EXHIBIT 4.5
REGISTRATION RIGHTS AGREEMENT
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This REGISTRATION RIGHTS AGREEMENT is entered into as of December 27, 1996 by
and among Xxxxxx Holdings, Inc., a Delaware corporation (the "Company") and the
Holders (herein so called) listed on Exhibit A attached hereto.
WHEREAS, the Company has agreed to issue the following securities (the
"Securities"): (i) Class A Common Stock, par value $0.01 per share, (ii) Class
B Common Stock, par value $0.01 per share which upon the occurrence of certain
events is convertible into shares of Class A Common Stock, (iii) Senior
Preferred Stock, par value $0.01 per share which is convertible into Class A
Common Stock and (iv) warrants to purchase shares of Class A Common Stock;
WHEREAS, each Holder has agreed to acquire the type of Securities set forth
opposite his name on Exhibit A attached hereto; and
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WHEREAS, the Company has agreed to register and qualify or cause the
registration and qualification of the shares of Class A Common Stock of the
Company held or to be held by the Holders (whether issued contemporaneously
herewith or acquired through the exercise of a conversion right or warrant) as
described in and pursuant to this Registration Rights Agreement (the
"Agreement");
NOW, THEREFORE, in consideration of the foregoing and other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties agree as
follows:
1. DEFINITIONS. As used herein, the following terms shall have the following
meanings (all terms defined in this SECTION 1 or in other provisions of this
Agreement in the singular shall have the same meanings when used in the plural
and vice versa):
"AFFILIATE" with respect to any Person, shall mean (a) any other Person that
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directly, or indirectly, through one or more intermediaries, Controls, or is
Controlled by, or under common Control with such Person, (b) any director,
officer, or partner of such Person, or (c) any father, mother, brother, sister
or descendant of such Person. For purposes of this Agreement, none of the EUFCC
Holders, Xxxxxx Holders, CIBC or any of their respective Affiliates shall be
deemed to be an Affiliate of the Company.
"AMERITEL HOLDERS" means Xxxxx X. Xxxxxxx, Xxxx X. Xxxxxxx, Xxxxxxx X. Xxxxx,
Xx., Xxxxxx X. Xxxxx, T. Xxxxxxx Xxxxxxxx, Xxxxx X. Xxxxxx, Xxxxx X. Xxxxxx,
Xxxx X. Xxxx, and Xxxx X. Xxxxx, and their respective Affiliates.
"BUSINESS DAY" means any day on which commercial banks are not authorized or
required to close in New York, New York, and
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shall also include any legal holiday on which the National Market System of the
National Association of Securities Dealers Automated Quotation System is open
for trading on a regular basis.
"CIBC" means CIBC Wood Gundy Ventures, Inc. and its Affiliates.
"CLASS A COMMON STOCK" means the Company's authorized Class A Common Stock,
par value $0.01 per share, as constituted on the Closing Date, and any other
stock of the Company into which such Class A Common Stock may thereafter be
changed or which may be issued to the holders of shares of Class A Common Stock
upon any reclassification thereof; provided, however, in no event shall Class A
Common Stock be deemed to include any Junior Preferred Stock which may be
exchanged for Class A Common Stock.
"CLASS B COMMON STOCK" means the Company's authorized Class B Common Stock,
par value $0.01 per share, as constituted on the Closing Date, and all Class B
Common Stock issued upon transfer, division, combination thereof or substitution
therefor.
"CLOSING DATE" means December 27, 1996.
"COMMISSION" means the Securities and Exchange Commission or any successor
thereto.
"COMMON STOCK" means collectively the Class A Common Stock and the Class B
Common Stock.
"CONTROL," "CONTROLS," "CONTROLLED" and "CONTROLLING" with respect to any
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Person shall mean the ability to direct or cause the direction of the management
and policies of such Person, whether through the ownership of voting securities,
by contract or otherwise.
"CONVERSION SHARES" means the shares of Class A Common Stock issued or to be
issued upon the exercise of the Senior Preferred Stock's conversion right and/or
the Class B Common Stock's conversion right, and any other stock of the Company
into which such Class A Common Stock may thereafter be changed or which may be
issued to the holders of shares of Class A Common Stock upon any
reclassification thereof; provided, however, in no event shall Conversion Shares
be deemed to include any shares of Junior Preferred Stock.
"EUFCC HOLDERS" means Xxxxx X. Xxxxxx, Xxxx X. Xxxxxxx, Xxxxxx X. Xxxx, and
their respective Affiliates.
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"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission thereunder.
"GAAP" means generally accepted accounting principles in the United States of
America as in effect on the date hereof, applied on a basis consistent with
those used in the preparation of the financial statements for the first fiscal
year of the Company ending after the Closing Date (except for changes concurred
in by the Company's independent public accountants).
"INITIAL PUBLIC OFFERING" means the initial registered public offering by the
Company under the Securities Act of the Class A Common Stock, which public
offering is made pursuant to a registration statement on Form S-1 or a successor
form.
"INITIATING HOLDERS" mean (i) any Holder or Holders of Registrable Securities
who in the aggregate hold not less than twenty-five percent (25%) of the
outstanding Registrable Securities or (ii) any Holder or Holders of Registrable
Securities, In the Money Warrants and/or any combination thereof who in the
aggregate hold (or will hold upon exercise) no less than twenty-five (25%) of
all outstanding Registrable Securities and In the Money Warrants, provided,
however, if the Xxxxxx Group is an Initiating Holder under clause (i) or (ii)
above in connection with any Demand Registration, the aforesaid twenty-five
percent (25%) threshold shall be increased to thirty-five percent (35%) for such
Demand Registration.
"IN THE MONEY WARRANTS" means as of any specified date, all options, warrants
or other securities or rights convertible into Common Stock for which the
exercise or conversion price is less than or equal to the Quoted Price as of
such date, provided that options, warrants or other securities or rights
convertible into Common Stock will not be considered as In the Money Warrants
unless at such time a Quoted Price exists for the Common Stock.
"JUNIOR PREFERRED STOCK" means the Company's junior preferred stock which may
be established and issued upon the unanimous consent of the Board of Directors
as provided in the Shareholders Agreement, and all junior preferred stock issued
upon transfer, division, or combination thereof or substitution therefor.
"ONYX HOLDERS" means Onyx Xxxxxx Partners, L.P. and Sachs Investment Partners,
and their respective Affiliates.
"PERSON" means an individual, partnership, corporation, business trust, joint
stock company, trust, unincorporated association, joint venture, governmental
authority or other entity of whatever nature.
"PREFERRED STOCK" means collectively the Senior Preferred Stock and the Junior
Preferred Stock.
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"QUOTED PRICE" means the average of the per share reported price of the Common
Stock for the twenty (20) consecutive trading days before the date in question,
as last reported by Nasdaq National Market, or if the Common Stock is listed on
a national securities exchange, the last reported sales price of the Common
Stock on such exchange (which shall be for consolidated trading if applicable to
such exchange), or if neither are so reported or listed, the last reported bid
price of the Common Stock. Notwithstanding the foregoing, there shall not be a
Quoted Price when the Common Stock is not publicly traded.
"REGISTRABLE SECURITIES" means (i) all Class A Common Shares, (ii) all
Warrant Shares, (iii) all Conversion Shares, and (iv) all Class A Common Stock
issued as a dividend or other distribution to the Holder with respect to, or in
exchange for, or in replacement of, any of the Warrant Shares or Conversion
Shares held by the Holder, including any other capital stock or other security
issued by the Company in a reclassification of the Class A Common Stock of the
Company (including any such reclassification in connection with a consolidation
or merger in which the Company is the continuing or surviving corporation) after
the date of this Agreement. As to any particular Registrable Securities, once
issued such Registrable Securities shall cease to be Registrable Securities
when (i) a registration statement with respect to the sale of such Registrable
Securities shall become effective under the Securities Act and such Registrable
Securities shall have been disposed of in accordance with such registration
statement, (ii) such Registrable Securities shall have been distributed to the
public pursuant to Rule 144 (or any successor provision) under the Securities
Act, (iii) new certificates for such Registrable Securities not bearing a
legend restricting further transfer shall have been delivered by the Company and
subsequent disposition of them shall not require registration or qualification
for them under the Securities Act or any similar state law then in force in the
State of Delaware or such other state in which the Company is domiciled, or (iv)
such Registrable Securities shall have ceased to be outstanding. In addition,
for the purpose of determining whether the holders of any requisite portion of
Registrable Securities have taken any action contemplated by this Agreement,
(a) a Person shall be deemed to hold Registrable Securities issuable upon
exercise of any Warrants or conversion of any Preferred Stock or Class B Common
Stock held by such Person, and (b) any Registrable Securities owned by the
Company or any Affiliate of the Company shall not be deemed outstanding.
Notwithstanding the above, "Registrable Securities" shall not mean or include
any (i) securities acquired by Holder in the public market or through any other
source or intermediary, (ii) Warrants, (iii) Preferred Stock or (iv) Class B
Common Stock.
"REGISTRATION", "REGISTER", "REGISTERED" means a registration effected by
preparing and filing a registration
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statement in compliance with the Securities Act and the declaration or ordering
of the effectiveness of such registration statement.
"REGISTRATION EXPENSES" means any and all expenses incident to the
registration (including maintenance of the effectiveness of any registration, as
required under this Agreement) of the Registrable Securities pursuant to this
Agreement, including, without limitation, (a) all registration and filing fees
required by or payable to the Commission, any stock exchange or the National
Association of Securities Dealers, Inc. ("NASD"), including, if applicable, the
fees and expenses of any "qualified independent underwriter" (and its counsel)
that is required to be retained in accordance with the rules and regulations of
the NASD, (b) all fees and expenses to comply with state securities or blue sky
laws (including reasonable fees and disbursements of counsel for the
underwriters, if any, in connection with blue sky qualifications), (c) all
printing, messenger and delivery expenses, (d) all fees and disbursements of
counsel for the Company and the Company's independent public accountants,
including the expenses of any special audits and/or "cold comfort" or other
accountants' letters required by or incident to such registration, (e) fees and
disbursements of underwriters imposed on the Company by the underwriting
agreements to which the Company is a party and the reasonable fees and expenses
of any special experts retained in connection with the requested registration,
and (f) the fees and disbursements of counsel for the Holders of the Registrable
Securities. Notwithstanding the above, "Registration Expenses" does not mean or
include, and the Company shall not be liable under any circumstances for, the
following:
a. any expenses in connection with any amendment or supplement to the
Registration Statement or prospectus filed more than one-hundred eighty (180)
days after the effective date of such Registration Statement because any
Holder of Registrable Securities has not effected the disposition of the
securities requested to be registered except for such amendments or
supplements relating to a Shelf Registration (as defined in SECTION 2b.).
(Each Holder acknowledges that the Company shall have no obligation to Holder
to file any such amendment or supplement regardless of the obligation or
readiness of Holder to pay all expenses incurred in connection therewith.);
and
b. any fees, discounts, or commissions to any underwriter with respect to
any resales of securities by a Holder of Registrable Securities.
"RULE 144" means Rule 144 promulgated by the Commission under the Securities
Act, as such Rule may be amended from time to time, or any similar or successor
provision at any time in force.
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"SECURITIES ACT" means the Securities Act of 1933, as amended, and the rules
and regulations of the Commission thereunder.
"SENIOR PREFERRED STOCK" mean the Company's Senior Preferred Stock, par value
$0.01 per share, as constituted on the Closing Date, and all Senior Preferred
stock issued upon transfer, division, or combination thereof or substitution
therefor.
"SHAREHOLDERS AGREEMENT" means that certain Shareholders Agreement of even
date herewith among the Company and all its shareholders and warrant holders.
"SHELF REGISTRATION" means a delayed or continuous Registration pursuant to
Rule 415 of the Securities Act.
"SUBSIDIARY" of any Person means any corporation or other entity of which at
least a majority of the securities or other ownership interests having ordinary
voting power (absolutely or contingently) for the election of directors or other
persons performing similar functions are at the time owned directly or
indirectly by such Person.
"XXXXXX HOLDERS" means Xxxxxx Xxxxxx, Xxxxxx Xxxxxx, Xx., and Xxxxx X.
Xxxxxxx, and their respective Affiliates.
"WARRANTS" shall mean the Warrants issued pursuant to those certain Warrant
Agreements of even date herewith between the Company and the warrant holders
named therein, and all Warrants issued upon transfer, division, combination
thereof or substitution therefor.
"WARRANT SHARES" means the shares of Class A Common Stock issued or to be
issued upon the exercise of the Warrants, and any other stock of the Company
into which such Class A Common Stock may thereafter be changed or which may be
issued to the holders of shares of Class A Common Stock upon any
reclassification thereof.
2. REGISTRATION.
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a. DEMAND REGISTRATION. Subject to SECTION 2g., if the Company shall
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receive from Initiating Holders at any time after the earlier to occur of six
(6) months after the Initial Public Offering by the Company, and November 30,
1998, a written request that the Company effect any registration ("Demand
Registration") with respect to all or a part of the Registrable Securities,
which notice will specify whether the registration will be an underwritten
offering the Company will:
(i) promptly give written notice of the proposed Demand Registration
to all other holders of Registrable Securities; and
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(ii) as soon as practicable, use its best efforts to effect such
Demand Registration (including, without limitation, filing post-effective
amendments and appropriate qualifications under applicable blue sky or other
state securities laws, and appropriate compliance with the Securities Act) in
such amount 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 holders
joining in such request as are specified in a written request received by the
Company within ten (10) days after such written notice is given by the
Company.
The Company shall be deemed to have effected a Demand Registration if
the registration statement relating to such Demand Registration is declared
effective by the Commission and remains effective for at least one-hundred
twenty (120) days; provided, however, that no Demand Registration shall be
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deemed to have been effected if (i) such registration, after it has become
effective, is interfered with by any stop order, injunction or other order or
requirement of the Commission or other governmental agency or court for any
reason not attributable to the selling holders of Registrable Securities, or
(ii) the conditions to closing specified in the purchase agreement or
underwriting agreement entered into in connection with such registration are not
satisfied, unless such failure is directly or indirectly the result of
deliberate action or inaction on the part of the selling holders of Registrable
Securities.
Registrations under this SECTION 2a. shall be on such appropriate
registration form of the Commission (i) as shall be selected by the Company and
as shall be satisfactory to the holders of a majority of the Registrable
Securities requesting a Demand Registration and (ii) as shall permit the
disposition of such Registrable Securities in accordance with the intended
method or methods of disposition specified in such holders' requests for such
Registration. If, in connection with any Registration under this SECTION 2a.
which is proposed by the Company to be on Form S-3 or any successor form to such
Form, the managing underwriter (if any) or holders of a majority of the
Registrable Securities requesting a Demand Registration shall advise the Company
in writing that in its opinion the use of another permitted form is of material
importance to the success of the offering, then such Registration shall be on
such other permitted form.
If a Demand Registration is to be an underwritten offering, the
holders of a majority of the Registrable Securities to be included in such
Demand Registration will select a managing underwriter or underwriters of
recognized national standing reasonably acceptable to the Company to administer
the offering and all holders of Registrable Securities included in such Demand
Registration shall enter into such underwriting agreement as the
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holders of a majority of the Registrable Securities so included determine to be
appropriate.
The Company shall not be obligated to effect, or to take any action to
effect, any such Demand Registration pursuant to this SECTION 2a.:
(A) After the Company has effected three such Demand
Registrations pursuant to this SECTION 2a.;
(B) During the period starting with the date thirty (30) days
prior to the Company's good faith estimate of the date of filing of a
Company-initiated registration, and ending on a date one-hundred
eighty (180) days after the effective date of, the initial
Companyinitiated registration or ninety (90) days after the effective
date for any other type of registration under this SECTION 2a.;
provided that the Company is actively employing in good faith all
reasonable efforts to cause such registration statement to become
effective.
Subject to the foregoing clauses (A) and (B), 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 or requests of
the Initiating Holders; provided, however, that if (i) in the good faith
judgment of the Board of Directors of the Company, such registration would be
seriously detrimental on the ability of the Company to effect a pending or
contemplated financing, merger, sale of assets, recapitalization or other
similar corporate action of the Company and the Board of Directors of the
Company concludes, as a result, that it is essential to defer the filing of such
registration statement at such time, and (ii) the Company shall furnish to such
holders a certificate signed by the President of the Company stating that in the
good faith judgment of the Board of Directors of the Company, it would be
seriously detrimental on the ability of the Company to effect such a transaction
for such registration statement to be filed in the near future and that it is,
therefore, essential to defer the filing of such registration statement, then
the Company shall have the right to defer such filing (except as provided in
clause (B) above) for a continuous period of not more than one-hundred twenty
(120) days after receipt of the request of the Initiating Holders, and,
provided, further, that the Company shall not defer its obligation in this
manner more than once in any twelve-month period.
Whenever the Company shall effect a Registration pursuant to this
SECTION 2a. in connection with an underwritten offering by one or more holders
of Registrable Securities, no securities other than Registrable Securities shall
be included
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among the securities covered by such Registration unless (a) the managing
underwriter of such offering shall have advised each holder of Registrable
Securities to be covered by such Registration in writing that the inclusion of
such other securities would not adversely affect such offering or (b) the
holders of a majority of all Registrable Securities to be covered by such
Registration shall have consented in writing to the inclusion of such other
securities.
b. DEMAND CUT BACKS. Subject to SECTION 2g., if the Company shall
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effect a Registration pursuant to SECTION 2a. in connection with an underwritten
offering by one or more holders of Registrable Securities, and if the managing
underwriter of such offering shall advise the Company in writing (with a copy to
each holder of Registrable Securities requesting Registration) that, in its
opinion, the number of securities requested to be included in such Registration
exceeds the number which can be sold in such offering within a price range
acceptable to the selling holder(s) of a majority of the Registrable Securities
requested to be included in such Registration, the Company will include in such
Registration, to the extent of the number which the Company is so advised can be
sold in such offering, Registrable Securities requested to be included in such
Registration, selected pro rata from the Registrable Securities of the selling
holders requesting such Registration on the basis of the percentage of the total
amount of the Registrable Securities which such selling holders requested to be
so registered. In connection with any such Registration to which this paragraph
is applicable, no securities other than Registrable Securities shall be covered
by such Registration.
c. SHELF REGISTRATION. The Company shall proceed as expeditiously as
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possible after it is eligible to file a Shelf Registration of Registrable
Securities under and in accordance with the provisions of the Securities Act, to
file a registration statement and use its best efforts to effect a Shelf
Registration of all Registrable Securities; provided, however, that the Company
shall be entitled to postpone for a reasonable period of time (not to exceed in
the aggregate a period of one-hundred twenty (120) days for all such
postponements pursuant to this SECTION 2c.) the filing of any registration
statement otherwise required to be prepared and filed by it pursuant to this
SECTION 2c. if the Board of Directors of the Company shall determine in good
faith that disclosure required in connection with such registration respecting a
pending or contemplated financing, merger, sale of assets, recapitalization or
other similar corporate action of the Company could have a substantial and
adverse affect on the Company's ability to effect such a transaction. The
Company shall use best efforts to keep the Shelf Registration statement
effective until the sale of all shares of Common Stock covered thereby, and
shall comply with the provisions of the Securities Act with respect to the
disposition of all shares of Common Stock covered by such registration
statement; provided, however, that the Company shall be entitled to suspend
offers and sales under
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the Shelf Registration statement for a reasonable period of time (not to exceed
in the aggregate a period of one-hundred twenty (120) days in any two years for
all such suspensions pursuant to this SECTION 2) if, at the time the Company
requests such suspension, the Board of Directors of the Company has determined
in good faith that disclosures required in connection with such registration
respecting a pending or contemplated financing, merger, sale of assets,
recapitalization or other similar corporate action of the Company could have a
substantial and adverse affect on the Company's ability to effect such a
transaction.
The holders of Registrable Securities shall (i) cooperate with the
Company in preparing such Shelf Registration and (ii) promptly supply the
Company with all information and representations as it may deem reasonably
necessary in connection with such Shelf Registration.
The Company shall not be required to effect a registration pursuant to
this SECTION 2c. unless such registration can be made on Form S-3 or any
successor form to such Form.
In the event that during such time as any of the Registrable
Securities are registered pursuant to a Shelf Registration, any holders of such
Registrable Securities request that some or all of such Registrable Securities
be included in either a Demand Registration or a Piggyback Registration, the
Company will take such actions as may be necessary in accordance with applicable
law to permit such Registrable Securities to be so included, including without
limitation, causing such Registrable Securities to be deregistered under the
Shelf Registration concurrently with the effectiveness of the Demand
Registration or Piggyback Registration of such Registrable Securities.
d. PIGGYBACK REGISTRATION. Subject to SECTION 2g., if the Company, at
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any time following the Closing Date, proposes to register any Class A Common
Stock under the Securities Act (other than a Registration, pursuant to a
registration statement on Form S-4 or S-8 or any successor form, of securities
to be offered in a transaction of the type referred to in Rule 145 under the
Securities Act or to employees of the Company pursuant to any employee benefit
plan, respectively) for its own account, the Company will each such time
promptly, but not less than thirty (30) days prior to the filing date of such a
registration statement, give written notice to the Holders of its intention to
effect that registration and of the rights of the Holders under this Agreement
to participate therein ("Piggyback Registration"), which notice shall include a
list of jurisdictions in which the Company intends to qualify such securities
under applicable state securities laws or blue sky laws and the estimated filing
date for the registration statement. Upon the written request of any Holder
made within twenty (20) days after receipt of any such notice (which request
shall specify the number and class of Registrable Securities intended to be
disposed of by such
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Holder), the Company will include in the Piggyback Registration (and any related
qualification under applicable state securities laws or blue sky laws) all
Registrable Securities which the Company has been so requested to register.
The Company shall be entitled, in its sole and absolute discretion, to terminate
any proposed registration initiated by it, to withdraw the registration
statement related to any such registration and to terminate any offering
involved in such terminated registration without the consent of any Holder
provided that the Company shall be liable for all out-of-pocket costs and
expenses of the Holders in connection with such terminated registration. Each
Holder shall be permitted to withdraw all or part of such securities from a
Piggyback Registration at any time prior to the declaration of the effectiveness
of such registration statement by the Commission with no cost to the Holder. No
Registration of Registrable Securities effected pursuant to a request under this
SECTION 2d. shall be deemed to have been effected pursuant to SECTION 2a. or
SECTION 2g. hereof or shall relieve the Company of its obligation to effect any
Registration upon request under SECTION 2a. or SECTION 2g. hereof.
e. UNDERWRITING. If any Demand Registration or Piggyback Registration
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for which the Company gives written notice under SECTION 2a., 2d. or 2g.
involves an underwriting, the Company shall so advise the Holders as part of
such written notice. In such case, the right of each Holder to participate in
an underwritten Registration shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of such Holder's
Registrable Securities requested to be included in the underwriting to the
extent provided herein. All holders proposing to distribute their securities
through such underwriting (together with the Company and other holders, if any,
of securities of the Company participating therein) shall enter into an
underwriting agreement in customary form with the representative of the
underwriter(s) selected as provided in SECTION 2a. hereof. Prior to the
declaration of the effectiveness of the registration covering the Registrable
Securities to be registered in connection with such underwriting, each holder
participating therein shall take all steps necessary to exercise the Warrants if
Warrant Shares are to be included in the Registration, and to exercise the
conversion rights if Conversion Shares are to be included in the Registration.
If any Holder has not taken all steps necessary to exercise the Warrants into
Warrant Shares (or to convert into Conversion Shares) prior to the declaration
of effectiveness of the registration statement covering such securities, such
securities of such Holder shall be deemed to have been withdrawn from
registration and such Holder shall reimburse the Company for any Registration
Expenses incurred in the registration of such Registrable Securities being
withdrawn. After a registration statement covering the securities to be sold in
connection with such underwritten Registration has been declared effective by
the Commission, such securities shall be sold in accordance with the method of
distribution described therein. If a Holder exercises Warrants in order to
include
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Warrant Shares in a Registration, and such Registration does not become
effective, such Holder may require the Company to nullify the exercise of the
Warrant, in which case the Company would return to the Holder the exercise price
which was paid by the Holder upon exercise of the Warrant and the Warrant in
exchange for the Holder's return of the Warrant Shares to the Company.
f. PIGGYBACK CUT BACKS. If the managing underwriter for an
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underwritten Registration advises the Company that, in its opinion, the number
of securities of a class sought to be included in such registration exceeds the
maximum number (the "Maximum Number") of securities of such class which can be
sold in an orderly manner in such offering within a price range reasonably
acceptable to the Company, the Company shall be entitled to reduce the aggregate
number of securities included in the registration to the Maximum Number, with
participation in the offering being allocated, subject to SECTION 2g., (i)
first, for the account of the Company; (ii) second, pro rata among all Holders
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of Registrable Securities (other than the EUFCC Holders, the Xxxxxx Holders,
the AmeriTel Holders and the Onyx Holders) exercising piggyback registration
rights (based upon the number of securities sought to be registered by each such
Holder); (iii) third, among the EUFCC Holders, the Xxxxxx Holders, the AmeriTel
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Holders and the Onyx Holders exercising piggyback registration rights (based
upon the number of securities sought to be registered by each such Holder); and
(iv) fourth, and only if all of the securities with piggyback registration
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rights requested for inclusion in such Registration have been so included, from
any other securities eligible for inclusion in such Registration.
g. CIBC OVERRIDE. For so long as CIBC shall hold shares of
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Registrable Securities equating to at least fifty percent (50%) of its holdings
of Common Stock on the Closing Date, one of the Demand Registrations provided in
SECTION 2a. above shall be exclusively reserved for the use and exercise by CIBC
(the "CIBC Demand"). In the event the Company shall receive a request for
Demand Registration from any Initiating Holders (other than CIBC) at any time
the CIBC Demand remains outstanding, the Company shall promptly notify CIBC of
such requested Demand Registration, and the Company shall take no action with
respect thereto for a period of ten (10) days. During such ten (10) day period,
CIBC shall have the right to exercise the CIBC Demand in accordance with SECTION
2a. and this SECTION 2g. and thereby preempt the Demand Registration of the
Initiating Holders. The Company shall thereupon act upon the CIBC Demand in
accordance with SECTION 2a. (but subject to the priority set forth in the next
paragraph) and the Demand Registration of the Initiating Holders shall be deemed
automatically withdrawn (but still available for subsequent exercise) by the
Initiating Holders.
In the event CIBC exercises the CIBC Demand, notwithstanding any
contrary provisions in SECTION 2b., CIBC shall have a first priority to cause to
be registered pursuant to the CIBC Demand (prior to any opportunity to register
Registrable
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Securities of any other Holder other than under SECTION 2c.) a number of its
Registrable Securities up to the amount of Registrable Securities necessary to
cause the remaining Registrable Securities then held by CIBC and not so
registered to equate to the number of Registrable Securities held by Regent
Capital Equity Partners, L.P. on the Closing Date. If after satisfying the
foregoing requirements any availability exists to register Registrable
Securities of the other Holders, such availability shall first be allocated on a
pro rata basis among the Holders (other than the EUFCC Holders, the Xxxxxx
Holders, the AmeriTel Holders and the Onyx Holders), desiring to register their
Registrable Securities, and then allocated on a pro rata basis among the EUFCC
Holders, the Xxxxxx Holders, the AmeriTel Holders and the Onyx Holders desiring
to register their Registrable Securities.
The Company will, following receipt of a written request from CIBC,
use its best efforts to effect the Initial Public Offering and will promptly
give written notice to the Holders of its intention to effect such offering and
of the rights of the Holders under this Agreement to participate therein, which
notice shall include a list of jurisdictions in which the Company intends to
qualify such securities under applicable state securities laws or blue sky laws
and the estimated filing date for the registration statement. Upon the written
request of any Holder made within twenty (20) days after receipt of any such
notice (which request shall specify the number and class of Registrable
Securities intended to be disposed of by such Holder), the Company will include
in such Registration (and any related qualification under applicable state
securities laws or blue sky laws) all Registrable Securities which the Company
has been so requested to register.
The Company, however, shall be entitled to postpone for a reasonable
period of time (not to exceed in the aggregate a period of one-hundred twenty
(120) days for all such postponements pursuant to the foregoing request) the
filing of any registration statement otherwise required to be prepared and filed
by it pursuant to the foregoing request if (i) in the good faith judgment of the
Board of Directors of the Company, such registration would be seriously
detrimental on the ability of the Company to effect a pending or contemplated
financing, merger, sale of assets, recapitalization or other similar corporate
action of the Company and the Board of Directors of the Company concludes, as a
result, that it is essential to defer the filing of such registration statement
at such time, and (ii) the Company shall furnish to the Holders a certificate
signed by the President of the Company stating that in the good faith judgment
of the Board of Directors of the Company, it would be seriously detrimental on
the ability of the Company to effect such a transaction for such registration
statement to be filed in the near future and that it is, therefore, essential to
defer the filing of such registration statement.
-13-
Each Holder shall be permitted to withdraw all or part of such
securities from such Registration at any time prior to the declaration of the
effectiveness of such registration statement by the Commission with no cost to
the Holder. In connection with any piggyback registration on the Initial Public
Offering requested pursuant to this SECTION 2g., CIBC shall have a first
priority to cause to be registered (prior to any opportunity to register
Registrable Securities of any other Holder) a number of its Registrable
Securities up to the amount of Registrable Securities necessary to cause the
remaining Registrable Securities then held by CIBC and not so registered to
equate to the number of Registrable Securities held by Regent Capital Equity
Partners, L.P. on the Closing Date. If after satisfying the foregoing
requirements any availability exists to register Registrable Securities of the
other Holders, such availability shall first be allocated on a pro rata basis
among the Holders (other than the EUFCC Holders, the Xxxxxx Holders, the
AmeriTel Holders and the Onyx Holders), desiring to register their Registrable
Securities, and then allocated on a pro rata basis among the EUFCC Holders, the
Xxxxxx Holders, the AmeriTel Holders and the Onyx Holders desiring to register
their Registrable Securities.
CIBC may request that the Company effect the Initial Public Offering
pursuant to this SECTION 2g. prior to November 28, 1998, but in connection
therewith CIBC shall not have the special piggyback priority rights set forth in
the preceding paragraph (and the piggyback rights set forth in SECTION 2d. shall
apply), provided that CIBC shall retain during the period following November 28,
1998, the CIBC Demand, with priority, provided in the first two paragraphs of
this SECTION 2g. If CIBC requests that the Company effect the Initial Public
Offering pursuant to this SECTION 2g. on or after November 28, 1998, CIBC shall
have the special piggyback priority rights set forth in the preceding paragraph,
but CIBC shall lose its CIBC Demand.
3. REGISTRATION PROCEDURES. If and whenever the Company is required by
-----------------------
this Agreement to notify holders of Registrable Securities of a proposed
registration of securities under the Securities Act, then, the Company will:
a. before filing a registration statement or prospectus or any
amendments or supplements thereto, furnish to the holders of the Registrable
Securities covered by such registration statement and the underwriters, if any,
copies of all such documents proposed to be filed, which documents will be
subject to the review of such holders and underwriters, and the Company will not
file any registration statement or amendment thereto or any prospectus or any
supplement thereto to which the holders of a majority of the Registrable
Securities covered by such registration statement or the underwriters, if any,
shall reasonably object;
b. with such information promptly and timely furnished by each
Holder regarding the securities held by such Holder and
-14-
the intended method of disposition thereof as the Company shall reasonably
request and as shall be required in connection with the action to be taken by
the Company, the Company shall prepare and file with the Commission a
registration statement with respect to such securities and use best efforts to
cause such registration statement to become and remain effective until such
securities have all been sold in accordance with the intended methods of
disposition disclosed in the registration statement;
c. furnish to each seller of securities and each underwriter, if
any, of the securities being sold by such seller such number of copies of such
registration statement and of each amendment and supplement therein, such number
of copies of the prospectus, including a preliminary prospectus and summary
prospectus, and such other documents, as such seller or underwriter may
reasonably request in order to facilitate the public sale or other disposition
of the securities owned by such seller;
d. use best efforts to register or qualify the securities covered by
such registration statement under such other securities or blue sky laws of such
jurisdictions in the United States as a seller or underwriter shall reasonably
request, and do such other acts and things as may be necessary or advisable to
enable such seller and underwriter to consummate the public sale or other
disposition in such jurisdictions of the securities owned by such seller, except
that the Company shall not for any such purpose be required to execute or file
any general consent to service of process or be obligated to qualify to do
business under the laws of any jurisdiction where it has not previously done so;
e. notify each seller of any securities covered by such registration
statement (1) when the prospectus or any prospectus supplement or post-effective
amendment has been filed, and, with respect to the registration statement or any
post-effective amendment, when the same has become effective, (2) of any request
by the Commission for amendments or supplements to the registration statement or
the prospectus or for additional information, (3) of the issuance by the
Commission of any stop order suspending the effectiveness of the registration
statement or the initiation of any proceedings for that purpose, (4) if at any
time the representations and warranties of the Company contemplated by paragraph
(i) below cease to be true and correct, (5) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, and (6) at any time when a
prospectus relating thereto is required to be delivered under the Securities
Act, of the Company's becoming aware that the prospectus included in such
registration statement, as then in effect, includes an untrue statement of a
material fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading in the light of the
circumstances then existing, and at the request of
-15-
any such seller promptly prepare and furnish to such seller a reasonable number
of copies of a prospectus supplemented or amended so that, as thereafter
delivered to the purchasers of such securities, such prospectus shall not
include 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 the light of the circumstances then existing;
f. otherwise to comply with all applicable rules and regulations of
the Commission;
g. use reasonable efforts to list such securities on any securities
exchange on which the Class A Common Stock of the Company is then listed, if the
listing of such securities is then permitted under the rules of such exchange or
to be quoted on the Nasdaq National Market System or Nasdaq SmallCap Market
System;
h. provide a transfer agent and registrar for all the securities
covered by such registration statement not later than the effective date of such
registration statement;
i. enter into such underwriting, indemnity or similar agreements with
the underwriters in customary form and take such other actions as may be
reasonably necessary in order to expedite or facilitate the disposition of such
securities and in such connection, whether or not an underwriting agreement is
entered into and whether or not the registration is an underwritten
registration:
1. make such representations and warranties to the holders of such
Registrable Securities and the underwriters, if any, in form, substance and
scope as are customarily made by issuers to underwriters in primary
underwritten offerings;
2. 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, and the holders
of a majority of the Registrable Securities being sold) addressed to each
selling holder and the underwriters, if any, covering the matters customarily
covered in opinions requested in underwritten offerings and such other
matters as may be reasonably requested by such holders and underwriters;
3. obtain "cold comfort" letters and updates thereof from the
Company's independent certified public accountants addressed to the selling
holders of Registrable Securities and the underwriters, if any, such letters
to be in customary form and covering matters of the type customarily covered
in "cold comfort" letters by underwriters in connection with primary
underwritten offerings;
4. if an underwriting agreement is entered into, use its reasonable
efforts to cause the same to set forth in full
-16-
the indemnification provisions and procedures of SECTION 4 hereof with
respect to all parties to be indemnified pursuant to said Section; and
5. deliver such documents and certificates as may be reasonably
requested by the holders of a majority of the Registrable Securities being
sold and the managing underwriters, if any, to evidence compliance with any
customary conditions contained in the underwriting agreement or other
agreement entered into by the Company.
The above shall be done at the effectiveness of such registration statement,
each closing under any underwriting or similar agreement as and to the extent
required thereunder and from time to time as may be reasonably requested by any
selling holder in connection with the disposition of Registrable Securities
pursuant to such registration statement;
j. make every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of the registration statement at the earliest
possible moment;
k. if requested by the managing underwriter or underwriters or a
holder of Registrable Securities being sold in connection with an underwritten
offering, immediately incorporate in a prospectus supplement or post-effective
amendment such information as the managing underwriters and the holders of a
majority of the Registrable Securities being sold agree should be included
therein relating to the plan of distribution with respect to such Registrable
Securities, including, without limitation, information with respect to the
amount of Registrable Securities being sold to such underwriters, the purchase
price being paid therefor by such underwriters and with respect to any other
terms of the underwritten (or best efforts underwritten) offering of the
Registrable Securities to be sold in such offering; and make all required
filings of such prospectus supplement or post-effective amendment as soon as
notified of the matters to be incorporated in such prospectus supplement or
post-effective amendment;
l. cooperate with the selling holders of Registrable Securities and
the managing underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and not
bearing any restrictive legends; and enable such Registrable Securities to be in
such denominations and registered in such names as the managing underwriter may
request at least two business days prior to any sale of Registrable Securities
to the underwriters;
m. not later than the effective date of the applicable registration
statement, provide a CUSIP number for all Registrable Securities and provide the
applicable transfer agent with printed certificates for the Registrable
Securities which are in a form eligible for deposit with Depositary Trust
Company;
-17-
n. make available for inspection by a representative of the holders of
a majority of the Registrable Securities, any underwriter participating in any
disposition pursuant to such registration statement, and any attorney or
accountant retained by the sellers or underwriter, all financial and other
records, pertinent corporate documents and properties of the Company, and cause
the Company's officers, directors and employees to supply all information
reasonably requested by any such representative, underwriter, attorney or
accountant in connection with the registration; provided that any records,
-------- ----
information or documents that are designated by the Company in writing as
confidential shall be kept confidential by such Persons unless disclosure of
such records, information or documents is required by court or administrative
order;
o. otherwise use its best efforts to comply with all applicable rules
and regulations of the Commission, and make generally available to its security
holders, earnings statements satisfying the provisions of SECTION 11a. of the
Securities Act, no later than forty-five (45) days after the end of any 12-month
period (or ninety (90) days, if such period is a fiscal year) (1) commencing at
the end of any fiscal quarter in which Registrable Securities are sold to
underwriters in an underwritten offering, or, if not sold to underwriters in
such an offering, (2) beginning with the first month of the Company's first
fiscal quarter commencing after the effective date of the registration
statement, which statements shall cover said 12-month periods;
p. cooperate and assist in any filings required to be made with the
NASD and in the performance of any due diligence investigation by any
underwriter (including any "qualified independent underwriter" that is required
to be retained in accordance with the rules and regulations of the NASD); and
q. promptly prior to the filing of any document which is to be
incorporated by reference into the registration statement or the prospectus
(after initial filing of the registration statement) provide copies of such
document to counsel to the selling holders of Registrable Securities and to the
managing underwriters, if any, make the Company's representatives available for
discussion of such document and make such changes in such document prior to the
filing thereof as counsel for such selling holders or underwriters may
reasonably request.
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 securities as the Company may from time to
time reasonably request in writing.
Each holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon receipt of any notice from the Company of the
happening of any event of the kind described in SECTION 3e.(6) hereof, such
holder will forthwith
-18-
discontinue disposition of Registrable Securities until such holder's receipt of
the copies of the supplemented or amended prospectus contemplated by SECTION
3e.(6) hereof, or until it is advised in writing by the Company that the use of
the prospectus may be resumed, and has received copies of any additional or
supplemental filings which are incorporated by reference in the prospectus, and,
if so directed by the Company, such holder will 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
current at the time of receipt of such notice. In the event the Company shall
give any such notice, the time periods during such registration statement shall
be maintained effective shall be extended by the number of days during the
period from and including the date of the giving of such notice to and including
the date when each seller of Registrable Securities covered by such registration
statement either receives the copies of the supplemented or amended prospectus
contemplated by SECTION 3e.(6) hereof or is advised in writing by the Company
that the use of the prospectus may be resumed.
No Holder shall have any right to obtain or seek an injunction restraining or
otherwise delaying any Registration as the result of any controversy that might
arise with respect to the interpretation or implementation of this Agreement, or
otherwise.
4. INDEMNIFICATION.
---------------
a. INDEMNIFICATION BY THE COMPANY. To the extent permitted by
------------------------------
applicable law, the Company will indemnify each Holder of Registrable
Securities, each Affiliate of the Holder, each of the directors and officers of
such Affiliate of the Holder, and each person controlling such Affiliate (each,
an "Indemnified Person"), with respect to which registration, qualification or
compliance has been effected pursuant to this Agreement, against all claims,
losses, damages, costs, expenses (including reasonable costs of investigation
and legal expenses) and liabilities whatsoever (or actions in respect thereof)
arising out of or based on (i) any untrue statement (or alleged untrue
statement) of a material fact contained in any registration statement,
prospectus, offering circular or other similar document (including any related
registration statement, notification or the like) 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 in the light of the
circumstances under which they were made, or (ii) any violation by the Company
of the Securities Act or any state securities law or of any rule or regulation
promulgated under the Securities Act or any state securities law or any common
law or any other law applicable to the Company in connection with any such
registration, qualification or compliance, and will reimburse each Indemnified
Person for any legal and any other expenses reasonably incurred in connection
with investigating or defending
-19-
any such claim, loss, damage, liability or action unless such action arises out
of or is based on any untrue statement or omission based upon written
information furnished to the Company by an instrument duly executed by any
Holder and stated to be specifically for use therein or furnished by any Holder
to the Company in response to a request by the Company stating specifically that
such information will be used by the Company therein. It is expressly
acknowledged that the Company shall not indemnify an Indemnified Person
otherwise entitled to indemnification hereunder if such Indemnified Person made
an untrue statement or failed to state a material fact in information furnished
in writing to the Company by such person expressly for use in a registration
statement and if the use of such information by the Company in connection with
its registration statement causes the claim, loss, damages, cost, expense or
liability for which indemnification is being sought.
b. INDEMNIFICATION BY THE HOLDER. To the extent permitted by
-----------------------------
applicable law, each Holder will, if Registrable Securities held by or issuable
to such Holder are included in the securities to which such registration,
qualification or compliance is being effected, severally indemnify the Company,
each of the directors and officers of the Company, each Affiliate of the
Company, each of the directors and officers of each Affiliate of the Company,
and each underwriter, if any, of the Company's securities covered by such
registration statement, and each person who controls the Company within the
meaning of the Securities Act against all claims, losses, damages, costs,
expenses and liabilities whatsoever (or actions in respect thereof) 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 similar document (including any related registration statement,
notification or the like) 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 in the light of the circumstances under which they were
made, and will reimburse the Company, such directors, officers, persons or
underwriters for any legal or other expenses reasonably incurred in connection
with investigating or defending any such claim, loss, damage, cost, expense,
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
or other document in reliance upon and in strict conformity with written
information furnished to the Company by an instrument duly executed by such
Holder and stated to be specifically for use therein or furnished by the Holder
to the Company in response to a request by the Company stating specifically that
such information will be used by the Company therein. In no event shall the
liability of any selling Holder of Registrable Securities hereunder be greater
in amount than the dollar-amount of the
-20-
proceeds received by such Holder upon the sale of Registrable Securities giving
rise to such indemnification obligation.
c. INDEMNIFICATION MECHANICS. Each party entitled to indemnification
-------------------------
under this SECTION 4 (the "Indemnified Party") shall give written notice to the
party or parties 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 failure of any Indemnified Party to
give notice as provided herein shall relieve the Indemnifying Party of its
obligations under this Agreement only to the extent that such failure to give
notice shall materially adversely prejudice the Indemnifying Party in the
defense of any such claim or any such litigation. 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
that 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 to such claim or litigation. If any such Indemnified Party shall
have been advised by counsel chosen by it that there may be one or more legal
defenses available to such Indemnified Party that are different from or
additional to those available to the Indemnifying Party, the Indemnifying Party
shall not have the right to assume the defense of such action on behalf of such
Indemnified Party and will reimburse such Indemnified Party and any person
controlling such Indemnified Party for the reasonable fees and expenses of any
counsel retained by the Indemnified Party, it being understood that the
Indemnifying Party shall not, in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys for such Indemnified Party
or controlling person, which firm shall be designated in writing by the
Indemnified Party to the Indemnifying Party.
d. CONTRIBUTION. If the indemnification provided for in this SECTION
------------
4 is unavailable to an Indemnified Party (other than by reason of any exception
provided in SECTION 4a. OR 4b. hereof) in respect of any losses, claims,
damages, costs, expenses or liabilities for which such Indemnified Party is
entitled to be indemnified hereunder, then the Indemnifying Party, in lieu of
indemnifying such Indemnified Party, shall contribute to the amount paid or
payable by such Indemnified Party as a result of such losses, claims, damages,
costs, expenses or liabilities in such proportion as is appropriate to reflect
the relative fault of the Indemnifying Party and Indemnified Party in connection
with the actions which resulted in such losses, claims, damages, costs,
-21-
expenses or liabilities, as well as any other relevant equitable considerations.
The relative fault of such Indemnifying Party and Indemnified Party shall 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 to state a material fact, has been made by, or relates 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 statement or omission. The amount paid or payable by a
party as a result of losses, claims, damages, costs, expenses or liabilities
referred to above shall be deemed to include, subject to the limitations set
forth in SECTION 4c., any legal or other fees or expenses reasonably incurred by
such party in connection with any investigation or proceeding. The parties
hereto agree that it would not be just and equitable if contribution pursuant to
this SECTION 4d. were determined by pro rata allocation or by any other method
of allocation which does not take account of the equitable considerations
referred to in this SECTION 4d. No Person guilty of fraudulent
misrepresentation (within the meaning of SECTION 11f. of the Securities Act)
shall be entitled to contribution from any Person who is not guilty of such
fraudulent misrepresentation. Notwithstanding the provisions of this SECTION
4d., a selling holder of Registrable Securities shall not be required to
contribute any amount in excess of the total amount by which the total price at
which the securities were sold by such holder or its Affiliates and distributed
to the public exceeds the amount of any damages such holder has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission.
5. REGISTRATION EXPENSES. The Company shall pay all Registration Expenses
---------------------
in connection with any Registration requested by Holder pursuant to SECTION 2.
The Company will also pay its 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
each securities exchange on which similar securities issued by the Company are
then listed, rating agency fees and the fees and expenses of any person,
including special experts, retained by the Company.
6. INFORMATION RIGHTS. Each Holder, if included in any Registration, shall
------------------
furnish to the Company such written information regarding Holder as the Company
may reasonably request in writing and as shall be required in connection with
any registration, qualification, or compliance referred to in this Agreement.
7. RULE 144 COVENANTS. With a view to making available the benefits of
------------------
certain rules and regulations of the Commission that may permit the sale of
restricted securities to the public without registration, the Company agrees to:
-22-
a. Make and keep available public information regarding the Company,
as those terms are understood and defined in Rule 144 under the Securities Act
(at all times from and after ninety (90) days following the effective date of
the first registration under Securities Act filed by the Company for an offering
of securities to the general public);
b. 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
c. Furnish to each Holder, as long as such Holder owns any Registrable
Securities or rights to acquire Warrant Shares or Conversion Shares, forthwith
upon written request (i) a written statement by the Company as to its compliance
with the reporting requirements of Rule 144 (at all times from and after ninety
(90) days following the effective date of the first registration under
Securities Act filed by the Company for an offering of securities to the general
public), and of the Securities Act and the Exchange Act (at any time after it
has become subject to such reporting requirements), (ii) a copy of the most
recent annual or quarterly report of the Company, and (iii) such other reports
and documents so filed as a Holder may reasonably request in availing itself of
any rule or regulation of the Commission allowing a Holder to sell any such
securities without registration.
8. SALE DURING REGISTRATION. No Holder may sell any Class A Common Stock
------------------------
of the Company under Rule 144 or otherwise pursuant to a transaction exempt from
registration during the period beginning on the earlier of:
(a) ten (10) days prior to the date any registration statement is filed
with the Commission by the Company (provided that the Company provides to
Holder written notice of the Company's good faith intention to file a
registration statement on the date specified in such notice, all of which
information Holder agrees to maintain in strict confidence until such
registration statement shall be filed with the Commission); or
(b) the date of Holder's receipt of written notice from the Company that
the Company has filed a registration statement with the Commission on the
date specified in such notice as the filing date; or
(c) the termination of Holder's participation in the offering
contemplated by the registration statement filed by the Company;
and ending on the earlier of (i) ninety (90) days after the effective date of
such registration, (ii) one-hundred twenty (120) days after the date of filing
if such registration has not become
-23-
effective by that time, or (iii) the date when any directors or executive
officers or other affiliate of the Company sell Class A Common Stock under Rule
144 or otherwise pursuant to a transaction exempt from registration.
Notwithstanding anything seemingly to the contrary set forth in this SECTION 8,
the restrictions on sale set forth in this Section shall not apply to (A) the
Shelf Registration, or (B) with respect to the CIBC Demand, to any Holder other
than the EUFCC Holders, the Onyx Holders, the AmeriTel Holders and Regent
Capital Equity Partners, L.P. (excluding Regent Capital Equity Partners, L.P.'s
permitted transferees and assigns), but in the case of this clause (B), such
sale restrictions on Regent Capital Equity Partners, L.P. shall not apply to an
amount of shares of Class A Common Stock equal to twenty-five percent (25%) of
the Class A Common Stock held by Regent Capital Equity Partners, L.P. on the
Closing Date.
9. RESTRICTIONS ON PUBLIC SALE BY THE COMPANY AND OTHERS. The Company
-----------------------------------------------------
agrees:
a. not to effect any public or private sale or distribution of its
equity securities, including a sale pursuant to Regulation D under the
Securities Act, during the 10-day period prior to, and during the 90-day period
beginning on, the effective date of a registration statement filed under SECTION
2a., SECTION 2c. or SECTION 2g. hereof or the commencement of the public
distribution of securities to the extent timely notified in writing by a holder
of Registrable Securities covered by such registration statement or the managing
underwriters (the "Holdback Period") (except as part of such underwritten
registration or pursuant to registrations on Forms S-4 or S-8 or any successor
form to such Forms), and
b. to cause each holder of its privately placed equity securities
issued by the Company at any time on or after the date of this Agreement to
agree not to effect any public sale or distribution of any such securities
during the Holdback Period, including a sale pursuant to Rule 144 under the
Securities Act (except as part of such underwritten registration, if permitted).
Notwithstanding anything seemingly to the contrary set forth in clause b. of
this SECTION 9, (i) the restrictions on sale by holders set forth in such clause
shall not apply to the Shelf Registration and (ii) this SECTION 9 is not
intended to restrict the rights granted to Holders in the last sentence of
SECTION 8 to sell Class A Common Stock.
10. NOTICES. All notices and other communication provided for hereunder
-------
shall be in writing and shall be sent by in person delivery, overnight delivery,
or certified or registered mail: (a) if to the Company, to:
c/o Xxxxxx Xxxx Xxxxxxx Capital Corporation
0000 Xxxxxx Xxxxx Xxxx., Xxxxx 0000
Xxxxxx, Xxxxx 00000
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Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxxx
and (b) if to Holder of the Registrable Securities, to the address of Holder as
shown in the stock record books of the Company, or to such other address as any
of the above shall have designated in writing to the Company. All such notice
and communication shall be deemed to have been given or made (a) when delivered
in person, (b) one (1) day after being sent by overnight delivery service, or
(c) three (3) business days after the date of mailing when sent by United States
registered or certified mail to the address referenced in this SECTION 10.
11. DESCRIPTIVE HEADINGS. The headings in this Agreement are for
--------------------
convenience only and shall not limit or otherwise affect the interpretation or
construction of this Agreement.
12. SEVERABILITY. If for any reason any provision of this Agreement shall
------------
be held invalid or unenforceable in whole or in part in any jurisdiction, such
provisions shall, as to such jurisdiction, be ineffective to the extent of such
invalidity or unenforceability without in any manner affecting the validity or
enforceability thereof in any other jurisdiction or the remaining provisions
hereof in any jurisdiction.
13. AMENDMENTS, ETC. No amendment or waiver of any provision of this
---------------
Agreement shall be effective unless the same shall be in writing and signed by
each of CIBC, Regent Capital Equity Partners, L.P., EUFCC Holders and the Xxxxxx
Holders (but only for so long as it has the right to designate a director under
the Shareholder Agreement), and by a majority-in-interest of the other Holders.
Any such waiver or consent shall be effective only in the specific instance and
for the specific purpose given. No failure on the part of any party to this
Agreement to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof or preclude any other or further exercise thereof or
the exercise of any other right.
14. COUNTERPARTS. This Agreement may be executed in any number of
------------
counterparts, all of which when taken together shall constitute one and the same
instrument.
15. ASSIGNMENT AND CONSOLIDATION OR MERGER.
--------------------------------------
a. ASSIGNMENT. This Agreement may only be assigned, transferred or
----------
otherwise conveyed by Holder in accordance with the terms, restrictions and
requirements of the Shareholders Agreement. Any attempted assignment, transfer
or conveyance in violation of the provisions of this Agreement or the
Shareholder Agreement shall be void. The rights under this Agreement may be
transferred by a Holder in connection with such Holder's assignment of Capital
Stock to an Affiliate of the Holder or any limited partner of such Holder. The
exercise of rights pursuant
-25-
to this Agreement is limited to the Holder hereof, any owners of beneficial
interests in any Holder executing this Agreement, and those who obtained any
purported rights hereunder in compliance with all assignment, transfer or
conveyance restrictions contained in the Shareholders Agreement and this
Agreement. This Agreement shall be binding upon and inure to the benefit of the
respective successors and permitted assigns of the Company and the Holder.
b. MERGER OR CONSOLIDATION. In the case of any consolidation or
-----------------------
merger of the Company with or into another corporation, the consolidation of the
Company with or the merger of the Company with or into any other person, or in
the event of the sale or other transfer of all or substantially all of the
assets of the Company to any other person, then in each case the rights granted
to Holder by this Agreement shall survive such consolidation, merger, sale or
other transfer and shall thereafter be enforceable against the entity succeeding
as to the rights and obligations of Company hereunder.
16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations,
------------------------------------------
warranties, covenants and agreements of the Company and of each Holder contained
herein or made pursuant to this Agreement shall survive the execution and
delivery of this Agreement.
17. ATTORNEYS' FEES. If any action or proceeding is brought to enforce the
---------------
terms of the Agreement, the prevailing party shall be entitled to reasonable
attorneys' fees and costs.
18. GOVERNING LAW. This Agreement shall be governed by, and interpreted and
-------------
construed in accordance with the laws of the State of Delaware.
19. WAIVER OF JURY TRIAL. The parties waive the right to a jury trial with
--------------------
respect to any controversy or claim between or among the parties hereto,
including but not limited to those arising out of or relating to this Agreement,
including any claim based on or arising from an alleged tort.
20. TIME OF THE ESSENCE. Time is of the essence in performing and
-------------------
interpreting this Agreement.
21. FURTHER ASSURANCES. The Company and each Holder hereby agree promptly
------------------
to execute at the other's reasonable request after the date hereof any documents
or materials related to the transactions contemplated by this Agreement.
22. SPECIFIC PERFORMANCE. Each of the parties shall be entitled to specific
--------------------
performance in the event of a breach by the other party of their respective
obligations hereunder. Such remedy shall be in addition to, but shall not
replace, any other remedies which might be available under this Agreement, at
law or in equity, including without limitation, actions for attorney's fees.
-26-
23. REPRESENTATIONS OF COMPANY. The Company represents and warrants to each
--------------------------
Holder as follows:
(a) CORPORATE ORGANIZATION AND GOOD STANDING. The Company is a
----------------------------------------
corporation duly organized, validly existing, and in good standing under the
laws of the State of Delaware, and is duly qualified and in good standing in all
other states where the nature of its business or operations or the ownership of
its property requires such qualification.
(b) CORPORATE APPROVAL. The Company has full corporate power and
------------------
authority to execute and deliver this Agreement and all other documents and
agreements to be executed and delivered by it hereunder ("Transaction
Documents") and to consummate the transactions contemplated hereby. The board
of directors of the Company has duly and validly approved the execution,
delivery, and performance of this Agreement and the transactions contemplated
herein. No other corporate or legal proceedings on the part of the Company are
necessary to approve and authorize the execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby. This Agreement
constitutes, and the other Transaction Documents, when executed, will
constitute, the legal, valid, and binding obligation and agreement of the
Company enforceable against the Company in accordance with its terms, subject
only to the general law of creditors' rights.
24. NO CONFLICTING AGREEMENTS. The Company has not entered into, and will
-------------------------
not enter into, any agreement that conflicts with the rights granted to the
holders of Registrable Securities in this Agreement.
-27-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first written above.
XXXXXX HOLDINGS, INC., a Delaware
corporation
By: /s/ XXXXXX X. XXXX
------------------------------
Name: Xxxxxx X. Xxxx
Title: President
-----------------------------------
By:
--------------------------------
Name:
Title:
-28-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first written above.
XXXXXX HOLDINGS, INC., a Delaware
corporation
By:
---------------------------------
Name:
Title:
/s/ XXXXXX X. XXXXXX
------------------------------------
Xxxxxx X. Xxxxxx
-29-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first written above.
XXXXXX HOLDINGS, INC., a Delaware
corporation
By:
---------------------------------
Name:
Title:
/s/ XXXXXX X. XXXXXX, XX.
------------------------------------
Xxxxxx X. Xxxxxx, Xx.
-30-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first written above.
XXXXXX HOLDINGS, INC., a Delaware
corporation
By:
---------------------------------
Name:
Title:
/s/ XXXXX X. XXXXXXX
------------------------------------
Xxxxx X. Xxxxxxx
-31-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first written above.
XXXXXX HOLDINGS, INC., a Delaware
corporation
By:
---------------------------------
Name:
Title:
CIBC WOOD GUNDY VENTURES, INC.
By: /s/ XXXXX XXXXXXX
---------------------------------
Name: Xxxxx Xxxxxxx
Title: Director, Secretary
-32-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first written above.
XXXXXX HOLDINGS, INC., a Delaware
corporation
By:
---------------------------------
Name:
Title:
/s/ XXXXX XXXXXXX
------------------------------------
Xxxxx Xxxxxxx
-33-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first written above.
XXXXXX HOLDINGS, INC., a Delaware
corporation
By:
---------------------------------
Name:
Title:
/s/ XXXX X. XXXXXXX
------------------------------------
Xxxx X. Xxxxxxx
-34-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first written above.
XXXXXX HOLDINGS, INC., a Delaware
corporation
By:
---------------------------------
Name:
Title:
/s/ XXXXXX X. XXXXX
------------------------------------
Xxxxxx X. Xxxxx
-35-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first written above.
XXXXXX HOLDINGS, INC., a Delaware
corporation
By:
---------------------------------
Name:
Title:
/s/ T. XXXXXXX XXXXXXXX
------------------------------------
T. Xxxxxxx Xxxxxxxx
-36-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first written above.
XXXXXX HOLDINGS, INC., a Delaware
corporation
By:
---------------------------------
Name:
Title:
/s/ XXXXXXX X. XXXXX, XX.
------------------------------------
Xxxxxxx X. Xxxxx, Xx.
-37-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first written above.
XXXXXX HOLDINGS, INC., a Delaware
corporation
By:
---------------------------------
Name:
Title:
/s/ XXXXX X. XXXXXX
------------------------------------
Xxxxx X. Xxxxxx
-38-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first written above.
XXXXXX HOLDINGS, INC., a Delaware
corporation
By:
---------------------------------
Name:
Title:
/s/ XXXXX X. XXXXXX
------------------------------------
Xxxxx X. Xxxxxx
-39-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first written above.
XXXXXX HOLDINGS, INC., a Delaware
corporation
By:
---------------------------------
Name:
Title:
/s/ XXXX X. XXXX
------------------------------------
Xxxx X. Xxxx
-40-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first written above.
XXXXXX HOLDINGS, INC., a Delaware
corporation
By:
---------------------------------
Name:
Title:
/s/ XXXX X. XXXXX
------------------------------------
Xxxx X. Xxxxx
-41-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first written above.
XXXXXX HOLDINGS, INC., a Delaware
corporation
By:
---------------------------------
Name:
Title:
/s/ XXXXX X. XXXXXX
------------------------------------
Xxxxx X. Xxxxxx
-42-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first written above.
XXXXXX HOLDINGS, INC., a Delaware
corporation
By:
---------------------------------
Name:
Title:
/s/ XXXXXX X. XXXX
------------------------------------
Xxxxxx X. Xxxx
-43-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first written above.
XXXXXX HOLDINGS, INC., a Delaware
corporation
By:
---------------------------------
Name:
Title:
/s/ XXXX X. XXXXXXX
------------------------------------
Xxxx X. Xxxxxxx
-44-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first written above.
XXXXXX HOLDINGS, INC., a Delaware
corporation
By:
---------------------------------
Name:
Title:
ONYX XXXXXX PARTNERS, L.P.
By: Onyx Partners, Inc.
By: /s/ XXXXX X. XXXXX
----------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
-45-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first written above.
XXXXXX HOLDINGS, INC., a Delaware
corporation
By:
---------------------------------
Name:
Title:
SACHS INVESTMENT PARTNERS
By: /s/ XXXXX X. XXXXX
---------------------------------
Name: Xxxxx X. Xxxxx
Title: General Partner
-46-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first written above.
XXXXXX HOLDINGS, INC., a Delaware
corporation
By:
---------------------------------
Name:
Title:
REGENT CAPTIAL EQUITY PARTNERS, L.P.
By: Regent Capital Partners, L.P.,
as general partner
By: Regent Capital Holdings, Inc.,
as general partner
By: /s/ XXXX XXXXXXXX
---------------------------
Name: Xxxx XxXxxxxx
Title: Managing Director
-47-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first written above.
XXXXXX HOLDINGS, INC., a Delaware
corporation
By:
---------------------------------
Name:
Title:
XXXXXXX & XXXXX XXXXX AS TRUSTEES
FOR THE XXXXXXX & XXXXX XXXXX
FAMILY TRUST DTD 12/17/86
By: /s/ XXXXXXX X. XXXXX
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Trustee
-48-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first written above.
XXXXXX HOLDINGS, INC., a Delaware
corporation
By:
---------------------------------
Name:
Title:
/s/ XXXXXXX X. XXXXXX
------------------------------------
Xxxxxxx X. Xxxxxx
-49-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first written above.
XXXXXX HOLDINGS, INC., a Delaware
corporation
By:
---------------------------------
Name:
Title:
MAISS FAMILY PARTNERSHIP, L.P.
By: /s/ XXXX XXXXX
---------------------------------
Name: Xxxx Xxxxx
Title: General Partner
-50-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first written above.
XXXXXX HOLDINGS, INC., a Delaware
corporation
By:
---------------------------------
Name:
Title:
/s/ NOBATAKA MUTAGUCHI
------------------------------------
Nobataka Mutaguchi
-51-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first written above.
XXXXXX HOLDINGS, INC., a Delaware
corporation
By:
---------------------------------
Name:
Title:
/s/ SADAFUMI TAKAKUBO
------------------------------------
Sadafumi Takakubo
-52-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first written above.
XXXXXX HOLDINGS, INC., a Delaware
corporation
By:
---------------------------------
Name:
Title:
/s/ XXXXXX XXXX
------------------------------------
Xxxxxx Xxxx
-53-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first written above.
XXXXXX HOLDINGS, INC., a Delaware
corporation
By:
---------------------------------
Name:
Title:
CAPITAL ALLIANCE CORPORATION
By: /s/ XXXXXX X. XXXXXX
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
-54-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first written above.
XXXXXX HOLDINGS, INC., a Delaware
corporation
By:
---------------------------------
Name:
Title:
/s/ XXXXX X. XXXXXX
------------------------------------
Xxxxx X. Xxxxxx
-55-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first written above.
XXXXXX HOLDINGS, INC., a Delaware
corporation
By:
---------------------------------
Name:
Title:
XXXXXXXX CAPITAL GROUP
By: /s/ XXXXX XXXXXXXX
---------------------------------
Name: Xxxxx Xxxxxxxx
Title: Partner
-56-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first written above.
XXXXXX HOLDINGS, INC., a Delaware
corporation
By:
---------------------------------
Name:
Title:
XXXXX X. XXXXX, TRUSTEE
XXXXX X. XXXXX REVOCABLE TRUST
DATED 12/15/95
By: /s/ XXXXX X. XXXXX, TRUSTEE
---------------------------------
Name: Xxxxx X. Xxxxx
Title: Trustee
-57-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first written above.
XXXXXX HOLDINGS, INC., a Delaware
corporation
By:
---------------------------------
Name:
Title:
TARRAGONA FUND, INC.
By: /s/ X.X. XXXXXXX
---------------------------------
Name: X.X. Xxxxxxx
Title: Director
By: /s/ XXXXXXX X. XXXXXXX
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Director
-58-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first written above.
XXXXXX HOLDINGS, INC., a Delaware
corporation
By:
---------------------------------
Name:
Title:
BONNINGTON CORPORATION
By: /s/ XXXXXXX X. XXXXXX
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
-59-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first written above.
XXXXXX HOLDINGS, INC., a Delaware
corporation
By:
---------------------------------
Name:
Title:
/s/ XXXXX X. XXXXXXX
------------------------------------
Xxxxx X. Xxxxxxx
/s/ XXX XXXXXXX
------------------------------------
Xxx Xxxxxxx
-60-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first written above.
XXXXXX HOLDINGS, INC., a Delaware
corporation
By:
---------------------------------
Name:
Title:
XXXX INVESTMENTS LLP
By: /s/ XXXXX XXXX
---------------------------------
Name: Xxxxx Xxxx
Title: President
-61-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first written above.
XXXXXX HOLDINGS, INC., a Delaware
corporation
By:
---------------------------------
Name:
Title:
By: /s/ XXXX X. XXXXXXXX
---------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Beneficiary
FIELD TELECOMMS PROFIT
SHARING PLAN
By: /s/ XXXX X. XXXXXXXX
---------------------------------
Name: Xxxx X. Xxxxxxxx
Title: President/Trustee
-62-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first written above.
XXXXXX HOLDINGS, INC., a Delaware
corporation
By:
---------------------------------
Name:
Title:
/s/ XXXXXXXX X. XXXX, XX.
------------------------------------
Xxxxxxxx X. Xxxx, Xx.
-63-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first written above.
XXXXXX HOLDINGS, INC., a Delaware
corporation
By:
---------------------------------
Name:
Title:
/s/ XXXXXX X. XXXXXXXX
------------------------------------
Xxxxxx X. Xxxxxxxx
-64-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first written above.
XXXXXX HOLDINGS, INC., a Delaware
corporation
By:
---------------------------------
Name:
Title:
/s/ XXXX X. XXXX
------------------------------------
Xxxx X. Xxxx
-65-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first written above.
XXXXXX HOLDINGS, INC., a Delaware
corporation
By:
---------------------------------
Name:
Title:
/s/ XXXX XXXXXX
------------------------------------
Xxxx Xxxxxx
-66-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first written above.
XXXXXX HOLDINGS, INC., a Delaware
corporation
By:
---------------------------------
Name:
Title:
THE XXXXXX FAMILY TRUST
DATED 10/13/92
By: /s/ XXX XXXXXX
---------------------------------
Name: Xxx Xxxxxx
Title: Trustee
-67-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first written above.
XXXXXX HOLDINGS, INC., a Delaware
corporation
By:
---------------------------------
Name:
Title:
/s/ XXXXXX X. XXXXXXX, M.D.
------------------------------------
Xxxxxx X. Xxxxxxx, M.D.
-68-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first written above.
XXXXXX HOLDINGS, INC., a Delaware
corporation
By:
---------------------------------
Name:
Title:
/s/ XXXX X. XXXXXXX
------------------------------------
Xxxx X. Xxxxxxx
-69-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first written above.
XXXXXX HOLDINGS, INC., a Delaware
corporation
By:
---------------------------------
Name:
Title:
/s/ XXXX X. XXXXXXXXX
------------------------------------
Xxxx X. Xxxxxxxxx
-70-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first written above.
XXXXXX HOLDINGS, INC., a Delaware
corporation
By:
---------------------------------
Name:
Title:
/s/ XXXX X. XXXXXXXXX
------------------------------------
Xxxx X. Xxxxxxxxx
-71-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first written above.
XXXXXX HOLDINGS, INC., a Delaware
corporation
By:
---------------------------------
Name:
Title:
XXXXXXX XXXXXXXX INTERVIVOS
TRUST DATED 7/6/91
By: /s/ XXXXXXX XXXXXXXX
---------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Trustee
-72-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first written above.
XXXXXX HOLDINGS, INC., a Delaware
corporation
By:
---------------------------------
Name:
Title:
/s/ XXXX X. XXXXX, XX.
------------------------------------
Xxxx X. Xxxxx, Xx.
-73-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first written above.
XXXXXX HOLDINGS, INC., a Delaware
corporation
By:
---------------------------------
Name:
Title:
/s/ XXXXX X. XXXXX
------------------------------------
Xxxxx X. Xxxxx
-74-
EXHIBIT A
---------
to Registration Rights Agreement
HOLDER SECURITIES
------ ----------
Xxxxxx X. Xxxxxx Class A Common Stock
Xxxxxx X. Xxxxxx, Xx. Class A Common Stock
Xxxxx X. Xxxxxxx Class A Common Stock
CIBC Wood Gundy Ventures, Inc. Class A Common Stock
Xxxxx X. Xxxxxxx Class A Common Stock
Xxxx X. Xxxxxxx Class A Common Stock
Xxxxxxx X. Xxxxx, Xx. Class A Common Stock
Xxxxxx X. Xxxxx Class A Common Stock
T. Xxxxxxx Xxxxxxxx Class A Common Stock
Xxxxx X. Xxxxxx Class A Common Stock
Xxxxx X. Xxxxxx Class A Common Stock
Xxxx X. Xxxx Class A Common Stock
Xxxx X. Xxxxx Class A Common Stock
Xxxxx X. Xxxxxx Class A Common Stock
Sachs Investment Partners Class A Common Stock
Regent Capital Equity Partners, L.P. Class A Common Stock
Xxxxxxx X. Xxxxx & Xxxxx Xxxxx as
trustees for The Xxxxxxx and Xxxxx
Xxxxx Family Trust DTD 12/17/86 Class A Common Stock
Xxxxxxx X. Xxxxxx Class A Common Stock
Maiss Family Partnership, L.P. Class A Common Stock
Nobutaka Mutaguchi Class A Common Stock
Sadafumi Takakubo Class A Common Stock
Xxxxxx Xxxx Class A Common Stock
Capital Alliance Corporation Class A Common Stock
Xxxxx X. Xxxxxx Class A Common Stock
Xxxxxxxx Capital Group Class A Common Stock
Xxxxx X. Xxxxx, Trustee,
Xxxxx X. Xxxxx Revocable
Trust DTD 12/15/95 Class A Common Stock
Tarragona Fund, Inc. Class A Common Stock
Page 1 of 3
Bonnington Corp. Class A Common Stock
Xxxxx and Xxx Xxxxxxx Class A Common Stock
Xxxx Investments Class A Common Stock
Field Telecomms Inc. Profit
Sharing FBO Xxxx X. Xxxxxxxx Class A Common Stock
Xxxxxxxx X. Xxxx, Xx. Class A Common Stock
Xxxxxx X. Xxxxxxxx Class A Common Stock
Xxxx X. Xxxx Class A Common Stock
Xxxx Xxxxxx Class A Common Stock
Xxx Xxxxxx, Trustee or Xxxxxx Xxxxxx,
Trustee Xxxxxx Family Trust
Dated 10/13/92 Class A Common Stock
Xxxxxx X. Xxxxxxx, M.D. Class A Common Stock
Xxxx X. Xxxxxxx Class A Common Stock
Xxxx X. Xxxxxxxxx Class A Common Stock
Xxxx and Curran Danderand Class A Common Stock
Xxxxxxx Xxxxxxxx as Trustee of the
Xxxxxxx Xxxxxxxx Intervivos Trust
dated 7/6/91 Class A Common Stock
Xxxx X. Xxxxx, Xx. Class A Common Stock
Xxxxx Xxxxx Class A Common Stock
Xxxxx X. Xxxxxx Class B Common Stock
Xxxxxx X. Xxxx Class B Common Stock
Xxxx X. Xxxxxxx Class B Common Stock
Onyx Xxxxxx Partners, L.P. Class B Common Stock
Xxxxxx X. Xxxx Warrants to Acquire
Class A Common Stock
Xxxxx X. Xxxxxx Warrants to Acquire
Class A Common Stock
Xxxx X. Xxxxxxx Warrants to Acquire
Class A Common Stock
Page 2 of 3
Onyx Xxxxxx Partners, L.P. Warrants to Acquire
Class A Common Stock
CIBC Wood Gundy Ventures, Inc. Warrants to Acquire
Class A Common Stock
CIBC Wood Gundy Ventures, Inc. Contingent Warrants
to Acquire
Class A Common Stock
Xxxxxx X. Xxxxxx, Contingent Warrants
Xxxxxx X. Xxxxxx, Xx. and to Acquire
Xxxxx X. Xxxxxxx Class A Common Stock
Regent Capital Equity Contingent Warrants
Partners, L.P. to Acquire
Class A Common Stock
Page 3 of 3
