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EXHIBIT 4.7
REGISTRATION RIGHTS AGREEMENT
between
XXXXXX COMMUNICATIONS CORPORATION
and
NATIONAL BROADCASTING COMPANY, INC.
Dated as of September 15, 1999
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TABLE OF CONTENTS
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Section 1. Definitions .............................................. 2
Section 2. Demand Registration....................................... 3
(a) Requests for Registration by Holders...................... 3
(b) Filing and Effectiveness.................................. 4
(c) Priority on Demand Registration........................... 5
(d) Postponement of Demand Registration....................... 6
Section 3. Piggyback Registration.................................... 6
(a) Right to Piggyback........................................ 6
(b) Priority on Piggyback Registrations....................... 6
Section 4. Restrictions on Sale by Holders........................... 7
Section 5. Registration Procedures................................... 7
Section 6. Registration Expenses..................................... 14
Section 7. Indemnification........................................... 15
(a) Indemnification by the Company............................ 15
(b) Indemnification by Holders................................ 15
(c) Conduct of Indemnification Proceedings.................... 16
(d) Contribution.............................................. 18
Section 8. Underwritten Registrations................................ 19
Section 9. Miscellaneous............................................. 19
(a) Remedies.................................................. 19
(b) Amendments and Waivers.................................... 19
(c) Notices................................................... 19
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(e) Succedssors and Assigns................................... 20
(f) Counterparts.............................................. 21
(g) Headings.................................................. 21
(h) Governing Law............................................. 21
(i) Severability.............................................. 21
(j) Entire Agreement.......................................... 21
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made and
entered into as of September 15, 1999, by and between XXXXXX COMMUNICATIONS
CORPORATION, a Delaware corporation (together with is successors and assigns,
the "Company"), NATIONAL BROADCASTING COMPANY, INC., a Delaware corporation
(together with its successors and assigns, the "Investor"), and each other
person who becomes a Holder hereunder.
RECITALS
WHEREAS, pursuant to an Investment Agreement dated as of September 15,
1999 (the "INVESTMENT AGREEMENT") between the Company and the Investor, the
Investor is purchasing shares of Convertible Exchangeable Preferred Stock of
the Company, par value $0.001 per share (including any securities into which
such preferred stock may be or has been converted or exchanged in any merger,
consolidation or reclassification, the "PREFERRED STOCK"), that are convertible
into Class A Common Stock of the Company, par value $0.001 per share (the
"CLASS A COMMON STOCK"); and
WHEREAS, pursuant to the Investment Agreement the Investor is
purchasing warrants to purchase shares of Class A Common Stock (together with
warrants received under the Investment Agreement, the "WARRANTS"); and
WHEREAS, pursuant to the Call Agreement dated as September 15, 1999
(the "CALL AGREEMENT") by and among Xxxxxx X. Xxxxxx, Second Xxxxxxx Xxxxxxx,
Limited Partnership, and Xxxxxx Enterprises, Inc. (collectively, the "XXXXXX
STOCKHOLDERS") and NBC Palm Beach Investments II, Inc., a California
corporation, the Xxxxxx Stockholders have agreed to a call arrangement with NBC
Palm Beach Investments II, Inc., with respect to all of the Xxxxxx
Stockholders' shares of Class B Common Stock, par value $0.001 of the Company
(the "CLASS B COMMON STOCk", and, as covered by the Call Agreement, the "CALL
SHAREs"); and
WHEREAS, the Company's shares of Class A Common Stock are registered
with the SEC and quoted on the American Stock Exchange; and
WHEREAS, to induce the Investor to execute and deliver the Investment
Agreement and to enter into the transactions related thereto, the Company has
agreed to
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provide to the Holders (as defined below) certain registration rights under the
Securities Act; and
WHEREAS, the execution and delivery of this agreement by the parties
hereto is a condition to the closing of the transactions contemplated by the
Investment Agreement.
NOW, THEREFORE, in consideration of the mutual promises and agreements
set forth herein and in the Investment Agreement, and other valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto hereby agree as follows:
Section 1. DEFINITIONS. For purposes of this Agreement, the following
capitalized terms have the following meanings:
"COMMON STOCK": The Class A Common Stock and the Class B Common Stock
of the Company and any securities into which such common stock may be or has
been converted or exchanged in any merger, consolidation or reclassification.
"EXCHANGE ACT": The Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
"EXCHANGE DEBENTURES": The Exchange Debentures due 2009 (if issued)
issued under an Indenture among the parties thereto in the form as of the date
hereof.
"HOLDERS": Each Restricted Party that from time to time owns
Registrable Securities and each of their permitted transferees pursuant to
Section 9(e) who agree to be bound by the provisions of this Agreement in
accordance with said section; provided, however, that a Holder shall no longer
be a Holder at the date that such Holder owns of record less than 10,000 shares
of Registrable Securities.
"PROSPECTUS": The prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A under the Securities Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Registrable Securities covered by such
Registration Statement and all other amendments and supplements to such
prospectus, including post-effective amendments, and all
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material incorporated by reference or deemed to be incorporated by reference in
such prospectus.
"REGISTRABLE SECURITIES": All shares of Class A Common Stock (i) held
from time to time by the Holders who are Restricted Parties (the "RESTRICTED
PARTY COMMON STOCK") or (ii) held by Holders who are not Restricted Parties
(but only to the extent that such Class A Common Stock previously constituted
Restricted Party Common Stock or Class A Common Stock described in clause (iii)
below) or (iii) issued or issuable upon the conversion of Preferred Stock into
Class A Common Stock or upon conversion of the Exchange Debentures into Class A
Common Stock or (iv) issued or issuable upon the exercise of Warrants or (v)
issuable upon conversion of the Call Shares, excluding shares of Class A Common
Stock that have been disposed of by a Holder pursuant to a Registration
Statement relating to the sale thereof that has become effective under the
Securities Act or pursuant to Rule 144 or Rule 145 under the Securities Act.
Registrable Securities shall also include any shares of the Class A Common
Stock or other securities (or shares of Class A Common Stock underlying such
other securities) that may be received by the Holders (x) as a result of a
stock dividend on or stock split of Registrable Securities or (y) on account of
Registrable Securities in a recapitalization of or other transaction involving
the Company.
"REGISTRATION STATEMENT": Any registration statement of the Company
under the Securities Act that covers any of the Registrable Securities pursuant
to the provisions of this Agreement, including the related Prospectus, any
preliminary prospectus, all amendments and supplements to such registration
statement (including post-effective amendments), all exhibits and all material
incorporated by reference or deemed to be incorporated by reference in such
registration statement.
"RESTRICTED PARTY": Each of Investor and each subsidiary of Investor.
"SEC": The Securities and Exchange Commission.
"SECURITIES ACT": The Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"STOCKHOLDER AGREEMENT": The Stockholder Agreement, dated as of the
date hereof, between the Company and the
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Investor, as such agreement may be amended, supplemented or otherwise modified
from time to time.
"UNDERWRITTEN OFFERING": A distribution, registered pursuant to the
Securities Act, in which securities of the Company are sold to the public
through one or more underwriters.
Section 2. DEMAND REGISTRATION.
(a) REQUESTS FOR REGISTRATION BY HOLDERS. Subject to the
terms and conditions of the Stockholder Agreement, at any time and from time to
time, subject to the conditions set forth in this Agreement: (i) one or more
Holders will have the right, by written notice delivered to the Company (a
"DEMAND NOTICE"), to require the Company to register Registrable Securities
under and in accordance with the provisions of the Securities Act (a "DEMAND
REGISTRATION"), PROVIDED that the Holders may not make in the aggregate more
than four (4) Demand Registrations under this Agreement; PROVIDED, FURTHER,
that: (i) no such Demand Registration may be required unless the Holders
requesting such Demand Registration provide to the Company a certificate (the
"AUTHORIZING CERTIFICATE"), seeking to include Registrable Securities in such
Demand Registration with a market value of at least $100,000,000 in the case of
any Underwritten Offering or $20,000,000 in all other cases (calculated based
on the closing sale price of such securities on the principal securities
exchange where such securities are listed on the business day immediately
preceding the date of the Demand Notice) as of the date the Demand Notice is
given; and (ii) no Demand Notice may be given prior to six (6) months after the
effective date of the immediately preceding Demand Registration or, if later,
the date on which a registration pursuant to this Section 2 is terminated in
its entirety prior to the effective date of the applicable registration
statement. The Authorizing Certificate shall set forth (A) the name of each
Holder signing such Authorizing Certificate, (B) the number of Registrable
Securities held by each such Holder, and, if different, the number of
Registrable Securities such Holder has elected to have registered, and (C) the
intended methods of disposition of the Registrable Securities. Notwithstanding
the foregoing, a good faith decision by a Holder to withdraw Registrable
Securities from registration will not affect the Company's obligations
hereunder even if the amount remaining to be registered has a market value of
less than $100,000,000 in the case of any
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Underwritten Offering or $20,000,000 in all other cases (calculated as
aforesaid), provided that: (1) such continuing registration shall constitute a
Demand Registration, (2) the withdrawing Holder reimburses the Company for any
registration and filing fees (including any fees payable to the National
Association of Securities Dealers, Inc. or any successor organization) it has
incurred with respect to the withdrawn Registrable Securities (unless all
Registrable Securities are withdrawn, in which case the withdrawing Holder(s)
shall reimburse the Company for all costs and expenses incurred by it in
connection with the registration of such Registrable Securities) and (3) such
Holder (or the other Holders participating in the subject registration) did not
include the withdrawn Registrable Securities as a means of circumventing the
applicable $100,000,000 or $20,000,000 threshold described above. Subject to
compliance with clause (2) of the preceding proviso, a registration that is
terminated in its entirety prior to the effective date of the applicable
registration statement will not constitute a Demand Registration.
(b) FILING AND EFFECTIVENESS. The Company will file a
Registration Statement relating to any Demand Registration as promptly as
practicable (but in any event within 60 days) following the date on which the
Demand Notice is received and will use all reasonable efforts to cause the same
to be declared effective by the SEC as soon as practicable thereafter. If any
Demand Registration is requested to be effected as a shelf registration
pursuant to Rule 415 under the Securities Act by the Holders demanding such
Demand Registration, the Company will keep the Registration Statement filed in
respect thereof effective for a period of six (6) months from the date on which
the SEC declares such Registration Statement effective (subject to extension
pursuant to Section 5) or such shorter period that will terminate when all
Registrable Securities covered by such Registration Statement have been sold
pursuant to such Registration Statement.
Within ten (10) business days after receipt of such Demand
Notice, the Company will serve written notice thereof (the "NOTICE") to all
other Holders and will, subject to the provisions of Section 2(c), include in
such registration all Registrable Securities with respect to which the Company
receives written requests for inclusion therein within ten (10) business days
after receipt of the Notice by the applicable Holder. Subject to the proviso at
the end of Section 2(a), the Holder will be permitted to withdraw in good faith
all or part of the Registrable Securities from a Demand
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Registration at any time prior to the effective date of such Demand
Registration, in which event the Company will promptly amend or, if applicable,
withdraw the related Registration Statement.
(c) PRIORITY ON DEMAND REGISTRATION. If Registrable
Securities are to be registered pursuant to a Demand Registration, the Company
shall provide written notice to the other Holders and will permit all such
Holders who have timely and properly requested to be included in the Demand
Registration to include any or all Registrable Securities held by such Holders
in such Demand Registration. Notwithstanding the foregoing, if the managing
underwriter or underwriters of an Underwritten Offering to which such Demand
Registration relates advises the Holders that the total amount of Registrable
Securities that such Holders intend to include in such Demand Registration is
in the aggregate such as to materially and adversely affect the success of such
offering, then the number of Registrable Securities to be included in such
Demand Registration will, if necessary, be reduced and there will be included
in such underwritten offering the number of Registrable Securities that, in the
opinion of such managing underwriter or underwriters, can be sold without
materially and adversely affecting the success of such Underwritten Offering.
The Registrable Securities of the Holder or Holders initiating the Demand
Registration shall receive priority in such Underwritten Offering to the full
extent of the Registrable Securities such Holder or Holders desire to sell
(unless these securities would materially and adversely affect the success of
such offering, in which case the number of such Holder's Registrable Securities
included in the offering shall be reduced to the extent necessary) and the
remaining allocation available for sale, if any, shall be allocated PRO RATA
among the other Holders on the basis of the amount of Registrable Securities
requested to be included therein by each such Holder.
(d) POSTPONEMENT OF DEMAND REGISTRATION. The Company will be
entitled to postpone the filing period of any Demand Registration or suspend
the effectiveness of any Registration Statement for a reasonable period of time
not in excess of 90 calendar days if the Company determines, in the good faith
exercise of the business judgment of its Board of Directors, that such
registration and offering could materially interfere with a BONA FIDE business
or financing transaction of the Company or would require disclosure of
information, the premature disclosure of which could materially and adversely
affect the Company. If the Company
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postpones the filing of, or suspends the effectiveness of, a Registration
Statement, it will promptly notify the Holders in writing (i) when the events
or circumstances permitting such postponement or suspension have ended and (ii)
that the decision to postpone or suspend was made by the Board of Directors of
the Company in accordance with this Section 2(d).
Section 3. Piggyback Registration.
(a) RIGHT TO PIGGYBACK. If at any time the Company proposes
to file a Registration Statement, whether or not for sale for the Company's own
account, on a form and in a manner that would also permit registration of
Registrable Securities, the Company shall give to Holders holding Registrable
Securities, written notice of such proposed filing at least ten (10) business
days before the anticipated filing. The notice referred to in the preceding
sentence shall offer Holders holding at least 100,000 shares of Registrable
Securities the opportunity to register such amount of Registrable Securities as
each Holder may request (a "PIGGYBACK REGISTRATION"). Subject to Section 3(b),
the Company will include in each such Piggyback Registration all Registrable
Securities with respect to which the Company has received written requests for
inclusion therein. Subject to clause (2) of the proviso at the end of Section
2(a), the Holders will be permitted to withdraw all or part of the Registrable
Securities from a Piggyback Registration at any time prior to the effective
date of such Piggyback Registration.
Notwithstanding the foregoing, the Company will not be
obligated to effect any registration of Registrable Securities under this
Section 3 as a result of the registration of any of its securities solely in
connection with mergers, acquisitions, exchange offers, dividend reinvestment
and share purchase plans offered solely to current holders of the Common Stock,
rights offerings or option or other employee, directors or consultant benefit
plans or other similar rights.
(b) PRIORITY ON PIGGYBACK REGISTRATIONS. The Company will
cause the managing underwriter or underwriters of a proposed Underwritten
Offering to permit Holders holding Registrable Securities requested to be
included in the registration for such offering to include therein all such
Registrable Securities requested to be so included on the same terms and
conditions as any securities of the Company included therein (other than the
indemnification by the Holders, which
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will be limited as set forth in Section 7 hereof). Notwithstanding the
foregoing, if the managing underwriter or underwriters of such Underwritten
Offering advises the Holders to the effect that the total amount of securities
that such Holders and the Company propose to include in such Underwritten
Offering is such as to materially and adversely affect the success of such
offering, then the Company will include in such registration (i) first, 100% of
the Class A Common Stock of the Person who requests such registration, if any,
(ii) second, 100% of the Class A Common Stock the Company proposes to sell, and
(iii) third, to the extent of the number of Registrable Securities requested to
be included in such registration which, with the advice of such managing
underwriter, can be sold without having the adverse effect referred to above,
the number of Registrable Securities which the Holders have requested to be
included in such registration, such amount to be allocated pro rata among all
requesting Holders on the basis of the relative number of Registrable
Securities then held by each such Holder.
Section 4. RESTRICTIONS ON SALE BY HOLDERS. Each Holder agrees, if
such Holder is so requested (pursuant to a timely written notice) by the
managing underwriter or underwriters in an Underwritten Offering, not to effect
any public sale or distribution of any of the Company's securities of such
class or securities convertible or exchangeable into such class (except as part
of such underwritten offering), including a sale pursuant to Rule 144 under the
Securities Act, during the 15-calendar day period prior to, and during the
90-calendar day period beginning on, the closing date of such Underwritten
Offering.
Section 5. REGISTRATION PROCEDURES. In connection with the Company's
registration obligations pursuant to Sections 2 and 3, the Company will effect
such registrations to permit the sale of such Registrable Securities in
accordance with the intended method or methods of disposition thereof, and
pursuant thereto the Company will as expeditiously as possible, and in each
case to the extent applicable (it being understood that the obligations of the
Company in clauses (a), (b), (d), (e), (h), (j), (k), (m), (n) and (p) of this
Section 5 will be subject to Section 2(d) and, except as provided in Section
2(a) and Section 3(b), the Holders will not have any right to effect an
underwritten public offering under Section 3):
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(a) Prepare and file with the SEC a Registration Statement or
Registration Statements on any appropriate form under the Securities Act
available for the sale of the Registrable Securities by the holders thereof in
accordance with the intended method or methods of distribution thereof, and
cause each such Registration Statement to become effective and remain effective
as provided herein; PROVIDED, HOWEVER, that before filing a Registration
Statement or Prospectus or any amendments or supplements thereto (including
documents that would be incorporated or deemed to be incorporated therein by
reference) the Company will furnish to the Holders holding Registrable
Securities covered by such Registration Statement, not more than one counsel
chosen by Holders holding a majority of the Registrable Securities being
registered ("SPECIAL COUNSEL") and the managing underwriters, if any, copies of
all such documents proposed to be filed, which documents will be subject to the
review of such Holders, such Special Counsel and such underwriters, and the
Company will not file any such Registration Statement or amendment thereto or
any Prospectus or any supplement thereto (excluding such documents that, upon
filing, will be incorporated or deemed to be incorporated by reference therein)
to which the Holders holding a majority of the Registrable Securities covered
by such Registration Statement or the managing underwriter, if any, shall
reasonably conclude to potentially be misleading, omit a material fact or fail
to comply with rules or common practice of the SEC or the securities industry.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be necessary to
keep such Registration Statement continuously effective for the applicable
periods specified in Section 2; cause the related Prospectus to be supplemented
by any required Prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 (or any similar provisions then in force) under the
Securities Act; and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such Registration
Statement during the applicable period in accordance with the intended methods
of disposition by the sellers thereof set forth in such Registration Statement
as so amended or in such Prospectus as so supplemented.
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(c) Notify the selling Holders and the managing underwriters,
if any, promptly, and (if requested by any such person) confirm such notice in
writing, (i) when a Prospectus or any Prospectus supplement or post-effective
amendment has been filed, and, with respect to a Registration Statement or any
post-effective amendment, when the same has become effective, (ii) of any
request by the SEC or any other federal or state governmental authority for
amendments or supplements to a Registration Statement or related Prospectus or
for additional information, (iii) of the issuance by the SEC or any other
federal or state governmental authority of any stop order suspending the
effectiveness of a Registration Statement or the initiation of any proceedings
for that purpose, (iv) if at any time the representations and warranties of the
Company contained in any agreement contemplated by Section 5(m) (including any
underwriting agreement) cease to be true and correct in any material respect,
(v) of the receipt by the Company of any notification with respect to the
suspension of the qualification or exemption from qualification of any of the
Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, (vi) of the occurrence of any
event that makes any statement made in such Registration Statement or related
Prospectus or any document incorporated or deemed to be incorporated therein by
reference untrue in any material respect or that requires the making of any
changes in a Registration Statement, Prospectus or any such document so that,
in the case of the Registration Statement, it will not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading and,
in the case of the Prospectus, it will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, and (vii) of the Company's reasonable
determination that a post-effective amendment to a Registration Statement would
be appropriate.
(d) Use every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of a Registration Statement, or the
lifting of any suspension of the qualification (or exemption from
qualification) of any of the Registrable Securities for sale in any
jurisdiction, at the earliest possible moment.
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(e) If requested by the managing underwriters, if any, or
Holders holding a majority of the Registrable Securities being registered, (i)
promptly incorporate in a Prospectus supplement or post-effective amendment
such information as the managing underwriters, if any, reasonably conclude,
based on the advice of counsel, must be included therein as may be required by
applicable law and (ii) make all required filings of such Prospectus supplement
or such post-effective amendment as soon as practicable after the Company has
received notification of the matters to be incorporated in such Prospectus
supplement or post-effective amendment; PROVIDED, HOWEVER, that the Company
will not be required to take any actions under this Section 5(e) that are not,
in the opinion of counsel for the Company, in compliance with applicable law.
(f) Furnish to each selling Holder and each managing
underwriter, if any, without charge, at least one conformed copy of the
Registration Statement and any post-effective amendment thereto, including
financial statements (but excluding schedules, all documents incorporated or
deemed incorporated therein by reference and all exhibits, unless requested in
writing by such holder or underwriter).
(g) Deliver to each selling Holder and the underwriters, if
any, without charge as many copies of the Prospectus or Prospectuses relating
to such Registrable Securities (including each preliminary prospectus) and any
amendment or supplement thereto as such persons may reasonably request; and,
subject to the last paragraph of this Section 5, the Company hereby consents to
the use of such Prospectus or each amendment or supplement thereto by each of
the selling Holders and the underwriters, if any, in connection with the
offering and sale of the Registrable Securities covered by such Prospectus or
any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities,
to register or qualify or cooperate with the selling Holders, the underwriters,
if any, and their respective counsel in connection with the registration or
qualification (or exemption from such registration or qualification) of such
Registrable Securities for offer and sale under the securities or blue sky laws
of such jurisdictions within the United States as any seller or underwriter
reasonably requests in writing; use all
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reasonable efforts to keep such registration or qualification (or exemption
therefrom) effective during the period the applicable Registration Statement is
required to be kept effective and do any and all other acts or things necessary
or advisable to enable the disposition in each such jurisdiction of the
Registrable Securities covered by the applicable Registration Statement;
PROVIDED, HOWEVER, that the Company will not be required to (i) qualify to do
business in any jurisdiction where it is not then so required to be qualified
or (ii) take any action that would subject it to taxation or service of process
in any such jurisdiction where it is not then so subject.
(i) Cooperate with the selling Holders and the managing
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold and enable such
Registrable Securities to be in such denominations and registered in such names
as the managing underwriters, if any, shall request at least two business days
prior to the closing of any sale of Registrable Securities to the underwriters.
(j) Upon the occurrence of any event contemplated by Section
5(c)(vi) or 5(c)(vii), prepare a supplement or post-effective amendment to each
Registration Statement or a supplement to the related Prospectus or any
document incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of the Registrable
Securities being sold thereunder, such Prospectus will 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, in light of the
circumstances under which they were made, not misleading.
(k) If requested by Holders holding a majority of the
Registrable Securities covered by such Registration Statement or the managing
underwriters, if any, use its best efforts to cause all Registrable Securities
covered by such Registration Statement to be (i) listed on each securities
exchange, if any, on which securities issued by the Company of the same class
are then listed or, if no such securities issued by the Company are then so
listed, on the New York Stock Exchange or another national securities exchange
if the
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securities qualify to be so listed or (ii) authorized to be quoted on the
National Association of Securities Dealers Automated Quotation System
("NASDAQ") or the National Market System of Nasdaq, if the securities qualify
to be so quoted.
(l) As needed, (i) engage an appropriate transfer agent and
provide the transfer agent with printed certificates for the Registrable
Securities in a form eligible for deposit with The Depository Trust Company and
(ii) provide a CUSIP number for the Registrable Securities.
(m) Enter into such customary agreements (including, in the
event of an Underwritten Offering, an underwriting agreement in form, scope and
substance as is customary in underwritten offerings) and take all such other
commercially reasonable and customary actions in connection therewith
(including those reasonably requested by the Holders holding a majority of the
Registrable Securities being sold or, in the event of an Underwritten Offering,
those reasonably requested by the managing underwriters) in order to facilitate
the disposition of such Registrable Securities and in such connection, but only
where an underwriting agreement is entered into in connection with an
underwritten registration, (i) make such representations and warranties to the
underwriters with respect to the businesses of the Company and its
subsidiaries, the Registration Statement, Prospectus and documents incorporated
by reference or deemed incorporated by reference therein, if any, in each case,
in form, substance and scope as are customarily made by issuers to underwriters
in underwritten offerings and confirm the same if and when requested; (ii) in
the case of an Underwritten Offering, obtain opinions of counsel to the Company
and updates thereof, which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the managing underwriters, if any,
addressed to each of the underwriters covering the matters customarily covered
in opinions requested in underwritten offerings and such other matters as may
be reasonably requested by such underwriters; (iii) in the case of an
Underwritten Offering, use reasonable efforts to obtain "comfort" letters and
updates thereof from the independent certified public accountants of the
Company (and, if necessary, any other certified public accountants of any
subsidiary of the Company or of any
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business acquired by the Company for which financial statements and financial
data is, or is required to be, included in the Registration Statement),
addressed to each of the underwriters, such letters to be in customary form and
covering matters of the type customarily covered in "comfort" letters in
connection with underwritten offerings; and (iv) deliver such documents and
certificates as may be reasonably requested by the managing underwriters, if
any, to evidence the continued validity of the representations and warranties
of the Company and its subsidiaries made pursuant to clause (i) above and to
evidence compliance with any customary conditions contained in the underwriting
agreement entered into by the Company. The foregoing actions will be taken in
connection with each closing under such underwriting agreement as and to the
extent required thereunder.
(n) Upon three (3) business days' notice, make available for
reasonable inspection during normal business hours by a representative of the
Holders holding Registrable Securities being sold, any underwriter
participating in any disposition of Registrable Securities, and any attorney or
accountant retained by such selling Holders or underwriter, all financial and
other records, pertinent corporate documents and properties of the Company and
its subsidiaries, and cause the officers, directors and employees of the
Company and its subsidiaries to supply all information reasonably requested by
any such representative, underwriter, attorney or accountant in connection with
such Registration Statement; PROVIDED, HOWEVER, that any records, information
or documents that are designated by the Company in writing as confidential at
the time of delivery of such records, information or documents will be kept
confidential by such persons unless (i) such records, information or documents
are in the public domain or otherwise publicly available, (ii) disclosure of
such records, information or documents is required by court or administrative
order or is necessary to respond to inquiries of regulatory authorities, or
(iii) disclosure of such records, information or documents, in the reasonable
opinion of counsel to such person, is otherwise required by law (including,
without limitation, pursuant to the requirements of the Securities Act).
(o) Comply with all applicable rules and regulations of the
SEC and make generally available to
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its security holders earning statements satisfying the provisions of Section
11(a) of the Securities Act and Rule 158 thereunder (or any similar rule
promulgated under the Securities Act) no later than 45 calendar days after the
end of any 12-month period (or 90 calendar days after the end of any 12-month
period if such period is a fiscal year), subject to any applicable extension
pursuant to Rule 12b-25 of the Exchange Act, (i) commencing at the end of any
fiscal quarter in which Registrable Securities are sold to underwriters in a
firm commitment or best efforts underwritten offering, or (ii) if not sold to
underwriters in such an offering, commencing on the first day of the first
fiscal quarter of the Company, after the effective date of a Registration
Statement, which statements shall cover such 12-month period.
(p) In connection with any Underwritten Offering, cause
appropriate members of management to cooperate and participate on a reasonable
basis in the underwriters' "road show" conferences related to such offering.
The Company may require each seller of Registrable Securities as to
which any registration is being effected to furnish to the Company such
information regarding the distribution of such Registrable Securities as the
Company may, from time to time, reasonably request in writing, and the Company
may exclude from such registration the Registrable Securities of any seller who
unreasonably fails to furnish such information within a reasonable time after
receiving such request. The Company may require each seller of Registrable
Securities (i) to agree to sell such Registrable Securities on the basis
reasonably provided in any underwriting agreements entered into in connection
with such offering and (ii) to complete and execute all questionnaires, powers
of attorney, custody agreements, indemnities, underwriting agreements and other
documents required under the terms of such underwriting agreements.
Each Holder will be deemed to have agreed by virtue of its acquisition
of Registrable Securities that, upon receipt of any notice from the Company of
the occurrence of any event of the kind described in Section 2(d), 5(c)(ii),
5(c)(iii), 5(c)(v), 5(c)(vi) or 5(c)(vii) ("SUSPENSION NOTICE"), such Holder
will forthwith discontinue disposition of such Registrable Securities covered
by such Registration Statement or Prospectus (a "BLACK-OUT") until such
Holder's
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receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 5(k), or until it is advised in writing (the "ADVICE") by the Company
that the use of the applicable Prospectus may be resumed, and such Holder has
received copies of any additional or supplemental filings that are incorporated
or deemed to be incorporated by reference in such Prospectus. Except as
expressly provided herein, there shall be no limitation with regard to the
number of Suspension Notices that the Company is entitled to give hereunder;
PROVIDED, HOWEVER, that in no event shall the aggregate number of days the
Holders are subject to Black-Out during any period of 12 consecutive months
exceed 90 days.
Section 6. REGISTRATION EXPENSES. Subject to clause (2) of the proviso
at the end of section 2(a), all fees and expenses incident to the performance
of or compliance with this Agreement by the Company will be borne by the
Company whether or not any of the Registration Statements become effective.
Such fees and expenses will include, without limitation, (i) all registration
and filing fees (including, without limitation, fees and expenses for
compliance with securities or "blue sky" laws), (ii) printing expenses
(including, without limitation, expenses of printing certificates for
Registrable Securities in a form eligible for deposit with The Depository Trust
Company and of printing a reasonable number of prospectuses if the printing of
such prospectuses is requested by the Holders holding a majority of the
Registrable Securities included in any Registration Statement), (iii)
messenger, telephone and delivery expenses incurred by the Company, (iv) fees
and disbursements of counsel for the Company incurred by the Company, (v) fees
and disbursements of all independent certified public accountants referred to
in Section 5(m)(iii) (including the expenses of any special audit and "comfort"
letter required by or incident to such performance) incurred by the Company,
(vi) Securities Act liability insurance, if any, and (vii) fees and expenses of
Special Counsel retained by the Holders in connection with the registration and
sale of their Registrable Securities (which counsel will be selected by the
Holders of a majority of the Registrable Securities being sold) not in excess
of $50,000 per single registration. In addition, the Company will pay internal
expenses (including without limitation all salaries and expenses of its
officers and employees performing legal or accounting duties), the expense of
any annual audit, the fees and expenses incurred in connection with the listing
of the securities to be registered on any securities exchange on which
securities of the same class issued by the Company are then listed and the fees
and expenses of any person,
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including special experts, retained by the Company. In no event, however, will
the Company be responsible for any underwriting discount or selling commission
with respect to any sale of Registrable Securities pursuant to this Agreement,
and the Holders shall be responsible on a pro rata basis for any taxes of any
kind (including, without limitation, transfer taxes) with respect to any
disposition, sale or transfer of Registrable Securities and for any legal,
accounting and other expenses incurred by them in connection with any
Registration Statement.
Section 7. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. The Company will, without
limitation as to time, indemnify and hold harmless, to the fullest extent
permitted by law, each Holder holding Registrable Securities registered
pursuant to this Agreement, the officers, directors and agents and employees of
each of them, each person who controls such a Holder (within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act) and the
officers, directors, agents and employees of any such controlling person, from
and against all losses, claims, damages, liabilities, costs (including without
limitation the costs of investigation and attorneys' fees) and expenses
(collectively, "Losses"), as incurred, arising out of or based upon any untrue
or alleged untrue statement of a material fact contained in any Registration
Statement, Prospectus or form of Prospectus or in any amendment or supplement
thereto or in any preliminary prospectus, or arising out of or based upon 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,
except insofar and to the extent as the same are based upon information
furnished in writing to the Company by such Holder for use therein; PROVIDED,
HOWEVER, that the Company will not be liable to any Holder to the extent that
any such Losses arise out of or are based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any Registration
Statement, Prospectus or preliminary prospectus if either (A) (i) such Holder
failed to send or deliver a copy of the Prospectus with or prior to the
delivery of written confirmation of the sale by such Holder of a Registrable
Security to the person asserting the claim from which such Losses arise and
(ii) the Prospectus would have corrected such untrue statement or alleged
untrue statement or such omission or alleged omission; or (B) such untrue
statement or alleged untrue statement, omission or alleged omission is
corrected in an amendment or supplement to the Prospectus previously
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furnished by or on behalf of the Company with copies of the Prospectus, and
such Holder thereafter fails to deliver such Prospectus as so amended or
supplemented prior to or concurrently with the sale of a Registrable Security
to the person asserting the claim from which such Losses arise.
(b) INDEMNIFICATION BY HOLDERS. In connection with any
Registration Statement in which a Holder is participating, such Holder will
furnish to the Company in writing such information as the Company reasonably
requests for use in connection with any Registration Statement, Prospectus or
preliminary prospectus and will indemnify, to the fullest extent permitted by
law, the Company, its directors and officers, agents and employees, each person
who controls the Company (within the meaning of Section 15 of the Securities
Act and Section 20 of the Exchange Act), and the directors, officers, agents or
employees of such controlling persons, from and against all Losses arising out
of or based upon any untrue statement of a material fact contained in any
Registration Statement, Prospectus or preliminary prospectus or arising out of
or based upon any omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, to the extent, but
only to the extent, that such untrue statement or omission is contained in any
information so furnished in writing by such Holder to the Company for use in
such Registration Statement, Prospectus or preliminary prospectus and was
relied upon by the Company in the preparation of such Registration Statement,
Prospectus or preliminary prospectus. In no event will the liability of any
selling Holder hereunder be greater in amount than the dollar amount of the
proceeds (net of payment of all expenses) received by such Holder upon the sale
of the Registrable Securities giving rise to such indemnification obligation.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. If any person
shall become entitled to indemnity hereunder (an "INDEMNIFIED PARTY"), such
indemnified party shall give prompt notice to the party from which such
indemnity is sought (the "INDEMNIFYING PARTY") of any claim or of the
commencement of any action or proceeding with respect to which such indemnified
party seeks indemnification or contribution pursuant hereto; PROVIDED, HOWEVER,
that the failure to so notify the indemnifying party will not relieve the
indemnifying party from any obligation or liability except to the extent that
the indemnifying party has been prejudiced materially by such failure. All
reasonable fees and expenses (including any reasonable fees and expenses
incurred in
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connection with investigating or preparing to defend such action or proceeding)
will be paid to the indemnified party (provided appropriate documentation for
such expenses is also submitted with such notice), as incurred, within five
calendar days of written notice thereof to the indemnifying party (regardless
of whether it is ultimately determined that an indemnified party is not
entitled to indemnification hereunder). The indemnifying party will not consent
to entry of any judgment or enter into any settlement or otherwise seek to
terminate any action or proceeding in which any indemnified party is or could
be a party and as to which indemnification or contribution could be sought by
such indemnified party under this Section 7, unless such judgment, settlement
or other termination includes as an unconditional term thereof the giving by
the claimant or plaintiff to such indemnified party of a release, in form and
substance reasonably satisfactory to the indemnified party, from all liability
in respect of such claim or litigation for which such indemnified party would
be entitled to indemnification hereunder. In the case of parties indemnified
pursuant to Section 7(a) above, counsel to the indemnified parties shall be
selected by the Holder which is the indemnified party and, in the case of
parties indemnified pursuant to Section 7(b) above, counsel to the indemnified
parties shall be selected by the Company. Notwithstanding the foregoing
sentence, in case any such action is brought against any indemnified party, and
it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent
it may wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party. Notwithstanding the election of the indemnifying party to
assume the defense of such litigation or proceeding, such indemnified party
shall have the right to employ separate counsel and to participate in the
defense of such litigation or proceeding, and the indemnifying party shall bear
the reasonable fees, costs and expenses of such separate counsel and shall pay
such fees, costs and expenses at least quarterly (provided that with respect to
any single litigation or proceeding or with respect to several litigations or
proceedings involving substantially similar legal claims, such indemnifying
party shall not be required to bear the fees, costs and expenses of more than
one such counsel) if (i) in the reasonable judgment of such indemnified party
the use of counsel chosen by such indemnifying party to represent such
indemnified party would present such counsel with a conflict of interest, (ii)
the defendants in, or targets of, any such litigation or proceeding include
both an
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indemnifying party and an indemnified party, and such indemnified party shall
have reasonably concluded that there may be legal defenses available to it or
to other indemnified parties which are different from or additional to those
available to such indemnifying party (in which case such indemnifying party
shall not have the right to direct the defense of such action on behalf of the
indemnified party), (iii) such indemnifying party shall not have employed
counsel satisfactory to such indemnifying party, in the exercise of such
indemnified party's reasonable judgment, to represent such indemnified party
within a reasonable time after notice of the institution of such litigation or
proceeding or (iv) any indemnifying party shall authorize in writing such
indemnified party to employ separate counsel at the expense of such
indemnifying party.
(d) CONTRIBUTION. If the indemnification provided for in this
Section 7 is unavailable to an indemnified party under Section 7(a) or 7(b) in
respect of any Losses or is insufficient to hold such indemnified party
harmless, then each applicable indemnifying party, in lieu of indemnifying such
indemnified party, will, severally but not jointly, contribute to the amount
paid or payable by such indemnified party as a result of such Losses, in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party or indemnifying parties, on the one hand, and such indemnified party, on
the other hand, in connection with the actions, statements or omissions that
resulted in such Losses as well as any other relevant equitable considerations.
The relative fault of such indemnifying party or indemnifying parties, on the
one hand, and such indemnified party, on the other hand, will be determined by
reference to, among other things, whether any action in question, including any
untrue or alleged untrue statement of a material fact or omission or alleged
omission of a material fact, has been taken or made by, or related to
information supplied by, such indemnifying party or indemnified party, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such action, statement or omission. The amount paid or
payable by a party as a result of any Losses will be deemed to include any
legal or other fees or expenses incurred by such party in connection with any
action or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 7(d) were determined by PRO RATA
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to in the immediately preceding
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paragraph. Notwithstanding the provisions of this Section 7(d), an indemnifying
party that is a selling Holder will not be required to contribute any amount in
excess of the amount by which the total price at which the Registrable
Securities sold by such indemnifying party and distributed to the public were
offered to the public exceeds the amount of any damages that such indemnifying
party has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) will be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
The indemnity, contribution and expense reimbursement obligations of
the Company hereunder will be in addition to any liability the Company may
otherwise have hereunder or otherwise. The provisions of this Section 7 shall
survive the sale of the Registrable Securities pursuant to a Registration
Statement, notwithstanding any permitted transfer of the Registrable Securities
by any Holder thereof or any termination of this Agreement.
Section 8. UNDERWRITTEN REGISTRATIONS. If any of the Registrable
Securities included in any Demand Registration are to be sold in an
Underwritten Offering, the Holders holding a majority of the Registrable
Securities included in the Demand Notice may select an investment banker or
investment bankers and manager or managers to manage the Underwritten Offering,
PROVIDED that such investment banker or bankers is (are) reasonably acceptable
to the Company. If any Piggyback Registration is an Underwritten Offering, the
Company will have the exclusive right to select the investment banker or
investment bankers and managers to administer the offering. The Company agrees
that, in connection with any Underwritten Offering hereunder, it shall
undertake to offer customary indemnification to the participating underwriters.
Section 9. MISCELLANEOUS.
(a) REMEDIES. In the event of a breach by a party of its
obligations under this Agreement, each other party, in addition to being
entitled to exercise all rights granted by law, including recovery of damages,
will be entitled to specific performance of its rights under this Agreement.
Each party agrees that monetary damages would not be adequate compensation for
any loss incurred by reason of a breach by it of any provision of this
Agreement and hereby further agrees
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that, in the event of any action for specific performance in respect of such
breach, it will waive the defense that a remedy at law would be adequate.
(b) AMENDMENTS AND WAIVERS. The provisions of this Agreement
may not be amended, modified or supplemented without the prior written consent
of the Company, and Holders holding in excess of 50% of the Registrable
Securities in respect of which Registrable Securities are issuable.
(c) NOTICES. Except as set forth below, all notices and other
communications provided for or permitted hereunder shall be in writing and
shall be deemed to have been duly given if delivered personally or sent by
telex or telecopier, registered or certified mail (return receipt requested),
postage prepaid or courier or overnight delivery service to the Company at the
following address and to a Holder at the address set forth on his or her
signature page to this Agreement (or at such other address for any party as
shall be specified by like notice, provided that notices of a change of address
shall be effective only upon receipt thereof):
If to the Company: Xxxxxx Communications Corporation
000 Xxxxxxxxxx Xxxx Xxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
Fax: 000-000-0000
With a copy to: Xxxxxx Communications Corporation
000 Xxxxxxxxxx Xxxx Xxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Attention: General Counsel
Fax: 000-000-0000
If to the
Investor: National Broadcasting Company, Inc.
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Fax: 000-000-0000
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With a copy to: Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxx
Fax: (000) 000-0000
(d) MERGER OR CONSOLIDATION OF THE COMPANY. If the Company is
a party to any merger or consolidation pursuant to which the Preferred Stock or
Registrable Securities are converted into or exchanged for securities or the
right to receive securities of any other person ("CONVERSION SECURITIES"), the
issuer of such Conversion Securities shall assume (in a writing delivered to
all Holders) all obligations of the Company hereunder. The Company will not
effect any merger or consolidation described in the immediately preceding
sentence unless the issuer of the Conversion Securities complies with this
Section 9(d).
(e) SUCCESSORS AND ASSIGNS. Subject to the terms and
conditions of the Stockholder Agreement, (i) any transferee of all or a portion
of the Preferred Stock or Registrable Securities and (ii) any Restricted Party
that holds Registrable Securities shall become a Holder hereunder to the extent
it agrees in writing to be bound by all of the provisions applicable hereunder
to the transferring Holder (such acknowledgment being evidenced by execution of
a Counterpart and Acknowledgment substantially in the form of EXHIBIT A).
Subject to the requirements of this Section 9(e), this Agreement shall inure to
the benefit of and be binding upon the successors and assigns of the parties
hereto.
(f) COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed will be deemed to be an original and all of which
taken together will constitute one and the same instrument.
(g) HEADINGS. The headings in this Agreement are for
convenience of reference only and will not limit or otherwise affect the
meaning.
(h) GOVERNING LAW. This agreement will be governed by and
construed in accordance with the laws of the State of New York, as applied to
contracts made and performed within the State of New York.
(i) SEVERABILITY. If any term, provision, covenant or
restriction of this Agreement is held by a court of
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competent jurisdiction to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions set forth herein will remain
in full force and effect and will in no way be affected, impaired or
invalidated, and the parties hereto will use their best efforts to find and
employ an alternative means to achieve the same or substantially the same
result as that contemplated by such term, provision, covenant or restriction.
It is hereby stipulated and declared to be the intention of the parties that
they would have executed the remaining terms, provisions, covenants and
restrictions without including any of such which may be hereafter declared
invalid, void or unenforceable.
(j) ENTIRE AGREEMENT. This Agreement is intended by the
parties as a final expression of their agreement and intended to be the
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein, with respect to such subject matter. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
[Signature page follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
XXXXXX COMMUNICATIONS CORPORATION
By:
--------------------------------
Name:
Title:
NATIONAL BROADCASTING COMPANY,
INC.
By:
--------------------------------
Name:
Title:
29
EXHIBIT A
REGISTRATION RIGHTS AGREEMENT
COUNTERPART AND ACKNOWLEDGMENT
------------------------------
TO: The Company
RE: The Registration Rights Agreement (the
"Agreement") dated as of _______, 1999, by
and among the Company and the Holders (as
defined in the Agreement)
The undersigned hereby agrees to be bound by the terms of the
Agreement as a party to the Agreement, and shall be entitled to all benefits of
the Holders (as defined in the Agreement) and shall be subject to all
obligations and restrictions of the Holders pursuant to the Agreement, as fully
and effectively as though the undersigned had executed a counterpart of the
Agreement together with the other parties to the Agreement. The undersigned
hereby acknowledges having received and reviewed a copy of the Agreement.
DATED this _____ day of ____________, _____
By:
Title:
Number of
Shares of
Registrable Securities:
