EXHIBIT 4.4
RESTRICTED STOCK ACKNOWLEDGMENT
AND
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of July
__, 1998 among (i) CHARTER COMMUNICATIONS INTERNATIONAL, INC., a Nevada
corporation with its principal office located at 0000 Xxxxx Xxxxx Xxxx, Xxxxx
000, Xxxxxxx, Xxxxxxx 00000 (the "Company"), and (ii) XXXXX X. XXXXXXXXX
("Xxxxxxxxx"), a resident of the Commonwealth of Kentucky, and JP INVESTMENT
CORPORATION ("Investment"), a Kentucky corporation, or its assignee, (each
referred to as a "Stockholder", as applicable, and collectively, as the
"Stockholders").
W I T N E S S E T H:
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WHEREAS, the Company and Xxxxxxxxx are on the date hereof entering into a
transaction (the "Transaction") whereby Xxxxxxxxx shall acquire 500,000 shares
of the Company's common stock, par value $.00001 per share and Xxxxxxxxx shall
obtain a warrant (the "Warrant") to purchase an additional 500,000 shares of the
Company's common stock.
WHEREAS, the Company and Investment on the date hereof expect to enter into
a transaction in the near future pursuant to a Financing Agreement among the
Company, Investment and Telecommute Solutions GP, Inc. ("Telecommute"), pursuant
to which Investment will have the right to convert certain shares of preferred
stock of Telecommute into shares of the Company's common stock.
NOW, THEREFORE, in consideration of the premises and the mutual
representations and covenants hereinafter set forth, the parties hereto hereby
agree as follows:
I. DEFINITIONS AND RESTRICTED STOCK ACKNOWLEDGMENTS
1.1 Definitions. For purposes of this Agreement, the following
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definitions shall apply:
Common Stock. The term "Common Stock" shall mean all shares of the
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Company's common stock being acquired by Xxxxxxxxx, all of the shares of the
Company's common stock issued pursuant to exercise of the Warrant, and all
shares of the Company's common stock acquired by Investment through the
conversion of Telecommute preferred stock, each as contemplated in the Recitals
above.
The 1933 Act. The term "1993 Act" means the Securities Act of 1933,
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as amended, or any successor legislation thereto.
Register. The terms "register," "registered," and "registration"
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refer to a registration effected by preparing and filing a registration
statement of similar documents in compliance with the 1933 Act, and the
declaration or ordering of effectiveness of such registration statement or
document.
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Registrable Securities. The term "Registrable Securities" means the
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Common Stock.
1.2 Restricted Stock Acknowledgments.
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(a) No Registration. The Stockholders understand and acknowledge
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that none of the shares of Common Stock have been registered under the 1933 Act
and, therefore, none of them can be resold unless they are registered under the
1933 Act or unless an exemption is available.
(b) Purchase for Investment, Etc. Each of the Stockholders
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represents and warrants to the Company, its representatives and agents that:
(i) Each of the Stockholders is aware that no federal or
state agency has made any finding or determination as to the fairness of an
investment in the Common Stock nor any recommendation nor endorsement with
respect thereto;
(ii) Each of the Stockholders recognize that an investment in
the Common Stock involves a high degree of risk;
(iii) Each of the Stockholders has such knowledge and
experience in financial and business matters as to be capable of evaluating the
risks and merits of participating in the Transaction and protecting
Stockholder's interests in connection with this investment;
(iv) Each of the Stockholders is able to bear the economic
risk of the investment in the Common Stock, including the risk of total loss of
the investment;
(v) Each of the Stockholders has received and has thoroughly
reviewed the Company's most recent reports on Form 10-KSB and 10-QSB (including
the Company's financial statements therein), and no statement, printed material
or inducement given or made by any person is contrary to the information
contained in such "SEC Reports";
(vi) Each of the Stockholders has had an opportunity to ask
questions of the officers and directors of the Company and to receive answers
from them concerning this offering and the Company, and the officers and
directors of the Company have made all relevant information available to
Stockholder, including materials, books and records of the Company;
(vii) Each of the Stockholders is aware that he must bear the
economic risk of his investment in the Company for an indefinite period of time
because the shares of Common Stock have not been registered under the 1933 Act
or the securities laws of any state and, therefore, none of them can be sold
unless subsequently registered under the 1933 Act and any applicable state
securities laws or an exemption from registration is available;
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(viii) Each of the Stockholders acknowledges that a legend
will be placed on the certificates for shares of Common Stock in substantially
the following form:
"THIS SECURITY HAS BEEN ACQUIRED FOR INVESTMENT AND HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY
STATE. WITHOUT SUCH REGISTRATION, SUCH SECURITY MAY NOT BE SOLD, PLEDGED,
HYPOTHECATED OR OTHERWISE TRANSFERRED, EXCEPT UPON DELIVERY TO THE ISSUER OF THE
CERTIFICATE OF AN OPINION OF COUNSEL SATISFACTORY TO COUNSEL FOR THE ISSUER THAT
REGISTRATION IS NOT REQUIRED FOR SUCH TRANSFER OR THE SUBMISSION TO COUNSEL FOR
THE ISSUER OF SUCH OTHER EVIDENCE AS MAY BE SATISFACTORY TO COUNSEL FOR THE
ISSUER TO THE EFFECT THAT ANY SUCH TRANSFER SHALL NOT BE IN VIOLATION OF THE
SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS OR ANY
RULE OR REGULATION PROMULGATED THEREUNDER,"; and
(ix) Each of the Stockholders acknowledges that the Company
has placed or will place stop transfer instructions with respect to the shares
of Common Stock to restrict the resale, pledge, hypothecation or other transfer
thereof.
II. REGISTRATION
2.1 Right to Include Registrable Stock. If the Company proposes to register
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any of its securities under the 1933 Act for its own account for sale for cash
(other than a registration on Form S-4 or Form S-8, or any successor or similar
forms) (an "Offering"), it will each such time promptly give written notice to
the Stockholders. Upon the written request of any of the Stockholders made
within 15 days after the receipt of any such notice (which request shall specify
the Registrable Securities intended to be disposed of by such Stockholder), the
Company will use its best efforts to effect the registration under the 1933 Act
of all Registrable Securities which the Company has been requested to register
by the Stockholder; provided that (i) if, at any time after giving written
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notice of its intention to register any securities and prior to the effective
date of the registration statement filed in connection with such registration,
the Company determines for any reason not to register such securities, the
Company may, at its election, give written notice of such determination to the
Stockholder and, thereupon, will be relieved of its obligation to register any
Registrable Securities in connection with such registration, (ii) in case of a
determination by the Company to delay registration of its securities, the
Company will be permitted to delay the registration of Registrable Securities
for the same period as the delay in registering such other securities, (iii) the
amount of Registrable Securities of the Stockholder which will be registered may
4.2-12
be limited by the terms of Section 2.2 hereof, and (iv) the Company shall have
no obligation pursuant to this Section 2.1 to register any Registrable
Securities unless the Stockholder agrees to accomplish the distribution of the
Registrable Securities in the manner and under such conditions as may be
reasonably required in the discretion of the Company including, without
limitation, the execution of appropriate agreements with underwriters,
utilization of specified brokerage firms or limitations on the number of shares
which may be sold on any single day.
2.2 Priority. If the managing underwriter for a registration involving
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an underwritten offering advises the Company in writing that, in its opinion,
the number of securities of the Company (including Registrable Securities)
requested to be included in such registration exceeds the number of securities
of the Company (the "Sale Number") which can be sold in an orderly manner in
such offering within a price range acceptable to the Company, the Company will
include (i) first, all securities of the Company that the Company proposes to
register for its own account and (ii) second, to the extent that the number of
securities of the Company to be included by the Company is less than the Sale
Number, a number of the Registrable Securities equal to the number derived by
multiplying (a) the difference between the Sale Number and the securities
proposed to be sold by the Company, and (b) a fraction of the numerator of which
is the number of Registrable Securities originally requested to be registered by
the Stockholder and the denominator of which shall be the aggregate number of
all securities requested to be registered by all stockholders of the Company's
securities (other than securities being registered by the Company itself). By
way of example, if the Stockholder requests registration of 500 shares and only
one other stockholder of shares of Common Stock requests registration and seeks
to register 1,000 shares and the Company seeks to register 3,000 shares and the
Sale Number is 4,200, then the Stockholder will be entitled to register 400
shares of Common Stock.
2.3 Withdrawal or Lapse. Notwithstanding any other provision herein to
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the contrary, the Company may at any time, at its sole discretion, withdraw or
abandon any registration statement or allow a registration statement to lapse,
without any liability to the Stockholder.
III. INDEMNIFICATION
3.1 To the extent permitted by law, the Stockholder will indemnify and
hold harmless the Company, each of its directors, each of its officers who has
signed the registration statement, each person, if any, who controls the Company
within the meaning of the 1933 Act, any underwriter and any controlling person
of any such underwriter, against any losses, claims, damages, or liabilities
(joint or severally) to which any of the foregoing persons may become subject,
under the 1933 Act or other federal or state law, insofar as such losses,
claims, damages, or liabilities (or action in respect thereto) arise out of or
are based upon false or misleading written information furnished by the
Stockholder expressly for use in connection with such registration; and such
Stockholder will pay, as incurred, any legal or other expenses reasonably
incurred by any person intended to be indemnified pursuant to this Section 3.1,
in connection with investigating or defending any such loss, claim, damage,
liability, or action. In no event will the liability of any Stockholder for
indemnification exceed the proceeds received by such Stockholder in the
Offering.
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3.2 The obligation of the Stockholder under this Article III will
survive the completion of any offering of Registrable Securities in a
registration statement under this Agreement, and otherwise.
IV. EXPENSES OF REGISTRATION
All expenses incurred in connection with any registration, qualification or
compliance pursuant to this Agreement, including, without limitation, all
registration, filing and qualification fees, printing expenses, fees and
disbursements of counsel for the Company and expenses of any special audits
incidental to or required by such registration, qualification or compliance will
be borne by the Company, except that the Stockholder shall be required to pay
underwriters' discounts, commissions, and stock transfer taxes relating to the
Registrable Securities and the fees and disbursements of counsel to the
Stockholder, other than as set forth in this Agreement.
V. MISCELLANEOUS
5.1 Termination. This Agreement shall terminate on December 31, 2002.
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5.2 Notices. Any notice or other communication given hereunder shall
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be deemed sufficient if in writing and sent by registered or certified mail,
return receipt requested, or delivered by hand against written receipt therefor,
by facsimile transmission or by overnight courier, addressed as follows:
if to either of the Stockholders,
c/o JP Investment Corporation
Xxx Xxxxxxxx Xxxxxxxx
Xxxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxxx
with a copy to,
Xxxxx, Xxxx & Xxxxxxx PLLC
000 Xxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: C. Xxxxxx Xxxxxxxxx
if to the Company,
Charter Communications International, Inc.
0000 Xxxxx Xxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
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with a copy to,
Cushing, Morris, Xxxxxxxxxx & Xxxxx, LLP
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000, International Tower
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Xx.
Notices shall be deemed to have been given on the third business day after
being so mailed; except notice of change of address and notices not delivered by
mail, which shall be deemed to have been given when received.
5.3 Severability. The holding of any provision of this Agreement to be
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invalid or unenforceable by a court of competent jurisdiction shall not affect
any other provision of this Agreement, which shall remain in full force and
effect.
IN WITNESS THEREOF, this Agreement has been executed as of the date first
above written.
CHARTER COMMUNICATIONS
INTERNATIONAL, INC.
By: __________________________________
Its: __________________________________
STOCKHOLDERS:
________________________________________
Xxxxx Xxxxxxxxx
JP INVESTMENT CORPORATION
By: __________________________________
Title: __________________________________
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