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EXHIBIT 4.3B
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SHAREHOLDERS AND REGISTRATION RIGHTS
AGREEMENT
Dated as of July 29, 1998
among
CLASSIC COMMUNICATIONS, INC.
AND
CERTAIN STOCKHOLDERS
AND
MERRILL, LYNCH, XXXXXX, XXXXXX &
XXXXX INCORPORATED
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SHAREHOLDERS AND REGISTRATION RIGHTS AGREEMENT
THIS SHAREHOLDERS AND REGISTRATION RIGHTS AGREEMENT (the "Agreement")
is made and entered into as of July 29, 1998, among CLASSIC COMMUNICATIONS,
INC., a Delaware corporation ("Holdings"), J. XXXXXXX XXXXXXX ("Xxxxxxx"),
XXXXXX X. SEACH ("Seach"), and XXXXX X. XXXXXXXX ("Xxxxxxxx") (Xxxxxxx, Seach
and Xxxxxxxx are collectively known as "Management Stockholders"), 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"; Austin, Austin Ill-A, and Austin III-B are
collectively referred to as "Austin Ventures"), TEXAS GROWTH FUND ("Growth
Fund"), NATIONSBANC CAPITAL CORP. ("NationsBanc"), a Texas corporation (Austin,
Austin III-A, Austin III-B, Union Bancal, Growth Fund, BT Capital and
NationsBanc are collectively referred to as the "Investors" and individually as
an "Investor,") and XXXXXXX XXXXX & CO., XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED ("Initial Purchaser"). The Management Stockholders and Investors
are collectively referred to as the "Stockholders" and individually as a
"Stockholder").
This Agreement is made pursuant to the Purchase Agreement, dated as of
July 22, 1998, between Holdings and the Initial Purchaser (the "Initial
Purchaser"), relating to the sale by Holdings to the Initial Purchaser of an
aggregate of 114,000 Units, each unit consisting of $ 1,000 principal amount
13-1/4% Senior Discount Notes due 2009 (the "Discount Notes") and three shares
(342,000 shares in the aggregate, the "Shares") of Common Stock, par value $0.01
per share, of Holdings. In order to induce the Initial Purchaser to enter into
the Purchase Agreement, Holdings has agreed to provide to the Initial Purchaser
and its direct and indirect transferees (the "Holders"), among other things, the
registration rights for the Common Stock set forth in this Agreement and the
Stockholders have agreed to provide the Holders, among other things, the
take-along rights for the Common Stock set forth herein. The execution of this
Agreement is a condition to the obligations of the Initial Purchaser to purchase
the Units under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1 . Definitions. As used in this Agreement, the following capitalized
defined terms shall have the following meanings:
"Affiliate" means, when used with reference to any, Person, any
other Person directly or indirectly controlling, controlled by, or
under direct or indirect common control with, the referent Person or
such other Person, as the case may be. For the purposes of this
definition, "control" when used with respect to any specified Person
means the power to direct or cause the direction of management or
policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms
"affiliated, "controlling" and "controlled" have meanings correlative of
the foregoing. Neither the Initial Purchaser nor any of its Affiliates
shall be deemed to be an Affiliate of Holdings or of any of its
Subsidiaries or Affiliates.
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"Business Day" shall mean a day that is not a Legal Holiday.
"Capital Stock" means any and all shares, interests, participations, or
other equivalents (however designated) of corporate stock of Holdings, including
each class of common stock and preferred stock of Holdings, together with any
warrants, rights, or options to purchase or acquire any of the foregoing.
"Closing Date" shall mean the Closing Date as defined in the Purchase
Agreement.
"Common Stock" shall mean the common stock, par value $0.1 per share of
Holdings.
"Company" shall mean Classic Cable, Inc., a Delaware corporation and
Holdings' wholly owned subsidiary.
"Definitive Certificate" shall mean a certificate representing Shares
in definitive registered form, other than a Global Certificate.
"Demand Registration" shall have the meaning set forth in Section 2.1.
"Depository" shall mean, with respect to Shares represented by one or
more Global Certificates, The Depository Trust Company or another person
designated as Depository by Holdings, which must be a clearing agency registered
under the Exchange Act.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Fair Market Value" of a share of Common Stock on any date means (i)
the average of the last reported sale prices for a period of 20 consecutive
trading days ending 5 days prior to such date of the high and low sale prices
(or if no sales are reported, the average of the bid and ask prices or, if more
than one in either case, the average of the closing bid and closing ask prices),
as reported in the composite transactions for the New York Stock Exchange, or
(ii) if the Common Stock is not listed or admitted to trading on such exchange,
as reported in the composite transactions for the principal national or regional
United States securities exchange on which the security is listed or admitted to
trading or, (iii) if the Common Stock is not listed or admitted to trading on a
United States national or regional securities exchange, as reported by NASDAQ or
by the National Quotation Bureau Incorporated or, (iv) if the Common Stock is
not listed or traded on any national securities exchange and prices for the
security are not reported by NASDAQ or the National Quotation Bureau
Incorporated, the value as determined (without any discount for lack of
liquidity, the amount of Common Stock proposed to be sold or the fact that the
shares of Common Stock held by any Holder of such Common Stock may represent a
minority interest in a private company) by a nationally recognized investment
banking firm selected by Holdings for the determination of such value.
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"Global Certificate" shall mean a certificate representing all or part
of the Shares issued to the Depository.
"Holder" shall mean the Initial Purchaser, for so long as it owns any
Common Stock, and each of its successors, assigns and direct and indirect
transferees who become registered owners of Common Stock.
"Holdings" shall have the meaning set forth in the preamble and shall
also include Holdings' successors.
"Indenture" means the Indenture, dated July 29, 1998 between Holdings
and Banc One, N.A., as trustee.
"Initial Purchaser" shall have the meaning set forth in the preamble.
"Legal Holiday" shall mean a Saturday, a Sunday or a day on which
banking institutions in New York, New York are required by law, regulation or
executive order to remain closed. If a payment date is a Legal Holiday, payment
may be made on the next succeeding day that is not a Legal Holiday.
"Management Stockholders" shall have the meaning set forth in the
preamble and shall include any of such Person's Permitted Transferees.
"Non-Qualified Transferee" shall mean any person that is not a
Permitted Transferee.
"Permitted Transferees" shall mean (A) the Permitted Holders as that
term is defined in the Indenture and (B) Holdings.
"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
"Piggy-Back Registration" shall have the meaning set forth in Section
2.2.
"Purchase Agreement" shall have the meaning set forth in the preamble.
"Qualified Institutional Buyer" or "QIB" shall have the meaning
specified in Rule 144A under the Securities Act.
"Registrable Securities" shall mean any of (i) the Shares and (ii)
Common Stock or other securities issued or issuable with respect to any
Registrable Securities by way of stock dividend or stock split or in connection,
with a combination of shares, recapitalization, merger, consolidation or other
reorganization or otherwise. As to any particular Registrable Securities, such
securities shall cease to be Registrable Securities when (i) a Registration
Statement with respect to such securities shall have been declared effective
under the Securities Act and, such securities shall have been disposed of
pursuant to such Registration Statement, (ii) such securities have been sold to
the public
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pursuant to Rule 144 (or any similar provision then in force, but not Rule 144A)
under the Securities Act, (iii) such securities shall have been otherwise
transferred by such holder and new certificates for such securities not bearing
a legend restricting further transfer shall have been delivered by Holdings or
its transfer agent and subsequent disposition of such securities shall not
require registration or qualification under the Securities Act or any similar
state law then in force or (iv) such securities shall have ceased to be
outstanding.
"Registration Expenses" shall mean all expenses incident to Holdings'
performance of or compliance with this Agreement, including, without limitation,
all SEC and stock exchange or National Association of Securities Dealers, Inc.
registration and filing fees and expenses, fees and expenses of compliance with
securities or blue sky laws (including, without limitation, reasonable fees and
disbursements of counsel for the underwriters in connection with blue sky
qualifications of the Registrable Securities), rating agency fees, printing
expenses, messenger, telephone and delivery expenses, fees and disbursements of
counsel for Holdings and all independent certified public accountants, the fees
and disbursements of underwriters customarily paid by issuers or sellers of
securities (but not including any underwriting discounts or commissions or
transfer taxes, if any, attributable to the sale of Registrable Securities by
Holders of such Registrable Securities) and other reasonable out-of-pocket
expenses of Holders.
"Registration Statement" shall mean any registration statement of
Holdings which covers any of the Shares pursuant to the provisions of this
Agreement and all amendments and supplements to any such Registration Statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
"Regulation S" shall mean Regulation S under the Securities Act.
"Requisite Shares" shall mean a number of Registrable Securities equal
to not less than 25% of the Registrable Securities held in the aggregate by all
Holders.
"Restricted Security" shall have the meaning set forth in Rule
144(a)(3) under the Securities Act.
"Rule 144" shall mean Rule 144 under the Securities Act, as such Rule
may be amended from time to time, or any similar rule (other than Rule 144A) or
regulation hereafter adopted by the SEC providing for offers and sales of
securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
"Rule 144A" shall mean Rule 144A under the Securities Act, as such Rule
may be amended from time to time, or any similar rule (other than Rule 144) or
regulation hereafter adopted by the SEC providing for offers and sales of
securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
"SEC" shall mean the Securities and Exchange Commission.
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"Securities Act" shall mean the Securities Act of 19' )3, as amended
from time to time.
"Selling-Holder" shall mean a Holder who is selling Shares in
accordance with the provision of Section 2.2, 2.3, 3.3 or 3.4 hereof.
"Separability Date" shall have the meaning ascribed in Section 3.6
hereof.
"Shares" shall have the meaning set forth in the preamble.
"Shelf Registration" shall have the meaning set forth in Section 2.4.
"Stockholders" shall have the meaning set forth in the preamble and
shall include any of such Person's Permitted Transferees.
"Trading-Day" means each day on which the securities exchange or
quotation system which is used to determine Fair Market Value is open for
trading or quotation.
"Transfer Agent" means American Stock Transfer & Trust Company and any
successor transfer agent or registrar for the Common Stock.
2. Registration Rights.
2.1 Demand Registration.
(a) Request for Registration. At any time after the 180th day following
the earlier of (i) the listing of the Common Stock on any national securities
exchange or the inclusion for trading of the Common Stock in NASDAQ or (ii) an
initial public offering pursuant to an effective registration statement under
the Securities Act of Common Stock, Holders owning, individually or in the
aggregate, at least the Requisite Shares may make a written request for
registration under the Securities Act of their Registrable Securities (a "Demand
Registration"). Any such request will specify the number of Registrable
Securities proposed to be sold and will also specify the intended method of
disposition thereof Holdings shall give written notice of such registration
request within 10 days after the receipt thereof to all other Holders. Within 20
days after receipt of such notice by any Holder, such Holder may request in
writing that Registrable Securities be included in such registration and
Holdings shall include in the Demand Registration the Registrable Securities of
any such Selling Holder requested to be so included (the "Included Shares").
Each such request by such other Selling Holders shall specify the number of
Included Shares proposed to be sold and the intended method of disposition
thereof. Subject to Section 2.1(c), Holdings shall be required to register
Registrable Securities pursuant to this Section 2.1 on a maximum of three
separate occasions.
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(b) Effective Registration. A registration will not be deemed
to have been effected as a Demand Registration unless it has been declared
effective by the SEC and Holdings has complied in all material respects with its
obligations under this Agreement with respect thereto; provided that if, after
it has become effective, the offering of Registrable Securities pursuant to such
registration is or becomes the subject of any stop order, injunction or other
order or requirement of the SEC or any other governmental or administrative
agency, or if any court prevents or otherwise limits the sale of Registrable
Securities pursuant to the registration (for any reason other than the act or
omissions of the Selling Holders), such registration will be deemed not to have
been effected. If (i) a registration requested pursuant to this Section 2.1 is
deemed not to have been effected or (ii) the registration requested pursuant to
this Section 2.1 does not remain effective for a period of at least 90 days
beyond the effective date thereof or until the consummation of the distribution
by the Selling Holders of the Included Shares, then Holdings shall continue to
be obligated to effect an additional registration pursuant to this Section 2.1.
The Selling Holders of Registrable Securities shall be permitted to withdraw all
or any part of the Included Shares from a Demand Registration at any time prior
to the effective date of such Demand Registration. If at any time a Registration
Statement is filed pursuant to a Demand Registration, and subsequently a
sufficient number of Included Shares are withdrawn from the Demand Registration
so that such Registration Statement does not cover at least 25% of the
Registrable Securities held by all Holders, the Selling Holders who have not
withdrawn their Included Shares shall have the opportunity to include an
additional number of Registrable Securities in the Demand Registration so that
such Registration Statement covers at least 25% of the Registrable Securities
held by all Holders. If an additional number of Registrable Securities is not so
included, Holdings may withdraw the Registration Statement. Such withdrawn
Registration Statement will not count as a Demand Registration and Holdings
shall continue to be obligated to effect a registration pursuant to this Section
2.1.
(c) Priority in Demand Registrations Pursuant to Section 2.1.
If a Demand Registration pursuant to this Section 2.1 involves an underwritten
offering and the managing underwriter advises Holdings in writing that, in its
opinion, the number of securities requested to be included in such registration
(including securities of Holdings which are not Registrable Securities) exceeds
the number which can be sold in such offering, Holdings will include in such
registration only the Registrable Securities requested to be included in such
registration. In the event that the number of Registrable Securities requested
to be included in such registration exceeds the number which, in the opinion of
such managing underwriter, can be sold, the number of such Registrable
Securities to be included in such registration shall be allocated pro rata in
proportion to the respective number of shares requested to be registered to the
extent necessary to reduce the total number of shares requested to be included
in such offering to the number of shares, if any, recommended by such managing
underwriter. In the event that the number of Registrable Securities requested to
be included in such registration is less than the number which, in the opinion
of the managing underwriter, can be sold, Holdings may include in such
registration the securities Holdings proposes to sell up to the number of
securities that, in the opinion of the underwriter, can be sold.
(d) Selection of Underwriter. If the Selling Holders so elect,
the offering of such Registrable Securities pursuant to such Demand Registration
shall be in the form of an underwritten offering. The Selling Holders making
such Demand Registration shall select one or more nationally recognized firms of
investment bankers, who shall be reasonably acceptable to Holdings, to act as
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the managing Underwriter or Underwriters in connection with such offering and
shall select any additional investment bankers and managers to be used in
connection with the offering.
(e) Expenses. Holdings will pay all Registration Expenses in
connection with the registrations requested pursuant to Section 2.1(a). Each
Holder shall pay all underwriting discounts and commissions and transfer taxes,
if any, relating to the sale or disposition of such Holder's Registrable
Securities pursuant to a registration statement requested pursuant to this
Section 2.1.
2.2 Piggy-Back Registration. If at any time Holdings proposes
to file a Registration Statement under the Securities Act with respect to an
offering by Holdings for its own account or for the account of any of its
respective security holders of any class of its common equity securities (other
than (i) a Registration Statement on Form S-4 or S-8 (or any substitute form
that may be adopted by the SEC), (ii) a Registration Statement filed in
connection with an exchange offer or offering of securities solely to Holdings'
existing security holders or (iii) a Demand Registration or Shelf Registration),
then Holdings shall give written notice of such proposed filing to the Holders
of Registrable Securities as soon as practicable (but in no event less than 20
days before the anticipated filing date), and such notice shall offer such
Holders the opportunity to register such number of shares of Registrable
Securities as each such Holder may request (which request shall specify the
Registrable Securities intended to be disposed of by such Selling Holder) (a
"Piggy-Back Registration"). Holdings shall use its best efforts to cause the
managing Underwriter or Underwriters of such proposed underwritten offering to
pen-nit the Registrable Securities requested to be included in a Piggy-Back
Registration to be included on the same terms and conditions as any similar
securities of Holdings or any other security holder included therein and to
permit the sale or other disposition of such Registrable Securities in
accordance with the intended method of distribution thereof Any Selling Holder
shall have the right to withdraw its request for inclusion of its Registrable
Securities in any Registration Statement pursuant to this Section 2.2 by giving
written notice to Holdings of its request to withdraw. Holdings may withdraw a
Piggy-Back Registration at any time prior to the time it becomes effective,
provided that Holdings shall give prompt notice thereof to participating Selling
Holders. Holdings will pay all Registration Expenses in connection with each
registration of Registrable Securities requested pursuant to this Section 2.2,
and each Holder shall pay all underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of such Holder's
Registrable Securities pursuant to a registration statement effected pursuant to
this Section 2.2.
No registration effected under this Section 2.2, and no
failure to effect a registration under this Section 2.2, shall relieve Holdings
of its obligation to effect a registration pursuant to Section 2.1 or Section
2.5.
2.3 Reduction of Offering,
(a) Piggy-Back Registration. If the managing Underwriter or
Underwriters of any underwritten offering described in Section 2.2 have
informed, in writing. the Selling Holders of the Registrable Securities
requesting inclusion in such offering that it is their opinion that the total
number of shares which Holdings, the Selling Holders and any other Persons
desiring to participate
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in such registration intend to include in such offering is such as to materially
and adversely affect the success of such offering, including the price at which
such securities can be sold, then the number of shares to be offered for the
account of the Selling Holders and all such other Persons (other than Holdings)
participating in such registration shall be reduced or limited pro rata in
proportion to the respective number of shares requested to be registered to the
extent necessary to reduce the total number of shares requested to be included
in such offering to the number of shares, if any, recommended by such managing
Underwriters; provided. however, that if such offering is effected for the
account of any security holder of Holdings other than the Selling Holders,
pursuant to the demand registration rights of any such security holder, then the
number of shares to be offered for the account of Holdings (if any) and the
Selling Holders (but not such security holders who have exercised their demand
registration rights) shall be reduced or limited pro rata in proportion to the
respective number of shares requested to be registered to the extent necessary
to reduce the total number of shares requested to be included in such offering
to the number of shares, if any, recommended by such managing Underwriters.
(b) If, as a result of the proration provisions of this
Section 2.3, any Selling Holder shall not be entitled to include all Registrable
Securities in a Piggy-Back Registration that such Selling Holder has requested
to be included, such Selling Holder may elect to withdraw his request to include
Registrable Securities in such registration (a "Withdrawal Election"); provided,
however, that a Withdrawal Election shall be irrevocable and, after making a
withdrawal Election, a Selling Holder shall no longer have any right to include
Registrable Securities in the registration as to which such Withdrawal Election
was made.
2.4 Shelf Registration. If prior to August 1, 2003, Holdings
has not completed an initial public offering of its Common Stock, Holdings shall
prepare and file with the SEC a registration statement for an offering to be
made on a continuous basis pursuant to Rule 415 covering all of the Registrable
Securities (the "Shelf Registration") and take all steps necessary to cause such
Shelf Registration to become effective and to permit the Holders to dispose of
Registrable Securities Holdings shall file with the SEC the Shelf Registration
on or prior to 30 days after such date (the "Filing Date"). The Shelf
Registration shall be on the appropriate form permitting registration of such
Registrable Securities for resale by the Holders thereof in the manner or
manners designated by them (including, without limitation, one or more
underwritten offerings). Holdings shall use its best efforts to cause the Shelf
Registration to be declared effective under the Securities Act on or prior to 60
days after the Filing Date (the "Effectiveness Date") and to keep the Shelf
Registration continuously effective under the Securities Act until (i) the date
which is 36 months following the date on which the Shelf Registration was
initially declared effective by the SEC (the "Effectiveness Period"), or (ii)
such shorter period ending when all Registrable Securities covered by the Shelf
Registration have been sold, provided that the Effectiveness Period shall be
extended to the extent required solely to permit dealers to comply with the
applicable prospectus delivery requirements under Rule 174 under the Securities
Act in connection with sales of Common Stock other than sales pursuant to the
Shelf Registration.
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3. Transfers of Shares.
3.1 Generally. All Shares at any time and from time to time
outstanding shall be held subject to the conditions and restrictions set forth
in this Agreement. the provisions of which shall apply equally to the
Stockholders and their transferees (except as otherwise expressly stated), and
each Stockholder by executing this Agreement or by accepting a certificate
representing shares of Common Stock or other indicia of ownership therefor from
Holdings agrees with Holdings and with each other Stockholder to such conditions
and restrictions.
3.2 Restrictions on Transfer.
(a) No Stockholder shall sell, assign, give, transfer,
exchange, convert, devise, bequeath, pledge or otherwise dispose of
(collectively, "transfer") any Shares or any interest therein except (A) in
compliance with Sections 3.5 and 3.6 and (B)(i) to a Permitted Transferee, (ii)
in a transaction that complies with Section 3.3 or (iii) pursuant to an
effective Registration Statement under the Securities Act. Each certificate
representing shares of Common Stock shall contain conspicuous notation on such
certificate indicating that the transfer of such shares of Common Stock is
subject to the terms and restrictions of this Agreement, and each Stockholder
consents to the placement of such legend on the certificate or certificates
representing the shares of Common Stock owned by such Stockholder.
(b) Each Holder agrees that it will not transfer any Shares or
any interest therein except in compliance with Sections 3.5 and 3.6.
3.3 Take-Along Rights.
(a) In the event that, after the Separability Date, any of the
Stockholders proposes to transfer (other than in a bona fide public distribution
pursuant to an effective Registration Statement under the Securities Act) in a
single transaction or a series of related transactions a number of shares of
Common Stock greater than or equal to 10% of the shares of Common Stock
collectively owned by the Stockholders on the date hereof to a Non-Qualified
Transferee, such Stockholders (the "Selling Stockholders") shall give written
notice (the "Take-Along, Notice") to the Holders of Common Stock (the
"Non-Selling Stockholders") stating (i) the name and address of the
Non-Qualified Transferee, (ii) the price and terms upon which the Non-Qualified
Transferee proposes to purchase Shares owned by any Stockholder and (iii) the
number of shares proposed to be transferred to the Non-Qualified Transferee. The
Non-Selling Stockholders each shall have the irrevocable and exclusive option,
but not the obligation (the "Take-Along Option"), to sell to the Non-Qualified
Transferee, up to such number of Shares proposed to be sold by the Selling
Stockholders (the "Included Shares") determined in accordance with Section
3.3(b), at the price and on the terms set forth in the Take-Along Notice. The
Take-Along Option shall be exercised by any or all of the Non-Selling
Stockholders by giving written notice to the Selling Stockholders proposing to
make such transfer, within ten business days of receipt of the Take-Along
Notice. indicating its election to exercise the Take-Along Option (the
"Participating Stockholders"). Failure by any Non- Selling Stockholder to give
such notice within the ten business day period shall be deemed an election by
such Non-Selling Stockholder not to sell its Shares pursuant to that Take-Along
Notice.
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The closing with respect to any sale to a Non-Qualified Transferee pursuant to
this Section shall be held at the time and place specified in the Take-Along
Notice but in any event within 30 days of the date the Take-Along Notice is
given; provided that if through the exercise of reasonable efforts the Selling
Stockholders are unable to cause such transaction to close within 30 days, such
period may be extended for such reasonable period of time as may be necessary to
close such transaction. Consummation of the sale of shares by any Selling
Stockholder to a Non-Qualified Transferee shall be conditioned upon consummation
of the sale by each Participating Stockholder to such NonQualified Transferee of
the Included Shares, if any. As used in this Section 3 )3(a), the term
"transfer" shall be deemed to include all transactions or series of transactions
pursuant to which beneficial ownership of Common Stock is succeeded, directly or
indirectly, to a Non-Qualified Transferee, regardless of the number or type of
intermediate entities or transactions between a Management Stockholder and such
Non-Qualified Transferee.
(b) The number of Shares purchased from each Participating
Stockholder and the Selling Stockholders and the number of shares of Common
Stock purchased from each other Person (the "Other Take-Along Persons") who has
a right to sell and who has exercised such night to sell shares of Common Stock
pursuant to the Amended and Restated Stockholders Agreement, dated as of October
31, 1995, and as amended by Amendment Xx. 0, Xxxxxxxxx Xx. 0 xxx Xxxxxxxxx Xx. 0
thereto (the "Amended 1995 Shareholder Agreement") among Holdings and the
Stockholders, shall be determined by multiplying the aggregate number of Shares
proposed to be purchased from the Selling Stockholders or their Permitted
Transferees by a Non-Qualified Transferee by a fraction, the numerator of which
is the total number of Shares owned by such Participating Stockholder or such
Selling Stockholder or the total number of shares of Common Stock owned by such
Other Tag- Along Persons, as the case may be, and the denominator of which is
the sum of the total number of Shares owned by all Participating Stockholders,
the total number of Shares owned by the Selling Stockholders and the total
number of shares of Common Stock owned by the Other Tag-Along Persons. In the
event that any Participating Stockholder shall elect to sell less than the
maximum number of Shares he is entitled to sell pursuant to the provisions of
this Section 3.3(b) then each other Participating Stockholder and each Other
Tag-Along Person shall have the right to sell additional Shares and shares of
Common Stock, as the case may be, pro rata. according to the respective number
of Shares and shares of Common Stock offered for sale by the Participating
Stockholders and the Other Tag-Along Persons.
(c) The Selling Stockholders who are parties to a sale to a
Non-Qualified Transferee shall arrange for payment directly by the Non-Qualified
Transferee to each Participating Stockholder, upon delivery of the certificate
or certificates representing the Shares duly endorsed for transfer, together
with such other documents as the Non-Qualified Transferee may reasonably
request. The reasonable costs and expenses incurred by the Selling Stockholders
and Participating Stockholders in connection with a sale of Shares subject to
this Section 3.3 shall be allocated pro rata based upon the number of shares
sold by each Stockholder to a Non-Qualified Transferee; provided that the costs
and expenses shall not include the fees and expenses of more than one law firm,
which firm shall be selected by the Selling Stockholders and shall be counsel of
recognized national standing representing the interests of the Selling
Stockholders and the Participating Stockholders, unless representation of the
Selling Stockholders and the Participating Stockholders by the same counsel, due
to actual or potential differing interests between them, shall create a conflict
of interest, in which
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case the costs and expenses shall include the reasonable fees and expenses of
one additional law firm designated by Participating Stockholders proposing to
sell a majority of the Shares proposed to be sold by all Participating
Stockholders.
(d) If at the end of 30 days following the date on which a
Take-Along Notice was given, or as otherwise extended pursuant to the provisions
of Section 3.3(a), the sale of shares of Common Stock by the Selling
Stockholders and the sale of the Included Shares have not been completed in
accordance with the terms of the Non-Qualified Transferee's offer, all
certificates representing the Included Shares shall be returned to the
Participating Stockholders, and all the restrictions on sale, transfer or
assignment contained in this Agreement with respect to Shares owned by the
Selling Stockholders shall again be in effect.
3.4 Obligation to Sell Under Certain Circumstances.
(a) In the event that, after the Separability Date, the
Investors determine to transfer all of the Common Stock then owned, beneficially
or of record, by them in the aggregate to a Non-Qualified Transferee other than
a bona fide public distribution pursuant to an effective Registration Statement
under the Securities Act, the Investors shall have the right to require the
Holders to sell all of the Shares then held by them to such Non-Qualified
Transferee subject to the satisfaction of all of the following conditions: (i)
the consideration per share of Common Stock or equivalent to be received by the
Holders shall be cash or readily marketable securities which, upon receipt by a
Holder, will be freely transferable and not subject to any restriction on the
sale or disposition thereof-, (ii) the consideration to be received by the
Holders shall be identical to the consideration per share of Common Stock or
equivalent to be received by the Stockholders; (iii) the consideration per Share
to be received by the Holders shall not be less than the Fair Market Value per
share of the Common Stock; and (iv) after giving effect to such transaction, the
Investors shall not own, directly or indirectly, any common equity security, or
any warrant, options or other rights convertible into or exercisable for common
equity security, of the transferee entity except as received as part of the
consideration paid to all holders of Common Stock in such transaction.
(b) The Investors who are parties to a sale subject to this
Section 3.4, shall arrange for payment directly to each Holder, upon the closing
of such sale and delivery of the certificate or certificates representing the
Shares held by such Holder duly endorsed for transfer, together with such other
documents as the buyer of the Common Stock may reasonably request. The
reasonable costs and expenses incurred by the Stockholders and the Holders in
connection with a sale of Shares subject to this Section 3.4 shall be paid by
Holdings; provided that the costs and expenses shall not include the cost of
more than one law firm, which firm shall be selected by Holdings and shall be
counsel of recognized national standing.
(c) The Holders shall not be required to make any
representation or warranty in connection with any sale Shares pursuant to this
Section 3.4, except, as to each Holder, representations concerning such Holder's
title to the Shares to be transferred by it and such Holder's ability to
transfer such Shares.
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3.5 Registration of Transfers and Exchanges.
(a) Transfer and Exchange of Definitive Certificates. Holdings
and the Transfer Agent shall not be obligated to register the transfer or
exchange of any Definitive Certificate that is a Restricted Security unless such
Shares are delivered to the Transfer Agent duly endorsed or accompanied by
written instruments of transfer and are accompanied by the following additional
information and documents, as applicable:
(A) if such Restricted Security is being
delivered to the Transfer Agent by a holder
for registration in the name of such holder,
without transfer, a certification from such
holder to that effect (in substantially the
form of Exhibit A hereto); or
(B) if such Restricted Security is being
transferred to a Qualified Institutional
Buyer in accordance with Rule 144A or
pursuant to an exemption from registration
in accordance with Rule 144, a certification
to that effect (in substantially the form of
Exhibit A hereto); or
(C) if such Restricted Security is being
transferred in reliance on another exemption
from the registration requirements of the
Act, a certification to that effect (in
substantially the form of Exhibit A hereto)
and an Opinion of Counsel reasonably
acceptable to Holdings and to the Transfer
Agent to the effect that such transfer is in
compliance with the Securities Act.
(b) Restrictions on Transfer of a Definitive Certificate for a
Beneficial Interest in a Global Certificate. A Definitive Certificate may not be
exchanged for a beneficial interest in a Global Certificate except upon
satisfaction of the requirements set forth below. Upon receipt by the Transfer
Agent of a Definitive Certificate, duly endorsed or accompanied by appropriate
instruments of transfer, in form satisfactory to the Transfer Agent, together
with:
(A) if such Definitive Certificate represents
Restricted Securities, certification,
substantially in the form of Exhibit A
hereto, that such Definitive Certificate is
being transferred to a Qualified
Institutional Buyer (as defined in Rule
144A) in accordance with Rule 144A; and
(B) whether or not such Definitive Certificate
represents Restricted Securities, written
instructions directing the Transfer Agent to
make, or to direct the Depositary to make,
an endorsement on the Global Certificate to
reflect an increase in the aggregate number
of shares of Common Stock represented by the
Global Certificate,
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then the Transfer Agent shall cancel such Definitive Certificate and cause, or
direct the Depositary to cause, in accordance with the standing instructions and
procedures existing between the Depositary and the Transfer Agent, the number of
shares of Common Stock represented by the Global Certificate to be increased
accordingly. If no Global Certificate is then outstanding, Holdings shall issue
and the Transfer Agent shall authenticate a new Global Certificate in the
appropriate amount.
(c) Transfer and Exchange of Global Certificate. The transfer
and exchange of a Global Certificate or beneficial interests therein shall be
effected through the Depositary, in accordance with this Agreement (including
the restrictions on transfer set forth herein) and the procedures of the
Depositary therefor.
(d) Transfer of a Beneficial Interest in a Global Certificate
for a Definitive Certificate.
(i) Subject to Section 3.6, any person having a
beneficial interest in a Global Certificate may upon
request exchange such beneficial interest for a
Definitive Certificate. Upon receipt by the Transfer
Agent of written instructions or such other form of
instructions as is customary for the Depositary from
the Depositary or its nominee on behalf of any person
having a beneficial interest in a Global Certificate
and upon receipt by the Transfer Agent of a written
order or such other form of instructions as is
customary for the Depositary or the person designated
by the Depositary as having such a beneficial
interest containing registration instructions and, in
the case of a beneficial interest in shares that are
Restricted Securities only, the following additional
information and documents:
(A) If such beneficial interest is being
transferred to the person designated by the
Depositary as being the beneficial owner, a
certification from such person to that
effect (in substantially the form of Exhibit
A hereto); or
(B) if such beneficial interest is being
transferred to a qualified institutional
buyer (as defined in Rule 144A) in
accordance with Rule 144A or pursuant to an
exemption from registration in accordance
with Rule 144 or pursuant to an effective
registration statement under the Securities
Act, a certification to that effect from the
transferee or transferor (in substantially
the form of Exhibit A hereto); or
(C) if such beneficial interest is being
transferred in reliance on another exemption
from the registration requirements of the
Securities Act, a certification to that
effect from the transferee or transferor (in
substantially the form of Exhibit A hereto)
and an opinion of counsel from the
transferee or transferor reasonably
acceptable to Holdings
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and to the Transfer Agent to the effect that
such transfer is in compliance with the Act,
then the Transfer Agent will cause, in accordance with the
standing instructions and procedures existing between the
Depositary and the Transfer Agent, the aggregate amount of the
Global Certificate to be reduced and, following such
reduction, Holdings will execute and, upon receipt of an
authentication order in the form of an Officers' Certificate
(as defined), the Transfer Agent will authenticate and deliver
to the transferee a Definitive Certificate.
(ii) Definitive Certificates issued in exchange for a beneficial
interest in a Global Certificate pursuant to this Section
3.5(d) shall be registered in such names and in such
authorized denominations as the Depositary, pursuant to
instructions from its direct or indirect participants or
otherwise, shall instruct the Transfer Agent in writing. The
Transfer Agent shall deliver such Definitive Certificates to
the persons in whose names such Definitive Certificates are
registered.
(e) Restrictions on Transfer and Exchange of Global Certificates.
Notwithstanding any other provisions of this Agreement (other than the
provisions set forth in subsection (f) of this Section 3.5), a Global
Certificate may not be transferred as a whole except by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
(f) Issuance of Definitive Certificates in Absence of Depository. If at
anytime:
(i) the Depositary for the Global Certificates notifies Holdings
that the Depositary is unwilling or unable to continue as
Depositary for the Global Certificates and a successor
Depositary for the Global Certificates is not appointed by
Holdings within 90 days after delivery of such notice; or
(ii) Holdings, at its sole discretion, notifies the Transfer Agent
in writing that it elects to cause the issuance of Definitive
Certificates under this Agreement and such action would not
cause the Common Stock to be ineligible for trading in the
Private Offering, Resales and Trading through Automated
Linkages ("PORTAL") Market,
then Holdings will execute, and the Transfer Agent, upon receipt of an officers'
certificate signed by two officers of Holdings (one of whom must be the
principal executive officer, principal financial officer or principal accounting
officer) (an "Officers' Certificate") requesting the authentication and delivery
of Definitive Certificates, will authenticate and deliver Definitive
Certificates, in an aggregate number equal to the aggregate number of shares
represented by the Global Certificate, in exchange for such Global Certificate.
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(g) Legends.
(i) Except as permitted by the following paragraph (ii), each
Definitive Certificate (and all shares of Common Stock issued
in exchange therefor or substitution thereof) shall bear a
legend substantially to the following effect:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE
UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT
OF. U.S. PERSONS EXCEPT AS SET FORTH BELOW. EACH
PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT
THE SELLER MAY BE RELYING ON THE EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY
RULE 144A THEREUNDER. BY ITS ACQUISITION HEREOF, THE
HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER
THE ACT) OR (B) IT IS AN "INSTITUTIONAL ACCREDITED
INVESTOR" (AS DEFINED IN RULE 5 01 (a)(1), (2), (3)
OR (7) UNDER THE SECURITIES ACT), (2) AGREES THAT IT
WILL NOT WITHIN TWO YEARS AFTER THE LATER OF ORIGINAL
ISSUANCE OF THIS SECURITY AND THE LAST DATE THE
SECURITY WAS HELD BY AN AFFILIATE OF THE COMPANY
RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A)
TO HOLDINGS OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE
UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 000X XXXXX XXX XXX, (X) XXXXXX
XXX XXXXXX XXXXXX TO AN INSTITUTIONAL ACCREDITED
INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES (OR
HAS FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER)
TO THE TRANSFER AGENT A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO
THE RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE
FORM OF WHICH LETTER CAN BE OBTAINED FROM THE
TRANSFER AGENT), (D) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE ACT (IF
AVAILABLE) OR (F) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT AND (3) AGREES
THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS
SECURITY IS
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TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS
SECURITY WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE
OF THIS SECURITY IF THE PROPOSED TRANSFEREE IS AN
INSTITUTIONAL ACCREDITED INVESTOR, THE HOLDER MUST,
PRIOR TO SUCH TRANSFER, FURNISH TO THE TRANSFER AGENT
AND HOLDINGS SUCH CERTIFICATIONS, LEGAL OPINIONS OR
OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY
REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION
NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
ACT.
(ii) Upon any sale or transfer of any share of Common Stock that is
a Restricted Security (including any Restricted Security
represented by a Global Certificate) pursuant to Rule 144
under the Securities Act or an effective registration
statement under the Securities Act:
(A) in the case of any Restricted Security
represented by a Definitive Certificate, the
Transfer Agent shall permit the holder
thereof to exchange such Restricted Security
for a Definitive Certificate that does not
bear the first paragraph of the legend set
forth above and rescind any related
restriction on the transfer of such
Restricted Security; and
(B) any Restricted Security represented by a
Global Certificate shall not be subject to
the provisions set forth in (i) above (such
sales or transfers being subject only to the
provisions of Section 3.5(c) through (f);
provided, however, that with respect to any
request for an exchange of a Restricted
Security that is represented by a Global
Certificate for a Definitive Certificate
that does not bear the first paragraph of
the legend set forth above, which request is
made in reliance upon Rule 144, the holder
thereof shall certify in writing to the
Transfer Agent that such request is being
made pursuant to Rule 144 (such
certification to be substantially in the
form of Exhibit A hereto).
(iii) Any Global Certificate shall bear a legend (which
would be in addition to any other legends required in
the case of a Restricted Security) in substantially
the following form:
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THIS SECURITY IS A GLOBAL CERTIFICATE AND IS
REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE
OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS
SECURITY IS NOT EXCHANGEABLE FOR SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE SHAREHOLDERS AND
REGISTRATION RIGHTS AGREEMENT DATED AS OF JULY
29,1998 AMONG THE ISSUER, MERRILL, LYNCH, XXXXXX.
XXXXXX & XXXXX INCORPORATED AND THE STOCKHOLDERS
PARTY THERETO (THE "SHAREHOLDERS AGREEMENT"), AND NO
TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF
THIS SECURITY AS A WHOLE BY THE DEPOSITORY TO A
NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE
DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF
THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE SHAREHOLDERS
AGREEMENT.
UNLESS THE CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
(h) Cancellation and/or Adjustment of a Global Certificate. At
such time as all beneficial interests in a Global Certificate have either been
exchanged for Definitive Certificates, redeemed, repurchased or canceled, such
Global Certificate shall be returned to or retained and canceled by the Transfer
Agent. At any time prior to such cancellation, if any beneficial interest in
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a Global Certificate is exchanged for Definitive Certificates, redeemed,
repurchased or canceled, the number of shares of Common Stock represented by
such Global Certificate shall be reduced and an endorsement shall be made on
such Global Certificate, by the Transfer Agent to reflect such reduction.
(i) Obligations with Respect to Transfers and Exchanges
of Definitive Certificates.
(i) To permit registrations of transfers and exchanges,
Holdings shall execute. at the Transfer Agent's
request, and the Transfer Agent shall countersign and
register Definitive Certificates and Global
Certificates.
(ii) All Definitive Certificates and Global Certificates
issued upon any registration, transfer or exchange of
Definitive Certificates or Global Certificates shall
be validly issued, fully paid and nonassessable.
3.6 Separation of Shares from Discount Notes.
(a) The Discount Notes and Shares offered pursuant to the
Purchase Agreement will initially be represented by a single certificate and
will not be separately transferable prior to the close of business on the
earlier of (the "Separability Date") (i) February 1, 1999, (ii) the date a
registration statement with respect to a registered exchange offer for the
Discount Notes or covering the sale by Holders of the Discount Notes is declared
effective under the Securities Act, (iii) the occurrence of an Event of Default
with respect to the Discount Notes or (iv) such earlier date as may be
determined by the Initial Purchaser and specified to the Transfer Agent and
Holdings in writing, at which time such Shares shall be separately transferable.
3.7 Issuances of Common Stock. Holdings covenants and agrees
that it will not issue any shares of Common Stock or of capital stock for less
than its fair market value as determined in good faith by Holdings' Board of
Directors, other than pursuant to any issuance of Common Stock pursuant to the
exercise of options and warrants outstanding as of the date of this Agreement.
3.8 Waiver of Certain Provisions. The Company and the
Stockholders hereby waive the requirement in Section 3.4 of the Amended 1995
Shareholder Agreement with respect to the Shares and any other provision of such
agreement or any other agreement between the Company and the Stockholders which
conflicts with the provisions of this Agreement.
4. Registration Procedures. In connection with the obligations
of Holdings with respect to any Registration Statement pursuant to Sections 2.1,
2.2 and 2.4 hereof, Holdings shall:
(a) prepare and file with the SEC a Registration
Statement on the appropriate form under the Securities Act, which form (i) shall
be selected by Holdings and (ii) shall comply as to form in all material
respects with the requirements of the applicable form and include all financial
statements required by the SEC to be filed therewith, and Holdings shall use its
best
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efforts to cause such Registration Statement to become effective and remain
effective in accordance with Section 2 hereof and for such additional period as
may be required pursuant to Section 6 hereof,
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be necessary to
keep such Registration Statement effective for the applicable period, cause each
Prospectus to be supplemented by any required prospectus supplement and, as so
supplemented, to be filed pursuant to Rule 424 under the Securities Act;
(c) furnish to each Holder of Registrable Securities
and to each underwriter of an underwritten offering of Registrable Securities,
if any, without charge, as many copies of each Prospectus, including each
preliminary Prospectus, and any amendment or supplement thereto and such other
documents as such Holder or underwriter may reasonably request, in order to
facilitate the public sale or other disposition of the Registrable Securities;
(d) use their best efforts to register or qualify the
Registrable Securities under all applicable state securities or Blue Sky laws of
such jurisdictions as any Holder thereof covered by a Registration Statement
shall reasonably request in writing by the time the applicable Registration
Statement is declared effective by the SEC, and do any and all other acts and
things which may be reasonably necessary or advisable to enable such Holder to
consummate the disposition in each such jurisdiction of such Registrable
Securities owned by such Holder; provided, however, that Holdings shall not be
required to (i) qualify as a foreign corporation or as a dealer in securities in
any jurisdiction where it would not otherwise be required to qualify but for
this Section 4(d), (ii) file any general consent to service of process or (iii)
subject itself to taxation in any such jurisdiction if it is not so subject;
(e) notify each Holder of Registrable Securities
promptly and, if requested by such Holder, confirm such advice in writing (i)
when a Registration Statement has become effective and when any post-effective
amendments and supplements thereto become effective, (ii) of any request by the
SEC or any state securities authority for amendments and supplements to a
Registration Statement and Prospectus or for additional information after the
Registration Statement has become effective, (iii) of the issuance by the SEC or
any state securities authority of any stop order suspending the effectiveness of
a Registration Statement or the initiation of any proceedings for that purpose,
(iv) if, between the effective date of a Registration Statement and the closing
of any sale of Registrable Securities covered thereby, the representations and
warranties of Holdings contained in any underwriting agreement, securities sales
agreement or other similar agreement, if any, relating to the offering cease to
be true and correct in all material respects or if Holdings receives any
notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation of any
proceeding for such purpose and (v) of the happening of any event during the
period a Registration Statement is effective which makes any statement made in
such Registration Statement or the related Prospectus untrue in any material
respect or which requires the making of any changes in such Registration
Statement or Prospectus in order to make the statements therein not misleading;
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(f) make every reasonable effort to obtain the
withdrawal of any order suspending the effectiveness of a Registration Statement
at the earliest possible moment;
(g) furnish to each Holder of Registrable Securities
and to the Purchaser, without charge, at least one conformed copy of each
Registration Statement and any post-effective amendment thereto (with documents
incorporated therein by reference or exhibits thereto);
(h) cooperate with the Selling Holders of Registrable
Securities to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold and not bearing any restrictive
legends and registered in such names as the selling Holders may reasonably
request at least two business days prior to the closing of any sale of
Registrable Securities:
(i) upon (A) the occurrence of any event contemplated
by Section 4(e)(v) hereof or (B) the availability of audited financial
statements of Holdings for any fiscal year (and in no event later than is
required to cause the Prospectus to comply with Section I O(a) of the Securities
Act), use reasonable efforts to prepare a supplement or post-effective amendment
to a Registration Statement or the related Prospectus or any document
incorporated therein by reference or file any other required document so that,
as thereafter delivered to the purchasers of the Registrable Securities, such
Prospectus will not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, however,
that Holdings shall not be required to amend or supplement a Registration
Statement, any related Prospectus or any document incorporated therein by
reference in the event that, and for so long as, an event occurs and is
continuing as a result of which the Registration Statement, any related
Prospectus or any document incorporated therein by reference as then amended or
supplemented would, in Holdings' good faith judgment, contain an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein not misleading in light of the circumstances
under which they are made. Holdings agrees to notify each Holder to suspend use
of the Prospectus as promptly as practicable after the occurrence of such an
event, and each Holder hereby agrees to suspend use of the Prospectus until
Holdings has amended or supplemented the Prospectus to correct such misstatement
or omission. At such time as such public disclosure is otherwise made or
Holdings determines in good faith that such disclosure is not necessary,
Holdings agrees promptly to notify each Holder of such determination, to amend
or supplement the Prospectus if necessary to correct any untrue statement or
omission therein and to furnish each Holder such numbers of copies of the
Prospectus as so amended or supplemented as each Holder may reasonably request;
(j) A reasonable time prior to the filing of any
Registration Statement, any Prospectus, any amendment to a Registration
Statement or amendment or supplement to a Prospectus or any document which is to
be incorporated by reference into a Registration Statement or a Prospectus after
initial filing of a Registration Statement, provide copies of such document to
the Holders and make available for discussion of such document the
representatives of Holdings as shall be reasonably requested by the Holders of
Registrable Securities;
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(k) Enter into an underwriting agreement in form,
scope and substance as is customary in underwritten offerings and take all such
other actions as are reasonably requested by the managing underwriters in order
to expedite or facilitate the registration or the disposition of such
Registrable Securities, and in such connection, (i) make such representations
and warranties to the underwriters, with respect to the business of Holdings and
its subsidiaries, and the Registration Statement, prospectus and documents, if
any, incorporated or deemed to be incorporated by reference therein, in each
case, in form, substance and scope as are customarily made by issuers to
underwriters in underwritten offerings, and confirm the same if and when
requested; (ii) obtain opinions of counsel to Holdings and updates thereof
(which counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the managing underwriters), addressed to the underwriters
covering the matters customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably requested by underwriters;
(iii) obtain "cold comfort" letters and updated thereof from the independent
certified public accountants of Holdings (and, if necessary, any other
independent certified public accountants of any subsidiary of Holdings or of any
business acquired by Holdings for which financial statements and financial data
are, or are required to be, included in the Registration Statement), addressed
to each of the underwriters such letters to be in customary form and covering
matters of the type customarily covered in "cold comfort" letters in connection
with underwritten offerings; and (iv) if an underwriting agreement is entered
into, the same shall contain indemnification provisions and procedures no less
favorable than those set forth in Section 5 hereof (or such other provisions and
procedures acceptable to holders of a majority of Registrable Securities covered
by such Registration Statement and the managing underwriters or agents) with
respect to all parties to be indemnified pursuant to said Section. The above
shall be done at each closing under such underwriting agreement, or as and to
the extent required thereunder;
(1) Make available for inspection by a representative
of the Holders of Registrable Securities being sold, any underwriter
participating in any such disposition of Registrable Securities, if any, and any
attorney or accountant retained by such representative of the holders or
underwriter (collectively, the "Inspectors"), at the offices where normally
kept, during reasonable business hours, all financial and other records,
pertinent corporate documents and properties of Holdings and its subsidiaries,
and cause the officers, directors and employees of Holdings and its subsidiaries
to supply all information in each case reasonably requested by any such
Inspector in connection with such Registration Statement;
(m) Comply with all applicable rules and regulations
of the SEC and make generally available to its security holders earnings
statements satisfying the provisions of Section 11(a) of the Securities Act and
Rule 158 thereunder (or any similar rule promulgated under the Securities Act)
no later than 60 days after the end of any 12-month period (or 120 days after
the end of any 12-month period if such period is a fiscal year (i) commencing at
the end of any fiscal quarter in which Registrable Securities are sold to
underwriters in a firm commitment or best efforts underwritten offering and (ii)
if not sold to underwriters in such an offering, commencing on the first day of
the first fiscal quarter of the Company after the effective date of a
Registrable Statement, which statements shall cover said 12-month periods;
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(n) if requested by the Holders in connection with
any Registration Statement, shall use its best efforts to cause (w) counsel for
Holdings to deliver an opinion relating to the Registration Statement and the
Common Stock, in customary form, (x) its officers to execute and deliver A
customary documents and certificates requested by a representative of the
Holders or any underwriter, as applicable and (y) its independent public
accountants to provide a comfort letter in customary form;
Holdings may, as a condition to such Holder's participation in
any Registration Statement, require each Holder of Registrable Securities to (i)
furnish to Holdings such information regarding the Holder and the proposed
distribution by such Holder of such Registrable Securities as Holdings may from
time to time reasonably request in writing and (ii) agree in writing to be bound
by this Agreement.
5. Indemnification and Contribution.
(a) Holdings agrees to indemnify and hold harmless each Holder
and each person, if any, who controls such Holder within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, or is under
common control with, or is controlled by, such Holder, from and against all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred by any Holder or any such
controlling or affiliated person in connection with defending or investigating
any such action or claim) caused by an), untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement (or any
amendment thereto) pursuant to which Registrable Securities were registered
under the Securities Act, or caused by an), omission or alleged omission to
state therein a material fact necessary to make the statements therein in light
of the circumstances under which they were made not misleading, or caused by any
untrue statement or alleged untrue statement of a material fact contained in any
Prospectus (as amended or supplemented if Holdings shall have furnished any
amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact necessary to make the statements
therein in light of the circumstances under which they were made not misleading,
except insofar as such losses, claims, damages or liabilities are xxxxxx by any
such untrue statement or omission or alleged untrue statement or omission based
upon information relating to any Holder furnished to Holdings in writing by such
Holder expressly for use in any such Registration Statement or Prospectus.
(b) Each Holder agrees, severally and not jointly, to
indemnify and hold harmless Holdings, its directors, its officers and each
person, if any, who controls Holdings within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from Holdings to such Holder, but only with reference to
information relating to such Holder furnished to Holdings in writing by such
Holder expressly for use in any Registration Statement (or any amendment
thereto) or any Prospectus (or any amendment or supplement thereto).
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either paragraph (a) or (b) above, such
person (the "indemnified party") shall promptly notify the person
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against which such indemnity may be sought (the "indemnifying party") in writing
and the indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the reasonable fees and disbursements of such counsel
relating to such proceeding. In any such proceeding, any indemnified party shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified parry shall have mutually agreed in
writing to the retention of such counsel or (ii) the indemnifying party fails
promptly to assume the defense of such proceeding or fails to employ counsel
reasonably satisfactory to such indemnified party or parties or (iii) the named
parties to any such proceeding (including any impleaded parties) include both
such indemnified party or parties and the indemnifying parties or an affiliate
of the indemnifying parties or such indemnified parties, and there may be one or
more defenses available to such indemnified party or parties that are different
from or additional to those available to the indemnifying parties, in which
case, if such indemnified party or parties notifies the indemnifying parties in
writing that it elects to employ separate counsel of its choice at the expense
of the indemnifying parties, the indemnifying parties shall not have the right
to assume the defense thereof and such counsel shall be at the expense of the
indemnifying parties, it being understood, however, that unless there exists a
conflict among indemnified parties, the indemnifying parties shall not, in
connection with any one such proceeding or separate but substantially similar or
related proceedings in the same jurisdiction, arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than
one separate firm of attorneys (together with appropriate local counsel) at any
time for such indemnified party or parties. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written consent
but, if settled with such consent or if there be a final Judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified party from
and against any loss or liability by reason of such settlement or judgment. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is a party, and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in
paragraph (a) or (b) of this Section 5 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by Holdings on the one hand and the Holders on the other hand
from the offering of such Registrable Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of Holdings on the one hand
and the Holders on the other hand in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative fault of Holdings on the
one hand and the Holders on the other hand 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
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information supplied by Holdings or by the Holders and the parties, relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
(e) Holdings and each Holder agrees that it would not be just
or equitable if contribution pursuant to this Section 5 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 paragraph (d) above. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in paragraph (d) above shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred (and not otherwise reimbursed) by such indemnified party in
connection with investigating or defending any such action or claim. No person
guilty of fraudulent misrepresentation (within the meaning of Section II(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The remedies provided for in
this Section 5 are not exclusive and shall not limit any rights or remedies
which may otherwise be available to any indemnified party at law or in equity.
6. Market Making. Holdings shall give the Initial Purchaser notice of
its intention to file any Registration Statement hereunder not less than ten
business days prior to the filing thereof with the SEC. If the Initial Purchaser
or any of its Affiliates in the reasonable judgment of the Initial Purchaser
would be required to deliver a prospectus in connection with sales of Common
Stock following the sale of such Common Stock to the public pursuant to the
Registration Statement (other than solely as a result of the Initial Purchaser
acting as an underwriter or dealer in connection with the Registration
Statement), Holdings shall, upon the request of the Initial Purchaser, (i)
include in the Registration Statement and the related Prospectus a "Plan of
Distribution" section permitting the Initial Purchaser to use such Prospectus in
connection with sales of the Common Stock in the course of its trading
activities as a broker-dealer and (ii) notwithstanding an), other provision this
Agreement maintain the effectiveness of such Registration Statement and comply
with the provisions of Section 4 hereof with respect to the Registration
Statement until the Initial Purchaser advises Holdings that it is no longer
required to deliver a prospectus in connection with sales of the Common Stock.
If the Initial Purchaser exercises its rights under this
Section 6, it shall be deemed and shall have the rights of "Holder" of
Registrable Securities and a Holder under Section 4 hereof and indemnify
Holdings and be indemnified by Holdings as a Holder under Section 5 hereof.
7. Miscellaneous.
(a) No Inconsistent Agreements. Holdings has not entered into
nor will Holdings on or after the date of this Agreement enter into any
agreement which is inconsistent with the rights granted to the Holders of
Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not in any way
conflict with and are not inconsistent with the rights granted to the holders of
Holdings' other issued and outstanding securities, if any, under any such
agreements.
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(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless Holdings has obtained the written consent of Holders of
at least a majority in aggregate principal amount of the outstanding Registrable
Securities affected by such amendment, modification, supplement, waiver or
consent; provided, however, a waiver or consent to departure from the provisions
hereof that relates exclusively to the rights of Holders of Registrable
Securities whose securities are being sold pursuant to a registration statement
and that does not directly or indirectly affect the rights of other Holders of
Registrable Securities may be given by the Holders of a majority of the
Registrable Securities proposed to be sold.
(c) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand delivery, registered
first-class mail, telex, Telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder to
Holdings by means of a notice given in accordance with the provisions of this
Section 7(c), which address initially is, with respect to the Initial Purchaser,
the address set forth in the Purchase Agreement; and (ii) if to Holdings,
initially at Holdings' address set forth in the Purchase Agreement and
thereafter at such other address, notice of which is given in accordance with
the provisions of this Section 7(c), with a copy to Xxxxxxxx Xxxxxxxx & Xxxxxx,
P.C., 000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx. Xxxxx 00000-0000; Attention: Xxxx
Xxxxxxxx, Esq.
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered, five
business days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt is acknowledged, if telecopied; and
on the next business day, if timely delivered to an air courier guaranteeing
overnight delivery. Copies of all such notices, demands, or other communications
shall be concurrently delivered by the person giving the same to the Trustee
under the Indenture, at the address specified in such Indenture.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of each
of the parties, including, without limitation and without the need for an
express assignment, subsequent Holders; provided, however, that nothing herein
shall be deemed to permit any assignment, transfer or other disposition of
Registrable Securities in violation of the terms of the Purchase Agreement. If
any transferee of any Holder shall acquire Registrable Securities, in any
manner, whether by operation of law or otherwise, SUCH Registrable Securities
shall be held subject to all of the terms of this Agreement, and by taking and
holding such Registrable Securities such person shall be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of
this Agreement and such person shall be entitled to receive the benefits hereof.
(E) THIRD PARTY BENEFICIARY. THE HOLDERS SHALL BE A THIRD
PARTY BENEFICIAL TO THE AGREEMENTS MADE HEREUNDER BETWEEN HOLDINGS AND THE
STOCKHOLDERS, ON THE ONE HAND, AND THE INITIAL PURCHASER, ON THE OTHER HAND, AND
THE INITIAL PURCHASER SHALL HAVE THE RIGHT TO ENFORCE SUCH AGREEMENTS DIRECTLY
TO THE EXTENT IT DEEMS SUCH ENFORCEMENT NECESSARY OR ADVISABLE TO PROTECT ITS
RIGHTS OR THE RIGHTS OF HOLDERS HEREUNDER.
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(f) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(H) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND PERFORMED WITHIN SUCH STATE, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(i) Specific Enforcement. Without limiting the remedies
available to the Initial Purchasers and the Holders, Holdings acknowledges that
any failure by Holdings to comply with its obligations under Section 2 hereof
may result in material irreparable injury to the Initial Purchasers or the
Holders for which monetary damages would not be adequate, that it would not be
possible to measure damages for such injuries precisely and that, in the event
of an), such failure, the Initial Purchasers or any Holder may obtain such
relief as may be required to specifically enforce Holdings' obligations under
Section 2.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
CLASSIC COMMUNICATIONS, INC.
By: /s/ J. XXXXXXX XXXXXXX
------------------------------
J. Xxxxxxx Xxxxxxx
Chief Executive Officer
By: /s/ J. XXXXXXX XXXXXXX
------------------------------
J. Xxxxxxx Xxxxxxx
By: /s/ XXXXXX X. SEACH
------------------------------
Xxxxxx X. Seach
By: /s/ XXXXX X. XXXXXXXX
------------------------------
Xxxxx X. Xxxxxxxx
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AUSTIN VENTURE, L.P.
By: AV PARTNERS, L.P.
By: /s/ XXXXXXX X. XXXXXX
------------------------------
Xxxxxxx X. Xxxxxx
General Partner
AUSTIN VENTURE III-A, L.P.
By: AV PARTNERS III, L.P.
By: /s/ XXXXXXX X. XXXXXX
-----------------------------
Xxxxxxx X. Xxxxxx
General Partner
AUSTIN VENTURE III-B, L.P.
By: AV PARTNERS III, L.P.
By: /s/ XXXXXXX X. XXXXXX
-----------------------------
Xxxxxxx X. Xxxxxx
General Partner
NATIONSBANC CAPITAL CORP.
By: /s/ XXXXXX X. XXXXXXXX
--------------------------------------
Xxxxxx X. Xxxxxxxx
Senior Vice President
TEXAS GROWTH FUND
By: /s/ XXXXX X. XXXXXXXXX
--------------------------------------
Xxxxx X. Xxxxxxxxx
President
BT CAPITAL PARTNERS, INC.
By: /s/ XXXXXX X. XXXXXXXXXX
--------------------------------------
Xxxxxx X. Xxxxxxxxxx
President
MERRILL, LYNCH, XXXXXX, XXXXXX & XXXXX
INCORPORATED
By: /s/ XXXXXXXX X. XXXXXXX
--------------------------------------
Xxxxxxxx X. Xxxxxxx
Vice President
UNION BANCAL VENTURE CORPORATION
By: /s/ XXXX XXXXX
--------------------------------------
Xxxx Xxxxx, Senior Vice President
By: /s/ XXXXXX X. XXXXXX
--------------------------------------
Xxxxxx X. Xxxxxx, President
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Exhibit A
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF COMMON STOCK
Re: Common Stock (the "Common Stock")
of Classic Communications, Inc.
This Certificate relates to ___________ shares of Common Stock held
in*____________ book-entry or*___________ definitive form by (the
"Transferor").
The Transferor:*
[ ] has requested the Transfer Agent by written order to deliver in
exchange for its beneficial interest in the Global Certificate held by the
Depository a certificate or certificates representing shares of Common Stock
in definitive, registered form equal to its beneficial interest in the shares
of Common Stock represented by such Global Certificate (or the portion thereof
indicated above); or
[ ] has requested the Transfer Agent by written order to exchange or
register the transfer of a certificate or certificates representing shares of
Common Stock.
In connection with such request, the Transferor does hereby certify that
Transferor is familiar with the Shareholders and Registration Rights Agreement
("Agreement") relating to the shares of Common Stock and the restrictions on
transfers thereof as provided in Section 3.5 of such Agreement, and that the
transfer of shares of Common Stock requested hereby does not require
registration under the Securities Act (as defined below) because:
[ ] Such shares of Common Stock are being acquired for the
Transferor's own account, without transfer.
[ ] Such shares of Common Stock are being transferred to a qualified
institutional buyer (as defined in Rule 144A under the Securities Act of 19')
3, as amended (the "Securities Act")), in reliance on Rule 144A.
[ ] Such shares of Common Stock are being transferred in accordance
with Rule 144 under the Securities Act.
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[ ] Such shares of Common Stock are being transferred pursuant to an
effective registration statement under the Securities Act.
[ ] Such shares of Common Stock are being transferred in reliance on
and in compliance with an exemption from the registration requirements of the
Securities Act, other than Rule 144A or Rule 144 or Regulation S under the
Securities Act. An opinion of counsel to the effect that such transfer does
not require registration under the Securities Act accompanies this
Certificate.
----------------------------------------
[INSERT NAME OF TRANSFEROR]
By:
-------------------------------------
Date:
------------------------
*Check applicable box.
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