of Registrable Securities
and each underwriter or agent, if any, participating in the disposition
of such Registrable Securities and their respective counsel of, and
cooperate with such sellers and such underwriters or agents, if any, in
connection with any filings required to be made with the NASD;
(xix) use its best efforts to comply with all
applicable rules and regulations of the SEC and make generally
available to its security holders, as soon as reasonably practicable
(but not more than fifteen months) after the effective date of the
Registration Statement, an earnings statement satisfying the provisions
of Section 11(a) of the Securities Act and the rules and regulations
promulgated thereunder;
(xx) provide and cause to be maintained a transfer
agent and registrar for all Registrable Securities covered by such
Registration Statement from and after a date not later than the
effective date of such Registration Statement;
(xxi) cause all Registrable Securities covered by the
Registration Statement to be listed on each securities exchange on
which any of the Company's securities are then listed or quoted and on
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each inter-dealer quotation system on which any of the Company's
securities are then quoted;
(xxii) make available upon reasonable notice at
reasonable times and for reasonable periods for inspection by a
representative appointed by a majority of the sellers of such
Registrable Securities covered by such Registration Statement, by any
underwriter participating in any disposition to be effected pursuant to
such Registration Statement and by any attorney, accountant or other
agent retained by such sellers or any such underwriter, all pertinent
financial and other records, pertinent corporate documents and
properties of the Company, and cause all of the Company's officers,
directors and employees and the independent public accountants who have
certified its financial statements to make themselves available to
discuss the business of the Company and to supply all information
reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such Registration Statement as
shall be necessary to enable them to exercise their due diligence
responsibility (subject to each party referred to in this clause (xxii)
entering into customary confidentiality agreements in a form reasonably
acceptable to the Company);
(xxiii) make available senior management personnel of
the Company to participate in, and cause them to cooperate with the
holders or the managing underwriter in any Underwritten Offering in
connection with "road show" and other customary marketing activities,
including "one-on-one" meetings with prospective purchasers of the
Registrable Securities to be sold in the Underwritten Offering and
otherwise to facilitate, cooperate with, and participate in each
proposed offering contemplated herein and customary selling efforts
related thereto, in each case to the same extent as if the Company were
engaged in a primary registered offering of its Common Stock;
(xxiv) promptly, after the issuance of an earnings
release or upon the request of a holder, prepare a current report on
Form 8-K with respect to such earnings release or a matter of
disclosure as requested by such holder and file such Form 8-K with the
SEC; and
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(xxv) take such other actions as sellers of such
Registrable Securities holding 51% of the shares to be sold shall
reasonably request in order to expedite or facilitate the disposition
of such Registrable Securities.
(b) Holders' Information. The Company may require each seller
of Registrable Securities as to which any Registration is being effected to
furnish to the Company such information regarding the distribution of such
securities and such other information relating to such holder and its ownership
of Registrable Securities as the Company may from time to time reasonably
request in writing. Each holder of Registrable Securities agrees to furnish such
information to the Company and to cooperate with the Company as necessary to
enable the Company to comply with the provisions of this Agreement. If any such
registration statement refers to any holder of Registrable Securities by name or
otherwise as the holder of any securities of the Company, then such holder shall
have the right to require (i) the insertion therein of language, in form and
substance 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 Company's 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 (ii) in the event that such
reference to such holder by name or otherwise is not required by the Securities
Act or any similar federal statute then in force, the deletion of the reference
to such holder.
(c) Discontinuation of Disposition. Each holder of Registrable
Securities agrees by acquisition of such Registrable Securities that, upon
receipt of any notice from the Company of the happening of any event of the kind
described in Section 2.4(a)(v) hereof, such holder will forthwith discontinue
disposition of Registrable Securities pursuant to such Registration Statement
until such holder's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 2.4(a)(v) hereof, or until it is advised in
writing by the Company that the use of the Prospectus may be resumed, and has
received copies of any additional or supplemental filings that are incorporated
by reference in the Prospectus, and, if so directed by the Company, such holder
will deliver to the Company (at the Company's expense) all copies, other than
permanent file copies then in such holder's possession, of the Prospectus
covering such Registrable Securities current at the time of receipt of such
notice. In the event the Company shall give any such notice, the Demand Period
during which such Registration Statement is required to be maintained effective
shall be extended by the number of days during the period from and including the
date of the giving of such notice to and including the date when each seller of
Registrable Securities covered by such Registration Statement either receives
the
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copies of the supplemented or amended Prospectus contemplated by Section
2.4(a)(v) hereof or is advised in writing by the Company that the use of the
Prospectus may be resumed.
2.5 Underwritten Offerings.
(a) Demand Registrations. If requested by the underwriters for
any Underwritten Offering requested by holders of Registrable Securities
pursuant to a Registration under Section 2.1, the Company shall enter into an
underwriting agreement with such underwriters for such offering, such agreement
to be reasonably satisfactory in substance and form to the Company, holders of a
majority of the Registrable Securities to be included in such underwriting, and
the underwriters, and to contain such representations and warranties by the
Company and such other terms as are generally prevailing in agreements of that
type, including, without limitation, indemnities no less favorable to the
recipient thereof than those provided in Section 2.8. The holders of the
Registrable Securities proposed to be distributed by such underwriters will
cooperate with the Company in the negotiation of the underwriting agreement and
will give consideration to the reasonable suggestions of the Company regarding
the form thereof. Such holders of Registrable Securities to be distributed by
such underwriters shall be parties to such underwriting agreement and may, at
their option, require that any or all of the representations and warranties by,
and the other agreements on the part of, the Company to and for the benefit of
such underwriters shall also be made to and for the benefit of such holders of
Registrable Securities and that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting agreement be conditions
precedent to the obligations of such holders of Registrable Securities. Any such
holder of Registrable Securities shall not be required to make any
representations or warranties to or agreements with the Company or the
underwriters other than representations, warranties or agreements regarding such
holder, such holder's Registrable Securities, such holder's intended method of
distribution and any other representations required by law.
(b) Piggyback Registrations. If the Company proposes to
register any of its securities under the Securities Act as contemplated by
Section 2.2 and such securities are to be distributed in an Underwritten
Offering through one or more underwriters, the Company will, if requested by any
holder of Registrable Securities pursuant to Section 2.2 and subject to the
provisions of Section 2.2(b), use its best efforts to arrange for such
underwriters to include on the same terms and conditions that apply to the other
sellers in such Registration all the Registrable Securities to be offered and
sold by such holder among the securities of the Company to be distributed by
such underwriters in such Registration. The holders of
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Registrable Securities to be distributed by such underwriters shall be parties
to the underwriting agreement between the Company and such underwriters and any
or all of the representations and warranties by, and the other agreements on the
part of, the Company to and for the benefit of such underwriters shall also be
made to and for the benefit of such holders of Registrable Securities and any or
all of the conditions precedent to the obligations of such underwriters under
such underwriting agreement shall be conditions precedent to the obligations of
such holders of Registrable Securities. Any such holder of Registrable
Securities shall not be required to make any representations or warranties to or
agreements with the Company or the underwriters other than representations,
warranties or agreements regarding such holder, such holder's Registrable
Securities and such holder's intended method of distribution or any other
representations required by law.
(c) Participation in Underwritten Registrations. No Person may
participate in any Underwritten Offering hereunder unless such Person (i) agrees
to sell such Person's securities on the basis provided in any underwriting
arrangements approved by the Persons entitled to approve such arrangements and
(ii) completes and executes all questionnaires, indemnities, underwriting
agreements and other documents (other than powers of attorney) required under
the terms of such underwriting arrangements.
2.6 No Inconsistent Agreements; Additional Rights. The Company will
not hereafter enter into, and except as disclosed on Schedule 3.3 to the
Investment Agreement and the Existing Registration Rights Agreements (as defined
in the Investment Agreement), is not currently a party to, any agreement with
respect to its securities which is inconsistent with the rights granted to the
holders of Registrable Securities by this Agreement or otherwise conflicts with
the provisions hereof.
2.7 Registration Expenses.
(a) Expenses Paid by Company. All expenses incident to the
Company's performance of or compliance with this Agreement will be paid by the
Company (and, in the case of the filing of a Registration Statement, regardless
of whether such Registration Statement becomes effective), including without
limitation (i) all registration and filing fees, and any other fees and expenses
associated with filings required to be made with the SEC or the NASD (including,
if applicable, the fees and expenses of any "qualified independent underwriter"
and its counsel as may be required by the rules and regulations of the NASD),
(ii) all fees and expenses of compliance with state securities or "Blue Sky"
laws (including fees and disbursements of counsel in connection with "Blue Sky"
qualifications of the Registrable Securities
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and determination of their eligibility for investment under the laws of such
jurisdictions as the managing underwriters or holders of a majority of the
Registrable Securities being sold may designate), (iii) all printing,
duplicating, word processing, messenger, telephone, facsimile and mailing and
delivery expenses (including expenses of printing certificates for the
Registrable Securities in a form eligible for deposit with The Depository Trust
Company and of printing prospectuses), (iv) all printing, mailing and delivery
expenses incurred in the preparation and delivery of a Registration Statement or
Prospectus, (v) all fees and disbursements of counsel for the Company and of all
independent certified public accountants of the Company (including the expenses
of cold comfort letters required by or incident to such performance), (vi)
Securities Act liability insurance or similar insurance if the Company so
desires or the underwriters so require in accordance with then-customary
underwriting practice, (vii) all fees and expenses incurred in connection with
the listing of the Registrable Securities on any securities exchange or
quotation of the Registrable Securities on any inter-dealer quotation system,
(viii) all applicable rating agency fees with respect to the Preferred Stock,
(ix) all reasonable fees and disbursements of one law firm or other counsel
selected by the holders of a majority of the Registrable Securities being
registered, (x) all reasonable fees and disbursements of underwriters
customarily paid by issuers or sellers of securities (except as set forth in
Section 2.7(b) below), (xi) all fees and expenses of accountants to the holders
of Registrable Securities being sold, (xii) all fees and expenses of any special
experts retained by the Company in connection with any Demand Registration or
Piggyback Registration and (xiii) fees and expenses of other Persons retained by
the Company without limitation (all such expenses being herein called
"Registration Expenses"). The Company will, in any event, pay its internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expense of
any audit and the fees and expenses of any Person, including special experts,
retained by the Company.
(b) Expenses Not Paid by Company. The Company shall not be
required to pay any fees and disbursements of underwriters not customarily paid
by the issuers or sellers of securities, including underwriting discounts and
commissions and transfer taxes, if any, attributable to the sale of Registrable
Securities and the fees and expenses of counsel to the underwriters other than
as provided in paragraph (a) above.
2.8 Indemnification.
(a) Indemnification by Company. The Company will, and hereby
agrees to, indemnify and hold harmless, to the full extent permitted by law,
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each holder of Registrable Securities, its Affiliates and their respective
officers, directors, shareholders, employees, advisors, agents, each other
Person who participates as an underwriter, selling broker, dealer manager, or
similar securities industry professional in the offering or sale of Registrable
Securities, and each Person who controls (within the meaning of the Securities
Act or the Exchange Act) any of the foregoing Persons (collectively, the
"Indemnified Holder Parties") from and against any and all losses, claims,
damages, liabilities (or actions or proceedings in respect thereof, whether or
not such Indemnified Holder Party is a party thereto) and expenses, joint or
several (including reasonable costs of investigation and legal expenses) (each,
a "Loss" and collectively "Losses") arising out of or based upon (i) any untrue
or alleged untrue statement of a material fact contained in any Registration
Statement under which such Registrable Securities were registered under the
Securities Act (including any final, preliminary or summary Prospectus contained
therein or any amendment thereof or supplement thereto or any documents
incorporated by reference therein), or (ii) any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein (in the case of a Prospectus or preliminary Prospectus,
in light of the circumstances under which they were made) not misleading;
provided, however, that the Company shall not be liable to any particular
Indemnified Holder Party in any such case to the extent that any such Loss
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any such Registration Statement in
reliance upon and in conformity with written information furnished to the
Company by such Indemnified Holder Party through an instrument duly executed by
such Indemnified Holder Party, specifically stating that it is for use in the
preparation of such Registration Statement; and provided, further, that the
Company will not be liable to any particular Indemnified Holder Party in any
case to the extent that any such Loss arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in
any final, preliminary or summary Prospectus if such untrue statement or alleged
untrue statement or omission or alleged omission is completely corrected in an
amendment or supplement to such Prospectus and the relevant Indemnified Holder
Party (having previously been furnished by or on behalf of the Company with a
sufficient number of copies of the same on a timely basis), fails to deliver
such Prospectus as so amended or supplement prior to or concurrently with the
sales of the Registrable Securities to the Person asserting such loss, claim,
damage, liability or expense. This indemnity shall be in addition to any
liability the Company may otherwise have. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on behalf of such
holder or any Indemnified Holder Party and shall survive the transfer of such
securities by such holder.
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(b) Indemnification by the Selling Holder of Registrable
Securities. In the event of Registration of any Registrable Securities of the
Company under the Securities Act pursuant to Sections 2.1 or 2.2 hereof, each
selling holder of Registrable Securities agrees (severally and not jointly) to
indemnify and hold harmless, to the full extent permitted by law, the Company,
its directors and officers and each Person who controls (within the meaning of
the Securities Act and the Exchange Act) the Company (collectively, the
"Indemnified Company Parties") from and against any Losses resulting from any
untrue statement of a material fact or any omission of a material fact required
to be stated in the Registration Statement under which such Registrable
Securities were registered under the Securities Act (including any final,
preliminary or summary Prospectus contained therein or any amendment thereof or
supplement thereto or any documents incorporated by reference therein), or
necessary to make the statements therein (in the case of a Prospectus or
preliminary Prospectus, in light of the circumstances under which they were
made) not misleading, to the extent, but only to the extent, that such untrue
statement or omission is contained in any written information furnished to the
Company through an instrument duly executed by such holder, specifically stating
that it is for inclusion in such Registration Statement and has not been
corrected in a subsequent writing prior to or concurrently with the sale of the
Registrable Securities. In no event shall the liability of any selling holder of
Registrable Securities hereunder be greater in amount than the dollar amount of
the proceeds received by such holder under the sale of the Registrable
Securities giving rise to such indemnification obligation. The Company shall be
entitled to receive indemnities from underwriters, selling brokers, dealer
managers and similar securities industry professionals participating in the
distribution, to the same extent as provided above (with appropriate
modification) with respect to information so furnished in writing by such
Persons specifically for inclusion in any Prospectus or Registration Statement.
(c) Conduct of Indemnification Proceedings. Any Person
entitled to indemnification hereunder will (i) give prompt written notice to the
indemnifying party of any claim with respect to which it seeks indemnification
(provided, that any delay or failure to so notify the indemnifying party shall
relieve the indemnifying party of its obligations hereunder only to the extent,
if at all, that it is actually and materially prejudiced by reason of such delay
or failure) and (ii) permit such indemnifying party to assume the defense of
such claim with counsel reasonably satisfactory to the Indemnified Holder Party
or the Indemnified Company Party, as the case may be; provided, however, that
any Person entitled to indemnification hereunder shall have the right to select
and employ separate counsel and to participate in the defense of such claim, but
the fees and expenses of such counsel shall be at the expense of such Person
unless (i) the indemnifying party has agreed in writing to pay
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such fees or expenses, (ii) the indemnifying party shall have failed to assume
the defense of such claim within a reasonable time after receipt of notice of
such claim from the Person entitled to indemnification hereunder and employ
counsel reasonably satisfactory to such Person, (iii) the Indemnified Holder
Party or the Indemnified Company Party, as the case may be, has reasonably
concluded (based on advice of counsel) that there may be legal defenses
available to it or other Indemnified Holder Parties or Indemnified Company
parties, as the case may be, that are different from or in addition to those
available to the indemnifying party, or (iv) in the reasonable judgment of any
such Person, based upon advice of its counsel, a conflict of interest may exist
between such Person and the indemnifying party with respect to such claims (in
which case, if the Person notifies the indemnifying party in writing that such
Person elects to employ separate counsel at the expense of the indemnifying
party, the indemnifying party shall not have the right to assume the defense of
such claim on behalf of such Person). If such defense is not assumed by the
indemnifying party, the indemnifying party will not be subject to any liability
for any settlement made without its consent, but such consent may not be
unreasonably withheld; provided that an indemnifying party shall not be required
to consent to any settlement involving the imposition of equitable remedies or
involving the imposition of any material obligations on such indemnifying party
other than financial obligations for which such indemnified party will be
indemnified hereunder. If the indemnifying party assumes the defense, the
indemnifying party shall have the right to settle such action without the
consent of the Indemnified Holder Party or the Indemnified Company Party, as the
case may be; provided, however, that the indemnifying party shall be required to
obtain such consent (which consent shall not be unreasonably withheld) if the
settlement includes any admission of wrongdoing on the part of the Indemnified
Holder Party or the Indemnified Company Party, as the case may be, or any decree
or restriction on the Indemnified Holder Party or the Indemnified Company Party,
as the case may be, or its officers or directors. No indemnifying party shall
consent to entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such Indemnified Holder Party or Indemnified Company Party, as the case may
be, of an unconditional release from all liability in respect to such claim or
litigation or which would impose any material obligations on such Indemnified
Holder Party or Indemnified Company Party, as the case may be. It is understood
that the indemnifying party or parties shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
reasonable fees, disbursements and other charges of more than one separate firm
admitted to practice in such jurisdiction at any one time from all such
Indemnified Holder Party or Parties or Indemnified Company Party or Parties, as
the case may be, unless (x) the employment of more than one counsel has been
authorized in writing by the Indemnified Holder Party or Parties or the
Indemnified Company
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Party or Parties, as the case may be, (y) an Indemnified Holder Party or
Indemnified Company Party, as the case may be, has reasonably concluded (based
on advice of counsel) that there may be legal defenses available to it that are
different from or in addition to those available to the other Indemnified Holder
Parties or Indemnified Company Parties, as the case may be, or (z) a conflict or
potential conflict exists or may exist (based on advice of counsel to an
Indemnified Holder Party or an Indemnified Company Party, as the case may be)
between such Indemnified Holder Party or such Indemnified Company Party, as the
case may be, and the other Indemnified Holder Parties or Indemnified Company
Parties, as the case may be, in each of which cases the indemnifying party shall
be obligated to pay the reasonable fees and expenses of such additional counsel
or counsels.
(d) Contribution. If for any reason the indemnification
provided for in paragraphs (a) and (b) of this Section 2.8 is unavailable to an
Indemnified Holder Party or an Indemnified Company Party, as the case may be, or
insufficient to hold it harmless as contemplated by paragraphs (a) and (b) of
this Section 2.8, then the indemnifying party shall contribute to the amount
paid or payable by the Indemnified Holder Party or the Indemnified Company
Party, as the case may be, as a result of such Loss in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on the one
hand and the Indemnified Holder Party or the Indemnified Company Party, as the
case may be, on the other. The relative fault 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 omission to state a material fact
relates to information supplied by the indemnifying party or the Indemnified
Holder Party or the Indemnified Company Party, as the case may be, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. Notwithstanding anything
in this Section 2.8(d) to the contrary, no indemnifying party (other than the
Company) shall be required pursuant to this Section 2.8(d) to contribute any
amount in excess of the amount by which the net proceeds received by such
indemnifying party from the sale of Registrable Securities in the offering to
which the Losses of the Indemnified Holder Parties or the Indemnified Company
Parties, as the case may be, relate exceeds the amount of any damages which such
indemnifying party has otherwise been required to pay by reason of such untrue
statement or omission. The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 2.8(d) were determined by pro
rata allocation or by any other method of allocation that does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation. If
indemnification is available under this
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Section 2.8, the indemnifying parties shall indemnify each Indemnified Holder
Party or Indemnified Company Party, as the case may be, to the full extent
provided in Sections 2.8(a) and 2.8(b) hereof without regard to the relative
fault of said indemnifying parties or Indemnified Holder Party or Indemnified
Company Party, as the case may be.
(e) Other Indemnification. Indemnification and contribution
similar to that specified in the preceding subdivisions of this Section 2.8
(with appropriate modifications) shall be given by the Company and each seller
of Registrable Securities with respect to any required registration or other
qualification of securities under any Federal or state law or regulation of any
governmental authority, other than the Securities Act.
(f) Indemnification Payments. The indemnification required by
this Section 2.8 shall be made by periodic payments of the amount thereof during
the course of the investigation or defense, promptly as and when bills are
received or Losses are incurred.
2.9 Rules 144 and 144A. The Company covenants that it will file the
reports required to be filed by it under the Securities Act and the Exchange Act
and the rules and regulations adopted by the SEC thereunder (or, if the Company
is not required to file such reports, it will, upon the request of any holder of
Registrable Securities, make publicly available other information so long as
necessary to permit sales pursuant to Rules 144, 144A or Regulation S under the
Securities Act), and it will take such further action as any holder of
Registrable Securities may reasonably request, all to the extent required from
time to time to enable such holder to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by (i) Rules 144, 144A or Regulation S under the Securities Act, as
such Rules may be amended from time to time, or (ii) any similar rule or
regulation hereafter adopted by the SEC. Upon the request of any holder of
Registrable Securities, the Company will deliver to such holder a written
statement as to whether it has complied with such requirements and, if not, the
specifics thereof.
2.10 Effectiveness. This Agreement shall not become effective until the
Closing. Prior to such time, the terms of the Previous Registration Rights
Agreement shall remain in full force and effect.
2.11 Star Cable Associates. The parties to this Agreement hereby agree
that, upon (a) the execution by Star Cable Associates ("Star") of a consent and
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joinder agreement pursuant to which Star agrees to be bound by all of the
provisions of this Agreement, and (b) the completion of the acquisition of
substantially all the assets of Star by Universal Cable Holdings, Inc.
("Universal") pursuant to the Asset Purchase Agreement, dated as of October 14,
1999, by and between Universal and Star, then Star shall be bound by and
entitled to the benefits of this Agreement as though it were an original party
hereto, and all references to "Current Investors" herein shall be deemed to
include Star.
SECTION 3. MISCELLANEOUS.
3.1 Entire Agreement. This Agreement shall, as of the Closing,
constitute the full and entire understanding and agreement between the parties
with regard to the subject matter hereof. This Agreement shall, as of the
Closing, supercede the Previous Registration Rights Agreement.
3.2 Injunctive Relief. It is hereby agreed and acknowledged that it
will be impossible to measure in money the damages that would be suffered if the
parties fail to comply with any of the obligations herein imposed on them and
that in the event of any such failure, an aggrieved Person will be irreparably
damaged and will not have an adequate remedy at law. Any such Person shall,
therefore, be entitled (in addition to any other remedy to which it may be
entitled in law or in equity) to injunctive relief, including, without
limitation, specific performance, to enforce such obligations, and if any action
should be brought in equity to enforce any of the provisions of this Agreement,
none of the parties hereto shall raise the defense that there is an adequate
remedy at law.
3.3 Attorneys' Fees. In any action or proceeding brought to enforce any
provision of this Agreement or where any provision hereof is validly asserted as
a defense, the successful party shall, to the extent permitted by applicable
law, be entitled to recover reasonable attorneys' fees in addition to any other
available remedy.
3.4 Notices. Any notice provided for in this Agreement must be in
writing and must be either (a) personally delivered, (b) sent by a recognized
overnight courier service, to the recipient at the address below indicated or
(c) by facsimile which is confirmed in writing by sending a copy of such
facsimile to the recipient thereof pursuant to clause (a) or (b) above:
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To the Company: Classic Communications, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ (Illinois)
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.C.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
To Brera: Brera Classic, LLC
c/o Brera Capital Partners, LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ (Illinois)
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
To Stockholders: at the addresses listed on the signature pages
attached hereto.
or such other address or to the attention of such other Person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement will be deemed to have been given (x) on the date
such notice is personally delivered, (y) one (1) day after the date such notice
is delivered to the overnight courier service if sent by overnight courier or
(z) with respect to facsimiles, on the earlier of one (1) day after the date
such facsimile is delivered to the overnight courier for confirmation or
confirmation by telephone to the number designated herein;
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provided that in each case notices received after 4:00 p.m. (local time of the
recipient) shall be deemed to have been duly given on the next business day.
3.5 Successors, Assigns and Transferees. (a) The registration rights of
any holder under this Agreement with respect to any Registrable Securities may
be transferred and assigned, provided that other than a transfer or assignment
to Brera or an Affiliate of Brera, no such assignment shall be binding upon or
obligate the Company to any such assignee unless and until (i) the Company shall
have received notice of such assignment as herein provided, which notice shall
(A) reference this Agreement and (B) set forth the name and address of any
assignee for the purpose of any notices hereunder or (ii) such assignee can
establish its beneficial or record ownership of any Registrable Securities and
shall have provided the Company with the information called for by clause (i)(B)
of this Section 3.5(a), (iii) such assignee acquires at least twenty percent
(20%) of the Registrable Securities held by a holder; provided that such
Registrable Securities represent at least five percent (5%) of the Company's
outstanding Common Stock; provided, further, that any assignment of registration
rights to a limited or general partner of any holder will be without restriction
as to minimum share holdings, and (iv) such assignee is not a competitor of the
Company. Any transfer or assignment made other than as provided in the first
sentence of this Section 3.5 shall be null and void.
(b) This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto, and their respective successors and permitted
assigns. Whether or not any express assignment shall have been made, the
provisions of this Agreement which are for the benefit of the parties hereto
other than the Company shall also be for the benefit of and enforceable by any
subsequent holder of Registrable Securities, subject to the provisions contained
herein.
3.6 Headings. The section and paragraph headings contained in this
Agreement are for reference purposes only and shall not in any way affect the
meaning or interpretation of this Agreement.
3.7 Severability. Whenever possible, each provision or portion of any
provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law in any jurisdiction, such invalidity,
illegality or unenforceability will not affect any other provision or portion of
any provision in such jurisdiction, and this agreement will be reformed,
construed and enforced in such jurisdiction as if such
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invalid, illegal or unenforceable provision or portion of any provision had
never been contained therein.
3.8 Amendment; Waiver. (a) This Agreement may not be amended or
modified and waivers and consents to departures from the provisions hereof may
not be given, except by an instrument or instruments in writing making specific
reference to this Agreement and signed by the Company, the holders of a majority
of Registrable Securities of each class then outstanding and, so long as it is a
holder, Brera. Each holder of any Registrable Securities at the time or
thereafter outstanding shall be bound by any amendment, modification, waiver or
consent authorized by this Section 3.8(a), whether or not such Registrable
Securities shall have been marked accordingly.
(b) The waiver by any party hereto of a breach of any
provision of this Agreement shall not operate or be construed as a further or
continuing waiver of such breach or as a waiver of any other or subsequent
breach. Except as otherwise expressly provided herein, no failure on the part of
any party to exercise, and no delay in exercising, any right, power or remedy
hereunder, or otherwise available in respect hereof at law or in equity, shall
operate as a waiver thereof, nor shall any single or partial exercise of such
right, power or remedy by such party preclude any other or further exercise
thereof or the exercise of any other right, power or remedy.
3.9 Counterparts. This Agreement may be executed in any number
of separate 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 which
together shall constitute one and the same agreement.
3.10 Representations and Warranties. Each party to this
Agreement represents and warrants to each other party to this Agreement that (i)
all action on the part of such party necessary for the authorization, execution,
delivery and perfor ▇▇▇▇▇ of this Agreement has been taken and (ii) this
Agreement is a legal, valid and binding obligation of such party, enforceable
against such party in accordance with its terms.
3.11 Governing Law. All questions concerning the validity,
meaning and effect of this Agreement shall be determined in accordance with the
laws of the State of New York applicable to contracts made and to be performed
within the State, without regard to the principles of conflicts of laws except
to the extent
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necessary to permit this Agreement to be governed by New York law as set forth
above.
3.12 Consent to Jurisdiction and Service of Process; Appointment of
Agent for Service of Process. EACH PARTY TO THIS AGREEMENT HEREBY CONSENTS TO
THE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT
OF NEW YORK AND ANY NEW YORK STATE COURT LOCATED IN THE BOROUGH OF MANHATTAN AND
IRREVOCABLY AGREES THAT ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR RELATING TO
THIS AGREE MENT, THE TRANSACTIONS CONTEMPLATED HEREBY, OR ANY BUSINESS OR OTHER
DISPUTES BETWEEN THE PARTIES (WHETHER SUCH ACTIONS OR PROCEEDINGS ARE BASED IN
STATUTE, TORT, CONTRACT OR OTHERWISE), SHALL BE LITIGATED IN SUCH COURTS. EACH
PARTY (A) CONSENTS TO SUBMIT ITSELF TO THE PERSONAL JURISDICTION OF SUCH COURTS
FOR SUCH ACTIONS OR PROCEEDINGS, (B) AGREES THAT IT WILL NOT ATTEMPT TO DENY OR
DEFEAT SUCH PERSONAL JURISDICTION BY MOTION OR OTHER REQUEST FOR LEAVE FROM ANY
SUCH COURT, AND (C) AGREES THAT IT WILL NOT BRING ANY SUCH ACTION OR PROCEEDING
IN ANY COURT OTHER THAN SUCH COURTS. EACH PARTY ACCEPTS FOR ITSELF AND IN
CONNECTION WITH ITS PROPERTIES, GENER ALLY AND UNCONDITIONALLY, THE EXCLUSIVE
AND IRREVOCA BLE JURISDICTION AND VENUE OF THE AFORESAID COURTS AND WAIVES ANY
DEFENSE OF FORUM NON CONVENIENS, AND IRREVO CABLY AGREE TO BE BOUND BY ANY
NON-APPEALABLE JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH ACTIONS OR
PROCEEDINGS. A COPY OF ANY SERVICE OF PROCESS SERVED UPON THE PARTIES SHALL BE
MAILED BY REGISTERED MAIL TO THE RESPECTIVE PARTY EXCEPT THAT, UNLESS OTHERWISE
PRO VIDED BY APPLICABLE LAW, ANY FAILURE TO MAIL SUCH COPY SHALL NOT AFFECT THE
VALIDITY OF SERVICE OF PROCESS. IF ANY AGENT APPOINTED BY A PARTY REFUSES TO
ACCEPT SERVICE, EACH PARTY AGREES THAT SERVICE UPON THE APPROPRIATE PARTY BY
REGISTERED MAIL SHALL CONSTITUTE SUFFICIENT SERVICE. NOTHING HEREIN SHALL AFFECT
THE RIGHT OF A PARTY TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
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3.13 Waiver of Jury Trial. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY
WAIVES ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THEM
RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT AND THE RELATIONSHIP THAT IS
BEING ESTABLISHED. EACH PARTY ALSO WAIVES ANY BOND OR SURETY OR SECURITY UPON
SUCH BOND WHICH MIGHT, BUT FOR THIS WAIVER, BE REQUIRED OF ANY OF THE OTHER
PARTIES. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND
ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT
MATTER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, CONTRACT CLAIMS, TORT
CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.
EACH PARTY ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO
A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THE WAIVER IN ENTERING
INTO THIS AGREEMENT AND THAT EACH WILL CONTINUE TO RELY ON THE WAIVER IN THEIR
RELATED FUTURE DEALINGS. EACH PARTY FURTHER WARRANTS AND REPRESENTS THAT IT HAS
REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT EACH KNOW INGLY AND
VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOL LOWING CONSULTATION WITH LEGAL
COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER
ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODI FICATIONS TO THIS AGREEMENT OR TO ANY OTHER
DOCUMENTS OR AGREEMENTS RELATING TO THE TRANSACTION CONTEM PLATED HEREBY. IN THE
EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL
BY THE COURT.
ACCORDINGLY, EACH PARTY ACKNOWLEDGES THAT IT HAS WAIVED ITS RIGHT TO ▇▇▇ OR BE
SUED IN TEXAS AND TO A JURY TRIAL. EACH PARTY HAS DISCUSSED THIS AGREEMENT WITH
ITS COUNSEL AND AGREES TO BE BOUND BY ITS TERMS.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be duly executed as of the date first written above.
CLASSIC COMMUNICATIONS, INC.
By: /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Executive Officer
BRERA CLASSIC, LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Authorized Signatory
AUSTIN VENTURES, L.P.
By: AV PARTNERS, L.P.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: General Partner
AUSTIN VENTURES III-A, L.P.
By: AV PARTNERS III, L.P.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: General Partner
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AUSTIN VENTURES III-B, L.P.
By: AV PARTNERS III, L.P.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: General Partner
BA CAPITAL COMPANY, L.P.
By: BA SBIC MANAGEMENT, LLC
Its General Partner
By: BA EQUITY MANAGEMENT, L.P.,
Its sole member
By: BA EQUITY MANAGEMENT GP,
LLC
Its General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III
Title: Managing Director
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THE BOARD OF TRUSTEES OF THE
TEXAS GROWTH FUND, AS TRUSTEE FOR
THE TEXAS GROWTH FUND - 1991 TRUST
By: TGF Management Corp. as
Executive Director
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President
BT CAPITAL PARTNERS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: President
UNIONBANCAL VENTURE
CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President
THE CHASE MANHATTAN BANK, N.A.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
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J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
By: /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇ ▇. SEACH
By: /s/ ▇▇▇▇▇▇ ▇. Seach
---------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
39
