REGISTRATION RIGHTS AGREEMENT
January 7, 1999
To the several persons named
at the foot hereof
Ladies and Gentlemen:
This will confirm that in consideration of the purchase by those
investors listed on Schedule I hereof (collectively, the "WCAS Purchasers"), the
investors listed on Schedule II hereof (collectively, the "Blackstone
Purchasers"), the investors listed on Schedule III hereof (collectively, the
"Signal Purchasers") and the investors listed on Schedule IV hereof (the
"Management Purchasers," and collectively with the WCAS Purchasers, the
Blackstone Purchasers and the Signal Purchasers, the "Purchasers"), on the date
hereof of an aggregate 9,638,554 shares of Class A Common Stock, $.01 par value
(the "Common Stock"), of CCW ACQUISITION CORP., a Delaware corporation (the
"Company"), pursuant to the Securities Purchase Agreement, dated as of December
29, 1998 (the "Purchase Agreement"), among the Company and the Purchasers, and
as an inducement to you, and a condition to your obligations, to consummate the
transactions contemplated by the Purchase Agreement, the Company hereby
covenants and agrees with each of you, and with each subsequent holder of
Restricted Stock (as such term is defined herein), as follows:
1. Certain Definitions. As used herein, the following terms shall have
the following respective meanings:
"Commission" shall mean the Securities and Exchange Commission, or any
other federal agency at the time administering the Securities Act.
"Common Stock" shall mean the Class A Common Stock, $.01 par value, of
the Company, as constituted as of the date of this Agreement, subject to
adjustment pursuant to the provisions of Section 9 hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934 or any
similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Registration Expenses" shall mean the expenses so described in
Section 7 hereof.
"Restricted Stock" shall mean any shares of capital stock of the
Company, the certificates for which are required to bear the legend set
forth in Section 2 hereof, held by any party to this Agreement.
"Securities Act" shall mean the Securities Act of 1933 or any similar
federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Selling Expenses" shall mean the expenses so described in Section 7
hereof.
2. Restrictive Legend. Each certificate representing the Common Stock,
other than Common Stock transferred in a public sale or as otherwise permitted
by Section 3 hereof, shall be stamped or otherwise imprinted with a legend
substantially in the following form:
"THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS THEY HAVE BEEN REGISTERED UNDER
THAT ACT OR AN EXEMPTION FROM REGISTRATION IS
AVAILABLE."
3. Notice of Proposed Transfer. In addition to any restrictions set
forth in the Stockholders Agreement, dated as of the date hereof among the
Company and the Purchasers, prior to any proposed transfer of any Restricted
Stock (other than under the circumstances described in Section 4 or 5 hereof),
the holder thereof shall give written notice to the Company of its intention to
effect such transfer. Each such notice shall describe the manner of the proposed
transfer and, if reasonably requested by the Company, shall be accompanied by an
opinion of counsel reasonably satisfactory to the Company to the effect that the
proposed transfer of the Restricted Stock may be effected without registration
under the Securities Act, whereupon the holder of such Restricted Stock shall be
entitled to transfer such Restricted Stock in accordance with the terms of its
notice; provided, however, that no such opinion or other documentation shall be
required if such notice shall cover a pro rata distribution (without payment of
additional consideration) by any Purchaser that is a partnership or limited
liability company to its partners or members, as the case may be. Each
certificate for Restricted Stock transferred as above provided shall bear the
legend set forth in Section 2, unless (i) such transfer is in accordance with
the provisions of Rule 144 (or any other rule permitting public sale without
registration under the Securities Act or is pursuant to an effective
registration under the Securities Act) or (ii) the opinion of counsel referred
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to above is to the further effect that (or, if no opinion is required, the
Company determines that) the transferee and any subsequent transferee (other
than an affiliate of the Company) would be entitled to transfer such securities
in a public sale without registration under the Securities Act.
The foregoing restrictions on transferability of Restricted Stock
shall terminate as to any particular shares of Restricted Stock when such shares
shall have been effectively registered under the Securities Act and sold or
otherwise disposed of in accordance with the intended method of disposition by
the seller or sellers thereof set forth in the registration statement concerning
such shares. Whenever a holder of Restricted Stock is able to demonstrate to the
Company (and its counsel) that the provisions of Rule 144(k) of the Securities
Act are available to such holder without limitation, such holder of Restricted
Stock shall be entitled to receive from the Company, without expense, a new
certificate not bearing the restrictive legend set forth in Section 2.
4. Required Registration.
(a) At any time after the fourth anniversary of the date hereof, the
holders of a majority of the outstanding Restricted Stock then held by the
WCAS Purchasers or the Blackstone Purchasers may request the Company to
register under the Securities Act all or any portion of the Restricted
Stock held by such requesting holder or holders for sale in the manner
specified in such notice; provided, however, that neither the WCAS
Purchasers nor the Blackstone Purchasers may request registration pursuant
to this Section 4 more than once every six months.
(b) Promptly following receipt of any notice under this Section 4, the
Company shall immediately notify any holders of Restricted Stock from whom
notice has not been received and shall use its best efforts to register as
soon as possible under the Securities Act, for public sale in accordance
with the method of disposition specified in such notice from the original
requesting holders, the number of shares of Restricted Stock specified in
such notice (and in any notices received from other holders of Restricted
Stock within 20 days after their receipt of such notice from the Company);
provided, however, that if the proposed method of disposition specified by
the original requesting holders shall be an underwritten public offering,
the number of shares of Restricted Stock to be included in such an offering
may be reduced (pro rata among the requesting holders of Restricted Stock
based on the number of shares of Restricted Stock so requested to be
registered) if and to the extent that the managing underwriter shall be of
the opinion that such inclusion would adversely affect the marketing of the
Restricted Stock to be sold. In the event that the proposed method of
disposition specified by the original requesting holders shall be an
underwritten public offering, the original requesting holders may choose
the managing underwriter (which shall be a nationally recognized investment
banking firm), subject to the consent of the Company (which shall not be
unreasonably withheld). Notwithstanding anything to the contrary contained
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herein, the obligation of the Company under this Section 4 shall be deemed
satisfied only when a registration statement covering all shares of
Restricted Stock specified in notices received as aforesaid (subject to any
cutbacks as contemplated hereinabove), for sale in accordance with the
method of disposition specified by the requesting holder, shall have become
effective and, if such method of disposition is a firm commitment
underwritten public offering, all such shares shall have been sold pursuant
thereto.
(c) The Company shall be entitled to include in any registration
statement referred to in this Section 4, for sale in accordance with the
method of disposition specified by the requesting holders, shares of Common
Stock to be sold by the Company for its own account, except as and to the
extent that, in the opinion of the managing underwriter (if such method of
disposition shall be an underwritten public offering), such inclusion would
adversely affect the marketing of the Restricted Stock to be sold (and in
such event, such shares to be sold by the Company for its own account shall
be reduced or eliminated before any reduction in the number of shares to be
sold by requesting holders pursuant to Section 4(b)). Except as provided in
this paragraph (c), the Company will not effect any other registration of
its Common Stock, whether for its own account or that of other holders,
from the date of receipt of a notice from requesting holders pursuant to
this Section 4 until the completion of the period of distribution of the
registration con templated thereby.
5. Incidental Registration. If the Company at any time (other than
pursuant to Section 4 hereof) proposes to register any of its Common Stock under
the Securities Act for sale to the public, whether for its own account or for
the account of other securityholders or both (except with respect to
registration statements on Form S-4 or S-8 or another form not available for
registering the Restricted Stock for sale to the public), it will give written
notice at such time to all holders of outstanding Restricted Stock of its
intention to do so. Upon the written request of any such holder, given within 20
days after receipt of any such notice by the Company, to register any of its
Restricted Stock (which request shall state the intended method of disposition
thereof), the Company will use its best efforts to cause the Restricted Stock,
as to which registration shall have been so requested, to be included in the
securities to be covered by the registration statement proposed to be filed by
the Company, all to the extent requisite to permit the sale or other disposition
by the holder (in accordance with its written request) of such Restricted Stock
so registered; provided that nothing herein shall prevent the Company from
abandoning or delaying such registration at any time. In the event that any
registration pursuant to this Section 5 shall be, in whole or in part, an
underwritten public offering of Common Stock, any request by a holder pursuant
to this Section 5 to register Restricted Stock shall specify that either (i)
such Restricted Stock is to be included in the underwriting on the same terms
and conditions as the shares of Common Stock otherwise being sold through
underwriters under such registration or (ii) such Restricted Stock is to be sold
in the open market without any underwriting, on terms and conditions comparable
to those normally applicable to offerings of common stock in reasonably similar
circumstances. The number of shares of Restricted Stock to be included in such
an underwriting may be reduced (pro rata among the holders of Restricted
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Stock requesting registration pursuant to this Section 5 based upon the number
of shares of Restricted Stock so requested to be registered) if and to the
extent that the managing underwriter shall be of the opinion that such inclusion
would adversely affect the marketing of the securities to be sold by the Company
therein; provided, however, that such number of shares of Restricted Stock shall
not be reduced if any shares are to be included in such underwriting for the
account of any person other than the Company and the holders of Restricted
Stock.
Notwithstanding anything to the contrary contained in Section 4 or 5
hereof, in the event that there is a firm commitment underwritten public
offering of securities of the Company pursuant to a registration covering
Restricted Stock and a holder of Restricted Stock does not elect to sell his
Restricted Stock to the underwriters of the Company's securities in connection
with such offering, such holder shall, to the extent required by such
underwriters with respect to all holders of Restricted Stock, refrain from
selling such Restricted Stock so registered pursuant to this Section 5 during
the period of distribution of the Company's securities by such underwriters and
the period in which the underwriting syndicate participates in the after market;
provided, however, that such holder shall, in any event, be entitled to sell its
Restricted Stock commencing on the 120th day after the effective date of such
registration statement.
6. Registration Procedures and Expenses. If and whenever the Company
is required by the provisions of Section 4 or 5 hereof to use its best efforts
to effect the registration of any of the Restricted Stock under the Securities
Act, the Company will, as expeditiously as possible:
(a) prepare (and afford counsel for the selling holders reasonable
opportunity to review and comment thereon) and file with the Commission a
registration statement (which, in the case of an underwritten public
offering pursuant to Section 4 hereof, shall be on Form X-0, X-0 or another
form of general applicability satisfactory to the managing underwriter
selected as therein provided) with respect to such securities and use its
best efforts to cause such registration statement to become and remain
effective for the period of the distribution contemplated thereby
(determined as hereinafter provided);
(b) prepare (and afford counsel for the selling holders reasonable
opportunity to review and comment thereon) and file with the Commission
such amendments and supplements to such registration statement and the
prospectus used in connection therewith and any documents incorporated by
reference therein and file such other documents as may be necessary to keep
such registration statement effective for the period specified in paragraph
(a) above and to comply with the provisions of the Securities Act with
respect to the disposition of all Restricted Stock covered by such
registration statement in accordance with the sellers' intended method of
disposition set forth in such registration statement for such period;
(c) furnish to each seller and to each underwriter such number of
copies of the registration statement and the prospectus included therein
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(including each preliminary prospectus), and all amendments, supplements,
and exhibits thereto, and such other documents as such persons may
reasonably request in order to facilitate the public sale or other
disposition of the Restricted Stock covered by such registration statement
(and the Company hereby consents to the use of any such prospectus,
together with such supplements and amendments, by the sellers and
underwriters, if any, in connection with the offer and sale covered
thereby);
(d) use its best efforts to register or qualify the Restricted Stock
covered by such registration statement under the securities or blue sky
laws of such jurisdictions as the sellers of Restricted Stock or, in the
case of an underwritten public offering, the managing underwriter, shall
reasonably request (provided that the Company will not be required to (i)
qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this paragraph (d), (ii) subject
itself to taxation in any such jurisdiction or (iii) consent to general
service of process in any jurisdiction);
(e) immediately notify each seller under such registration statement
and each underwriter, (i) when such registration statement or any
post-effective amendment or supplement thereto becomes effective; (ii) of
the issuance by the SEC or any state securities authority of any stop
order, injunction or other order or requirement suspending the
effectiveness of such registration statement (and the Company shall use
best efforts to prevent the initiation of proceedings for, prevent the
entry of and/or remove such order or requirement); or (iii) of the
happening of any event as a result of which such registration statement, as
then in effect, the prospectus contained therein or any document
incorporated by reference therein 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 then existing;
(f) use its best efforts to furnish, at the request of any seller, on
the date that Restricted Stock is delivered to the underwriters for sale
pursuant to such registration, if such securities are being sold through
underwriters, or on the date that the registration statement becomes
effective, if such securities are not being sold through underwriters: (i)
an opinion dated such date of counsel representing the Company for the
purposes of such registration, addressed to the underwriters, if any, and
to such seller, stating that such registration statement has become
effective under the Securities Act and that (A) to the best knowledge of
such counsel, no stop order suspending the effectiveness thereof has been
issued and no proceedings for that purpose have been instituted or are
pending or contemplated under the Securities Act, (B) the registration
statement, the related prospectus, and each amendment or supplement
thereof, comply as to form in all material respects with the requirements
of the Securities Act and the applicable rules and regulations of the
Commission thereunder (except that such counsel need express no opinion as
to financial statements, the notes thereto, and the financial schedules and
other financial and statistical data contained therein) and (C) to such
other effects as may reasonably be requested by counsel for the
underwriters or by such seller or its counsel, and (ii) a letter dated
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such date from the independent public accountants retained by the Company,
addressed to the underwriters, if any, and to such sellers stating that
they are independent public accountants within the meaning of the
Securities Act and that, in the opinion of such accountants, the financial
statements of the Company included in the registration statement or the
prospectus, or any amendment or supplement thereof, comply as to form in
all material respects with the applicable accounting requirements of the
Securities Act, and such letter shall additionally cover such other
financial matters (including information as to the period ending no more
than five business days prior to the date of such letter) with respect to
the registration in respect of which such letter is being given as such
underwriters or sellers may reasonably request;
(g) take such actions as may be necessary or appropriate to obtain a
CUSIP number (if none exists) for the Common Stock, and make all filings
and secure all approvals required pursuant to the regulations of the
National Association of Securities Dealers, Inc. in connection with such
registration;
(h) take such actions as may be necessary or appropriate to cause the
Restricted Stock so to be registered to be listed on the principal
securities exchange (or on the NASDAQ National Market System, as the case
may be) on which the Company's Common Stock is then traded (or, in the case
of an initial public offering, on such national securities exchange (or on
the NASDAQ National Market System) as the Company shall elect);
(i) use its best efforts to comply with all applicable rules and
regulations of the SEC, and make available to any holder of Restricted
Stock, as soon as reasonably practicable (but not more than 15 months)
after the effective date of the registration statement, an earnings
statement which shall satisfy the provisions of Section 11(a) of the
Securities Act and the rules and regulations promulgated thereunder; and
(j) make available for inspection by each seller, any underwriter
participating in any distribution pursuant to such registration statement,
and any attorney, accountant or other agent retained by such seller 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
seller, underwriter, attorney, accountant or agent in connection with such
registration statement and permit such seller, attorney, accountant or
agent to participate in the preparation of such registration statement.
For purposes of paragraphs (a) and (b) above and of Section 4(c) hereof, the
period of distribution of Restricted Stock in a firm commitment underwritten
public offering shall be deemed to extend until each underwriter has completed
the distribution of all securities purchased by it, and the period of
distribution of Restricted Stock in any other registration shall be deemed
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to extend until the earlier of the sale of all Restricted Stock covered thereby
or six months after the effective date thereof.
In connection with each registration hereunder, the selling holders of
Restricted Stock will furnish to the Company in writing such information with
respect to themselves and the proposed distribution by them as shall be
reasonably necessary in order to assure compliance with federal and applicable
state securities laws.
In connection with each registration pursuant to Sections 4 and 5
hereof covering an underwritten public offering, the Company agrees to enter
into a written agreement with the managing underwriter selected in the manner
herein provided in such form and containing such provisions as are customary in
the securities business for such an arrangement between major underwriters and
companies of the Company's size and investment stature; provided, however, that
such agreement shall not contain any such provision applicable to the Company
which is inconsistent with the provisions hereof and provided, further, however,
that the time and place of the closing under said agreement shall be as mutually
agreed upon among the Company, such managing underwriter and the selling holders
of Restricted Stock.
7. Expenses. All expenses incurred by the Company in complying with
Sections 4 and 5 hereof, including, without limitation, all registration,
listing and filing fees, printing expenses, fees and disbursements of counsel
and independent public accountants for the Company (including with respect to
any special audit or "cold comfort" letters), fees of the National Association
of Securities Dealers, Inc., transfer taxes and fees of transfer agents and
registrars, as well as fees and expenses of counsel for the sellers of
Restricted Stock, but excluding any Selling Expenses, are herein called
"Registration Expenses." All underwriting discounts and selling commissions
applicable to the sale of Restricted Stock are herein called "Selling Expenses."
The Company will pay all Registration Expenses in connection with each
registration statement filed pursuant to Section 4 or 5 hereof. All Selling
Expenses in connection with any registration statement filed pursuant to Section
4 or 5 hereof shall be borne by the participating sellers in proportion to the
number of shares sold by each, or by such persons other than the Company (except
to the extent the Company shall be a seller) as they may agree.
8. Indemnification. In the event of a registration of any of the
Restricted Stock under the Securities Act pursuant to Section 4 or 5 hereof, the
Company will indemnify and hold harmless, to the fullest extent permitted by
law, each seller of such Restricted Stock thereunder, each underwriter of
Restricted Stock thereunder, each of their respective affiliates, each of their
and their affiliates' respective directors, officers, fiduciaries, agents,
employees, stockholders, general and limited partners and members, and each
other person, if any, who controls such seller or underwriter within the meaning
of the Securities Act, against any losses, claims, damages or liabilities, joint
or several, actions or proceedings (whether commenced or threatened) in respect
thereof (all of the foregoing, collectively, "Claims") and expenses (including
8
fees and expenses of counsel, and amounts paid in any settlement effected with
the Company's consent, which consent shall not be unreasonably withheld or
delayed) to which such indemnified party may become subject under the Securities
Act or otherwise, insofar as such Claims or expenses 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 Restricted Stock was
registered under the Securities Act pursuant to Section 4 or 5, any preliminary
prospectus, summary or final prospectus contained therein, or any amendment or
supplement of any thereof, or any documents incorporated by reference therein,
or arise out of or are based upon the 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 will reimburse each such indemnified
party for any legal or other expenses incurred by them in connection with
investigating or defending any such Claim; provided, however, that the Company
will not be liable to any such indemnified party if and to the extent that any
such Claim or expense arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission so made in conformity
with information pertaining to such indemnified party furnished by such
indemnified party in writing specifically for use in such registration statement
or prospectus.
In the event of a registration of any of the Restricted Stock under
the Securities Act pursuant to Section 4 or 5 hereof, each seller of such
Restricted Stock thereunder, severally and not jointly, will indemnify and hold
harmless, to the fullest extent permitted by law, the Company and each person,
if any, who controls the Company within the meaning of the Securities Act, each
officer of the Company who signs the registration statement, each director of
the Company, each underwriter and each person who controls any underwriter
within the meaning of the Securities Act, each other stockholder selling
Restricted Stock under such registration statement and each affiliate, officer,
director, fiduciary, agent, employee, stockholder, general or limited partner or
member of such selling stockholder against all Claims and expenses (including
fees and expenses of counsel, and amounts paid in any settlement effected with
the Company's consent, which consent shall not be unreasonably withheld or
delayed) to which the Company or such officer or director or underwriter or
controlling person may become subject under the Securities Act or otherwise,
insofar as such Claims or expenses arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in the
registration statement under which such Restricted Stock was registered under
the Securities Act pursuant to Section 4 or 5, any preliminary prospectus,
summary or final prospectus contained therein, or any amendment or supplement of
any thereof, or any documents incorporated by reference therein, or arise out of
or are based upon the 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 will reimburse the Company and each such indemnified party
for any legal or other expenses incurred by them in connection with
investigating or defending any such Claim; provided, however, that such seller
will be liable hereunder to any such indemnified party if and only to the extent
that any such Claim or expense arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
reliance upon and in conformity with information pertaining to such seller, as
such, furnished in writing to the Company by such indemnified party specifically
for use in such registration statement or prospectus; provided, further,
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however, that the liability of each seller hereunder shall be limited to the
proceeds (net of underwriting discounts and commissions) received by such seller
from the sale of Restricted Stock covered by such registration statement.
Promptly after receipt by an indemnified party hereunder of notice of
the commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party hereunder, notify
the indemnifying party in writing thereof, but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
such indemnified party under this Section 8 except to the extent such
indemnifying party is materially prejudiced thereby, and in any event will not
relieve such indemnifying party from any liability which it may have to any
indemnified party other than under this Section 8. In case any such action shall
be brought against any indemnified party and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be entitled to
participate in and, to the extent it shall wish, to assume and undertake the
defense thereof with counsel satisfactory to such indemnified party, and, after
notice from the indemnifying party to such indemnified party of its election so
to assume and undertake the defense thereof, the indemnifying party shall not be
liable to such indemnified party under this Section 8 for any legal expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation and of liaison with counsel
so selected; provided, however, that, if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be reasonable
defenses available to it which are different from or additional to those
available to the indemnifying party, or if the interests of the indemnified
party reasonably may be deemed to conflict with the interests of the
indemnifying party, or if the indemnifying party shall not diligently continue
such defense in good faith, the indemnified party shall have the right to select
a separate counsel and to assume such legal defenses and otherwise to
participate in the defense of such action, with the expenses and fees of such
separate counsel and other expenses related to such participation to be
reimbursed by the indemnifying party as incurred.
Notwithstanding the foregoing, any indemnified party shall have the
right to retain its own counsel in any such action, but except as set forth
above the fees and disbursements of such counsel shall be at the expense of such
indemnified party unless (i) the indemnifying party shall have failed to retain
counsel for the indemnified person as aforesaid or (ii) the indemnifying party
and such indemnified party shall have mutually agreed to the retention of such
counsel. It is understood that the indemnifying party shall not, in connection
with any action or related actions in the same jurisdiction, be liable for the
fees and disbursements of more than one firm (together with local counsel) to
act as counsel for the indemnified party. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written consent
(which shall not be unreasonably withheld or delayed), but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. No indemnifying party shall,
without the written consent of the indemnified party (which shall not be
unreasonably withheld or delayed), effect the settlement or compromise of, or
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consent to the entry of any judgment with respect to, any pending or threatened
action in respect of which indemnification may be sought hereunder (whether or
not the indemnified party is an actual or potential party to such action) unless
such settlement, compromise or judgment (i) includes an unconditional release of
such indemnified party from all liability arising out of such action and (ii)
does not include a statement as to or an admission of fault, culpability or a
failure to act by or on behalf of such indemnified party.
If for any reason the indemnification provided for in the first two
paragraphs of this Section 8 is unavailable or insufficient to hold harmless an
indemnified party under such paragraphs in respect of any Claims or expenses in
respect thereof referred to therein, then each indemnifying party shall in lieu
of indemnifying such indemnified party contribute to the amount paid or payable
by such indemnified party as a result of such Claims or expenses in such
proportion as appropriate to reflect the relative fault of the Company, on the
one hand, and the underwriters and the sellers of such Restricted Stock, on the
other, in connection with the statements or omissions which resulted in such
Claims or expenses as well as any other relevant equitable considerations,
including the failure to give any notice under the third paragraph of this
Section 8. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact
relates to information supplied by the indemnifying party, on the one hand, or
the indemnified party, on the other, and to the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and each of you agree that it would not be
just and equitable if contributions pursuant to this paragraph were determined
by pro rata allocation (even if all of the sellers of such Restricted Stock were
treated as one entity for such purpose) or by any other method of allocation
which did not take account of the equitable considerations referred to above in
this paragraph. The amount paid or payable by an indemnified party as a result
of the Claims and expenses in respect thereof, referred to above in this
paragraph, shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this paragraph, no
seller of such Restricted Stock or related indemnified party shall be required
to contribute any amount in excess of the amount of proceeds (net of
underwriting discounts and commissions) received by such seller from the sale of
Restricted Stock covered by such registration statement. No person guilty of
fraudulent misrepresentations (within the meaning of Section 11(f) of the
Securities Act), shall be entitled to contribution from any person who is not
guilty of such fraudulent misrepresentation.
The indemnification of underwriters provided for in this Section 8
shall be on such other terms and conditions as are at the time customary and
reasonably required by such underwriters. In that event the indemnification of
the sellers of Restricted Stock in such underwriting shall at the sellers'
request be modified to conform to such terms and conditions.
The indemnification and contribution agreements contained herein shall
be in addition to any other rights to indemnification and contribution which any
indemnified party may have pursuant to law or contract or otherwise, shall
remain operative and in full force and effect regardless of any investigation
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made or omitted by or on behalf of any indemnified party and shall survive the
transfer of Restricted Stock by any such party.
9. Changes in Common Stock. If, and as often as, there are any changes
in the Common Stock by way of stock split, stock dividend, combination or
reclassification, or through merger, consolidation, reorganization or
recapitalization, or by any other means, appropriate adjustment shall be made in
the provisions hereof, as may be required, so that the rights and privileges
granted hereby shall continue with respect to the Common Stock as so changed.
10. Representations and Warranties of the Company. The Company
represents and warrants to you as follows:
(a) The execution, delivery and performance of this Agreement by the
Company have been duly authorized by all requisite corporate action and
will not violate any provision of law, any order of any court or other
agency of government, the Certificate of Incorporation or By-laws of the
Company, or any provision of any indenture, agreement or other instrument
to which it or any of its properties or assets is bound, or conflict with,
result in a breach of or constitute (with due notice or lapse of time or
both) a default under any such indenture, agreement or other instrument, or
result in the creation or imposition of any lien, charge or encumbrance of
any nature whatsoever upon any of the properties or assets of the Company.
(b) This Agreement has been duly executed and delivered by the Company
and constitutes the legal, valid and binding obligation of the Company,
enforceable in accordance with its terms, subject to considerations of
public policy in the case of the indemnification provisions hereof.
(c) The Company hereby incorporates by reference and makes the
representations and warranties set forth in the Purchase Agreement, to the
extent applicable to this Agreement or the transactions contemplated
hereby, as of the date hereof.
11. Rule 144 Reporting. The Company agrees with you as follows:
(a) The Company shall make and keep public information available, as
those terms are understood and defined in Rule 144 under the Securities
Act, at all times as it is able to do so.
(b) The Company shall file with the Commission in a timely manner all
reports and other documents as the Commission may prescribe under Section
13(a) or 15(d) of the Exchange Act at any time that the Company is subject
to such reporting requirements of the Exchange Act.
12
(c) The Company shall furnish to any holder of Restricted Stock
forthwith upon request (i) a written statement by the Company as to its
compliance with the reporting requirements of Rule 144, and of the
Securities Act and the Exchange Act, (ii) a copy of the most recent annual
or quarterly report of the Company, and (iii) such other reports and
documents so filed as a holder may reasonably request to avail itself of
any rule or regulation of the Commission allowing a holder of Restricted
Stock to sell any such securities without registration.
12. Miscellaneous.
(a) All covenants and agreements contained in this Agreement by or on
behalf of any of the parties hereto shall bind and inure to the benefit of
the respective successors and permitted assigns of the parties hereto
whether so expressed or not. Without limiting the generality of the
foregoing: (i) any holder of Restricted Stock assign rights hereunder with
respect to any of its Restricted Stock to any transferee of such Restricted
Stock, provided that such transferee agrees in writing to become a party
hereto and to be bound as a holder of Restricted Stock hereby, and provided
further that any WCAS Purchaser or Blackstone Purchaser shall specify in
such assignment whether it is assigning rights under Section 4 hereof (in
which case such transferee shall become entitled to the rights and subject
to the obligations hereunder as fully to the same extent as, and shall
deemed to be, a WCAS Purchaser or Blackstone Purchaser, as the case may be,
hereunder) and, if assigning such rights, shall be entitled in such
assignment to limit the ability of such transferee to further transfer such
rights (and such status as a WCAS Purchaser or Blackstone Purchaser, as the
case may be) to additional transferees, and (ii) upon the consummation of
the merger contemplated by that certain Agreement and Plan of Merger, dated
as of July 2, 1998, as amended, between the Company and Centennial Cellular
Corp., the corporation that survives such merger shall succeed to all
obligations of the Company hereunder and, immediately following such
Merger, shall execute and deliver to each holder of Restricted Stock a
supplement hereto in form and substance reasonably acceptable to such
holder acknowledging that it is bound by all such obligations of the
Company.
(b) All notices, requests, consents and other communications hereunder
shall be in writing and shall be delivered personally, sent by nationally
recognized overnight courier services, transmitted by confirmed telecopy or
mailed by first class registered mail, postage prepaid, addressed as
follows:
13
if to the Company, to it at:
0000 Xxxxxx Xxxxxxx
Xxxxxxx, Xxx Xxxxxx 00000
Telecopy Number: (000) 000-0000
Attention: President;
with a copy to:
Reboul, MacMurray, Xxxxxx, Xxxxxxx & Kristol
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy Number: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.;
if to any Purchaser, to it at its address set forth on Schedule
I, Schedule II, Schedule III or Schedule IV hereto, as the case may
be;
if to any subsequent holder of Restricted Stock, to it at such
address as may have been furnished to the Company in writing by such
holder;
or, in any case, at such other address or addresses as shall have been
furnished in writing to the Company (in the case of a holder of
Restricted Stock) or to the holders of Restricted Stock (in the case
of the Company).
(c) This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
(d) This Agreement constitutes the entire agreement of the
parties with respect to the subject matter hereof and may not be
modified or amended except in writing signed by, and the Company will
not grant any registration rights to any other person without the
consent of, the holders of a majority in interest of the Restricted
Stock held by each of (i) the WCAS Purchasers, (ii) the Blackstone
Purchaser and (iii) if adversely affected thereby, the other holders
of Restricted Stock. Any waiver of any provision of this Agreement
must be in a writing signed by the party against whom enforcement of
such waiver is sought.
(e) This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
14
(f) Headings and section reference numbers in this Agreement are
for reference purposes only and shall not in any way affect the
meaning or interpretation of this Agreement.
(g) In the event that any one or more of the provisions set forth
herein shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this
Agreement.
(h) Except as specifically set forth in Section 8 hereof, this
Agreement is not intended to confer any rights or remedies upon any
person other than the parties hereto.
(i) Each party hereto agrees that a remedy at law for any breach
or threatened breach by such party of this Agreement would be
inadequate and therefore agrees that any other party hereto shall be
entitled to specific performance of this Agreement in addition to any
other available rights and remedies in case of any such breach or
threatened breach.
15
Please indicate your acceptance of the foregoing by signing and
returning the enclosed counterpart of this letter, whereupon this letter (herein
sometimes called "this Agreement") shall be a binding agreement between the
Company and you.
Very truly yours,
CCW ACQUISITION CORP.
By /s/Xxxxxx X. XxXxxxxxx
Name: Xxxxxx X. XxXxxxxxx
Title: President
Accepted and agreed to:
WELSH, CARSON, XXXXXXXX & XXXXX VII, L.P.
By WCAS VII Partners, L.P., General Partner
By /s/ Xxxxx XxxXxxxx
General Partner
WELSH, CARSON, XXXXXXXX & XXXXX VIII, L.P.
By WCAS VIII Associates, L.L.C., General Partner
By /s/ Xxxxx XxxXxxxx
Managing Member
WCAS CAPITAL PARTNERS III, L.P.
By WCAS CP III Associates, L.L.C., General Partner
By /s/ Xxxxx XxxXxxxx
Managing Member
WCAS INFORMATION PARTNERS, L.P.
By /s/ Xxxxxx X. XxXxxxxxx
General Partner
16
Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxx
Xxxxx X. Xxxxxxxx
Xxxxxx X. Xxxx
Xxxxxx X. XxXxxxxxx
Xxxxx X. XxxXxxxx
Xxxxxx X. Xxxxxxxxx
Xxxxxxx X. xx Xxxxxx
Xxxx X. Xxxxxxx
Xxxxxxxx X. Xxxxxx
Xxxxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
D. Xxxxx Xxxxxxx
By /s/ Xxxxx XxxXxxxx
Individually and
as Attorney-in-fact
WCA MANAGEMENT CORPORATION
By: /s/ X.X. Xxxxx
Name: X.X. Xxxxx
Title: President
XXXXXXX X. XXXXXXXX TRUST
By: /s/ X.X. Xxxxx
Trustee
XXXX X. XXXXXXXX TRUST
By: /s/ X.X. Xxxxx
Trustee
XXXXXX X. XXXXXXXX TRUST
By: /s/ X.X. Xxxxx
Trustee
17
BLACKSTONE CCC CAPITAL PARTNERS L.P.
By: Blackstone Management Associates III LLC,
Its general partner
By /s/ Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: Senior Managing Director
BLACKSTONE CCC OFFSHORE CAPITAL
PARTNERS L.P.
By: Blackstone Management Associates III L.L.C.,
Its general partner
By /s/ Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: Senior Managing Director
BLACKSTONE FAMILY INVESTMENT
PARTNERSHIP III L.P.
By: Blackstone Management Associates III L.L.C.,
Its general partner
By /s/ Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: Senior Managing Director
18
SIGNAL/CENTENNIAL PARTNERS, L.L.C.
By: SIGNAL/CENTENNIAL ASSOCIATES L.L.C.,
By: SIGNAL PARTNERS L.L.C.
By /s/ Xxxxxxx X. Xxxxxx
Managing Member
XXXXXX X. XXXXX & CO., INC., TRUSTEE F/B/O
XXXXXXX X. SMALL ROLLOVER XXX
By: /s/ Xxxxxxx X. Small
Title:
/s/ Xxxxxxx X. Small
Xxxxxxx X. Small
/s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxx
Xxxxxx X. Xxxx
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SCHEDULE I
WCAS Purchasers
Name and Address of Purchaser
Welsh, Carson, Xxxxxxxx
& Xxxxx VII, L.P.
Welsh, Carson, Xxxxxxxx
& Xxxxx VIII, L.P.
WCAS Capital Partners III, L.P.
WCAS Information Partners, L.P.
WCA Management Corporation
Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxx
Xxxxx X. Xxxxxxxx
Xxxxxx X. Xxxx
Xxxxxx X. XxXxxxxxx
Xxxxx XxxXxxxx
Xxxxxx X. Xxxxxxxxx
Xxxxxxx X. xx Xxxxxx
Xxxx X. Xxxxxxx
Xxxxxxxxx X. Xxxxxx
Xxxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
D. Xxxxx Xxxxxxx
c/o Welsh, Carson, Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. XxXxxxxxx
SCHEDULE II
Blackstone Purchasers
Name and Address of Purchaser
Blackstone CCC Capital Partners X.X.
Xxxxxxxxxx CCC Offshore Capital Partners X.X.
Xxxxxxxxxx Family Investment Partnership III L.P.
c/o The Blackstone Group
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xx. Xxxx X. Xxxxxxxx
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
SCHEDULE III
Signal Purchasers
Name and Address of Purchaser
Signal/Centennial Partners, L.L.C.
00 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
with a copy to:
X'Xxxxxxxx, Graev & Karabell, LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxx, Esq.
SCHEDULE IV
Management Purchasers
Name and Address of Purchaser
Xxxxxxx X. Small
Xxxxxxx X. Small Rollover XXX
Xxxxx X. Xxxxxxx
Xxxxxx X. Xxxx
c/o Centennial Cellular Corp.
0000 Xxxxxx Xxxxxxx
Xxxxxxx, XX 00000
