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REGISTRATION RIGHTS AGREEMENT
dated as of July 28, 1999
among
CLASSIC COMMUNICATIONS, INC.,
BRERA CLASSIC, LLC,
and
the additional parties named herein.
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TABLE OF CONTENTS
Page
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SECTION 1. DEFINITIONS
1.1 Capitalized Terms......................................................................2
1.2 Defined Terms..........................................................................2
1.3 General Interpretive Principles........................................................6
SECTION 2. REGISTRATION RIGHTS
2.1 Demand Registrations...................................................................7
2.2 Piggyback Registrations...............................................................12
2.3 Lock-Up Period for the Company and Others.............................................14
2.4 Registration Procedures...............................................................15
2.5 Underwritten Offerings................................................................23
2.6 No Inconsistent Agreements; Additional Rights.........................................24
2.7 Registration Expenses.................................................................24
2.8 Indemnification.......................................................................26
2.9 Rules 144 and 144A....................................................................30
SECTION 3. MISCELLANEOUS
3.1 Entire Agreement......................................................................31
3.2 Injunctive Relief.....................................................................31
3.3 Attorneys' Fees.......................................................................31
3.4 Notices...............................................................................31
3.5 Successors, Assigns and Transferees...................................................33
3.6 Headings..............................................................................33
3.7 Severability..........................................................................33
3.8 Amendment; Waiver.....................................................................34
3.9 Counterparts..........................................................................34
3.10 Representations and Warranties........................................................34
3.11 Governing Law.........................................................................34
3.12 Consent to Jurisdiction and Service of Process; Appointment
of Agent for Service of Process.......................................................35
3.13 Waiver of Jury Trial..................................................................36
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REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of
July __, 1999, is by and among Classic Communications, Inc., a Delaware
corporation (the "Company"), Brera Classic, LLC, a Delaware limited liability
company ("Brera"), J. Xxxxxxx Xxxxxxx ("Xxxxxxx"), Xxxxxx X. Seach ("Seach") and
Xxxxx X. Xxxxxxxx ("Xxxxxxxx") (Xxxxxxx, Seach, and Xxxxxxxx are collectively
referred to as the "Management Stockholders" and individually as a "Management
Stockholder"), BT Capital Partners, Inc., a Delaware corporation ("BT Capital"),
Union Bancal Venture Corporation, a Delaware corporation ("Union Bancal"),
Austin Ventures, L.P., a Delaware limited partnership ("Austin"), Austin
Ventures III-A, L.P., a Delaware limited partnership ("Austin III-A"), Austin
Ventures III-B, L.P., a Delaware limited partnership ("Austin III-B"), Texas
Growth Fund, a trust fund created by the Constitution of the State of Texas
("Growth Fund"), and BA SBIC Management, L.L.C., successor in interest to
NationsBanc Capital Corp., a Texas Corporation ("BA SBIC"), (BT Capital, Union
Bancal, Austin, Austin III-A, Austin III-B, Growth Fund and BA SBIC are
collectively referred to as the "Current Investors" and individually as a
"Current Investor"). The parties (other than the Company) and any Person who
hereafter acquires shares of Equity Securities (as defined herein) pursuant to
the provisions of, and subject to the restrictions and rights set forth in, this
Agreement, shall sometimes hereinafter be referred to individually as a
"Stockholder" and collectively as the "Stockholders."
A. WHEREAS, the Company and Brera have entered into an
Investment Agreement, dated as of May 24, 1999 (the "Investment Agreement"),
pursuant to which Brera has agreed to purchase, in the aggregate, from the
Company, and the Company has agreed to issue and sell to Brera, 6,490,734 shares
of voting common stock, par value $0.01 per share (the "Voting Common Stock"),
of the Company;
B. WHEREAS, as an inducement to Brera entering into the
Investment Agreement, Brera has required that the Company agree, and the Company
has agreed, to provide the registration rights set forth in this Agreement;
C. WHEREAS, this Agreement supercedes that certain Amended
Registration Rights Agreement, dated as of October 31, 1995, among the Company
and certain stockholders.
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D. WHEREAS, this Agreement shall not become effective until
completion of the Closing.
NOW, THEREFORE, in consideration of the foregoing and the
mutual premises, covenants and agreements of the parties hereto, and for other
good and valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. DEFINITIONS.
1.1 Capitalized Terms. Capitalized terms used but not defined
herein shall have the respective meanings given to them in the Investment
Agreement.
1.2 Defined Terms. As used in this Agreement, the following
terms shall have the following meanings:
"Adverse Disclosure" means public disclosure of material
non-public information, which disclosure in the Board's good faith judgment
after consultation with counsel to the Company (i) would be required to be made
in any registration statement filed with the SEC by the Company so that such
registration statement would not be materially misleading; (ii) would not be
required to be made at such time but for the filing of such registration
statement; and (iii) the Company has a bona fide business purpose for not
disclosing publicly.
"Affiliate", as applied to any Person, means any other Person
directly or indirectly controlling, controlled by or under common control with
that Person. The term "control" (including, with correlative meanings, the terms
"controlling," "controlled by" and "under common control with"), as applied to
any Person, means the possession, directly or indirectly, of power to direct the
management and policies of that Person, whether through voting power, by
contract or otherwise.
"Agreement" has the meaning set forth in the preamble hereto.
"Brera" has the meaning set forth in the preamble hereto.
"Brera Registrable Securities" means any Common Stock held by
or issuable to Brera, and any securities that may be issued or distributed or be
issuable in respect of any Brera Registrable Securities by way of stock
dividend, stock split or other distribution, merger, consolidation, exchange
offer, recapitalization or reclassification or similar transaction; provided,
however, that any such Brera Registrable
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Securities shall cease to be Brera Registrable Securities to the extent a
Registration Statement with respect to the sale of such Brera Registrable
Securities has been declared effective under the Securities Act and such Brera
Registrable Securities have been disposed of in accordance with the plan of
distribution set forth in such Registration Statement. Unless otherwise provided
herein, a percentage (or a majority) of the Brera Registrable Securities shall
be determined based on the number of securities remaining unregistered.
"Board" means the board of directors of the Company.
"Business Day" has the meaning set forth in the Investment
Agreement.
"Closing" has the meaning set forth in the Investment
Agreement.
"Closing Date" has the meaning set forth in the Investment
Agreement.
"Common Stock" means the Voting Common Stock and non-voting
Common Stock, par value $0.01 per share, of the Company.
"Company" has the meaning set forth in the preamble and
includes the Company's successors by merger, acquisition, reorganization or
otherwise.
"Company Public Sale" has the meaning set forth in
Section 2.2(a).
"Current Investors" has the meaning set forth in the preamble
hereto.
"Current Investors Registrable Securities" means any Common
Stock held by or issuable to the Current Investors, and any securities that may
be issued or distributed or be issuable in respect of any Current Investors
Registrable Securities by way of stock dividend, stock split or other
distribution, merger, consolidation, exchange offer, recapitalization or
reclassification or similar transaction; provided, however, that any such
Current Investors Registrable Securities shall cease to be Current Investors
Registrable Securities to the extent a Registration Statement with respect to
the sale of such Current Investors Registrable Securities has been declared
effective under the Securities Act and such Current Investors Registrable
Securities have been disposed of in accordance with the plan of distribution set
forth in such Registration Statement. Unless otherwise provided herein, a
percentage (or a majority) of the Current Investors Registrable Securities shall
be determined based on the number of securities remaining unregistered.
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"Demand Notice" has the meaning set forth in Section 2.1(f).
"Demand Period" has the meaning set forth in Section 2.1(e).
"Demand Registration" has the meaning set forth in
Section 2.1(a)(iii).
"Demand Registration Statement" has the meaning set forth in
Section 2.1(a).
"Equity Securities" has the meaning set forth in the
Investment Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and any successor thereto, and any rules and regulations promulgated
thereunder, all as the same shall be in effect from time to time.
A "holder" or "holders" means, unless the context otherwise
requires, any holder or holders of Registrable Securities (whether or not
acquired pursuant to the Investment Agreement) who is a party hereto or who
otherwise agrees in writing to be bound by the provisions of this Agreement.
"Indemnified Company Parties" has the meaning set forth in
Section 2.8(b).
"Indemnified Holder Parties" has the meaning set forth in
Section 2.8(a).
"Initial Public Offering" means a registered offering of
Common Stock that results in net proceeds to the Company of at least $100
million and listing of the Common Stock on a national securities exchange or the
Nasdaq Stock Market's National Market.
"Investment Agreement" has the meaning set forth in the
recitals.
"Long-Form Registration" has the meaning set forth in Section
2.1(a)(i).
"Long-Form Demand Registration" has the meaning set forth in
Section 2.1(a)(iii).
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"Loss" has the meaning set forth in Section 2.8(a).
"NASD" means the National Association of Securities
Dealers, Inc.
"Person" means any individual, firm, limited liability company
or partnership, joint venture, corporation, joint stock company, trust or
unincorporated organization, incorporated or unincorporated association,
government (or any department, agency or political subdivision thereof) or other
entity of any kind, and shall include any successor (by merger or otherwise) of
such entity.
"Piggyback Registration" has the meaning set forth in
Section 2.2(a).
"Prospectus" means the prospectus included in any Registration
Statement as amended or supplemented by any prospectus supplement with respect
to the terms of the offering of any portion of the Registrable Securities
covered by the Registration Statement and all other amendments and supplements
to the prospectus, including post-effective amendments and all other material
incorporated by reference in such prospectus.
"Registrable Securities" means the Brera Registrable
Securities and the Current Investors Registrable Securities. For purposes of
this Agreement, a "class" of Registrable Securities means the Brera Registrable
Securities or the Current Investors Registrable Securities, as applicable.
"Registration" means a registration of the Company's
securities for sale to the public under a Registration Statement.
"Registration Expenses" has the meaning set forth in
Section 2.7(a).
"Registration Statement" means any registration statement of
the Company filed with, or to be filed with, the SEC under the rules and
regulations promulgated under the Securities Act, including the Prospectus,
amendments and supplements to such registration statement, including
post-effective amendments, and all exhibits and all material incorporated by
reference in such registration statement.
"Requesting Class" has the meaning set forth in
Section 2.1(i).
"SEC" means the Securities and Exchange Commission.
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"Securities Act" means the Securities Act of 1933, as amended,
and any successor thereto, and any rules and regulations promulgated thereunder,
all as the same shall be in effect from time to time.
"Short-Form Registration" has the meaning set forth in Section
2.1(a)(i).
"Short-Form Demand Registration" has the meaning set forth in
Section 2.1(a)(iii).
"Underwritten Offering" means a Registration in which
securities of the Company are sold to an underwriter on a firm commitment basis
for reoffering to the public.
"Voting Common Stock" means the voting Common Stock, par value
$.01 per share, of the Company
1.3 General Interpretive Principles. Whenever used in this
Agreement, except as otherwise expressly provided or unless the context
otherwise requires, any noun or pronoun shall be deemed to include the plural as
well as the singular and to cover all genders. The name assigned this Agreement
and the section captions used herein are for convenience of reference only and
shall not be construed to affect the meaning, construction or effect hereof.
Unless otherwise specified, the terms "hereof," "herein" and similar terms refer
to this Agreement as a whole (including the exhibits, schedules and disclosure
statements hereto), and references herein to Sections refer to Sections of this
Agreement.
SECTION 2. REGISTRATION RIGHTS.
2.1 Demand Registrations.
(a) Demand by Holders. (i) At any time after the
earlier of (x) the Company's Initial Public Offering and (y) the date which is
three years after the Closing Date, but in no event within one hundred eighty
(180) days of the effective date of a Registration Statement, the holder or
holders of twenty (20%) or more of the Brera Registrable Securities at any time
may request Registration under the Securities Act of all or part of their Brera
Registrable Securities on Form S-1 or any similar long-form registration
("Long-Form Registration") or, if available, on Form S- 3 or any similar
short-form registration ("Short-Form Registration") by delivering a written
notice to the Company to that effect; provided, however, that the aggregate
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offering value of the Brera Registrable Securities requested to be registered in
any such Registration must be reasonably expected to equal at least $10,000,000.
(ii) At any time after the earlier of (x) the
Company's Initial Public Offering and (y) the date which is three years
after the Closing Date, but in no event within one hundred eighty (180)
days of the effective date of a Registration Statement, Current
Investors holding a majority of the Current Investors' Registrable
Securities at any time may request Registration under the Securities
Act of all or part of their Current Investors Registrable Securities on
any Long-Form Registration or, if available, any Short-Form
Registration by delivering a written notice to the Company to that
effect; provided, however, that the aggregate offering value of the
Current Investors Registrable Securities requested to be registered in
any such Registration must be reasonably expected to equal at least
$10,000,000.
(iii) Any Long-Form Registration and Short-Form
Registration requested pursuant to this Section 2.1(a), other than a
Registration in which the Company sells any of its securities in a
primary offering, are referred to herein, respectively, as a "Long-Form
Demand Registration" and a "Short-Form Demand Registration." All
Long-Form Demand Registrations and Short-Form Demand Registrations
shall collectively be referred to herein as "Demand Registrations."
Notwithstanding the foregoing, the Company will have the right to
register and sell any of its securities in a Registration requested
pursuant to this Section 2.1 (a) and all Registrations requested
pursuant to this Section 2.1(a) in which the Company sells any of its
securities in a primary offering, other than pursuant to an
over-allotment option granted to underwriters in connection with such
offering, shall not be deemed to be Demand Registrations and shall be
considered Piggyback Registrations and will be governed by Section 2.2.
Each request for a Demand Registration shall specify the kind and aggregate
amount of the class of Registrable Securities to be registered and the intended
methods of disposition thereof. Upon such request for a Demand Registration, the
Company shall file a Registration Statement relating to such Demand Registration
(the "Demand Registration Statement"), and shall use its best efforts promptly
to cause to become effective the Registration of such class of Registrable
Securities (and all other Registrable Securities which the Company has been
requested to register by any other holder pursuant to Section 2.1(f) hereof)
under (i) the Securities Act, and (ii) the
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"Blue Sky" laws of such jurisdictions as any holder of Registrable Securities
being registered under such Registration or any underwriter, if any, reasonably
requests.
(b) Long-Form Demand Registrations. A maximum of
four (4) Long-Form Demand Registrations may be requested by the holders of the
Brera Registrable Securities pursuant to subparagraph (i) of Section 2.1(a), and
a maximum of three (3) Long-Form Demand Registration may be requested by the
holders of the Current Investors Registrable Securities pursuant to subparagraph
(ii) of Section 2.1(a). A Registration will not count as a Long-Form Demand
Registration until it has become effective and unless the holders of Registrable
Securities initially requesting such Registration are able to register and sell
at least seventy-five percent (75%) of the Registrable Securities requested to
be included in such registration.
(c) Short-Form Demand Registrations. In addition to
the Long-Form Demand Registrations that may be requested pursuant to Section
2.1(b), the holders of Brera Registrable Securities and the Current Investors
Registrable Securities will each, as a class, be entitled to request, pursuant
and subject to the terms of Section 2.1(a), four (4) Short-Form Demand
Registrations. Once the Company has become subject to the reporting requirements
of the Securities Exchange Act, the Corporation will use its best efforts to
make Short-Form Demand Registrations available for the sale of Registrable
Securities.
(d) Demand Withdrawal. In the event that a Demand
Registration is requested under Section 2.1(a), and the holders of the class of
Registrable Securities later determine not to sell their Registrable Securities
in connection with the registration requested, then prompt notice shall be given
by such holders to the Company that the registration requested is no longer
required and that the request is thereby withdrawn. Upon receipt of such notice,
the Company shall cease all efforts to secure registration and shall take all
action necessary and reasonably practicable to prevent the commencement of
effectiveness for any registration statement that it is preparing or has
prepared in connection with the withdrawn request. Such registration shall be
deemed a Demand Registration for purposes of Sections 2.1(b) and (c) above,
unless the withdrawing holders shall have paid or reimbursed the Company for all
of the reasonable out-of-pocket fees and expenses incurred by the Company in
connection with the registration of such withdrawn Registrable Securities.
(e) Effective Registration. The Company shall be
deemed to have effected a Demand Registration if the Demand Registration
Statement is declared effective by the SEC and remains effective for not fewer
than 180 days (or such shorter period as will terminate when all Registrable
Securities covered by such
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Demand Registration Statement have been sold or withdrawn), or, if such
Registration Statement relates to an Underwritten Offering, such longer period
as in the opinion of counsel for the underwriter or underwriters a Prospectus is
required by law to be delivered in connection with sales of Registrable
Securities by an underwriter or dealer (in either case, such period being the
"Demand Period"). No Demand Registration shall be deemed to have been effected
if (i) during the Demand Period, such Registration is interfered with by any
stop order, injunction or other order or requirement of the SEC or other
governmental agency or court or (ii) the conditions to closing specified in the
underwriting agreement, if any, entered into in connection with such
Registration are not satisfied.
(f) Demand Notice. Promptly upon receipt of any
request for a Demand Registration pursuant to Section 2.1(a) (but in no event
more than five (5) Business Days thereafter), the Company shall serve written
notice (a "Demand Notice") of any such Registration request to all other holders
of Registrable Securities, and the Company shall include in such Registration
all such Registrable Securities of any holder with respect to which the Company
has received written requests for inclusion therein within 30 days after the
Demand Notice has been given to it. All requests made pursuant to this Section
2.1(f) shall specify the kind and aggregate amount of Registrable Securities to
be registered and the intended method of distribution of such securities.
(g) Delay in Filing; Suspension of Registration. If
the continued effectiveness of the Demand Registration Statement at any time
would require the Company to make an Adverse Disclosure, the Company may, upon
giving prompt written notice of such action to the holders, suspend use of the
Demand Registration Statement (a "Demand Suspension"); provided, however, that
the Company shall not be permitted to exercise a Demand Suspension (i) more than
three times during any twenty-four (24) month period, (ii) for a period
exceeding forty (40) days on any one occasion, or (iii) for an aggregate period
exceeding one hundred twenty (120) days in any twelve (12) month period with
respect to more than one Demand Suspension. In the case of a Demand Suspension,
the holders agree to suspend use of the Prospectus related to the Demand
Registration in connection with any such sale or purchase or offer to sell or
purchase of Registrable Securities upon receipt of the notice referred to above.
The Company shall immediately notify the holders upon the termination of any
Demand Suspension, amend or supplement the Prospectus, if necessary, so it does
not contain any untrue statement or omission therein and furnish to the holders
such numbers of copies of the Prospectus as so amended or supplemented as the
holders may reasonably request. The Company agrees, if necessary, to supplement
or make amendments to the Demand Registration Statement, if required by the
registration
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form used by the Company for the Demand Registration or by the instructions
applicable to such registration form or by the Securities Act or the rules or
regulations promulgated thereunder or as may reasonably be requested by the
Holders of a majority of the Registrable Securities to be included in such
Registration.
(h) Underwritten Offering. If not less than a
majority of the holders of any class of Registrable Securities requesting a
Demand Registration so elect, the offering of Registrable Securities pursuant to
such Demand Registration shall be in the form of an Underwritten Offering. If
any offering pursuant to a Demand Registration involves an Underwritten
Offering, the holders of a majority of the Registrable Securities included in
such Demand Registration shall, after consulting with the Company, have the
right to select the managing underwriter or underwriters to administer the
offering.
(i) Priority of Securities Registered Pursuant to
Demand Registrations. If the managing underwriter or underwriters of a Demand
Registration (or, in the case of a Demand Registration not being underwritten,
holders of a majority of the class of Registrable Securities requesting the
Demand Registration (the "Requesting Class")), advise the Company in writing
that, in its or their opinion, the number of securities requested to be included
in such Demand Registration (including securities of the Company for its own
account or for the account of other Persons which are not holders of Registrable
Securities) exceeds the number which can be sold in such offering without being
likely to have a significant adverse effect on the price, timing or distribution
of the securities offered or the market for the Company's Common Stock, the
Company will include in such Registration, Registrable Securities sought to be
registered therein and only such lesser number of other securities as shall, in
the opinion of the managing underwriter or underwriters (or, in the case of a
Demand Registration not being underwritten, holders of a majority of the
Requesting Class) not be likely to have such an effect, allocated as follows:
(i) first, pro rata among all holders of Registrable Securities that have
requested pursuant to this Section 2.1 to be included in such Registration,
based on the fully diluted ownership of such holders (provided that any
Registrable Securities allocated to any such holder pursuant to this clause (i)
that exceed such holder's request will be reallocated among the remaining
requesting holders of Registrable Securities in like manner) and (ii) second,
and only if all of the Registrable Securities referenced in clause (i) have been
included, any other securities eligible for inclusion in such Registration.
Notwithstanding the foregoing, if such Demand Registration involves the Initial
Public Offering or the first Registration thereafter in which the Current
Investors are entitled to request that their Registrable Securities be included
in such Registration, the Registrable Securities to be included in such
Registration shall be
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allocated as follows: two-thirds (2/3) of the number of shares available for
Registration under this Section 2.1(i) (the "Available Shares") shall be
allocated pro rata among the Current Investors which have requested pursuant to
Section 2.2(a) to be included in such Registration based on their fully diluted
ownership, and one-third (1/3) of the Available Shares shall be allocated to
Brera, Xxxxxxx and Seach as group (collectively, the "Brera Group") on a pro
rata basis; provided, further, however, that if either the Brera Group or the
Current Investors (as a group) desire to Register less than the number of shares
allocated to it or them in accordance with this Section 2.1(i), then the
remaining Available Shares which the Brera Group or the Current Investors (as a
group) do not desire to register shall be re-allocated to the Current Investors
(as a group) or the Brera Group, as applicable.
2.2 Piggyback Registrations.
(a) Participation. If the Company at any time
proposes to file a Registration Statement under the Securities Act with respect
to any offering of its Equity Securities for its own account or for the account
of any holders (other than (i) a Registration under Section 2.1 hereof, (ii) a
Registration on Form S-4 or S-8 or any successor form to such Forms, (iii) a
Registration of securities solely relating to an offering and sale to employees
or directors of the Company pursuant to any employee stock plan or other
employee benefit plan arrangement, or (iv) a Registration of securities issued
solely in an acquisition or business combination) (a "Company Public Sale"),
then, as soon as practicable (but in no event less than thirty (30) days prior
to the proposed date of filing such Registration Statement), the Company shall
give written notice of such proposed filing to all holders of Registrable
Securities and (unless all such Registrable Securities are then registered
pursuant to Section 2.1) such notice shall offer the holders of such Registrable
Securities the opportunity to register such number of Registrable Securities as
each such holder may request in writing (a "Piggyback Registration"). Subject to
Section 2.2(b), the Company shall include in such Registration Statement all
Registrable Securities requested within fifteen (15) Business Days after the
receipt by the holder of any such notice (which request shall specify the
Registrable Securities intended to be disposed of by such holder) to be included
in the Registration for such offering pursuant to a Piggyback Registration;
provided, however, that if at any time after giving written notice of its
intention to register any securities and prior to the effective date of the
Registration Statement filed in connection with such Registration, the Company
shall determine for any reason not to register or to delay registration of such
securities, the Company may, at its election, give written notice of such
determination to each holder of Registrable Securities and, thereupon, (i) in
the case of a determination not to register, shall be relieved of its obligation
to register any Registrable Securities in connection with such Registration (but
not from its obligation to pay the Registration Expenses in
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connection therewith), without prejudice, however, to the rights of any holders
of Registrable Securities entitled to request that such Registration be effected
as a Demand Registration under Section 2.1, and (ii) in the case of a
determination to delay registering and in the absence of a request for a Demand
Registration, shall be permitted to delay registering any Registrable
Securities, for the same period as the delay in registering such other
securities. If the offering pursuant to such Registration Statement is to be
underwritten, then each holder making a request for a Piggyback Registration
pursuant to this Section 2.2(a) must participate in such Underwritten Offering.
If the offering pursuant to such Registration Statement is to be on any other
basis, then each holder making a request for a Piggyback Registration pursuant
to this Section 2.2(a) must participate in such offering on such basis. Each
holder of Registrable Securities shall be permitted to withdraw all or part of
such holder's Registrable Securities from a Piggyback Registration at any time
prior to the effective date thereof. No registration effected under this Section
2.2 shall relieve the Company of its obligation to effect any registration upon
request under Section 2.1, nor shall any such registration hereunder be deemed
to have been effected pursuant to Section 2.1. The Company will pay all
Registration Expenses in connection with each registration of Registrable
Securities requested pursuant to this Section 2.2.
(b) Priority of Piggyback Registration. If the
managing underwriter or underwriters of any proposed Underwritten Offering in a
Piggyback Registration inform the Company and the holders of such Registrable
Securities in writing that the total amount or kind of securities which such
holders and any other Persons intend to include in such offering exceeds the
number which can be sold in such offering so as to have a significant adverse
effect on the price, timing or distribution of the securities offered in such
offering or the market for the Company's Common Stock, then the securities to be
included in such Registration shall be (i) first, 100% of the securities that
the Company proposes to sell, (ii) second, and only if all the securities
referenced in clause (i) have been included, the number of Registrable
Securities that, in the opinion of such underwriter or underwriters, can be sold
without having such adverse effect, allocated as follows: (A) in the Initial
Public Offering and the Company's first secondary offering in which Piggyback
Registration rights are available, two-thirds (2/3) of the number of shares
available for Registration under this clause (ii) (the "Available Shares") shall
be allocated pro rata among the Current Investors which have requested pursuant
to Section 2.2(a) to be included in such Registration based on their fully
diluted ownership, and one-third (1/3) of the Available Shares shall be
allocated to the Brera Group; provided, further, however, that if either the
Brera Group or the Current Investors (as a group) desire to Register less than
the number of shares allocated to it or them in accordance with this clause
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(ii), then the remaining Available Shares which the Brera Group or the Current
Investors (as a group) do not desire to register shall be re-allocated to the
Current Investors (as a group) or the Brera Group, as applicable; or (B) in any
other offering, pro rata among the holders of all Registrable Securities that
have requested pursuant to Section 2.2(a) to be included in such Registration,
based on the fully diluted ownership of such holders (provided that any
Registrable Securities allocated to any such holder pursuant to this clause (B)
that exceed such holder's request will be reallocated among the remaining
requesting holders of Registrable Securities in like manner) and (iii) third,
and only if all of the Registrable Securities referenced in clauses (i) and (ii)
have been included, any other securities eligible for inclusion in such
Registration.
(c) No Effect on Demand Registrations. No
Registration of Registrable Securities effected pursuant to a request under this
Section 2.2 shall be deemed to have been effected pursuant to Section 2.1 hereof
or shall relieve the Company of its obligations under Section 2.1 hereof.
2.3 Lock-Up Period for the Company and Others. In the case of
an Underwritten Offering, the Company agrees, if requested by the holders of a
majority of any class of Registrable Securities or the managing underwriters in
such Underwritten Offering, not to effect any public sale or distribution of any
securities the same as or similar to those being registered, or any securities
convertible into or exchangeable or exercisable for such securities, during the
period beginning 7 days before, and ending 180 days (or such lesser period as
may be permitted by such holders or such underwriter) after, the effective date
of the Registration Statement filed in connection with such registration (or, in
the case of an underwriting under a shelf registration, the date of the closing
under the underwriting agreement), to the extent timely notified in writing by a
holder of Registrable Securities covered by such Registration Statement or the
managing underwriters (except, in each case, as part of such Underwritten
Offering, if permitted, or pursuant to registrations on Forms S-4 or S-8 or any
successor form to such Forms or otherwise as part of any registration of
securities for offering and sale to management of the Company pursuant to any
employee stock plan or other employee benefit plan arrangement or Registration
of securities issued solely in an acquisition or business combination). The
Company agrees to use all reasonable efforts to obtain from each Current
Investor and each holder of restricted securities of the Company the same as or
similar to those being registered by the Company, or any restricted securities
convertible into or exchangeable or exercisable for any of its securities, an
agreement not to effect any public sale or distribution of such securities
during any such period referred to in this paragraph, except as part of any such
Registration if permitted. Without limiting the foregoing (but subject to
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Section 2.6), if after the date hereof the Company grants any Person any rights
to demand or participate in, a Registration, the Company agrees that the
agreement with respect thereto shall include such Person's agreement as
contemplated by the previous sentence. In addition to the foregoing, each holder
of Registrable Securities hereby agrees not to effect any public sale or
distribution of equity securities of the Company, including any public sale
pursuant to Rule 144 under the Securities Act, or any securities convertible
into or exchangeable or exercisable for such securities, during the seven days
prior to and the 180-day period beginning on the effective date of the Company's
Initial Public Offering, unless the underwriters managing the Initial Public
Offering otherwise agree. During such period, the Company may impose stop
transfer instructions with respect to Registrable Securities to prohibit
transfers in violation of the previous sentence.
2.4 Registration Procedures.
(a) Actions by Company. In connection with the
Company's registration obligations under Sections 2.1 and 2.2 hereof, the
Company will use its best efforts to effect such registration to permit the sale
of such Registrable Securities in accordance with the intended method or methods
of distribution thereof as expeditiously as possible, and pursuant thereto the
Company will, as expeditiously as possible:
(i) before filing a Registration Statement or
Prospectus, or any amendments or supplements thereto and in connection
therewith, (x) furnish to the underwriters, if any, and to the holders
of the Registrable Securities covered by such Registration Statement,
copies of all documents prepared to be filed, which documents will be
subject to the review of such underwriters and such holders and their
respective counsel and (y) except in the case of a registration under
Section 2.2, not file any Registration Statement or Prospectus or
amendments or supplements thereto to which the holders of a majority of
Registrable Securities covered by such Registration Statement or the
underwriters, if any, shall reasonably object;
(ii) prepare and, in the case of a Demand
Registration, no later than 45 days after a request for a Demand
Registration, file with the SEC a Registration Statement relating to
the Registrable Securities including all exhibits and financial
statements required by the SEC to be filed therewith, and use its best
efforts to cause such Registration Statement to become effective under
the Securities Act;
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provided, however, that such period shall be 90 days if a request for
a Demand Registration is made in the first 45 days of any year, and
the Company cannot file such Demand Registration without audited
financial statements for the prior calendar year under the rules of
the SEC;
(iii) prepare and file with the SEC such
amendments and post-effective amendments to such Registration Statement
and supplements to the Prospectus as may be (x) reasonably requested by
the holders of a majority of the participating Registrable Securities,
(y) reasonably requested by any participating holder (to the extent
such request relates to information relating to such holder), or (z)
necessary to keep such Registration effective for the Demand Period
(in the case of a Demand Registration);
(iv) notify the selling holders of Registrable
Securities and the managing underwriter or underwriters, if any, and
(if requested) confirm such advice in writing, as soon as reasonably
practicable after notice thereof is received by the Company (a) when
the Registration Statement or any amendment thereto has been filed or
becomes effective, when the Prospectus or any amendment or supplement
to the Prospectus has been filed, and, to furnish such selling holders
and managing underwriter or underwriters, if any, with copies thereof,
(b) of any written comments by the SEC or any request by the SEC or
any other federal or state governmental authority for amendments or
supplements to the Registration Statement or the Prospectus or for
additional information, (c) of the issuance by the SEC of any stop
order suspending the effectiveness of the Registration Statement or
any order preventing or suspending the use of any preliminary or final
Prospectus or the initiation or threatening of any proceedings for
such purposes, (d) if, at any time, the representations and warranties
of the Company contemplated by paragraph (xiv) below cease to be true
and correct in all material respects and (e) of any notification with
respect to the suspension of the qualification of the Registrable
Securities for offering or sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose;
(v) promptly notify each selling holder of
Registrable Securities and the managing underwriter or underwriters, if
any, when the Company becomes aware of the happening of any event as a
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result of which the Registration Statement or the Prospectus included
in such Registration Statement (as then in effect) contains any untrue
statement of a material fact or omits to state a material fact
necessary to make the statements therein (in the case of the Prospectus
and any preliminary Prospectus, in light of the circumstances under
which they were made) not misleading or, if for any other reason it
shall be necessary during such time period to amend or supplement the
Registration Statement or the Prospectus in order to comply with the
Securities Act and, in either case as promptly as reasonably
practicable thereafter, prepare and file with the SEC, and furnish
without charge to the selling holders and the managing underwriter or
underwriters, if any, an amendment or supplement to such Registration
Statement or Prospectus which will correct such statement or omission
or effect such compliance;
(vi) make every reasonable effort to prevent or
obtain the withdrawal of any stop order or other order suspending the
use of any preliminary or final Prospectus or suspending any
qualification of the Registrable Securities at the earliest possible
moment;
(vii) if reasonably requested by the managing
underwriter or underwriters or a holder of Registrable Securities being
sold in connection with an Underwritten Offering, promptly incorporate
in a Prospectus supplement or post-effective amendment such information
as the managing underwriter or 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 number of Registrable Securities being sold to, and
the purchase price being paid therefor by, such underwriter or
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
reasonably practicable after being notified of the matters to be
incorporated in such Prospectus supplement or post-effective amendment;
(viii) furnish to each selling holder of
Registrable Securities and each managing underwriter, if any, without
charge, as many conformed copies as such holder or managing
underwriter may
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reasonably request of the Registration Statement and any amendment or
post-effective amendment thereto, including financial statements and
schedules, all documents incorporated therein by reference and all
exhibits (including those incorporated by reference);
(ix) deliver to each selling holder of Registrable
Securities and each managing underwriter, if any, without charge, as
many copies of the Prospectus (including each preliminary prospectus)
and any amendment or supplement thereto as such holder or managing
underwriter may reasonably request (it being understood that the
Company consents to the use of the Prospectus or any amendment or
supplement thereto by each of the selling holders of Registrable
Securities and the underwriters, if any, in connection with the
offering and sale of the Registrable Securities covered by the
Prospectus or any amendment or supplement thereto) and such other
documents as such selling holder or managing underwriter may reasonably
request in order to facilitate the disposition of the Registrable
Securities by such holder or underwriter;
(x) on or prior to the date on which the
Registration Statement is declared effective, use its best efforts to
register or qualify, and cooperate with the selling holders of
Registrable Securities, the managing underwriter, underwriters or
agent, if any, and their respective counsel, in connection with the
registration or qualification of such Registrable Securities for offer
and sale under the securities or "Blue Sky" laws of each state and
other jurisdiction of the United States as any such selling holder,
underwriter or agent, if any, or their respective counsel, reasonably
request in writing and do any and all other acts or things reasonably
necessary or advisable to keep such registration or qualification in
effect for so long as such Registration Statement remains in effect
and so as to permit the continuance of sales and dealings in such
jurisdictions for as long as may be necessary to complete the
distribution of the Registrable Securities covered by the Registration
Statement; provided that the Company will not be required to qualify
generally to do business in any jurisdiction where it is not then so
qualified or to take any action which would subject it to taxation or
general service of process in any such jurisdiction where it is not
then so subject;
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(xi) cooperate with the selling holders of
Registrable Securities and the managing underwriter, underwriters or
agent, 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 underwriters may request at least two (2) Business Days prior
to any sale of Registrable Securities to the underwriters;
(xii) use its best efforts to cause the
Registrable Securities covered by the applicable Registration Statement
to be registered with or approved by such other governmental agencies
or authorities as may be necessary to enable the seller or sellers
thereof or the underwriter or underwriters, if any, to consummate the
disposition of such Registrable Securities;
(xiii) 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 The Depository Trust Company or such other
form as is reasonably requested by the selling holders;
(xiv) make such representations and warranties to
the holders of Registrable Securities being registered, and the
underwriters or agents, if any, in form, substance and scope as are
customarily made by issuers in secondary underwritten public offerings;
(xv) enter into such customary agreements
(including underwriting and indemnification agreements) and take all
such other actions as the holders of at least a majority of any class
of Registrable Securities being sold or the managing underwriter or
agent, if any, reasonably request in order to expedite or facilitate
the registration and disposition of such Registrable Securities;
(xvi) obtain for delivery to the holders of
Registrable Securities being registered and to the underwriter,
underwriters or agent, if any, an opinion or opinions from counsel for
the Company dated the effective date of the Registration Statement and,
in the event of an Underwritten Offering, brought down to the date of
execution of
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the underwriting agreement (if different from such effective date)
and to the closing under the underwriting agreement, in customary form,
scope and substance, which counsel and opinions shall be reasonably
satisfactory to such holders, underwriters or agents and their
respective counsel;
(xvii) obtain for delivery to the Company and the
underwriter, underwriters or agent, if any, with copies to the holders
of Registrable Securities (unless precluded by applicable accounting
rules), a "comfort" letter from the Company's independent certified
public accountants in customary form and covering such matters of the
type customarily covered by "comfort" letters and such other matters as
the managing underwriter or underwriters reasonably request, dated the
date of execution of the underwriting agreement and brought down to the
closing under the underwriting agreement;
(xviii) notify each seller of Registrable
Securities and each underwriter or agent, if any, participating in the
disposition of such Registrable Securities and their respective
counsel of, and cooperate with such sellers and such underwriters or
agents, if any, in connection with any filings required to be made
with the NASD;
(xix) use its best efforts to comply with all
applicable rules and regulations of the SEC and make generally
available to its security holders, as soon as reasonably practicable
(but not more than fifteen months) after the effective date of the
Registration Statement, an earnings statement satisfying the provisions
of Section 11(a) of the Securities Act and the rules and regulations
promulgated thereunder;
(xx) provide and cause to be maintained a transfer
agent and registrar for all Registrable Securities covered by such
Registration Statement from and after a date not later than the
effective date of such Registration Statement;
(xxi) cause all Registrable Securities covered by
the Registration Statement to be listed on each securities exchange on
which any of the Company's securities are then listed or quoted and on
each inter-dealer quotation system on which any of the Company's
securities are then quoted;
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(xxii) make available upon reasonable notice at
reasonable times and for reasonable periods for inspection by a
representative appointed by a majority of the sellers of such
Registrable Securities covered by such Registration Statement, by any
underwriter participating in any disposition to be effected pursuant to
such Registration Statement and by any attorney, accountant or other
agent retained by such sellers or any such underwriter, all pertinent
financial and other records, pertinent corporate documents and
properties of the Company, and cause all of the Company's officers,
directors and employees and the independent public accountants who have
certified its financial statements to make themselves available to
discuss the business of the Company and to supply all information
reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such Registration Statement as
shall be necessary to enable them to exercise their due diligence
responsibility (subject to each party referred to in this clause (xxii)
entering into customary confidentiality agreements in a form reasonably
acceptable to the Company);
(xxiii) make available senior management personnel
of the Company to participate in, and cause them to cooperate with the
holders or the managing underwriter in any Underwritten Offering in
connection with "road show" and other customary marketing activities,
including "one-on-one" meetings with prospective purchasers of the
Registrable Securities to be sold in the Underwritten Offering and
otherwise to facilitate, cooperate with, and participate in each
proposed offering contemplated herein and customary selling efforts
related thereto, in each case to the same extent as if the Company were
engaged in a primary registered offering of its Common Stock;
(xxiv) promptly, after the issuance of an
earnings release or upon the request of a holder, prepare a current
report on Form 8-K with respect to such earnings release or a matter
of disclosure as requested by such holder and file such Form 8-K with
the SEC; and
(xxv) take such other actions as sellers of such
Registrable Securities holding 51% of the shares to be sold shall
reasonably request in order to expedite or facilitate the disposition
of such Registrable Securities.
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(b) Holders' Information. 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 and such other information relating to such holder and its
ownership of Registrable Securities as the Company may from time to time
reasonably request in writing. Each holder of Registrable Securities agrees to
furnish such information to the Company and to cooperate with the Company as
necessary to enable the Company to comply with the provisions of this Agreement.
If any such registration statement refers to any holder of Registrable
Securities by name or otherwise as the holder of any securities of the Company,
then such holder shall have the right to require (i) the insertion therein of
language, in form and substance satisfactory to such holder, to the effect that
the holding by such holder of such securities is not to be construed as a
recommendation by such holder of the investment quality of the Company's
securities covered thereby and that such holding does not imply that such holder
will assist in meeting any future financial requirements of the Company, or (ii)
in the event that such reference to such holder by name or otherwise is not
required by the Securities Act or any similar federal statute then in force, the
deletion of the reference to such holder.
(c) Discontinuation of Disposition. 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 2.4(a)(v) hereof, such holder will forthwith
discontinue disposition of Registrable Securities pursuant to such Registration
Statement until such holder's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 2.4(a)(v) 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 that 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 Demand
Period during which such Registration Statement is required to 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 2.4(a)(v) hereof or is advised in writing by the Company
that the use of the Prospectus may be resumed.
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2.5 Underwritten Offerings.
(a) Demand Registrations. If requested by the
underwriters for any Underwritten Offering requested by holders of Registrable
Securities pursuant to a Registration under Section 2.1, the Company shall enter
into an underwriting agreement with such underwriters for such offering, such
agreement to be reasonably satisfactory in substance and form to the Company,
holders of a majority of the Registrable Securities to be included in such
underwriting, and the underwriters, and to contain such representations and
warranties by the Company and such other terms as are generally prevailing in
agreements of that type, including, without limitation, indemnities no less
favorable to the recipient thereof than those provided in Section 2.8. The
holders of the Registrable Securities proposed to be distributed by such
underwriters will cooperate with the Company in the negotiation of the
underwriting agreement and will give consideration to the reasonable suggestions
of the Company regarding the form thereof. Such holders of Registrable
Securities to be distributed by such underwriters shall be parties to such
underwriting agreement and may, at their option, require that any or all of the
representations and warranties by, and the other agreements on the part of, the
Company to and for the benefit of such underwriters shall also be made to and
for the benefit of such holders of Registrable Securities and that any or all of
the conditions precedent to the obligations of such underwriters under such
underwriting agreement be conditions precedent to the obligations of such
holders of Registrable Securities. Any such holder of Registrable Securities
shall not be required to make any representations or warranties to or agreements
with the Company or the underwriters other than representations, warranties or
agreements regarding such holder, such holder's Registrable Securities, such
holder's intended method of distribution and any other representations required
by law.
(b) Piggyback Registrations. If the Company proposes
to register any of its securities under the Securities Act as contemplated by
Section 2.2 and such securities are to be distributed in an Underwritten
Offering through one or more underwriters, the Company will, if requested by any
holder of Registrable Securities pursuant to Section 2.2 and subject to the
provisions of Section 2.2(b), use its best efforts to arrange for such
underwriters to include on the same terms and conditions that apply to the other
sellers in such Registration all the Registrable Securities to be offered and
sold by such holder among the securities of the Company to be distributed by
such underwriters in such Registration. The holders of Registrable Securities to
be distributed by such underwriters shall be parties to the underwriting
agreement between the Company and such underwriters and any or all of the
representations and warranties by, and the other agreements on the part of, the
Company to and for the benefit of such underwriters shall also be made to and
for the
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benefit of such holders of Registrable Securities and any or all of the
conditions precedent to the obligations of such underwriters under such
underwriting agreement shall be conditions precedent to the obligations of such
holders of Registrable Securities. Any such holder of Registrable Securities
shall not be required to make any representations or warranties to or agreements
with the Company or the underwriters other than representations, warranties or
agreements regarding such holder, such holder's Registrable Securities and such
holder's intended method of distribution or any other representations required
by law.
(c) Participation in Underwritten Registrations. No
Person may participate in any Underwritten Offering hereunder unless such Person
(i) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Persons entitled to approve such
arrangements and (ii) completes and executes all questionnaires, indemnities,
underwriting agreements and other documents (other than powers of attorney)
required under the terms of such underwriting arrangements.
2.6 No Inconsistent Agreements; Additional Rights. The
Company will not hereafter enter into, and except as disclosed on Schedule 3.3
to the Investment Agreement and the Existing Registration Rights Agreements (as
defined in the Investment Agreement), is not currently a party to, any agreement
with respect to its securities which is inconsistent with the rights granted to
the holders of Registrable Securities by this Agreement or otherwise conflicts
with the provisions hereof.
2.7 Registration Expenses.
(a) Expenses Paid by Company. All expenses incident
to the Company's performance of or compliance with this Agreement will be paid
by the Company (and, in the case of the filing of a Registration Statement,
regardless of whether such Registration Statement becomes effective), including
without limitation (i) all registration and filing fees, and any other fees and
expenses associated with filings required to be made with the SEC or the NASD
(including, if applicable, the fees and expenses of any "qualified independent
underwriter" and its counsel as may be required by the rules and regulations of
the NASD), (ii) all fees and expenses of compliance with state securities or
"Blue Sky" laws (including fees and disbursements of counsel in connection with
"Blue Sky" qualifications of the Registrable Securities and determination of
their eligibility for investment under the laws of such jurisdictions as the
managing underwriters or holders of a majority of the Registrable Securities
being sold may designate), (iii) all printing, duplicating, word processing,
messenger, telephone, facsimile and mailing and delivery expenses (including
expenses
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of printing certificates for the Registrable Securities in a form eligible for
deposit with The Depository Trust Company and of printing prospectuses), (iv)
all printing, mailing and delivery expenses incurred in the preparation and
delivery of a Registration Statement or Prospectus, (v) all fees and
disbursements of counsel for the Company and of all independent certified public
accountants of the Company (including the expenses of cold comfort letters
required by or incident to such performance), (vi) Securities Act liability
insurance or similar insurance if the Company so desires or the underwriters so
require in accordance with then-customary underwriting practice, (vii) all fees
and expenses incurred in connection with the listing of the Registrable
Securities on any securities exchange or quotation of the Registrable Securities
on any inter-dealer quotation system, (viii) all applicable rating agency fees
with respect to the Preferred Stock, (ix) all reasonable fees and disbursements
of one law firm or other counsel selected by the holders of a majority of the
Registrable Securities being registered, (x) all reasonable fees and
disbursements of underwriters customarily paid by issuers or sellers of
securities (except as set forth in Section 2.7(b) below), (xi) all fees and
expenses of accountants to the holders of Registrable Securities being sold,
(xii) all fees and expenses of any special experts retained by the Company in
connection with any Demand Registration or Piggyback Registration and (xiii)
fees and expenses of other Persons retained by the Company without limitation
(all such expenses being herein called "Registration Expenses"). The Company
will, in any event, 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 audit and the fees and expenses of any
Person, including special experts, retained by the Company.
(b) Expenses Not Paid by Company. The Company shall
not be required to pay any fees and disbursements of underwriters not
customarily paid by the issuers or sellers of securities, including underwriting
discounts and commissions and transfer taxes, if any, attributable to the sale
of Registrable Securities and the fees and expenses of counsel to the
underwriters other than as provided in paragraph (a) above.
2.8 Indemnification.
(a) Indemnification by Company. The Company will, and
hereby agrees to, indemnify and hold harmless, to the full extent permitted by
law, each holder of Registrable Securities, its Affiliates and their respective
officers, directors, shareholders, employees, advisors, agents, each other
Person who participates as an underwriter, selling broker, dealer manager, or
similar securities industry professional in the offering or sale of Registrable
Securities, and each Person who
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controls (within the meaning of the Securities Act or the Exchange Act) any of
the foregoing Persons (collectively, the "Indemnified Holder Parties") from and
against any and all losses, claims, damages, liabilities (or actions or
proceedings in respect thereof, whether or not such Indemnified Holder Party is
a party thereto) and expenses, joint or several (including reasonable costs of
investigation and legal expenses) (each, a "Loss" and collectively "Losses")
arising out of or based upon (i) any untrue or alleged untrue statement of a
material fact contained in any Registration Statement under which such
Registrable Securities were registered under the Securities Act (including any
final, preliminary or summary Prospectus contained therein or any amendment
thereof or supplement thereto or any documents incorporated by reference
therein), or (ii) any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
(in the case of a Prospectus or preliminary Prospectus, in light of the
circumstances under which they were made) not misleading; provided, however,
that the Company shall not be liable to any particular Indemnified Holder Party
in any such case to the extent that any such Loss arises out of or is based upon
an untrue statement or alleged untrue statement or omission or alleged omission
made in any such Registration Statement in reliance upon and in conformity with
written information furnished to the Company by such Indemnified Holder Party
through an instrument duly executed by such Indemnified Holder Party,
specifically stating that it is for use in the preparation of such Registration
Statement; and provided, further, that the Company will not be liable to any
particular Indemnified Holder Party in any case to the extent that any such Loss
arises out of or is based upon any untrue statement or alleged untrue statement
or omission or alleged omission made in any final, preliminary or summary
Prospectus if such untrue statement or alleged untrue statement or omission or
alleged omission is completely corrected in an amendment or supplement to such
Prospectus and the relevant Indemnified Holder Party (having previously been
furnished by or on behalf of the Company with a sufficient number of copies of
the same on a timely basis), fails to deliver such Prospectus as so amended
or supplement prior to or concurrently with the sales of the Registrable
Securities to the Person asserting such loss, claim, damage, liability or
expense. This indemnity shall be in addition to any liability the Company may
otherwise have. Such indemnity shall remain in full force and effect regardless
of any investigation made by or on behalf of such holder or any Indemnified
Holder Party and shall survive the transfer of such securities by such holder.
(b) Indemnification by the Selling Holder of
Registrable Securities. In the event of Registration of any Registrable
Securities of the Company under the Securities Act pursuant to Sections 2.1 or
2.2 hereof, each selling holder of Registrable Securities agrees (severally and
not jointly) to indemnify and hold
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harmless, to the full extent permitted by law, the Company, its directors and
officers and each Person who controls (within the meaning of the Securities Act
and the Exchange Act) the Company (collectively, the "Indemnified Company
Parties") from and against any Losses resulting from any untrue statement of a
material fact or any omission of a material fact required to be stated in the
Registration Statement under which such Registrable Securities were registered
under the Securities Act (including any final, preliminary or summary Prospectus
contained therein or any amendment thereof or supplement thereto or any
documents incorporated by reference therein), or necessary to make the
statements therein (in the case of a Prospectus or preliminary Prospectus, in
light of the circumstances under which they were made) not misleading, to the
extent, but only to the extent, that such untrue statement or omission is
contained in any written information furnished to the Company through an
instrument duly executed by such holder, specifically stating that it is for
inclusion in such Registration Statement and has not been corrected in a
subsequent writing prior to or concurrently with the sale of the Registrable
Securities. In no event shall the liability of any selling holder of Registrable
Securities hereunder be greater in amount than the dollar amount of the proceeds
received by such holder under the sale of the Registrable Securities giving rise
to such indemnification obligation. The Company shall be entitled to receive
indemnities from underwriters, selling brokers, dealer managers and similar
securities industry professionals participating in the distribution, to the same
extent as provided above (with appropriate modification) with respect to
information so furnished in writing by such Persons specifically for inclusion
in any Prospectus or Registration Statement.
(c) Conduct of Indemnification Proceedings. Any
Person entitled to indemnification hereunder will (i) give prompt written notice
to the indemnifying party of any claim with respect to which it seeks
indemnification (provided, that any delay or failure to so notify the
indemnifying party shall relieve the indemnifying party of its obligations
hereunder only to the extent, if at all, that it is actually and materially
prejudiced by reason of such delay or failure) and (ii) permit such indemnifying
party to assume the defense of such claim with counsel reasonably satisfactory
to the Indemnified Holder Party or the Indemnified Company Party, as the case
may be; provided, however, that any Person entitled to indemnification hereunder
shall have the right to select and employ separate counsel and to participate in
the defense of such claim, but the fees and expenses of such counsel shall be at
the expense of such Person unless (i) the indemnifying party has agreed in
writing to pay such fees or expenses, (ii) the indemnifying party shall have
failed to assume the defense of such claim within a reasonable time after
receipt of notice of such claim from the Person entitled to indemnification
hereunder and employ counsel reasonably satisfactory to such Person, (iii) the
Indemnified Holder Party or the Indemnified
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Company Party, as the case may be, has reasonably concluded (based on advice of
counsel) that there may be legal defenses available to it or other Indemnified
Holder Parties or Indemnified Company parties, as the case may be, that are
different from or in addition to those available to the indemnifying party, or
(iv) in the reasonable judgment of any such Person, based upon advice of its
counsel, a conflict of interest may exist between such Person and the
indemnifying party with respect to such claims (in which case, if the Person
notifies the indemnifying party in writing that such Person elects to employ
separate counsel at the expense of the indemnifying party, the indemnifying
party shall not have the right to assume the defense of such claim on behalf of
such Person). If such defense is not assumed by the indemnifying party, the
indemnifying party will not be subject to any liability for any settlement made
without its consent, but such consent may not be unreasonably withheld; provided
that an indemnifying party shall not be required to consent to any settlement
involving the imposition of equitable remedies or involving the imposition of
any material obligations on such indemnifying party other than financial
obligations for which such indemnified party will be indemnified hereunder. If
the indemnifying party assumes the defense, the indemnifying party shall have
the right to settle such action without the consent of the Indemnified Holder
Party or the Indemnified Company Party, as the case may be; provided, however,
that the indemnifying party shall be required to obtain such consent (which
consent shall not be unreasonably withheld) if the settlement includes any
admission of wrongdoing on the part of the Indemnified Holder Party or the
Indemnified Company Party, as the case may be, or any decree or restriction on
the Indemnified Holder Party or the Indemnified Company Party, as the case may
be, or its officers or directors. No indemnifying party shall consent to entry
of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Holder Party or Indemnified Company Party, as the case may be, of an
unconditional release from all liability in respect to such claim or litigation
or which would impose any material obligations on such Indemnified Holder Party
or Indemnified
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Company Party, as the case may be. It is understood that the indemnifying party
or parties shall not, in connection with any proceeding or related proceedings
in the same jurisdiction, be liable for the reasonable fees, disbursements and
other charges of more than one separate firm admitted to practice in such
jurisdiction at any one time from all such Indemnified Holder Party or Parties
or Indemnified Company Party or Parties, as the case may be, unless (x) the
employment of more than one counsel has been authorized in writing by the
Indemnified Holder Party or Parties or the Indemnified Company Party or Parties,
as the case may be, (y) an Indemnified Holder Party or Indemnified Company
Party, as the case may be, has reasonably concluded (based on advice of counsel)
that there may be legal defenses available to it that are different from or in
addition to those available to the other Indemnified Holder Parties or
Indemnified Company Parties, as the case may be, or (z) a conflict or potential
conflict exists or may exist (based on advice of counsel to an Indemnified
Holder Party or an Indemnified Company Party, as the case may be) between such
Indemnified Holder Party or such Indemnified Company Party, as the case may be,
and the other Indemnified Holder Parties or Indemnified Company Parties, as the
case may be, in each of which cases the indemnifying party shall be obligated to
pay the reasonable fees and expenses of such additional counsel or counsels.
(d) Contribution. If for any reason the
indemnification provided for in paragraphs (a) and (b) of this Section 2.8 is
unavailable to an Indemnified Holder Party or an Indemnified Company Party, as
the case may be, or insufficient to hold it harmless as contemplated by
paragraphs (a) and (b) of this Section 2.8, then the indemnifying party shall
contribute to the amount paid or payable by the Indemnified Holder Party or the
Indemnified Company Party, as the case may be, as a result of such Loss in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party on the one hand and the Indemnified Holder Party or the Indemnified
Company Party, as the case may be, on the other. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the indemnifying party or the
Indemnified Holder Party or the Indemnified Company Party, as the case may be,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission.
Notwithstanding anything in this Section 2.8(d) to the contrary, no indemnifying
party (other than the Company) shall be required pursuant to this Section 2.8(d)
to contribute any amount in excess of the amount by which the net proceeds
received by such indemnifying party from the sale of Registrable Securities in
the offering to which the Losses of the Indemnified Holder Parties or the
Indemnified Company Parties, as the case may be, relate exceeds the amount of
any damages which such indemnifying party has otherwise
been required to pay by reason of such untrue statement or omission. The parties
hereto agree that it would not be just and equitable if contribution pursuant to
this Section 2.8(d) were determined by pro rata allocation or by any other
method of allocation that does not take account of the equitable considerations
referred to in the immediately preceding paragraph. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation. If indemnification is available
under this Section 2.8, the indemnifying parties shall indemnify each
Indemnified Holder Party or Indemnified Company Party, as the case may be, to
the full extent provided in Sections 2.8(a) and 2.8(b) hereof without regard to
the relative fault of said indemnifying
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parties or Indemnified Holder Party or Indemnified Company Party, as the case
may be.
(e) Other Indemnification. Indemnification and
contribution similar to that specified in the preceding subdivisions of this
Section 2.8 (with appropriate modifications) shall be given by the Company and
each seller of Regis trable Securities with respect to any required registration
or other qualification of securities under any Federal or state law or
regulation of any governmental authority, other than the Securities Act.
(f) Indemnification Payments. The indemnification
required by this Section 2.8 shall be made by periodic payments of the amount
thereof during the course of the investigation or defense, promptly as and when
bills are received or Losses are incurred.
2.9 Rules 144 and 144A. The Company covenants that it will
file the reports required to be filed by it under the Securities Act and the
Exchange Act and the rules and regulations adopted by the SEC thereunder (or, if
the Company is not required to file such reports, it will, upon the request of
any holder of Registrable Securities, make publicly available other information
so long as necessary to permit sales pursuant to Rules 144, 144A or Regulation S
under the Securities Act), and it will take such further action as any holder of
Registrable Securities may reasonably request, all to the extent required from
time to time to enable such holder to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by (i) Rules 144, 144A or Regulation S under the Securities Act, as
such Rules may be amended from time to time, or (ii) any similar rule or
regulation hereafter adopted by the SEC. Upon the request of any holder of
Registrable Securities, the Company will deliver to such holder a written
statement as to whether it has complied with such requirements and, if not, the
specifics thereof.
SECTION 3. MISCELLANEOUS.
3.1 Entire Agreement. This Agreement constitutes the full and
entire understanding and agreement between the parties with regard to the
subject matter hereof. This Agreement supercedes that certain Amended
Registration Rights Agreement, dated as of October 31, 1995, among the Company
and certain stockholders.
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3.2 Injunctive Relief. It is hereby agreed and acknowledged
that it will be impossible to measure in money the damages that would be
suffered if the parties fail to comply with any of the obligations herein
imposed on them and that in the event of any such failure, an aggrieved Person
will be irreparably damaged and will not have an adequate remedy at law. Any
such Person shall, therefore, be entitled (in addition to any other remedy to
which it may be entitled in law or in equity) to injunctive relief, including,
without limitation, specific performance, to enforce such obligations, and if
any action should be brought in equity to enforce any of the provisions of this
Agreement, none of the parties hereto shall raise the defense that there is an
adequate remedy at law.
3.3 Attorneys' Fees. In any action or proceeding brought to
enforce any provision of this Agreement or where any provision hereof is validly
asserted as a defense, the successful party shall, to the extent permitted by
applicable law, be entitled to recover reasonable attorneys' fees in addition to
any other available remedy.
3.4 Notices. Any notice provided for in this Agreement must
be in writing and must be either (a) personally delivered, (b) sent by a
recognized overnight courier service, to the recipient at the address below
indicated or (c) by facsimile which is confirmed in writing by sending a copy of
such facsimile to the recipient thereof pursuant to clause (a) or (b) above:
To the Company: Classic Communications, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: J. Xxxxxxx Xxxxxxx
Fax: (000) 000-0000
With a copy to: Xxxxxxxx Xxxxxxxx & Xxxxxx P.C.
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
With a copy to: Xxxx Xxxxxxxx, Esq.
500 Capital of Xxxxx Xxxxxxx Xxxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxxx, Xxxxx 00000
Fax: (000) 000-0000
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To Brera: Brera Classic, LLC
c/o Brera Capital Partners, LLC
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxx
Fax: (000) 000-0000
With a copy to: Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois)
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
To Stockholders: at the addresses listed on the signature pages
attached hereto.
or such other address or to the attention of such other Person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement will be deemed to have been given (x) on the date
such notice is personally delivered, (y) one (1) day after the date such notice
is delivered to the overnight courier service if sent by overnight courier or
(z) with respect to facsimiles, on the earlier of one (1) day after the date
such facsimile is delivered to the overnight courier for confirmation or
confirmation by telephone to the number designated herein; provided that in each
case notices received after 4:00 p.m. (local time of the recipient) shall be
deemed to have been duly given on the next business day.
3.5 Successors, Assigns and Transferees. The registration
rights of any holder under this Agreement with respect to any Registrable
Securities may be transferred and assigned, provided that other than a transfer
or assignment to Brera or an Affiliate of Brera, no such assignment shall be
binding upon or obligate the Company to any such assignee unless and until (i)
the Company shall have received notice of such assignment as herein provided,
which notice shall (A) reference this Agreement and (B) set forth the name and
address of any assignee for the purpose of any notices hereunder or (ii) such
assignee can establish its beneficial or record ownership of any Registrable
Securities and shall have provided the Company with the information called for
by clause (i)(B) of this Section 3.5(a), (iii) such assignee acquires at least
twenty percent (20%) of the Registrable Securities held by a holder; provided
that such Registrable Securities represent at least five percent (5%) of the
Company's outstanding Common Stock; provided, further, that any assignment of
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34
registration rights to a limited or general partner of any holder will be
without restriction as to minimum share holdings, and (iv) such assignee is not
a competitor of the Company. Any transfer or assignment made other than as
provided in the first sentence of this Section 3.5 shall be null and void.
(a) This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto, and their respective
successors and permitted assigns. Whether or not any express assignment shall
have been made, the provisions of this Agreement which are for the benefit of
the parties hereto other than the Company shall also be for the benefit of and
enforceable by any subsequent holder of Registrable Securities, subject to the
provisions contained herein.
3.6 Headings. The section and paragraph headings contained
in this Agreement are for reference purposes only and shall not in any way
affect the meaning or interpretation of this Agreement.
3.7 Severability. Whenever possible, each provision or
portion of any provision of this Agreement will be interpreted in such manner as
to be effective and valid under applicable law but if any provision or portion
of any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained therein.
3.8 Amendment; Waiver. This Agreement may not be amended
or modified and waivers and consents to departures from the provisions hereof
may not be given, except by an instrument or instruments in writing making
specific reference to this Agreement and signed by the Company, the holders of a
majority of Registrable Securities of each class then outstanding and, so long
as it is a holder, Brera. Each holder of any Registrable Securities at the time
or thereafter outstanding shall be bound by any amendment, modification, waiver
or consent authorized by this Section 3.8(a), whether or not such Registrable
Securities shall have been marked accordingly.
(a) The waiver by any party hereto of a breach
of any provision of this Agreement shall not operate or be construed as a
further or continuing waiver of such breach or as a waiver of any other or
subsequent breach. Except as otherwise expressly provided herein, no failure on
the part of any party to exercise,
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and no delay in exercising, any right, power or remedy hereunder, or otherwise
available in respect hereof at law or in equity, shall operate as a waiver
thereof, nor shall any single or partial exercise of such right, power or remedy
by such party preclude any other or further exercise thereof or the exercise of
any other right, power or remedy.
3.9 Counterparts. This Agreement may be executed in any
number of separate counterparts and by the parties hereto in separate
counterparts each of which when so executed shall be deemed to be an original
and all of which together shall constitute one and the same agreement.
3.10 Representations and Warranties. Each party to this
Agreement represents and warrants to each other party to this Agreement that (i)
all action on the part of such party necessary for the authorization, execution,
delivery and performance of this Agreement has been taken and (ii) this
Agreement is a legal, valid and binding obligation of such party, enforceable
against such party in accordance with its terms.
3.11 Governing Law. All questions concerning the validity,
meaning and effect of this Agreement shall be determined in accordance with the
laws of the State of New York applicable to contracts made and to be performed
within the State, without regard to the principles of conflicts of laws except
to the extent necessary to permit this Agreement to be governed by New York law
as set forth above.
3.12 Consent to Jurisdiction and Service of Process;
Appointment of Agent for Service of Process. EACH PARTY TO THIS AGREEMENT HEREBY
CONSENTS TO THE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK AND ANY NEW YORK STATE COURT LOCATED IN THE
BOROUGH OF MANHATTAN AND IRREVOCABLY AGREES THAT ALL ACTIONS OR PROCEEDINGS
ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED
HEREBY, OR ANY BUSINESS OR OTHER DISPUTES BETWEEN THE PARTIES (WHETHER SUCH
ACTIONS OR PROCEEDINGS ARE BASED IN STATUTE, TORT, CONTRACT OR OTHERWISE), SHALL
BE LITIGATED IN SUCH COURTS. EACH PARTY (A) CONSENTS TO SUBMIT ITSELF TO THE
PERSONAL JURISDICTION OF SUCH COURTS FOR SUCH ACTIONS OR PROCEEDINGS, (B) AGREES
THAT IT WILL NOT ATTEMPT TO DENY OR DEFEAT SUCH PERSONAL JURISDICTION BY MOTION
OR OTHER
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REQUEST FOR LEAVE FROM ANY SUCH COURT, AND (C) AGREES THAT IT WILL NOT BRING ANY
SUCH ACTION OR PROCEEDING IN ANY COURT OTHER THAN SUCH COURTS. EACH PARTY
ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND
UNCONDITIONALLY, THE EXCLUSIVE AND IRREVOCABLE JURISDICTION AND VENUE OF THE
AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS, AND IRREVOCABLY
AGREE TO BE BOUND BY ANY NON-APPEALABLE JUDGMENT RENDERED THEREBY IN CONNECTION
WITH SUCH ACTIONS OR PROCEEDINGS. A COPY OF ANY SERVICE OF PROCESS SERVED UPON
THE PARTIES SHALL BE MAILED BY REGISTERED MAIL TO THE RESPECTIVE PARTY EXCEPT
THAT, UNLESS OTHERWISE PROVIDED BY APPLICABLE LAW, ANY FAILURE TO MAIL SUCH COPY
SHALL NOT AFFECT THE VALIDITY OF SERVICE OF PROCESS. IF ANY AGENT APPOINTED BY A
PARTY REFUSES TO ACCEPT SERVICE, EACH PARTY AGREES THAT SERVICE UPON THE
APPROPRIATE PARTY BY REGISTERED MAIL SHALL CONSTITUTE SUFFICIENT SERVICE.
NOTHING HEREIN SHALL AFFECT THE RIGHT OF A PARTY TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW.
3.13 Waiver of Jury Trial. EACH OF THE PARTIES TO THIS
AGREEMENT HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS
BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT AND THE
RELATIONSHIP THAT IS BEING ESTABLISHED. EACH PARTY ALSO WAIVES ANY BOND OR
SURETY OR SECURITY UPON SUCH BOND WHICH MIGHT, BUT FOR THIS WAIVER, BE REQUIRED
OF ANY OF THE OTHER PARTIES. THE SCOPE OF THIS WAIVER IS INTENDED TO BE
ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT
RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION,
CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW
AND STATUTORY CLAIMS. EACH PARTY ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL
INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED
ON THE WAIVER IN ENTERING INTO THIS AGREEMENT AND THAT EACH WILL CONTINUE TO
RELY ON THE WAIVER IN THEIR RELATED FUTURE DEALINGS. EACH PARTY
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FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL
COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS
FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING
THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL
APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO
THIS AGREEMENT OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE
TRANSACTION CONTEMPLATED HEREBY. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY
BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
ACCORDINGLY, EACH PARTY ACKNOWLEDGES THAT IT HAS WAIVED ITS RIGHT TO XXX OR BE
SUED IN TEXAS AND TO A JURY TRIAL. EACH PARTY HAS DISCUSSED THIS AGREEMENT WITH
ITS COUNSEL AND AGREES TO BE BOUND BY ITS TERMS.
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IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be duly executed as of the date first written above.
CLASSIC COMMUNICATIONS, INC.
By: /s/ J. Xxxxxxx Xxxxxxx
------------------------------------
Name: J. Xxxxxxx Xxxxxxx
Title: Chief Executive Officer
BRERA CLASSIC, LLC
By: /s/ Xxxx X. Xxxx
------------------------------------
Name: Xxxx X. Xxxx
Title: Authorized Signatory
AUSTIN VENTURE, L.P.
By: AV PARTNERS, L.P.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: General Partner
AUSTIN VENTURE III-A, L.P.
By: AV PARTNERS III, L.P.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: General Partner
AUSTIN VENTURE III-B, L.P.
By: AV PARTNERS III, L.P.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: General Partner
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BA SBIC MANAGEMENT, L.L.C.,
By: BA Equity Management, L.P.,
Its Sole Member
By: BA Equity Management G.P.
Its General Partner
By: /s/ Xxxxxx X. Xxxxxxxx, III
---------------------------------------
Name: Xxxxxx X. Xxxxxxxx, III, Member
TEXAS GROWTH FUND
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: President
BT CAPITAL PARTNERS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: President
UNION BANCAL VENTURE
CORPORATION
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
J. XXXXXXX XXXXXXX
/s/ J. Xxxxxxx Xxxxxxx
---------------------------------------
XXXXXX X. SEACH
/s/ Xxxxxx X. Seach
---------------------------------------
XXXXX X. XXXXXXXX
/s/ Xxxxx X. Xxxxxxxx
---------------------------------------
