EXHIBIT 10.11
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") dated as of
March 5, 1998 is entered into by and among American Cellular Corporation, a
Delaware corporation (the "Company"), and each of the parties listed on Exhibit
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A hereto (the "Stockholders"). As used in this Agreement, the defined term
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"Company" shall refer to both American Cellular Corporation and any successor
entity thereto.
RECITALS
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A. The Stockholders own shares of the Company's common stock, par
value $.01 per share (the "Common Stock").
B. The Company and the Stockholders desire to provide for the
registration under the Securities Act of 1933, as amended, of the Registrable
Securities (as defined below), all according to the terms of this Agreement.
AGREEMENT
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1. Certain Definitions.
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As used in this Agreement, the following terms shall have the
following respective meanings:
(a) "Common Shares" shall mean any and all series or classes of
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the Common Stock of the Company, whether voting or non-voting.
(b) "Exchange Act" shall mean the Securities Act of 1934, as
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amended.
(c) "Initial Public Offering" shall mean the initial sale of
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shares of Common Shares to the public pursuant to a registration statement under
the Securities Act which has been declared effective by the SEC (other than a
registration statement on Form S-8 or Form S-4 or any successor to such Form, or
any other similar form) which results in an active trading market in the Common
Shares.
(d) "NASD" shall mean the National Association of Securities
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Dealers, Inc.
(e) "Prospectus" shall mean the prospectus included in any
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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 by all other amendments
and supplements to the prospectus, including post-effective amendments and all
material incorporated by reference in such prospectus.
(f) The terms "Register", "Registered" and "Registration" refer
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to a registration effected by preparing and filing a registration statement in
compliance with the Securities Act ("Registration Statement"), and the
declaration or ordering of the effectiveness of such Registration Statement.
(g) "Registrable Securities" shall mean all Common Shares issued
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to the Stockholders and any securities of the Company which may be issued or
distributed with respect to, or in exchange or substitution for, or upon
conversion into Common Shares pursuant to a stock dividend, stock split or other
distribution, merger, consolidation, recapitalization or reclassification or
otherwise; provided, however, that any Registrable Securities shall cease to be
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Registrable Securities when (i) a Registration Statement with respect to the
sale of such Registrable Securities has been declared effective under the
Securities Act and such Registrable Securities have been disposed of in
accordance with the plan of distribution set forth in such Registration
Statement, (ii) such Registrable Securities are distributed pursuant to Rule 144
(or any similar provision then in force) under the Securities Act, or (iii) such
Registrable Securities shall have been otherwise transferred and new
certificates for them not bearing a legend restricting further transfer under
the Securities Act shall have been delivered by the Company; and provided,
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further, that any securities that have ceased to be Registrable Securities
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cannot thereafter become Registrable Securities and any security that is issued
or distributed in respect of securities that have ceased to be Registrable
Securities is not a Registrable Security.
(h) "Registration" shall mean a Demand Registration or a
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Piggyback Registration.
(i) "Registration Statement" shall mean any registration
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statement of the Company filed with the SEC which covers any of the Registrable
Securities, including the Prospectus, amendments and supplements to such
registration statement and all exhibits and all material incorporated by
reference in such registration statement.
(j) "SEC" shall mean the Securities and Exchange Commission.
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(k) "Securities Act" shall mean the Securities Act of 1933, as
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amended, or any similar federal statute, and the rules and regulations of the
SEC thereunder, all as the same shall be in effect at the time.
(l) "Stockholders Agreement" shall mean the Stockholders
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Agreement dated as of the date hereof by and among the Company and the
Stockholders.
(m) "Underwritten Registration" or "Underwritten Offering" shall
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mean a sale of securities of the Company to an underwriter for reoffering to the
public.
2. Demand Registration.
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(a) Right to Demand; Demand Notices. Subject to the terms of
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this Agreement, in the event the Company shall receive from the Stockholders
holding Common Shares representing an aggregate of at least 10% of the then
outstanding Registrable Securities (the "Initiating Holders") at any time and
from time to time commencing after an Initial Public Offering, a written request
that the Company effect a Registration (a "Demand Registration"), the
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reasonably anticipated aggregate price to the public of which would be at least
$35,000,000, the Company shall (a) promptly give written notice of the proposed
Registration to all other Stockholders, and (b) as soon as practicable, use its
best efforts to effect Registration of the Registrable Securities specified in
such request, together with any Registrable Securities of any Stockholder
joining in such request as are specified in a written request given within
twenty (20) days after written notice from the Company of the proposed
Registration. Notwithstanding the foregoing, the Company shall not be obligated
to take any action to effect any such Registration pursuant to this Section 2(a)
(i) unless Stockholders holding Common Shares representing an aggregate of at
least 34% of the Registrable Securities then outstanding elect to participate in
such Demand Registration, or (ii) after the Company has effected three (3) such
Registrations pursuant to this Section 2(a) and such Registrations have been
declared effective; provided, however, that one Stockholder may not request more
than one Demand Registration that is effected.
(b) Company's Right to Defer Registration. If the Company is
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requested to effect a Demand Registration and the Company furnishes to the
Initiating Holder a copy of a Board resolution certified by the secretary of the
Company stating that in the good faith judgment of the Board it would be adverse
to the Company and its Stockholders for such registration statement to be filed
on or before the date such filing would otherwise be required under this Section
2, the Company shall have the right to defer such filing for a period of not
more than ninety (90) days after the Company receives the registration request
from the Initiating Holder. If the Company so postpones the filing of a
registration statement, and if the Initiating Holder within thirty (30) days
after receipt of the notice of postponement advises the Company in writing that
it has determined to withdraw such request for Demand Registration, then such
Demand Registration shall be deemed to be withdrawn and such request shall be
deemed not to have been exercised for purposes of determining whether the
Initiating Holder has exhausted its single permitted request.
(c) Registration Statement Form. Registrations under this
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Section 2 shall be on an appropriate SEC registration form (i) that is selected
by the Company and is reasonably acceptable to the Initiating Holder and (ii)
that permits the disposition of such Registrable Securities in accordance with
the intended method or methods of disposition specified in the Initiating
Holder's request for such Demand Registration.
(d) Effective Registration Statement. The Company shall be
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deemed to have effected a Demand Registration if: (i) the SEC declares effective
the Registration Statement relating to such Demand Registration; provided,
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however, that no Demand Registration shall be deemed to have been effected if
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(x) such registration, after it has become effective, is interfered with by any
stop order, injunction or other order or requirement of the SEC or other
governmental agency or court by reason of an act or omission by the Company or
(y) the conditions to closing specified in the purchase agreement or
underwriting agreement entered into in connection with such registration are not
satisfied because of an act or omission by the Company (other than a failure of
the Company or any of its representatives to execute or deliver any closing
certificate by reason of facts or circumstances not within the control of the
Company or such representatives); or (ii) at any time after an Initiating Holder
requests a Demand Registration and prior to the effectiveness of the
Registration Statement, the preparation of such Registration Statement is
discontinued or such Registration Statement is withdrawn or
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abandoned at the request of the holders of a majority of Registrable Securities
sought to be registered in such Registration Statement (unless such Stockholders
have paid to the Company in full the Registration Expenses, defined in Section
6, in connection with such Registration Statement).
(e) Priority on Demand Registrations. If the managing
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underwriter or agent, if any, of a Demand Registration (or, in the case of a
Demand Registration not being underwritten, the Initiating Holder), advises the
Company in writing that in its opinion the number of securities requested to be
included in such Demand Registration exceeds the number which can be sold in the
offering covered by such Demand Registration without a significant adverse
effect on the price, timing or distribution of the securities offered, the
Company shall include in such registration only the number of securities that,
in the opinion of such underwriter or agent (or the Initiating Holder, as the
case may be), can be sold without a significant adverse effect on the price,
timing or distribution of the securities offered, selected pro rata among the
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Stockholders which have requested to be included in such Demand Registration
based upon their relative ownership of Registrable Securities prior to such
Registration, to the extent necessary to reduce the total amount of securities
to be included in such offering to the amount recommended by such underwriters
or agent, if any (or the Initiating Holder, as the case may be). The Company and
other Stockholders may also include securities in such Registration if, but only
if, such underwriter or agent (or the Initiating Holder, as the case may be)
concludes that such inclusion will not interfere with the successful marketing
of all the Registrable Securities requested to be included in such registration.
(f) Selection of Underwriters. If any offering pursuant to a
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Demand Registration involves an Underwritten Offering, the Initiating Holder
shall have the right to select the managing underwriter or underwriters to
administer the offering. Any managing underwriter must be a firm of nationally
recognized standing and reasonably satisfactory to the Company.
3. Piggyback Registrations.
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(a) Participation. Subject to paragraph (b) and (e) below and
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Section 9, if at any time after the date of this Agreement the Company files a
Registration Statement (other than a "universal shelf" Registration Statement
on Form S-3, registration on Form S-4 or S-8 or any successor to such forms, or
any other registration of securities as it relates to an offering and sale to
management of the Company pursuant to any employee stock plan or other employee
benefit plan arrangement) with respect to an offering that includes any shares
of Common Stock, then the Company shall give prompt notice (the "Piggyback
Notice") to the Stockholders, and the Stockholders shall be entitled to include
in such Registration Statement any or all of the Registrable Securities held by
them (the "Piggyback Registration"). The Piggyback Notice shall offer the
Stockholders the opportunity to register such number of shares of Registrable
Securities as each Stockholder may request and shall set forth (i) the
anticipated filing date of such Registration Statement and (ii) the number of
shares of Common Stock that is proposed to be included in such Registration
Statement. The Company shall include in such Registration Statement any shares
of Registrable Securities for which it has received written requests to register
such shares within fifteen (15) days after the Piggyback Notice has been given.
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(b) Underwriter's Cutback. Notwithstanding the foregoing, if a
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Piggyback Registration pursuant to this Section 3 involves an Underwritten
Offering and the managing underwriter or underwriters of such proposed
Underwritten Offering delivers an opinion to the Stockholders that the total or
kind of securities which such Stockholders and any other persons or entities
intend to include in such offering would be reasonably likely to adversely
affect the price, timing or distribution of the securities offered in such
offering, then the Company shall include in such Piggyback Registration (i)
first, 100% of the securities the Company proposes to sell, and (ii) second, to
the extent of the amount of securities which all other Stockholders have
requested to be included in such Piggyback Registration, which, in the opinion
of the managing underwriter or underwriters, can be sold without the adverse
effect referred to above, such amount to be allocated pro rata among all other
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Stockholders based upon their relative ownership of Registrable Securities prior
to such Registration.
(c) Company Control. The Company may decline to file a
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Registration Statement after giving the Piggyback Notice, or withdraw a
Registration Statement after filing and after such Piggyback Notice (but prior
to the effectiveness of the Registration Statement), provided that the Company
shall promptly notify each Stockholder in writing of any such action and
provided further that the Company shall bear all reasonable expenses incurred by
the Stockholders or otherwise in connection with the withdrawn Registration
Statement.
(d) No Effect on Demand Registrations. No Piggyback Registration
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effected under this Section 3 shall be deemed to have been effected pursuant to
Section 2 or shall relieve the Company of its obligation to effect any Demand
Registration upon request under Section 2.
(e) Initial Public Offering. No Stockholder shall be entitled to
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include any Registrable Securities in a Registration Statement relating to the
Initial Public Offering unless at least (x) five members of the Board of
Directors of the Company, or (y) a majority of such Board of Directors,
whichever is greater, shall approve the inclusion.
4. Restrictions on Public Sale by the Company
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The Company agrees not to effect any public sale or distribution of
any securities the same as or similar to those being registered by the Company,
or any securities convertible into or exchangeable or exercisable for such
securities, during the seven (7) day period prior to, and during the ninety (90)
day period (or such longer period of up to 180 days as may be required by such
underwriter) beginning with, the effective date of a Registration Statement
filed under Section 2 or 3 or the commencement of the public distribution of
securities to the extent timely notified in writing by a Stockholder or the
managing underwriters (except as part of such registration, if permitted, or
pursuant to a "universal shelf" Registration Statement, registrations on Forms
S-4 or S-8 or any successor to such forms, or any other registration of
securities for offering and sale to management of the Company pursuant to any
employee stock plan or other employee benefit plan arrangement).
5. Registration Procedures. In connection with the Company's
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Registration obligations pursuant to Sections 2 and 3, the Company shall use its
best efforts to effect such Registration to permit the sale of such Registrable
Securities in accordance with the
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intended method or methods of distribution thereof. The Company shall as
expeditiously as possible:
(a) prepare and file with the SEC a Registration Statement or
Registration Statements relating to the applicable Demand Registration or
Piggyback Registration, including all exhibits and financial statements required
by the SEC to be filed therewith, and use its best efforts to cause such
Registration Statement to become effective; provided that before filing a
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Registration Statement or Prospectus or any amendments or supplements thereto,
the Company will furnish to the holders of Registrable Securities covered by
such Registration Statement and their counsel and to each underwriter or agent,
if any, copies of such Registration Statement or Prospectus substantially in the
form proposed to be filed at least five (5) business days, with respect to any
Demand Registration, or two (2) business days, with respect to any Piggyback
Registration, prior to the filing date and copies of any amendments or
supplements substantially in the form proposed to be filed with respect to a
Demand Registration at least two (2) business days prior to the filing date,
which documents will be subject to the reasonable review of such Stockholders
and underwriter or agent and their respective counsel, and the Company will not
file any Registration Statement or Prospectus or, with respect to any Demand
Registration, any amendment or supplement thereto (including such documents
incorporated by reference) to which the majority of the Stockholders covered by
such Registration Statement shall reasonably object; and provided, further, that
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the Company will furnish copies of any amendments or supplements in the form
filed with respect to any Piggyback Registration, simultaneously with the filing
of such amendments or supplements;
(b) prepare and file with the SEC such amendments and post-
effective amendments to the Registration Statement as may be necessary to keep
the Registration Statement effective for a period of not less than 180 days (or
such shorter period which will terminate when all Registrable Securities covered
by such Registration Statement have been sold or withdrawn), or, if such
Registration Statement relates to an Underwritten Offering, such longer period
as in the opinion of counsel for the underwriters a Prospectus is required by
law to be delivered in connection with sales of Registrable Securities by an
underwriter or dealer; cause the Prospectus to be supplemented by any required
Prospectus 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,
the Exchange Act, and the rules and regulations promulgated thereunder 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 selling Stockholders and the managing underwriters,
if any, and (if requested) confirm such advice in writing, as soon as
practicable after notice thereof is received by the Company: (i) when the
Registration Statement or any amendment thereto has been filed or becomes
effective, the Prospectus or any amendment or supplement to the Prospectus has
been filed, and, to furnish such selling Stockholders and managing underwriters
with copies thereof, (ii) of any request by the SEC for amendments or
supplements to the Registration Statement or the Prospectus or for additional
information, (iii) of the issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement or any order preventing or
suspending the use of any preliminary Prospectus or Prospectus or the initiation
or threatening of any proceedings for such purposes, (iv) if at any time the
representations and
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warranties of the Company contemplated by paragraph (m) below cease to be true
and correct and (v) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Registrable Securities for
offering or sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose;
(d) promptly notify the selling Stockholders and the managing
underwriters, if any, at any time prior to nine months after the time of issue
of the Prospectus, when the Company becomes aware of the happening of any event
as a result of which the Prospectus included in such Registration Statement (as
then in effect) contains any untrue statement of a material fact or omits to
state a material fact necessary to make the statements therein (in the case of
the Prospectus and any preliminary Prospectus, in light of the circumstances
under which they were made) when such Prospectus was delivered not misleading
or, if for any other reason it shall be necessary during such time period to
amend or supplement the Prospectus in order to comply with the Securities Act
and, in either case as promptly as practicable thereafter, prepare and file with
the SEC, and furnish without charge to the selling Stockholders and the managing
underwriters, if any, a supplement or amendment to such Prospectus which will
correct such statement or omission or effect such compliance;
(e) make every reasonable effort to obtain the withdrawal of any
stop order or other order suspending the use of any preliminary Prospectus or
Prospectus or suspending any qualification of the Registrable Securities;
(f) if requested by the managing underwriter or underwriters or a
holder of Registrable Securities being sold in connection with an Underwritten
Offering, promptly incorporate in a Prospectus supplement or post-effective
amendment such information as the managing underwriters and the holders of a
majority of the Registrable Securities being sold agree should be included
therein relating to the plan of distribution with respect to such Registrable
Securities, including, without limitation, information with respect to the
number of Registrable Securities being sold to such underwriters, the purchase
price being paid therefor by such underwriters and with respect to any other
terms of the Underwritten (or best efforts underwritten) Offering of the
Registrable Securities to be sold in such offering; and make all required
filings of such Prospectus supplement or post-effective amendment as soon as
notified of the matters to be incorporated in such Prospectus supplement or
post-effective amendment;
(g) furnish to each selling Stockholder and each managing
underwriter, without charge, one executed copy and as many conformed copies as
they may reasonably request, of the Registration Statement and any post-
effective amendment thereto, including financial statements and schedules, all
documents incorporated therein by reference and all exhibits (including those
incorporated by reference);
(h) deliver to each selling Stockholder and the underwriters, if
any, without charge, as many copies of the Prospectus (including each
preliminary Prospectus) and any amendment or supplement thereto as such Persons
may reasonably request (it being understood that the Company consents to the use
of the Prospectus or any amendment or supplement thereto by each of the selling
Stockholders and the underwriters, if any, in connection with the offering and
sale of the Registrable Securities covered by the Prospectus or any amendment or
supplement thereto) and such other documents as such selling Stockholder
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may reasonably request in order to facilitate the disposition of the Registrable
Securities by such Stockholder;
(i) on or prior to the date on which the Registration Statement
is declared effective, use its best efforts to register or qualify, and
cooperate with the selling Stockholder, the managing underwriter or agent, if
any, and their respective counsel in connection with the registration or
qualification of such Registrable Securities for offer and sale under the
securities or blue sky laws of each state and other jurisdiction of the United
States as any such seller, underwriter or agent, if any, reasonably requests in
writing and do any and all other acts or things reasonably necessary or
advisable to keep such registration or qualification in effect for so long as
such Registration Statement remains in effect and so as to permit the
continuance of sales and dealings therein for as long as may be necessary to
complete the distribution of the Registrable Securities covered by the
Registration Statement; provided that the Company will not be required to
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qualify generally to do business in any jurisdiction where it is not then so
qualified or to take any action which would subject it to general service of
process in any such jurisdiction where it is not then so subject;
(j) cooperate with the selling Stockholders and the managing
underwriter or agent, if any, to facilitate the timely preparation and delivery
of certificates representing Registrable Securities to be sold and not bearing
any restrictive legends; and enable such Registrable Securities to be in such
denominations and registered in such names as the managing underwriters may
request at least two business days prior to any sale of Registrable Securities
to the underwriters;
(k) use its best efforts to cause the Registrable Securities
covered by the applicable Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
to enable the seller or sellers thereof or the underwriters, if any, to
consummate the disposition of such Registrable Securities;
(l) not later than the effective date of the applicable
Registration, provide a CUSIP number for all Registrable Securities and provide
the applicable trustee or transfer agent with printed certificates for the
Registrable Securities which are in a form eligible for deposit with the
transfer agent selected by the Company;
(m) make such representations and warranties to the Stockholders
of Registrable Securities being registered, and the underwriters or agents, if
any, in form, substance and scope as are customarily made by issuers in primary
underwritten public offerings;
(n) enter into such customary agreements (including an
underwriting agreement) and take all such other actions as the majority of the
Stockholders of any Registrable Securities being sold or the managing
underwriter or agent, if any, reasonably request in order to expedite or
facilitate the Registration and disposition of such Registrable Securities;
(o) obtain for delivery to the Stockholders of Registrable
Securities being registered and to the underwriter or agent, if any, an opinion
or opinions from counsel for the Company, upon consummation of the sale of such
Registrable Securities to the underwriters (the "Closing Date") in customary
form and in form, substance and scope reasonably satisfactory
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to such Stockholders, underwriters or agents and their counsel;
(p) obtain for delivery to the Company and the underwriter or
agent, if any, with copies to the Stockholders, a cold comfort letter from the
Company's independent public accountants in customary form and covering such
matters of the type customarily covered by cold comfort letters as the managing
underwriter or the Stockholders of a majority of the Registrable Securities
being sold reasonably request, dated the effective date of the Registration
Statement and brought down to the Closing Date;
(q) cooperate with each seller of Registrable Securities and each
underwriter or agent, 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 NASD;
(r) make available for inspection by a representative of the
Stockholders of a majority of the Registrable Securities, any underwriter
participating in any disposition pursuant to such Registration, and any attorney
or accountant retained by such Stockholders or underwriter, all financial and
other records, pertinent corporate documents and properties of the Company, and
cause the Company's officers, directors and employees to supply all information
reasonably requested by any such representative, underwriter, attorney or
accountant in connection with such Registration; provided that any records,
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information or documents that are designated by the Company in writing as
confidential shall be kept confidential by such Persons unless disclosure of
such records, information or documents is required by law;
(s) use its best efforts to comply with all applicable rules and
regulations of the SEC and make generally available to its security holders, as
soon as reasonably practicable (but not more than eighteen months) after the
effective date of the Registration Statement, an earnings statement satisfying
the provisions of Section 11(a) of the Securities Act and the rules and
regulations promulgated thereunder;
(t) as promptly as practicable after filing with the SEC of any
document which is incorporated by reference into the Registration Statement or
the Prospectus, provide copies of such document to counsel for the selling
Stockholders and to the managing underwriters, if any;
(u) provide and cause to be maintained a transfer agent and
registrar for all Registrable Securities covered by such Registration Statement
from and after a date not later than the effective date of such Registration
Statement; and
(v) use its best efforts to list (if such Registrable Securities
are not already listed) all Registrable Securities covered by such Registration
Statement on The New York Stock Exchange, the American Stock Exchange or the
NASDAQ National Market.
The Company may require each seller of Registrable Securities as
to which any Registration is being effected to furnish to the Company any
information regarding the distribution of such securities and any other
information relating to such Stockholder and its ownership of Registrable
Securities as the Company may from time to time reasonably request in writing.
Each Stockholder agrees to furnish such information to the Company and to
cooperate
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with the Company as necessary to enable the Company to comply with the
provisions of this Agreement.
Each Stockholder agrees by acquisition of such Registrable
Securities that, upon receipt of any notice from the Company of the happening of
any event of the kind described in paragraph (d), such Stockholder will
forthwith discontinue disposition of Registrable Securities pursuant to such
Registration Statement until such Stockholder's receipt of the copies of the
supplemented or amended Prospectus contemplated by paragraph (d), or until it is
advised in writing by the Company that the use of the Prospectus may be resumed,
and has received copies of any additional or supplemental filings which are
incorporated by reference in the Prospectus, and, if so directed by the Company,
such Stockholder will deliver to the Company (at the Company's expense) all
copies, other than permanent file copies then in such Stockholder's possession,
of the Prospectus covering such Registrable Securities current at the time of
receipt of such notice.
6. Registration Expenses. Except as provided in Section 2(d), the
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Company shall bear all expenses incident to the Company's performance of or
compliance with this Agreement, including without limitation (a) all
registration and filing fees, and any other fees and expenses associated with
filings required to be made with any stock exchange, the SEC and 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), (b) all fees and expenses of compliance with state securities or blue
sky laws (including fees and disbursements of counsel for the underwriters or
selling Stockholders in connection with blue sky qualifications of the
Registrable Securities and determination of their eligibility for investment
under the laws of such jurisdictions as the managing underwriters or the
majority of the Stockholders of the Registrable Securities being sold may
designate), (c) all printing and related messenger and delivery expenses
(including expenses of printing certificates for the Registrable Securities in a
form eligible for deposit with the transfer agent selected by the Company and of
printing prospectuses), (d) all fees and disbursements of counsel for the
Company and of all independent certified public accountants of the Company
(including the expenses of any special audit and "cold comfort" letters required
by or incident to such performance), (e) Securities Act liability insurance if
the Company so desires or the underwriters so require, (f) all fees and expenses
incurred in connection with the listing of the Registrable Securities on any
securities exchange and all rating agency fees, (g) all reasonable fees and
disbursements of one counsel selected by the Stockholders holding a majority of
the Registrable Securities being registered to represent such Stockholders in
connection with such registration, (h) all fees and disbursements of
underwriters customarily paid by the issuers or sellers of securities (excluding
underwriting discounts and commissions and transfer taxes, if any, that are
attributable to the Stockholders), and fees and disbursements of counsel to
underwriters (other than such fees and disbursements incurred in connection with
any registration or qualification of Registrable Securities under the securities
or blue sky laws of any state), and (i) fees and expenses of other Persons
retained by the Company (all such expenses being herein called "Registration
Expenses"), regardless of whether the Registration Statement becomes effective
(except as provided in Section 2(d)). The Company shall, in any event, pay its
internal expenses (including, without limitation, all salaries and expenses of
its officers and employees performing
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legal or accounting duties), the expense of any audit and the fees and expenses
of any Person, including special experts, retained by the Company.
7. Indemnification.
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(a) Indemnification by Company. The Company agrees to indemnify
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and hold harmless, to the full extent permitted by law, each Stockholder, its
officers, directors and employees and each Person who controls such Stockholder
(within the meaning of the Securities Act) against all losses, claims, damages,
liabilities and expenses caused by any untrue or alleged untrue statement of a
material fact contained in any Registration Statement, Prospectus or preliminary
Prospectus or any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as the same are caused by or contained in any
information furnished in writing to the Company by such Stockholder expressly
for use therein; provided, however, that the Company shall not be liable in any
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such case to the extent that any such loss, claim, damage, liability or expense
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any such preliminary Prospectus if (i)
such Stockholder failed to deliver or cause to be delivered a copy of the
Prospectus to the Person asserting such loss, claim, damage, liability or
expense after the Company had furnished such Stockholder with a sufficient
number of copies of the same and (ii) the Prospectus completely corrected in a
timely manner such untrue statement or omission; and provided, further, that the
-------- -------
Company shall not be liable in any such case to the extent that any such loss,
claim, damage, liability or expense arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission in the
Prospectus, if such untrue statement or alleged untrue statement, omission or
alleged omission is completely corrected in an amendment or supplement to the
Prospectus and the Stockholder thereafter fails to deliver such Prospectus as so
amended or supplemented prior to or concurrently with the sale of the
Registrable Securities to the Person asserting such loss, claim, damage,
liability or expense after the Company had furnished such Stockholder with a
sufficient number of copies of the same. The Company will also indemnify
underwriters, selling brokers, dealer managers and similar securities industry
professionals participating in the distribution, their officers and directors
and each Person who controls such Persons (within the meaning of the Securities
Act) to the same extent as provided above with respect to the indemnification of
the Stockholders, if requested.
(b) Indemnification by Selling Stockholder of Underlying
----------------------------------------------------
Securities. In connection with each Registration, each selling Stockholder shall
----------
furnish to the Company in writing such information and affidavits as the Company
reasonably requests for use in connection with any Registration Statement or
Prospectus and agrees to indemnify and hold harmless, to the full extent
permitted by law, the Company, its directors and officers and each Person who
controls the Company (within the meaning of the Securities Act) against any
losses, claims, damages or liabilities and expenses resulting from any untrue
statement of a material fact or any omission of a material fact required to be
stated in the Registration Statement or Prospectus or preliminary Prospectus or
necessary to make the statements therein not misleading, to the extent, but only
to the extent, that such untrue statement or omission is contained in any
information or affidavit so furnished in writing by such selling Stockholder to
the Company specifically for inclusion in such Registration Statement or
Prospectus and has not been corrected in a subsequent writing prior to or
concurrently with the sale of the Registrable Securities to the
11
Person asserting such loss, claim, damage, liability or expense. In no event
shall the liability of any selling Stockholder under this Section 7 be greater
in amount than the dollar amount of the proceeds received by such Stockholder
upon the sale of the Registrable Securities giving rise to such indemnification
obligation. The Company shall be entitled to receive indemnities from
underwriters, selling brokers, dealer managers and similar securities industry
professionals participating in the distribution, to the same extent as provided
above with respect to information so furnished in writing by such Persons
specifically for inclusion in any Prospectus or Registration Statement.
(c) Conduct of Indemnification Proceedings. Any Person entitled
--------------------------------------
to indemnification under this Section 7 shall (i) give prompt (but in any event
within 30 days after such Person has actual knowledge of the facts constituting
the basis for indemnification) written notice to the indemnifying party of any
claim with respect to which it seeks indemnification and (ii) permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party; provided, however, that any delay or
-------- -------
failure to so notify the indemnifying party shall relieve the indemnifying party
of its obligations under this Section 7 only to the extent, if at all, that it
is prejudiced by reason of such delay or failure; provided, further however,
-------- ------- -------
that any Person entitled to indemnification under this Section 7 shall have the
right to select and employ separate counsel and to participate in the defense of
such claim, but the fees and expenses of such counsel shall be at the expense of
such Person unless (a) the indemnifying party has agreed in writing to pay such
fees or expenses, or (b) the indemnifying party shall have failed to assume the
defense of such claim within a reasonable time after receipt of notice of such
claim from the Person entitled to indemnification under this Section 7 and
employ counsel reasonably satisfactory to such Person or (c) in the reasonable
judgment of any such Person, based upon advice of its counsel, a conflict of
interest may exist between such Person and the indemnifying party with respect
to such claims (in which case, if the Person notifies the indemnifying party in
writing that such Person elects to employ separate counsel at the expense of the
indemnifying party, the indemnifying party shall not have the right to assume
the defense of such claim on behalf of such Person). If such defense is not
assumed by the indemnifying party, the indemnifying party will not be subject to
any liability for any settlement made without its consent (but such consent will
not be unreasonably withheld), provided that an indemnified party shall not be
--------
required to consent to any settlement involving the imposition of equitable
remedies or involving the imposition of any material obligations on such
indemnified party other than financial obligations for which such indemnified
party will be indemnified under this Section 7. No indemnifying party will be
required to consent to entry of any judgment or enter into any settlement which
does not include as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a release from all liability in respect
to such claim or litigation. Whenever the indemnified party or the indemnifying
party receives a firm offer to settle a claim for which indemnification is
sought under this Section 7, it shall promptly notify the other of such offer.
If the indemnifying party refuses to accept such offer within 20 business days
after receipt of such offer (or of notice thereof), such claim shall continue to
be contested and, if such claim is within the scope of the indemnifying party's
indemnity contained herein, the indemnified party shall be indemnified pursuant
to the terms of this Section 7. If the indemnifying party notifies the
indemnified Party in writing that the indemnifying party desires to accept such
offer, but the indemnified party refuses to accept such offer within 20 business
days after receipt of such notice, the indemnified party may continue to contest
such claim and, in such event, the total maximum liability of the indemnifying
party to indemnify or otherwise
12
reimburse the indemnified party under this Section 7 with respect to such claim
shall be limited to and shall not exceed the amount of such offer, plus
reasonable out-of-pocket costs and expenses (including reasonable attorneys'
fees and disbursements) to the date of notice that the indemnifying party
desires to accept such offer, provided that this sentence shall not apply to any
--------
settlement of any claim involving the imposition of equitable remedies or to any
settlement imposing any material obligations on such indemnified party other
than financial obligations for which such indemnified party will be indemnified
under this Section 7. An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim will not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the written opinion of
counsel to the indemnified party, reasonably satisfactory to the indemnifying
party, use of one counsel would be expected to give rise to a conflict of
interest between such indemnified party and any other of such indemnified
parties with respect to such claim, in which event the indemnifying party shall
be obligated to pay the fees and expenses of one such additional counsel.
(d) Other Indemnification. Indemnification similar to that
---------------------
specified in this Section 7) (with appropriate modifications) shall be given by
the Company and each seller of Registrable Securities with respect to any
required registration or other qualification of securities under federal or
state law or regulation of governmental authority other than the Securities Act.
(e) Contribution. If for any reason the indemnification provided
------------
for in the preceding paragraphs (a) and (b) is unavailable to an indemnified
party or insufficient to hold it harmless as contemplated by the preceding
paragraphs (a) and (b), then the indemnifying party shall contribute to the
amount paid or payable by the indemnified party as a result of such loss, claim,
damage or liability in such proportion as is appropriate to reflect not only the
relative benefits received by the indemnified party and the indemnifying party,
but also the relative fault of the indemnified party and the indemnifying party,
as well as any other relevant equitable considerations, provided that no selling
Stockholder shall be required to contribute in an amount greater than the dollar
amount of the proceeds received by such selling Stockholder or the amount it
would have been required to contribute pursuant to Section 7(a) above had it
been enforceable, with respect to the sale of any securities. 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.
8. Participation in Underwritten Registrations.
-------------------------------------------
No Person may participate in any Underwritten Registration under this
Section 8 unless such Person (a) agrees to sell such Person's securities on the
basis provided in any underwriting arrangements approved by the Persons entitled
to approve such arrangements, and (b) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements. Nothing in this
Section 8 shall be construed to create any additional rights regarding the
Registration of Registrable Securities in any Person other than as set forth in
this Agreement.
9. Market Stand-off.
----------------
The Stockholders hereby agree that, if so requested by the Company or
the
13
managing underwriter or agent, if any, the Stockholders shall not sell or
otherwise transfer any Registrable Securities or other securities of the Company
during the seven (7) day period prior to, and during the 180 day period
following the effective date of a Registration Statement of the Company filed
under the Securities Act with respect to the Company's Initial Public Offering,
and during the period specified by the managing underwriter or agent, if any,
(not to exceed 90 days) following the effective date of a Registration Statement
of the Company filed under the Securities Act with respect to any subsequent
primary offering by the Company or a Demand Registration (except in either case
as part of such underwritten registration), in each case without the prior
written consent of the managing underwriter or agent, if any, for such offering;
provided that all officers of the Company enter into similar agreements.
10. Miscellaneous.
-------------
(a) Entire Agreement. This Agreement constitutes the entire
----------------
agreement between the Company and the Stockholders relative to the subject
matters hereof. Any previous agreement between the Company and the Stockholders
concerning Registration rights in connection with the Registrable Securities is
superseded by this Agreement.
(b) Consent. From and after the date of this Agreement, the
-------
Company shall not, without the consent of holders of a majority of the then
outstanding Registrable Securities, enter into any agreement granting any holder
or prospective holder of any securities of the Company registration rights with
respect to such securities unless such new registration rights, including
standoff obligations, are on a pari passu basis with, or are subordinate to, the
---- -----
rights of the holders hereunder.
(c) Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the laws of the State of Delaware without regard to
its conflict of law principles or rules.
(d) Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(e) Headings. The headings of the Sections of this Agreement are
--------
for convenience and shall not by themselves determine the interpretation of this
Agreement.
(f) Notices. Any notice required or permitted hereunder shall be
-------
given in writing and shall be conclusively deemed effectively given (a) upon
personal delivery to the person to be notified, (b) when sent by confirmed
facsimile if sent during normal business hours of the recipient; if not, then on
the next business day, (c) five (5) days after deposit in the United States
mail, by registered or certified mail, postage prepaid, or (d) one (1) day after
deposit with a nationally recognized overnight courier, specifying next day
delivery, with written verification of receipt addressed as set forth on the
signature page of this Agreement, or at such other address as a party may
designate by ten (10) days' advance written notice to the other party.
(g) Amendment of Agreement. Any provision of this Agreement may
----------------------
be amended, modified or waived only by a written instrument signed by the
Company and the holders of at least sixty-six and two-thirds percent (66-2/3%)
of the then outstanding Registrable
14
Securities; provided that no amendment which adversely affects any Stockholder
other than in the same manner that such amendment affects each other Stockholder
on a pro rata basis will be effective without such first Stockholder's written
consent. Exhibit A may be amended by the Company as necessary to reflect the
---------
addition of parties hereto consistent with Section 10(b) or reflect assignments
permitted by Section 10(h).
(h) Assignment; Successors and Assigns. Except as set forth
----------------------------------
herein, this Agreement is not assignable by the parties hereto without the
written consent of the other parties. The rights to cause the Company to
register Registrable Securities pursuant to Section 2 and 3 may be assigned by a
Stockholder to a transferee or assignee of Registrable Securities which (a) is a
subsidiary, parent, general partner, limited partner or retired partner, member
or retired member of a Stockholder or (b) is a Stockholder's family member or
trust for the benefit of an individual Stockholder, provided, however, (i) the
transferor shall, at least 10 days prior to such transfer, furnish to the
Company written notice of the name and address of such transferee or assignee
and the securities with respect to which such registration rights are being
assigned and (ii) such transferee shall agree to be subject to all restrictions
set forth in this Agreement.
Except as otherwise expressly provided for herein, the provisions
hereof shall inure to the benefit of, and be binding upon, the successors,
assigns, heirs, executors, and administrators of the parties hereto and shall
inure to the benefit of and be enforceable by each person who shall be a holder
of Registrable Securities from time to time; provided, however, that prior to
the receipt by the Company of adequate written notice of the transfer of any
Registrable Securities specifying the full name and address of the transferee,
the Company may deem and treat the person listed as the holder of such
Registrable Securities in its records as the absolute owner and holder of such
Registrable Securities for all purposes.
(i) Severability. In the event that any one or more of the
------------
provisions contained herein, or the application thereof in any circumstance is
held 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.
(j) Attorney's Fees. In any action or proceeding brought to
---------------
enforce any provision of this Agreement, the successful party shall be entitled
to recover reasonable attorney's fees in addition to any other available remedy.
15
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
THE COMPANY:
AMERICAN CELLULAR CORPORATION,
a Delaware corporation
By: /s/Xxxxx Xxxxxxxxx
------------------
Name: Xxxxx Xxxxxxxxx
Title: Chairman and CEO
Address: 000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxx Xxxxxxxxx
THE STOCKHOLDERS:
SPECTRUM EQUITY INVESTORS II, L.P.,
a Delaware limited partnership
By: Spectrum Equity Associates II, L.P., its Managing General Partner
Name: /s/Xxxxx Xxxxxxxxx
------------------
Title: Managing General Partner
Address: 000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxx Xxxxxxxxx
PROVIDENCE EQUITY PARTNERS L.P.,
a Delaware limited partnership
By: PROVIDENCE EQUITY PARTNERS, L.L.C.,
its general partner
By: /s/ Xxxxxxxx X. Xxxxxx
----------------------
Name: ________________
Title: _______________
Address: 00 Xxxxxxx Xxxxx
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxx
Xxxx Xxxxxx
TANDEM WIRELESS INVESTMENTS, L.P.,
a Delaware limited partnership
By: LIVE CYCLES HOLDINGS CO.
Its General Partner
By: /s/ Xxxx XxXxxxxx
-----------------
Xxxx XxXxxxxx
Title: Vice President and Secretary
By: /s/ Xxxxxx Xxxxxxxx
-------------------
Xxxxxx Xxxxxxxx
Title: President
21st CENTURY COMMUNICATIONS PARTNERS, L.P.
By: Sandler Investment Partners, L.P.
General Partner
By: Sandler Capital Management
General Partner
By: MJDM CORP., a General Partner
By: /s/ Xx Xxxxxxxxx
----------------
Name: Xx Xxxxxxxxx
Title: President
Address: 000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxxx
21st CENTURY COMMUNICATIONS T-E, L.P.
By: Sandler Investment Partners, L.P.
General Partner
By: Sandler Capital Management
General Partner
By: MJDM CORP., a General Partner
By: /s/ Xx Xxxxxxxxx
----------------
Name: Xx Xxxxxxxxx
Title: President
Address: 000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxxx
21st CENTURY COMMUNICATIONS FOREIGN PARTNERS, L.P.
By: Sandler Investment Partners, L.P.
General Partner
By: Sandler Capital Management
General Partner
By: MJDM CORP., a General Partner
By: /s/ Xx Xxxxxxxxx
----------------
Name: Xx Xxxxxxxxx
Title: President
Address: 000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxxx
SANDLER CAPITAL PARTNERS IV, L.P.
By: Sandler Investment Partners, L.P.
General Partner
By: Sandler Capital Management
General Partner
By: MJDM CORP., a General Partner
By: /s/ Xx Xxxxxxxxx
----------------
Name: Xx Xxxxxxxxx
Title: President
Address: 000 0xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax:
Attention:
SANDLER CAPITAL PARTNERS IV, FTE, L.P.
By: Sandler Investment Partners, L.P.
General Partner
By: Sandler Capital Management
General Partner
By: MJDM CORP., a General Partner
By: /s/ Xx Xxxxxxxxx
----------------
Name: Xx Xxxxxxxxx
Title: President
Address: 000 0xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxxx
TRIUMPH PARTNERS III, L.P.,
a Delaware limited partnership
By: Triumph III Advisors, L.P.
General Partner
By: Triumph III Advisors, Inc.
General Partner
By: /s/ Xxxxxxx X. Xxxx
-------------------
Name: Xxxxxxx X. Xxxx
Title: Managing Director
Address: 000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxx
TRIUMPH III INVESTORS, L.P.,
a Delaware limited partnership
By: Triumph III Advisors, Inc.
General Partner
By: /s/ Xxxxxxx X. Xxxx
-------------------
Name: Xxxxxxx X. Xxxx
Title: Managing Director
Address: 000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxx
TORONTO DOMINION INVESTMENTS, INC.,
a Delaware corporation
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
--------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President
Address: 000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxx Xxxxxxx
FIRST UNION CAPITAL PARTNERS, INC.,
a Virginia corporation
By: /s/ X.X. Xxxxxxx III
--------------------
Name: X.X. Xxxxxxx III
Title: Senior Vice President
Address: 000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, X.X. 00000
Fax: (000) 000-0000
Attention: Xxxxx Xxxxxxx
HARBOURVEST PARTNERS V - Direct Fund L.P.,
a Delaware limited partnership
By: HVP V - Direct Associates LLC
its General Partner
By: HARBOURVEST PARTNERS, LLC
its Managing Member
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director
Address: Xxx Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 0000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxx
INFORMATION ASSOCIATES, L.P.
By: TRIDENT CAPITAL MANAGEMENT, L.L.C.
its general partner
By: /s/ Xxxxxx X. Xxxxx
-------------------
Name: Xxxxxx X. Xxxxx
Title: President
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxx Xxxxx
INFORMATION ASSOCIATES-II, L.P.
By: /s/ Xxxxxx X. Xxxxx
-------------------
Name: Xxxxxx X. Xxxxx
Title: President
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxx Xxxxx
IA-II AFFILIATES FUND, L.L.C.
By: /s/ Xxxxxx X. Xxxxx
-------------------
Name: Xxxxxx X. Xxxxx
Title: President
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxx Xxxxx
INFORMATION ASSOCIATES, C.V.
By: TRIDENT CAPITAL MANAGEMENT, L.L.C.
its investment general partner
By: /s/ Xxxxxx X. Xxxxx
-------------------
Name: Xxxxxx X. Xxxxx
Title: President
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxx Xxxxx
TRIDENT CAPITAL MANAGEMENT-II, L.L.C.
By: /s/ Xxxxxx X. Xxxxx
-------------------
Name: Xxxxxx X. Xxxxx
Title: President
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxx Xxxxx
WESTPOOL INVESTMENT TRUST,
a limited company organized under the laws
of England and Wales
By: /s/ Xxxxxx X. Rayne
-------------------
Name: Xxxxxx X. Rayne
Title: Director
Address: c/o London Merchant Securities plc
Carlton House
00 Xxxxxx Xxxx Xxxxxx
Xxxxxx, Xxxxxxx XXX0XX
Fax: 000-00-000-000-0000
Attention: Xxx. Xxxxxx X. Rayne
Xxxxx Xxxxxxxxx
Xxxxxxx Xxxxxxx
Xxxx XxxXxxxx
SG CAPITAL PARTNERS, LLC
By: /s/ Xxxx X. Xxxxxxx
-------------------
Name: Xxxx X. Xxxxxxx
Title: Managing Director
Address: 0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Elan Xxxxxxx
XXXXXXX XXXXX KECALP L.P. 1997,
a Delaware limited partnership
By: /s/ Xxxxxx X. Xxxxxxx
---------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
Address: World Financial Center
000 Xxxxxxx Xxxxxx
Xxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Fax: (000) 000-0000
Attention: Xxxxxx Xxxxxxx
KECALP, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxx
---------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
Address: World Financial Center
000 Xxxxxxx Xxxxxx
Xxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Fax: (000) 000-0000
Attention: Xxxxxx Xxxxxxx
XXXXX FAMILY TRUST dated 1/6/89,
a California family trust
By: /s/ Xxxxxx X. Xxxxx
-------------------
Name: Xxxxxx X. Xxxxx
Title: Trustee
Address: 00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxx
LION INVESTMENTS LIMITED,
a limited company organized under the laws
of England and Wales
By: /s/ Xxxxxx X. Rayne
-------------------
Name: Xxxxxx X. Rayne
Title: Director
Address: c/o London Merchant Securities plc
Carlton House
00 Xxxxxx Xxxx Xxxxxx
Xxxxxx, Xxxxxxx XXX0XX
Fax: 000-00-000-000-0000
Attention: Xxx. Xxxxxx X. Rayne
Xxxxx Xxxxxxxxx
Xxxxxxx Xxxxxxx
Xxxx XxxXxxxx
GENERATION CAPITAL PARTNERS L.P.
By: Generation Partners L.P.,
its General Partner
By: Generation Capital Company LLC
its General Partner
By: /s/ Xxxx Xxxxxxx
----------------
Xxxx Xxxxxxx
Managing Director
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxx Xxxxxxx
STATE BOARD OF ADMINISTRATION OF FLORIDA
By: Generation Partners L.P.,
its General Partner
By: Generation Capital Company LLC
its General Partner
By: /s/ Xxxx Xxxxxxx
----------------
Xxxx Xxxxxxx
Managing Director
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxx Xxxxxxx
GENERATION PARALLEL MANAGEMENT PARTNERS L.P.
By: Generation Partners L.P.,
its General Partner
By: Generation Capital Company LLC
its General Partner
By: /s/ Xxxx Xxxxxxx
----------------
Xxxx Xxxxxxx
Managing Director
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxx Xxxxxxx
GENERATION PARTNERS
By: ___________________________
Name: _____________________
Title: ______________________
Address: 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
(000) 000-0000
Attention: Xxxx Xxxxxxx
By: /s/ Xxxx Xxxxx
--------------
Name: XXXX X. XXXXX
Address: 000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
By: /s/ Xxxxx XxXxxxxx
------------------
Name: XXXXX XxXXXXXX
Address: 0000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
