REGISTRATION RIGHTS AGREEMENT
Dated as of December 9, 1998
among
FRONTIERVISION HOLDINGS, L.P.,
FRONTIERVISION HOLDINGS CAPITAL II CORPORATION
and
X.X. XXXXXX SECURITIES INC.
and
CHASE SECURITIES INC.
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is dated as of
December 9, 1998, by and among FRONTIERVISION HOLDINGS, L.P., a Delaware limited
partnership (the "Company"), FRONTIERVISION HOLDINGS CAPITAL II CORPORATION, a
Delaware corporation ("Capital," and together with the Company, the "Issuers"),
and X.X. XXXXXX SECURITIES INC. and CHASE SECURITIES INC. (collectively, the
"Initial Purchasers").
This Agreement is entered into in connection with the Purchase Agreement,
dated as of December 2, 1998, between the Issuers and the Initial Purchasers
(the "Purchase Agreement") relating to the sale by the Issuers to the Initial
Purchasers, severally, of $91,298,000 aggregate principal amount at maturity of
their 11 7/8% Senior Discount Notes due 2007, Series B (the "Securities"). In
order to induce the Initial Purchasers to enter into the Purchase Agreement, the
Issuers have agreed to provide the registration rights set forth in this
Agreement for the equal benefit of the Initial Purchasers and their direct and
indirect transferees. The execution and delivery of this Agreement is a
condition to the Initial Purchasers' obligation to purchase the Securities under
the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms shall have the following
meanings:
Additional Interest: See Section 4.
Advice: See Section 5.
Applicable Period: See Section 2(b).
Capital: See the introductory paragraph to this Agreement.
Company: See the introductory paragraph to this Agreement.
Consummation Date: The 240th day after the Issue Date.
Effectiveness Date: The 210th day after the Issue Date.
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Effectiveness Period: See Section 3(a).
Event Date: See Section 4(b).
Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated thereunder.
Exchange Offer: See Section 2(a).
Exchange Registration Statement: See Section 2(a).
Exchange Securities: See Section 2(a).
Filing Date: The 120th day after the Issue Date.
First Union: See Section 11.
Holder: Any record holder of Registrable Securities.
Indemnified Person: See Section 7.
Indemnifying Person: See Section 7.
Indenture: The Indenture, dated as of December 9, 1998, between the Issuers
and U.S. Bank National Association, as trustee, pursuant to which the Securities
are being issued, as amended or supplemented from time to time in accordance
with the terms thereof.
Initial Purchasers: See the introductory paragraph to this Agreement.
Initial Shelf Registration: See Section 3(a).
Inspectors: See Section 5(p).
Issue Date: The date of original issuance of the Securities.
Issuers: See the introductory paragraph to this Agreement.
JPMS: See Section 11.
NASD: See Section 5(t).
Participant: See Section 7.
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Participating Broker-Dealer: See Section 2(b).
Person: An individual, corporation, limited or general partnership, joint
venture, association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
Private Exchange: See Section 2(b).
Private Exchange Securities: See Section 2(b).
Prospectus: The prospectus included in any Registration Statement
(including, without limitation, a prospectus that includes any information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the Securities Act), 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 or deemed to be incorporated by reference in such Prospectus.
Records: See Section 5(p).
Registrable Securities: The Securities upon original issuance of the
Securities and at all times subsequent thereto, each Exchange Security as to
which Section 2(c)(1)(i) hereof is applicable upon original issuance and at all
times subsequent thereto and, if issued, the Private Exchange Securities, until
in the case of any such Securities, Exchange Securities or Private Exchange
Securities, as the case may be, (i) a Registration Statement (other than, with
respect to any Exchange Security as to which Section 2(c)(1)(i) hereof is
applicable, the Exchange Registration Statement) covering such Securities,
Exchange Securities or Private Exchange Securities has been declared effective
by the SEC and such Securities, Exchange Securities or Private Exchange
Securities, as the case may be, have been disposed of in accordance with such
effective Registration Statement, (ii) such Securities, Exchange Securities or
Private Exchange Securities, as the case may be, are sold in compliance with
Rule 144 or would be permitted to be sold pursuant to Rule 144(k), or (iii) such
Securities, Exchange Securities or Private Exchange Securities, as the case may
be, cease to be outstanding.
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Registration Statement: Any registration statement of the Issuers,
including, but not limited to, the Exchange Registration Statement, that 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, all exhibits, and all material
incorporated by reference or deemed to be incorporated by reference in such
registration statement.
Rule 144: Rule 144 promulgated under the Securities Act, as such Rule may
be amended from time to time, or any similar rule (other than Rule 144A) or
regulation hereafter adopted by the SEC providing for offers and sales of
securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
Rule 144A: Rule 144A promulgated under the Securities Act, as such Rule may
be amended from time to time, or any similar rule (other than Rule 144) or
regulation hereafter adopted by the SEC.
Rule 415: Rule 415 promulgated under the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
SEC: The Securities and Exchange Commission.
Securities: See the preamble to this Agreement.
Securities Act: The Securities Act of 1933, as amended, and the rules and
regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2(c).
Shelf Registration: See Section 3(b).
Subsequent Shelf Registration: See Section 3(b).
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The trustee as defined in the Indenture and, if existent, the
trustee under any indenture governing the Exchange Securities and Private
Exchange Securities (if any).
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Underwritten registration or underwritten offering: A registration in which
securities of the Issuers are sold to an underwriter for reoffering to the
public.
2. Exchange Offer
(a) The Issuers agree to file with the SEC as soon as practicable after the
Issue Date, but in no event later than the Filing Date, an offer to exchange
(the "Exchange Offer") any and all of the Registrable Securities for a like
aggregate principal amount at maturity of debt securities of the Issuers which
are identical in all material respects to the Securities (the "Exchange
Securities") (and which are entitled to the benefits of the Indenture or a trust
indenture which is identical in all material respects to the Indenture (other
than such changes as are necessary to comply with any requirements of the SEC to
effect or maintain the qualification of such trust indenture under the TIA) and
which has been qualified under the TIA), except that the Exchange Securities
shall have been registered pursuant to an effective Registration Statement under
the Securities Act and shall contain no legend thereon with respect to
restrictions on transfer pursuant to the Securities Act. The Issuers agree to
use their reasonable best efforts to keep the Exchange Offer open for at least
20 business days (or longer if required by applicable law) after the date notice
of the Exchange Offer is mailed to Holders and to consummate the Exchange Offer
on or prior to the Consummation Date. The Exchange Offer will be registered
under the Securities Act on the appropriate form (the "Exchange Registration
Statement") and will comply with all applicable tender offer rules and
regulations under the Exchange Act. If after such Exchange Registration
Statement is initially declared effective by the SEC and prior to the
consummation of the Exchange Offer, the Exchange Offer or the issuance of the
Exchange Securities thereunder is interfered with by any stop order, injunction
or other order or requirement of the SEC or any other governmental agency or
court such Exchange Registration Statement shall be deemed not to have become
effective for purposes of this Agreement. Each Holder who participates in the
Exchange Offer will be deemed to represent that any Exchange Securities received
by it will be acquired in the ordinary course of its business, that at the time
of the consummation of the Exchange Offer such Holder will have no arrangement
with any person to participate in the distribution of the Exchange Securities in
violation of the provisions of the Securities Act, and that such Holder is not
an affiliate of the Issuers within the meaning of the Securities Act. Upon
consummation of the Exchange Offer in accordance with this Section 2, the
provisions of this Agreement (other
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than the first four sentences of this Section 2(a)) shall continue to apply,
mutatis mutandis, solely with respect to Registrable Securities that are Private
Exchange Securities and Exchange Securities held by Participating
Broker-Dealers, and the Issuers shall have no further obligation to register
Registrable Securities (other than Private Exchange Securities and other than
Exchange Securities as to which clause (c)(1)(i) hereof applies) pursuant to
Section 3 of this Agreement. No securities other than the Exchange Securities
shall be included in the Exchange Registration Statement.
(b) The Issuers shall include within the Prospectus contained in the
Exchange Registration Statement one or more section(s) reasonably acceptable to
the Initial Purchasers which shall contain a summary statement of the publicly
disseminated positions of the Staff of the SEC with respect to the potential
"underwriter" status of any broker-dealer that is the beneficial owner (as
defined in Rule 13d-3 under the Exchange Act) of Exchange Securities received by
such broker-dealer in the Exchange Offer (a "Participating Broker-Dealer"). Such
section(s) shall also allow the use of the prospectus by all persons subject to
the prospectus delivery requirements of the Securities Act (other than a
Participating Broker Dealer (an "Excluded Participating Broker Dealer") who
either (x) acquired Securities other than for its own account as a result of
market-making activities or other trading activities or (y) has entered into any
arrangement or understanding with any Issuer or any affiliate of any Issuer to
distribute the Exchange Securities) and include a statement describing the means
by which Participating Broker-Dealers may resell the Exchange Securities.
The Issuers shall use their reasonable best efforts to keep the Exchange
Registration Statement effective and to amend and supplement the Prospectus
contained therein in order to permit such Prospectus to be lawfully delivered by
all persons subject to the prospectus delivery requirements of the Securities
Act for such period of time as such persons must comply with such requirements
in order to resell the Exchange Securities; provided, however, that such period
shall not exceed 180 days (or such longer period if extended pursuant to the
last paragraph of Section 5) (the "Applicable Period"); provided, further,
however, that, if requested by the Company in the letter of transmittal for the
Exchange Offer, such persons shall have expressed that they may be subject to
such requirements and have undertaken to use their reasonable best efforts to
notify the Company when they are no longer subject to such requirements (if they
are no longer subject to such require-
7
ments at any time prior to the expiration of the Applicable Period).
If, prior to consummation of the Exchange Offer, an Initial Purchaser holds
any Securities acquired by it and having the status of an unsold allotment in
the initial distribution or if JPMS holds any Securities (whether acquired in
market making activities or having the status of an unsold allotment) after
consummation of the Exchange Offer, the Issuers upon the request of such Initial
Purchaser shall, simultaneously with the delivery of the Exchange Securities in
the Exchange Offer, issue and deliver to each such Initial Purchaser, in
exchange (the "Private Exchange") for the Securities held by such Initial
Purchaser, a like principal amount at maturity of debt securities of the Issuers
that are identical in all material respects to the Exchange Securities (the
"Private Exchange Securities") (and which are issued pursuant to the same
indenture as the Exchange Securities) except for the placement of a restrictive
legend on such Private Exchange Securities. If practicable, the Private Exchange
Securities shall bear the same CUSIP number as the Exchange Securities. Accreted
Value (as defined in the Indenture) will accrue on the Exchange Securities and
Private Exchange Securities in the same manner as the Securities.
Any indenture under which the Exchange Securities or the Private Exchange
Securities will be issued shall provide that the holders of any of the Exchange
Securities and the Private Exchange Securities will vote and consent together on
all matters (to which such holders are entitled to vote or consent) as one class
and that none of the holders of the Exchange Securities and the Private Exchange
Securities will have the right to vote or consent as a separate class on any
matter (to which such holders are entitled to vote or consent).
(c) If (1) prior to the consummation of the Exchange Offer, the Issuers
reasonably determine in good faith or Holders of a majority in aggregate
principal amount at maturity of the Registrable Securities notify the Issuers
that they have reasonably determined in good faith that (i) in the opinion of
counsel, the Exchange Securities would not, upon receipt, be tradeable by such
Holders who are not affiliates of the Issuers or Excluded Participating Broker
Dealers without registration under the Securities Act and without registration
under applicable blue sky or state securities laws or (ii) in the opinion of
counsel, the SEC is unlikely to permit the consummation of the Exchange Offer
and/or (2) subsequent to the consummation of the Private Exchange, any holder of
Private Exchange Securities
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so requests with respect to the Private Exchange Securities and/or (3) the
Exchange Offer is commenced and not consummated prior to the 60th day following
the Consummation Date for any reason, then the Issuers shall promptly deliver to
the Holders and the Trustee notice thereof (the "Shelf Notice") and shall
thereafter file an Initial Shelf Registration as set forth in Section 3 (which
only in the circumstances contemplated by clause (2) of this sentence will
relate solely to the Private Exchange Securities) pursuant to Section 3. The
parties hereto agree that, following the delivery of a Shelf Notice to the
Holders of Registrable Securities (only in the circumstances contemplated by
clauses (1) and/or (3) of the preceding sentence), the Issuers shall not have
any further obligation to conduct the Exchange Offer or the Private Exchange
under this Section 2.
3. Shelf Registration
If a Shelf Notice is delivered as contemplated by Section 2(c), then:
(a) Initial Shelf Registration. The Issuers shall as promptly as reasonably
practicable prepare and file with the SEC a Registration Statement for an
offering to be made on a continuous basis pursuant to Rule 415 covering all of
the Registrable Securities (the "Initial Shelf Registration"). If the Issuers
shall have not yet filed an Exchange Offer and the Shelf Notice was delivered at
least 45 days prior to the Filing Date, the Issuers shall file with the SEC the
Initial Shelf Registration on or prior to the Filing Date. Otherwise, the
Issuers shall file with the SEC the Initial Shelf Registration within 60 days of
the delivery of the Shelf Notice. The Initial Shelf Registration shall be on
Form S-1 or another appropriate form permitting registration of such Registrable
Securities for resale by such holders in the manner or manners designated by
them (including, without limitation, one or more underwritten offerings). The
Issuers shall use their reasonable best efforts to cause the Initial Shelf
Registration to be declared effective under the Securities Act on or prior to
the 120th day after the filing thereof with the SEC and to keep the Initial
Shelf Registration continuously effective under the Securities Act until the
date which is 24 months from the Issue Date (the "Effectiveness Period"), or
such shorter period ending when (i) all Registrable Securities covered by the
Initial Shelf Registration have been sold in the manner set forth and as
contemplated in the Initial Shelf Registration or
9
(ii) a Subsequent Shelf Registration covering all of the Registrable Securities
has been declared effective under the Securities Act.
Notwithstanding any other provision of this Agreement, the Issuers may
postpone or suspend the filing or effectiveness of a Registration Statement (or
any amendments or supplements thereto) if (i) such action is required by
applicable law or (ii) such action is taken by the Issuers in good faith and for
valid business reasons (not including the avoidance of the Issuers' obligations
hereunder), including the acquisition or divestiture of assets, other pending
corporate developments, public filings with the SEC or other similar events, so
long as the Issuers promptly thereafter comply with the requirements of Section
5(b) hereof, if applicable. Notwithstanding the occurrence of any event referred
to in the immediately preceding sentence, such event shall not suspend, postpone
or in any other manner affect the running of any time periods for the purpose of
determining the entitlement of the Holders to Additional Interest under Section
4 hereof.
(b) Subsequent Shelf Registrations. If the Initial Shelf Registration or
any Subsequent Shelf Registration ceases to be effective for any reason at any
time during the Effectiveness Period (other than because of the sale of all of
the securities registered thereunder), the Issuers shall use their reasonable
best efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof, and in any event shall within 45 days of such cessation
of effectiveness amend the Shelf Registration in a manner reasonably expected to
obtain the withdrawal of the order suspending the effectiveness thereof, or file
an additional "shelf" Registration Statement pursuant to Rule 415 covering all
of the Registrable Securities (a "Subsequent Shelf Registration"). If a
Subsequent Shelf Registration is filed, the Issuers shall use their reasonable
best efforts to cause the Subsequent Shelf Registration to be declared effective
as soon as practicable after such filing and to keep such Registration Statement
continuously effective for a period equal to the number of days in the
Effectiveness Period less the aggregate number of days during which the Initial
Shelf Registration or any Subsequent Shelf Registration was previously
continuously effective. As used herein the term "Shelf Registration" means the
Initial Shelf Registration and any Subsequent Shelf Registration.
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(c) Supplements and Amendments. The Issuers shall promptly supplement and
amend the Shelf Registration if required by the rules, regulations or
instructions applicable to the registration form used for such Shelf
Registration or if required by applicable law.
4. Additional Interest
(a) The Issuers and the Initial Purchasers agree that the Holders of
Registrable Securities will suffer damages if the Issuers fail to fulfill their
obligations under Section 2 or Section 3 hereof and that it would not be
feasible to ascertain the extent of such damages with precision. Accordingly,
the Issuers agree to pay, as liquidated damages, cash interest on the
Registrable Securities (whether or not cash interest is then payable on the
Registrable Securities in accordance with the Indenture) ("Additional Interest")
under the circumstances and to the extent set forth below (each of which shall
be given independent effect and shall not be duplicative):
(i) if the Exchange Registration Statement has not been filed on or prior
to the Filing Date or the Initial Shelf Registration has not been filed on or
prior to the date by which it is required to be filed pursuant to Section 3(a)
hereof, Additional Interest shall accrue on the Registrable Securities over and
above the stated cash interest rate (if any) at a rate of 25 basis points per
annum for the first 90 days immediately following the Filing Date or such
required date, as the case may be, such Additional Interest rate increasing by
an additional 25 basis points per annum at the beginning of each subsequent
90-day period;
(ii) if Additional Interest is not then accruing pursuant to Section
4(a)(i) and the Exchange Registration Statement is not declared effective by the
SEC on or prior to the Effectiveness Date or the Initial Shelf Registration is
not declared effective on or prior to the 120th day after filing thereof,
Additional Interest shall accrue on the Registrable Securities included or which
should have been included in such Registration Statement over and above the
stated cash interest rate (if any) at a rate of 25 basis points per annum for
the first 90 days immediately following the day after the Effectiveness Date,
such Additional Interest rate increasing by an additional 25 basis points per
annum at the beginning of each subsequent 90-day period; and
11
(iii) if Additional Interest is not then accruing pursuant to Section
4(a)(i) and 4(a)(ii) and (A) the Issuers have not exchanged Exchange Securities
for all Notes validly tendered in accordance with the terms of the Exchange
Offer on or prior to the Consummation Date (including by reason of the Exchange
Registration Statement ceasing to be effective) or (B) if applicable, the Shelf
Registration has been declared effective and such Shelf Registration ceases to
be effective at any time during the Effectiveness Period, then Additional
Interest shall be accrued on the Registrable Securities (over and above the
stated cash interest rate (if any) otherwise payable on the Registrable
Securities) at a rate of 25 basis points per annum for the first 90 days
commencing on the (x) 210th day after the Issue Date, in the case of (A) above,
or (y) the day such Shelf Registration ceases to be effective, in the case of
(B) above, such Additional Interest rate increasing by an additional 25 basis
points per annum at the beginning of each such subsequent 90-day period;
provided, however, that the Additional Interest rate on the Registrable
Securities may not exceed at any one time in the aggregate 100 basis points per
annum; and provided, further, that (1) upon the filing of the Exchange
Registration Statement or a Shelf Registration as required hereunder (in the
case of clause (a)(i) of this Section 4), (2) upon the effectiveness of the
Exchange Registration Statement or the Shelf Registration as required hereunder
(in the case of clause (a)(ii) of this Section 4), or (3) upon the exchange of
Exchange Securities for all Notes tendered (in the case of clause (a)(iii)(A) of
this Section 4), or upon the effectiveness of the Shelf Registration which had
ceased to remain effective (in the case of clause (a)(iii)(B) of this Section
4), Additional Interest on the Registrable Securities as a result of such clause
(or the relevant subclause thereof), as the case may be, shall cease to accrue.
(b) The Issuers shall notify the Trustee within five business days after
each and every date on which an event occurs in respect of which Additional
Interest is required to be paid (an "Event Date"). The Issuers shall pay the
Additional Interest due on the Registrable Securities by depositing with the
Trustee, in trust, for the benefit of the Holders thereof, on or before the
applicable semi-annual interest payment date (or the calendar date which would
be a semi-annual interest payment date if cash interest were then payable on the
Registrable Securities) immediately available funds in sums suffi-
12
cient to pay the Additional Interest then due to Holders of Registrable
Securities. The Additional Interest amount due shall be payable on each such
date to the record Holder of Registrable Securities on the March 1 or September
1, as the case may be, immediately preceding such semi-annual interest payment
date (or the calendar date which would be a semi-annual interest payment date if
cash interest were then payable on the Registrable Securities). The amount of
Additional Interest will be determined by applying the applicable Additional
Interest rate to the principal amount at maturity of the affected Registrable
Securities of such Holders, (determined on the basis of a 360-day year comprised
of twelve 30-day months and, in the case of a partial month, the actual number
of days elapsed). Each obligation to pay Additional Interest shall be deemed to
accrue immediately following the occurrence of the applicable Event Date. The
parties hereto agree that the Additional Interest provided for in this Section 4
constitutes the sole and exclusive remedy for a breach of Sections 2 or 3 and is
a reasonable estimate of the damages that may be incurred by Holders of
Registrable Securities by reason of the failure of a Shelf Registration or
Exchange Registration Statement to be filed or declared effective, an Exchange
Offer to be consummated or a Shelf Registration to remain effective, as the case
may be, in accordance with this Section 4.
5. Registration Procedures
In connection with the registration of any Registrable Securities pursuant
to Sections 2 or 3 hereof, the Issuers shall effect such registrations to permit
the sale of such Registrable Securities in accordance with the intended method
or methods of disposition thereof, and pursuant thereto the Issuers shall:
(a) Use their reasonable best efforts to prepare and file with the SEC a
Registration Statement or Registration Statements, as soon as practicable after
the date hereof but in any event prior to the applicable date prescribed by
Sections 2 or 3, and to use their reasonable best efforts to cause each such
Registration Statement to become effective and remain effective as provided
herein; provided, however, that, if (1) such filing is pursuant to Section 3, or
(2) a Prospectus contained in an Exchange Registration Statement filed pursuant
to Section 2 is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, before filing any Registration Statement or Prospectus or any
amendments or
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supplements thereto, the Issuers shall upon written request furnish to and
afford the Holders of the Registrable Securities (which in the case of
Registrable Securities in the form of global certificates shall be The
Depository Trust Company ("DTC")) and each such Participating Broker-Dealer, as
the case may be, covered by such Registration Statement, their counsel and the
managing underwriters, if any, a reasonable opportunity to review copies of all
such documents (including copies of any documents to be incorporated by
reference therein and all exhibits thereto) proposed to be filed.
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Shelf Registration or Exchange Registration Statement, as the
case may be, as may be necessary to keep such Registration Statement
continuously effective for the Effectiveness Period or the Applicable Period, as
the case may be; cause the related Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424
(or any similar provisions then in force) under the Securities Act; and comply
with the provisions of the Securities Act and the Exchange Act with respect to
the disposition of all securities covered by such Registration Statement as so
amended or in such Prospectus as so supplemented and with respect to the
subsequent resale of any securities being sold by a Participating Broker-Dealer
covered by any such Prospectus; the Issuers shall not be deemed to have used
their reasonable best efforts to keep a Registration Statement effective during
the Applicable Period if the Issuers voluntarily take any action that would
result in selling Holders of the Registrable Securities covered thereby or
Participating Broker-Dealers seeking to sell Exchange Securities not being able
to sell such Registrable Securities or such Exchange Securities during that
period unless such action is required by applicable law or unless the Issuers
comply with this Agreement, including without limitation, the provisions of
paragraph 5(k) hereof and the last paragraph of this Section 5.
(c) If (1) a Shelf Registration is filed pursuant to Section 3, or (2) a
Prospectus contained in an Exchange Registration Statement filed pursuant to
Section 2 is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, notify the selling Holders of Registrable Securities, or each
such Par-
14
ticipating Broker-Dealer, as the case may be, their counsel and the managing
underwriters, if any, who have provided the Issuers with their names and
addresses promptly (but in any event within two business days), and confirm such
notice in writing, (i) 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
under the Securities Act (including in such notice a written statement that any
Holder may, upon request, obtain, without charge, one conformed copy of such
Registration Statement or post-effective amendment including financial
statements and schedules, documents incorporated or deemed to be incorporated by
reference and exhibits), (ii) of the issuance by the SEC of any stop order
suspending the effectiveness of a Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus or the initiation
of any proceedings for that purpose, (iii) of the receipt by the Issuers of any
notification with respect to the suspension of the qualification or exemption
from qualification of a Registration Statement or any of the Registrable
Securities or the Exchange Securities to be sold by any Participating
Broker-Dealer for offer or sale in any jurisdiction, or the initiation or
threatening of any proceeding for such purpose, (iv) of the happening of any
event or any information becoming known that makes any statement made in such
Registration Statement or related Prospectus or any document incorporated or
deemed to be incorporated therein by reference untrue in any material respect or
that requires the making of any changes in such Registration Statement,
Prospectus or documents so that, in the case of the Registration Statement, it
will not contain any 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, and that in the case of the Prospectus, it will not
contain any 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,
in the light of the circumstances under which they were made, not misleading,
and (v) of the Issuers' reasonable determination that a post-effective amendment
to a Registration Statement would be appropriate.
(d) If (1) a Shelf Registration is filed pursuant to Section 3, or (2) a
Prospectus contained in an Exchange Registration Statement filed pursuant to
Section 2 is re-
15
quired to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Securities during the Applicable
Period, use their reasonable best efforts to oppose the issuance of any order
suspending the effectiveness of a Registration Statement or of any order
preventing or suspending the use of a Prospectus or suspending the qualification
(or exemption from qualification) of any of the Registrable Securities or the
Exchange Securities to be sold by any Participating Broker-Dealer, for sale in
any jurisdiction, and, if any such order is issued, to use their reasonable best
efforts to obtain the withdrawal of any such order at the earliest possible
moment.
(e) If a Shelf Registration is required pursuant to Section 3, before
filing any Registration Statement or prospectus or any amendment or supplement
thereto (including any document that would be incorporated by reference therein)
furnish counsel for the Holders of Registrable Securities covered by such Shelf
Registration a reasonable opportunity to review copies of all such documents
proposed to be filed.
(f) If (1) a Shelf Registration is filed pursuant to Section 3, or (2) a
Prospectus contained in an Exchange Registration Statement filed pursuant to
Section 2 is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, furnish to each selling Holder of Registrable Securities and
to each such Participating Broker-Dealer who so requests and to counsel and each
managing underwriter, if any, without charge, one conformed copy of the
Registration Statement or Statements and each post-effective amendment thereto,
including financial statements and schedules, and if requested, all documents
incorporated or deemed to be incorporated therein by reference and all exhibits.
(g) If (1) a Shelf Registration is filed pursuant to Section 3, or (2) a
Prospectus contained in an Exchange Registration Statement filed pursuant to
Section 2 is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, deliver to each selling Holder of Registrable Securities, or
each such Participating Broker-Dealer, as the case may be, their counsel, and
the underwriters, if any, without charge, as many copies of the Prospectus or
Prospectuses (including
16
each form of preliminary prospectus) and each amendment or supplement thereto
and any documents incorporated by reference therein as such Persons may
reasonably request; and, subject to the last paragraph of this Section 5, the
Issuers hereby consent to the use of such Prospectus and each amendment or
supplement thereto by each of the selling holders of Registrable Securities or
each such Participating Broker-Dealer, as the case may be, and the underwriters
or agents, if any, and dealers (if any), in connection with the offering and
sale of the Registrable Securities covered by or the sale by Participating
Broker-Dealers of the Exchange Securities pursuant to such Prospectus and any
amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities or any delivery
of a Prospectus contained in the Exchange Registration Statement by any
Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, to use their reasonable best efforts to register or qualify,
and to cooperate with the selling Holders of Registrable Securities or each such
Participating Broker-Dealer, as the case may be, the underwriters, if any, and
their respective counsel in connection with the registration or qualification
(or exemption from such registration or qualification) of such Registrable
Securities for offer and sale under the securities or Blue Sky laws of such
jurisdictions within the United States as any selling Holder, Participating
Broker-Dealer, or the managing underwriters reasonably request in writing;
provided, however, that where Exchange Securities held by Participating
Broker-Dealers or Registrable Securities are offered other than through an
underwritten offering, the Issuers agree to cause their counsel to perform Blue
Sky investigations and file registrations and qualifications required to be
filed pursuant to this Section 5(h); keep each such registration or
qualification (or exemption therefrom) effective during the period such
Registration Statement is required to be kept effective and do any and all other
reasonable acts or things necessary or advisable to enable the disposition in
such jurisdictions of the Exchange Securities held by Participating
Broker-Dealers or the Registrable Securities covered by the applicable
Registration Statement; provided, however, that no Issuer shall be required to
(A) qualify generally to do business in any jurisdiction where it is not then so
qualified, (B) take any action that would subject it to general service of
process in any such jurisdiction where it is not then so subject or (C) subject
itself to taxa-
17
tion in excess of a nominal dollar amount in any such jurisdiction.
(i) If a Shelf Registration is filed pursuant to Section 3, reasonably
cooperate with the selling Holders of Registrable Securities and the managing
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold, which certificates
shall not bear any legends with respect to restrictions on transfer pursuant to
the Securities Act and shall be in a form eligible for deposit with DTC; and
enable such Registrable Securities to be registered in such names as the
managing underwriter or underwriters, if any, or Holders may request.
(j) Use their reasonable best efforts to cause the Registrable Securities
covered by the Registration Statement to be registered with or approved by such
other United States governmental agencies or authorities of the United States as
may be necessary to enable the seller or sellers thereof or the underwriters, if
any, to consummate the disposition of such Registrable Securities, except as may
be required solely as a consequence of the nature of such selling Holder's
business, in which case the Issuers will cooperate in all reasonable respects
with the filing of such Registration Statement and the granting of such
approvals.
(k) If (1) a Shelf Registration is filed pursuant to Section 3, or (2) a
Prospectus contained in an Exchange Registration Statement filed pursuant to
Section 2 is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, upon the occurrence of any event contemplated by paragraph
5(c)(iv) or 5(c)(v) above, as promptly as practicable prepare and (subject to
Section 5(a) and the second paragraph of Section 3(a) above) file with the SEC,
solely at the expense of the Issuers, a supplement or post-effective amendment
to the Registration Statement or a supplement to the related Prospectus or any
document incorporated or deemed to be incorporated therein by reference, or file
any other required document so that, as thereafter delivered to the purchasers
of the Registrable Securities being sold thereunder or to the purchasers of the
Exchange Securities to whom such Prospectus will be delivered by a Participating
Broker-Dealer, any such Prospectus will not contain an untrue statement of a
material fact or omit to state a mate-
18
rial fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
(l) Use their reasonable best efforts to cause the Registrable Securities
covered by a Registration Statement or the Exchange Securities, as the case may
be, to be rated with the appropriate rating agencies, if so reasonably requested
by the Holders of a majority in aggregate principal amount at maturity of
Registrable Securities covered by such Registration Statement or the Exchange
Securities, as the case may be, or the managing underwriters, if any.
(m) Prior to the effective date of the first Registration Statement
relating to the Registrable Securities, (i) provide the Trustee with
certificates for the Registrable Securities in a form eligible for deposit with
DTC and (ii) provide a CUSIP number for the Registrable Securities.
(n) Use their reasonable best efforts to cause all Registrable Securities
covered by such Registration Statement or the Exchange Securities, as the case
may be, to be (i) listed on each securities exchange, if any, on which similar
securities issued by the Issuers are then listed, or (ii) authorized to be
quoted on the National Association of Securities Dealers Automated Quotation
System ("NASDAQ") or the National Market System of NASDAQ if similar securities
of the Issuers are so authorized.
(o) In connection with an underwritten offering of Registrable Securities
pursuant to a Shelf Registration, enter into an underwriting agreement as is
customary in underwritten offerings and take all such other actions as are
reasonably requested by the managing underwriters in order to expedite or
facilitate the registration or the disposition of such Registrable Securities,
and in such connection, (i) make such representations and warranties to the
underwriters, with respect to the business of the Issuers and their subsidiaries
and the Registration Statement, Prospectus and documents, if any, incorporated
or deemed to be incorporated by reference therein, in each case, as are
customarily made by issuers to underwriters in underwritten offerings and
consistent with past practice of the Issuers and their affiliates, and confirm
the same if and when requested; (ii) obtain an opinion of counsel to the Issuers
and updates thereof in form and
19
substance reasonably satisfactory to the managing underwriters, addressed to the
underwriters covering the matters customarily covered in opinions requested in
underwritten offerings and consistent with past practice of the Issuers and
their affiliates and such other matters as may be reasonably requested by
underwriters; (iii) obtain "cold comfort" letters and updates thereof in form
and substance reasonably satisfactory to the managing underwriters from the
independent certified public accountant(s) of the Company (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), addressed to each of the underwriters, such letters to
be in customary form and covering matters of the type customarily covered in
"cold comfort" letters in connection with underwritten offerings and consistent
with past practice of the Issuers and their affiliates and such other matters as
may be reasonably requested by underwriters; and (iv) if an underwriting
agreement is entered into, the same shall contain indemnification provisions and
procedures no less favorable than those set forth in Section 7 hereof (or such
other provisions and procedures acceptable to the Issuers and to the Holders of
a majority in aggregate principal amount at maturity of Registrable Securities
covered by such Registration Statement and the managing underwriters or agents)
with respect to all parties to be indemnified pursuant to said Section. The
above shall be done at each closing under such underwriting agreement, or as and
to the extent required thereunder.
(p) If (1) a Shelf Registration is filed pursuant to Section 3, or (2) a
Prospectus contained in an Exchange Registration Statement filed pursuant to
Section 2 is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, make available for inspection by any selling Holder of such
Registrable Securities being sold, or each such Participating Broker-Dealer, as
the case may be, any underwriter participating in any such disposition of
Registrable Securities, if any, and any attorney, accountant or other agent
retained by any such selling holder or each such Participating Broker-Dealer, as
the case may be, or underwriter (collectively, the "Inspectors"), at the offices
where normally kept, during reasonable business hours, all financial and other
records, pertinent corporate documents
20
and properties of the Issuers (collectively, the "Records"), as shall be
reasonably necessary to enable them to exercise any applicable due diligence
responsibilities, and cause the officers, directors and employees of the Issuers
and their subsidiaries to supply all information in each case reasonably
requested by any such Inspector in connection with such Registration Statement.
Records determined in good faith by the Issuers to be confidential shall not be
disclosed by any Inspector notified of such determination unless (i) the
disclosure of such Records is necessary to avoid or correct a material
misstatement or omission in such Registration Statement, (ii) the release of
such Records is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction or (iii) the information in such Records has been made
generally available to the public in a manner that does not otherwise involve a
breach of any confidentiality obligation by any party. Each selling Holder of
such Registrable Securities and each such Participating Broker-Dealer will be
required to agree that information obtained by it as a result of such
inspections shall be deemed confidential and shall not be used by it as the
basis for any market transactions in the securities of the Issuers unless and
until such is made generally available to the public. Each selling Holder of
such Registrable Securities and each such Participating Broker-Dealer will be
required to further agree that it will, upon learning that disclosure of such
Records is sought in a court of competent jurisdiction, give notice to the
Issuers and allow them at their own expense to undertake appropriate action to
prevent disclosure of the Records deemed confidential.
(q) Provide an indenture trustee for the Registrable Securities or the
Exchange Securities, as the case may be, and cause the Indenture or the trust
indenture provided for in Section 2(a), as the case may be, to be qualified
under the TIA not later than the effective date of the first Registration
Statement relating to the Registrable Securities or the Exchange Offer; and in
connection therewith, cooperate with the trustee under any such indenture and
the holders of the Registrable Securities, to effect such changes to such
indenture as may be required for such indenture to be so qualified in accordance
with the terms of the TIA; and execute, and use their reasonable best efforts to
cause such trustee to execute, all documents as may be required to effect such
changes, and all other forms and documents required to be filed with the SEC to
21
enable such indenture to be so qualified in a timely manner.
(r) Comply in all material respects with all applicable rules and
regulations of the SEC and make generally available to their securityholders
earning statements satisfying the provisions of Section 11(a) of the Securities
Act and Rule 158 thereunder (or any similar rule promulgated under the
Securities Act) no later than 90 days after the end of any 12-month period (i)
commencing at the end of any fiscal quarter in which Registrable Securities are
sold to underwriters in a firm commitment or best efforts underwritten offering
and (ii) if not sold to underwriters in such an offering, commencing on the
first day of the first fiscal quarter of the Issuers after the effective date of
a Shelf Registration Statement, which statements shall cover said 12-month
periods.
(s) If an Exchange Offer or a Private Exchange is to be consummated, upon
delivery of the Registrable Securities by Holders to the Issuers (or to such
other Person as directed by the Issuers) in exchange for the Exchange Securities
or the Private Exchange Securities, as the case may be, the Issuers shall xxxx,
or caused to be marked, on such Registrable Securities that such Registrable
Securities are being cancelled in exchange for the Exchange Securities or the
Private Exchange Securities, as the case may be; in no event shall such
Registrable Securities be marked as paid or otherwise satisfied.
(t) Reasonably cooperate with each seller of Registrable Securities covered
by any Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Securities and their respective counsel in
connection with any filings required to be made with the National Association of
Securities Dealers, Inc. (the "NASD").
(u) Use their reasonable best efforts to take all other steps necessary to
effect the registration of the Registrable Securities covered by a Registration
Statement contemplated hereby.
The Issuers may require each seller of Registrable Securities or
Participating Broker-Dealer as to which any registration is being effected to
furnish to the Issuers such information regarding such seller or Participating
Broker-Dealer and the distribution of such Registrable Securities or Exchange
22
Securities to be sold by such Participating Broker-Dealer, as the case may be,
as the Issuers may, from time to time, reasonably request. The Issuers may
exclude from such registration the Registrable Securities of any seller or
Participating Broker-Dealer who fails to furnish such information within a
reasonable time after receiving such request and, notwithstanding anything to
the contrary in this Agreement, such Seller or Participating Broker Dealer shall
not be entitled to receive any Additional Interest pursuant to Section 4. Each
seller as to which any Shelf Registration is being effected is deemed to agree
to furnish promptly to the Issuers all information required to be disclosed in
order to make the information previously furnished to the Issuers by such seller
not materially misleading.
Each Holder of Registrable Securities agrees by acquisition of such
Registrable Securities or Exchange Securities to be sold by such Holder that,
upon receipt of any notice from the Issuers of the happening of any event of the
kind described in Section 5(c)(ii), 5(c)(iii), 5(c)(iv), or 5(c)(v), such Holder
shall forthwith discontinue disposition of such Registrable Securities covered
by such Registration Statement or Prospectus until such Holder's receipt of the
copies of the supplemented or amended Prospectus contemplated by Section 5(k),
or until it is advised in writing (the "Advice") by the Issuers that the use of
the applicable Prospectus may be resumed, and has received copies of any
amendments or supplements thereto. In the event the Issuers shall give any such
notice, each of the Effectiveness Period and the Applicable Period shall be
extended by the number of days during such periods from and including the date
of the giving of such notice to and including the date when each seller of
Registrable Securities covered by such Registration Statement shall have
received (x) the copies of the supplemented or amended Prospectus contemplated
by Section 5(k) or (y) the Advice.
6. Registration Expenses
(a) All fees and expenses incident to the performance of or compliance with
this Agreement by the Issuers shall be borne by the Issuers whether or not the
Exchange Offer or a Shelf Registration is filed or becomes effective, including,
without limitation, (i) all registration and filing fees (including, without
limitation, (A) fees with respect to filings required to be made with the NASD
in connection with an underwritten offering and (B) fees and expenses of
compliance with state securities or Blue Sky laws (including, without
limitation, reasonable fees and disbursements of counsel in
23
connection with Blue Sky qualifications of the Registrable Securities or
Exchange Securities and determination of the eligibility of the Registrable
Securities or Exchange Securities for investment under the laws of such
jurisdictions in the United States (x) where the holders of Registrable
Securities are located, in the case of the Exchange Securities, or (y) as
provided in Section 5(h), in the case of Registrable Securities or Exchange
Securities to be sold by a Participating Broker-Dealer during the Applicable
Period)), (ii) printing expenses (including, without limitation, expenses of
printing certificates for Registrable Securities or Exchange Securities in a
form eligible for deposit with DTC and of printing prospectuses if the printing
of prospectuses is reasonably requested by the managing underwriters, if any,
or, in respect of Registrable Securities or Exchange Securities to be sold by
any Participating Broker-Dealer during the Applicable Period, by the Holders of
a majority in aggregate principal amount at maturity of the Registrable
Securities included in any Registration Statement or of such Exchange
Securities, as the case may be), (iii) messenger, telephone and delivery
expenses, (iv) fees and disbursements of counsel for the Issuers, (v) fees and
disbursements of all independent certified public accountants referred to in
Section 5(o)(iii) (including, without limitation, the expenses of any special
audit and "cold comfort" letters required by or incidental to such performance),
(vi) rating agency fees, (vii) Securities Act liability insurance, if the
Issuers desire such insurance, (viii) fees and expenses of all other Persons
retained by the Issuers, (ix) internal expenses of the Issuers (including,
without limitation, all salaries and expenses of officers and employees of the
Issuers performing legal or accounting duties), (x) the expense of any annual
audit, (xi) the fees and expenses incurred in connection with the listing of the
securities to be registered on any securities exchange, if applicable and (xii)
the expenses relating to printing, word processing and distributing all
Registration Statements, underwriting agreements, securities sales agreements,
indentures and any other documents necessary in order to comply with this
Agreement; provided, however, that notwithstanding the foregoing, the Issuers
will not be responsible for any underwriter's discounts, commissions or fees
attributable to the sale of Registrable Securities.
(b) In connection with any Shelf Registration hereunder, the Issuers shall
reimburse the Holders of the Registrable Securities being registered in such
registration for the reasonable fees and disbursements of not more than one
counsel chosen by the Holders of a majority in aggregate principal amount at
maturity of the Registrable Securities to be included
24
in such Registration Statement, subject to the reasonable approval of the
Issuers. Such Holders shall be responsible for any and all other out-of-pocket
expenses of the Holders of Registrable Securities incurred in connection with
the registration of the Registrable Securities.
7. Indemnification
The Issuers agree to indemnify and hold harmless each Holder of Registrable
Securities and each Participating Broker-Dealer selling Exchange Securities
during the Applicable Period, the officers and directors of each such person,
and each person, if any, who controls any such person within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act (each,
a "Participant"), from and against any and all losses, claims, damages and
liabilities (including, without limitation, the reasonable legal fees and other
expenses actually incurred in connection with any suit, action or proceeding or
any claim asserted) caused by any untrue statement or alleged untrue statement
of a material fact contained in any Registration Statement (or any amendment
thereto) or Prospectus (as amended or supplemented if the Issuers shall have
furnished any amendments or supplements thereto) or any preliminary prospectus,
or caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with information relating to any Participant furnished to
the Company in writing by such Participant expressly for use therein; provided,
however, that the foregoing indemnity with respect to any preliminary prospectus
shall not inure to the benefit of any Participant (or to the benefit of any
person controlling such Participant) from whom the person asserting any such
losses, claims, damages or liabilities purchased Registrable Securities or
Exchange Securities if such untrue statement or omission or alleged untrue
statement or omission made in such preliminary prospectus is eliminated or
remedied in the related Prospectus (as amended or supplemented if the Issuers
shall have furnished any amendments or supplements thereto) and a copy of the
related Prospectus (as so amended or supplemented) shall not have been furnished
to such person at or prior to the sale of such Registrable Securities or
Exchange Securities, as the case may be, to such person.
25
Each Participant will be required to agree, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers and each
person who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Issuers to each Participant, but only with
reference to information relating to such Participant furnished to the Company
in writing by such Participant expressly for use in any Registration Statement
or Prospectus, any amendment or supplement thereto, or any preliminary
prospectus. The liability of any Participant under this paragraph shall in no
event exceed the proceeds received by such Participant from sales of Registrable
Securities giving rise to such obligations.
If any suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any person
in respect of which indemnity may be sought pursuant to either of the two
preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the
reasonable fees and expenses actually incurred by such counsel related to such
proceeding; provided, however, that the failure to so notify the Indemnifying
Person shall not relieve it of any obligation or liability which it may have
hereunder or otherwise (unless and only to the extent that such failure results
in the loss or compromise of any rights or defenses). In any such proceeding,
any Indemnified Person shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such Indemnified
Person unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and
26
that all such fees and expenses shall be reimbursed as they are incurred. Any
such separate firm for the Participants and such control persons of Participants
shall be designated in writing by Participants who sold a majority in interest
of Registrable Securities sold by all such Participants and any such separate
firm for the Issuers, their directors, officers and such control persons of the
Issuers shall be designated in writing by the Issuers. The Indemnifying Person
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
non-appealable judgment for the plaintiff, the Indemnifying Person agrees to
indemnify any Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing sentence,
if at any time an Indemnified Person shall have requested an Indemnifying Person
to reimburse the Indemnified Person for reasonable fees and expenses actually
incurred by counsel as contemplated by the third sentence of this paragraph, the
Indemnifying Person agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such Indemnifying Person of the
aforesaid request and (ii) such Indemnifying Person shall not have reimbursed
the Indemnified Person in accordance with said sentence prior to the date of
such settlement to the extent it considers such request to be reasonable or
provided written notice to the Indemnified Person to substantiate the
non-payment of the unpaid balance as reasonable. No Indemnifying Person shall,
without the prior written consent of the Indemnified Person, effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Person, unless such settlement includes an
unconditional release of such Indemnified Person from all liability on claims
that are the subject matter of such proceeding.
If the Indemnification provided for in the first and second paragraphs of
this Section 7 is unavailable to an Indemnified Person in respect of any losses,
claims, damages or liabilities referred to therein, then each Indemnifying
Person under such paragraph, in lieu of indemnifying such Indemnified Person
thereunder, shall contribute to the amount paid or payable by such Indemnified
Person as a result of such losses, claims, damages or liabilities in such
proportion as is appropriate to reflect the relative fault of the Issuers on the
one hand and the Participants on the other in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable
27
considerations. The relative fault of the Issuers on the one hand and the
Participants on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Issuers or by the Participants and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The parties agree that it would not be just and equitable if contribution
pursuant to this Section 7 were determined by pro rata allocation (even if the
Participants were treated as one entity for such purpose) or by any other method
of allocation that does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid or payable
by an Indemnified Person as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any reasonable legal or
other expenses actually incurred by such Indemnified Person in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, in no event shall a Participant be required to
contribute any amount in excess of the amount by which proceeds received by such
Participant from sales of Registrable Securities exceeds the amount of any
damages that such Participant has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
The indemnity and contribution agreements contained in this Section 7 will
be in addition to any liability which the Indemnifying Persons may otherwise
have to the Indemnified Persons referred to above.
8. Rule 144 and Rule 144A
The Issuers covenant that they will file the reports required to be filed
by them under the Securities Act and the Exchange Act in a timely manner and, if
at any time the Issuers are not required to file such reports, they will, upon
the request of any Holder of Registrable Securities, make publicly available
other information so long as necessary to permit sales pursuant to Rule 144 and
Rule 144A under the Securities Act. The Issuers further covenant that they will
take such
28
further action as any Holder of Registrable Securities may reasonably request,
all to the extent required from time to time to enable such holder to sell
Registrable Securities without registration under the Securities Act within the
limitation of the exemptions provided by (a) Rule 144 and Rule 144A under the
Securities Act, as such Rules may be amended from time to time, or (b) any
similar rule or regulation hereafter adopted by the SEC.
9. Underwritten Registrations
If any of the Registrable Securities covered by any Shelf Registration are
to be sold in an underwritten offering, the investment banker or investment
bankers and manager or managers that will manage the offering will be selected
by the Holders of a majority in aggregate principal amount at maturity of such
Registrable Securities included in such offering, subject to the reasonable
approval of the Issuers.
No Holder of Registrable Securities may participate in any underwritten
registration hereunder unless such Holder (a) agrees to sell such Holder's
Registrable Securities on the basis provided in any underwriting arrangements
approved by the Issuers and the Holders of a majority in aggregate principal
amount at maturity of the Registrable Securities included in such offering and
(b) completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
10. Miscellaneous
(a) No Inconsistent Agreements. The Issuers have not, as of the date
hereof, entered and shall not, after the date of this Agreement, enter into any
agreement with respect to any of their securities that is inconsistent with the
rights granted to the Holders of Registrable Securities in this Agreement or
otherwise conflicts with the provisions hereof.
(b) Adjustments Affecting Registrable Securities. Except as may be required
by the Indenture, the Issuers shall not, directly or indirectly, take any action
with respect to the Registrable Securities as a class that would adversely
affect the ability of the Holders of Registrable Securities to include such
Registrable Securities in a registration undertaken pursuant to this Agreement.
29
(c) Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given,
unless the Issuers have obtained the written consent of Holders of at least a
majority of the then outstanding aggregate principal amount at maturity of
Registrable Securities. Notwithstanding the foregoing, a waiver or consent to
depart from the provisions hereof with respect to a matter that relates
exclusively to the rights of Holders of Registrable Securities whose securities
are being sold pursuant to a Registration Statement and that does not directly
or indirectly affect, impair, limit or compromise the rights of other Holders of
Registrable Securities may be given by Holders of at least a majority in
aggregate principal amount at maturity of the Registrable Securities being sold
by such Holders pursuant to such Registration Statement, provided that the
provisions of this sentence may not be amended, modified or supplemented except
in accordance with the provisions of the immediately preceding sentence.
(d) Notices. All notices and other communications (including without
limitation any notices or other communications to the Trustee) provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day air courier or telecopier:
(i) if to a Holder of Registrable Securities, at the most current address
given by the Trustee to the Issuers; and
(ii) if to the Issuers, c/o FrontierVision Holdings, L.P., 0000 Xxxxx
Xxxxxxxx Xxxxxx, Xxxxx X-000, Xxxxxx, XX. 00000 (telecopy: (000) 000-0000),
Attention: Xxxx X. Xxx, Senior Vice President and Chief Financial Officer.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five business days after
being deposited in the mail, postage prepaid, if mailed; one business day after
being timely delivered to a next-day air courier; and when telephonic
confirmation of receipt is obtained, if telecopied.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee under the
Indenture at the address specified in such Indenture.
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(e) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties, including
without limitation and without the need for an express assignment, subsequent
Holders of Registrable Securities; provided, that, with respect to the indemnity
and contribution agreements in Section 7, each Holder of Registrable Securities
subsequent to the Initial Purchasers shall be bound by the terms thereof if such
Holder elects to include Registrable Securities in a Shelf Registration;
provided, however, that this Agreement shall not inure to the benefit of or be
binding upon a successor or assignee of a Holder unless and to the extent such
successor or assignee holds Registrable Securities.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(i) Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated, and the parties hereto shall use
their reasonable best efforts to find and employ an alternative means to achieve
the same or substantially the same result as that contemplated by such term,
provision, covenant or restriction. It is hereby stipulated and declared to be
the intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
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(j) Entire Agreement. This Agreement, together with the Purchase Agreement,
is intended by the parties as a final expression of their agreement, and is
intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein and therein.
(k) Securities Held by the Issuers or Their Affiliates. Whenever the
consent or approval of holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities held by the Issuers or
any of their affiliates (as such term is defined in Rule 405 under the
Securities Act) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
(l) Subsidiary Guarantor a Party. Immediately upon the designation of any
subsidiary of the Company as a Guarantor (as defined in the Indenture), the
Company shall cause such Guarantor to guarantee the obligations of the Issuers
hereunder (including, without limitation, the obligation to pay Additional
Interest, if any, pursuant to the terms of Section 4 hereof), by executing and
delivering to the Initial Purchasers an appropriate amendment to this Agreement.
11. Additional Agreements
From and after the effectiveness of any Registration Statement with respect
to the Securities, the Exchange Securities or the Private Exchange Securities,
each of the Issuers will, for the benefit of X.X. Xxxxxx Securities Inc.
("JPMS") and for so long as any of the Securities, Exchange Securities or
Private Exchange Securities are outstanding and JPMS or any of its respective
affiliates (as defined in the Securities Act) is required by applicable law to
deliver a prospectus in connection with sales of the Securities, Exchange
Securities or Private Exchange Securities (the "Undertaking Period"), (i) (a)
periodically amend each Registration Statement covering Securities, Exchange
Securities or Private Exchange Securities so that the information contained in
such Registration Statement complies with the requirements of Section 10(a)
under the Securities Act; (b) amend each such Registration Statement within 90
days following the end of the Company's most recent fiscal year so that the
information contained in such Registration Statement complies with the
requirements of Section 10(a) under the Securities Act; (c) if requested by
JPMS, within 45 days following the end of the Company's most recent fiscal
quarter (except for the fourth fiscal quarter of any fiscal year), file
32
a supplement to the Prospectus included in each such Registration Statement
which sets forth the consolidated financial results of the Issuers for the
previous quarter; and (d) promptly amend each such Registration Statement or
supplement each such Prospectus when reasonably requested by JPMS or when
necessary to reflect pro forma financial information set forth in the most
recent Form 8-K filed by the Company or to reflect any material changes in the
information provided therein or to reflect the occurrence of any fact or
information becoming known that should be set forth in an amendment to each such
Registration Statement or a supplement to each such Prospectus so that each such
Prospectus when delivered to a purchaser will comply with applicable law;
provided, however, that (x) prior to filing any amendment to any such
Registration Statement or any supplement to any such Prospectus, the Issuers
will furnish for a reasonable period of time prior to the proposed filing
thereof to each of Xxxxxx Xxxxxx & Xxxxxxx, acting as counsel to JPMS, and JPMS
copies of all such documents proposed to be filed, which documents will be
subject to the review of such counsel and JPMS, (y) the Issuers will not file
any amendment to any such Registration Statement or any supplement to any such
Prospectus to which such counsel or JPMS shall reasonably object, and (z) the
Issuers will provide such counsel and JPMS with such number of copies of each
amendment or supplement filed as JPMS shall reasonably request; and (ii)
indemnify JPMS, and if applicable contribute to JPMS, in a manner substantially
identical to that specified in Section 7 hereof in connection with sales of the
Securities by Participants.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
FRONTIERVISION HOLDINGS, L.P.
By: FrontierVision Partners, L.P.,
its general partner
By: FVP GP, L.P.,
its general partner
By: FrontierVision Inc.,
its general partner
By:
Title:
FRONTIERVISION HOLDINGS CAPITAL II
CORPORATION
By:
Title:
X.X. XXXXXX SECURITIES INC.
CHASE SECURITIES INC.
By: X.X. Xxxxxx Securities Inc.
By:
Title:
