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EXHIBIT 10.14
REGISTRATION RIGHTS AGREEMENT
Dated as of ____________, 1999
By and Between
CHARTER COMMUNICATIONS, INC.
and
THE STOCKHOLDERS REFERRED TO HEREIN
Class A Common Stock
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TABLE OF CONTENTS
Page
1. Securities Subject to this Agreement........................................................ 2
1.1 Definitions........................................................................ 2
1.2 Terms Defined Elsewhere in this Agreement.......................................... 5
2. Demand Registration......................................................................... 6
2.1 Request for Registration........................................................... 6
2.2 Effective Registration and Expenses................................................ 7
2.3 Selection of Underwriters and Counsel.............................................. 7
2.4 Shelf Registration................................................................. 8
3. Incidental Registration..................................................................... 8
3.1 Request for Incidental Registration................................................ 8
3.2 Limitations on Grant of Incidental Registration Rights............................. 9
4. Holdback Agreements......................................................................... 10
4.1 Restrictions on Public Sale by Holders of Registrable Securities................... 10
4.2 Restrictions on Public Sale by the Company and Others.............................. 11
5. Registration Procedures..................................................................... 11
5.1 Company Obligations................................................................ 11
5.2 Holder Obligations................................................................. 16
6. Registration Expenses....................................................................... 17
7. Indemnification; Contribution............................................................... 18
7.1 Indemnification by the Company..................................................... 18
7.2 Indemnification by Holders of Registrable Securities............................... 19
7.3 Conduct of Indemnification Proceedings............................................. 20
7.4 Contribution....................................................................... 20
8. Rule 144 and Rule 144A...................................................................... 21
9. Shelf Registration for Put Holders.......................................................... 21
10. Miscellaneous............................................................................... 22
10.1 No Inconsistent Agreements......................................................... 22
10.2 Remedies........................................................................... 22
10.3 Amendments and Waivers............................................................. 22
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10.4 Notices............................................................................ 23
10.5 Successors and Assigns............................................................. 24
10.6 Counterparts....................................................................... 24
10.7 Headings........................................................................... 24
10.8 Governing Law...................................................................... 24
10.9 Severability....................................................................... 25
10.10 Entire Agreement................................................................... 25
10.11 Securities Held by the Company or Its Affiliates................................... 25
10.12 Attorneys'Fees and Expenses........................................................ 25
Signatures........................................................................................... 44
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and
entered into as of _________, 1999, by and among Charter Communications, Inc., a
Delaware corporation (the "Company"), Charter Investment, Inc., a Delaware
corporation, Vulcan Cable III Inc., a Delaware corporation, ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇,
▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (each a "Major
Holder" and together, the "Major Holders").
PRELIMINARY STATEMENT
A. This Agreement is made in connection with (i) the Exchange
Agreement, dated as of the same date hereof, by and among the Company, Charter
Investment, Inc., Vulcan Cable III Inc. and ▇▇▇▇ ▇. ▇▇▇▇▇ (the "▇▇▇▇▇ Exchange
Agreement"), and (ii) the Exchange Agreement, dated as of the same date hereof,
by and among the Company and ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇ (the "Kent Exchange Agreement").
B. At the request of the Company and Charter Holdco (defined below),
▇▇▇▇▇ has granted certain parties (the "Put Holders") the right to sell their
equity in the Company (or equity in Charter Holdco which is exchangeable for
shares of Class A Common Stock of the Company) to ▇▇▇▇▇, which rights will
terminate under certain circumstances so long as the shares of Class A Common
Stock held by the Put Holders (or issuable to the Put Holders in exchange for
their equity in Charter Holdco) may then be resold either without registration
or pursuant to an effective registration statement. The ▇▇▇▇▇▇ Put Agreements,
Bresnan Put Agreements and the Falcon Put Agreement govern these rights.
C. In order to induce: (i) ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇ ("▇▇▇▇▇") to enter into or
cause his designee to enter into the Subscription Agreement, the ▇▇▇▇▇▇ Put
Agreements, Bresnan Put Agreements and the Falcon Put Agreement, (ii) Charter
Investment, Inc. ("Charter Investment") and Vulcan Cable III Inc. ("Vulcan III")
to enter into the ▇▇▇▇▇ Exchange Agreement, and (iii) ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
▇▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ to continue to act as officers,
employees, consultants and/or directors of the Company, the Company has agreed
to provide to each Major Holder and its respective transferees the registration
rights with respect to the Registrable Securities (as hereinafter defined) set
forth in this Agreement.
D. Pursuant to the Membership Interest Purchase Agreement, dated as of
__________, 1999, by and between Charter Communications Holding Company, LLC
("Charter Holdco"), Charter Investment and Vulcan III (the "MI Purchase
Agreement") ▇▇▇▇▇ has agreed to purchase and Charter Holdco has agreed to issue
and sell to ▇▇▇▇▇ or his designee Class A Common Units of Charter Holdco.
Pursuant to ▇▇▇▇▇▇ Put Agreements, the Falcon Put Agreement and Bresnan Put
Agreements, ▇▇▇▇▇ way be required to purchase additional Common Units and/or
Class A Common Stock. Concurrently herewith, the Company has granted to ▇▇▇▇▇
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and each of Charter Investment and Vulcan III, as ▇▇▇▇▇'▇ designee, under the
▇▇▇▇▇ Exchange Agreement, the right, exercisable from time to time and at any
time, to exchange such Common Units for Shares of Class B Common Stock.
E. Pursuant to the Subscription Agreement, ▇▇▇▇▇ has agreed to purchase
or to cause his designees to purchase and the Company has agreed to issue and
sell to ▇▇▇▇▇ or his designees 50,000 shares of Class B common stock of the
Company ("Class B Common Stock").
F. Subject to the terms and conditions of the Restated Certificate of
Incorporation of the Company (the "Certificate"), each holder of a share of
Class B Common Stock has the right, exercisable at any time and from time to
time, to convert such share into one share of Class A common stock of the
Company ("Class A Common Stock").
G. Past, current and future participants in the Charter Communications
Holdings, LLC 1999 Option Plan (the "Option Plan"), which has been assumed by
Charter Holdco, including ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, have
received and/or will receive options to purchase Common Units which will be
automatically exchanged for shares of the Company's Class A common stock, par
value $.001, upon the exercise of such options.
The parties hereto, intending legally to be bound, hereby
agree as follows:
1. Securities Subject to this Agreement
1.1 Definitions.
"Act" means the Securities Act of 1933, as amended.
"Bresnan Purchase Agreement" means the Purchase
Agreement, dated as of June 29, 1999, among BCI (USA), LLC, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇ Capital Partners, L.P., Blackstone BC Offshore Capital Partners,
L.P., Blackstone Family Investment Partnership III L.P., TCI Bresnan LLC, TCID
of Michigan, Inc. and Charter Holdco.
"Bresnan Put Agreements" means the "Put Agreements,"
as defined under the Bresnan Purchase Agreement.
"Bresnan Registration Rights Agreement" means the
"Registration Rights Agreement," as defined in the Bresnan Purchase Agreement.
"Business Day" means any day other than a Saturday,
Sunday, or other day on which commercial banking institutions in New York, New
York are required or authorized by law to remain closed.
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"Common Units" means any Unit denominated "Common",
including, but not limited to, Class A Common Units, Class B Common Units, Class
C Common Units and Class D Common Units.
"Conversion Rights" means any Person's right,
pursuant to the terms of the Certificate, to convert a share of Class B Common
Stock into a share of Class A Common Stock.
"Exchange Act" means the Securities Exchange Act of
1934, or any successor federal statute, and the rules and regulations of the SEC
promulgated thereunder, in each case as amended from time to time.
"Exchange Rights" means the right of any Person to
exchange Common Units for shares of common stock of the Company pursuant to the
Exchange Agreement.
"Falcon Purchase Agreement" means the Purchase and
Contribution Agreement, dated as of May 26, 1999, by and among Charter
Communications, Inc., Falcon Communications, L.P., Falcon Holding Group, L.P.,
TCI Falcon Holdings, LLC, Falcon Cable Trust, Falcon Holding Group, Inc. and DHN
Inc.
"Falcon Put Agreement" means the "Put Agreement," as
defined under the Falcon Purchase Agreement.
"Falcon Registration Rights Agreement" means the
"Registration Rights Agreement," as defined under the Falcon Purchase Agreement.
"Holder" means any person who beneficially owns or
has a right to acquire Registrable Securities, whether or not such acquisition
has actually been effected, and disregarding any legal restrictions upon the
exercise of such right; provided, however, that unless the Company is otherwise
notified by the Holder of a Registrable Security, the Holder of a Registrable
Security shall be deemed to be that Person set forth on the books of the Company
or the registrar as the owner of such Registrable Security.
"IPO" means the first time that the Company sells
shares of its Class A Common Stock, par value $.001 per share, pursuant to a
registration statement on Form S-1 that has become effective under the Act.
"LLC Act" means the Delaware Limited Liability
Company Act, 6 Del. C. Section 18-101 et seq., as the same may be amended from
time to time.
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"LLC Agreement" means that certain Amended and
Restated Limited Liability Company Agreement for Charter Holdco, effective as of
____________, 1999, by and between the members listed on Schedule A thereto.
"Member" means each Person who is listed on Schedule
A to the LLC Agreement as a Member, and any additional or substitute Member
admitted to Charter Holdco in accordance with the terms of the LLC Agreement.
"Membership Interest" means a Member's entire limited
liability company interest in Charter Holdco including the Member's right to
share in income, gains, losses, deductions, credits, or similar items of, and to
receive distributions from, Charter Holdco pursuant to the LLC Agreement and the
LLC Act.
"Person" means any individual, corporation,
partnership, limited partnership, limited liability partnership, limited
liability company, trust, association, organization, or other entity.
"Pre-Existing Rights" means registration rights which
the Company has granted (or which Charter Holdco has covenanted to cause the
Company to grant) pursuant to acquisition agreements executed prior to the date
hereof, including any such rights under the Bresnan Registration Rights
Agreement and the Falcon Registration Rights Agreement.
"Registrable Securities" means each of the following:
(i) Class A Common Stock (including shares of Class A Common Stock issued or
issuable upon conversion of shares of Class B Common Stock (including any shares
of Class B Common Stock issued upon exchange for shares of Class A Common
Stock)) and (ii) any other securities issued as a result of or in connection
with any combination of shares, recapitalization, reclassification, merger or
consolidation, exchange or distribution in respect of Class A Common Stock.
Registrable Securities shall cease to be Registrable Securities when (i) a
registration statement covering such Registrable Securities has been declared
effective and such Registrable Securities have been disposed of or distributed
pursuant to such effective registration statement, (ii) such Registrable
Securities are distributed to the public pursuant to Rule 144 under the
Securities Act of 1933, as amended (or any successor or similar provisions then
in force under such act) or (iii) such Registrable Securities have been
otherwise transferred and the Company has delivered new certificates or other
evidences of ownership for such Registrable Securities not subject to any
further legal or other restriction on transfer and any subsequent transfer or
disposition shall not require registration under the Securities Act of 1933 (the
"Act") or qualification under any state securities laws.
"▇▇▇▇▇▇ Contribution Agreement" means that certain
Contribution Agreement, made as of September 14, 1999, by and among Charter
Communications Operating, LLC, Charter Holdco, ▇▇▇▇ ▇▇▇▇▇, and the other
signatories listed on the signature pages thereto.
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"▇▇▇▇▇▇ Put Agreements" means the "Charter Put",
"▇▇▇▇▇ Put" and "Lockup Put", as defined under the ▇▇▇▇▇▇ Contribution
Agreement.
"Units" means units of Membership Interest issued by
Charter Holdco to its Members which entitle the Members to the rights set forth
in the LLC Agreement.
1.2 Terms Defined Elsewhere in this Agreement. For purposes of
this Agreement, the following terms have the meanings set forth in the sections
indicated:
Term Section
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Agreement Preliminary Statement
▇▇▇▇▇ Preliminary Statement
▇▇▇▇▇ Exchange Agreement Preliminary Statement
Certificate Preliminary Statement
Charter Holdco Preliminary Statement
Charter Investment Preliminary Statement
Class A Common Stock Preliminary Statement
Class B Common Stock Preliminary Statement
Commission Section 2.2(a)
Company Preliminary Statement
Demand Registration Section 2.1
Demand Registration Statement Section 2.1(a)(ii)
Exchange Agreement Preliminary Statement
Inspectors Section 5.1(j)
Material Development Election Section 4.1(c)
MI Purchase Agreement Preliminary Statement
NASD Section 5.1(f)
Option Plan Preliminary Statement
Other Holders Section 2.1(b)
Participating Holder Section 5.1(a)
Purchaser/Purchasers Preliminary Statement
Put Holders Preliminary Statement
Records Section 5.1(j)
Registration Expenses Section 6 (h)
Rights Holders Section 2.1(b)
Restricted Period Section 4.1(c)
Security Filings Section 7.1
Subscription Agreement Preliminary Statement
Vulcan III Preliminary Statement
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2. Demand Registration
2.1 Request for Registration. (a) At any time, and from time
to time, commencing with the consummation of the IPO, any Major Holder may
request the registration under the Act of any or all of such Major Holder's
shares of Class A Common Stock (the "Demand Registration"); provided, however,
that the Company shall not be required to effect a Demand Registration unless
the Major Holder making such request includes in such registration, together
with any other Major Holders participating therein in accordance with this
Section 2, (i) shares of Class A Common Stock having an estimated value of at
least $50 million or (ii) if such Major Holder's aggregate holdings of shares of
Class A Common Stock has a value of less than $50 million, all of the shares of
Class A Common Stock held by such Major Holder; and
(b) Any request for Demand Registration made under this
Section 2 shall specify the number and type of Registrable Securities proposed
to be sold and shall also specify the intended method of disposition thereof. In
the event one or more Major Holder(s) make a request for a Demand Registration
the Company, within ten (10) days after receipt of such request, shall deliver
similar notice of such request to all Holders who have Pre-Existing Rights (the
"Other Holders" and, together with the Major Holders, the "Rights Holders").
(c) The Company shall include, or cause to be included, in the
Demand Registration all Registrable Securities of each Major Holder with respect
to which the Company has received written requests for inclusion therein within
fifteen (15) Business Days after receipt by each Major Holder of the Company's
written notice, and, in the event that additional Registrable Securities may be
included in such registration statement pursuant to this Section 2, the Company
shall include, or cause to be included, in such registration statement all
Registrable Securities of each Other Holder with respect to which the Company
has received written requests for inclusion therein within fifteen (15) Business
Days after receipt of the Company's written notice.
(d) In the event that such Demand Registration is in the form
of an underwritten offering and if the managing underwriter or underwriters of
such offering delivers a written opinion to the Rights Holders who have
requested to include Registrable Securities in such Demand Registration that the
total amount or kind of Registrable Securities which such Rights Holders intend
to include in such offering would materially and adversely affect the success of
such offering (in which event such opinion shall state the maximum amount and
kind of securities that such managing underwriter or underwriters has
recommended can be sold in such offering without materially and adversely
affecting the success of such offering), then the Registrable Securities to be
included in such offering shall be the maximum amount recommended by the
managing underwriter or underwriters, selected in the following order: (i)
first, all of the Registrable Securities requested to be included in such Demand
Registration by the Major Holder(s) requesting such Demand Registration and each
other Major Holder requesting to participate therein, allocated pro rata among
such Major Holders on the basis of the
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amount of Registrable Securities requested to be included therein by each such
Major Holder, until the maximum amount of Registrable Securities recommended by
the managing underwriter or underwriters has been included in the Demand
Registration, and (ii) thereafter, in the event that additional Registrable
Securities may be included in such Demand Registration, all of the Registrable
Securities requested to be included in such Demand Registration by any other
Holders, allocated pro rata among such Other Holders on the basis of the amount
of Registrable Securities requested to be included therein by each such Other
Holder.
(e) Unless the Major Holder or Major Holders requesting the
Demand Registration shall consent in writing, no other Person, including the
Company (but excluding another Rights Holder), shall be permitted to include any
securities in any such Demand Registration.
2.2 Effective Registration and Expenses.
(a) The Company shall cause the Demand Registration Statement
to be filed as promptly as practicable with the Securities and Exchange
Commission (the "Commission") on such form of registration statement that the
Company is eligible to use at the time, but in no event later than 45 days
following the date the demand for registration is first made. and the Company
shall use its best efforts to cause such registration statement to be declared
effective as promptly as practicable after the date thereof. A registration
shall not be considered a Demand Registration until the Demand Registration
Statement has become effective and the Registrable Securities included in such
registration statement have been sold or distributed thereunder.
(b) The Company shall use its best efforts to keep any such
registration statement continuously effective for a period of at least [one
hundred twenty (120)] days following the date on which such registration
statement is declared effective by the Commission or such shorter period which
shall terminate when there are no longer any Registrable Securities covered
thereby. If any offering of Registrable Securities pursuant to a Demand
Registration Statement is terminated or suspended by any stop order, injunction
or other order or requirement of the Commission or any other governmental agency
or court, the foregoing time period shall be extended by the number of days
during the period from and including the date such stop order, injunction or
other order or requirement becomes effective to and including the date when such
termination or suspension no longer exists.
(c) The Company shall pay all Registration Expenses incurred
in connection with any Demand Registration, whether or not it becomes effective.
2.3 Selection of Underwriters and Counsel. If any Demand
Registration is in the form of an underwritten offering, the Holders of a
majority in number of Registrable Securities to be offered thereunder shall have
the right to select the investment banker or bankers and manager or managers to
administer the offering and one counsel to the Participating Holders,
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which investment bankers and managers shall be of nationally recognized standing
and reasonably satisfactory to the Company. The Company shall pay the fees and
expenses of such counsel.
2.4 Shelf Registration. If at the time of any demand The
Company is eligible to file a registration statement on Form S-3 (or any
equivalent successor form), then, at the election of Major Holder(s) requesting
such Demand Registration, such Demand Registration shall be effected pursuant to
a shelf registration under Rule 415 of the Act; provided, however, that (a) the
Company will not be required to effect the Demand Registration pursuant to a
shelf registration under Rule 415 of the Act if the Company has been advised by
an independent investment banking firm of nationally recognized standing that
such method of distribution could reasonably be expected to materially and
adversely effect the public market for Class A Common Stock or materially and
adversely affect any financing then being contemplated by the Company; (b) the
Major Holders requesting such Demand Registration may not elect to require that
the Demand Registration be effected pursuant to a shelf registration under Rule
415 of the Act unless the Registrable Securities to be included in the Demand
Registration have an aggregate market value on the date of the demanding Major
Holders or Major Holders' election (before any underwriting or brokerage
discounts and commissions) of at least $100,000,000; and (c) during the time any
such shelf registration is effective, the Company may require from time to time
that the Major Holder(s) requesting such Demand Registration refrain from
selling pursuant to such registration under the circumstances, in the manner,
and for the time period described in Section 4.1(c). The Company will use its
reasonable best efforts to cause any Demand Registration effected as a shelf
registration under Rule 415 of the Act to remain effective for a period ending
on the earlier of (i) the date that is a number of days after the effective date
of the Registration Statement equal to 365 plus the number of days that the
Major Holder(s) requesting such Demand Registration must refrain from selling
pursuant to Section 4.1(c), and (ii) the date on which all Registrable
Securities covered by the shelf registration statement have been sold.
3. Incidental Registration
3.1 Request for Incidental Registration.
(a) If, at any time, subsequent to the IPO, the Company
proposes to file a registration statement under the Act with respect to an
offering by the Company, whether or not for its own account, of any class of
security (excluding registration statements in connection with exchange or
rights offerings exclusively to the Company's existing stockholders,
registrations on Form S-4 or Form S-8, and offerings in connection with employee
benefit plans of the Company), then the Company shall in each case give written
notice of such proposed filing to all Major Holders at least sixty (60) days
before the anticipated filing date. Such notice shall (i) include a list of
jurisdictions in which the Company intends to attempt to qualify such securities
under applicable blue sky or other state securities laws and (ii) offer the
Major Holders the opportunity to register such Registrable Securities as each
such Major Holder may request. The
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Company shall include in such registration all Registrable Securities with
respect to which the Company has received written requests for inclusion therein
within thirty (30) days after receipt by the applicable Major Holder of the
Company's notice.
(b) In the event of a proposed underwritten offering, the
Company shall use its best efforts to cause the managing underwriter or
underwriters thereof to permit the Participating Holders to include their
Registrable Securities in such offering on the same terms and conditions as any
similar securities of the Company included therein. Notwithstanding the
foregoing, if the managing underwriter or underwriters of such offering delivers
a written opinion to the Participating Holders that the total amount or kind of
Registrable Securities which the Participating Holders, the Company and any
other Persons intend to include in such offering would materially and adversely
affect the success of such offering (in which event such notice shall state the
maximum amount and kind of securities that such managing underwriter or
underwriters has recommended can be sold in such offering without materially and
adversely affecting the success of such offering), then the Company shall be
required, subject to Pre-existing Rights, to include the following securities in
the offering, to the extent of the number of securities which the Company is
advised by the managing underwriter or underwriters can be sold in the offering:
(i) first, securities that the Company proposes to
issue and sell for its own account, or, in the case of a Demand Registration
under Section 2, securities that any Major Holder exercising Demand Registration
rights pursuant to Section 2 proposes to sell (allocated pro rata among such
Major Holders on the basis of the amount of Registrable Securities requested to
be included therein by each such Major Holder);
(ii) second, Registrable Securities of any Major
Holder requested to be included in any such registration pursuant to this
Section 3 (allocated pro rata among such Major Holders on the basis of the
amount of Registrable Securities requested to be included therein by each such
Major Holder); and
(iii) securities of any other Person (allocated pro
rata in proportion to their respective amounts of such securities requested to
be registered).
3.2 Limitations on Grant of Incidental Registration Rights.
Other than agreements governing the Pre-Existing Rights, the Company shall not
enter into any agreement with respect to any of its securities which will grant
to any Person incidental registration rights with respect to any registration
statement filed pursuant to Section 2 of this Agreement.
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4. Holdback Agreements
4.1 Restrictions on Public Sale by Holders of Registrable
Securities.
(a) To the extent not inconsistent with applicable law, each
Participating Holder Party hereto and each Major Holder who has been offered the
opportunity but declined to have its Registrable Securities included in a
registration statement agrees not to effect any public sale or distribution of
the securities being registered or a similar security of the Company, or any
securities convertible into or exchangeable or exercisable for such securities,
including a sale pursuant to Rule 144 or Rule 144A under the Act, during the
[five (5)] Business Days prior to, and during the [thirty (30)] day period
beginning on, the effective date of a registration statement filed by the
Company (except as part of such registration), if and to the extent timely
notified in writing by the Company, in the case of a non-underwritten public
offering, or by the managing underwriter or underwriters, in the case of an
underwritten public offering.
(b) The foregoing provisions of this Section 4.1 shall not
apply to any Holder if such Major Holder is prevented by applicable statute or
regulation from entering into any such agreement; provided, however, that any
Major Holder whose Registrable Securities are included in a registration
statement shall undertake, in its request to participate in any such public
offering, not to effect any public sale or distribution (except as a part of
such registration) of Registrable Securities during the period commencing on the
date of effectiveness of such registration statement and ending on a date that
is [one hundred eighty (180) days after the date of the final prospectus
relating to the offering], unless it has provided forty-five (45) days' prior
written notice of such sale to the Company in the case of a non-underwritten
public offering, or the managing underwriter or underwriters, in the case of an
underwritten public offering.
(c) Subject to the provisions of this Section 4.1(c), the
Company shall be entitled to require that the Major Holders refrain from
effecting any sales or distributions of their Registrable Securities in a
registered public offering if the Board of Directors of the Company in good
faith determines that such public sales or distributions would interfere in any
material respect with a transaction material to the Company, and the Company
gives the Major Holders written notice thereof, including notice specifying the
period of time that the Major Holders shall refrain from effecting such public
sales or distributions (a "Material Development Election"). The restrictions on
each Major Holder's ability to sell Registrable Securities set forth in this
Section 4.1(c) may remain in effect, without limitation, from the date of
issuance of the Registrable Securities until the date that is [180] days from
such date (the "Restricted Period"). At any time after the expiration of the
Restricted Period, the Company may exercise a Material Development Election,
and, in such event, Major Holders shall refrain from effecting any sale or
distribution in a registered public offering for the period during which such
Material Development Election remains in effect; provided, however, that, except
as contemplated by the next succeeding sentence and excluding the Restricted
Period, no Major Holder shall in any event be prevented from selling Registrable
Securities in a registered public offering more than
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once in any three hundred sixty-five (365) day period, and, in no event, for a
period in excess of ninety (90) consecutive days within any three hundred
sixty-five (365) day period.
(d) In addition to the foregoing restrictions, and
notwithstanding anything to the contrary contained in this Agreement, no Major
Holder shall be permitted to sell Registrable Securities pursuant to a
registration statement upon receipt of a notice from the Company that an event
has occurred such that the registration statement or prospectus relating to such
Registrable Securities contains an untrue statement of a material fact or
requires changes such that the registration statement or prospectus will not
omit to state a material fact required to be stated therein not misleading, and
such prohibition shall continue until the Company has notified such Major Holder
that sales may be resumed (it being understood that the Company shall cure such
untrue statement or omission as soon as practicable and that the Company shall
maintain the effectiveness of the registration statement for an additional
number of days equal to the time period of any such prohibition on such Major
Holder's ability to sell its Registrable Securities).
4.2 Restrictions on Public Sale by the Company and Others. The
Company agrees (a) not to effect any public sale or distribution of any
securities similar to those being registered, or any securities convertible into
or exchangeable or exercisable for such securities, during the twenty (20)
Business Days prior to, and during the ninety (90) day period beginning on, the
date on which any registration statement in which the Major Holders are
participating is first declared effective (except as part of such registration,
or except pursuant to a registration of securities on Form S-4 or Form S-8, or
any form substituting therefor) or the commencement of a public distribution of
the Registrable Securities pursuant to such registration statement and (b) that
any agreement entered into after the date of this Agreement pursuant to which
the Company issues or agrees to issue any privately placed securities similar to
any issuance of Registrable Securities shall contain a provision under which
holders of such securities agree not to effect any public sale or distribution
of any such securities during the period described in clause (a) above, in each
case, including a sale pursuant to Rule 144 or Rule 144A (or any successor or
similar provisions then in force) under the Act.
5. Registration Procedures
5.1 Company Obligations. If and whenever the Company is
required by the provisions of this Agreement to effect the registration of any
of the Registrable Securities under the Act, the Company shall use its best
efforts to effect each such registration as promptly as practicable to permit
the sale of such Registrable Securities in accordance with the intended method
or methods of disposition thereof, and pursuant thereto, the Company shall, as
promptly as reasonably practicable:
(a) before filing a registration statement or prospectus or
any amendments or supplements thereto, furnish to each Holder of Registrable
Securities covered by such registration statement (each such Holder, a
"Participating Holder") and the underwriters, if any,
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draft copies of all such documents proposed to be filed at least [twenty (20)]
Business Days prior thereto, which documents shall be subject to the reasonable
review of the Participating Holders and underwriters, and their respective
counsel, and the Company shall not file any registration statement or amendment
thereto or any prospectus or any supplement thereto to which Participating
Holders or the underwriters, if any, shall reasonably object; at least [three
(3)] Business Days prior to filing any documents incorporated by reference in
any such registration statement, furnish to each Participating Holder and the
underwriters, if any, draft copies of all such documents proposed to be filed;
(b) prepare and file with the Commission such amendments and
post-effective amendments to the registration statement as may be necessary to
keep the registration statement effective for as long as such registration is
required to remain effective pursuant to the terms of this Agreement; cause the
prospectus to be supplemented by any required prospectus supplement, and, as so
supplemented, to be filed pursuant to Rule 424(b) under the Act; and comply with
the provisions of the Act applicable to it with respect to the disposition of
all Registrable Securities covered by such registration statement during the
applicable period in accordance with the intended methods of disposition by the
Participating Holders set forth in such registration statement or supplement to
the prospectus; the Company shall not be deemed to have used its best efforts to
keep a registration statement effective during the applicable period if it takes
any action that would result in Participating Holders not being able to sell
such Registrable Securities during that period unless such action is required
under applicable law;
(c) furnish to any Participating Holder and the underwriter or
underwriters, if any, without charge, at least four (4) conformed copies of the
registration statement and any post-effective amendments thereto, as soon as
such documents become available to the Company, and such number of additional
copies thereof and such number of copies of the prospectus (including each
preliminary prospectus) and any amendments or supplements thereto, and any
documents incorporated by reference therein, as the Participating Holder or
underwriter may request as soon as such documents become available to the
Company in order to facilitate the disposition of such Registrable Securities
being sold by the Participating Holder (it being understood that the Company
consents to the use of the prospectus and any amendment or supplement thereto by
each Holder of such Registrable Securities and the underwriter or underwriters,
if any, in connection with the offering and sale of the Registrable Securities
covered by the prospectus or any amendment or supplement thereto);
(d) on or prior to the date on which the registration
statement is declared effective, use its best efforts to register or qualify
such Registrable Securities under such other securities or blue sky laws of such
jurisdictions as any Participating Holder reasonably requests and do any and all
other acts and things which may be reasonably necessary or advisable to enable
such Participating Holder to consummate the disposition in such jurisdictions of
such Registrable Securities owned by such Participating Holder; provided,
however, that the Company shall not be required to (i) qualify generally to do
business in any jurisdiction where it would not
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otherwise be required to qualify but for this paragraph (d) or (ii) subject
itself to general taxation in any such jurisdiction;
(e) use its best efforts to cause the Registrable Securities
covered by such registration statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary by virtue of the
business and operations of the Company to enable the Participating Holders to
consummate the disposition of such Registrable Securities;
(f) notify each Participating Holder and the managing
underwriters, if any, of the applicable offering, as promptly as practicable
after becoming aware thereof, and (if requested by any such Person) confirm such
notice in writing, (i) of the Company's determination that the filing of a
post-effective amendment to a registration statement is necessary or
appropriate, (ii) when a prospectus or any prospectus supplement or
post-effective amendment has been filed, and, with respect to a registration
statement or any post-effective amendment, when the same has become effective,
(iii) of any request by the Commission for amendments or supplements to a
registration statement or related prospectus or for additional information and
provide a copy to each such Holder of any communications with the Commission,
the National Association of Securities Dealers, Inc. (the "NASD"), the New York
Stock Exchange, Inc., or any other governmental or regulatory authority
concerned with the registration statement, and (iv) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of any of the Registrable Securities for sale in any jurisdiction in the United
States or the initiation or threatening of any proceeding for such purpose;
(g) immediately notify each Participating Holder, at any time
when a prospectus relating thereto is required to be delivered under the Act, of
(i) the happening of any event as a result of which the prospectus included in
such registration statement contains an untrue statement of a material fact or
omits to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, in which case the Company shall
promptly prepare a supplement or amendment to such prospectus so that, as
thereafter delivered to the Participating Holders, such prospectus shall not
contain an untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading;
(h) enter into customary agreements (including, in the case of
an underwritten offering, an underwriting agreement in customary form) and take
all such actions in connection therewith in order to expedite or facilitate the
disposition of the Registrable Securities included in the registration
statement, and, in the case of an underwritten offering, (i) make
representations and warranties to the Participating Holders and the underwriters
in such form, substance and scope as are customarily made by issuers to
underwriters in primary underwritten offerings and confirm the same to the
extent customary if and when requested; (ii) obtain opinions of counsel to the
Company and updates thereof, addressed to each Participating Holder and each of
the underwriters, such opinions and updates to be in customary form and covering
the matters
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customarily covered in opinions obtained in underwritten offerings; (iii) obtain
"comfort" letters and updates thereof from the Company's independent certified
public accountants addressed to each Participating Holder and each of the
underwriters, such letters to be in customary form and covering matters of the
type customarily covered in "comfort" letters to underwriters in connection with
primary underwritten offerings; (iv) provide, in the underwriting agreement to
be entered into in connection with such offering, indemnification provisions and
procedures no less favorable than those set forth in this Agreement with respect
to all parties to be indemnified pursuant to this Agreement; and (v) the Company
shall deliver such customary documents and certificates as may be reasonably
requested by the Participating Holders and the managing underwriters to evidence
compliance with clause (i) of this paragraph (h) and with any customary
conditions contained in the underwriting agreement entered into by the Company
in connection with such offering;
(i) in the case of any non-underwritten offering, (i) obtain
an opinion of counsel to the Company at the time of effectiveness of the
registration statement covering such offering and an update thereof at the time
of effectiveness of any post-effective amendment to such registration statement
(other than by reason of incorporation by reference of documents filed with the
Commission), addressed to each Participating Holder, covering matters that are
no more extensive in scope than would be customarily covered in opinions
obtained in underwritten offerings; (ii) obtain a "comfort" letter from the
Company's independent certified public accountants at the time of effectiveness
of such registration statement and, upon the request of the Participating
Holders, updates thereof, in each case addressed to each Participating Holder
and covering matters that are no more extensive in scope than would be
customarily covered in comfort letters and updates obtained in underwritten
offerings; and (iii) deliver certificates of a senior executive officer and the
senior financial officer of the Company at the time of effectiveness of such
registration statement and, upon the request of the Participating Holders,
updates thereof, with such certificates to cover matters no more extensive in
scope than those matters customarily covered in officer's certificates delivered
in connection with underwritten offerings;
(j) make available for inspection by any Participating Holder,
any underwriter participating in any disposition pursuant to such registration
statement, and any attorney, accountant or other agent retained by any such
Participating Holder or underwriter (collectively, the "Inspectors"), all
pertinent financial and other records, pertinent corporate documents and
properties of the Company (collectively, the "Records"), as shall be reasonably
necessary to enable them to exercise "due diligence," and cause each of the
Company's officers, directors and employees to supply all information reasonably
requested by any such Inspector in connection with such registration statement.
The Major Holders hereunder agree that Records and other information which the
Company determines in good faith to be confidential, and of which determination
the Inspectors and the Major Holders are so notified, shall not be disclosed by
the Inspectors or the Major Holders unless (i) the disclosure of such Records is
necessary to avoid or correct a misstatement or omission in the registration
statement, (ii) the release of such Records
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is required pursuant to a subpoena, court order or regulatory or agency request
or (iii) the information in such Records has been made generally available to
the public;
(k) use its best efforts to comply with all applicable rules
and regulations of the Commission, and make available to the Participating
Holders, as soon as reasonably practicable, earnings statements, which need not
be audited, covering a period of twelve months, beginning within three months
after the effective date of the registration statement, which earnings
statements shall satisfy the provisions of Section 11(a) of the Act and Rule 158
promulgated thereunder;
(l) immediately notify each Participating Holder and each
underwriter participating in the disposition of such Registrable Securities of
any stop order issued or threatened to be issued or other suspension of
effectiveness of the registration, and take all reasonable action necessary to
prevent the entry of any threatened stop order;
(m) use best efforts to obtain the withdrawal of any stop
order or order suspending the effectiveness of the registration statement at the
earliest possible moment;
(n) cooperate with each Participating Holder of and each
underwriter participating in the disposition of such Registrable Securities and
their respective counsel in connection with any filings required to be made with
the NASD;
(o) if requested by the managing underwriter or underwriters
or any Participating Holder, promptly incorporate in a prospectus supplement or
post-effective amendment such information as the managing underwriter or
underwriters or such Participating Holder reasonably requests to be included
therein, including, without limitation, the number of Registrable Securities
being sold by such Participating Holder to such underwriter or underwriters, the
purchase price being paid therefor by such underwriter or underwriters and any
other terms of the underwritten offering of the Registrable Securities to be
sold in such offering; and promptly make all required filings of such prospectus
supplement or post-effective amendment;
(p) use its best efforts to cause all Registrable Securities
covered by the applicable registration statement to be listed or quoted on each
securities exchange or inter-dealer quotation system on which the shares of
Class A Common Stock is then listed or quoted, as the case may be, if so
requested by the Participating Holders or the underwriters, if any, and enter
into customary agreements including, if necessary, a listing application and
indemnification agreement in customary form, and to provide a transfer agent for
any shares of Registrable Securities covered by such registration statement no
later than the effective date of such registration statement;
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(q) provide a CUSIP number(s), if necessary, for the
Registrable Securities, no later than the effective date of the registration
statement;
(r) as promptly as practicable after filing with the
Commission any document which is incorporated by reference into a registration
statement, deliver a copy of such document to each Participating Holder and each
managing underwriter or underwriters;
(s) cooperate with the Participating Holders and the managing
underwriter or underwriters, if any, to facilitate the timely preparation and
delivery of certificates (not bearing any restrictive legends) representing
securities to be sold under the registration statement and enable such
securities to be in such denominations or amounts, as the case may be, and
registered in such names as the managing underwriter or underwriters, if any, or
such Participating Holders may request;
(t) use its best efforts to make available prior to the
effectiveness of the registration statement, a supply of definitive Registrable
Securities, which shall be in a form eligible for deposit with Depositary Trust
Company, promptly after a registration thereof; and
(u) use its best efforts to take all other steps necessary to
effect the registration and distribution of the Registrable Securities
contemplated hereby.
5.2 Holder Obligations.
(a) The Company may require each Holder of Registrable
Securities as to which any registration is being effected to furnish to the
Company such information regarding the distribution of such Registrable
Securities and such other information relating to the Participating Holder and
its ownership of Registrable Securities as the Company from time to time
reasonably requests in writing and such Participating Holder agrees to furnish
the Company with such information and to cooperate with the Company as necessary
to enable the Company to comply with the provisions of this Agreement.
(b) Each Holder agrees that, upon receipt of any notice from
the Company of the happening of any event of the kind described in Section
5.1(g) hereof, such Holder shall forthwith discontinue disposition of
Registrable Securities pursuant to the registration statement covering such
Registrable Securities until such Holder's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 5.1(g) hereof and, if
so directed by the Company, such Holder shall 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 notice. In the event the
Company shall give any such notice, the Company shall extend the period during
which such registration statement shall be maintained effective pursuant to this
Agreement by the number of days during the period from and including the date of
the giving of such notice pursuant to Section 5.1(g) of this Agreement to and
including the date
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when each Participating Holder covered by such registration shall have received
the copies of the supplemented or amended prospectus contemplated by Section
5.1(g) of this Agreement.
(c) Each Holder agrees that such Holder will, as expeditiously
as possible, notify the Company at any time when a prospectus relating to a
registration statement covering such Holder's Registrable Securities is required
to be delivered under the Act, of the happening of any event of the kind
described in Section 5.1(g) as a result of any information provided by such
Participating Holder in writing specifically for inclusion in such prospectus
included in such registration statement and, at the request of the Company,
promptly prepare and furnish to it such information as may be necessary so that,
after incorporation into a supplement or amendment of such prospectus as
thereafter delivered to the purchasers of such securities, the information
provided by such seller shall not include an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements made therein, in the light of the circumstances under which
they were made, not misleading.
6. Registration Expenses
Whether or not any registration statement covering Registrable
Securities is declared effective, the Company shall pay all expenses incident to
the Company's performance of or compliance with this Agreement including,
without limitation:
(a) all registration and filing fees of the Commission, any
securities exchange and/or the Nasdaq National Market;
(b) all fees and expenses associated with filings required to
be made with the NASD, or as may be required by the rules and regulations of the
NASD;
(c) all fees and expenses of compliance with securities or
blue sky laws (including fees and disbursements of counsel in connection with
blue sky qualifications of the Registrable Securities);
(d) all printing expenses, including expenses of printing
certificates for the Registrable Securities in a form eligible for deposit with
the Depositary Trust Company and of printing prospectuses (whether preliminary
or final) if the printing of prospectuses is requested by a Holder of
Registrable Securities;
(e) any messenger and delivery expenses;
(f) any fees and expenses of counsel for the Company and its
independent public accountants, including the expenses of any "cold comfort"
letters required under this Agreement, and the fees and expenses of any special
experts retained by the Company in connection with such registration;
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(g) any fees and expenses of other Persons retained by the
Company;
(h) the fees and expenses of one counsel for the Participating
Holders selected by the Holders of a majority in number of Registrable
Securities included, or to be included, in such offering;
(i) underwriters expenses (excluding brokerage commissions and
underwriting discount); and
(j) any reasonable out-of-pocket expenses of the Participating
Holders and their agents, including any travel costs (all such expenses being
referred to as "Registration Expenses").
The Company shall also 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 annual audit,
liability insurance against violations of securities laws (if the Company elects
to obtain such insurance), the fees and expenses, if any, incurred in connection
with the listing of the Registrable Securities and any applicable transfer taxes
or documentary stamp taxes.
7. Indemnification; Contribution
7.1 Indemnification by the Company.
(a) In the case of each registration effected by the Company
pursuant to this Agreement, the Company shall indemnify and hold harmless, to
the full extent permitted by law, each Participating Holder, its affiliates,
officers, directors, trustees, employees, general partners, limited partners,
representatives and agents and each Person who controls such Participating
Holder (within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act), against all losses, claims, damages, liabilities (or actions or
proceedings in respect thereof) and expenses (including reasonable costs of
investigation and legal fees, disbursements and expenses) (under the Act, common
law or otherwise) (collectively, "Claims") arising out of or based upon any
untrue or alleged untrue statement of a material fact contained in any
registration statement, prospectus, preliminary prospectus, any amendment or
supplement thereto or any document incorporated by reference or in any filing
made with the registration or qualification of the offering under blue sky or
other securities laws of jurisdictions in which such Participating Holder's
Registrable Securities are offered (collectively, "Security Filings") or 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 are made) not misleading; provided, however, that such indemnification
shall not extend to any Claims which are caused by any untrue statement or
alleged untrue statement contained in, or by any omission or alleged omission
from, information
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furnished in writing to the Company by any Participating Holder, regarding such
Participating Holder and expressly for use in any such Security Filing. Such
indemnity shall remain in full force and effect regardless of any investigation
made by such indemnified party and shall survive the transfer of such
Registrable Securities by such Participating Holder.
(b) In the case of an underwritten offering in which the
registration statement covers Registrable Securities, the Company shall also
indemnify any underwriters of such Registrable Securities, selling brokers,
dealer managers and similar securities industries professionals participating in
the distribution and their officers, directors, employees, general partners,
limited partners, representatives and agents and each Person who controls such
underwriters or other Persons (within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act) to the same extent as provided in Section 7.1(a)
with respect to the indemnification of each Participating Holder; provided,
however, the Company shall not be required to indemnify any such underwriter, or
any officer or director of such underwriter or any person who controls such
underwriter (within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act), to the extent that the Claim results from (a) such
underwriter's failure to deliver or otherwise provide a copy of the final
prospectus to the Person asserting an untrue statement or omission or alleged
untrue statement or omission at or prior to the written confirmation of the sale
of securities to such Person, if such statement or omission was in fact
corrected in such final prospectus or (b) an untrue statement or omission or
alleged untrue statement or omission relating to information furnished in
writing by such underwriter expressly for inclusion in any Security Filing.
7.2 Indemnification by Holders of Registrable Securities. In
connection with any registration statement in which a Participating Holder is
participating, each such Participating Holder shall furnish to the Company, in
writing, such information with respect to such Participating Holder as the
Company reasonably requests for use in connection with any such registration
statement or prospectus and agrees to indemnify, to the full extent permitted by
law, the Company, its Affiliates, directors, trustees, officers, employees,
general partners, limited partners, representatives and agents and each Person
who controls the Company (within the meaning of Section 15 of the Act or Section
20 of the Exchange Act), against any Claim resulting from any untrue statement
of a material fact or any omission of a material fact required to be stated in
the registration statement or prospectus or any amendment thereof or supplement
thereto or necessary to make the statements therein (in the case of a
prospectus, in the 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 or failed to be contained in any information with
respect to such Participating Holder, furnished in writing by such Participating
Holder specifically for inclusion therein. In no event shall the liability of
any Participating Holder hereunder be greater in amount than the dollar amount
of the proceeds received by such Participating Holder upon the sale of the
Registrable Securities giving rise to such indemnification obligation. Such
indemnity shall remain in full force and effect regardless of
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any investigation made by such indemnified party and shall survive the transfer
of such Registrable Securities by such Participating Holder.
7.3 Conduct of Indemnification Proceedings. Any Person
entitled to indemnification hereunder agrees to give prompt written notice to
the indemnifying party after the receipt by such Person of any written notice of
the commencement of any action, suit or proceeding against such Person or
investigation thereof made in writing for which such Person intends to claim
indemnification or contribution pursuant to this Agreement (but the failure to
give such notice shall not release any indemnifying party from its obligations
hereunder except to the extent it has been materially prejudiced thereby), and,
unless in the reasonable judgment of such indemnified party a conflict of
interest may exist between such indemnified party and the indemnifying party
with respect to such claim, permit the indemnifying party to assume the defense
of such claim with counsel reasonably satisfactory to such indemnified party. If
the indemnifying party is not entitled to, or elects not to, assume the defense
of a claim, it will not be obligated to pay the fees and expenses of more than
one counsel with respect to such claim (other than local counsel in the
jurisdiction in which such claim has been brought), unless in the reasonable
judgment of counsel to such indemnified party a conflict of interest may exist
between such indemnified party and any other of such indemnified parties with
respect to such claim, in which event the indemnifying party shall be obligated
to pay the fees and expenses of such additional counsel or counsels. No
indemnified party will be required to consent to entry of any judgment or enter
into any settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such indemnified party of a release from
any and all liability in respect of such claim or litigation.
7.4 Contribution.
(a) If the indemnification provided for in this Section 7 from
the indemnifying party is unavailable to an indemnified party or is insufficient
to hold the indemnified party harmless as contemplated under this Agreement,
then the indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and indemnified parties in connection with the actions or inactions which
resulted in such losses, claims, damages, liabilities or expenses, as well as
any other relevant equitable considerations. The relative fault of such
indemnifying party and indemnified parties shall be determined by reference to,
among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact, has been made by, or relates to information supplied by,
such indemnifying party or indemnified parties, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such action. The amount paid or payable by a party as a result of the losses,
claims, damages, liabilities and expenses referred to above shall be deemed to
include, subject to
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the limitations set forth in Section 7.3, any legal or other fees or expenses
reasonably incurred by such party in connection with any investigation or
proceeding.
(b) The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 7.4 were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 7.4, an indemnified
Holder shall not be required to contribute any amounts in excess of the amount
by which the total price at which the Registrable Securities were sold by such
indemnified Holder and distributed to the public exceeds the amount of any
damages which such indemnified Holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission.
(c) No Person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation.
(d) If indemnification is available under this Section 7, the
indemnifying parties shall indemnify each indemnified party to the full extent
provided in Sections 7.1 and 7.2 without regard to the relative fault of such
indemnifying party or indemnified party or any other equitable consideration
provided for in this Section 7.4.
8. Rule 144 and Rule 144A
The Company shall file all reports required to be filed by the
Company under the Act and the Exchange Act and the rules and regulations adopted
by the Commission thereunder; and the Company shall take such further action as
any Major Holder may request, all to the extent required from time to time to
enable such Major Holder to sell Registrable Securities without registration
under the Act in accordance with and within the limitation of the exemptions
provided by (a) Rules 144 and 144A under the Act, as such Rules may be amended
from time to time, or (b) any successor or similar rules or regulations
hereafter adopted by the Commission; provided, however, that the Company's
compliance with the requirements of this Section 8 and the availability of such
rules or regulations for the sale of any Registrable Securities shall not limit
a Major Holder's rights to request registration under this Agreement so long as
such person's securities constitute Registrable Securities within the meaning
thereof under this Agreement. Upon the request of any Major Holder, the Company
shall deliver to such Major Holder a written statement as to the filings made by
the Company with the Commission.
9. Shelf Registration for Put Holders.
In addition to the rights given the Major Holders and their
transferees hereunder, at ▇▇▇▇▇'▇ request at any time from time to time the
Company shall at its expense file and cause
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to become effective a shelf registration under Rule 415 of the Act on
appropriate form (including, if required, on Form S-1) relating to the resale by
the Put Holders of all shares of Class A Common Stock then held by or issuable
to such holders on exercise of their Exchange Rights; provided, however, that
(a) during the time any such shelf registration is effective, the Company may
require from time to time that the Put Holders refrain from selling pursuant to
such registration under the circumstances, in the manner, and for the time
period described in Section 4.1(c). The Company will use its reasonable best
efforts to cause any such shelf registration statement to remain effective for a
period ending on the earlier of (i) the date that is equal to two years from the
effective date of the shelf registration statement, and (ii) the date on which
all shares of Class A Common Stock covered by the shelf registration statement
have been sold pursuant to the shelf registration. This provision shall be
solely for the benefit of, and enforceable solely by, ▇▇▇▇▇, and no Put Holder
shall be considered a third party beneficiary of this provision or any other
provision of this Agreement.
10. Miscellaneous
10.1 No Inconsistent Agreements. The Company shall not
hereafter enter into any agreement with respect to any of its securities which
contains provisions more favorable to the holders thereof than the provisions
contained in this Agreement without providing for the granting of comparable
rights to each Holder party to this Agreement. The Company shall not hereafter
enter into any agreement with respect to its securities that violates the rights
expressly granted to Holders under this Agreement.
10.2 Remedies. Any Person having rights under any provision of
this Agreement shall be entitled to enforce such rights specifically or to
recover damages or to exercise any other remedy available to it at law or in
equity. The foregoing rights and remedies shall be cumulative and the exercise
of any right or remedy provided herein shall not preclude any Person from
exercising any other right or remedy provided herein. Each party hereto agrees
that monetary damages would not be adequate compensation for any loss incurred
by reason of a breach by it of any of the provisions of this Agreement and
hereby agrees to waive the defense in any action for specific performance that a
remedy at law would be adequate.
10.3 Amendments and Waivers. Except as otherwise provided
herein, the provisions of this Agreement may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions of this
Agreement may not be given unless the Company has obtained the written consent
of Major Holders holding at least a majority in number of each issue of
Registrable Securities then outstanding affected by such amendment,
modification, supplement, waiver or departure; provided, however, that no
amendment, modification or supplement, or waiver or consent to departure from
any of the provisions of this Agreement which adversely affects the rights of
any Holder shall be effective as against such Holder unless consented to in
writing by such Holder.
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10.4 Notices. All notices, demands and other communications
provided for or permitted hereunder shall be in writing and shall be given by
personal delivery, registered or certified mail (return receipt requested),
facsimile transmission (with receipt acknowledged) or courier service to the
Persons identified below at the addresses set forth hereafter (or at such other
addresses as shall be specified by like notice):
If to Vulcan Cable III Inc.: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ @ Vulcan Northwest
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: Irell & ▇▇▇▇▇▇▇ LLP
1800 Avenue of the Stars
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▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to Charter Investment, Inc.: Charter Investment, Inc.
c/o Charter Communications, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇ and
▇▇▇▇▇▇ ▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: Irell & ▇▇▇▇▇▇▇ LLP
1800 Avenue of the Stars
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to any other Major Holder: To the address set forth
below such Major Holder's signature on the
signature pages to this Agreement
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If to the Company: Charter Communications, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇ and
▇▇▇▇▇▇ ▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to: Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
All such notices and communications shall be deemed to have
been duly given upon receipt by personal delivery, mail, facsimile transmission
or courier service.
10.5 Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties
hereto, including without limitation and without the need for an express
assignment, each subsequent Holder of such party's Registrable Securities;
provided, however, that any assignment by the Company shall not relieve the
Company of any of its obligations hereunder. If any Holder shall validly acquire
Registrable Securities from any party hereto, in any manner, whether by
operation of law or otherwise, such Registrable Securities shall be held subject
to all of the terms of this Agreement, and by taking and holding such
Registrable Securities such Person shall be conclusively deemed to have agreed
to be bound by and to perform all of the terms and provisions of this Agreement
and shall be entitled to receive the benefits hereof. If the Company shall so
request, any such successor or assign shall agree in writing to acquire and hold
the Registrable Securities subject to all of the terms hereof.
10.6 Counterparts. This Agreement may be executed in any
number of counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.
10.7 Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
10.8 Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York, without
regard to the principles of the conflict of laws thereof.
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10.9 Severability. In the event that any one or more of the
provisions contained in this Agreement, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any respect for any
reason, the validity, legality and enforceability of any such provision in every
other respect and of the remaining provisions contained in this Agreement shall
not be in any way impaired thereby, it being intended that all of the rights and
privileges of each Holder party hereto shall be enforceable to the fullest
extent permitted by law.
10.10 Entire Agreement. This Agreement, together with the
Securities Purchase is intended by the parties as a final expression of their
agreement and intended to be a complete and exclusive statement of the agreement
and understanding of the parties hereto in respect of the subject matter
contained herein. There are no restrictions, promises, warranties or
undertakings with respect to the subject matter hereof, other than those set
forth or referred to herein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
10.11 Securities Held by the Company or Its Affiliates.
Whenever the consent or approval of holders of a specified number of Registrable
Securities is required hereunder, Registrable Securities held by the Company
shall not be counted in determining whether such consent or approval was given
by the Holders of such required number.
10.12 Attorneys' Fees and Expenses. 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 be
entitled to recover reasonable attorneys' fees and expenses in addition to its
costs and expenses and any other available remedy.
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IN WITNESS WHEREOF, the undersigned have duly executed this
Agreement as of the date first above written.
CHARTER COMMUNICATIONS, INC.
By:__________________________________
Name:
Title:
CHARTER INVESTMENT, INC.
By:__________________________________
Name:
Title:
VULCAN CABLE III INC.
By:__________________________________
Name:
Title:
_____________________________________
▇▇▇▇ ▇. ▇▇▇▇▇
_____________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇
_____________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇
_____________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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