AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
EXHIBIT 10.16
EXECUTION COPY
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of
September 1, 2004, is among XXXXX MEDIA COMPANY (f/k/a DMC II Company), a Delaware corporation (the
“Company”), each of the investors whose name appears on Schedule I attached hereto
who executes a counterpart of this Agreement (the “Initial Investors”) and each of the
investors whose name appears on Schedule II attached hereto who executes a counterpart of this
Agreement (the “Senior Preferred Investors” and, together with the Initial Investors, the
“Investors”). Certain capitalized terms used but not otherwise defined herein shall have
the meanings ascribed thereto in Section 2.
RECITALS
A. A former affiliate of the Company (“Xxxxx”) merged (the “Merger”) with LND
Acquisition Corp. (“Merger Sub”), a Delaware corporation and wholly-owned subsidiary of
Xxxx Elsevier, Inc., a Delaware corporation (“Parent”), pursuant to that certain Agreement
and Plan of Merger, dated as of June 25, 2003, by and among Parent, Merger Sub, Xxxxx and the
Company.
B. In connection with the Merger, the Initial Investors contributed to the Company certain of
their shares of common stock and preferred stock of Xxxxx in exchange for shares of common stock
and preferred stock of the Company pursuant to an Exchange Agreement, dated as of June 25, 2003
(the “Exchange Agreement”).
C. The Company granted certain registration rights to the Initial Investors pursuant to a
Registration Rights Agreement, dated July 31, 2003 (the “Original Registration Rights
Agreement”).
D. The Original Registration Rights Agreement provides that the Original Registration Rights
Agreement may be amended by the Company and the holder or holders of at least 60% of the
Registrable Securities (as that term is defined in the Original Registration Rights Agreement).
E. On the date hereof, pursuant to a Stock Purchase Agreement dated the date hereof among the
Company and the Senior Preferred Investors (as in effect from time to time, the “Senior
Purchase Agreement”), the Senior Preferred Investors will purchase an aggregate of 25,000
shares of Series C Participating Convertible Preferred Stock of the Company, par value $0.001 per
share (the “Series C Preferred”), which is convertible into shares of Common Stock, Series
A Preferred Stock of the Company, par value $0.001 per share (the “Series A Preferred Stock”), and
Series B Preferred Stock of the Company, par value $0.001 per share (the “Series B Preferred
Stock” and, together with the Series C Preferred Stock, the “Senior Preferred Stock”).
F. The Initial Investors executing this Agreement hold not less than 60% of the Registrable
Securities (as that term is defined in the Original Registration Rights Agreement).
G. The Company, the Initial Investors and the Senior Preferred Investors desire to amend and
restate the Original Registration Rights Agreement in its entirety as follows:
AGREEMENTS
In consideration of the foregoing and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
1. Registration under the Securities Act, etc.
1.1. Registration on Request.
(a) Request. At any time subsequent to the Company’s Qualifying Public Offering of
Common Stock (i) Senior Preferred Investors holding a majority (by number of shares) of the Senior
Registrable Securities shall have the right to request in writing that the Company effect an
underwritten registration under the Securities Act (a “Demand Registration”) of all or part
of such holders’ Senior Registrable Securities and (ii) Initial Investors holding at least 35% (by
number of shares) of the Initial Registrable Securities shall have the right to request in writing
that the Company effect a Demand Registration of all or part of such holders’ Initial Registrable
Securities; provided, however, that (x) the Company shall not be obligated to effect more
than two Demand Registrations requested by the Senior Preferred Investors or more than two Demand
Registrations requested by the Initial Investors under this Section 1.1(a) (other than a short-form
registration on Form X-0, Xxxx X-0 or any similar short-form registration (“Short-Form
Registrations”)) and the Company need not effect a Demand Registration pursuant to this Section
1.1(a) (other than a Short-Form Registration) unless the anticipated aggregate offering price in
such registration is $10,000,000 or more and (y) the Company shall not be obligated to effect more
than four Short-Form Registrations requested by the Senior Preferred Investors or more than four
Short-Form Registrations requested by the Initial Investors under this Section 1.1(a) and the
Company need not effect a demand Short-Form Registration pursuant to this Section 1.1(a) unless the
anticipated aggregate offering price in such registration is $3,000,000 or more.
Each request for a Demand Registration shall specify the approximate number of Registrable
Securities requested to be registered, the anticipated per share price range for such offering and
the intended method of disposition of such Registrable Securities). The Company will promptly give
written notice of such requested registration to all other holders of Registrable Securities, which
holders shall be entitled to include their Registrable Securities in such registration subject to
Section 1.1(b) and Section 1.1(g). Thereupon the Company, subject to Section
1.1(g), will use its reasonable best efforts to effect the registration under the Securities
Act of:
| (i) | the Registrable Securities which the Company has been so requested to register by the Investors requesting such Demand Registration; and | ||
| (ii) | subject to the terms hereof, all other Registrable Securities which the Company has been requested to register by the holders thereof by written |
2
| request given to the Company within 30 days after the giving of such written notice by the Company. |
(b) Registration of Other Securities. Whenever the Company shall effect a
registration pursuant to this Section 1.1, no securities other than Registrable Securities
held by the Investors shall be included among the securities covered by such registration unless
(i) the managing underwriter of such offering shall have advised the Investors in writing that the
inclusion of such other securities would not materially adversely affect such offering and (ii) the
holders of not less than 662/3% of the Registrable Securities held by the
Investors to be covered by such registration shall have consented in writing to the inclusion of
such other securities. Notwithstanding the foregoing, the Company shall be entitled to register
and sell the number of shares required to pay the expenses of the offering so long as the managing
underwriter of such offering shall have advised such Investors in writing that the inclusion of
such shares would not materially adversely affect such offering.
(c) Registration Statement Form. Registrations under this Section 1.1 shall
be on such appropriate registration form of the Commission (i) as shall be selected by the Company
and as shall be reasonably acceptable to the Majority Initiating Holders and (ii) as shall permit
the disposition of such Registrable Securities in accordance with the intended method or methods of
disposition specified in their request for such registration by such Investors. Notwithstanding the
foregoing, after the Company has become subject to the reporting requirements of the Exchange Act,
the Company will use its reasonable best efforts to make Short-Form Registrations available for the
sale of Registrable Securities. The Company agrees to include in any such registration statement
all information which holders of Registrable Securities being registered shall reasonably request.
(d) Expenses. The Company will pay promptly all Registration Expenses in connection
with the registration requests made pursuant to this Section 1.1.
(e) Effective Registration Statement. A registration requested pursuant to this
Section 1.1 shall not be deemed to have been effected and shall not count as a requested
registration pursuant to Section 1.1(a) hereof (i) unless a registration statement with
respect thereto has become effective (unless such registration statement has been withdrawn at the
request of the Majority Initiating Holders, (ii) if after it has become effective, such
registration is interfered with, by any stop order, injunction or other order or requirement of the
Commission or other governmental agency or court for any reason not the fault of the Investors, and
fewer than all of the Registrable Securities covered thereby have been sold, or (iii) if the
conditions to closing specified in the selling agreement or underwriting agreement entered into in
connection with such registration are not satisfied by the parties thereto other than the Investors
holding Registrable Securities. Notwithstanding anything herein to the contrary, if a registration
statement is withdrawn at the request of the demanding Investors in accordance with clause (i)
above, but the Company’s fees incurred in connection with such registration statement are paid by
such Investors, the preparation and withdrawal of the registration statement will not be counted as
a demand registration by such Investors in accordance with clause (i) above.
3
(f) Underwriters. The managing underwriter or underwriters of any registration
effected pursuant to this Section 1.1 shall be selected by the Majority Initiating Holders
(subject to the approval of the Company, which approval shall not be unreasonably withheld, within
two (2) business days of notice of the prospective underwriter), and the price, terms and
provisions of the offering, shall be subject to the approval of, the Majority Initiating Holders.
(g) Apportionment In Registrations Requested. If the managing underwriter of any
registration effected pursuant to Section 1.1 shall advise the Company in writing (with a
copy to each holder of Registrable Securities requesting registration) that, in its opinion, the
number of securities requested to be included in such registration exceeds the number which can be
sold in such offering without adversely affecting the marketability of the offering, the Company
will apportion as follows: the Company will include in such registration, to the extent of the
number of Registrable Securities that the Company is advised can be sold in such offering,
Registrable Securities held by the Investors to be included in such registration pro rata among all
holders of Registrable Securities requesting such registration on the basis of the percentage of
the Registrable Securities of the Company held by such Investors that have requested that such
Registrable Securities be included.
In connection with any registration as to which the provisions of this clause (g) apply, no
securities other than the Registrable Securities requested to be registered by the Investors shall
be covered by such registration, and if the proration as aforesaid results in the exclusion of an
amount in excess of 15% of the Registrable Securities sought to be registered by the Investors
initiating such Demand Registration pursuant to Section 1.1(a)(i) or 1.1(a)(ii), the request shall
not be counted for purposes of determining the number of registrations pursuant to
Section 1.1(a).
Section 1.1(a).
(h) Restrictions on Requested Registrations. The Company shall not be obligated to
effect any registration pursuant to Section 1.1 within 180 days after the effective date of
a previous registration pursuant to Section 1.1. The Company may postpone for up to 60
days the filing or the effectiveness of a registration statement for a registration pursuant to
Section 1.1(a) if the Company reasonably determines that such registration would reasonably
be expected to have a material adverse effect on the Company or any of its subsidiaries or any
proposal or plan by the Company or any of its subsidiaries to engage in any acquisition of assets
or business (other than in the ordinary course of business) or any merger, consolidation, tender
offer, reorganization or similar transaction; provided, however, that in such
event, the holders of Registrable Securities initially requesting such registration shall be
entitled to withdraw such request and, if such request is withdrawn, such registration shall not
count as one of the permitted registrations pursuant to Section 1.1(a) and the Company
shall pay all Registration Expenses in connection with such registration. The Company may delay a
registration pursuant to Section 1.1(a) only once in any 12 month period. The Company will
have the right to preempt any registration pursuant to Section 1.1 with a primary
registration by delivering within 30 days after the Company has received a request for such
registration, written notice of such intention to the holders of Registrable Securities who have
requested such registration. In the ensuing primary registration, the holders of Registrable
Securities will have such piggyback registration rights as are set forth in Section 1.2
hereof. Upon the Company’s preemption of a requested
4
registration under this Section 1.1(h), such requested registration will not count as
one of the registrations pursuant to Section 1.1(a).
(i) Other Registration Rights. The Company will not grant to any Persons the right to
request the Company to register any equity securities of the Company, or any securities convertible
or exchangeable in to or exercisable for such securities, which would conflict or interfere in any
way with the rights granted to holders of Registrable Securities under this Agreement, without the
prior written consent of the holders of not less than 66-2/3% (by number of shares) of Registrable
Securities held by the Investors.
1.2. Incidental Registration.
(a) Right to include Registrable Securities. If the Company at any time proposes to
register any of its equity securities under the Securities Act (other than by a registration on
Form X-0, Xxxx X-0 or any successor or similar form and other than pursuant to a registration
requested by an Investor pursuant to Section 1.1), whether or not for sale for its own
account, it will at each such time give prompt written notice to all holders of Registrable
Securities of its intention to do so and of such holders’ rights under this Section 1.2.
Upon the written request of any such holder made within 30 days after the receipt of any such
notice (which request shall specify the Registrable Securities intended to be disposed of by such
holder and the intended method of disposition thereof), the Company will use its reasonable best
efforts to effect the registration under the Securities Act of all Registrable Securities which the
Company has been so requested to register by the holders thereof, to the extent requisite to permit
the disposition of the Registrable Securities so to be registered, provided,
however, that if, at any time after giving written notice of its intention to register any
securities and prior to the effective date of the registration statement filed in connection with
such registration, the Company shall determine for any reason not to register or to delay
registration of such securities, the Company may, at its election, give written notice of such
determination to each holder of Registrable Securities and, thereupon, (i) in the case of a
determination not to register, shall be relieved of its obligation to register any Registrable
Securities in connection with such registration (but not from its obligation to pay the
Registration Expenses in connection therewith), without prejudice, subject however, to the rights
of any Investor entitled to request that such registration be effected as a registration under
Section 1.1, and (ii) in the case of a determination to delay registering, shall be
permitted to delay registering any Registrable Securities, for the same period as the delay in
registering such other securities. No registration effected under this Section 1.2 shall
relieve the Company of its obligation to effect any registration upon request under Section
1.1. The Company will pay all Registration Expenses in connection with each registration of
Registrable Securities requested pursuant to this Section 1.2.
(b) Apportionment in Incidental Registrations. If (i) a registration pursuant to this
Section 1.2 involves an underwritten offering of the securities being registered, whether
or not for sale for the account of the Company, to be distributed (on a firm commitment basis) by
or through one or more underwriters of recognized national or regional standing under underwriting
terms appropriate for such a transaction, and (ii) the managing underwriter of such underwritten
offering shall inform the Company and the holders of the Registrable Securities requesting such
registration by letter of its belief that the number of securities requested to be included in such
5
registration exceeds the number which can be sold in (or during the time of) such offering or
that the inclusion would materially adversely affect the marketing of the securities to be sold by
the Company therein, then the Company may include (i) first, all securities proposed by the Company
to be sold for its own account (unless the registration is being effected pursuant to Section
1.1 of this Agreement in which case the provisions of Section 1.1(b) and Section
1.1(g) shall control) and may decrease the number of Registrable Securities and other
securities of the Company, (ii) second, Registrable Securities held by the Investors requested to
be included in such registration pro rata among all holders of Registrable Securities requesting
such registration on the basis of the percentage of the Registrable Securities of the Company held
by such Investors that have requested that such Registrable Securities be included and (iii) third,
other securities requested to be included in such registration pro rata among all holders of such
other securities requesting such registration on the basis of the percentage of the other
securities of the Company held by such holders that have requested that such other securities be
included.
1.3. Registration Procedures. If and whenever the Company is required to use its
reasonable best efforts to effect the registration of any Registrable Securities under the
Securities Act as provided in Sections 1.1 and 1.2, the Company, among other
things, will as expeditiously as reasonably possible:
(a) prepare and (as promptly thereafter as practicable and in any event within 60 days after
the end of the period within which requests for registration may be given to the Company) file with
the Commission the requisite registration statement to effect such registration and thereafter use
its reasonable best efforts to cause such registration statement to become effective (provided that
before filing a registration statement or prospectus or any amendments or supplements thereto, the
Company will furnish to the counsel selected by the Majority Initiating Holders, copies of all such
documents proposed to be filed), provided, however, that the Company may
discontinue any registration of its securities which are not Registrable Securities (and, under the
circumstances specified in Section 1.2(a), its securities which are Registrable Securities)
at any time prior to the effective date of the registration statement relating thereto;
(b) prepare and file with the Commission such amendments and supplements to such registration
statement and the prospectus used in connection therewith as may be necessary to keep such
registration statement effective for a period not to exceed nine (9) months and to comply with the
provisions of the Securities Act with respect to the disposition of all securities covered by such
registration statement until such time as all of such securities have been disposed of in
accordance with the intended methods of disposition by the seller or sellers thereof set forth in
such registration statement;
(c) furnish to each seller of Registrable Securities covered by such registration statement
such number of conformed copies of such registration statement and of each such amendment and
supplement thereto (in each case including all exhibits), such number of copies of the prospectus
contained in such registration statement (including each preliminary prospectus and any summary
prospectus) and any other prospectus filed under Rule 424 or Rule 430A under the Securities Act, in
conformity with the requirements of the Securities Act, and such other documents (in each case
including all exhibits), as such seller may reasonably request;
6
(d) use its reasonable best efforts to (i) register or qualify Registrable Securities and
other securities covered by such registration statement under such other securities or blue sky
laws of such jurisdictions as each seller thereof shall reasonably request, (ii) keep such
registration or qualification in effect for so long as such registration statement remains in
effect, and (iii) take any other action which may be reasonably necessary or advisable to enable
such seller to consummate the disposition in such jurisdictions of the securities owned by such
seller, except that the Company shall not for any such purpose be required to qualify generally to
do business as a foreign corporation in any jurisdiction wherein it would not but for the
requirements of this subdivision (d) be obligated to be so qualified, to consent to general service
of process in any such jurisdiction, to register in any jurisdiction where such registration will
subject the Company to state taxes or where the Company would be required to register as a dealer;
(e) use its reasonable best efforts to cause all Registrable Securities covered by such
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 to consummate the
disposition of such Registrable Securities;
(f) furnish to each seller of Registrable Securities a signed counterpart, addressed to such
seller (and the underwriters, if any, including any “qualified independent underwriter”, if any) of
| (i) | an opinion of counsel for the Company, dated the effective date of such registration statement (or, if such registration includes an underwritten public offering, dated the date of the closing under the underwriting agreement), of such matters that are customarily covered in an opinion of counsel delivered to an underwriter including that the registration is valid and effective and such other matters as such seller may reasonably request, all of which is customary in form and substance, and | ||
| (ii) | a “comfort” letter, dated the effective date of such registration statement (and if such registration includes an underwritten public offering, dated the date of the closing under the underwriting agreement), signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement, addressed to each seller (and to the underwriters, if any, or qualified independent underwriter, if any) covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of the accountants’ letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in accountants’ letters delivered to the underwriters in underwritten public offerings of securities and such other financial matters as such seller (or the underwriters, if any, or qualified independent underwriter, if any) may reasonably request; |
7
(g) notify each seller of Registrable Securities covered by such registration statement at any
time when a prospectus relating thereto is required to be delivered under the Securities Act, upon
discovery that, or upon the happening of any event as a result of which, the prospectus included in
such registration statement, as then in effect, includes an untrue statement of a material fact or
omits to state any material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances under which they were made, and at the
request of any such seller, promptly prepare, file with the Commission and furnish to such seller a
reasonable number of copies of a supplement to or an amendment of such prospectus as may be
necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus
shall not include an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading in the light of the
circumstances under which they were made;
(h) otherwise use its reasonable efforts to comply with all applicable rules and regulations
of the Commission, and make available to its security holders, as soon as reasonably practicable,
an earnings statement covering the period of at least twelve (12) months, but not more than
eighteen (18) months, beginning with the first full calendar month after the effective date of such
registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of
the Securities Act and Rule 158 promulgated thereunder;
(i) 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;
(j) use its reasonable best efforts to list all Registrable Securities covered by such
registration statement on any securities exchange on which similar securities of the Company are
then listed and, if not so listed, to be listed on the Nasdaq National Market (“Nasdaq
Market”) and, if listed on the Nasdaq Market, use its reasonable best efforts to secure
designation of all such Registrable Securities covered by such registration statement as a Nasdaq
“National Market System security” within the meaning of Rule 11Aa2 of the Exchange Act or, failing
that, to secure Nasdaq Market authorization for such Registrable Securities and, without limiting
the generality of the foregoing, to use its reasonable best efforts to arrange for at least two
market makers to register as such with respect to such Registrable Securities with the National
Association of Securities Dealers;
(k) enter into such customary agreements and take such other customary actions as the holders
of Registrable Securities shall reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities, (including, without limitation, effecting a stock split
or a combination of shares);
(l) make available for inspection by any seller of Registrable Securities, any underwriter
participating in any disposition pursuant to such registration statement and any attorney,
accountant or other agent retained by any such seller or underwriter, all financial and other
records, pertinent corporate documents and properties of the Company, and cause the Company’s
officers, directors, employees and independent accountants to supply all information
8
reasonably requested by any such sellers, underwriter, attorney, accountant or agent in
connection with such registration statement; and
(m) in the event of the issuance of any stop order suspending the effectiveness of a
registration statement, or of any order suspending or preventing the use of any related prospectus
or suspending the qualification of any common stock included in such registration statement for
sale in any jurisdiction, the Company will use its reasonable best efforts promptly to obtain the
withdrawal of such order.
The Company may require each proposed seller of Registrable Securities as to which any
registration is being effected to promptly furnish the Company in writing, as a condition precedent
to including such holder’s Registrable Securities in any registration, with information regarding
such seller and the distribution of such securities as the Company may from time to time reasonably
request in writing.
Each holder of Registrable Securities 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 subdivision (g) of this Section 1.3, such holder will forthwith discontinue
such holder’s disposition of Registrable Securities pursuant to the registration statement relating
to such Registrable Securities until such holder’s receipt of the copies of the supplemented or
amended prospectus contemplated by subdivision (g) of this Section 1.3 and, if so directed
by the Company, will deliver to the Company (at the Company’s expense) all copies, other than
permanent file copies, then in such holder’s possession of the prospectus relating to such
Registrable Securities current at the time of receipt of such notice.
1.4. Underwritten Offerings.
(a) Requested Underwritten Offerings. If requested by the underwriters or a qualified
independent underwriter for any offering by holders of Registrable Securities pursuant to a
registration requested under Section 1.1, the Company will enter into an underwriting
agreement with such underwriters, or an agreement with such qualified independent underwriter, for
such offering, such agreement to be satisfactory in substance and form to the Company, which
approval by the Company will not be unreasonably withheld, to the Majority Initiating Holders
(provided that for purposes of this Section 1.4(a), in the case of Demand Registrations initiated
pursuant to Section 1.1(a)(ii) hereof, “Majority Initiating Holders” shall mean the Initial
Investors holding more than 60% (by number of shares) of the Initial Registrable Securities
included in such registration). and the underwriters and to contain such representations and
warranties by the Company and such other terms as are generally prevailing in agreements of such
type, including, without limitation, indemnities to the effect and to the extent provided in
Section 1.7. The holders of Registrable Securities to be distributed by such underwriters
shall be parties to such underwriting agreement and may, at their option, require that any or all
of the representations and warranties by, and the other agreements on the part of, the Company to
and for the benefit of such underwriters shall also be made to and for the benefit of such holders
of Registrable Securities and that any or all of the conditions precedent to the obligations of
such underwriters under such underwriting agreement be conditions precedent to the obligations of
such holders of Registrable Securities. Any such holder of Registrable Securities shall not be
9
required to make any representations or warranties to, or agreements with, the Company or the
underwriters other than representations, warranties or agreements regarding such holder, such
holder’s Registrable Securities and such holder’s intended method of distribution, any other
information supplied in writing by such holder to the Company specifically for use in the
registration statement and any other representation or information required by law.
(b) Incidental Underwritten Offerings. If the Company at any time proposes to
register any of its securities under the Securities Act as contemplated by Section 1.2 and
its securities are to be distributed by or through one or more underwriters, the Company will, if
requested by any holder of Registrable Securities as provided in Section 1.2 and subject to
the provisions of Section 1.2(b), arrange for such underwriters to include all the
Registrable Securities to be offered and sold by such holder among the securities to be distributed
by such underwriters. The holders of Registrable Securities to be distributed by such underwriters
shall be parties to the underwriting agreement between the Company and such underwriters and may,
at their option, require that any or all of the representations and warranties by, and the other
agreements on the part of, the Company to and for the benefit of such underwriters shall also be
made to and for the benefit of such holders of Registrable Securities and that any or all of the
conditions precedent to the obligations of such underwriters under such underwriting agreement be
conditions precedent to the obligations of such holders of Registrable Securities. Any such holder
of Registrable Securities shall not be required to make any representations or warranties to, or
agreements with, the Company or the underwriters other than representations, warranties, or
agreements regarding such holder, such holder’s Registrable Securities and such holder’s intended
method of distribution, any other information supplied in writing by such holder to the Company
specifically for use in the registration statement and any other representation or information
required by law.
(c) Participation in Underwritten Offerings. No Person may participate in any
registration hereunder which is underwritten unless such Person (i) agrees to sell such Person’s
securities on the basis provided in any underwriting arrangements approved by the Person or Persons
entitled hereunder to approve such arrangements and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents required under the
terms of such underwriting arrangements; provided, however, that no Person shall be
required to furnish any information or make any representations or warranties, other than
information and representations and warranties regarding such Person, such Person’s Registrable
Securities and such Person’s intended method of distribution and any other information required to
be supplied by law. Such Person shall agree to indemnify the underwriters and other Persons
employed by, related to, or affiliated with, the underwriters in connection with such registration
with respect to any representation or warranty made by such Person if so required by the
underwriters provided that the indemnification obligation of such Person is pro rata with the other
selling security holders of the Company selling securities in such offering (based on the aggregate
number of securities being sold by such selling security holder) and is limited to the aggregate
proceeds received by such Person in connection with such offering.
1.5. Preparation: Reasonable Investigation. In connection with the preparation and
filing of each registration statement under the Securities Act pursuant to this Agreement, the
Company will give the holders of Registrable Securities registered under such registration
10
statement, the underwriters and qualified independent underwriter, if any, and their
respective counsel and accountants, the opportunity to participate in the preparation of such
registration statement, each prospectus included therein or filed with the Commission, and each
amendment thereof or supplement thereto, and will give each of them such access to its books and
records and such opportunities to discuss the business of the Company with its officers and the
independent public accountants who have certified its financial statements as shall be necessary,
in the opinion of such holders’ and such underwriters’ respective counsel, to conduct a reasonable
investigation within the meaning of the Securities Act.
1.6. Rights of Holders of Registrable Securities. If any such registration statement
refers to any holder of Registrable Securities by name or otherwise as the holder of any securities
of the Company, then such holder shall have the right to require (a) the insertion therein of
language, in form and substance reasonably satisfactory to such holder, to the effect that the
holding by such holder of Registrable Securities does not necessarily make such holder a
“controlling person” or an “affiliate” of the Company within the meaning of the Securities Act and
is not to be construed as a recommendation by such holder of the investment quality of the
Company’s debt or equity securities covered thereby and that such holding does not imply that such
holder will assist in meeting any future financial requirements of the Company, or (b) in the event
that such reference to such holder of Registrable Securities by name or otherwise is not required
by the Securities Act or any rules and regulations promulgated thereunder or other law, the
deletion of the reference to such holder.
1.7. Indemnification.
(a) Indemnification by the Company. In the event of any registration of any
securities of the Company under the Securities Act, the Company will, and hereby does, indemnify
and hold harmless the holder of any Registrable Securities covered by such registration statement,
its directors, officers, employees, agents and affiliates, each other Person who participated as an
underwriter in the offering or sale of such securities, and such other Person, if any, who controls
such holder or underwriter within the meaning of the Securities Act, against any losses, claims,
damages, expenses or liabilities, joint or several, to which such holder or any such director,
officer, employee, agent, affiliate, underwriter or controlling person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages, expenses or liabilities (or
actions or proceedings, whether commenced or threatened, in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material fact contained in any
registration statement under which such securities were registered under the Securities Act, any
preliminary prospectus, final prospectus or summary prospectus contained therein, or any amendment
or supplement thereto, 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, and the
Company will reimburse such holder, and each such director, officer, employee, agent, affiliate,
underwriter and controlling person for any legal or any other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, liability, expense, action or
proceeding; provided that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability (or action or proceeding in respect thereof) or
expense arises out of or is based upon an untrue statement or alleged untrue statement or omission
or alleged omission made in such registration statement,
11
any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement
in reliance upon and in conformity with written information furnished to the Company by and through
an instrument duly executed by such holder or underwriter, as the case may be, specifically stating
that it is for use in the preparation thereof and, provided, further that the
Company shall not be liable to any Person who participates as an underwriter in the offering or
sale of Registrable Securities or any other Person, if any, who controls such underwriter within
the meaning of the Securities Act, in any such case to the extent that any such loss, claim,
damage, liability (or action or proceeding in respect thereof) or expense arises out of such
Person’s failure to send or give a copy of the final prospectus, as the same may be then
supplemented or amended, to the Person asserting an untrue statement or alleged untrue statement or
omission or alleged omission at or prior to the written confirmation of the sale of Registrable
Securities to such Person if such statement or omission was corrected in such final prospectus.
Such indemnity shall remain in full force and effect regardless of any investigation made by or on
behalf of such holder or underwriter or any such director, officer, agent, affiliate or controlling
person of such holder or underwriter and shall survive the transfer of such securities by such
holder. The Company also agrees to make such provisions, as are reasonably requested by any
indemnified party, for contribution to such party in the event the Company’s indemnification is
unavailable for any reason.
(b) Indemnification by the Holders. Each holder of Registrable Securities agrees, as
a condition to inclusion in any registration statement, to, and hereby does, indemnify and hold
harmless (in the same manner and to the same extent as set forth in subdivision (a) of this
Section 1.7) the Company, its directors, officers, employees, agents and affiliates and
each other Person, if any, who controls the Company within the meaning of the Securities Act, with
respect to any statement or alleged statement in or omission or alleged omission from such
registration statement, any preliminary prospectus, final prospectus or summary prospectus
contained therein, or any amendment or supplement thereto, if such statement or alleged statement
or omission or alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by and through an instrument duly executed by such holder
specifically stating that it is for use in the preparation of such registration statement,
preliminary prospectus, final prospectus, summary prospectus, amendment or supplement. Such
indemnity shall remain in full force and effect, regardless of any investigation made by or on
behalf of the Company or any such director, officer, employee, agent, affiliate or controlling
person and shall survive the transfer of such securities by such holder. Notwithstanding the
provisions of this paragraph (b), the obligation to indemnify will be several, not joint and
several, among such holders of Registrable Securities, and the liability of each holder will be
limited to, in any event, the net amount received by such holder from the sale of Registrable
Securities pursuant to such registration statement less the amount of any damages that such holder
has otherwise been required to pay by reason of such untrue or alleged untrue statement or
omission.
(c) Notices of Claims, etc. Promptly after receipt by an indemnified party of notice
of the commencement of any action or proceeding involving a claim referred to in the preceding
subdivisions of this Section 1.7, such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party, give written notice to the latter of the
commencement of such action, provided that the failure of any indemnified party to give
notice as provided herein shall not relieve the indemnifying party of its obligations under the
preceding
12
subdivisions of this Section 1.7, except to the extent that the indemnifying party is
actually prejudiced by such failure to give notice. In case any such action is brought against an
indemnified party, unless in the reasonable opinion of counsel to such indemnified party a conflict
of interest between such indemnified party and indemnifying parties may exist in respect of such
claim, the indemnifying party shall be entitled to participate in and to assume the defense
thereof, jointly with any other indemnifying party similarly notified to the extent that it may
wish, with counsel reasonably satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party for any legal or other expenses
subsequently incurred by the latter in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the consent of the indemnified party
(which consent shall not be unreasonably withheld), consent to entry of any judgment or enter into
any settlement which, if an indemnified party is a party to such claim or action, 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.
(d) Other Indemnification. Indemnification similar to that specified in the preceding
subdivisions of this Section 1.7 (with appropriate modifications) shall be given by the
Company and each holder of Registrable Securities with respect to any required registration or
other qualification of securities under any Federal or state law or regulation of any governmental
authority other than the Securities Act.
(e) Indemnification Payments. The indemnification required by this Section
1.7 shall be made by periodic payments of the amount thereof during the course of the
investigation or defense, as and when bills are received or expense, loss, damage or liability is
incurred.
1.8. Adjustments Affecting Registrable Securities. The Company will not effect or
permit to occur any combination or subdivision of shares which would adversely affect the ability
of the holders of Registrable Securities to include such Registrable Securities in any registration
of its securities contemplated by Section 1 or the marketability of such Registrable
Securities under any such registration.
1.9. Holdback Agreements. (a) Each of the holders of Registrable Securities agrees
not to effect any public sale (including sales pursuant to Rule 144) of equity securities of the
Company, or any securities convertible into or exchangeable or exercisable for such securities,
during the seven days prior to and the 90-day period beginning on the effective date of any
underwritten registration (except as part of such underwritten registration), unless the
underwriters managing the registered public offering otherwise agree or pursuant to registrations
on Form S-4 or Form S-8, provided that each holder of Registrable Securities agrees to extend the
90-day period to a period not exceeding 180 days if reasonably requested to do so by the
underwriters managing the registered public offering.
(b) The Company agrees (i) not to effect any public sale or distribution of its equity
securities, or any securities convertible into or exchangeable or exercisable for such securities,
during the seven days prior to and during the 180-day period beginning on the
13
effective date of any underwritten registration (except as part of such underwritten
registration or pursuant to a registration on Form S-4 or Form S-8), unless the underwriters
managing the registered public offering otherwise agree, and (ii) use best efforts to cause each
holder of Registrable Securities and each other holder of 5% or more of its equity securities (or
any securities convertible into or exchangeable for such securities,) on a fully-diluted basis
purchased from the Company at any time (other than in a registered public offering) to agree not to
effect any public sale or distribution (including sales pursuant to Rule 144) of any such
securities during such period (except as part of such underwritten registration, if otherwise
permitted), unless the underwriters managing the registered public offering otherwise agree.
2. Definitions. As used herein, unless the context otherwise requires, the following
terms have the following respective meanings:
“Commission” shall mean the United States Securities and Exchange Commission or any
federal agency at the time administering the Securities Act.
“Common Stock” shall mean all shares now or hereafter authorized and designated as the
Common Stock of the Company and stock of any other class with which such shares may hereafter have
been exchanged or reclassified.
“Company” shall have the meaning set forth in the Recitals.
“Exchange Act” shall mean the United States Securities Exchange Act of 1934, as
amended, and any successor statute thereto.
“Initial Investors” and “Investors” shall have the meanings set forth in the
introduction and shall include the successors and assigns of such Investors.
“Initial Registrable Securities” shall mean the shares of Common Stock issued pursuant
to the Exchange Agreement and any securities issued or issuable with respect to any such Common
Stock by way of stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization or otherwise. Initial Registrable
Securities shall cease to be Initial Registrable Securities when (a) a registration statement with
respect to the sale of such securities shall have become effective under the Securities Act and
such securities shall have been disposed of in accordance with such registration statement, (b)
they shall have been distributed to the public pursuant to Rule 144, or (c) they shall have ceased
to be outstanding. For purposes of this Agreement, a Person shall be deemed to be a holder of
Initial Registrable Securities, and the Initial Registrable Securities shall be deemed to be in
existence, whenever such Person has the right to acquire directly or indirectly such Initial
Registrable Securities (upon conversion or exercise in connection with a transfer of securities or
otherwise, but disregarding any restrictions or limitations upon the exercise of such right),
whether or not such acquisition has actually been effected, and such Person shall be entitled to
exercise the rights of a holder of Initial Registrable Securities hereunder.
“Majority Initiating Holders” means, (i) in the case of a Demand Registration
initiated pursuant to Section 1.1(a)(i) hereof, the Senior Preferred Investors holding a majority
(by number of shares) of the Senior Registrable Securities, and (ii) in the case of a Demand
14
Registration initiated pursuant to Section 1.1(a)(ii) hereof, the Initial Investors holding a
majority (by number of shares) of the Initial Registrable Securities.
“Person” shall mean a corporation, an association, a partnership, a business, an
individual, a limited liability company, a joint stock company, a trust, a joint venture, an
unincorporated organization and a governmental entity or any department, agency or political
subdivision thereof.
“Qualifying Public Offering” shall mean the first underwritten offering of the Common
Stock by the Company to the general public pursuant to a registration statement filed with the
Commission and effective under the Securities Act, in which securities having a price to the public
of not less than $5,000,000 are sold to the public.
“Registrable Securities” shall mean the Initial Registrable Securities and the Senior
Registrable Securities.
“Registration Expenses” shall mean all expenses incident to the Company’s performance
of or compliance with its obligation to register securities under this Agreement, including, but
not limited to, all registration, filing and National Association of Securities Dealers, Inc. fees,
all fees and expenses of complying with securities or blue sky laws; all word processing,
duplicating and printing expenses, messenger and delivery expenses, the fees and disbursements of
counsel for the Company and of its independent public accountants, including the expenses of any
special audits or “cold comfort” letters required by or incident to such performance and
compliance, the fees and disbursements of one counsel to represent all holders of Registrable
Securities who shall be selected by in the case of a Demand Registration, the Majority Initiating
Holders, and, in the case of any other registration, a majority of the Registrable Securities
registered thereby, premiums and other costs of policies of insurance obtained by the Company
against liabilities arising out of the public offering of the Registrable Securities being
registered and any fees and disbursements of underwriters customarily paid by issuers or sellers of
securities (including fees paid to a qualified independent underwriter) and the fees and
disbursements of other Persons retained by the Company, but excluding underwriting discounts and
commissions and transfer taxes, if any.
“Rule 144” shall have the meaning set forth in Section 3 hereof.
“Securities Act” shall mean the United States Securities Act of 1933, as amended, and
any successor statute thereto.
“Senior Preferred Investors” shall have the meaning set forth in the introduction and
shall include the successors and assigns of such Investors.
“Senior Registrable Securities” shall mean the shares of Common Stock issued upon
conversion of the Series C Preferred Stock or thereafter pursuant to the Senior Purchase Agreement,
and any securities issued or issuable with respect to any such Common Stock by way of stock
dividend or stock split or in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization or otherwise. Senior Registrable Securities shall cease to
be Senior Registrable Securities when (a) a registration statement with respect to the
15
sale of such securities shall have become effective under the Securities Act and such
securities shall have been disposed of in accordance with such registration statement, (b) they
shall have been distributed to the public pursuant to Rule 144, or (c) they shall have ceased to be
outstanding. For purposes of this Agreement, a Person shall be deemed to be a holder of Senior
Registrable Securities, and the Senior Registrable Securities shall be deemed to be in existence,
whenever such Person has the right to acquire directly or indirectly such Senior Registrable
Securities (upon conversion or exercise in connection with a transfer of securities or otherwise,
but disregarding any restrictions or limitations upon the exercise of such right), whether or not
such acquisition has actually been effected, and such Person shall be entitled to exercise the
rights of a holder of Senior Registrable Securities hereunder.
3. Rule 144. So long as the Common Stock shall be registered pursuant to the
requirements of Section 12 of the Exchange Act or a registration statement pursuant to the
requirement of the Securities Act, the Company will timely file the reports required to be filed by
it under the Exchange Act and the Securities Act (or, if after filing a registration statement
pursuant to the requirements of Section 12 of the Exchange Act or a registration statement pursuant
to the requirements of the Securities Act, the Company is not required to file such reports, will,
upon the request of any holder of Registrable Securities, make publicly available other
information) and will take such 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 under the Securities Act, as such Rule may be amended from time
to time or (b) any similar rule or regulation hereafter adopted by the Commission (“Rule
144”). Upon the request of any holder of Registrable Securities, the Company will deliver to
such holder a written statement as to whether it has complied with the reporting requirements of
said Rule 144, the Securities Act and the Exchange Act; a copy of the most recent annual or
quarterly report of the Company; and such other reports and documents as such Person may reasonably
request in availing itself of any rule or regulation of the Commission allowing it to sell any such
securities without registration.
4. Amendments and Waivers. This Agreement may be amended and the Company may take any
action herein prohibited or omit to perform any act herein required to be performed by it, only if
the Company shall have obtained the written consent to such amendment, action or omission to act,
of the Company and the holder or holders of (i) at least 60% of the Initial Registrable Securities,
provided, that no amendment shall be effective to the extent that it does not apply equally to all
holders of Initial Registrable Securities unless it is approved by all of the Initial Investors,
and (ii) the holders of a majority of the Senior Registrable Securities held by Senior Preferred
Investors. Each holder of any Registrable Securities at the time or thereafter outstanding shall
be bound by any consent authorized by this Section 4, whether or not such Registrable
Securities shall have been marked to indicate such consent.
5. Nominees for Beneficial Owners. In the event that any Registrable Securities are
held by a nominee for the beneficial owner thereof, the beneficial owner thereof may, at its
election by written notice to the Company effective upon receipt by the Company, be treated as the
holder of such Registrable Securities for purposes of any request or other action by any holder or
holders of Registrable Securities pursuant to this Agreement or any determination of
16
any number or percentage of shares of Registrable Securities held by any holder or holders of
Registrable Securities contemplated by this Agreement. If the beneficial owner of any Registrable
Securities so elects, the Company may require assurances reasonably satisfactory to it of such
owner’s beneficial ownership of such Registrable Securities. Prior to receipt by the Company of
written notice contemplated hereby, any action taken by any nominee shall be binding upon any such
beneficial owner.
6. Registration Rights. The Company will not grant any right of registration under
the Securities Act relating to any of its shares of capital stock or other securities to any Person
other than pursuant to this Agreement, unless holders of Registrable Securities shall be entitled
to have included in any registration effected pursuant to Section 1.2 all Registrable
Securities requested by them to be so included prior to the inclusion of any securities requested
to be registered by the Persons entitled to any such other registration rights.
7. Notices. Any notice provided for in this Agreement must be in writing and shall be
deemed duly received (a) when personally delivered, (b) five (5) days after being deposited in the
United States mail, registered or certified mail, return receipt requested, or (c) one (1) business
day after being deposited with a reputable overnight courier service. Such notices shall be
delivered to (i) the Company at Xxxxx Media Company, 000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000,
Xxxxxxxxxxx, Xxxxxxxxx 00000, Attn: Xxxxx Xxxxx, President, (ii) the Investors to the address
indicated on the stock record book of the Company, or (iii) such other address or to the attention
of such other Person as the recipient party shall have specified by prior written notice to the
sending party.
8. Assignment. This Agreement shall be binding upon and inure to the benefit of and
be enforceable by the parties hereto and their respective successors and assigns. In addition, and
whether or not any express assignment shall have been made, the provisions of this Agreement which
are for the benefit of the parties hereto other than the Company shall also be for the benefit of
and enforceable by any subsequent holder of any Registrable Securities, subject to all the
provisions herein, including those respecting the minimum numbers or percentages of shares of
Registrable Securities required in order to be entitled to certain rights, or take certain actions,
contained herein.
9. Descriptive Headings. The descriptive headings of the several sections and
paragraphs of this Agreement are inserted for convenience of reference only and shall not limit or
otherwise affect the meaning hereof.
10. Specific Performance. The parties hereto recognize and agree that money damages
may be insufficient to compensate the holders of any Registrable Securities for breaches by the
Company of terms hereof and, consequently, that the equitable remedy or specific performance of the
terms hereof will be available in the event of any such breach.
11. Governing Law. This Agreement is governed by the laws of the State of Delaware
without regard to the conflicts of law provisions thereof.
17
12. Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original, but all such counterparts shall together constitute one and
the same instrument.
13. Delivery by Facsimile. This Agreement and any amendments hereto, to the extent
signed and delivered by means of a facsimile machine or other electronic transmission, shall be
treated in all manner and respects and for all purposes as an original agreement and shall be
considered to have the same binding legal effect as if it were the original signed version thereof
delivered in person. At the request of any party hereto, each other party hereto shall re-execute
original forms hereof and deliver them to all other parties. No party hereto shall raise the use
of a facsimile machine or other electronic transmission to deliver a signature or the fact that any
signature was transmitted or communicated through the use of a facsimile machine or other
electronic transmission as a defense to the formation or enforceability of a contract and each such
party forever waives any such defense.
14. Entire Agreement. This Agreement sets forth the entire understanding of the
parties, and supersedes and preempts all prior oral or written understandings and agreements with
respect to the subject matter hereof, including, without limitation, the Original Registration
Rights Agreement, and shall not be modified or affected by any offer, proposal, statement or
representation, oral or written, made by or for any party in connection with the negotiation of the
terms hereof except in accordance with Section 4.
15. Severability. Whenever possible, each provision of this Agreement will be
interpreted in such manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be prohibited by or invalid under applicable law, such provision will
be ineffective only to the extent of such prohibition or invalidity, without invalidating the
remainder of this Agreement.
16. No Inconsistent Agreements. The Company will not enter into any agreement which
is inconsistent with or violates the rights granted to the holders of Registrable Securities in
this Agreement.
[Remainder of Page Intentionally Left Blank.
Signature Pages to Follow.]
Signature Pages to Follow.]
18
IN WITNESS WHEREOF, the parties have caused this Amended and Restated Registration Rights
Agreement to be executed and delivered by their respective officers thereunto duly authorized as of
the date first above written.
| XXXXX MEDIA COMPANY | ||||||
| By: | /s/ Xxxxx X. Xxxxx
|
|||||
| Name: Xxxxx X. Xxxxx | ||||||
| Its: President | ||||||
[SIGNATURE PAGE TO XXXXX MEDIA COMPANY
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT]
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT]
SIGNATURE BLOCK FOR INDIVIDUAL AND JOINT ACCOUNTS
| Mr. | ||||||||||||
(1)
|
Mrs. | Signature: | ||||||||||
| Ms. | Date: | |||||||||||
| Joint Tenant/Tenant in Common (if applicable): | ||||||||||||
| Mr. | ||||||||||||
(2)
|
Mrs. | Signature: | ||||||||||
| Ms. | Date: | |||||||||||
| TYPE OF OWNERSHIP: | ||||||||||||
| Individual | Joint Tenants with Right of Survivorship |
|||||||||||
| Tenants in Common | Community Property | |||||||||||
| (check only if a resident of a Community Property State) | ||||||||||||
SIGNATURE BLOCK FOR ENTITIES
| Print Name: | ||||||
| By: | ||||||
| (Signer’s Printed Name) | ||||||
| Its: | ||||||
| Date: | ||||||
Partnership
Corporation
Limited Liability Company
Trust
Bank
Other (Please describe: )
Corporation
Limited Liability Company
Trust
Bank
Other (Please describe: )
[SIGNATURE PAGE TO XXXXX MEDIA COMPANY
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT]
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT]
SCHEDULE I
The AB Two L.L.C
ABS Capital Partners, L.P.
ABS Employees’ Venture Fund Limited Partnership
BG Media Investors X.X.
Xxxxxx Xxxxx
Capital Communications CDPQ Inc.
Cherry Tree Ventures IV Limited Partnership
Xxxxx X. Xxxxxx Trust
Deutsche Bank Xxxx Xxxxx LLC
DMIC LLC
Evensong, L.L.C.
XX Xxxxxx Irrevocable Trust for the Benefit of Xxxxxx X. Xxxxxx
XX Xxxxxx Irrevocable Trust for the Benefit of Xxxx X. Xxxxxx
XX Xxxxxx Irrevocable Trust for the Benefit of Xxxxxx X. Xxxxxx
XX Xxxxxx Irrevocable Trust for the Benefit of Xxxxxxxx X. Xxxxxx
infoUSA, inc.
Jamestown Investments X.X.
Xxxxxxx Family Limited Partnership
Ocean Assets LLC Florida Tangible Tax Trust
Parsnip River Company, L.P.
Pictet & Cie
Prudent A L.L.C.
S-1
The Prudential Insurance Company of America
Xxxxxx X. Xxxxx, Xx. Trustee for Xxxxxx X. Xxxxx, Xx. Revocable Trust dated July 21, 1997
Xxxxxx Xxxxxxx XX Inc. C/F X. Xxxxx Xxxxxxxxx,
XXX Rollover A/C 000-000000-000
XXX Rollover A/C 000-000000-000
The Xxxxxxx Xxxxxx Trust Company TTEE
Schnader, Harrison, Xxxxx & Xxxxx Retirement & Savings Plan
FBO Xxxxxxx X. Xxxxxxxxxx
Schnader, Harrison, Xxxxx & Xxxxx Retirement & Savings Plan
FBO Xxxxxxx X. Xxxxxxxxxx
Universal Computer Systems Inc.
USA Fund, LLLP
Vespers, L.L.C.
Von Graffenreid A.G.
Willou & Co
Xxxxxxxxx Xxxx
Xxxxxxxx X. Xxxxxxx
Xxxx X. Xxxxxx
Xxxxxx Xxxx
Xxxx Xxxxxxxxx
Xxxxxxx Xxxxxx
Xxxx X. Xxxxxxx
Xxxxxxx Xxxxx
Xxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Xxxxx X. Xxxxxxxxxx
Xxxxxxx X. Xxxxxxxxxx
S-2
Xxxxxxxxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Xxxxxx Xxxxxxxx
Xxxxxx X. Xxxxxxxx
Xxxx Xxxxxxxxxx
Xxxxx Xxxx
Xxxx Xxxxxxxxx
Xxxx X. Xxxxxxx
Xxxxx Xxxx
Xxxxxx XxXxxxx
Xxxxxxx XxXxxxxx
Xxxx Melon
Xxxxx Mio
Xxxx X. Xxxxxxx
Xxxxx X. Xxxxxx (Xxxxx)
Xxxxxx X. Xxxxxxx
Xxxxxx Xxxxxxxxxx
Xxxx X. Xxx
X. Xxxxxxxxx Xxxxxxxx
Xxxxx Xxxxxxxxx
Xxxxxxxx Xxxxxxxx
Xxxxx Xxxx Xxxxxxxxxx
S-3
Xxxxxx X. Xxxxxxx
Xxxxx Xxxxxxxx Xxxxxx
Xxxx Xxxxxxx
Xxx Xxxxxxxxx
Xxxx Xxx Xxxxxxx
Xxx Xxxxxx
S-4
SCHEDULE II
ABRY Mezzanine Partners, X.X.
XXXX Investment Partners, X.X.
Xxxxxx de Dépôt et Placement du Québec
Media Power Limited Partnership
Xxxxx X. Xxxxxx Trust
DMIC LLC
Parsnip River Company, L.P.
S-5
