Exhibit 10.6
REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
WARBURG, XXXXXX CAPITAL COMPANY, L.P.,
WARBURG, XXXXXX CAPITAL PARTNERS, L.P.,
WARBURG, XXXXXX INVESTORS, L.P.
AND
JOURNAL REGISTER COMPANY
DATED AS OF
MAY 6, 1997
TABLE OF CONTENTS
PAGE
1. DEFINITIONS............................................................1
(a) Defined Terms....................................................1
2. REGISTRATION RIGHTS....................................................2
(a) Requested Registration...........................................2
(b) Piggyback Registration...........................................4
(c) Registration Procedures..........................................5
(d) Allocation of Expenses...........................................7
(e) Indemnification..................................................7
(f) Contribution.....................................................9
(g) Rule 144........................................................10
(h) Information by Stockholder......................................10
(i) Hold-Back Agreement.............................................10
3. INFORMATION AS TO THE COMPANY AND RELATED COVENANTS...................11
(a) Inspection......................................................11
(b) Confidentiality.................................................11
4. NOTICES...............................................................11
(a) Notices.........................................................11
5. MISCELLANEOUS.........................................................12
(a) Governing Law...................................................12
(b) Successors and Assigns..........................................12
(c) Entire Agreement; Amendment; Waiver.............................12
(d) Section Headings................................................13
(e) Counterparts....................................................13
(f) Expenses and Taxes..............................................13
(g) Reproduction of Documents.......................................13
(h) Usage...........................................................13
(i) Third-Party Beneficiaries.......................................13
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement is made and entered into as of May 6,
1997, by and among Warburg, Xxxxxx Capital Company, L.P., a Delaware limited
partnership ("WPCC"), Warburg, Xxxxxx Capital Partners, L.P., a Delaware limited
partnership ("WPCP"), Warburg, Xxxxxx Investors, L.P., a Delaware limited
partnership ("WPI") (each hereinafter referred to individually as a
"Stockholder" and collectively as the "Stockholders"), and Journal Register
Company, a Delaware corporation (the "Company").
RECITALS
WHEREAS, the Company is currently contemplating an Initial Public Offering
(as defined herein) of the Company's Common Stock (as defined herein); and
WHEREAS, the Company has agreed to grant certain registration rights to
the Stockholders with respect to the Registrable Shares (as defined herein);
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth herein, the parties hereto agree as follows:
1. DEFINITIONS
(a) DEFINED TERMS. As used in this Agreement, the following terms shall
have the respective meanings set forth below (unless otherwise expressly
provided herein):
"ACT" means the Securities Act of 1933, as amended, or any similar
federal statute, and the rules and regulations of the Commission issued under
the Act, as they each may, from time to time, be in effect.
"AGREEMENT" means this Registration Rights Agreement, as it may be
amended from time to time.
"AFFILIATE" means any person or entity, directly or indirectly,
controlling, controlled by or under common control with another person or
entity.
"COMMISSION" means the Securities and Exchange Commission or any
other federal agency at the time administering the Act.
"COMMON STOCK" means the shares of common stock, par value $.01 per
share, of the Company.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, or any similar federal statute, and the rules and regulations of the
Commission issued under the Exchange Act, as they each may, from time to time,
be in effect.
"INITIAL PUBLIC OFFERING" occurs the date on which the Company
completes an initial underwritten public offering of shares of its Common Stock
pursuant to an effective Registration Statement.
"PERSON" means an individual, partnership, joint-stock company,
limited liability company, corporation, trust or unincorporated organization,
and a government or agency or political subdivision thereof.
"REGISTRABLE SHARES" means (i) shares of Common Stock issued or
issuable to the Stockholders, (ii) any additional shares of Common Stock
acquired by the Stockholders, (iii) any shares of Common Stock subject to
options or warrants held by the Stockholders and (iv) any capital stock of the
Company issued as a dividend or other distribution with respect to, or in
exchange for, or in replacement of, the shares of Common Stock referred to in
clauses (i), (ii) or (iii) above.
"REGISTRATION EXPENSES" means the expenses described in Section
2(d).
"REGISTRATION STATEMENT" means a registration statement filed by the
Company with the Commission under the Act for a public offering and sale of
securities of the Company (other than any registration statement on Form S-4 or
Form S-8, or their successors, or any registration statement covering only
securities proposed to be issued in exchange for securities or assets of another
company or entity).
"RULE 144" means Rule 144 as promulgated by the Commission under the
Act, as such Rule may be amended from time to time, or any similar successor
rule that may be promulgated by the Commission.
"RULE 415" means Rule 415 as promulgated by the Commission under the
Act, as such Rule may be amended from time to time, or any similar successor
rule that may be promulgated by the Commission.
"SUBSIDIARY" means a corporation, partnership, limited liability
company or other entity of which the Company owns, directly or indirectly, more
than fifty percent (50%) of the voting stock.
2. REGISTRATION RIGHTS
(a) REQUESTED REGISTRATION.
(i) If the Company shall at any time receive from WPCC, WPCP or WPI
(the "Requesting Stockholder(s)") a written request that the Company effect a
registration with respect to all or a part of the Registrable Shares owned by
such Requesting Stockholder(s), and the Stockholders collectively (for this
purpose, together with any Person whose shares of Common Stock would be required
to be aggregated with the shares held by the Stockholders pursuant to Rule 144)
own at least ten percent (10%) of the then outstanding shares of Common Stock,
the Company shall:
(A) within five business days of receipt of the written
request from such Requesting Stockholder(s), give written notice of
the proposed registration to all other holders of Registrable Shares
and to Xxxxxx Xxxxx, Xxxx Xxxxxx, Xxxxxxx Xxxxxx, Xxxxx Xxxxxxx and
the estate of Xxxxxx Pofcher (in the case of such individuals, at
their respective addresses as set forth on the stock records of the
Company) (such other holders and such individuals being hereinafter
referred to collectively as the "Holders"); and
(B) as soon as practicable, use its best efforts to effect
such registration (including, without limitation, the execution of
an undertaking to file post-effective amendments, appropriate
qualifications under applicable blue sky or other state securities
laws and appropriate compliance with the Act) and take such other
actions as would permit or facilitate the sale and distribution of
all or such portion of such Registrable Shares as are specified in
such request, together with all or such portion of Common Stock of
any Holder or Holders joining in such request as are specified in a
written request received by the Company within 15 business days
after written notice from the Company is given pursuant to Section
2(a)(i)(A) above; PROVIDED, HOWEVER, the Company shall not be
obligated to effect, or to take any action to effect, any such
registration pursuant to this Section 2(a) other than two such
registrations by the Stockholders (each, a "Required Registration")
(counting for this purpose only registrations which have been
declared or ordered effective and pursuant to which securities have
been sold).
The Registration Statement filed pursuant to the request of
the Requesting Stockholder(s) may, subject to the provisions of Section 2(a)(ii)
below, include other securities of the Company which are held by officers or
directors of the Company, or which are held by Persons who, by virtue of
agreements with the Company, are entitled to include their securities in any
such registration (the "Other Stockholders"), but the Company shall have no
absolute right to include any of its securities in any such registration.
(ii) If the Requesting Stockholder(s) intend to distribute the
Registrable Shares covered by their request by means of an underwriting, such
Requesting Stockholder(s) shall so advise the Company as a part of their request
made pursuant to this Section 2(a), and the provisions of this Section 2(a)(ii)
shall apply:
If officers or directors of the Company holding Common Stock
of the Company shall request inclusion in any registration pursuant to this
Section 2(a)(ii), or if the Other Stockholders request such inclusion, the
Requesting Stockholder(s) shall offer to include the securities of such
officers, directors and Other Stockholders in the underwriting and may condition
such offer on their acceptance of the further applicable provisions of this
Section 2. The Requesting Stockholder(s) and Holders whose shares are to be
included in such registration and the Company shall (together with all officers,
directors and Other Stockholders proposing to distribute their securities
through such underwriting) enter into an underwriting agreement in customary
form with the representative of the underwriter or underwriters selected for
such underwriting by the Requesting Stockholder(s) owning a majority of the
Registrable Shares to be included in such Registration Statement and reasonably
acceptable to the Company. Notwithstanding any other provision of this Section
2(a), if the representative of the underwriter or underwriters advises the
Requesting Stockholder(s) in writing that marketing factors require a limitation
on the number of shares to be underwritten, the securities of the Company held
by officers or directors of the Company and the securities held by Other
Stockholders shall be excluded from such registration to the extent so required
by such limitation. If, after the exclusion of such shares further reductions
are still required, the number of shares included in the registration by the
Requesting Stockholder(s) and the Holders shall be reduced on a pro rata basis
(based on the number of shares requested by the Requesting Stockholder(s) and
the Holders to be included in such registration), by such minimum number of
shares as is necessary to comply with such request. No Registrable Shares or any
other securities excluded from the underwriting by reason of the underwriter's
marketing limitation shall be included in such registration. If any officer,
director or Other Stockholder who has requested inclusion in such registration
as provided above disapproves of the terms of the underwriting, such Person may
elect to withdraw therefrom by written notice to the Company, the underwriter
and the Requesting Stockholder(s). The securities so withdrawn shall also be
withdrawn from registration. If the underwriter has not limited the number of
Registrable Shares or other securities to be underwritten, the Company may
include its securities for its own account in such registration if the
representative so agrees and if the number of Registrable Shares and other
securities which would otherwise have been included in such registration and
underwriting will not thereby be limited.
(iii) Notwithstanding the foregoing, if the Company shall furnish to
the Requesting Stockholder(s) a certificate signed by the President or Chief
Executive Officer of the Company stating that in the good faith judgment of the
Board of Directors of the Company, based upon circumstances existing at the time
the Requesting Stockholder(s) make a written request pursuant to Section
2(a)(i), it would be seriously detrimental to the Company for such Registration
Statement to be filed and it is therefore essential to defer the filing of such
Registration Statement, then the Company shall have the right to defer such
filing for a period of not more than 120 days after receipt of the request of
the Requesting Stockholder(s); PROVIDED, HOWEVER, the Company may not utilize
this right more than once in any 12 month period.
(b) PIGGYBACK REGISTRATION.
(i) Whenever the Company proposes to file a Registration Statement,
the Company shall promptly give written notice to each Stockholder of its
intention to do so and, upon the written request of any Stockholder given within
ten business days after the Company provides such notice (which request shall
state the intended method of disposition of the Registrable Shares), the Company
shall use its best efforts to cause all Registrable Shares which the Company has
been requested by each Stockholder to register to be registered under the Act to
the extent necessary to permit their sale or other disposition in accordance
with the intended methods of distribution specified in the request of such
Stockholder; PROVIDED, HOWEVER, the Company shall have the right to postpone or
withdraw any registration effected pursuant to this Section 2(b) without
obligation to any Stockholder.
(ii) In connection with any offering under this Section 2(b)
involving an underwriting, the Company shall not be required to include any
Registrable Shares in such underwriting unless the Stockholder accepts the terms
of the underwriting as agreed upon between the Company and the underwriters
selected by it, and then only in such quantity as will not, in the sole
discretion of the underwriters, jeopardize the success of the offering by the
Company. If in the sole discretion of the representative of the underwriter or
underwriters the registration of all, or part of, the Registrable Shares which
the Stockholder has requested to be included would adversely affect such public
offering, then the Company shall be required to include in the underwriting only
that number of Registrable Shares, if any, which the representative believes may
be sold without causing such adverse effect. If the number of Registrable Shares
to be included in the underwriting in accordance with the foregoing is less than
the total number of shares which the Stockholder has requested to be included,
then, except as described below, the Stockholder shall participate in the
underwriting pro rata based on the number of shares requested by such
Stockholder to be included in such registration (or in any other proportion as
agreed upon by all holders of the Common Stock entitled to registration), and if
a Stockholder would thus be entitled to include more shares than the Stockholder
requested to be registered, the excess shall be allocated among other requesting
holders pro rata based upon their total ownership of Registrable Shares.
(c) REGISTRATION PROCEDURES. If and when the Company is required by
the provisions of this Agreement to seek to effect the registration of any of
the Registrable Shares under the Act, the Company shall:
(i) file with the Commission a Registration Statement with respect
to such Registrable Shares and use its best efforts to cause that Registration
Statement to become and remain effective;
(ii) keep such registration effective for a period of 120 days or
until the Requesting Stockholder(s) have completed the distribution described in
the Registration Statement relating thereto, whichever first occurs; PROVIDED,
HOWEVER, that (A) such 120-day period shall be extended for a period of time
equal to the period the Requesting Stockholder(s) refrains from selling any
securities included in such registration at the request of an underwriter of the
Common Stock of the Company; and (B) in the case of any registration of
Registrable Shares on Form S-3 which are intended to be offered on a continuous
or delayed basis, such 120-day period shall be extended, if necessary, to keep
the Registration Statement effective until all such Registrable Shares are sold,
provided that Rule 415, or any successor rule under the Act, permits an offering
on a continuous or delayed basis, and provided further that applicable rules
under the Act governing the obligation to file a post-effective amendment
permit, in lieu of filing a post-effective amendment that (I) includes any
prospectus required by Section 10(a)(3) of the Act or (II) reflects facts or
events representing a material or fundamental change in the information set
forth in the Registration Statement, the incorporation by reference of
information required to be included in (I) and (II) above to be contained in
periodic reports filed pursuant to Section 13 or 15(d) of the Exchange Act in
the Registration Statement;
(iii) prepare and file with the Commission such amendments and
supplements to such Registration Statement and the prospectus used in connection
with such Registration Statement as may be necessary to comply with the
provisions of the Act with respect to the disposition of all securities covered
by such Registration Statement;
(iv) furnish to the Stockholder such reasonable number of copies of
the prospectus, including a preliminary prospectus, in conformity with the
requirements of the Act, and such other documents as the Stockholder may
reasonably request in order to facilitate the public sale or disposition of the
Registrable Shares owned by the Stockholder;
(v) use its best efforts to cause all such Registrable Shares
registered hereunder to be listed on each securities exchange or quoted on each
automated quotation service on which similar securities issued by the Company
are then listed or quoted;
(vi) provide a transfer agent and registrar for all Registrable
Shares covered by the Registration Statement and a CUSIP number, if necessary,
for all such Registrable Shares, in each case not later than the effective date
of such registration;
(vii) use its best efforts to register or qualify the Registrable
Shares covered by the Registration Statement under the securities or blue sky
laws of such states as the Stockholders may reasonably request and do any and
all other acts and things that may be necessary or desirable to enable the
Stockholders to consummate the public sale or other disposition in such
jurisdictions; PROVIDED, HOWEVER, the Company shall not be required in
connection with this Section 2(c) to qualify as a foreign corporation or execute
a general consent to service of process in any jurisdiction nor register or
qualify the securities in any state which as a condition to such registration or
qualification would impose restrictions or other conditions on the Company or
any of its officers, directors or shareholders (including with respect to any
shares held by such Persons), unless such restrictions or other conditions are
approved by the party adversely affected;
(viii) furnish to each Requesting Stockholder and the managing
underwriters, if any, without any additional charge, one signed copy of the
Registration Statement and any post-effective amendment thereto, including
financial statements and schedules, all documents incorporated therein by
reference and all exhibits (including those incorporated by reference);
(ix) use its best efforts to (A) obtain opinions of counsel to the
Company (which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the managing underwriters, if any, and not objected
to by the Requesting Stockholder(s) with a majority of the Registrable Shares
being sold), and updates thereof addressed to the Requesting Stockholder(s),
covering the matters customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably requested by the
underwriters, if any; and (B) obtain "cold comfort" letters and updates thereof
(which letters and updates (in form, scope and substance) shall be reasonably
satisfactory to the managing underwriters, if any, and counsel to the Requesting
Stockholder(s) with a majority of the Registrable Shares being sold) from the
Company's independent certified public accountants addressed to such Requesting
Stockholder(s) (and, if necessary, any other independent certified public
accountants of any Subsidiary of the Company or of any business acquired by the
Company for which financial statements and financial data are, or are required
to be, included in the Registration Statement), such letters to be in customary
form and covering matters of the type customarily covered in "cold comfort"
letters by accountants in connection with underwritten offerings and such other
matters as the underwriters, if any, or the Requesting Stockholder(s) with a
majority of the Registrable Shares being sold, reasonably request. The above
shall be done at each closing under such underwriting or similar agreement or as
and to the extent required thereunder or, if not an underwritten offering, as
otherwise reasonably requested by the Requesting Stockholder(s) with a majority
of the Registrable Shares being sold; and
(x) make available for inspection by a representative of the
Requesting Stockholder(s) and any attorneys or accountants retained by such
Requesting Stockholder(s) (and, to the extent reasonably requested, furnish
copies), in connection with the preparation of a Registration Statement pursuant
to this Agreement, all financial and other records and pertinent corporate
documents and properties of the Company, and cause the Company's officers,
directors and employees to supply all information reasonably requested by any
such representative(s), attorney(s) or accountant(s) in connection with such
registration; PROVIDED, HOWEVER, that any records, information or documents that
are designated by the Company in writing as confidential shall be kept
confidential by such persons unless disclosure of such records, information or
documents is required by court or administrative order or under applicable law;
and PROVIDED, FURTHER, that appropriate arrangements are made, to the extent
required by applicable antitrust law, to limit access to such information of the
Company to representatives of the Requesting Stockholder(s) who are not officers
or employees of the Requesting Stockholder(s); and PROVIDED, FURTHER that,
without limiting the foregoing, no such information shall be used by any such
Person in connection with any market transactions in securities of the Company
or its subsidiaries in violation of law.
If the Company has delivered preliminary or final prospectuses to
the Stockholder and after having done so the prospectus is amended to comply
with the requirements of the Act, the Company shall promptly notify the
Stockholder and, if requested, the Stockholder shall immediately cease making
offers of Registrable Shares and return all prospectuses to the Company. The
Company shall promptly provide the Stockholder with revised prospectuses to
permit the Stockholder to resume making offers of the Registrable Shares.
(d) ALLOCATION OF EXPENSES. The Company shall pay all Registration
Expenses of all registrations under this Agreement, regardless of whether such
registrations become effective. For purposes of this Section 2, the term
"Registration Expenses" shall mean all expenses incurred by the Company in
complying with this Section 2, including, without limitation, all registration
and filing fees, exchange or automated quotation service listing or quotation
fees, printing expenses, fees and disbursements of counsel for the Company,
state blue sky fees and expenses and the expense of any regular or special
audits incident to or required by any such registration, but excluding
underwriting discounts, selling commissions and stock transfer taxes
attributable to the sale of the Registrable Shares and the fees and expenses of
any Stockholder's own counsel and accountants, which shall be borne by such
Stockholder.
(e) INDEMNIFICATION. In the event of any registration of any of the
Registrable Shares under the Act pursuant to this Agreement, the Company shall
indemnify and hold harmless the Requesting Stockholder(s) and each Holder whose
shares of Common Stock are included in such registration, each of its officers,
directors, partners, members, legal counsel, accountants and each Person
controlling such Requesting Stockholder or Holder within the meaning of Section
15 of the Act, and each other Person with Common Stock covered by such
registration (the "Stockholder Group"), against any losses, claims, damages or
liabilities, joint or several, to which a member of the Stockholder Group may
become subject under the Act, the Exchange Act, state securities laws or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
with respect thereto) arise out of or are based upon any untrue statement (or
alleged untrue statement) of any material fact contained in any Registration
Statement under which such Registrable Shares were registered under the Act, any
preliminary prospectus or final prospectus contained in the Registration
Statement or any amendment or supplement to such Registration Statement, or
arise out of or are based upon the omission (or alleged omission) to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading; and the Company shall reimburse such member of the
Stockholder Group for any legal or any other expenses reasonably incurred by the
member in connection with investigating and defending any such loss, claim,
damage, liability or action; PROVIDED, HOWEVER, that this indemnity agreement
does not apply with respect to any loss, claim, damage, expense or liability
suffered by any member of the Stockholder Group to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the
Company by such member of the Stockholder Group expressly for use in a
Registration Statement (or any amendment thereto) or any prospectus (or any
amendment thereto); PROVIDED, FURTHER, that the indemnity agreement contained in
this paragraph shall not apply to any indemnified party if such untrue statement
or omission or alleged untrue statement or omission was contained in a
preliminary prospectus and corrected in a final or amended prospectus and such
indemnified party or its principal failed to deliver a copy of the final or
amended prospectus at or prior to the sale of the Registrable Shares.
In the event of any registration of any of the Registrable Shares
under the Act pursuant to this Agreement, the Requesting Stockholder(s) and each
Holder whose shares of Common Stock are included in such registration shall
indemnify and hold harmless the Company, each of its officers, directors,
partners, members, legal counsel, accountants and each Person controlling the
Company within the meaning of Section 15 of the Act each agent and any lead
institution or underwriter for the Company and any of its directors, officers or
partners or any Person who controls such agent, lead institution or underwriter
(the "Company Group"), against any losses, claims, damages or liabilities, joint
or several, to which a member of the Company Group may become subject under the
Act, the Exchange Act, state securities laws or otherwise, insofar as such
losses, claims, damages or liabilities (or actions with respect thereto) arise
out of or are based upon any untrue statement (or alleged untrue statement) of a
material fact contained in any Registration Statement under which such
Registrable Shares were registered under the Act, any preliminary prospectus or
final prospectus contained in the Registration Statement, or any amendment or
supplement to the Registration Statement, or arise out of or are based upon any
omission (or alleged omission) to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, if the
statement or omission was made in reliance upon and in conformity with written
information furnished to the Company by such Requesting Stockholder or Holder,
or any agent thereof, specifically for use in connection with the preparation of
such Registration Statement, prospectus, amendment or supplement; and such
Requesting Stockholder or Holder shall reimburse such member of the Company
Group for any legal or other expenses reasonably incurred by such member in
connection with investigating and defending any such loss, claim, damage,
liability or action; PROVIDED, HOWEVER, that the indemnity agreement contained
in this paragraph shall not apply in the case of a sale directly by the Company
of its securities (including a sale of such securities through any lead
institution or underwriter retained by the Company to engage in a distribution
solely on behalf of the Company) in which such untrue statement or omission or
alleged untrue statement or omission was contained in a preliminary prospectus
and corrected in a final or amended prospectus, and the Company or such lead
institution or underwriter failed to deliver a copy of the final or amended
prospectus at or prior to the sale of the Registrable Shares.
Each party entitled to indemnification under this Section 2(e) (the
"Indemnified Party") shall give notice to the Party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom; PROVIDED THAT, counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not be unreasonably
withheld or delayed); and, PROVIDED, FURTHER, that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section 2, except when material
prejudice to the Indemnifying Party shall have resulted from the failure to give
such notice. The Indemnified Party may participate in such defense at such
party's expense. No Indemnifying Party, in the defense of any such claim or
litigation shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement which does not include as an
unconditional term thereof, the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability with respect to such claim or
litigation. An Indemnifying Party shall not be liable for any settlement of any
action, proceeding or claim effected without its prior written consent, which
shall not be unreasonably withheld.
(f) CONTRIBUTION. In order to provide for just and equitable contribution
in circumstances under which the indemnity contemplated by Section 2(e) of this
Agreement is for any reason not available, the parties required to indemnify by
the terms thereof shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by such indemnity incurred by
the Company, any seller of Common Stock and one or more of the underwriters,
except to the extent that contribution is not permitted under Section 11(f) of
the Act. In determining the amounts which the respective parties shall
contribute, there shall be considered the relative benefits received by each
party from the offering of the Common Stock (taking into account the portion of
the proceeds of the offering realized by each), the parties' relative knowledge
and access to information concerning the matter with respect to which the claim
was asserted, the opportunity to correct and prevent any statement (or alleged
statement) or omission (or alleged omission) and any other equitable
considerations appropriate under the circumstances. The Company and each Person
selling securities agree with each other that no seller of Common Stock shall be
required to contribute any amount in excess of the amount such seller would have
been required to pay to an indemnified party if the indemnity under Section 2(e)
of this Agreement were available. The Company and each such seller agrees with
each other and the underwriters of the Common Stock, if requested by such
underwriters, that it would not be equitable if the amount of such contribution
were determined by pro rata or per capita allocation (even if the underwriters
were treated as one entity for such purpose) or for the underwriters' portion of
such contribution to exceed the percentage that the underwriting discount bears
to the initial public offering price of the Common Stock. For purposes of this
subsection (f), each Person, if any, who controls an underwriter within the
meaning of Section 15 of the Act shall have the same rights to contribution as
such underwriter, and each director and each officer of the Company who signed
the Registration Statement, and each Person, if any, who controls the Company or
a seller of Common Stock within the meaning of Section 15 of the Act shall have
the same rights to contribution as the Company or a seller of Common Stock, as
the case may be.
(g) RULE 144. The Company covenants that it shall file the reports
required to be filed by it under the Act and the Exchange Act and the rules and
regulations adopted by the Commission thereunder, and it will take such further
action as the Stockholders may reasonably request, all to the extent required
from time to time to enable the Stockholders to sell Registrable Shares without
registration under the Securities Act within the limitation of the exemptions
provided by (i) Rule 144 under the Securities Act, as such Rule may be amended
from time to time; or (ii) any similar rule or regulation hereafter adopted by
the Commission. Upon the request of any Stockholder, the Company shall provide a
written statement as to whether it has complied with such requirements.
(h) INFORMATION BY STOCKHOLDER. Each Stockholder shall promptly furnish to
the Company such information regarding the Stockholder and the distribution
proposed by the Stockholder as the Company may request in writing and as shall
be required in connection with any registration, qualification or compliance
referred to in this Section 2.
(i) HOLD-BACK AGREEMENT. The Stockholders, if requested by the Company or
an underwriter of Common Stock or other securities of the Company, shall agree
not to sell or otherwise transfer or dispose of any Registrable Shares or other
securities of the Company held by such Stockholders during the period commencing
on the tenth day prior to the effective date of the Registration Statement and
ending on the 90th day following the effective date of the Registration
Statement, unless a longer period is requested by such underwriter, in which
case such latter period of time shall not exceed 180 days; PROVIDED, HOWEVER,
the Stockholders shall not be required to refrain from selling a larger
percentage of the Registrable Shares than the similarly determined percentage of
any other Person whose shares are included in the Registration Statement; and,
PROVIDED, FURTHER, that the foregoing shall not in any way be construed to limit
or otherwise negatively affect the "piggyback" registration rights granted to
any Stockholder pursuant to Section 2(b) of this Agreement.
3. INFORMATION AS TO THE COMPANY AND RELATED COVENANTS
(a) INSPECTION. From and after the date hereof, the Company shall permit
each Stockholder, its nominee, assignees or its representative, so long as such
Stockholder continues to hold at least five percent (5%) of the outstanding
shares of Common Stock, to visit and inspect any of the properties of the
Company, to examine all its books of account, records, reports and other papers
not contractually required of the Company to be confidential or secret, to make
copies and extracts therefrom and to discuss its affairs, finances and accounts
with its officers, directors, key employees and independent public accountants
or any of them (and by this provision the Company authorizes said accountants to
discuss with said Stockholder, its nominee, assignees and representative the
finances and affairs of the Company and its Subsidiaries), all at such
reasonable times and as often as may be reasonably requested, provided that the
business of the Company is not unreasonably interfered with.
(b) CONFIDENTIALITY. The information and other material furnished under or
in connection with this Agreement (whether furnished before or after the date
hereof) constitutes or contains confidential business, financial or other
information of the Company or its Subsidiaries, and each Stockholder covenants
for itself and its directors, officers, partners, members and stockholders that
it shall use due care to prevent its officers, directors, partners, members,
employees, counsel, accountants and other authorized representatives from using
or disclosing such information in any manner materially detrimental to the
Company; PROVIDED, HOWEVER, such Stockholder may disclose or deliver any
information or other material disclosed to or received by the Stockholder should
such disclosure or delivery be required by law or legal process.
4. NOTICES
(a) NOTICES. All communications under this Agreement shall be in writing
and shall be delivered by hand delivery, mailed by overnight courier or by
registered or certified mail, postage prepaid, or by facsimile transmission:
(i) if to any of the Stockholders, to:
X.X. Xxxxxxx, Xxxxxx & Co., LLC
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxx
with a copy to:
Xxxxxx Xxxx & Xxxxxx LLP
Two Stamford Plaza
000 Xxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxx X. Xxxxxxx, Esq.
(ii) if to the Company, to:
Journal Register Company
State Street Square
00 Xxxx Xxxxx Xxxxxx
Xxxxxxx, Xxx Xxxxxx 00000-0000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
with a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxxx, Esq.
Any notice so addressed shall be deemed to be given if delivered by hand,
on the date of such delivery by independent courier; if mailed by registered or
certified mail, on the third business day after the date of such mailing; and if
by facsimile transmission, upon confirmation of receipt.
5. MISCELLANEOUS
(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO ITS CONFLICT
OF LAWS RULES.
(b) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
and be binding upon the legal representatives, successors and assigns of each of
the parties. Each Stockholder may assign all or any portion of its rights herein
to any purchaser or other acquiror of some or all of the capital stock of the
Company held by it; PROVIDED, HOWEVER, that the Company is furnished within a
reasonable time after its request, such information as it shall reasonably
request relating to such assignees.
(c) ENTIRE AGREEMENT; AMENDMENT; WAIVER. This Agreement constitutes the
full and entire understanding and agreement between the parties with regard to
the subject matter hereof. This Agreement may be amended, and the observance of
any term of this Agreement may be waived, with (and only with) the written
consent of the Company and holders of a majority of the shares of Common Stock
held by the Stockholders; PROVIDED, HOWEVER, that any amendment which adversely
affects the rights of any Stockholder shall be binding on such Stockholder only
if such Stockholder consents in writing to such amendment.
(d) SECTION HEADINGS. The headings of the sections and subsections of
this Agreement are inserted for convenience only and shall not be deemed to
constitute a part thereof.
(e) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
(f) EXPENSES AND TAXES. The Company will pay, and save each Stockholder
harmless from any and all liabilities (including interest and penalties) with
respect to, or resulting from, any delay or failure in paying, stamp and other
taxes (other than income taxes), if any, which may be payable or determined to
be payable upon the execution and delivery of this Agreement.
(g) REPRODUCTION OF DOCUMENTS. This Agreement and all documents relating
thereto, including, without limitation, (i) consents, waivers and modifications
which may hereafter be executed; (ii) documents received by each Stockholder
pursuant hereto; and (iii) financial statements, certificates and other
information previously or hereafter furnished to each Stockholder, may be
reproduced by each Stockholder by any photographic, photostatic, microfilm,
microcard, miniature photographic or other similar process and each Stockholder
may destroy any original document so reproduced. All parties hereto agree and
stipulate that any such reproduction shall be admissible in evidence as the
original itself in any judicial or administrative proceeding (whether or not the
original is in existence and whether or not such reproduction was made by each
Stockholder in the regular course of business) and that any enlargement,
facsimile or further reproduction of such reproduction shall likewise be
admissible in evidence.
(h) USAGE. Where any provision in this Agreement refers to action to be
taken by any Person, or which such Person is prohibited from taking, such
provision shall be applicable whether such action is taken directly or
indirectly by such Person.
(i) THIRD-PARTY BENEFICIARIES. No Person, other than Xxxxxx Xxxxx, Xxxx
Xxxxxx, Xxxxxxx Xxxxxx, Xxxxx Xxxxxxx and the estate of Xxxxxx Pofcher, shall
be, or deemed to be, a third-party beneficiary of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
WARBURG, XXXXXX CAPITAL COMPANY, L.P.
By: Warburg, Xxxxxx & Co.,
its general partner
By: /S/ XXXX X. XXXXXXX
-----------------------------------------
Name:
Title:
WARBURG, XXXXXX CAPITAL PARTNERS, L.P.
By: Warburg, Xxxxxx & Co.,
its general partner
By: /S/ XXXX X. XXXXXXX
-----------------------------------------
Name:
Title:
WARBURG, XXXXXX INVESTORS, L.P.
By: Warburg, Xxxxxx & Co.,
its general partner
By: /S/ XXXX X. XXXXXXX
-----------------------------------------
Name:
Title:
JOURNAL REGISTER COMPANY
By: /S/ XXXX X. XXXXXXX
-----------------------------------------
Name:
Title:
