REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered into
as of December 3, 1999, by and among Promotions Acquisition, Inc., a Delaware
corporation (the "Company"), Xxx Target Media, Inc. ("Xxx"), Sandler Capital
Partners IV, L.P. ("SCP IV"), Sandler Capital Partners IV FTE, L.P. ("SCP IV
FTE"), Sandler Internet Partners, L.P. ("SIP"), XxxxxxXxxxxx.xxx, Inc., a
Delaware corporation ("BrightStreet"), The McClatchy Company, a Delaware
corporation ("McClatchy"), and Central Newspapers, Inc., an Arizona corporation
("Central") (Xxx, SCP IV, SCP IV FTE, SIP, BrightStreet, McClatchy and Central
collectively referred to herein, together with their transferees, as the
"Investors").
WITNESSETH:
WHEREAS, the Company has entered into that certain Stock Purchase
Agreement, dated as of the date hereof (the "Stock Purchase Agreement"), with
certain of the Investors pursuant to which the Company has agreed to issue and
sell to such Investors shares of the Company's Series A Convertible Preferred
Stock, par value $0.001 per share (the "Series A Preferred Stock");
WHEREAS, the Company has agreed to grant certain registration rights
with respect to the shares of the Company's Common Stock, par value $0.01 per
share, (the "Common Stock") issuable upon conversion of the Series A Preferred
Stock issued to the Investors pursuant to the Stock Purchase Agreement, as well
as Common Stock to be issued to BrightStreet concurrently with the sale of
BrightStreet's assets to the Company;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises and covenants contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties, intending to be legally bound, hereby agree as follows:
ARTICLE 1
DEFINITIONS
As used herein, the following terms shall have the following respective
meanings:
1.1 "Commission" shall mean the Securities and Exchange Commissions, or
any other successor federal agency at the time administering the Securities Act.
1.2 "Common Stock" shall mean the Company's common stock, par value
$0.001 per share.
1.3 "Exchange Act" shall mean the Securities and Exchange Act of 1934,
as amended, or any similar federal statute and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
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1.4 "Holders" shall mean and include each of the Series A Preferred
Stockholders, BrightStreet, Net Value Holdings, Inc., a Delaware corporation
("Holdings"), and any transferee thereof who holds Registrable Securities, and
any other person or entity that shall have executed this Agreement in accordance
with Article 10 hereof and whose name appears on the Schedule of Registration
Rights Holders attached hereto as Exhibit A.
1.5 "Initiating Holders" shall mean any Holder or Holders who in the
aggregate own not less than thirty-five percent (35%) of the Registrable
Securities.
1.6 "Qualified Public Offering" means the closing of a firm commitment
underwritten public offering, pursuant to an effective registration statement
under the Securities Act, covering the offer and sale by the Company of Common
Stock to the public in which the initial public offering price per share of
Common Stock is at least equal to [$4.05] per share of Common Stock (subject to
appropriate adjustment for stock splits, stock dividends, stock combinations,
reclassifications, recapitalizations, mergers, consolidations or other similar
events) and which results in aggregate gross proceeds to the Company of at least
$20,000,000.
1.7 The terms "register," "registered" and "registration" refer to a
registration effected by preparing and filing with the Commission a registration
statement in compliance with the Securities Act, and the declaration or ordering
by the Commission of the effectiveness of such registration statement.
1.8 "Registrable Securities" means any and all shares of Common Stock:
(i) issued or issuable upon conversion of the Series A Preferred Stock; (ii)
issued to BrightStreet in connection with the sale of BrightStreet's assets to
the Company; (iii) issued or issuable with respect to the Series A Preferred
Stock upon any stock split, stock dividend, recapitalization, reclassification,
merger, consolidation or other similar event; and (iv) otherwise held or
acquired by any of the Holders; excluding in all cases, however, Registrable
Securities sold by a Holder to the public pursuant to a registered offering or
pursuant to Rule 144 promulgated under the Securities Act.
1.9 "Registration Expenses" shall mean all expenses incurred by the
Company in complying with Articles 2 and 3 hereof, including, without
limitation, all registration, qualification and filing fees, printing expenses,
escrow fees, fees and disbursements of legal counsel for the Company, fees and
disbursements of one special legal counsel for the selling Holders, blue sky
fees and expenses, and the expense of any special audits incident to or required
by any such registration (but excluding the compensation of regular employees of
the Company, which shall be paid in any event by the Company).
1.10 "S-3 Registration Expenses" shall mean all expenses incurred by
the Company in complying with Article 4 hereof, including, without limitation,
all registration, qualification and filing fees, printing expenses, escrow fees,
fees and disbursements of legal counsel for the Company, fees and disbursements
of one special legal counsel for the selling Holders, blue sky fees and
expenses, and the expense of any special audits incident to or required by any
such
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registration (but excluding the compensation of regular employees of the
Company, which shall be paid in any event by the Company).
1.11 "Securities Act" shall mean the Securities Act of 1933, as
amended, or any similar federal statute and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
1.12 "Selling Expenses" shall mean all underwriting fees, discounts,
selling commissions and stock transfer taxes applicable to the Registrable
Securities registered by the Holders.
ARTICLE 2
REQUESTED REGISTRATION
2.1 Request for Registration. Beginning on the earlier of (i) the date
which is 180 days following the consummation of a Qualified Public Offering or
(ii) the date which the third anniversary of this Agreement, Initiating Holders
may request registration in accordance with this Article 2. In the event the
Company shall receive from the Initiating Holders a written request that the
Company effect any registration, qualification or compliance with respect to
Registrable Securities, the Company will:
(a) promptly give written notice of the proposed registration,
qualification or compliance to all other Holders; and
(b) use its best efforts to effect such registration, qualification
or compliance as soon as practicable (including, without limitation, undertaking
to file post-effective amendments, appropriate qualifications under applicable
blue sky or other state securities laws, and appropriate compliance with
applicable regulations issued under the Securities Act, and any other
governmental requirements or regulations) as may be so requested and as would
permit or facilitate the sale and distribution of all or such portion of such
Registrable Securities as are specified in such request, together with all or
such portion of the Registrable Securities of any Holder or Holders joining in
such request as are specified in a written request received by the Company
within 15 days after the receipt of the written notice from the Company
described in Section 2.1(a); provided, however, that the Company shall not be
obligated to take any action to effect any such registration, qualification or
compliance pursuant to this Article 2:
(i) in any particular jurisdiction in which the Company would
be required to execute a general consent to service of process in effecting such
registration, qualification or compliance, unless the Company is already subject
to service in such jurisdiction and except as may be required by the Securities
Act;
(ii) within one hundred and eighty (180) days immediately
following the effective date of any registration statement pertaining to a
firmly underwritten offering of securities of the Company for its own account
(or such lesser period as the managing underwriters of such offering will
allow);
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(iii) after the Company has effected three (3) such requested
registrations pursuant to this Article 2 (not including registrations on Form
S-3), each such registration has been declared or ordered effective, and the
Registrable Securities offered pursuant to each such registration have been
sold, or if the Company has effected any requested registration (other than a
registration for a Qualified Public Offering) pursuant to this Agreement during
the previous six-month period (or such shorter period as the managing
underwriter of the Company's most recent public offering will allow); or
(iv) if the Company then meets the eligibility requirements
applicable to the use of Form S-3 in connection with such registration and is
able to effect such requested registration pursuant to Article 4 hereof.
(c) Subject to the foregoing clauses (i) through (iv), the Company
shall file a registration statement covering the Registrable Securities so
requested to be registered as soon as practicable after receipt of the request
of the Initiating Holders; provided, however, that if the Company shall furnish
to such Holders a certificate signed by the President or Chief Executive Officer
of the Company stating that in the good faith judgment of the Board of Directors
of the Company, it would be detrimental to the Company and its stockholders for
such registration statement to be filed, the Company shall have the right to
defer such filing for a period of not more than 180 days after receipt of the
request of the Initiating Holders; provided, further, that the Company shall not
be permitted to exercise such deferral right under this Section 2.1(c) or
Section 4.1(c) hereof more than once in any 365-day period.
2.2 Underwriting.
(a) The distribution of the Registrable Securities covered by the
request of the Initiating Holders shall be effected by means of the method of
distribution selected by the Holders holding a majority of the Registrable
Securities covered by such registration. If such distribution is effected by
means of an underwriting, the right of any Holder to registration pursuant to
this Article 2 shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable Securities in the
underwriting (unless otherwise agreed by the Initiating Holders) to the extent
provided herein.
(b) If such distribution is effected by means of an underwriting,
the Company (together with all Holders proposing to distribute their securities
through such underwriting) shall enter into an underwriting agreement in
customary form with a managing underwriter of nationally recognized standing
selected for such underwriting by a majority in interest of the Initiating
Holders and approved by the Company, which approval shall not be unreasonably
withheld. Notwithstanding any other provision of this Article 2, if the managing
underwriter advises the Initiating Holders in writing that marketing factors
require a limitation of the number of shares to be underwritten, then the
underwriters may exclude shares requested to be included in such registration.
The number of shares of Registrable Securities to be included in the
registration and underwriting shall be allocated first amongst the Initiating
Holders who have requested registration of Registrable Securities and then
amongst the other Holders who have requested registration of Registrable
Securities in such registration and underwriting in
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proportion, as nearly as practicable, to the respective amounts of Registrable
Securities held by such Holders at the time of filing the registration
statement. No Registrable Securities excluded from the underwriting by reason of
the managing underwriter's marketing limitation shall be included in such
registration.
(c) If any Holder disapproves of the terms of the underwriting,
such person may elect to withdraw therefrom by written notice to the Company,
the managing underwriter and the Initiating Holders. The Registrable Securities
and/or other securities so withdrawn shall also be withdrawn from registration;
provided, however, that if by the withdrawal of such Registrable Securities a
greater number of Registrable Securities held by other Holders may be included
in such registration (up to the maximum of any limitation imposed by the
underwriters), then the Company shall offer to all Holders who have included
Registrable Securities in the registration the right to include additional
Registrable Securities in the same proportion used in determining the
underwriter limitation in this Section 2.2.
2.3 Inclusion of Shares by Company. If the distribution of Registrable
Securities is being effected by means of an underwriting and if the managing
underwriter has not limited the number of Registrable Securities to be
underwritten, the Company may include securities for its own account or for the
account of others in such registration if the managing underwriter so agrees.
The inclusion of such shares shall be on the same terms as the registration of
shares held by the Initiating Holders. In the event that the underwriters
exclude some of the securities to be registered, the securities to be sold for
the account of the Company and any other holders shall be excluded in their
entirety prior to the exclusion of any Registrable Securities.
2.4 Cancellation of Registration. A majority in interest of the
Initiating Holders shall have the right to cancel a proposed registration of
Registrable Securities pursuant to Article 2 when, in their discretion, market
conditions are so unfavorable as to be seriously detrimental to an offering
pursuant to such registration. Such cancellation of a registration shall not be
counted as one of the three (3) such requested registrations pursuant to Section
2.1(b)(iii) if the Initiating Holders for such registration pay all Registration
Expenses associated with such registration.
ARTICLE 3
COMPANY REGISTRATION
3.1 Notice of Registration to Holders. If at any time or from time to
time the Company shall determine to register any of its securities, either for
its own account or the account of a security holder or holders, other than (i) a
registration relating solely to employee benefit plans on Form S-8 (or any
successor form) or (ii) a registration relating solely to a Commission Rule 145
transaction on Form S-4 (or any successor form), the Company will:
(a) promptly give to each Holder written notice thereof, and
(b) include in such registration (and any related qualification
under blue sky laws or other compliance), and in any underwriting involved
therein, all the Registrable
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Securities specified in a written request or requests, made within 30 days after
receipt of such written notice from the Company described in Section 3.1(a), by
any Holder or Holders.
3.2 Underwriting. If the registration of which the Company gives notice
is for a registered public offering involving an underwriting, the Company shall
so advise the Holders as a part of the written notice given pursuant to Section
3.1(a). In such event, the right of any Holder to registration pursuant to this
Article 3 shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable Securities in the
underwriting to the extent provided herein. All Holders proposing to distribute
their securities through such underwriting shall (together with the Company)
enter into an underwriting agreement in customary form with the managing
underwriter selected for such underwriting by the Company.
(a) Notwithstanding any other provision of this Article 3, if the
managing underwriter determines that marketing factors require a limitation of
the number of shares to be underwritten, the underwriter may exclude some or all
Registrable Securities from such registration and underwriting. The Company
shall so advise all Holders of Registrable Securities, and the number of shares
of Common Stock to be included in such registration shall be allocated as
follows: first, for the account of the Company, all shares of Common Stock
proposed to be sold by the Company; second, for the account of the Holders
participating in such registration, the number of shares of Common Stock
requested to be included in the registration by such Holders; third, for the
account of the Management Stockholders in proportion, as nearly as practicable,
to the respective amounts of Registrable Securities that are proposed to be
offered and sold by such Holders of Registrable Securities at the time of filing
the registration statement; and fourth, for the account of any other
stockholders of the Company participating in such registration, the number of
shares of Common Stock requested to be included in the registration by such
other stockholders in proportion, as nearly as practicable, to the respective
amounts of Registrable Securities that are proposed to be offered and sold by
such other stockholders of Registrable Securities at the time of filing the
registration statement. No Registrable Securities excluded from the underwriting
by reason of the underwriters' marketing limitation shall be included in such
registration.
(b) The Company shall so advise all Holders and the other holders
distributing their securities through such underwriting of any such limitation,
and the number of shares of Registrable Securities held by Holders that may be
included in the registration. If any Holder disapproves of the terms of any such
underwriting, such Holder may elect to withdraw therefrom by written notice to
the Company and the managing underwriter. Any securities excluded or withdrawn
from such underwriting shall be withdrawn from such registration, but the Holder
shall continue to be bound by Article 8 hereof.
(c) The Company shall have the right to terminate or withdraw any
registration initiated by it under this Article 3 prior to the effectiveness of
such registration, whether or not a Holder has elected to include Registrable
Securities in such registration.
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ARTICLE 4
REGISTRATION ON FORM S-3
4.1 Request for Registration.
(a) In addition to the rights set forth in Articles 2 and 3 hereof,
if a Holder or Holders request that the Company file a registration statement on
Form S-3 (or any successor to Form S-3) for a public offering of shares of
Registrable Securities having an aggregate offering price of at least $1,000,000
(based on the then current market price) and the Company is a registrant
entitled to use Form S-3 (or any successor form to Form S-3) to register such
shares for such an offering, the Company shall use its best efforts to cause
such shares to be registered for the offering as soon as practicable on Form S-3
(or any such successor form to Form S-3).
(b) Notwithstanding the foregoing, the Company shall not be
obligated to take any action pursuant to this Article 4:
(i) in any particular jurisdiction in which the Company would
be required to execute a general consent to service of process in effecting such
registration, qualification or compliance, unless the Company is already subject
to service in such jurisdiction and except as may be required by the Securities
Act;
(ii) if the Company, within ten (10) days of the receipt of the
request of the Holder or Holders, gives notice of its bona fide intention to
effect the filing of a registration statement with the Commission within
forty-five (45) days of receipt of such request (other than with respect to a
registration statement relating to a Rule 145 transaction or an offering solely
to employees);
(iii) during the period starting with the date of filing of,
and ending on a date which is 180 days following the effective date of, a
registration statement described in (ii) above or filed pursuant to this Article
4 or Articles 2 or 3 hereof (or such shorter period as the managing underwriter
of the Company's most recent public offering may agree), provided that the
Company is actively employing in good faith all reasonable efforts to cause such
registration statement to become effective and provided, further, that no other
person or entity could require the Company to file a registration statement in
such period;
(c) Subject to the foregoing clauses (b) (i) through (iii), the
Company shall file a registration statement on Form S-3 covering the Registrable
Securities so requested to be registered as soon as practicable after receipt of
the request of the Holders; provided, however, that if the Company shall furnish
to such Holders a certificate signed by the President or Chief Executive Officer
of the Company stating that in the good faith judgment of the Board of Directors
of the Company, it would be detrimental to the Company and its stockholders for
such registration statement to be filed on or before the date filing would be
required, and it is therefore essential to defer the filing of such registration
statement, the Company shall have the right to defer such filing for a period of
not more than 90 days after receipt of the request of the Holders;
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provided, further, that the Company shall not be permitted to exercise such
deferral right under this Section 4.1(c) or Section 2.1(c) hereof more than once
in any 360-day period.
4.2 Underwriting.
(a) The distribution of the Registrable Securities covered by the
registration on Form S-3 shall be effected by means of the method of
distribution selected by the Holders holding a majority of the Registrable
Securities covered by such registration. If such distribution is effected by
means of an underwriting, the right of any Holder to registration pursuant to
this Article 4 shall be conditioned upon such Holder's participation in such
underwriting, if any, and the inclusion of such Holder's Registrable Securities
in such underwriting.
(b) If the distribution of the Registrable Securities pursuant to
this Section 4.2 is effected by means of an underwriting, the Company (together
with all Holders proposing to distribute their securities through such
underwriting) shall enter into an underwriting agreement in customary form with
a managing underwriter of nationally recognized standing selected for such
underwriting by a majority in interest of the Holders requesting registration on
Form S-3 and approved by the Company, which approval shall not be unreasonably
withheld. Notwithstanding any other provision of this Article 4, if the managing
underwriter advises the Holders in writing that marketing factors require a
limitation of the number of shares to be underwritten, then the underwriters may
exclude some or all of the shares requested to be included in such registration,
and the number of shares of Registrable Securities that may be included in the
registration and underwriting shall be allocated among all Holders thereof in
proportion, as nearly as practicable, to the respective amounts of Registrable
Securities held by such Holders at the time of filing the registration
statement. No Registrable Securities excluded from the underwriting by reason of
the managing underwriter's marketing limitation shall be included in such
registration.
(c) If the distribution of the Registrable Securities pursuant to
this Section 4.2 is effected by means of an underwriting and if any Holder of
Registrable Securities disapproves of the terms of the underwriting, such person
may elect to withdraw therefrom by written notice to the Company, the managing
underwriter and the Holders. The Registrable Securities and/or other securities
so withdrawn shall also be withdrawn from registration; provided, however, that
if by the withdrawal of such Registrable Securities a greater number of
Registrable Securities held by other Holders may be included in such
registration (up to the maximum of any limitation imposed by the underwriters),
then the Company shall offer to all Holders who have included Registrable
Securities in the registration the right to include additional Registrable
Securities in the same proportion used in determining the underwriter limitation
in this Section 4.2.
4.3 Inclusion of Shares by Company. If the distribution of the
Registrable Securities pursuant to this Article 4 is effected by means of an
underwriting and if the managing underwriter has not limited the number of
Registrable Securities to be underwritten, the Company may include securities
for its own account or for the account of others in such registration if the
managing underwriter so agrees and if the number of Registrable Securities held
by Holders requesting registration on Form S-3 which would otherwise have been
included
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in such registration and underwriting will not thereby be limited. The inclusion
of such shares shall be on the same terms as the registration of shares held by
the Holders requesting such registration. In the event that the underwriters
exclude some of the securities to be registered on Form S-3, the securities to
be sold for the account of the Company and any other holders shall be excluded
in their entirety prior to the exclusion of any Registrable Securities.
ARTICLE 5
EXPENSES OF REGISTRATION
All Registration Expenses incurred in connection with any registration,
qualification or compliance pursuant to Article 2 and Article 3 hereof and all
S-3 Registration Expenses shall be borne by the Company. All Selling Expenses
relating to Registrable Securities registered by the Holders shall be borne by
the Holders of such Registrable Securities pro rata on the basis of the number
of shares so registered.
ARTICLE 6
REGISTRATION PROCEDURES
(a) In the case of each registration effected by the Company pursuant
to this Agreement, the Company will keep each Holder advised in writing as to
the initiation of each registration and as to the completion thereof. The
Company agrees to use its best efforts to effect or cause such registration to
permit the sale of the Registrable Securities covered thereby by the Holders
thereof in accordance with the intended method or methods of distribution
thereof described in such registration statement. In connection with any
registration of any Registrable Securities pursuant to Section 2, 3 or 4 hereof,
the Company shall, as soon as reasonably possible:
(i) prepare and file with the Commission a registration
statement with respect to such Registrable Securities and use its efforts to
cause such registration statement filed to become effective (provided that
before filing a registration statement or prospectus or any amendments or
supplements thereto, the company comply with subparagraph (iii) of this
paragraph (a)) as soon as reasonably possible thereafter;
(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus included therein
as may be necessary to effect and maintain the effectiveness of such
registration statement as may be required by the applicable rules and
regulations of the Commission and the instructions applicable to the form of
such registration statement, and furnish to the holders of the Registrable
Securities covered thereby copies of any such supplement or amendment prior to
this being used and/or filed with the Commission; and comply with the provisions
of the Securities Act with respect to the disposition of all the Registrable
Securities to be included in such registration statement;
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(iii) provide (A) the Holders of the Registrable Securities to
be included in such registration statement, (B) the underwriters (which term,
for purposes of this Agreement, shall include a person deemed to be an
underwriter within the meaning of Section 2(11) of the Securities Act), if any,
thereof, (C) the sales or placement agent, if any, therefor, (D) one counsel for
such underwriters or agent, and (E) not more than one counsel for all the
Holders of such Registrable Securities, the opportunity to participate in the
preparation of such registration statement, each prospectus included therein or
filed with the Commission, and each amendment or supplement thereto;
(iv) for a reasonable period prior to the filing of such
registration statement, and throughout the period specified above, make
available for inspection by the parties referred to in Section 6(a)(iii) above
such financial and other information and books and records of the Company, and
cause the officers, directors, employees, counsel and independent certified
public accountants of the Company to respond to such inquiries, as shall be
reasonably necessary, in the judgment of the respective counsel referred to in
such Section 6(a)(iii), to conduct a reasonable investigation within the meaning
of the Securities Act; provided, however, that each such party shall be required
to maintain in confidence and not disclose to any other person or entity any
information or records reasonably designated by the Company in writing as being
confidential, until such time as (a) such information becomes a matter of public
record (whether by virtue of its inclusion in such registration statement or
otherwise), or (b) such party shall be required so to disclose such information
pursuant to the subpoena or order of any court or other governmental agency or
body having jurisdiction over the matter, or (c) such information is required to
be set forth in such registration statement or the prospectus included therein
or in an amendment to such registration statement or an amendment or supplement
to such prospectus in order that such registration statement, prospectus,
amendment or supplement, as the case may be, does not include an untrue
statement of a material fact or omit to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading;
and provided, further, that the Company need not make such information
available, nor need it cause any officer, director or employee to respond to
such inquiry, unless each such Holder of Registrable Securities to be included
in a registration statement hereunder and such counsel, upon the Company's
request, execute and deliver to the Company an undertaking to substantially the
same effect contained in the second preceding proviso;
(v) promptly notify the Holders of Registrable Securities to be
included in a registration statement hereunder, the sales or placement agent, if
any, therefor and the managing underwriter of the securities being sold and
confirm such advice in writing, (A) when such registration statement or the
prospectus included therein or any prospectus amendment or supplement or
post-effective amendment has been filed, and, with respect to such registration
statement or any post-effective amendment, when the same has become effective,
(B) of any comments by the Commission and by the blue sky or securities
commissioner or regulator of any state with respect thereto or any request by
the Commission for amendments or supplements to such registration statement or
the prospectus or for additional information, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of such registration
statement or the initiation of any proceedings for that purpose, (D) of the
receipt by the Company of any notification with respect to the suspension of the
qualification of the
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Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, or (E) if it shall be the case,
at any time when a prospectus is required to be delivered under the Securities
Act, that such registration statement, prospectus, or any document incorporated
by reference, in any of the foregoing contains an untrue statement of a material
fact or omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing;
(vi) use its best efforts to obtain the withdrawal of any order
suspending the effectiveness of such registration statement or any
post-effective amendment thereto or of any order suspending or preventing the
use of ant related prospectus or suspending the qualification of any Registrable
Securities included in such registration statement for sale in any jurisdiction
at the earliest practicable date;
(vii) if requested by any managing underwriter or underwriter,
any placement or sales agent or any Holder of Registrable Securities to be
included in a registration statement, promptly incorporate in a prospectus,
prospectus supplement or post-effective amendment such information as is
required by the applicable rules and regulations of the Commission and as such
managing underwriter or underwriters, such agent or such Holder may reasonably
specify should be included therein relating to the terms of the sale of the
Registrable Securities included thereunder, including, without limitation,
information with respect to the number of Registrable Securities being sold by
such Holder or agent or to such underwriters, the name and description of such
Holder, the offering price of such Registrable Securities and any discount,
commission or other compensation payable in respect thereof, the purchase price
being paid therefor by such underwriters and with respect to any other terms of
the offering of the Registrable Securities to be sold in such offering; and make
all required filings of such prospectus; prospectus supplement or post-effective
amendment promptly after notification of the matters to be incorporated in such
prospectus, prospectus supplement or post-effective amendment;
(viii) furnish to each Holder of Registrable Securities to be
included in such registration statement hereunder, each placement or sales
agent, if any, therefor, each underwriter, if any, thereof and the counsel
referred to in Section 6(a)(iii) an executed copy of such registration
statement, each such amendment and supplement thereto (in each case excluding
all exhibits and documents incorporated by reference) and such number of copies
of the registration statement (excluding exhibits thereto and documents
incorporated by reference therein unless specifically so requested by such
holder, agent or underwriter, as the case may be) of the prospectus included in
such registration statement (including each preliminary prospectus and any
summary prospectus), in conformity with the requirements of the Securities Act,
as such Holder, agent, if any, and underwriter, if any, may reasonably request
in order to facilitate the disposition of the Registrable Securities owned by
such Holder sold by such agent or underwritten by such underwriter and to permit
such Holder, agent and underwriter to satisfy the prospectus delivery
requirements of the Securities Act; and the Company hereby consents to the use
of such prospectus and any amendment or supplement thereto by each such Holder
and by any such agent and underwriter, in each case in the form most recently
provided to such party by the Company, in connection with the offering and sale
of the Registrable Securities covered by
-11-
the prospectus (including such preliminary and summary prospectus) or any
supplement or amendment thereto;
(ix) use its best efforts to (A) register or qualify the
Registrable Securities to be included in such registration statement under such
other securities laws or blue sky laws of such jurisdictions to be designated by
the Holders of a majority of such Registrable Securities participating in such
registration and each placement or sales agent, if any, therefor and
underwriter, if any, thereof, as any Holder and each underwriter, if any, of the
securities being sold shall reasonably request, (B) keep such registrations or
qualifications in effect and comply with such laws so as to permit the
continuance of offers, sales and dealings therein in such jurisdictions for so
long as may be necessary to enable such Holder, agent or underwriter to complete
its distribution of the Registrable Securities pursuant to such registration
statement and (C) take any and all such actions as may be reasonably necessary
or advisable to enable such Holder, agent, if any, and underwriter to consummate
the disposition in such jurisdictions of such Registrable Securities; provided,
however, that the Company shall not be required for any such purpose to (1)
qualify generally to do business as a foreign company or a broker-dealer in any
jurisdiction wherein it would not otherwise be required to qualify but for the
requirements of this Section 6(a)(ix), or (2) subject itself to taxation in any
such jurisdiction;
(x) cooperate with the Holders of the Registrable Securities to
be included in a registration statement hereunder and the managing underwriters
to facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold, which certificates shall be printed,
lithographed or engraved, or produced by any combination of such methods, on
steel engraved borders and which shall not bear any restrictive legends; and
enable such Registrable Securities to be in such denominations and registered in
such names as the managing underwriters may request at least two business days
prior to any sale of the Registrable Securities;
(xi) provide a CUSIP number for all Registrable Securities, not
later than the effective date of the registration statement;
(xii) enter into one or more underwriting agreements,
engagement letters, agency agreements, "best efforts" underwriting agreements or
similar agreements, as appropriate, and take such other actions in connection
therewith as the Holders of at least a majority of the Registrable Securities
being sold shall reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities;
(xiii) whether or not an agreement of the type referred to in
the preceding subsection if entered into and whether or not any portion of the
offering contemplated by such registration statement is an underwritten offering
or is made though a placement or sales agent or any other entity, (A) make such
representations and warranties to the Holders of such Registrable Securities and
the placement or sales agent, if any, therefor and the underwriters, if any,
thereof in form, substance and scope as are customarily made in connection with
any offering of equity securities pursuant to any appropriate agreement and/or
to a registration statement filed on the form applicable to such registration
statement; (B) obtain an opinion of
-12-
counsel to the Company in customary form and covering such matters, of the type
customarily covered by such an opinion, as the managing underwriters, if any,
and as the Holders of at least a majority of such Registrable Securities may
reasonably request, addressed to such Holders and the placement or sales agent,
if any, therefor and the underwriters, if any, thereof and dated the effective
date of such registration statement (and if such registration statement
contemplates an underwritten offering of a party or of all of the Registrable
Securities, dated the date of the closing under the underwriting agreement
relating thereto) (it being agreed that the matters to be covered by such
opinion shall include, without limitation, the due organization of the Company,
and its subsidiaries, if any; the qualification of the Company, and its
subsidiaries, if any, to transact business as foreign companies; the due
authorization, execution and delivery of this agreement and of any agreement of
the typed referred to in Section 6(a)(xii) hereof; the due authorization, valid
issuance, and the fully paid status of the Registrable Securities of the
Company; the absence of material legal or governmental proceedings involving the
Company; the absence to the knowledge of such counsel of a breach by the Company
or its subsidiaries of, or a default under, agreements binding the Company or
any subsidiary; the absence of governmental approvals required to be obtained in
connection with the registration statement, the offering and sale of the
Registrable Securities, this Agreement or any agreement of the type referred to
in Section 6(a)(xii) hereof; the compliance as to form of such registration
statement and any documents incorporated by reference therein with the
requirements of the Securities Act; the effectiveness of such registration
statement under the Securities Act; and, as of the date of the opinion and of
the registration statement or most recent post-effective amendment thereto, as
the case may be, the absence, to the knowledge of such counsel, from such
registration statement and the prospectus included therein, as then amendment or
supplemented, and from the documents incorporated by reference therein of an
untrue statement of a material fact or the omission to state therein a material
fact necessary to make the statements therein not misleading (in case of such
documents, in the light of the circumstances existing at the time that such
documents were filed with the Commission under the Exchange Act)); (C) obtain a
"cold" comfort letter or letters from the independent certified public
accountants of the Company addressed to the Holders and the placement or sales
agent, if any, therefor and the underwriters, if any, thereof, dated (I) the
effective date of such registration statement and (II) the effective date of any
prospectus supplement to the prospectus included in such registration statement
or post-effective amendment to such registration statement which includes
unaudited or audited financial statements as of a date or for a period
subsequent to that of the latest such statements included in such prospectus
(and, if such registration statement contemplates an underwritten offering
pursuant to any prospectus supplement to the prospectus included in such
registration statement or post-effective amendment to such registration
statement which includes unaudited or audited financial statements as of a date
or for a period subsequent to that of the latest such statements included in
such prospectus, dated the date of the closing under the underwriting agreement
relating thereto), such letter or letters to be in customary form and covering
such matters of the type customarily covered by letters of such type; (D)
deliver such documents and certificates, including officers' certificates, as
may be reasonably requested by Holders of at least a majority of the Registrable
Securities being sold and the placement or sales agent, if any, therefor and the
managing underwriters, if any, thereof to evidence the accuracy of the
representations and warranties made pursuant to clause (A) above and the
compliance with or satisfaction of any agreements or conditions contained in the
underwriting agreement or other agreement entered
-13-
into by the Company; and (E) undertake such obligations relating to expense
reimbursement, indemnification and contribution as are provided in Sections 5
and 7 hereof;
(xiv) notify in writing each Holder of Registrable Securities
of any proposal by the Company to amend or waive any provision of this Agreement
and of any amendment or waiver effected pursuant thereto, each of which notices
shall contain the text of the amendment or waiver proposed or effected, as the
case may be;
(xv) engage to act on behalf of the Company with respect to the
Registrable Securities to be so registered a registrar and transfer agent having
such duties and responsibilities (including, without limitation, registration of
transfers and maintenance of stock registers) as are customarily discharged by
such an agent, and to enter into such agreements and to offer such indemnities
as are customary in respect thereof; and
(xvi) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make available to its
Holders, as soon as practicable, but in any event not later than 18 months after
the effective date of such registration statement, an earnings statement
covering a period of at least twelve months which shall satisfy the provisions
of Section 6(a) of the Securities Act (including, at the option of the Company,
pursuant to Rule 158 thereunder).
(b) In the event that the Company would be required, pursuant to
Section 6(a)(v)(F) above, to notify the Holders of Registrable Securities
included in a registration statement hereunder, the sales or placement agent, if
any, and the managing underwriters, if any, of the securities being sold, the
Company shall prepare and furnish to each such Holder, to each such agent, if
any, and to each underwriter, if any, a reasonable number of copies of a
prospectus supplement or amendment so that, as thereafter delivered to the
purchasers of Registrable Securities, such prospectus shall not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing. Each Holder agrees that upon receipt
of any notice from the Company pursuant to Section 6(a)(v)(F) hereof, such
Holder shall forthwith discontinue the distribution of Registrable Securities
until such Holder shall have received copies of such amended or supplemented
registration statement or prospectus, and if so directed by the Company, such
Holder shall deliver to the Company (at the Company's expense) all copies, other
than permanent file copies, then in such Holder's possession of the prospectus
covering such Registrable Securities at the time of receipt of such notice.
(c) The Company may require each Holder of Registrable Securities
as to which any registration is being effected to furnish to the Company such
information regarding such Holder and such Holder's method of distribution of
such Registrable Securities as the Company may from time to time reasonably
request in writing but only to the extent that such information is required in
order to comply with the Securities Act. Each such Holder agrees to notify the
Company as promptly as practicable of any inaccuracy or change in information
previously furnished by such Holder to the Company or of the occurrence of any
event in either case as a result of which any prospectus relating to such
registration contains or would contain an
-14-
untrue statement of a material fact regarding such Holder or the distribution of
such Registrable Securities or omits to state any material fact regarding such
Holder or the distribution of such Registrable Securities required to be stated
therein or necessary to make the statements therein not misleading in light of
the circumstances then existing, and promptly to furnish to the Company any
additional information required to correct and update any previously furnished
information or required so that such prospectus shall not contain, with respect
to such Holder or the distribution of such Registrable Securities, an untrue
statement or a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing.
ARTICLE 7
INDEMNIFICATION
7.1 The Company will indemnify each Holder, each of its officers and
directors and partners, and such Holder's legal counsel and independent
accountants, if any, and each person controlling any such persons within the
meaning of Section 15 of the Securities Act, with respect to which registration,
qualification or compliance has been effected pursuant to this Agreement, and
each underwriter, if any, and each person who controls any underwriter within
the meaning of Section 15 of the Securities Act, against all expenses, claims,
losses, damages and liabilities (or actions in respect thereof), including any
of the foregoing incurred in settlement of any litigation, commenced or
threatened, arising out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in any registration statement,
prospectus, offering circular or other document, or any amendment or supplement
thereof, incident to any such registration, qualification or compliance, or
based on any omission (or alleged omission) to state therein, a material fact
required to be stated therein or necessary to make the statements therein, not
misleading, or any violation by the Company of any rule or regulation
promulgated under the Securities Act or any state securities laws applicable to
the Company and relating to action or inaction by the Company in connection with
any such registration, qualification or compliance, and will reimburse each such
Holder, each of its officers and directors and partners and such Holder's legal
counsel and independent accountants, and each person controlling any such
persons, each such underwriter and each person who controls any such
underwriter, for any legal and any other expenses reasonably incurred in
connection with investigating, preparing or defending any such claim, loss,
damage, liability or action; provided, however, that the Company will not be
liable in any such case to the extent that any such claim, loss, damage,
liability or expense arises out of or is based on any untrue statement or
omission or alleged untrue statement or omission, made in reliance upon and in
conformity with written information furnished to the Company by such Holder or
underwriter and expressly intended for use in such registration statement,
prospectus, offering circular or other document, or any amendment or supplement
thereof.
7.2 Each Holder will, if Registrable Securities held by such Holder are
included in the securities as to which such registration, qualification or
compliance is being effected, indemnify the Company, each of its directors and
officers and its legal counsel and independent accountants, each underwriter, if
any, of the Company's securities covered by such a registration statement, each
person who controls the Company or such underwriter within the meaning of
-15-
Section 15 of the Securities Act, and each other such Holder, each of its
officers, directors, partners, legal counsel and independent accountants, if
any, and each person controlling such Holder within the meaning of Section 15 of
the Securities Act, against all expenses, claims, losses, damages and
liabilities (or actions in respect thereof), including any of the foregoing
incurred in settlement of any litigation, commenced or threatened, arising out
of or based on any untrue statement (or alleged untrue statement) of a material
fact contained in any such registration statement, prospectus, offering circular
or other document, or any amendment or supplement thereto, incident to any such
registration, qualification or compliance or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse the
Company, such Holders, such directors, officers, partners, legal counsel,
independent accountants, underwriters or control persons for any legal or any
other expenses reasonably incurred in connection with investigating, preparing
or defending any such claim, loss, damage, liability or action, in each case to
the extent, but only to the extent, that such untrue statement (or alleged
untrue statement) or omission (or alleged omission) is made in such registration
statement, prospectus, offering circular, other document or amendment or
supplement in reliance upon and in conformity with written information furnished
to the Company by such Holder and expressly intended for use in such
registration statement, prospectus, offering circular or other document, or any
amendment or supplement thereof; provided, however, that the obligations of each
Holder hereunder shall be limited to an amount equal to the proceeds to such
Holder of Registrable Securities sold as contemplated herein.
7.3 Each party entitled to indemnification under this Section 7 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not unreasonably be
withheld). The Indemnified Party may participate in such defense at such party's
expense; provided, however, that the Indemnifying Party shall bear the expense
of such defense of the Indemnified Party if representation of both parties by
the same counsel would be inappropriate due to actual or potential conflicts of
interest. The failure of any Indemnified Party to give notice as provided herein
shall not relieve the Indemnifying Party of its obligations under this
Agreement, unless such failure is prejudicial to the ability of the Indemnifying
Party to defend the action. No Indemnifying Party, in the defense of any such
claim or litigation, shall, except with the consent of each Indemnified Party,
consent to entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such Indemnified Party of a release from all liability in respect of such
claim or litigation.
7.4 If the indemnification provided for in Section 7.1 or 7.2 is
unavailable or insufficient to hold harmless an Indemnified Party, then each
Indemnifying Party shall contribute to the amount paid or payable by such
Indemnified Party as a result of the expenses, claims, losses, damages or
liabilities (or actions or proceedings in respect thereof) referred to in
Section 7.1 or 7.2, in such proportion as is appropriate to reflect the relative
fault of the Company on the
-16-
one hand and the sellers of Registrable Securities on the other hand in
connection with statements or omissions which resulted in such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) or
expenses, as well as any other relevant equitable considerations. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or the sellers of Registrable Securities and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company and the Holders agree that it would
not be just and equitable if contributions pursuant to this Section 7.4 were to
be determined by pro rata allocation (even if all Sellers of Registrable
Securities were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations
referred to in the first sentence of this Section 7.4. The amount paid by an
Indemnified Party as a result of the expenses, claims, losses, damages or
liabilities (or actions or proceedings in respect thereof) referred to in the
first sentence of this Section 7.4 shall be deemed to include any legal or other
expenses reasonably incurred by such Indemnified Party in connection with
investigating or defending any claim, action or proceeding which is the subject
of this Section 7.4. 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. The obligations of sellers of Registrable Securities to
contribute pursuant to this Section 7.4 shall be several in proportion to the
respective amount of Registrable Securities sold by them pursuant to a
registration statement.
ARTICLE 8
RULE 144 REPORTING
With a view to making available the benefits of certain rules and
regulations of the Commission which may at any time permit the sale of
securities of the Company to the public without registration, after such time as
a public market exists for the Common Stock of the Company, the Company agrees
to:
8.1 Make and keep public information available as those terms are
understood and defined in Rule 144 under the Securities Act, at all times after
the effective date of the first registration under the Securities Act filed by
the Company for an offering of its securities to the general public; and
8.2 Use its best efforts to then file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act (at any time after it has become subject to
such reporting requirements); and
8.3 So long as a Holder owns any Registrable Securities, furnish to the
Holder forthwith upon request a written statement by the Company as to its
compliance with the reporting requirements of said Rule 144 (at any time after
ninety (90) days following the effective date of the first registration
statement filed by the Company for an offering of its securities to the general
public), and of the Securities Act and the Exchange Act (at any time
-17-
after it has become subject to such reporting requirements), a copy of the most
recent annual or quarterly report of the Company, and such other reports and
documents of the Company as a Holder may reasonably request in availing itself
of any rule or regulation of the Commission allowing a Holder to sell any such
securities without registration.
ARTICLE 9
TRANSFER OF REGISTRATION RIGHTS
The rights to cause the Company to register Registrable Securities
granted Holders under Articles 2, 3 and 4 hereof may be assigned in connection
with any transfer or assignment of the Holder's Registrable Securities. All
transferees and assignees of the rights to cause the Company to register
Registrable Securities granted Holders under Articles 2, 3 and 4 hereof, as a
condition to the transfer of such rights, shall agree in writing to be bound by
the agreements set forth herein.
ARTICLE 10
LIMITATIONS ON REGISTRATION RIGHTS
GRANTED TO OTHER SECURITIES
The parties hereto agree that additional holders may, with the consent
of the Company and the holders of a majority of the Registrable Securities then
outstanding, be added as parties to this Agreement with respect to any or all
securities of the Company held by them; provided, however, that from and after
the date of this Agreement, the Company shall not without the prior written
consent of the holders of a majority of the Registrable Securities then
outstanding, enter into any agreement with any holder or prospective holder of
any securities of the Company providing for the grant to such holder of
registration rights superior to, or pari passu with, those granted herein. Any
additional parties shall execute a counterpart of this Agreement, and upon
execution by such additional parties and by the Company, shall be considered
Holders for purposes of this Agreement, and shall be added to the Schedule of
Registration Rights Holders.
ARTICLE 11
MISCELLANEOUS
11.1 GOVERNING LAW. THE LAWS OF THE STATE OF DELAWARE SHALL GOVERN THE
INTERPRETATION, VALIDITY AND PERFORMANCE OF THE TERMS OF THIS AGREEMENT,
REGARDLESS OF THE LAW THAT MIGHT BE APPLIED UNDER PRINCIPLES OF CONFLICTS OF
LAW.
11.2 Successors and Assigns. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto.
-18-
11.3 Entire Agreement. This Agreement constitutes the full and entire
understanding and agreement between the parties with regard to the subject
matter hereof.
11.4 Termination. The obligations of the Company to register
Registrable Securities under this Agreement shall terminate on the tenth
anniversary of the date of this Agreement. In addition, the right of any Holder
to request registration or inclusion in any registration shall not be
exercisable by a Holder during any period in which (i) after the closing of the
first Qualified Public Offering of Common Stock of the Company, all shares of
Registrable Securities held or entitled to be held upon conversion by such
Holder may immediately be sold without limitation under Rule 144(k) under the
Securities Act and (ii) the Company's Common Stock is traded on the New York
Stock Exchange, the American Stock Exchange, or The Nasdaq National Market.
11.5 Notices. All notices, requests, consents, and other communications
hereunder shall be in writing and shall be deemed effectively given and received
when delivered in person or by national overnight courier service or by
certified or registered mail, return receipt requested, or by telecopier,
addressed as follows:
(a) if to the Company, at
Promotions Acquisition, Inc.
000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: R. Xxxxx Xxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxx & Xxxxxxx, LLP
0000 Xxxx Xxxxxxxx Xxxx, Xxxxxx Xxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxx, Esq.
Facsimile: (000) 000-0000
(b) if to Xxx:
Xxx Target Media, Inc.
c/x Xxx Enterprises, Inc.
0000 Xxxx Xxxxx Xxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxx
M. Xxxx Xxxxx
Facsimile: (000) 000-0000
with a copy to:
Dow, Xxxxxx & Xxxxxxxxx, PLLC 0000 Xxx Xxxxxxxxx
Xxxxxx, X.X.
-19-
Suite 800
Washington, D.C. 20036
Attention: Xxxxxx X. X'Xxxxxxx, Esq.
Facsimile: (000) 000-0000
(c) To any other Holder: The address reflected on the records
of the Company, or such other address or addresses as shall have been furnished
in writing by such party to the Company and to the other parties to this
Agreement.
11.6 Severability. The invalidity, illegality or unenforceability of
one or more of the provisions of this Agreement in any jurisdiction shall not
affect the validity, legality or enforceability of the remainder of this
Agreement in such jurisdiction or the validity, legality or enforceability of
this Agreement, including any such provision, in any other jurisdiction, it
being intended that all rights and obligations of the parties hereunder shall be
enforceable to the fullest extent permitted by law.
11.7 Titles and Subtitles. The titles of the sections and subsections
of this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
11.8 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
constitute one instrument.
11.9 "Market Stand-Off" Agreement. Each Holder agrees, if requested by
the Company and underwriter of Common Stock (or other securities) of the Company
in connection with the Company's first Qualified Public Offering not to sell or
otherwise transfer or dispose of any Common Stock of the Company held by such
Holder during the one hundred eighty (180) day period following the effective
date of a registration statement of the Company filed under the Securities Act
without the prior consent of such underwriter, provided, however, that all
Holders and officers and directors of the Company shall also have agreed to
enter into similar agreements. Such agreement shall be in writing in a form
reasonably satisfactory to the Company and such underwriter. The Company may
impose stop-transfer instructions with respect to the shares (or securities)
subject to the foregoing restriction until the end of said one hundred eighty
(180) day period.
-20-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their respective duly authorized officers or
representatives as of the date first written above.
PROMOTIONS ACQUISITION, INC.
By: /s/
----------------------------------
Name:
Title:
XXX TARGET MEDIA, INC.
By: /s/
----------------------------------
Name:
Title:
SANDLER CAPITAL PARTNERS IV, L.P.
By: Sandler Investment Partners, L.P., General Partner
By: Sandler Capital Management, General Partner
By: MJDM Corp., a General Partner
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxxxx
President
SANDLER CAPITAL PARTNERS IV FTE, L.P.
By: Sandler Investment Partners, L.P., General Partner
By: Sandler Capital Management, General Partner
By: MJDM Corp., a General Partner
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxxxx
President
-21-
SANDLER INTERNET PARTNERS, L.P.
By: Sandler Investment Partners, L.P., General Partner
By: Sandler Capital Management, General Partner
By: MJDM Corp., General Partner
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: President
XXXXXXXXXXXX.XXX, INC.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title:
THE MCCLATCHY COMPANY
By: /s/
-----------------------------------
Name:
Title:
CENTRAL NEWSPAPERS, INC.
By: /s/
------------------------------------
Name:
Title:
-22-
EXHIBIT A
Schedule of Registration Rights Holders
---------------------------------------
Xxx Target Media, Inc.
Sandler Capital Partners IV, X.X.
Xxxxxxx Capital Partners IV FTE, X.X.
Xxxxxxx Internet Partners, L.P.
XxxxxxXxxxxx.xxx, Inc.
The McClatchy Company
Central Newspapers, Inc.
-23-
