EXHIBIT 4.1
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SECOND AMENDED AND RESTATED REGISTRATION RIGHTS
AGREEMENT
BY AND AMONG
ARC IV REIT, INC.
AND
THE PARTIES LISTED ON EXHIBIT A, EXHIBIT B, EXHIBIT C AND EXHIBIT D HERETO
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DATED AS OF APRIL 8, 2002
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TABLE OF CONTENTS
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1. Definitions.......................................................................2
2. Amendment and Restatement of Previous Registration
Rights Agreements.................................................................6
3. Demand Registrations..............................................................6
(a) Requests for Registration.......................................6
(b) Registration Statement Form.....................................8
(c) [Reserved]......................................................8
(d) Priority on Demand Registrations................................8
(e) Limits on Demand Registrations..................................9
(f) Restrictions on Demand Registrations............................9
(g) Pre-emption of Demand Registration.............................10
(h) Selection of Underwriters......................................11
(i) Shelf Registration of Warrants.................................11
4. Piggyback Registrations..........................................................12
(a) Right to Piggyback.............................................12
(b) [Reserved].....................................................14
(c) Priority on Primary Registrations..............................14
(d) Priority on Secondary Registrations............................14
(e) Expiration of Partnership Unit Holder
Piggyback Rights...............................................14
5. Holdback Agreements..............................................................15
6. Registration Procedures..........................................................15
7. Registration Expenses............................................................20
8. Indemnification..................................................................21
9. Participation in Underwritten Registrations......................................24
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10. Rule 144 Reporting...............................................................25
11. Notices..........................................................................26
12. Miscellaneous....................................................................28
(b) No Inconsistent Agreements.....................................28
(c) Remedies.......................................................28
(d) Amendments and Waivers.........................................28
(e) Successors and Assigns.........................................29
(f) Severability...................................................29
(g) Counterparts...................................................29
(h) Descriptive Headings...........................................29
(i) Recapitalizations, Exchanges Affecting the Registrable
Securities.....................................................29
(j) Governing Law..................................................29
(k) Third Party Beneficiaries......................................30
EXHIBITS
Exhibit A Subscribers
Exhibit B Original Investors
Exhibit C Reorganization Shareholders
Exhibit D Partnership Unit Holders
ii
SECOND AMENDED AND RESTATED REGISTRATION RIGHTS
AGREEMENT
THIS SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this
"Agreement"), dated as of April 8, 2002, is by and among ARC IV REIT, Inc., a
Maryland corporation (the "Company") and the parties listed on Exhibit A (the
"Subscribers"), Exhibit B (the "Original Investors"), Exhibit C (the
"Reorganization Shareholders") and Exhibit D (the "Partnership Unit Hold ers")
hereto, as amended from time to time. Capitalized terms used but not otherwise
defined herein have the meanings set forth in Section 1 hereof.
WHEREAS, the Company and the Original Investors entered into a subscription
and stock purchase agreement, dated as of September 30, 1998, pursuant to which
the Company agreed to issue and sell, and the Original Investors agreed to
purchase, shares of Common Stock (the "1998 Subscription Agreement");
WHEREAS, in connection with the execution of the 1998 Subscrip tion
Agreement, the Company and the Original Investors executed a Registration Rights
Agreement, dated as of September 30, 1998 (the "Original Agreement");
WHEREAS, the Company and the Subscribers entered into a sub scription and
stock purchase agreement, dated as of August 9, 2000 (as amended, the "2000
Subscription Agreement") pursuant to which the Company agreed to issue and sell,
and the Subscribers agreed to purchase, for $11.70 per share, up to 14,427,350
shares of Common Stock for an aggregate purchase price, if all such shares are
issued and sold, of approximately $168.8 million;
WHEREAS, concurrently with the execution of the 2000 Subscription
Agreement, the Company and the Subscribers amended and restated the Original
Agreement (as amended and restated, the "First Amended and Restated Registration
Rights Agreement") to modify certain of its terms and add Capital ARC Holdings,
LLC f/k/a UBS Capital ARC Holdings, LLC ("UBS") and The Travelers Indemnity
Company ("Travelers") as parties thereto;
WHEREAS, the Company and certain of its affiliates have entered into an
Agreement and Plan of Reorganization, dated as of April 6, 2002 (as may be
amended, the "Reorganization Agreement") which provides for certain reorganiza
tion transactions involving the Company and certain of its affiliates
(collectively, the "Reorganization");
WHEREAS, in connection with the Reorganization (i) the Company will issue
additional shares of Common Stock which will be distributed to the
Reorganization Shareholders, and (ii) ARC IV will issue Partnership Units to the
Partnership Unit Holders, which Partnership Units will be redeemable in exchange
for, at the Company's election, shares of Common Stock;
WHEREAS, the parties hereto desire to amend and restate the First Amended
and Restated Registration Rights Agreement to modify certain of its terms and
add the Reorganization Shareholders and the Partnership Unit Holders as parties
hereto;
WHEREAS, the First Amended and Restated Registration Rights Agreement
provided that such agreement could be amended only upon the written consent of
the Company and the holders of a majority of the Registrable Securities under
the First Amended and Restated Registration Rights Agreement;
WHEREAS, this Agreement has been executed by the Company and the holders of
a majority of the Registrable Securities under the First Amended and Restated
Registration Rights Agreement; and
WHEREAS, this Agreement shall be of no force or effect until the Effective
Date, and upon consummation of the Reorganization on such date, this Agreement
shall be in full force and effect and the First Amended and Restated
Registration Rights Agreement shall be deemed amended and restated in its
entirety hereby.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and suffi ciency of which
are hereby acknowledged, the parties to this Agreement hereby agree as follows:
1. Definitions. As used herein, the following terms shall have the
following meanings:
"Aggregate Offering Price" means an amount equal to the product of (i) the
Average Closing Price and (ii) the aggregate number of Registrable Securities
held by a Demand Party in respect of which such demand for registration is being
made.
"ARC IV" means Affordable Residential Communities IV, LP, a Delaware
limited partnership.
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"ARC IV Partnership Agreement" means the Agreement of Limited Partner ship
of ARC IV, dated as of the Effective Date, by and between the Company, as
general partner, and ARC LLC, as special limited partner, as amended from time
to time.
"ARC LLC" means Affordable Residential Communities L.L.C., a Delaware
limited liability company.
"Average Closing Price" means, with respect to any Registrable Security,
the average of the closing sale prices of such Registrable Security as reported
on a national securities exchange or quoted on The Nasdaq Stock Market during
the Valuation Period.
"Business Day" means any calendar day which is not a Saturday, Sunday or a
day on which banks in the State of New York are generally closed for regular
business.
"Common Stock" means the common stock, $0.01 par value per share, of the
Company.
"Demand Party" means any Holder or Holders that, either individually or in
the aggregate with all other Holders with whom or on whose behalf it is acting
to demand registration, holds not less than 9% of the class of Registrable
Securities in respect of which such demand for registration is being made,
provided, however, that in no event shall any Partnership Unit Holder (a)
comprise all or part of any Demand Party hereunder or (b) otherwise have any
right, either alone or with any other Holder or Holders, to request registration
pursuant to Section 3(a)(i) of this Agreement.
"Effective Date" means the date of consummation of the transactions contem
plated by the Reorganization Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or
any successor statute.
"Holder" means the Subscribers, the Original Investors, the Reorganization
Shareholders, the Partnership Unit Holders and any transferee which is or
becomes the beneficial owner of Registrable Securities. For purposes of
determining the number of Registrable Securities held by a Holder, for purposes
of this Agreement but not for any other purpose, any holder of record of a
Warrant shall be deemed to be a Holder of the number of shares of Common Stock
underlying such Warrants.
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"Nassau" means, collectively, Nassau Capital Partners II, L.P., Nassau
Capital Fund L.P. and NAS Partners I, L.L.C.
"Partnership Unit" shall have the meaning assigned to such term in the ARC
IV Partnership Agreement.
"Partnership Unit Holders" means the Person listed on Exhibit D hereto.
"Person" means an individual, corporation, partnership, trust, joint
venture, limited liability company, unincorporated organization or other legal
entity or a government or any agency or political subdivision thereof.
"Qualified Public Offering" means the completion of the sale of shares of
Common Stock, whether by the Company and/or for the account of one or more
stockholders of the Company, pursuant to an effective registration statement
under the Securities Act (other than a special purpose registration statement
such as an S-8 or an S-4) in which the aggregate gross proceeds of such sale,
together with the aggregate gross proceeds of any such underwritten public
offerings previously completed, equal or exceed $100,000,000, provided that
after the completion of such sale the shares of Common Stock are listed on a
national securities exchange or are authorized for quotation on The Nasdaq Stock
Market.
"Registrable Securities" means (i) shares of Common Stock issued (A) to the
Original Investors from time to time pursuant to the 1998 Subscription
Agreement, (B) to the Subscribers from time to time pursuant to the 2000
Subscription Agree ment, (C) upon exercise of the Warrants, (D) upon completion
of the transactions contemplated by the Reorganization Agreement (including any
such shares distrib uted to any member of ARC Holdings Limited Liability Company
upon its liquida tion) but not including any shares issued or issuable pursuant
to any management incentive plan (including, but not limited to, the "Plan" as
defined in the Offering Memorandum/Proxy Statement (as defined in the
Reorganization Agreement)) and (E) upon redemption of any Partnership Unit
issued by ARC IV to a Partnership Unit Holder upon completion of the
transactions contemplated by the Reorganization Agreement, (ii) any shares of
stock of the Company or any successor corporation issued or issuable in respect
of the Common Stock referred to in clause (i) above, whether by way of a split
of interests or dividends or in connection with a combina tion of such Common
Stock, recapitalization, merger, consolidation or other reorga nization or
otherwise, and (iii) Warrants; provided, however, that such securities shall
cease to be Registrable Securities when (i) a registration statement with
respect to the sale of such securities shall have become effective under the
Securities Act and
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such securities shall have been disposed of in accordance with such registration
statement, (ii) they shall have been distributed to the public pursuant to Rule
144 (or any successor provisions) under the Securities Act, (iii) they shall
have been other wise transferred, new certificates for them not bearing a legend
restricting further transfer shall have been delivered by the Company and
subsequent disposition of them shall not require registration or qualification
under the Securities Act or any state securities or blue sky law then in force,
(iv) they shall have ceased to be outstanding, or (v) solely with respect to the
shares of Common Stock covered by clause (i)(E) above, the "shelf" registration
statement with respect to such shares contemplated by Section 8.8 of the ARC IV
Partnership Agreement shall have become effective under the Securities Act in
accordance with the provisions of such Section 8.8, after which time the
securities covered by clause (i)(E) above shall no longer be Registrable
Securities (except as otherwise provided in Section 4(e)).
"Registration" means any registration of the securities of the Company
under the Securities Act, including without limitation, any Demand Registration
or Piggy back Registration, pursuant to the terms of this Agreement.
"Registration Expenses" means all expenses incurred or incident to the
Company's performance of or compliance with this Agreement, including without
limitation all registration and filing fees (including any such fees paid or
payable to the National Association of Securities Dealers, Inc., any stock
exchange or The Nasdaq Stock Market), fees and expenses of compliance with
securities or blue sky laws, printing expenses, messenger and delivery expenses,
and fees and disburse ments of counsel for the Company and all independent
certified public accountants (including the costs of any accountants' "comfort
letters"), underwriters (excluding underwriting discounts and commissions with
respect to any Registrable Securities) and other Persons retained by the
Company.
"Reorganization Shareholders" means the Persons listed on Exhibit C hereto.
"Rule 144" means Rule 144 under the Securities Act (or any similar rule
then in force).
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, or any
successor statute.
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"Valuation Period" means the thirty (30) consecutive trading days during
which the applicable Registrable Security is traded on a national securities
exchange or quoted on The Nasdaq Stock Market ending on the calender day
immediately prior to the date a Demand Party requests a Demand Registration.
"Violation" means any untrue or alleged untrue statement of material fact
contained in any registration statement, prospectus or preliminary prospectus or
any amendment thereof or supplement thereto or any omission or alleged omission
of a material fact required to be stated therein or necessary to make the
statements therein (in the case of any prospectus, preliminary prospectus or any
amendment or supple ment thereto, in light of the circumstances under which they
were made) not mislead ing.
"Warrants" means the warrants to purchase an aggregate of 1,250,000 shares
of Common Stock granted to the Original Investors prior to the date of the First
Amended and Restated Registration Rights Agreement.
2. Amendment and Restatement of Previous Registration Rights Agreements.
(a) This Agreement amends and restates the Amended and Restated Registration
Rights Agreement dated as of August 9, 2000, by and among (a) the Company, (b)
Xxxxxx X. Xxx Equity Fund IV, L.P., Xxxxxx X. Xxx Foreign Fund IV, L.P., Xxxxxx
X. Xxx Charitable Investments Limited Partnership, Xxxxxx X. Xxx Investors
Limited Partnership (collectively, together with Xxxxxx X. Xxx Foreign Fund
IV-B, L.P., "THL"), (c) certain other persons or entities listed on the
signature pages thereto, (d) ARC LLC, (e) Travelers, (f) UBS, and (g) the other
individuals listed as parties thereto.
(b) This Agreement shall be of no force or effect until the Effec tive
Date, and upon consummation of the Reorganization on such date, this Agree
ment shall be in full force and effect and the First Amended and Restated
Registra tion Rights Agreement shall be deemed amended and restated in its
entirety hereby.
3. Demand Registrations.
(a) Requests for Registration.
(i) At any time and from time to time after the closing of a
Qualified Public Offering, a Demand Party may request
registration, whether underwritten or otherwise, under the
Securities Act of all or part of such Demand Party's Registrable
Securities (other than Warrants and the Common
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Stock underlying such Warrants) in an amount equal to not less than
the lesser of (A) 25% of the total number of Registrable Securities
held by each Holder (each of Nassau and THL shall be deemed to be one
Holder for purposes of this clause (A)) comprising such Demand Party
of the class in respect of which such demand for registration is being
made and (B) $100,000,000 in Aggregate Offering Price of Registrable
Securities. Each such request for a registration shall specify the
approximate number and class of Registrable Securities requested to be
registered and the anticipated per share price range for such
offering.
(ii) Within ten (10) days after receipt of any such request for a
registration, the Company will give written notice (a "Demand Notice")
of such requested registration (including the number of Registrable
Securities included and the possible intended methods of disposition
thereof) to all other Holders of Registrable Securities, if any
(including, in the case of a Demand Registration involving Common
Stock, all Partnership Unit Holders for purposes of this Section
3(a)(ii) but subject to Section 4(e) hereof and all applicable
restrictions and limitations on the redemption of Partnership Units
set forth in the ARC IV Partnership Agreement, in order to afford such
Holders the opportunity to participate in such Demand Registration
through a redemption of Partnership Units in exchange for shares of
Common Stock to be sold in the related offering), and will include
(subject to the provisions of this Agreement) in such registration all
Registrable Securities of the same class as the securities being
registered with respect to which the Company has received written
requests from any other Holders for inclusion therein within 20 days
after the receipt of the Demand Notice, provided, however, that (A) if
such Demand Registration involves an underwritten offering, all
Holders of Registrable Securities requesting to be included in such
registration must sell their Registrable Securities to the
underwriters on the same terms and condi tions as apply to the Demand
Party, and each such Holder (including Partner ship Unit Holders who
request to be included in such registration) shall, if requested by
the underwriters, enter into a customary holdback agreement with
respect to such Holder's Registrable Securities as contemplated by
Section 5(a) hereof, and (B) it shall be a condition to the
participation by any Partnership Unit Holder in any such Demand
Registration that no provision of the ARC IV Partnership Agreement
shall prohibit or restrict the redemp tion by such Partnership Unit
Holder of any Partnership Units as to which such Partnership Unit
Holder has made a request hereunder for inclusion in such Demand
Registration and that (1) in the case of an underwritten offer ing,
such Partnership Unit Holder shall have delivered to ARC IV a notice
of
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redemption, together with the certificates evidencing the Partnership
Units to be converted into the Registrable Securities to be included
in such offering (the "Redemption Notice Package") not less than five
(5) Business Days prior to the closing date of such offering, and (2)
in the case of any other offering, such Partnership Unit Holder shall
have delivered to ARC IV a Redemption Notice Package a reasonable time
prior to the proposed sale of such Holder's Registrable Securities in
such offering, as determined by the Company.
(iii) All registrations requested pursuant to this Section 3(a)
are referred to herein as "Demand Registrations."
(b) Registration Statement Form. Demand Registrations shall be on such
appropriate registration form of the SEC (i) as shall be selected by the Company
and as shall be reasonably acceptable to the Holders of 51% of the Registrable
Securities requested to be registered and (ii) as shall permit the disposi tion
of such Demand Party's Registrable Securities in accordance with the intended
method or methods of disposition specified in their request for such
registration. If, in connection with any Demand Registration which is proposed
by the Company to be on Form S-3 or any similar short form registration
statement which is a successor to Form S-3, the managing underwriters, if any,
shall advise the Company in writing that in their opinion the use of another
permitted form is of material importance to the success of the offering, then
such Demand Registration shall be on such other permitted form.
(c) [Reserved]
(d) Priority on Demand Registrations. If a Demand Registration is an
underwritten offering and the managing underwriters advise in writing that in
their opinion the number of Registrable Securities requested to be included in
such offering exceeds the number of Registrable Securities which can be sold
therein without materially and adversely affecting the marketability of the
offering, the amount of Registrable Securities to be sold pursuant to such
registration shall be allocated pro rata among the Holders of Registrable
Securities desiring to participate in such registration on the basis of the
amount of such Registrable Securities re quested to be registered by such
Holders.
(e) Limits on Demand Registrations. The Holders of Registrable Securities
shall not be entitled to request more than one (1) Demand Registration during
any six-month period.
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(f) Restrictions on Demand Registrations. Notwithstanding anything to the
contrary contained herein:
(i) the Company shall not be obligated to effect (A) any Demand
Registration within six months after the effective date of the Com pany's
initial public offering or any previous Demand Registration or (B) any
Demand Registration that would cause the Company to violate Section 5(b) of
this Agreement;
(ii) the Company shall not be required to effect a registra tion of
Registrable Securities pursuant to this Section 3 if it shall have
delivered to the Demand Party a written opinion of counsel to the Company
of recognized national standing reasonably acceptable to the Holders to the
effect that the disposition of the Registrable Securities with respect to
which such demand has been made shall not require registration under the
Securities Act or any state securities or blue sky law then in force; and
(iii) the Company may postpone or withdraw for a reason able period,
not to exceed ninety (90) days (subject to extension for up to 45
additional days by a vote of a majority of the members of the Company's
Board of Directors), the filing or the effectiveness of a registration
statement for a Demand Registration if based on the good faith judgment of
a majority of the members of the Company's Board of Directors and on advice
of counsel, such postponement or withdrawal is necessary in order to avoid
premature disclosure of: (1) a matter that the Board of Directors has deter
mined would not be in the best interest of the Company to be disclosed at
such time or (2) a material fact the disclosure of which would have a
material adverse effect on any proposal or plan by the Company or any of
its subsid iaries to engage in any acquisition of assets (other than in the
ordinary course of business) or any merger, consolidation, tender offer or
other significant transaction; provided, however, that in no event shall
the Company withdraw a registration statement after such registration
statement has been declared effective; provided further, however, that, to
the extent applicable, such postponement or withdrawal period shall
terminate upon the completion or abandonment of the acquisition of assets,
merger, consolidation, tender offer or other significant transaction to
which such postponement or withdrawal relates. The Company shall be
entitled to one (1) postponement or with drawal (including any extension
thereof) in any 12 month period regardless of the number of days in such
postponement or
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withdrawal. The Company shall provide prompt written notice to the Holders
of Registrable Securities initiating the request for such Demand
Registration of (x) any postponement or withdrawal of the filing or
effectiveness of a registration statement pursu ant to this paragraph, (y)
the Company's decision to file or seek effectiveness of such registration
statement following such postponement or withdrawal and (z) the
effectiveness of such registration statement. If the Company so elects to
postpone or withdraw a registration statement, such registration shall not
count as one of the permitted Demand Registrations of the Holders who
requested such registration.
(g) Pre-emption of Demand Registration. Notwithstanding anything to the
contrary contained herein, if at any time a Holder or Holders shall request a
Demand Registration pursuant to this Section 3, the Company may elect at that
time to effect an underwritten primary registration if, based on the good faith
judgment of a majority of the Company's Board of Directors, it would be in the
best interests of the Company to access the public market to raise equity
capital. If the Company elects to effect a primary registration after receiving
such a request for a Demand Registration, the Company will give prompt written
notice (and in any event within thirty (30) days after receiving such a request
for a Demand Registration) to all Holders of Registrable Securities of the class
to be registered of its intention to effect such a registration and shall afford
such Holders rights to Piggyback Registra tions contained in Section 4 hereof,
except that if the managing underwriters of such offering advise the Company in
writing that in their opinion the number of securities requested to be included
in such registration exceeds the number which can be sold in such offering
without materially and adversely affecting the marketability of such offering,
the provisions of Section 4(c) hereof shall not apply to such offering, and
instead the Company shall include in such registration the maximum number of
securities which such underwriters advise can be sold in such offering allocated
(x) first, equally (as opposed to pro rata) among the Company, on the one hand,
and the Holders as a group, on the other hand (and reallocated among such
Holders pro rata on the basis of the number of securities requested to be
registered by such Holders), until either the Company or the Holders as a group
have been allocated the full number of securities requested to be included in
such registration by the Company or the Holders, as the case may be, (y) second,
to either the Company or the Holders as a group (and reallocated among such
holders pro rata on the basis of the number of securities requested to be
registered by such Holders), as the case may be, to the extent that such party
was not allocated the full number of its requested securities pursuant to clause
(x) above, until the Company or the Holders as a group, as the case may be, have
been allocated the full number of securities requested to be included in such
registration, and (z) third, to the holders of all other
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securities requested to be included in such registration pro rata among such
holders on the basis of the number of securities requested to be registered by
such holders. In the event that the Company so elects to effect such a primary
registration after receiving a request for such a Demand Registration, such
registration shall not count as one of the permitted Demand Registrations of the
Holders who requested such registration.
(h) Selection of Underwriters. In the case of a Demand Registra tion for an
underwritten offering, the Holders of a majority of the Registrable Securities
to be included in such Demand Registration will have the right to select the
investment banker(s) and manager(s) to administer the offering, which invest
ment banker(s) and manager(s) will be nationally recognized. The Company may
select a nationally-recognized co-manager to participate in the offering if the
Com pany is offering any securities in the offering.
(i) Shelf Registration of Warrants. From and after such time as the Company
shall receive a request by any Holder or Holders for a Demand Regis tration
under Section 3(a) of this Agreement, THL may request the Company to file a
"shelf" registration statement on an appropriate registration statement form
(which form shall be Form S-3 if Form S-3 is available to the Company) under the
Securities Act providing for the registration of, and the sale on a continuous
or delayed basis by the Holders of, all of the Warrants constituting Registrable
Securities (including all shares of Common Stock issuable upon exercise of the
Warrants) pursuant to Rule 415 under the Securities Act (such shelf registration
statement, and all supplements and amendments thereto, and any other
registration statement necessary to implement the intent of this paragraph, the
"Shelf Registration Statement"). Following its receipt of any such request, the
Company shall file such Shelf Registration Statement as promptly as is
practicable and shall use its best efforts to keep the Shelf Registra tion
Statement effective in order to permit the prospectus forming a part thereof to
be usable by the Holders of the Warrants for the sale of the Warrants and, upon
their sale, to cover (if permitted by applicable law and by the SEC) the
issuance of shares of Common Stock upon any exercise thereof, until all of the
Warrants (including all shares of Common Stock issuable upon exercise of the
Warrants) registered thereun der have been distributed (or issued in the case of
the Common Stock underlying the Warrants) as contemplated thereby but, with
respect to the Warrants, not later than the third anniversary of the date the
Shelf Registration Statement is declared effective by the SEC; provided,
however, that THL may only sell Warrants (or Common Stock acquired upon exercise
of the Warrants after the effective date of the Shelf Registra tion Statement)
pursuant to the Shelf Registration Statement on or after such time as other
Registrable Securities are
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sold by other Holders pursuant to an effective Registration Statement hereunder,
and only in such amounts which, when the Common Stock underlying such Warrants
and Common Stock acquired upon exercise of the Warrants after the effective date
of the Shelf Registration Statement taken together with the other Registrable
Securities being sold at such time by THL under such other Registration
Statement, does not exceed the maximum amount of Registrable Securities that THL
would be permitted to sell pursuant to such other Registration Statement at such
time. The foregoing notwithstanding, the Company shall have the right in its
sole discretion, based on any valid business purpose (including, without
limitation, to avoid the disclosure of any material non-public information that
the Company is not otherwise obligated to disclose), to suspend the use of the
Shelf Registration Statement for a reasonable length of time (a "Delay Period")
and from time to time; provided that the aggregate number of days in all Delay
Periods occurring in any period of twelve consecutive months shall not exceed 90
days. The Company shall provide written notice to each Holder of Warrants
covered by the Shelf Registration Statement of the beginning and the end of each
Delay Period and such Holders shall cease all disposition efforts with respect
to all Warrants held by them immediately upon receipt of notice of the beginning
of any Delay Period and shall maintain in confidence the fact that such notice
has been provided by the Company. Other than as set forth in this paragraph (i),
the Holders of Warrants shall not have any registration rights with respect to
the Warrants (or the Common Stock underlying such Warrants) under this
Agreement.
4. Piggyback Registrations.
(a) Right to Piggyback. Whenever the Company proposes to register any
securities (the "Priority Securities") under the Securities Act (other than
pursuant to (1) a Demand Registration, for which "piggyback" rights are provided
in Section 3 hereof, (2) a registration of the issuance by the Company, or the
resale by any holder of Partnership Units, of any securities of the Company
issued upon redemption of such Partnership Units, (3) a registration statement
on Form S-8 or Form S-4 or any similar form or (4) a registration the primary
purpose of which is to register debt securities), and a registration form to be
used in such registration may be used for the registration of Registrable
Securities of the same class (a "Piggyback Registration"), the Company shall
give prompt written notice (a "Piggyback Notice") to all Holders of Registrable
Securities of such class (including, in the case of a Piggyback Registration
involving Common Stock, all Partnership Unit Holders for purposes of this
Section 4 but subject to Section 4(e) hereof and all applicable restrictions and
limitations on the redemption of Partnership Units set forth in the ARC IV
Partnership Agreement, in order to afford such Holders the opportunity to
participate in such Piggyback Registration through a redemption of Partnership
Units
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in exchange for shares of Common Stock to be sold in the related offering) of
its intention to effect such a registration. Subject to Section 4(c) and 4(d),
the Company shall include in any such registration by it all Registrable
Securities of the same class as the securities being registered with respect to
which it has received written requests for inclusion therein from the Holders
thereof within 20 days after the receipt of the Company's Piggyback Notice;
provided, however, that (A) if such Piggyback Registration involves an
underwritten offering, all Holders of Registrable Securities requesting to be
included in such registration must sell their Registrable Securities to the
underwriters selected by the Company on the same terms and conditions as apply
to the Company, and each such Holder (including Partnership Unit Holders who
request to be included in such registration) shall, if requested by the
underwriters, enter into a customary holdback agreement with respect to such
Holder's Registrable Securities as contemplated by Section 5(a) hereof, (B) if,
at any time after giving written notice pursuant to this Section 4(a) of its
intention to register any Priority 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 such Priority Securities,
the Company shall give written notice to all Holders of Registrable Securities
and shall thereupon be relieved of its obligation to register any Registrable
Securities in connection with such registration (without prejudice, however, to
rights of Holders of Registrable Securities under Section 3), (C) in the event
of the initial public offering by the Company of shares of Common Stock, the
Company may determine, in its sole and absolute discretion, that such registered
offering shall not constitute a Piggyback Registration for purposes of this
Section 4 only, and in the event of such a determination no Holder shall have
any rights under this Section 4 with respect to such offering, and (D) it shall
be a condi tion to the participation by any Partnership Unit Holder in any such
Piggyback Registration that no provision of the ARC IV Partnership Agreement
shall prohibit or restrict the redemption by such Partnership Unit Holder of any
Partnership Units as to which such Partnership Unit Holder has made a request
hereunder for inclusion in such Piggyback Registration and that (1) in the case
of an underwritten offering, such Partnership Unit Holder shall have delivered
to ARC IV a Redemption Notice Package not less than five (5) Business Days prior
to the closing date of such offering, and (2) in the case of any other offering,
such Partnership Unit Holder shall have delivered to ARC IV a Redemption Notice
Package a reasonable time prior to the proposed sale of such Holder's
Registrable Securities in such offering, as deter mined by the Company.
(b) [Reserved].
13
(c) Priority on Primary Registrations. If a Piggyback Registration is an
underwritten primary registration on behalf of the Company, and the managing
underwriters advise the Company in writing that in their opinion the number of
securities requested to be included in such registration exceeds the number
which can be sold in such offering without materially and adversely affecting
the marketability of such offering, the Company shall include in such
registration (i) first, all Priority Securities the Company proposes to sell,
(ii) second, the Registrable Securities pro rata among the Holders of such
Registrable Securities on the basis of the number of such securities requested
to be registered by such Holders, and (iii) third, other securities requested to
be included in such registration pro rata among the holders of such securities
on the basis of the number of such securities requested to be regis tered by
such holders.
(d) Priority on Secondary Registrations. If a Piggyback Registra tion is an
underwritten secondary registration on behalf of a holder of the Company's
securities other than Registrable Securities, and the managing underwriters
advise the Company in writing that in their opinion the number of securities
requested to be included in such registration exceeds the number which can be
sold in such offering without materially and adversely affecting the
marketability of such offering, the Company shall include in such registration
(i) first, the securities requested to be included therein by the holders
requesting such registration and the Registrable Securities requested to be
included in such registration, pro rata among the holders of such securities on
the basis of the number of such securities requested to be registered by such
holders, and (ii) second, other securities requested to be included in such
registration pro rata among the holders of such securities on the basis of the
number of such securities requested to be registered by such holders.
(e) Expiration of Partnership Unit Holder Piggyback Rights. Notwithstanding
anything to the contrary contained herein, the Partnership Unit Holders shall
have no rights under Section 3(A)(ii) and this Section 4 with respect to any
Demand Registration or Piggyback Registration the Demand Notice or Piggy back
Notice for which was provided by the Company on or after the date that the
"shelf registration statement" contemplated by Section 8.8 of the ARC IV
Partnership Agreement has become effective under the Securities Act in
accordance with the provisions of such Section 8.8.
5. Holdback Agreements.
(a) In connection with any Demand Registration or Piggyback Registration
involving an underwritten offering, each Holder of Registrable
14
Securities hereby agrees, at the request of the underwriters, to enter into a
customary holdback agreement with respect to such Holder's Registrable
Securities, provided, however, that the terms of such holdback agreement shall
be no less favorable than any holdback agreement executed by any other holders
of securities of the Company in connection with such underwritten offering. The
Company agrees to use its reasonable best efforts to cause such underwriters to
agree in the underwriting agreement to notify in writing all Holders of
Registrable Securities who have executed a holdback agreement in connection with
such offering of any agreement by such underwriters to release any Holder of
Registrable Securities from any such holdback agreement at least five (5)
Business Days in advance of such release.
(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 (7) days prior to and during
the 90-day period beginning on the effective date of any underwritten Demand
Registra tion (except as part of such underwritten registration or pursuant to
registrations on Forms S-4 or S-8 or any successor forms), unless the
underwriters managing the registered public offering otherwise agree, and (ii)
to use its reasonable efforts to cause each holder of Registrable Securities and
each other holder of at least 5% (on a fully diluted basis) of equity securities
of the Company, respectively, or any securi ties convertible into or
exchangeable or exercisable for such equity securities, purchased from the
Company at any time after the date hereof (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.
6. Registration Procedures. Whenever the Holders of Registrable Securities
have requested that any Registrable Securities be registered pursuant to this
Agreement, the Company will use its best efforts to effect the registration and
the sale of such Registrable Securities in accordance with the intended method
of disposition thereof, and pursuant thereto the Company will as expeditiously
as possible:
(a) prepare and file with the SEC a registration statement with
respect to such Registrable Securities (in the case of a Demand
Registration, no later than forty-five (45) days after the receipt of the
request for registra tion) and use its best efforts to cause such
registration statement to become effective as promptly as practicable after
filing; provided, that before filing a registration statement or prospectus
or any amendments or
15
supplements thereto, the Company will furnish to the counsel selected by
the Holders of a majority of the Registrable Securities covered by such
registration statement copies of all such documents proposed to be filed;
provided further, that no such registration statement or prospectus or
amendment or supplement thereto shall be filed unless the Holders of
Registrable Securities to be included in such registration statement and,
if the offering is an underwritten offering, counsel to the underwriters,
have had a reasonable opportunity to provide comments thereon; provided
further, that the Holders of the Registrable Securities shall have provided
their comments promptly follow ing their receipt of such registration
statement or prospectus or amendment or supplement thereto;
(b) (i) prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connec tion
therewith as may be necessary to keep such registration statement effective
for a period of not less than six months and comply with the provi sions of
the Securities Act with respect to the disposition of all securities
covered by such registration statement during such period in accordance
with the intended methods of disposition by the sellers thereof set forth
in such registration statement and (ii) use its best efforts to have such
supplements or amendments declared effective, if required, as soon as
practicable after filing; provided, that no such amendment or supplement
shall be filed unless the Holders of Registrable Securities to be included
in such registration statement and, if the offering is an underwritten
offering, counsel to the underwriters, have had a reasonable opportunity to
provide comments thereon; provided further, that the Holders of the
Registrable Securities shall have provided their comments promptly
following their receipt of such amendment or supplement;
(c) furnish to each seller of Registrable Securities, without charge,
such number of copies of such registration statement, each amendment and
supplement thereto, the prospectus included in such registration statement
(including each preliminary prospectus) and such other documents as such
seller may reasonably request in order to facilitate the disposition of the
Registrable Securities owned by such seller;
(d) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such
jurisdictions as any seller reasonably requests and do any and all other
acts and things which may be reasonably necessary or advisable to enable
such seller to
16
consummate the disposition in such jurisdictions of the Registrable
Securities owned by such seller (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 subsection, (ii)
subject itself to taxation in any such jurisdiction or (iii) consent to
general service of process (i.e., service of process which is not limited
solely to securities law violations) in any such jurisdiction);
(e) promptly notify each seller of such Registrable Securities of the
happening of any event as a result of which the prospectus included in such
registration statement contains an untrue statement of a material fact or
omits any fact necessary to make the statements therein not misleading,
promptly prepare a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of such Registrable Securities, such
prospectus will not contain an untrue statement of a material fact or omit
to state any fact necessary to make the statements therein, in light of the
circum stances under which they were made, not misleading, and promptly
furnish to each seller of Registrable Securities, without charge, copies of
such prospec tus supplement or amended prospectus;
(f) use its best efforts to cause all such Registrable Securities to
be listed on each securities exchange or automated quotation system on
which securities of the same class issued by the Company are then listed
and, if not so listed, use commercially reasonable efforts to cause such
Registrable Securities to be authorized for quotation on the Nasdaq Stock
Market or to be listed on a national securities exchange selected by the
Company;
(g) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration
statement;
(h) enter into such customary agreements (including underwriting
agreements in customary form with customary indemnity and contribution
obligations to the underwriters) and take all such other actions as the
holders of a majority of the Registrable Securities being sold or the
underwriters, if any, 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);
(i) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to
such
17
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
officers, members, advisors, employees and independent accountants of the
Company to supply all information reasonably requested by any such seller,
under writer, attorney, accountant or agent in connection with such
registration statement;
(j) otherwise use its best efforts to comply with all applicable rules
and regulations of the SEC, and make available to its security holders, as
soon as reasonably practicable, an earning statement covering the period of
at least twelve months beginning with the first day of the first full
calendar quarter of the Company after the effective date of the
registration statement, which earning statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 promulgated
thereunder;
(k) permit any Holder of Registrable Securities which holder, in its
reasonable judgment, might be deemed to be an underwriter or a control ling
person of the Company, to participate in the preparation of such registra
tion or comparable statement and to require the insertion therein of
material, furnished to the Company, as the case may be, in writing, which
in the reasonable judgment of such Holder and its counsel should be
included;
(l) promptly notify the selling Holders and the underwriters, if any,
of the issuance or threatened 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 securities included in such registration statement for
sale in any jurisdic tion and use its reasonable best efforts promptly to
either obtain the prompt withdrawal of any such order that is issued or
prevent the issuance of any such threatened order;
(m) use its best efforts to cause such 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 sellers thereof to consummate the disposition of such Registrable
Securities;
(n) obtain a "cold comfort" letter from the independent public
accountants of the Company in customary form and covering such matters of
the type customarily covered by "cold comfort" letters as the underwriters
or
18
Holders of a majority of the Registrable Securities being sold reasonably
request;
(o) provide an opinion of the Company's counsel in customary form and
covering such matters of the type customarily covered by such an opinion as
the underwriters or the Holders of a majority of the Registrable Securities
being sold reasonably request and dated the date of the closing of the sale
of Registrable Securities relating thereto;
(p) to the extent recommended by the underwriters in any under written
offering of Registrable Securities, cooperate with the selling Holders and
the underwriters for such offering in the marketing of the Registrable
Securities, including making its officers available to participate in such
"road show" presentations and conference calls as the underwriters may
reasonably request and making the Company's accountants, counsel, premises,
books and records available for such purpose; and
(q) promptly notify each Holder, and each underwriter (A) when a
registration statement or any related prospectus or any amendment or supple
ment has been filed, and, with respect to a registration statement or any
amendment thereto, when the same has become effective or (B) of any request
by the SEC for amendments or supplements to the registration statement or
the related prospectus or for additional information.
If any such registration or comparable statement refers to any Holder by name or
otherwise as the Holder of any securities of the Company, and if, in its sole
and exclusive judgment, such Holder is or might be deemed to be a controlling
Person of the Company, as the case may be, such Holder shall have the right to
require (i) the insertion therein of language, in form and substance
satisfactory to such Holder and presented to the Company in writing, to the
effect that the holding by such Holder of such securities is not to be construed
as a recommendation by such Holder of the investment quality of the Company's
securities covered thereby and that such holding does not imply that such Holder
will assist in meeting any future financial requirements of the Company, as the
case may be, or (ii) in the event that such reference to such Holder by name or
otherwise is not required by the Securities Act or any similar Federal statute
then in force, the deletion of the reference to such Holder; provided, that with
respect to this clause (ii) such holder shall furnish to the Company, as
applicable, an opinion of counsel to such effect, which opinion of counsel shall
be reasonably satisfactory to the Company.
19
It shall be a condition precedent to the obligation of the Company to take
any action with respect to any Registrable Securities pursuant to this Section 6
that the Holder thereof shall furnish to the Company such information regarding
such Holder, the Registrable Securities and any other securities of the Company
held by such Holder as the Company shall reasonably request and as shall be
required in connection with the action taken by the Company.
Each Holder of Registrable Securities agrees that, upon receipt of any
notice from the Company of the happening of any event of the kind described in
Section 6(e), such Holder will forthwith discontinue disposition of Registrable
Securities until such Holder's receipt of the copies of the supplemented or
amended prospectus contemplated by Section 6(e), and, if so directed by the
Company such Holder will deliver to the Company (at the Company's expense) all
copies (including, without limitation, any and all drafts), other than permanent
file copies, then in such Holder's possession, of the prospectus covering such
Registrable Securities current at the time of receipt of such notice. In the
event that the Company shall give any such notice, the six-month period
mentioned in Section 6(b) shall be extended by the number of days during the
period from and including the date of the giving of such notice pursuant to
Section 6(e) to and including the date when each Holder of Registrable
Securities covered by such registration statement shall have received the copies
of the supplemented or amended prospectus contemplated by Section 6(e).
7. Registration Expenses.
(a) All reasonable expenses incident to the Company's perfor xxxxx of or
compliance with this Agreement, including without limitation all Registration
Expenses of the Company and the Holders, will be borne by the Company, with
respect to any registration, proposed or otherwise, of its securities; provided,
however, that notwithstanding anything to the contrary contained herein, each
Holder shall bear and pay all underwriting discounts and commissions and all
transfer taxes, if any, attributable to and/or payable in respect of any sale of
Registrable Securities by such Holder.
(b) In connection with each Demand Registration and each Piggyback
Registration and any registration of Warrants or other Registrable Securi ties
hereunder, the Company will also reimburse the Holders of Registrable Securi
ties covered by or proposed (pursuant to the terms of this Agreement) to be
included in such registration for the reasonable fees and disbursements of one
counsel chosen by the Holders of a majority of the Registrable Securities,
regardless
20
of whether such Registrable Securities are ultimately included in or sold
pursuant to such registration.
8. Indemnification.
(a) The Company shall indemnify and hold harmless, to the extent permitted
by law, each Holder of Registrable Securities, its respective partners, members,
stockholders, officers and directors and each Person who controls such Holder
(within the meaning of the Securities Act) against all losses, claims, damages,
liabilities and expenses arising out of or based upon any Violation and shall
xxxx xxxxx such Holder, partner, member, director, officer or controlling Person
for any legal or other fees or expenses reasonably incurred by such Holder,
director, officer or controlling Person in connection with the investigation or
defense of such loss, claim, damage, liability or expense, except insofar as the
same are caused by or contained in any information furnished in writing to the
Company by such Holder expressly for use in any registration statement,
prospectus or preliminary prospectus or any amendment thereof or supplement
thereto or, if such Holder participates as an underwriter in the offering or
sale of Registrable Securities, to the extent that any such loss, claim, damage,
liability or expense arises out of such Holder's failure to send or give a copy
of the final prospectus, as the same may be then supplemented or amended, after
the Company has furnished to such Holder a sufficient number of copies of same,
to the Person asserting the existence of a Violation 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. In connection with
an underwritten offering, the Company shall indemnify and hold harmless such
under writers, their officers and directors and each Person who controls such
underwriters (within the meaning of the Securities Act) to the same extent as
provided above with respect to the indemnification of the holders of Registrable
Securities; provided, however, that the Company will 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, under the indemnity agreement in this Section
8(a) with respect to any preliminary prospec tus or the final prospectus as
amended or supplemented, as the case may be, to the extent that any such loss,
claim, damage or liability of such underwriter or control ling Person results
from the fact that such underwriter sold Registrable Securities to a Person to
whom there was not sent or given, at or prior to the written confirmation of
such sale, a copy of the final prospectus (including any documents incorporated
by reference therein) or of the final prospectus as then amended or supplemented
(including any documents incorporated by reference therein), whichever is most
recent, if the Company has previously furnished
21
sufficient copies thereof to such underwriter. Any fees and expenses incurred by
the indemnified party (including any fees and expenses incurred in connection
with investigating or preparing to defend such action or proceeding) shall be
paid to the indemnified party, as incurred, within thirty (30) days of written
notice thereof to the indemnifying party. Any amounts advanced by the
indemnifying party to an indemnified party pursuant to this Section 8 shall be
returned to the indemnifying party if it shall be finally determined by such a
court in a judgment not subject to appeal or final review that such indemnified
party was not entitled to indemnification by the indemnifying party.
(b) In connection with any registration statement in which a Holder of
Registrable Securities is participating, each such Holder will furnish to the
Company in writing such information and affidavits as the Company reasonably
requests for use in connection with any such registration statement or
prospectus and, to the extent permitted by law, will indemnify the Company and
its respective members, directors and officers and each Person who controls the
Company (within the meaning of the Securities Act), as applicable, against any
losses, claims, dam ages, liabilities and expenses arising out of or based upon
any Violation, but only to the extent that the untrue statement or omission
constituting such Violation is contained in any information or affidavit so
furnished in writing by such Holder expressly for use in any registration
statement, prospectus or preliminary prospectus or any amendment thereof or
supplement thereto; provided, that the obligation to indemnify will be
individual to each Holder and will be limited to the net amount of proceeds
received by such Holder from the sale of Registrable Securities pursuant to such
registration statement.
(c) Any Person entitled to indemnification hereunder will (i) give prompt
written notice to the indemnifying party of any claim with respect to which it
seeks indemnification and (ii) unless in such indemnified party's reasonable
judg ment a conflict of interest between such indemnified and indemnifying
parties may exist with respect to such claim, permit such indemnifying party to
assume the defense of such claim with counsel reasonably satisfactory to the
indemnified party. If such defense is assumed, the indemnifying party will not
be subject to any liability for any settlement made by the indemnified party
without its consent (but such consent will not be unreasonably withheld). An
indemnifying party who is not entitled to, or elects not to, assume the defense
of a claim will not be obligated to pay the fees and expenses of more than one
counsel for all parties indemnified by such indemnifying party with respect to
such claim, unless in the reasonable judgment of any indemnified party a
conflict of interest may exist between such indemnified party and any other of
such indemnified parties with respect to such claim.
22
(d) The indemnification provided for under this Agreement will remain in
full force and effect regardless of any investigation made by or on behalf of
the indemnified party or any partner, member, officer, director or controlling
Person of such indemnified party and will survive the transfer of securities.
(e) If the indemnification required by this Section 8 from the indemnifying
party is unavailable to an indemnified party hereunder in respect of any losses,
claims, damages, liabilities or expenses referred to in this Section 8:
(i) The indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages, liabilities or expenses
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party and indemnified parties in connection with the actions
which resulted in such losses, claims, damages, liabilities or expenses, as
well as any other relevant equitable considerations. The relative fault of
such indemnifying party and indemnified parties shall be determined by
reference to, among other things, whether any Violation has been committed
by, or relates to information supplied by, such indemnifying party or
indemnified parties, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such Violation. The
amount paid or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be deemed to
include any legal or other fees or ex penses reasonably incurred by such
party in connection with the investigation or defense of such loss, claim,
damage, liability or expense.
(ii) The parties hereto agree that it would not be just and equitable
if contribution pursuant to this Section 8(e) were determined by pro rata
allocation or by any other method of allocation which does not take into
account the equitable considerations referred to in Section 8(e)(i). No
Person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation.
(f) If indemnification is available under this Section 8, the indemnifying
parties shall indemnify each indemnified party to the full extent provided in
this Section 8 without regard to the relative fault of such indemnifying party
or indemnified party or any other equitable consideration referred to in Section
8(e) except that no selling Holder shall be liable for any amount in excess of
the net
23
proceeds it receives in the offering which is the subject of the indemnification
proceeding.
(g) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have to the persons
specified in Section 8(a) and the obligations of the selling Holders under this
Section 8 shall be in addition to any liability which such Persons may otherwise
have to the Company. The remedies provided in this Section 8 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
an indemnified party at law or in equity.
9. Participation in Underwritten Registrations. No Person may partici xxxx
in any registration hereunder which is underwritten unless such Person (a)
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 (b) completes and executes all customary
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements; provided, that no Holder of Registrable Securities included in any
underwritten registration pursuant to Section 3(a)(ii) or Section 4 hereof shall
be required to make any representations or warranties to the Company (in
connection with the registration of the Company's securities) or the
underwriters other than representations and warranties (a) as are ordinarily
given by a seller of securities with respect to such seller's authority to sell,
the enforceability of agreements against such seller, such seller's good title
in such securities and the interest in such securities to be acquired at closing
by the buyer of such securities, and (b) regarding such Holder and such Holder's
intended method of distribution; provided, further, that no Holder of
Registrable Securities included in any underwritten registration pursuant to
Section 3(a)(ii) or Section 4 hereof shall be required to provide any
indemnification or contribution agreements other than to the same extent
provided in Section 8.
10. Rule 144 Reporting. With a view to making available to the holders of
Registrable Securities the benefits of certain rules and regulations of the SEC
which may permit the sale of the Registrable Securities to the public without
registra tion, the Company agrees to use its best efforts to:
(a) make and keep current public information available, within the
meaning of Rule 144 or any similar or analogous rule promulgated under the
Securities Act, at all times after it has become subject to the reporting
re quirements of the Exchange Act;
24
(b) file with the SEC, in a timely manner, all reports and other
documents required under the Securities Act and Exchange Act (after it has
become subject to such reporting requirements);
(c) so long as any party hereto owns any Registrable Securities,
furnish to such Person forthwith upon request a written statement as to its
compliance with the reporting requirements of said Rule 144 (at any time
commencing 90 days after the effective date of the first registration filed
by the Company for an offering of its securities to the general public),
the Securities Act and the Exchange Act (at any time after it has become
subject to such reporting requirements); a copy of its most recent annual
or quarterly report; and such other reports and documents as such Person
may reasonably request in availing itself of any rule or regulation of the
SEC allowing it to sell any such securities without registration; and
(d) in connection with any sale, transfer or other disposition by any
Holder of any Registrable Securities pursuant to Rule 144 promulgated under
the Securities Act, cooperate with such holder to facilitate the timely
preparation and delivery of certificates representing the Registrable
Securities to be sold and not bearing any Securities Act legend, and enable
certificates for such Registrable Securities to be for such number of
shares and registered in such name as the selling Holders may reasonably
request in writing no more than three (3) Business Days after any sale of
Registrable Securities; provided, that, if requested by the Company, such
Holder shall have furnished to the Company an opinion of counsel reasonably
satisfactory to the Com pany and the Company's counsel that registration of
such Registrable Securi ties under the Securities Act is not required.
11. Notices. All notices, demands or other communications to be given or
delivered under or by reason of the provisions of this Agreement will be in
writing and will be deemed to have been given when delivered personally, mailed
by certified or registered mail, return receipt requested and postage prepaid,
or the day after sent if sent via a nationally recognized overnight courier, or
upon written confirmation if sent via facsimile to any recipient (other than
Travelers, to whom facsimile transmission shall not be a valid means of notice
under this Agreement). Such notices, demands and other communications will be
sent to the address indicated below:
25
To the Company:
ARC IV REIT, Inc.
c/o ARC Holdings LLC
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
To the Subscribers:
At the address or facsimile number set forth on Exhibit A hereto
To the Original Investors:
At the address or facsimile number set forth on Exhibit B hereto
To the Reorganization Shareholders:
At the address or facsimile number set forth on Exhibit C hereto
To the Partnership Unit Holders:
At the address or facsimile number set forth on Exhibit D hereto
In each case, with copies to each of:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxx, III, Esq.
Facsimile No.: (000) 000-0000
26
Xxxxxxxx, Xxxxxxx & Xxxxxxx,
A Professional Corporation
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxx, Esq.
Attention: Xxxxxx X. Troop, Esq.
Facsimile No.: 000-000-0000
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Facsimile No.: (000) 000-0000
Xxxxxxxx Chance Xxxxxx & Xxxxx, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
Facsimile No.: (000) 000-0000
Xxxxxxxx & Xxxxx
Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx Xxxxx, Esq.
Facsimile No.: (000) 000-0000
or 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.
12. Miscellaneous.
(a) Other Registration Rights. The Company shall not grant to any holders
of Common Stock or other equity securities of the Company any demand or
piggyback registration rights with respect to any such securities that have
priority over the demand and piggyback registration rights set forth in this
Agreement, provided, however, that the Company may agree to effect one or more
"shelf" registrations of the Common Stock issuable upon redemption of any
Partnership Units, whether outstanding on the Effective Date or thereafter,
including the shelf
27
registration statement contemplated by Section 8.8 of the ARC IV Partnership
Agreement.
(b) 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.
(c) Remedies. Any Person having rights under any provision of this
Agreement (including any Original Investor, Subscriber, Reorganization Share
holder or Partnership Unit Holder) will be entitled to enforce such rights
specifically to recover damages caused by reason of any breach of any provision
of this Agree ment and to exercise all other rights granted by law. The parties
hereto agree and acknowledge that money damages may not be an adequate remedy
for any breach of the provisions of this Agreement and that any party may in its
sole discretion apply to any court of law or equity of competent jurisdiction
(without posting any bond or other security) for specific performance and for
other injunctive relief in order to enforce or prevent violation of the
provisions of this Agreement.
(d) Amendments and Waivers. Except as otherwise provided herein, the
provisions of this Agreement may be amended or waived only upon the prior
written consent of the Company and the Holders of a majority of the Registrable
Securities (which for this purpose shall not include the Warrants but shall
include the shares of Common Stock underlying any outstanding Warrants), pro
vided, however, that any amendment or waiver of any provision of this Agreement
which adversely affects the rights of any party to this Agreement shall be
executed by each such party; provided further, however, that a grant by the
Company of demand and/or piggyback registration rights that do not have priority
over the demand and piggyback registration rights granted to the Holders
hereunder shall not be deemed to "adversely affect" the rights of any party to
this Agreement.
(e) Successors and Assigns. All covenants and agreements in this Agreement
by or on behalf of any of the parties hereto will bind and inure to the benefit
of their respective heirs, legal representatives, successors and assigns of the
parties hereto whether so expressed or not. In addition, whether or not any
express assignment has been made, the provisions of this Agreement which are for
the benefit of purchasers or Holders of Registrable Securities are also for the
benefit of, and enforceable by, any subsequent Holder of Registrable Securities.
(f) Severability. Whenever possible, each provision of this Agreement will
be interpreted in such manner as to be effective and valid under
28
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.
(g) Counterparts. This Agreement may be executed simulta neously in two or
more counterparts, any one of which need not contain the signa tures of more
than one party, but all such counterparts taken together will constitute one and
the same Agreement.
(h) Descriptive Headings. The descriptive headings of this Agreement are
inserted for convenience only and do not constitute a part of this Agreement.
(i) Recapitalizations, Exchanges Affecting the Registrable Securities. The
provisions of this Agreement shall apply, to the full extent set forth herein,
with respect to the Registrable Securities, to any and all shares of stock of
the Company or any successor or assign of the Company (whether by merger,
consolida tion, sale of assets or otherwise) which may be issued in respect of,
in exchange for, or in substitution of the Registrable Securities, by reason of
a stock dividend, stock split, stock issuance, reverse stock split, combination,
recapitalization, reclassifica tion, merger, consolidation or otherwise. Upon
the occurrence of any of such events, amounts hereunder shall be appropriately
adjusted.
(j) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without giving effect to the
conflicts of law principles thereof.
(k) Third Party Beneficiaries. Except with respect to the Partner ship Unit
Holders and the Original Investors, this Agreement is not intended to confer
upon any person other than the parties hereto any rights or remedies hereunder.
* * * * *
29
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
day and year first above written.
XXXXXX X. XXX EQUITY XXXXXX X. XXX FOREIGN
FUND IV, L.P. FUND IV, L.P.
By: THL Equity Advisors IV, LLC, By: THL Equity Advisors IV, LLC,
its General Partner its General Partner
By: Xxxxxx X. Xxx Partners, L.P., By: Xxxxxx X. Xxx Partners, L.P.,
its Managing Member its Managing Member
By: Xxxxxx X. Xxx Advisors, LLC, By: Xxxxxx X. Xxx Advisors, LLC,
its General Partner its General Partner
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
------------------------- -------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Principal Managing Title: Principal Managing
Director Director
XXXXXX X. XXX CHARITABLE XXXXXX X. XXX INVESTORS
INVESTMENTS LIMITED LIMITED PARTNERSHIP
PARTNERSHIP
By: THL Investment Management
Corp., its General Partner
By: /s/ Xxxxxx X. Xxx
-------------------------
Name: Xxxxxx X. Xxx
Title: General Partner By: /s/ Xxxxx X. Xxxxxx
-------------------------
Name: Xxxxx X. Xxxxxx
Title:
XXXXXX X. XXX FOREIGN
FUND IV-B, L.P.
By: THL Equity Advisors IV, LLC,
its General Partner
By: Xxxxxx X. Xxx Partners, L.P.,
its Managing Member
By: Xxxxxx X. Xxx Advisors, LLC,
its General Partner
By: /s/ Xxxxx X. Xxxxxx
-------------------------
Name: Xxxxx X. Xxxxxx
Title: Principal Managing
Director
THE TRAVELERS INDEMNITY
COMPANY
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Principal Managing
Director
CAPITAL ARC HOLDINGS, LLC
By: /s/ Xxxxxxx Xxxxxx
-------------------------
Name: Xxxxxxx Xxxxxx
Title: Partner
NASSAU CAPITAL PARTNERS II, L.P.
By: /s/ Xxxxxxx X. Hack
-------------------------
Name: Xxxxxxx X. Hack
Title: Member
NASSAU CAPITAL FUNDS L.P.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxx
Title: President, Princeton
University Investment
Company
NAS PARTNERS I, L.L.C.
By: /s/ Xxxxxxx X. Hack
-------------------------
Name: Xxxxxxx X. Hack
Title: Member
ARC IV REIT, INC.
By: /s/ Xxxxx X. Xxxxxx
-------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
INDIVIDUAL INVESTOR SIGNATURE PAGE
/s/ Xxxxxx X. Xxxxxx
--------------------------------
XXXXXX X. XXXXXX
Executed by Xxxxx X. Xxxxxxx on behalf of
Xxxxxx X. Xxxxxx pursuant to the Voting
Agreement among Xxxxx X. Xxxxxxx, Xxxxxx
X. Xxxxxx and others
dated as of __________ __, 2002.
XXXXXXX INVESTMENT
PARTNERSHIP, L.P.
By: /s/ T. Xxxxxx XxXxxxx
---------------------------
Name: T. Xxxxxx XxXxxxx
Title: G.P.
/s/ Xxxx Xxxxxxx Green
--------------------------------
Xxxx Xxxxxxx Green
/s/ Xxxxxx XxXxxxx
--------------------------------
Xxxxxx XxXxxxx
/s/ Xxxxxx Mercy, Jr.
--------------------------------
Xxxxxx Mercy, Jr.
MERCY 1995 FAMILY TRUST
By: /s/ Xxxxxx Mercy, Jr.
--------------------------------
Name: Xxxxxx Mercy, Jr.
Title: Trustee
MANAGEMENT SIGNATURE PAGE
/s/ Xxxxxxx X. Xxxxxx
------------------------------
Xxxxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxx
------------------------------
Xxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxxx
------------------------------
Xxxxx X. Xxxxxxx
/s/ Xxxxxxxx X. Xxxxx
------------------------------
Xxxxxxxx X. Xxxxx
/s/ Xxxx X. Xxxxxxxx
-----------------------------
Xxxx X. Xxxxxxxx
/s/ Xxxxx Xxxxxxxxxxxxx
-----------------------------
Xxxxx Xxxxxxxxxxxxx
/s/ Xxxxxxxx Xxxxxxxx
-----------------------------
Xxxxxxxx Xxxxxxxx
/s/ X. Xxxxxx Xxxxxxx
-----------------------------
X. Xxxxxx Xxxxxxx
Exhibit A
Xxxxxx X. Xxx Equity Fund IV, L.P. Xxxxxx X. Xxx Foreign Fund IV, L.P.
c/o Xxxxxx X. Xxx Company c/o Xxxxxx X. Xxx Company
00 Xxxxx Xxxxxx, Xxxxx 0000 00 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxxxxx 02109 Xxxxxx, Xxxxxxxxxxxxx 00000
Telecopy: (000) 000-0000 Telecopy: (000) 000-0000
Attention: Xxxx Xxxxxxxx Attention: Xxxx Xxxxxxxx
Xxxxxx X. Xxx Charitable Investments Xxxxxx X. Xxx Investors Limited
Limited Partnership Partnership
c/o Xxxxxx X. Xxx Company c/o Xxxxxx X. Xxx Company
00 Xxxxx Xxxxxx, Xxxxx 0000 00 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxxxxx 02109 Xxxxxx, Xxxxxxxxxxxxx 00000
Telecopy: (000) 000-0000 Telecopy: (000) 000-0000
Attention: Xxxx Xxxxxxxx Attention: Xxxx Xxxxxxxx
Xxxxxx X. Xxx Foreign Fund IV-B, L.P. The Travelers Indemnity Company
c/o Xxxxxx X. Xxx Company 000 Xxxxxxxx Xxxx., 0XX
00 Xxxxx Xxxxxx, Xxxxx 0000 Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Xxxxxx, Xxxxxxxxxxxxx 00000 Attention: Real Estate Department,
Telecopy: (000) 000-0000 Xxxxx Xxxxxxxxx
Attention: Xxxx Xxxxxxxx Investment No.: 12809
Capital ARC Holdings, LLC
c/o UBS Capital
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy.: (000) 000-0000
Attention: Xxxxxxx Xxxxxx
Exhibit B
(ATTACHED)
EXHIBIT C
Nassau Capital Partners II, L.P. Xxxxx X. Xxxxxxx
x/x Xxxxxx Xxxxxxx Xxxxx, X.X. 000 X. Xxx Xxxxxx
00 Xxxxxxxx Xxxxxx Xxxxxx, XX 00000
Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx
Facsimile No.: (000) 000-0000
Nassau Capital Funds L.P. Xxxx X. Xxxxxxxx
00 Xxxxxxxx Xxxxxx 0000 X. Xxxxxx Xxxxx Xxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxx Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx
Facsimile No.: (000) 000-0000
NAS Partners I, L.L.C. Xxxxxxx X. Xxxxxx
x/x Xxxxxx Xxxxxxx Xxxxx, X.X. 000 Xxxxxxxx Xxxxxx
00 Xxxxxxxx Xxxxxx Xxxxxx, XX 00000
Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx
Facsimile No.: (000) 000-0000
Xxxx Xxxxxxx Xxxxx Xxxxx X. Xxxxxx
00 Xxxx 00xx Xxxxxx, Xxx. 00X 0000 Xxxxxxxxx Xxxx
Xxx Xxxx, XX 00000 Xxxxxxxxx, XX 00000
Xxxxxx Mercy, Jr. Xxxxxxxx X. Xxxxx
0000 Xxxx Xxxxxx 000 00xx Xxxxxx
Xxx Xxxx, XX 00000 Xxxxxxx, XX 00000
C-1
XxXxxxx Investment Partnership, L.P. R. Xxxxxx Xxxxxxx
x/x X. Xxxxxx XxXxxxx 0000 Xxxxx Xxxxxx #403
000 X. 00xx Xxxxxx, Xxx. 00X Xxxxxx, XX 00000
Xxx Xxxx, XX 00000-0000
Xxxxxx X. Xxxxxx Xxxxxxxx Xxxxxxxx
P.O. Box 3407 00 Xxxxxx Xxxxx Xxxxx
Xxxxxx Xxxxx Xx, XX 00000 Xxxxxxxxx Xxxxx, XX 00000
Mercy 1995 Family Trust Xxxxx Xxxxxxxxxxxxx
c/o Xxxxxx Mercy, Jr. 0000 X. Xxxxxxxx Xxxxxx
0000 Xxxx Xxxxxx Xxxxxxxxx, XX 00000
Xxx Xxxx, XX 00000-0000
Xxxx X. Xxxxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
C-2
EXHIBIT D
511 EQUITIES CORPORATION
C/O XXXXXX XXXXXX
000 XXXXX XXXXXX, 00XX XXXXX
XXX XXXX, XX 00000
PHONE: (000) 000-0000
XXXXXX AND XXXXXX PESKY
00 XXXX 00XX XXXXXX
XXX XXXX, XX 00000
PHONE: (000) 000-0000
ARC II INVESTOR
XXXXXXX X. XXXXX
XXXXX & XXXXXXXXX RISK CAPITAL CORP.
00 XXXXXXXXX XXXX
XXXXXXXXX, XX 00000
ARC VENTURES
C/O XXXX XXXXX
0000 XXXXXX XXXXX XXXX., XXX. 0000
XXXXXX, XX 00000-0000
PHONE: (000) 000-0000
XXXX X. XXXXXXX
000 - 00XX XXXXXX
XXXXXXX, XX 00000
PHONE: (000) 000-0000
XXXXXXXX XXXXX INVESTMENT PARTNERS, L.P
C/O XXXX X. XXXX
000 XXXXXXXX XXXXXX
XXXXXXXXX, XX 00000-0000
PHONE: (000) 000-0000
XXXXX X. XXXXXX
GTCR XXXXXX XXXXXX L.L.C.
0000 XXXXX XXXXX
XXXXXXX, XX 00000
PHONE: (000) 000-0000
XXXXXX X. XXXX
000 XXXXXXX XXXX XXXX
XXX XXXX, XX 00000
PHONE: (000) 000-0000
D-1
XXXXXX X. XXXXXXXX XX.
000 XXXXXX XXXXXX
XXXXXXXXX, XX 00000
PHONE: (000) 000-0000
XXXXX XXXXX
0000 XXXXX XXXXXX
XXX XXXX, XX 00000
PHONE: (000) 000-0000
XXXXX X. XXXXXXX
XXXXXX XXXXXX & CO.
000 XXXX XXXXXX, 00XX XXXXX
XXX XXXX, XX 00000
PHONE: (000) 000-0000
XXXXX X. XXXXXXXXX
000 XXXX 00XX XXXXXX, #00X
XXX XXXX, XX 00000
PHONE: (000) 000-0000
XXXX X. X'XXXX
000 XXXX XXXX
XXX XXXXX, XX 00000
XXXXXXX XXXXXXX
000 XXXX XXX XXXXXX
XXX XXXX, XX 00000
PHONE: (000) 000-0000
XXXXXXX INVESTMENT PARTNERS LIMITED
C/O XXXX XXXXXXX
BCRS ASSOCIATES
00 XXXX XXXXXX
XXX XXXX, XX 00000
PHONE: (000) 000-0000
XXXXXX AND XXXXXXX XXXXXXX
000 X. 00XX XX. XXX. 0
XXX XXXX, XX 00000
PHONE: (000) 000-0000
XXXXXX X.XXXX
XXXXXX XXXX
XXX XXXXXX, XX 00000
PHONE: (000) 000-0000
X-0
XXXXXX XXXXXX PARTNERS
C/O XXXXX XXXXXXXXXXXX
000 XXXXXXX XXXX XXXXX #00X
XXX XXXX, XX 00000
PHONE: (000) 000-0000
XXXXXX XXXXX
000 XXXX 00XX XX., XXX. 00X
XXX XXXX, XX 00000
PHONE: (000) 000-0000
XXXXXX XXXXXXXX
RIPPLEWOOD HOLDINGS INC.
0 XXXXXXXXXXX XXXXXX, 00XX XXXXX
XXX XXXX, XX 00000
PHONE: (000) 000-0000
XXXXXX MERCY, JR.
0000 XXXX XXXXXX
XXX XXXX, XX 00000
PHONE: (000) 000-0000
XXXXXX FAMILY TRUST
XXXX X. XXXXXX & XXXXX X. XXXXXX
TRUSTEES
0 XXXXXXXX XXXX
X.X. XXX 0000
XXXX, XX 00000
PHONE: (000) 000-0000
FAWPEAS L.P.
XXXX X. & XXXXX PESKY
00 XXXX 00XX XXXXXX, XXXXX 00
XXX XXXX, XX 00000
PHONE: (000) 000-0000
XXXX X. XXXXX
0000 XXXXX XXXXXX
XXX XXXX, XX 00000
XXXXXXXXX XXXXXXXX
XXXXXXX XXXXX
00 XXXXX XXXXXX
XXX XXXX, XX 00000
PHONE: (000) 000-0000
D-3
GAMCO INVESTORS, INC.
XXXXX X. XXXXXXX
GABELLI GROUP CAPITAL PARTNERS, INC.
XXX XXXXXXXXX XXXXXX
XXX, XX 00000
PHONE: (000) 000-0000
XXXX X. AND XXXXX X. XXXX
TRUSTEES FOR THE BENEFIT OF XXXX XXXXX XXXX
AND XXXXXXXXX XXXX XXXX
00 XXXXXX XXXXXXX
XXXXX XXXXX, XX 00000
PHONE: (000) 000-0000
GRANITE CAPITAL, L.P
C/O XXXXX XXXXXXXXX
000 X. 00XX XXXXXX, 00XX XXXXX
XXX XXXX, XX 00000
PHONE: (000) 000-0000
GRANTOR TRUST FOR XXXX X. XXXX
C/O XXXXX XXXX
NEW ENGLAND INVESTMENT CO.
000 XXXXX XXXXXX, 0XX XXXXX
XXX XXXX, XX 00000
PHONE: (000) 000-0000
GRANTOR TRUST FOR XXXXX X. XXXX
C/O XXXXX XXXX
NEW ENGLAND INVESTMENT CO.
000 XXXXX XXXXXX, 0XX XXXXX
XXX XXXX, XX 00000
PHONE: (000) 000-0000
GRANTOR TRUST FOR XXXXXXX X. XXXX
C/O XXXXX XXXX
NEW ENGLAND INVESTMENT CO.
000 XXXXX XXXXXX, 0XX XXXXX
XXX XXXX, XX 00000
PHONE: (000) 000-0000
D-4
GRANTOR TRUST FOR XXXXX X. XXXX
C/O XXXXX XXXX
NEW ENGLAND INVESTMENT CO.
000 XXXXX XXXXXX, 0XX XXXXX
XXX XXXX, XX 00000
PHONE: (000) 000-0000
XXXXXXX XXXXXXX PESKY
0000 XXXXX XXXXXX XXXXX
XXXXXXXXXXX, XX 00000
PHONE: (000) 000-0000
XXXXX PESKY WORCESTER
00 XXXXX XXXXXX
XXXX, XX 00000
PHONE: (000) 000-0000
XXXXX XXXXXXXX
0000 XXXX XXXXXX
XXX XXXX, XX 00000
PHONE: (000) 000-0000
XXXXXX XXXXXXXXXXX
000 XXXX XXXXXX, XXX. 0X
XXX XXXX, XX 00000
PHONE: (000) 000-0000
XXXXXX X. XXXXXXXXX
00 XXXX 00XX XXXXXX, 00XX XXXXX
XXX XXXX, XX 00000
PHONE: (000) 000-0000
INDIAN CREEK PARTNERS, LP
C/O XXXXX X. XXXXX
XXXXXXX XXXXX & CO.
00 XXXXX XXXXXX, 00XX XXXXX
XXX XXXX, XX 00000
PHONE: (000) 000-0000
INDOSUEZ ARC PARTNERS
C/O XXXXXXX XXXXX, ESQ.
000 XXXXX XXXXXX
XXX XXXX, XX 00000
PHONE: (000) 000-0000
D-5
IRVING AND XXXXX XXXXXXXXX
00000 XXXXXXXX XXXX XXXX
XXXXXXX, XX 00000
PHONE: (000) 000-0000
J. XXXXXXX XXXXXXX
0000 XXXXXX XXXXX
XXXXXX, XX 00000
PHONE: (000) 000-0000
XXXXX X. XXXX
0000 XXXX XXXXXX
XXX XXXX, XX 00000
PHONE: (000) 000-0000
XXXXXX X. XXXXXXX
00 XXXXX XXXX
XXXXXX, XX 00000
PHONE: (000) 000-0000
XXXX AND XXXXX PORTUGAL
00 X. 00XX XXXXXX
XXX XXXX, XX 00000
PHONE: (000) 000-0000
XXXX X. XXXXXXX
ODYSSEY DIGITAL PRINTING
0000-X XXXX 00XX
XXXXX, XX 74 145
PHONE: (000) 000-0000
XXXX X. XXXXX
000 XXXXXXXXX XXXXXX
XXXXXXXXX, XX 00000
PHONE: (000) 000-0000
XXXX XXXXXXX GREEN
00 XXXX 00XX XXXXXX, XXX. 00X
XXX XXXX, XX 00000
PHONE: (000) 000-0000
XXXXXX X. XXXXXX XX.
0000 XXXXXXXXXX XXXX XXXXX
XXXXXXX, XX 00000
PHONE: (000) 000-0000
D-6
XXXXXX XXXXX
XXXXXXX XXXXX
000 XXXX 00XX XXXXXX
XXX XXXX, XX 00000
PHONE: (000) 000-0000
XXXXXX X. AND XXXXXXXX X. XXXXXXXX
000 XXXXXXXXXX XXXXX
XXXXXXXX XXXXX, XX 00000
XXXXXX XXXXXXXXX
C/O HPB ASSOCIATES, L.P.
00 XXXX 00XX XXXXXX, 00XX XXXXX
XXX XXXX, XX 00000
PHONE: (000) 000-0000
XXXXXXX XXXXXX
000 XXXX 00XX XXXXXX
000 XXXX 00XX XXXXXX
PHONE: (000) 000-0000
XXXXXXXX X. XXXXXX III
000 XXXXXXXX XXXX
XXXXXXX, XX 00000
PHONE: (000) 000-0000
XXXXX X. XXXXXXXXX
HA' XXXXX XXXXX
XXX XXXXXX XXXX
XXXXXXXXXX, XX 00000
PHONE: (000) 000-0000
XXXXXXXX X. AND XXXXXXX X. XXX
0000 XXX XXXX XXXX
XXX XXXXXX, XX 91 108
XXXXX X. XXXXXXXXX
GRANITE CAPITAL INTERNATIONAL GROUP
000 X. 00XX XXXXXX, 00XX XXXXX
XXX XXXX, XX 00000
PHONE: (000) 000-0000
XXXX KONG
000 X. XXX XXX #00X
XXX XXXX, XX 00000
PHONE: (000) 000-0000
D-7
XXXXXXX INVESTMENT PARTNERS, L.P.
C/O T. XXXXXX XXXXXXX
000 X. 00XX XXXXXX, XXX. 00X
XXX XXXX, XX 00000 -9209
PHONE: (000) 000-0000
MERCY FOUNDATION
C/O XXXXXX MERCY, JR.
0000 XXXX XXXXXX
XXX XXXX, XX 00000-0000
PHONE: (000) 000-0000
XXXXXXX XXXXXXX
000 XXX XXXXX XXXXXX
XXXX XXXXX, XX 00000
PHONE: (000) 00 0-0000
XXXXXXX X. XXXX
000 XXXXXXXXX XXXXXX
XXXXX XXXXXX, XX 00000
PHONE: (000) 000-0000
MOBILECOURT PARTNERS I
X/X XXX XXXXX, XXX.
XXXXXXXX & XXXXXXXX
000 XXXXX XXXXXX
XXX XXXX, XX 00000
PHONE: (000) 000-0000
MOBILECOURT PARTNERS II
X/X XXX XXXXX, XXX.
XXXXXXXX & XXXXXXXX
000 XXXXX XXXXXX
XXX XXXX, XX 00000
PHONE: (000) 000-0000
MOBILECOURT PARTNERS III
X/X XXX XXXXX, XXX.
XXXXXXXX & XXXXXXXX
000 XXXXX XXXXXX
XXX XXXX, XX 00000
PHONE: (000) 000-0000
D-8
NTP PARTNERS
XXXXXXX XXXXXXXX
C/X XXXXXX HOLDING CORP.
000 XXXXX XXXX XXXX
XXX XXXX, XX 00000
PHONE: (000) 000-0000
XXXXX X. XXXX
NEW ENGLAND INVESTMENT CO.
000 XXXXX XXXXXX, 0XX XXXXX
XXX XXXX, XX 00000
PHONE: (000) 000-0000
PARK PARTNERS II
X/X XXXX XXXXXXXX
XXXXXXXX, XXXXXX, XXXXX & XXXX
00 XXXX 00XX XXXXXX
XXX XXXX, XX 00000
PHONE: (000) 000-0000
XXXXX XXXXX
XXXXXXX, SACHS & CO.
00 XXXXX XXXXXX, 0XX XXXXX
XXX XXXX, XX 00000
PHONE: (000) 000-0000
XXXXX X. XXXXXX
FORTRESS INVESTMENT GROUP
0000 XXXXXX XX XXX XXXXXXXX
00XX XXXXX
XXX XXXX, XX 00000
QUIDNET INVESTMENT PARTNERS, L.P.
C/O XXXX X. XXXXX
MANAGING GENERAL PARTNER
000 XXXXXX XXXXX
XXXXX XXXXX, XX 00000
PHONE: (000) 000-0000
X-0
XXXXXXX X. XXXXX XX. XXX XXXXXX XXXXX,
XXXXXX
000 0 XXXX XXXXXX
XXX XXXX, XX 00000
PHONE: (000) 000-0000
XXXXXXX X. XXXXX
0000 XXXXX XXXXXX XXX
XXXX XXXX XXXX, XX 00000
XXXXXXX X. & XXXXXXXXX X. XXXXXX
00 XXX XXXX XXXX
XXXXX XXXXX, XX 00000
PHONE: (000) 000-0000
XXXXXX XXXXX
00 XXXXXXXX XXXXX
XXXXXXXXX, XX 00000
PHONE: (000) 000-0000
XXXXXX X. XXXXXXX
000 XXXXXXXXX XXXXXX XXXX
XXXXXXXXXX, XX 00000
PHONE: (000) 000-0000
XXXXXX X. XXXXX
XXXXXXX XXXXX & CO.
00 XXXXX XXXXXX, 00XX XXXXX
XXX XXXX, XX 00000
PHONE: (000) 000-0000
XXXXXX X. XXXXXXXXX, REVOCABLE TRUST
000 XXXXXXXX XXXXXX
XXXXXXXXXXX, XX 00000
PHONE: (000) 000-0000
XXXXXX X. XXXXXX
XXXXXXX XXXXX & CO.
00 XXXXX XXXXXX, 0XX XXXXX
XXX XXXX, XX 00000
PHONE: (000) 000-0000
XXXXXX XXXXX
XXXXXX XXXXXX
XXXXX XXXXX, XX 00000
X-00
XXXX X. XXXXXXXXX
XXX XXXXXX XXXX
XXXXXXXXXX, XX 00000
PHONE: (407) 000-00 00
XXX XXXXXXX
00 XXXXXX XXXXXX
XXXXXXXXXXX, XX 00000
XXXXX XXXXXX
0000 XXXXX XXXXXX, XXX. 00X
XXX XXXX, XX 00000
XXXXXX XXXXXXXXX
00 XXXX 00XX XXXXXX, #0X
XXX XXXX, XX 00000
PHONE: (000) 000-0000
XXXXX MERCY
0000 XXXX XXX
XXX XXXX, XX 00000
PHONE: (000) 000-0000
TANAVON CORPORATION
C/O XXXXX XXXX
000 XXXXX XXXXXX, 0XX XXXXX
XXX X XXX, XX 00000
PHONE: (000) 000-0000
XXXXXX X. XXXXXXXXX
X.X. XXXXXXXXX, TOWBIN
000 XXXXXXX XXXXXX, 00XX XXXXX
XXX XXXX, XX 00000
PHONE: (000) 000-0000
XXXXXX XXXXXXX
X.X. XXXXXX PARTNERS
0000 XXXXXX XX XXX XXXXXXXX
XXX XXXX, XX 00000-0000
PHONE: (000) 000-0000
EMAIL: XXX.XXXXXXX@XXXXXXXXXXXX.XXX
D-11
XXXXXX XXXXXX
C/O NATIONAL REVIEW
000 XXXXXXXXX XXXXXX, 0XX XXXXX
XXX XXXX, XX 00000
PHONE: (000) 000-0000
XXXX AND XXXXXXXX XXXXX
0000 XXXXXXXXX XXXXX
X. XXXXXXXX, XX 00000
PHONE: (000) 000-0000
XXXX X. XXXXX
0000 XXXXXXXXX XXXXX
X. XXXXXXXX, XX 00000
PHONE: (000) 000-0000
TRUST FOR BENEFIT OF XXXXXXX X. PESKY
C/O A.D. PESKY COMPANY
000 XXXXXXX XXXXXX, 00XX XXXXX
XXX XXXX, XX 00000
PHONE: (000) 000-0000
TRUST FOR BENEFIT OF XXXXX PESKY WORCESTER
C/O A.D. PESKY COMPANY
000 XXXXXXX XXXXXX, 00XX XXXXX
XXX XXXX, XX 00000
PHONE: (000) 000-0000
XXXXXX XXXXXX
XXXXXXX, XXXXX & CO.
XXX XXX XXXX XXXXX, 00XX XXXXX
XXX XXXX, XX 00000
PHONE: (000) 000-0000
XXXXXX XXXXXXXX III
GRANITE CAPITAL
000 X. 00XX XXXXXX, 00XX XXXXX
XXX XXXX, XX 00000
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D-12
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C/X XXXXXX CAPITAL ASSOCIATES, INC.
XXX XXXXXXXXXXX XXXXX, XXXXX 0000
XXX XXXX, XX 00000-0
PHONE: (000) 000-0000 102
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XXXXXX CAPITAL ASSOCIATES, INC.
ONE ROCKEFELLER PLAZA, SUITE 3300
NEW YORK, NY 00000-0 000
PHONE: (000) 000-0000
XXXXXXX XXXXXXXXX
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0000 X. XXXXXXX XXXX.
XXX XXXXX, XX 00000
PHONE: (000) 000-0000
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