STOCKHOLDERS' AGREEMENT
by and among
PEGASUS COMMUNICATIONS HOLDINGS, INC.
PEGASUS COMMUNICATIONS CORPORATION
and
XXXXXX COMMUNICATIONS CORP.
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Dated as of October 8, 1996
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STOCKHOLDERS' AGREEMENT
This STOCKHOLDERS' AGREEMENT ("Agreement") is made as of the 8th day of
October, 1996, by and among Pegasus Communications Holdings, Inc. ("Pegasus"), a
Delaware corporation, Pegasus Communications Corporation ("PCC"), a Delaware
corporation, and Xxxxxx Communications Corp. ("Xxxxxx"), a New York corporation.
Pegasus, PCC and Xxxxxx are collectively referred to herein as the "Parties."
RECITALS:
WHEREAS, Xxxxxx is receiving shares of Class A Common Stock, par value
$.01 per share, of PCC ("Shares") in partial exchange for its contribution of
certain assets to PCC pursuant to the terms and conditions of that certain
Contribution and Exchange Agreement dated as of May 30, 1996 between Pegasus and
Xxxxxx and that certain Joinder Agreement dated as of even date herewith among
the Parties (the Contribution and Exchange Agreement together with the Joinder
Agreement being referred to herein as the "Contribution Agreement"); and
WHEREAS, it is a condition precedent to the obligations of the Parties
under the Contribution Agreement that the Parties shall have entered into this
Agreement.
NOW, THEREFORE, in consideration of the premises, mutual promises,
representations, warranties, covenants and agreements contained herein and in
the Contribution Agreement, and intending to be legally bound hereby, the
Parties agree as follows:
ARTICLE I
DEFINITIONS
1.1 Certain Definitions. The following terms shall, when used in this
Agreement, have the following meanings:
"Affiliate" means, with respect to any Person: (i) any Person
directly or indirectly owning, controlling, or holding with power to vote 10% or
more of the outstanding voting securities of such other Person; (ii) any Person
10% or more of whose outstanding voting securities are directly or indirectly
owned, controlled, or held with power to vote, by such other Person; (iii) any
Person directly or indirectly controlling, controlled by, or under common
control with such other Person; and (iv) any officer, director or partner of
such other Person. "Control" for the foregoing purposes shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting securities or voting interests, by contract or otherwise.
"Class A Common Stock" means the Class A Common Stock of PCC.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means the Class A and Class B Common Stock of
PCC.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder.
"Holder" means Xxxxxx or any subsequent holder of Registrable
Securities.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof or any other entity.
"Prospectus" shall mean the Prospectus included in any
Registration Statement, as amended or supplemented by any prospectus supplement
with respect to the terms of the offering of any portion of the Registrable
Securities covered by such Registration Statement and all other amendments and
supplements to the Prospectus, including post-effective amendments, and all
material incorporated by reference in such Prospectus.
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"Registrable Securities" mean the Shares, but with respect to
any Share, only until such time as such Share (i) has been effectively
registered under the Securities Act and disposed of in accordance with the
Registration Statement covering it or (ii) may be sold to the public pursuant to
Rule 144 under the Securities Act (or any similar provision then in force) and
the legend referred to in Section 5.2 has been removed or the Company has
authorized the removal thereof from the certificate representing such Share.
"Registration Statement" means any registration statement of
PCC filed pursuant to the Securities Act and which covers any of the Registrable
Securities pursuant to the provisions of this Agreement, including the
Prospectus amendments and supplements to such Registration Statement, including
post-effective amendments, and all exhibits and all material incorporated by
reference in such Registration Statement.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations thereunder.
"Subject Securities" mean Class A Common Stock or securities
convertible into or exchangeable for, or options to purchase, Class A Common
Stock.
"Subsidiary" means any corporation, limited liability company
or partnership whose voting interests are, directly or indirectly, 80 percent or
more owned by Xxxxxx.
1.2 Other Definitions. The following terms shall, when used in this
Agreement, have the meanings assigned such terms in the Sections indicated:
Term Section
---- -------
"Agreement".............................................................Preamble
"Contribution Agreement" ...............................................Recitals
"First Offer Acceptance Period"........................................Article V
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"First Offer Notice"...................................................Article V
"First Offer Sale Price"...............................................Article V
"First Offer Shares"...................................................Article V
"Xxxxxx"................................................................Preamble
"Xxxxxx Nominee"......................................................Article II
"PCC"...................................................................Preamble
"Pegasus"...............................................................Preamble
"Registration"...............................................................3.1
"Shares"................................................................Recitals
ARTICLE II
GOVERNANCE
Immediately upon Closing and thereafter at each annual meeting of
stockholders until the later to occur of the second anniversary of the date
hereof or the date that Xxxxxx and its Subsidiaries own less than 10 percent (on
a fully diluted basis) of the outstanding shares of Common Stock, Pegasus shall
cause PCC to elect one director designated by Xxxxxx ("Xxxxxx Nominee") for
election to PCC's Board of Directors, provided that such Xxxxxx Nominee shall be
reasonably acceptable to Pegasus.
ARTICLE III
PIGGYBACK REGISTRATION RIGHTS
3.1 Right to Piggyback. Whenever PCC proposes to register any Subject
Securities under the Securities Act and the registration form to be used may be
used for the registration of the Registrable Securities (other than a
registration statement on form S-4 or S-8 or any similar successor forms)
("Registration"), PCC shall give written notice to all Holders at least 20 days
prior
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to the anticipated filing date, of its intention to effect such a Registration,
which notice will specify (to the extent known to PCC) the proposed offering
price, the kind and number of securities proposed to be registered, the
distribution arrangements and such other information that at the time would be
appropriate to include in such notice, and shall, subject to Section 3.2,
include in such Registration, all Registrable Securities with respect to which
PCC has received written requests for inclusion therein within 10 days after the
effectiveness of the PCC's notice; provided, however, that if, at any time after
giving written notice of its intention to register any securities and prior to
the effective date of the Registration Statement filed in connection with such
securities, PCC shall determine for any reason not to register or to delay
registration of such securities, PCC may, at its election, give written notice
of such determination to each Holder and, thereupon, (i) in the case of a
determination not to register, PCC shall be relieved of its obligation to
register any Registrable Securities under this Section 3.1 in connection with
such Registration and (ii) in the case of a determination to delay Registration,
PCC shall be permitted to delay registering any Registrable Securities under
this Section 3.1 during the period that the Registration of such other
securities is delayed. PCC further agrees to supplement or amend a Registration
Statement if required by applicable laws, rules or regulations or by the
instructions applicable to the registration form used by PCC for such
Registration Statement. Except as may otherwise be provided in this Agreement,
Registrable Securities with respect to which such request for registration has
been received shall be registered by PCC and offered to the public in a
Registration pursuant to this Article III on the terms and conditions at least
as favorable as those applicable to the registration of Subject Securities to be
sold by PCC.
3.2 Priority of Registrations. If the managing underwriter or
underwriters, if any, advise the Holders in writing that in its or their
reasonable opinion or, in the case of a Registration not being
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underwritten, PCC shall reasonably determine (and notify the Holders requesting
registration of such determination) that the number or kind of securities
proposed to be sold in such Registration (including Registrable Securities to be
included pursuant to Section 3.1 above) will adversely affect the success of
such offering or will affect the price at which the securities of PCC will be
sold therein, PCC shall include in such Registration only the number of
securities, if any, which, in the opinion of such underwriter or underwriters,
or PCC, as the case may be, can be sold, in the following order of priority: (i)
first, the shares of Subject Securities PCC proposes to sell and (ii) second,
the Registrable Securities requested to be included in such registration by the
Holders or any other Person or entity granted similar registration rights before
or after the date hereof. To the extent that the privilege of including
Registrable Securities in any Registration must be allocated pursuant to this
Section 3.2, the allocation shall be made pro rata based on the number of
securities that each such participant shall have requested to be included
therein.
3.3 Registration Procedures. With respect to any Registration, PCC
shall, subject to Section 3.2 above, as expeditiously as practicable:
(a) prepare and file with the Commission a Registration
Statement or Registration Statements relating to the applicable Registration on
any appropriate form under the Securities Act, which form shall be available for
the sale of the Registrable Securities in accordance with the intended method or
methods of distribution thereof;
(b) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be necessary to
keep each Registration Statement effective for the applicable period of
distribution contemplated in the Registration Statement, or such shorter period
which will terminate when all Registrable Securities covered by such
Registration Statement have been sold; cause each Prospectus to be supplemented
by any required Prospectus
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supplement, and as so supplemented to be filed pursuant to Rule 424 under the
Securities Act; and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such Registration
Statement during the applicable period in accordance with the intended method or
methods of distribution by the sellers thereof set forth in such Registration
Statement or supplement to the Prospectus;
(c) notify the Holders of Registrable Securities included in
the Registration promptly, and (if requested by any such person or entity)
confirm such advice in writing, (i) when the Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and, with respect to the
Registration Statement or any post-effective amendment, when the same has become
effective, (ii) of any request by the Commission for amendments or supplements
to the Registration Statement or the Prospectus or for additional information,
(iii) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any proceedings
for that purpose, (iv) of the receipt by PCC of any notification with respect to
the suspension of the qualification of the Registrable Securities for sale in
any jurisdiction or the initiation or threat of any proceeding for such purpose;
and (v) of the happening of any event which makes any statement made in the
Registration Statement, the Prospectus or any document incorporated therein by
reference untrue or which requires the making of any changes in the Registration
Statement, the Prospectus or any document incorporated therein by reference in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading;
(d) make every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of the Registration Statement;
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(e) furnish to each selling Holder of Registrable Securities,
without charge, at least one copy of the Registration Statement and any
amendment thereto, including financial statements and schedules, and all
documents incorporated therein by reference;
(f) deliver to each selling Holder of Registrable Securities
as many copies of the Prospectus (including each preliminary prospectus) and any
amendment or supplement thereto as such selling Holder of Registrable Securities
may reasonably request;
(g) prior to any public offering of Registrable Securities,
register or qualify such Registrable Securities for offer and sale under the
securities or "blue sky" laws of such jurisdictions as the selling Holders of
Registrable Securities reasonably request in writing, considering the amount of
Registrable Securities proposed to be sold in each such jurisdiction, and do any
and all other acts or things necessary or advisable to enable the disposition in
such jurisdictions of the Registrable Securities covered by the Registration
Statement; provided, however, that the Registrant shall not be required to
qualify generally to do business in any jurisdiction where it is not then so
qualified or to take any action that would subject it to general service of
process in any such jurisdiction where it is not then so subject;
(h) use its best efforts to cause the Registrable Securities
covered by the applicable Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
to enable the seller or sellers thereof, if any, to consummate the disposition
of such Registrable Securities;
(i) upon the occurrence of any event contemplated by Section
3.3(c)(v), prepare a supplement or post-effective amendment to the Registration
Statement or the related Prospectus or any document incorporated therein by
reference or file any other required document; provided that PCC may elect to
suspend or abandon the Registration in such event;
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(j) cause all Registrable Securities covered by any
Registration Statement to be listed on each securities exchange on which similar
securities issued by PCC are then listed; and
(k) provide a CUSIP number for all Registrable Securities, not
later than the effective date of the applicable Registration Statement.
PCC may require that each selling Holder of Registrable Securities
furnish to PCC such information regarding the proposed distribution of such
securities as PCC may from time to time reasonably request in writing.
Each selling Holder of Registrable Securities agrees that upon receipt
of any notice from PCC of the happening of any event of the kind described in
Section 3.3(c)(v), such Holder will forthwith discontinue disposition of
Registrable Securities pursuant to the Registration Statement until such
Holder's receipt of copies of the supplemented or amended Prospectus, as
contemplated by Section 3.3(i), or until it is advised in writing by PCC that
the use of the Prospectus may be resumed, and has received copies of any
additional or supplemental filings that are incorporated by reference in the
Prospectus, and, if so directed by PCC, such Holder will deliver to PCC all
copies, other than permanent file copies then in such Holder's possession, of
the Prospectus covering such Registrable Securities current at the time of
receipt of such notice.
3.4 Selection of Underwriters. If any Registration is an underwritten
offering, PCC shall have the right to select the underwriters and managing
underwriters(s) of the offering.
3.5 Restrictions on Public Sale. To the extent not inconsistent with
applicable law and unless otherwise advised by PCC or the underwriter(s) for the
Registrable Securities, each Holder whose Registrable Securities are included in
a Registration Statement hereunder agrees not to effect any public sale or
distribution of Registrable Securities, including a sale pursuant to Rule 144,
during
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the 15 business days prior to, and during the 90-day period beginning on the
effective date of a Registration Statement pursuant to the Registration.
3.6 Registration Expenses. All expenses incident and specifically
attributable to PCC's performance of or compliance with Article III of this
Agreement shall be borne by the selling Holders of Registrable Securities on a
pro rata basis, including, without limitation, all registration and filing fees,
the fees and expenses of the counsel and accountants for PCC (including the
expenses of any "comfort" letters and special audits), as well as the fees and
expenses of the counsel and accountants to the selling Holders of Registrable
Securities, all other costs and expenses of PCC incident to the preparation,
printing and filing under the Securities Act of the Registration Statement (and
all amendments and supplements thereto) and furnishing copies thereof and of the
Prospectus included therein, the costs and expenses incurred by PCC in
connection with the qualification of the Registrable Securities under the state
securities or "blue sky" laws of various jurisdictions, the costs and expenses
associated with filings required to be made with the NASD (including, if
applicable, the fees and expenses of any "qualified independent underwriter" and
its counsel as may be required by the rules and regulations of the NASD), the
costs and expenses of listing the Registrable Securities for trading on a
national securities exchange or authorizing them for trading on the Nasdaq
National Market, underwriters' commissions, brokerage fees, transfer taxes and
all other costs and expenses incurred by PCC in connection with the inclusion of
Registrable Securities in any Registration hereunder.
3.7 Indemnification.
(a) PCC agrees to indemnify and hold harmless each selling
Holder, each of its directors and officers and each person who controls such
Holder within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act, against any losses, claims, damages or
10
liabilities, joint or several, to which they or any of them may become subject
under the Securities Act or the Exchange Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon:
i. any untrue statement or alleged untrue statement
of any material fact contained in (A) any Registration Statement or Prospectus
or any amendment or supplement thereto or (B) any application or other document,
or any amendment or supplement thereto, executed by PCC or based upon written
information furnished by or on behalf of PCC filed in any jurisdiction in order
to qualify Registrable Securities under the securities or blue sky laws thereof
or filed with the Commission or any securities association or securities
exchange (each an "Application"); or
ii. the omission or alleged omission to state in any
Registration Statement or Prospectus or any amendment or supplement thereto or
any Application a material fact required to be stated therein or necessary to
make the statements therein not misleading,
and shall reimburse each indemnified person for any legal or
other expenses reasonably incurred by each indemnified person in connection with
investigating and defending against any such loss, claim, damage, liability or
action; provided, however, that PCC shall not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon any untrue statement or alleged untrue statement or omission or alleged
omission made in such Registration Statement or Prospectus or any amendment or
supplement thereto or any Application in reliance upon and in conformity with
information relating to such Holder that was furnished to PCC by such Holder
specifically for use therein. PCC shall not, without the prior written consent
of any such Person, settle or compromise or consent to the entry of any judgment
in any pending or threatened claim, action, suit or proceeding in respect of
which indemnification may be sought hereunder, unless such settlement,
compromise or consent includes a release of such
11
Person and such directors, officers or controlling persons from all liability
arising out of such claim, action, suit or proceeding.
(b) Each Holder whose Registrable Securities are included in a
Registration agrees to indemnify and hold harmless PCC, each of its directors
and officers and each person who controls PCC within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act against any losses,
claims, damages or liabilities to which PCC or any such director or officer or
controlling person may become subject under the Securities Act or the Exchange
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in any
Registration Statement or Prospectus or any amendment or supplement thereto, or
any Application or (ii) the omission or the alleged omission to state therein a
material fact required to be stated in any Registration Statement or Prospectus
or any amendment or supplement thereto, or any Application necessary to make the
statements therein not misleading, in each case to the extent that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with information relating to such Holder that
was furnished to PCC by such Holder; and will reimburse any legal or other
expenses reasonably incurred by PCC or any such director, officer or controlling
person in connection with investigating or defending any such loss, claim,
damage, liability or any action in respect thereof.
(c) Promptly after receipt by an indemnified party under this
Section 3.7 of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under this Section 3.7, notify the indemnifying party of the commencement
thereof. In case any such action is brought against any indemnified party, and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party shall be
12
entitled to participate therein and assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party; provided, however, that if
the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
based on the advice of counsel that there may be one or more legal defenses
available to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, the indemnifying party
shall not have the right to direct the defense of such action on behalf of such
indemnified party or parties and such indemnified party or parties shall have
the right to select separate counsel to defend such action on behalf of such
indemnified party or parties. After notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof and approval
by such indemnified party of counsel appointed to defend such action the
indemnifying party will not be liable to such indemnified party under this
Section 3.7 for any legal or other expenses, other than reasonable costs of
investigation, subsequently incurred by such indemnified party in connection
with the defense thereof, unless (i) the indemnified party shall have employed
separate counsel in accordance with the proviso to the immediately preceding
sentence or (ii) the indemnifying party does not promptly retain counsel
reasonably satisfactory to the indemnified party or (iii) the indemnifying party
has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party. After such notice from the indemnifying party
to such indemnified party, the indemnifying party shall not be liable for the
costs and expenses of any settlement of such action effected by such indemnified
party without the consent of the indemnifying party.
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ARTICLE IV
RULE 144
PCC agrees that at all times after a Registration Statement pursuant to
the requirements of the Securities Act relating to any class of equity
securities of PCC has become effective, it shall file in a timely manner all
reports required to be filed by it pursuant to the Securities Act and the
Exchange Act and shall take such further action as any Holder may reasonably
request in order that such Holder may effect sales of Registrable Securities
pursuant to Rule 144 under the Securities Act. At any reasonable time and upon
request of a Holder, PCC shall furnish such Holder and others with such
information as may be necessary to enable the Holder to effect sales of
Registrable Securities pursuant to Rule 144 and shall deliver to such Holder a
written statement as to whether PCC has complied with such requirements.
Notwithstanding the foregoing, PCC may deregister any class of its equity
securities under Section 12 of the Exchange Act or suspend its duty to file
reports with respect to any class of its securities under Section 12 of the
Exchange Act or suspend its duty to file reports with respect to any class of
its securities pursuant to Section 15(d) of the Exchange Act if it is then
permitted to do so pursuant to the Exchange Act.
ARTICLE V
TRANSFER RESTRICTIONS
5.1 Right of First Offer. Whenever, during the period up to and
including the second anniversary hereof, Xxxxxx or any of its Affiliates desires
to sell or transfer any Registrable Securities in a private transaction exempt
from registration under the Securities Act and applicable "blue sky" laws, such
Holder shall give notice ("First Offer Notice") to PCC to the foregoing effect
specifying the number of shares of Registrable Securities that the Holder
desires to sell or transfer ("First Offer Shares") and the desired sale price
therefor ("First Offer Sale Price"). Within 45 days
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after receipt of the First Offer Notice by PCC ("First Offer Acceptance
Period"), PCC shall have the right to purchase the First Offer Shares for the
First Offer Sale Price. In the event that PCC does not timely respond to the
offer or does not agree to purchase the First Offer Shares at the First Offer
Sale Price during the First Offer Acceptance Period, the transferring Holder
may, during the 120 day period following the expiration of the First Offer
Acceptance Period, sell or transfer all (but not less than all) of the First
Offer Shares at a price equal to or greater than the First Offer Sale Price;
provided that no transferee of the First Offer Shares shall be entitled to any
rights thereunder, unless and until the transferring Holder shall have (i)
informed PCC in writing of the identity of the transferee, the number of shares
of Registrable Securities transferred, and the price paid by the transferee
therefor, (ii) certified that such transfer has been made in compliance with
this Agreement, and (iii) provided to PCC an opinion of counsel satisfactory to
PCC that registration of such Registrable Securities under the Securities Act
and applicable "blue sky" laws is not required in connection with such transfer.
This Section 5.1 shall not apply to transfers to Persons who are Xxxxxx
shareholders as of the date hereof or to Subsidiaries of Xxxxxx.
5.2 Change of Xxxxxx Control. During the period that Xxxxxx or any
Affiliate of Xxxxxx is a Holder of Registrable Securities, Xxxxxx shall
immediately notify Pegasus of any change of control of Xxxxxx or any such
Affiliate. For purposes of this Section 5.2, "control" has the same meaning
assigned to it in the definition of "Affiliate" set forth in Section 1.1.
5.3 Legends. The Parties agree that each certificate representing
Shares shall bear the following legend until such time as the same is no longer
applicable:
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"THE SHARES OF CLASS A COMMON STOCK REPRESENTED BY THIS
CERTIFICATE WERE ORIGINALLY ISSUED IN A TRANSACTION EXEMPT
FROM REGISTRATION UNDER XXXXXXX 0 XX XXX XXXXXX XXXXXX
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND
THE SHARES EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR
AN APPLICABLE EXEMPTION THEREFROM. THE SHARES EVIDENCED HEREBY
ARE SUBJECT TO THE TERMS OF, AND ARE ENTITLED TO THE BENEFITS
SET FORTH IN, A STOCKHOLDERS' AGREEMENT DATED AS OF OCTOBER 8,
1996, A COPY OF WHICH IS ON FILE AT THE OFFICE OF PEGASUS
COMMUNICATIONS CORPORATION. PEGASUS COMMUNICATIONS CORPORATION
WILL FURNISH A COPY OF SUCH STOCKHOLDERS' AGREEMENT TO THE
RECORD HOLDER HEREOF WITHOUT CHARGE UPON WRITTEN REQUEST TO
PEGASUS COMMUNICATIONS CORPORATION AT ITS PRINCIPAL PLACE OF
BUSINESS OR REGISTERED OFFICE."
ARTICLE VI
MISCELLANEOUS
6.1 Notices. Any notices and other communications required or permitted
hereunder shall be in writing and shall be effective upon delivery by hand or
upon receipt if sent by certified or registered mail (postage prepaid and return
receipt requested) or by a nationally recognized overnight courier service
(appropriately marked for overnight delivery) or upon transmission if sent by
telex or facsimile (with request for immediate confirmation of receipt in a
manner customary for communications of such respective type and with physical
delivery of the communication being made by one or the other means specified in
this Section 6.1 as promptly as practicable thereafter). Notices shall be
addressed as follows:
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(a) If to Pegasus or PCC to:
Pegasus Communications Holdings, Inc.
Pegasus Communications and Media Corporation
5 Radnor Corporate Center
000 Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Xx. Xxxxxxxx X. Xxxxx
(with a copy to Xxx X. Lodge at the same address)
(b) If to Xxxxxx, to it at:
Xxxxxx Communications Corp.
00 Xxxx Xxxxxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxx, III
with a copy to:
Xxxx Xxxxxx & XxXxxxxx, P.C.
00 Xxxx Xxxxxx Xxxxxx
Xxx 000
Xxxx Xxxxxxx, XX 00000-0000
Attn: Xxxxx X. XxXxxxx, III, Esquire
(c) If to Holders of Registrable Securities (other than
Xxxxxx), to their respective addresses appearing on
the stock transfer agent's register.
Any Party may change the address to which notices are required to be sent by
giving notice of such change in the manner provided in this Section 6.1.
6.2 FCC Compliance. Notwithstanding anything to the contrary contained
herein, the Parties recognize that a Holder may be restricted from the exercise
of certain rights contained herein, including, but not limited to, the right to
transfer the Shares if such exercise would constitute a violation of, or cause
PCC to not be in compliance with, the Communications Act of 1934, as amended, or
applicable Federal Communications Commission rules, regulations or policies,
17
including, but not limited to, those restricting alien ownership (the "FCC
Rules"), and accordingly, the Parties shall act hereunder in compliance with FCC
Rules.
6.3 Amendments and Waivers. The provisions of this Agreement may only
be amended, modified or supplemented, and waivers of or consents to departures
from the provisions hereof may only be given if approved by the Parties in
writing. No action taken pursuant to this Agreement, including, without
limitation, any investigation by or on behalf of any Party, shall be deemed to
constitute a waiver by the Party taking such action. The waiver by any Party
hereto of a breach of any provision of this Agreement shall not operate or be
construed as a waiver of any preceding or succeeding breach and no failure by
any Party to exercise any right or privilege hereunder shall be deemed a waiver
of such Party's rights or privileges hereunder or shall be deemed a waiver of
such Party's rights to exercise the same at any subsequent time or times
hereunder.
6.4 Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the Parties and their respective successors and assigns,
including, without limitation, subsequent holders of Shares.
6.5 Counterparts. This Agreement may be executed in one or more
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 instrument.
6.6 Headings. The headings in this Agreement are for convenience of
reference only and shall not affect the meaning of any provision of this
Agreement.
6.7 Governing Law. The validity, performance, construction and effect
of this Agreement shall be governed by and construed in accordance with the laws
of the Commonwealth of Pennsylvania applicable to agreements made and to be
performed therein. The parties hereto
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agree to submit to the jurisdiction of the courts of the Commonwealth of
Pennsylvania in any action or proceeding arising out of or relating to this
Agreement.
6.8 Severability. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held to be invalid,
illegal or unenforceable, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
6.9 Entire Agreement. This Agreement 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 other than those set forth or referred to herein with
respect to the governance and registration rights granted by PCC to Holders or
with respect restrictions on transferability of Registrable Securities. This
Agreement supersedes all prior agreements and understandings between the Parties
with respect to such subject matter.
19
IN WITNESS WHEREOF, the Parties hereto have duly executed this
Agreement as of the day and year first above written.
PEGASUS COMMUNICATIONS HOLDINGS, INC.
By: /s/ Xxx X. Lodge
------------------------------------
PEGASUS COMMUNICATIONS CORPORATION
By: /s/ Xxx X. Lodge
-------------------------------------
XXXXXX COMMUNICATIONS CORP.
By: /s/ Xxxx X. Xxxxxxx, III
-------------------------------------
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