Exhibit 10.16
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and entered
into as of October 5, 1995 among CONTINENTAL CABLEVISION, INC., a Delaware
corporation (the "Company"), the holders of Registrable Securities named in
Schedule A hereto (collectively, the "Holders" and singly, a "Holder"), and The
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Providence Journal Company, a Delaware corporation, as the representative
hereunder (the "Representative") for the Holders of Registrable Securities.
RECITALS
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A. This Agreement is being entered into in connection with, and pursuant
to section 6.21(b) of, the Agreement and Plan of Merger, dated as of November
18, 1994, as amended and restated as of August 1, 1995, among Providence Journal
Company, The Providence Journal Company, King Holding Corp., King Broadcasting
Company and the Company (the "Merger Agreement").
B. The Company has heretofore entered into (i) a Registration Rights
Agreement dated as of June 22, 1992 with Corporate Partners, L.P. and certain
other signatories thereto (collectively, the "CP Purchasers") and (ii) an
amendment thereto dated as of July 15, 1992 (said Registration Rights Agreement
and amendment are hereinafter referred to as the "CP Agreement").
C. The Company has heretofore entered into a Registration Rights Agreement
dated as of July 15, 1992 with Boston Ventures Limited Partnership III and
certain other signatories thereto (collectively, the "BV Purchasers") (said
Registration Rights Agreement is hereinafter referred to as the "BV Agreement").
D. It is intended by the Company and the Representative that this
Agreement shall become effective immediately upon the issuance of the securities
to be issued pursuant to Article 1 of the Merger Agreement (the "Merger
Securities").
AGREEMENT
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NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
covenants contained herein, and of other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company, the
Holders of Registrable Securities and the Representative, intending to be
legally bound, each hereby agrees as follows:
ARTICLE 1.
REGISTRATION UNDER SECURITIES ACT
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Section 1.01 Registration Upon Request. (a) Request. Subject to the
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provisions of this Agreement (including Section 4.13 hereof), at any time and
from time to time after the obligation of the Company under section 6.21(a) of
the Merger Agreement to effect a registered public offering of shares of Class A
Common Stock shall have either been satisfied or terminated, upon the written
request of the Representative on behalf of one or more Holders (the "Initiating
Holders") of at least fifteen percent (15%) of Registrable Securities requesting
that the Company effect the registration under the Securities Act of Registrable
Securities (which request shall specify the number of Registrable Securities to
be registered and the intended method of distribution thereof), the Company
shall provide prompt written notice of such request for registration to the
Representative (and the Representative shall be responsible for relaying such
notice to the Holders of Registrable Securities other than the Initiating
Holders) and to all record holders of CP/BV Registrable Securities (or to any
representative(s) of such holders to the extent, provided for under section 1.02
of the CP Agreement or the BV Agreement, as the case may be), and shall use its
best efforts to register under the Securities Act (a "Demand Registration"),
including by means of a shelf registration pursuant to Rule 415 under the
Securities Act if so requested in such request and if the Company is then
eligible to use such a registration, as expeditiously as may be practicable, the
Registrable Securities which the Company has been requested to register by the
Initiating Holders, together with all other Registrable Securities and CP/BV
Registrable Securities whose record holders (having received the aforementioned
written notice) shall have requested in writing to be included in such Demand
Registration within fifteen (15) days after the receipt of such written notice
(such holders together with the Initiating Holders are hereinafter referred to
as the "Selling Holders"), all to the extent requisite to permit the disposition
of such Registrable Securities and CP/BV Registrable Securities in accordance
with the plan of distribution set forth in the applicable registration
statement. In the case of any Demand Registration, the Initiating Holders must
request registration of Registrable Securities representing not less than such
number of Registrable Securities the Expected Proceeds of which, on the date of
the aforementioned written request, would equal at least $25 million.
Notwithstanding anything herein to the contrary, the rights of Holders of
Registrable Securities shall be subject to the provisions of the penultimate
sentence of Section 1.02(a) hereof.
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(b) Registration of Other Securities. Whenever the Company shall
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effect a registration pursuant to this Section 1.01 in connection with an
underwritten offering by one or more Selling Holders of Registrable Securities,
no securities other than Registrable Securities and CP/BV Registrable Securities
shall be included among the securities covered by such registration unless the
managing underwriter, if any, of such offering shall have advised the
Representative in writing that the inclusion of such other securities would not
adversely affect such offering.
(c) Registration Statement Form. Registrations under this Section
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1.01 shall be on such appropriate registration form of the Commission as shall
be selected by the Company and available to it under the Securities Act. The
Company agrees to include in any such registration statement all information
which, in the opinion of counsel to the Selling Holders of Registrable
Securities so to be registered and counsel to the Company, is reasonably
required to be included therein under the Securities Act.
(d) Limitations on Registration; Expenses. The Company will not be
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required to effect more than two (2) Demand Registrations pursuant to this
Section 1.01. Subject to the provisions of Sections 1.01(h) and 1.02(b) hereof,
the Company shall pay the Registration Expenses in connection with such Demand
Registrations provided, however, that holders of CP/BV Registrable Securities
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(but not Holders of Registrable Securities) shall be responsible for paying to
the Company a portion of such Registration Expenses as and to the extent
provided in section 1.02(b) of the CP Agreement and the BV Agreement,
respectively.
(e) Effective Registration Statement. Subject to the provisions of
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Section 1.01(i) hereof, a registration requested pursuant to this Section 1.01
shall not be deemed to have been effected (i) unless a registration statement
with respect thereto has become effective, (ii) if after it has become
effective, such registration is materially interfered with by any stop order,
injunction or similar order or requirement of the Commission or other
governmental agency or court for any reason not attributable to any of the
Selling Holders and has not thereafter become effective, or (iii) if the
conditions to closing specified in the underwriting agreement, if any, entered
into in connection with such registration are not satisfied or waived, other
than by reason of a failure on the part of any of the Selling Holders.
(f) Selection of Underwriters. In the case of any Demand
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Registration, (i) the selection of any managing underwriter(s) shall be made by
the Company (with the consent of the Representative, which consent shall not be
unreasonably
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withheld), provided, however, that, in the case of any Demand Registration where
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the Expected Proceeds of the sale of all Registrable Securities and CP/BV
Registrable Securities to be included among the securities covered by such
registration pursuant to this Section 1.01 would exceed $75 million, the
Representative shall be entitled to select (with the consent of the Company,
which consent shall not be unreasonably withheld) one (1) managing underwriter
other than the lead managing underwriter, and (ii) the selection of the
underwriters (other than the managing underwriter(s)) shall be made by the
mutual agreement of the Company and the Representative.
(g) Certain Requirements in Connection with Registration Rights. In
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the case of a Demand Registration, if the Initiating Holders requesting such
Demand Registration have determined to enter into one or more underwriting
agreements in connection therewith, all shares constituting Registrable
Securities and CP/BV Registrable Securities to be included in such Demand
Registration shall be subject to such underwriting agreements and no Person may
participate in such Demand Registration unless such Person agrees to sell his or
its securities on the basis provided in the underwriting arrangements and
completes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents which are reasonable and customary under the
circumstances.
(h) Priority in Demand Registration. If the managing underwriter of
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any underwritten offering shall advise the Company in writing (with a copy to
the Representative (and the Representative shall be responsible for relaying
such copy to the Holders of Registrable Securities) and each Selling Holder of
CP/BV Registrable Securities) that, in its opinion, the number of securities
requested to be included in such registration exceeds the number which can be
sold in such offering within a price range acceptable to the Selling Holders of
66-2/3% of the Registrable Securities requested to be included in such
registration, the Company will reduce to the number which the Company is so
advised can be sold in such offering within such price range (the "Actual Number
of Securities to be Registered"), the Registrable Securities and CP/BV
Registrable Securities requested to be included in such registration. Subject to
the provisions of Section 4.13 hereof, in such registration, each Selling Holder
shall be entitled to register up to such number of Registrable Securities or
CP/BV Registrable Securities, as the case may be, obtained by multiplying the
Actual Number of Securities to be Registered by a fraction, the numerator of
which is the number of Registrable Securities or CP/BV Registrable Securities
beneficially owned by such Selling Holder and the denominator of which is the
aggregate number of Registrable Securities and CP/BV Registrable Securities
beneficially owned by all Selling Holders. If one or more Selling Holders do not
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request the registration of the maximum number of Registrable Securities or
CP/BV Registrable Securities to which they are entitled in accordance with the
preceding sentence (such maximum number minus the number of Registrable
Securities or CP/BV Registrable Securities requested by such Selling Holder(s)
being referred to as the "Shortfall"), the other Selling Holders (the
"Participating Holders") shall be entitled to register securities in addition to
those to which they are entitled under the preceding sentence up to the amount
equal to the result obtained by multiplying the Shortfall by a fraction, the
numerator of which is the number of Registrable Securities or CP/BV Registrable
Securities, as the case may be, beneficially owned by such Participating Holder
and the denominator of which is the aggregate number of Registrable Securities
and CP/BV Registrable Securities beneficially owned by all Participating
Holders. The procedure set forth in the immediately preceding sentence shall
be applied until the Actual Number of Securities to be Registered is apportioned
among the Selling Holders in accordance with the preceding two sentences. If,
as a result of any such reduction in the number of securities requested to be
registered, the number of securities requested to be included in such
registration by the Holders of the Registrable Securities is reduced by twenty
percent (20%) or more because of the inclusion in such registration of CP/BV
Registrable Securities pursuant to the provisions of this Section 1.01, then
notwithstanding anything to the contrary contained in this Agreement or in any
other agreement or interpretation of any agreement between the Company and the
Holders of Registrable Securities, a Demand Registration in connection with such
registration will not be deemed to have been effected under Section 1.01(e)
hereof.
In the case of a registration which would have been deemed to be a
Demand Registration under Section 1.01(e) hereof but for the application of the
immediately preceding sentence of this Section 1.01(h) (a "Restricted
Registration"), the Company shall pay the Registration Expenses of the Holders
of the Registrable Securities in connection with one such Restricted
Registration (the "Paid Restricted Registration") and the Selling Holders shall
pay the Registration Expenses of any other Restricted Registration to the extent
provided for and in accordance with Section 1.02(b) hereof and of the CP
Agreement and the BV Agreement, provided, however, that the Initiating Holders
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may elect by written notice to the Company (with a copy to the Representative,
and the Representative shall be responsible for relaying such notice to the
Holders of Registrable Securities other than the Initiating Holders), after the
Paid Restricted Registration, to have the Company pay the Registration Expenses
of the Holders of Registrable Securities in one (1) subsequent Restricted
Registration, in which case the number of Demand Registrations available to the
Holders of Registrable Securities under Section 1.01(d) hereof shall remain
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unchanged but the number of Demand Registrations the expenses of which will be
paid by the Company shall be reduced from two to one.
In connection with any such registration to which this paragraph (h)
is applicable, no securities other than Registrable Securities and CP/BV
Registrable Securities shall be covered by such registration.
(i) Certain Other Matters. For purposes of Section 1.01(e)(i)
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hereof, should a Demand Registration not become effective due to the failure of
the Representative or any of the Selling Holders to perform their respective
obligations under this Agreement or the inability of the Selling Holders to
reach agreement with the underwriters on price or other customary terms for such
transaction, or in the event the Selling Holders withdraw or do not pursue the
request for the Demand Registration (in each of the foregoing cases, provided
that at such time the Company is in compliance in all material respects with its
obligations under this Agreement), then such Demand Registration shall be deemed
to have been effected.
Under the circumstances in which a Demand Registration otherwise would
be deemed to have been effected under Section 1.01(e) hereof (including as
contemplated by this Section 1.01(i)), if the Selling Holders pay the
Registration Expenses (other than the Registration Expenses referred to in
clause (a) of the definition of Registration Expenses) incurred by the Company
through the date of abandonment of the registration, the Demand Registration
shall not be deemed to have been effected for purposes of Section 1.01(e) of
this Agreement, provided, however, that if on the date of abandonment of the
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registration a preliminary prospectus related to the Demand Registration has not
been filed with the Commission, the Selling Holders shall be required to pay on
the date that is six (6) months following the date of such abandonment only one-
half (1/2) of the Company's out-of-pocket legal and accounting expenses incurred
specifically in connection with such registration. At any time during such 6-
month period, the Initiating Holders shall be entitled to reactivate the
abandoned registration, in which case the reactivated registration and abandoned
registration shall be deemed to be one registration, and the Selling Holders
shall not be required to pay any Registration Expenses.
(j) CP and BV Agreements. The Representative and the Holders of
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Registrable Securities acknowledge that the Holders of Registrable Securities
have no rights under this Agreement or otherwise to participate in a demand
registration initiated by any holder of CP/BV Registrable Securities under
Section 1.01 of the CP Agreement or the BV Agreement, respectively.
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Section 1.02 Incidental Registration. (a) Rights to Include. Subject to
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the provisions of this Agreement (including Section 4.13 hereof), if, at any
time after the obligation of the Company under section 6.21(a) of the Merger
Agreement to effect a registered public offering of shares of Class A Common
Stock shall have either been satisfied or terminated, the Company proposes to
register the offering of any shares of Class A Common Stock under the Securities
Act on Form X-0, X-0 or S-3 (or any successor or similar form thereto) in
connection with a primary public offering of Class A Common Stock being offered
for the account of the Company, the Company shall furnish prompt written notice
to the Representative of its intention to effect such registration and the
intended method of distribution in connection therewith. The Representative
shall be responsible for relaying such notice to the Holders of Registrable
Securities. Upon the written request of any Holder of Registrable Securities
made to the Company within fifteen (15) days after the delivery of the
aforementioned notice by the Company to the Representative (five (5) days if the
Company is registering on Form S-3 and a shorter time is necessary because of a
planned filing date of such Form S-3), which request shall specify the number of
shares of Registrable Securities intended to be registered, the Company shall
include such Registrable Securities in such registration, subject however to the
following sentence of this Section 1.02(a) and to the provisions of Section
1.02(c) hereof. If the Company shall thereafter determine in its sole discretion
not to register or to delay the registration of such securities, the Company
may, at its election, provide written notice of such determination to the
Representative (and the Representative shall be responsible for relaying such
notice to the Holders of Registrable Securities) and (i) in the case of a
determination not to effect a registration, shall thereupon be relieved of the
obligation to register such Registrable Securities (but, under such
circumstances, the Company shall pay any Registration Expenses reasonably
incurred by the Holders of Registrable Securities who elected to request the
incidental registration of Registrable Securities until such time as such
Holders received the Company's written notice), and (ii) in the case of a
determination to delay a registration, shall thereupon be permitted to delay
registering any Registrable Securities for the same period as the delay in
respect of securities being registered for the Company's own account. No
incidental registration effected pursuant to this Section 1.02 shall be deemed
to have been effected or otherwise relieve the Company of any of its obligations
to the Holders of Registrable Securities pursuant to Section 1.01 hereof.
(b) The Holders of Registrable Securities whose securities are
actually registered in connection with any incidental registration as provided
in Section 1.02(a) hereof shall pay a portion of the Registration Expenses for
the
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registration in question (other than Registration Expenses (i) specified in
clause (a) of the definition of Registration Expenses and (ii) incurred by or on
behalf of a selling holder (other than a holder of Registrable Securities or
CP/BV Registrable Securities) for its benefit or the benefit of persons other
than holders of Registrable Securities or CP/BV Registrable Securities), pro
rata based on the percentage of the aggregate number of shares registered
pursuant to such registration which are represented by the Registrable
Securities or CP/BV Registrable Securities of such holder; provided, however,
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that if the Company should agree to bear the Registration Expenses of any other
stockholder of the Company in any incidental registration for any other
stockholder of the Company on terms more favorable than those applicable to the
Holders of Registrable Securities, the Company will provide the more favorable
terms to the Holders of Registrable Securities.
(c) Priority in Incidental Registrations. If the managing
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underwriter of any underwritten offering shall inform the Company by letter of
its belief that the number of Registrable Securities requested to be included in
such registration would substantially interfere with such offering, then the
Company will include in such registration, to the extent of the number and type
which the Company is so advised can be sold in (or during the time of) such
offering without such substantial interference, FIRST, all securities proposed
by the Company to be sold for its own account, SECOND, subject to the provisions
of Section 4.13 hereof, all securities of the Company ranking senior to or on a
parity with (as to rights to dividends and upon liquidation) the Company's
Series A Participating Convertible Preferred Stock ("Senior Securities"),
Registrable Securities and CP/BV Registrable Securities requested to be included
in such registration (such Senior Securities, Registrable Securities and CP/BV
Registrable Securities to be included in such registration pro rata on the basis
of the Expected Proceeds from the sale thereof), and THIRD, any other securities
of the Company requested to be included in such registration.
Section 1.03 Registration Procedures. If and whenever the Company is
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required by the provisions of this Agreement to effect or cause the registration
of any Registrable Securities under the Securities Act as provided in this
Agreement, the Company shall, as expeditiously as practicable:
(a) In the case of each Demand Registration, use its best efforts to
prepare and file with the Commission and obtain the effectiveness of a
registration statement on such form as is available for the sale of Registrable
Securities by the holders thereof in accordance with the plan of distribution
set forth in
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such registration statement; provided, however, if a request for registration
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pursuant to Section 1.01 hereof is made within sixty (60) days before the end of
the Company's fiscal year and the Company is not then eligible to effect a
registration under the Securities Act by use of Form S-3 (or other comparable
short-form registration statement), the Company shall be entitled to delay the
filing of such registration statement until the earlier of (i) such time as the
Company receives audited financial statements for such fiscal year and (ii) the
expiration of 90 days after the last day of such fiscal year; and provided,
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further, that if the Company shall furnish to the Representative a
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certificate signed by the President of the Company stating that, in the good
faith judgment of the Board of Directors of the Company, it would be seriously
detrimental to the Company and its stockholders for such registration statement
to be filed on the date filing would be required under this Agreement because
such registration would require premature disclosure of any acquisition,
corporate reorganization or other material transaction involving the Company and
that it is therefore essential to defer taking action with respect to the filing
of such registration statement, then the Company may direct that such request
for registration be delayed for a period not to exceed ninety (90) days, such
right to delay a request to be exercised by the Company not more than once in
any 12-month period. The Representative shall be responsible for relaying any
such certificate to the Holders of Registrable Securities.
(b) Prepare and file with the Commission such amendments, post-
effective amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to keep such
registration statement effective for such period of time as is necessary to
complete the offering and the distribution of the securities covered thereby,
provided, however, that except with respect to any such registration statement
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filed pursuant to Rule 415 under the Securities Act, such period need not exceed
one hundred eighty (180) days (unless the Registrable Securities registered
thereunder have been sold or disposed of prior to the expiration of such 180-day
period), in each case exclusive of any period during which the prospectus used
in connection with such registration statement shall not comply with the
requirements of section 10 of the Securities Act; and to comply with the
provisions of the Securities Act applicable to the Company with respect to the
disposition of all securities covered by such registration statement during such
time as such registration statement is effective.
(c) Furnish to each seller of Registrable Securities and each
underwriter of the Registrable Securities being sold, as such seller and such
underwriter may reasonably request in order to facilitate the disposition of
Registrable Securities in
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accordance with the plan of distribution set forth in such registration
statement, (i) such number of copies (including manually executed and conformed
copies) of such registration statement and of each such amendment thereof and
supplement thereto (including all annexes, appendices, schedules and exhibits),
(ii) such number of copies of the prospectus used in connection with such
registration statement (including each preliminary prospectus and the final
prospectus filed pursuant to Rule 424(b) under the Securities Act), and (iii)
such other documents incident thereto.
(d) Use its best efforts to register or qualify the Registrable
Securities covered by such registration statement under the securities or "blue
sky" laws of such jurisdictions in which an exemption is not available as the
Representative and the managing underwriter shall reasonably request, and do any
and all other reasonable acts and things which may be necessary or advisable to
permit the offering and disposition of Registrable Securities in such
jurisdictions in accordance with the plan of distribution set forth in the
registration statement; provided, however, the Company shall not be required to
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qualify generally to do business as a foreign corporation, subject itself to
taxation, or consent to general service of process, in any jurisdiction wherein
it would not, but for the requirements of this Section 1.03, be obligated to do
so.
(e) Use its best efforts to cause the Registrable Securities covered
by such registration statement to be registered with, or approved by, such other
public, governmental or regulatory authorities as may be necessary in the
reasonable judgment of counsel for the Selling Holders and the Company to
facilitate the disposition of such Registrable Securities in accordance with the
plan of distribution set forth in such registration statement.
(f) Notify each seller of any Registrable Securities covered by such
registration statement and the managing underwriter, if any, promptly and, if
requested by any such Person, confirm such notification in writing, (i) when a
prospectus or any prospectus supplement has been filed with the Commission, and,
with respect to such registration statement or any post-effective amendment
thereto, when the same has been declared effective by the Commission, (ii) of
any request by the Commission for amendments or supplements to such registration
statement or related prospectus, or any written request by the Commission for
additional information, (iii) of the issuance by the Commission of any stop
order or the receipt of notice of the initiation of any proceedings for such or
a similar purpose (and the Company shall make every reasonable effort to obtain
the withdrawal of any such order at the earliest possible moment and the Holders
of Registrable Securities shall cooperate in all reasonable respects in such
efforts), (iv) of the receipt by the Company of any notification with respect to
the suspension of the qualification of any of the Registrable Securities for
sale in any jurisdiction or the receipt of notice of the initiation or
threatening of any proceeding for such purpose (and the Company shall make every
reasonable effort to obtain the withdrawal of any such suspension at the
earliest possible moment and the Holders of Registrable Securities shall
cooperate in all
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reasonable respects in such efforts), (v) of the occurrence of any event during
the period when a prospectus with respect to the Registrable Securities is
required to be delivered under the Securities Act which requires the making of
any changes to such registration statement or related prospectus so that such
documents will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading (and the Company shall promptly prepare and furnish to such
seller and any managing underwriter a reasonable number of copies of a
supplemented or amended prospectus or preliminary prospectus such that, as
thereafter delivered to the purchasers of such Registrable Securities, such
prospectus or preliminary prospectus shall not include an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they are made, not misleading), and (vi) of the Company's determination
that the filing of a post-effective amendment to such registration statement
shall be necessary or appropriate. Each Holder of Registrable Securities shall
be deemed to have agreed by acquisition of such Registrable Securities that upon
the receipt of any notice from the Company of the occurrence of any event of the
kind described in clause (v) of this Section 1.03(f), such Holder shall
forthwith discontinue such Holder's offer and disposition of Registrable
Securities until such Holder shall have received copies of an appropriately
supplemented or amended prospectus or preliminary prospectus and, if so directed
by the Company, shall deliver to the Company, at its expense, all copies (other
than permanent file copies) of the prospectus or preliminary prospectus covering
such Registrable Securities which are then in such Holder's possession. In the
event the Company shall provide any notice of the type referred to in the
preceding sentence, the 180-day period mentioned in Section 1.03(b) hereof shall
be extended by the number of days from and including the date such notice is
provided to and including the date when each seller of any Registrable
Securities covered by such registration statement and the managing underwriter
shall have received copies of the corrected prospectus contemplated by clause
(v) of this Section 1.03(f), plus an additional seven (7) days. The underwriters
or, if there are no underwriters, each seller of Registrable Securities shall
deliver such supplemented or amended
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prospectus or preliminary prospectus to all purchasers or offerees of the
Registrable Securities sold by it to which such delivery may be required or
advisable under the Securities Act and any applicable state securities or "blue
sky" laws.
(g) Otherwise use its best efforts in connection with each
registration and offering of Registrable Securities hereunder to comply with all
applicable rules and regulations of the Commission, as the same may hereafter be
amended, including section 11(a) of the Securities Act and Rule 158 thereunder.
(h) Use its best efforts to cause all such Registrable Securities
covered by such registration statement to be listed on each securities exchange
on which the same class of securities issued by the Company are then listed, if
the listing of such Registrable Securities is then permitted under the rules and
regulations of such exchange and, if requested by the Holders of Registrable
Securities, cause all such Registrable Securities that are of a different class
or series than those Company securities already listed or traded to be listed on
one (but not more than one) securities exchange reasonably requested by the
Representative.
(i) Engage and provide a transfer agent and registrar (which in each
case may be the Company) for all Registrable Securities covered by such
registration statement not later than the effective date of such registration
statement.
(j) Furnish to each seller of Registrable Securities a signed
counterpart of an opinion from counsel to the Company, and a "cold comfort"
letter from the Company's independent certified public accounting firm covering
such matters of the type customarily covered by such opinions and "cold comfort"
letters as any managing underwriter and the Representative shall reasonably
request.
(k) Subject to confidentiality restrictions reasonably required by
the Company, at reasonable times and upon reasonable notice, and as necessary to
permit a reasonable investigation with respect to the Company and its business
in connection with the preparation and filing of such registration statement,
make available for inspection by any seller of Registrable Securities covered by
such registration statement, by any managing underwriter or other underwriters
participating in any disposition of Registrable Securities, and by any attorney,
accountant or other agent, representative or advisor retained by any such seller
or underwriters, all pertinent financial and other records and corporate
documents of the Company; and cause all of the Company's officers, directors and
employees to discuss pertinent aspects of the Company's business with any such
seller, underwriter, accountant, agent, representative or advisor in
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connection with such registration statement; provided, however, that the Company
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shall not be obligated pursuant to this Section 1.03(k) to provide access to any
information which it reasonably considers to be a trade secret or similar
confidential information.
(l) Permit any Holder of Registrable Securities, which Holder, in the
judgment of its counsel, might be deemed to be a "control person" of the Company
(within the meaning of section 15 of the Securities Act or section 20 of the
Exchange Act), to participate in the preparation of such registration statement
and include therein material, furnished to the Company in writing which, in the
reasonable judgment of such Holder and its counsel, is required to be included
therein; and
(m) If any registration statement refers to any Holder of Registrable
Securities by name or otherwise as the holder of any securities of the Company,
and if such Holder reasonably believes it is or may be deemed to be a control
person in relation to, or an Affiliate of, the Company, then such Holder shall
have the right to require (i) the insertion in such registration statement of
language, in form and substance reasonably satisfactory to such Holder, to the
effect that the ownership by such Holder of such securities is not to be
construed as and is not intended to be a recommendation by such Holder of the
investment quality of, or the relative merits and risks attendant to the
purchase of, the Company's securities covered thereby, and that such ownership
does not imply that such Holder will assist in meeting any future financial or
operating requirements of the Company, or (ii) in the case where the reference
to such Holder by name or otherwise is not required by the Securities Act or any
similar federal or state statute then in effect, the deletion of the reference
to such Holder.
Section 1.04 Underwritten Offerings. (a) Requested Underwritten
---------------------- ----------------------
Offerings. If requested by the underwriters for any underwritten offering by
---------
Holders of Registrable Securities pursuant to a Demand Registration, the Company
and the Selling Holders will use their best efforts to enter into an
underwriting agreement with such underwriters for such offering, such agreement
(i) to be reasonably satisfactory in substance and form to the Company, the
Representative and the underwriters and (ii) to contain such representations and
warranties by the Company and such other terms as are reasonable and customary
in the circumstances on the part of an issuer in agreements of that type,
including, without limitation, indemnities to the effect and to the extent
provided in Article 2 hereof. The Representative and the Holders of the
Registrable Securities proposed to be distributed by such underwriters shall
cooperate with the Company in the negotiation of the underwriting agreement.
Such Holders of Registrable Securities shall be
-13-
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 other than representations,
warranties or agreements regarding such Holder, such Holder's Registrable
Securities and such Holder's intended method of distribution as otherwise
required by law.
(b) Incidental Underwritten Offerings. If the Company proposes to
---------------------------------
register any of its securities under the Securities Act as contemplated by
Section 1.02 hereof and such securities are distributed by or through one or
more underwriters, 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 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 and such
Holder's intended method of distribution or as otherwise required by law.
(c) Limitations on Sale or Distribution of Other Securities.
-------------------------------------------------------
Anything herein to the contrary notwithstanding (including Section 1.01(a)
hereof), if a registration of any of the Company's securities shall be effected
by the Company, whether or not for its own account, by means of an underwritten
offering, each Holder of Registrable Securities shall be deemed to have agreed
by acquisition of such Registrable Securities not to effect any public sale or
distribution of any Registrable Securities, including any resale pursuant to
Rule 144 under the Securities Act, and to use such Holder's best efforts not to
effect any such public sale or distribution (other than as part of such
underwritten offering) of any other security which, with notice, lapse of time
and/or payment of monies, are exchangeable or exercisable for or convertible
into any Registrable
-14-
Securities, during the 15-day period prior to, and during the 120-day period (or
such longer period as shall have been requested by the managing underwriters)
commencing on, the effective date of the registration statement filed with the
Commission in connection with such underwritten offering.
(d) In order to ensure compliance with the provisions of Section
1.04(c) hereof, the Company hereby agrees to notify the Representative as to the
status and proposed effective date of any registration statement of the Company
which is filed with the Commission. The Representative shall be responsible for
relaying such notice to the Holders of Registrable Securities.
(e) The Company hereby agrees not to effect, except pursuant to
employee benefit plans, any public sale or distribution of any securities of the
same class as (or otherwise similar to) the Registrable Securities, or any
securities which, with notice, lapse of time and/or payment of monies, are
exchangeable or exercisable for or convertible into any such securities during
the 15-day period prior to, and during the 90-day period commencing on, the
effective date of a registration statement filed with the Commission in
connection with an underwritten offering effected pursuant to Section 1.01 of
this Agreement, except to the extent otherwise required by the CP Agreement or
the BV Agreement.
(f) Without limiting the generality of the foregoing, the provisions
of Section 1.04(c) hereof shall not apply to any Holder of Registrable
Securities if such Holder is prevented by statute or other applicable regulation
from agreeing to such provisions.
Section 1.05 Certain Agreements of the Company and Holders of Registrable
------------------------------------------------------------
Securities. (a) The Holders of Registrable Securities included in any
----------
registration shall furnish to the Company such information regarding such Holder
and the plan of distribution proposed by such Holder as the Company may
reasonably request and as shall reasonably be required in connection with any
registration, qualification or compliance referred to in this Agreement. In the
case of a Demand Registration, the Company agrees that any plan of distribution
included in the registration statement (which plan relates to the Holders of
Registrable Securities) shall be as reasonably specified by the Holders of
Registrable Securities.
If requested by the Company, information with respect to any Holder of
Registrable Securities required, in the opinion of counsel for the Company and
the Representative, to be included pursuant to the Securities Act in any
registration statement or prospectus for an offering of Registrable Securities
shall be furnished to the Company promptly by such Holder in writing in a
-15-
form specifically and expressly for use in such registration statement or
prospectus.
(b) If at the time of any transfer of any Registrable Securities,
such Registrable Securities shall not have been theretofore registered under the
Securities Act, the Company may require, as a condition of allowing such
transfer, that the Holder thereof or such Holder's transferee furnish to the
Company (i) such information as is necessary in order to establish that such
transfer may be made without registration under the Securities Act; and (ii) at
the expense of the Holder thereof or such Holder's transferee, an opinion of
legal counsel designated by such Holder or such Holder's transferee to the
effect that such transfer may be made without registration under the Securities
Act, except that nothing contained in this Section 1.05(b) shall relieve the
Company from complying with any request for registration, qualification or
compliance made pursuant to the other provisions of this Agreement.
(c) Each Holder of Registrable Securities agrees that it will keep
confidential and will not disclose or divulge any confidential, proprietary or
secret information which such Holder may obtain from the Company, and which the
Company has marked "Confidential", "Proprietary" or "Secret" or has otherwise
identified as being such, pursuant to financial information, reports and other
materials and discussions with officers, directors, employees or agents made
available by the Company as required hereunder unless such information is or
becomes known to such Holder from a Person other than the Company (other than as
a result of a breach of a duty of confidentiality owed to the Company by such
Person) or is or becomes publicly known other than as a result of a breach of
this provision, or unless the Company gives its written consent to such Holder's
release of such information, except that no such written consent shall be
required (and such Holder shall be free to release such information) if such
information is to be provided to such Holder's counsel or accountant, or to an
officer, director, employee, advisor or partner of such Holder, provided that
--------
such Holder shall inform the recipient of the confidential nature of such
information, and shall require the recipient to treat the information as
confidential to the same extent as such Holder.
(d) In no event shall any sale of Registrable Securities be made
knowingly by any Holder of Registrable Securities, without the prior written
consent of the Company, to any Person (including Affiliates of any such Person)
which, to the knowledge of such Holder (or the knowledge of any underwriter for
such Holder), is (or would be after such sale) a "controlling person" of the
Company within the meaning of section 15 of the Securities Act or section 20 of
the Exchange Act.
-16-
(e) Each Holder of Registrable Securities agrees to perform any
further acts and to execute and deliver any further documents that may
reasonably be requested or necessary to confirm, or to carry out, the provisions
of this Agreement (including the provisions of Article 2 of this Agreement).
ARTICLE 2.
INDEMNIFICATION
---------------
Section 2.01 Indemnification. (a) With respect to each registration of
---------------
Registrable Securities pursuant to this Agreement, the Company hereby
indemnifies, to the fullest extent permitted by law, each Holder of Registrable
Securities included in such registration, its officers and directors, if any,
and each Person, if any, who controls such Holder within the meaning of section
15 of the Securities Act and section 20 of the Exchange Act, against all losses,
claims, damages, liabilities (or proceedings in respect thereof) and reasonable
expenses (under the Securities Act, common law and otherwise), joint or several,
caused by (i) any untrue statement or alleged untrue statement of a material
fact contained in the applicable registration statement or prospectus, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or (ii) any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus, if used prior to the effective date of such registration
statement (unless such statement is corrected in the final prospectus and the
Company has previously furnished copies thereof to any Holder of Registrable
Securities included in such registration which is seeking such indemnification
and to the underwriters of the registration in question), or contained in the
final prospectus (as amended or supplemented if the Company shall have filed
with the Commission any amendment thereof or supplement thereto) if used within
the period during which the Company is required to keep the registration
statement to which such prospectus relates current, or the omission or alleged
omission to state therein a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading; provided, however, that such indemnification shall not extend to
-------- -------
any such losses, claims, damages, liabilities (or proceedings in respect
thereof) or expenses which are caused (x) by any untrue statement or alleged
untrue statement contained in, or by any omission or alleged omission from,
information furnished in writing to the Company by any Holder of Registrable
Securities or any underwriter thereof specifically and expressly for use in any
such registration statement or prospectus or (y) any failure by such Holder of
Registrable Securities or any underwriter to deliver a prospectus or preliminary
prospectus (or
-17-
amendment or supplement thereto) as and when required under the Securities Act
after such prospectus has been timely furnished by the Company.
(b) In the case of an underwritten offering in which the registration
statement covers Registrable Securities, the Company agrees to indemnify the
underwriters, their officers and directors, if any, and each Person, if any, who
controls such underwriters within the meaning of section 15 of the Securities
Act and section 20 of the Exchange Act, to the extent customary in the
circumstances for an issuer in an underwritten public offering.
(c) In connection with any written information furnished to the
Company or any underwriter of any underwritten offering specifically and
expressly for use in a registration statement with respect to a Holder of
Registrable Securities, each such Holder hereby indemnifies severally (but not
jointly), to the fullest extent permitted by law, the Company, its officers and
directors and each Person, if any, who controls the Company within the meaning
of section 15 of the Securities Act and section 20 of the Exchange Act, against
any losses, claims, damages, liabilities (or proceedings in respect thereof) and
expenses resulting from any untrue statement or alleged untrue statement of a
material fact or any omission or alleged omission of a material fact required to
be stated or necessary to make the statements in the registration statement or
prospectus, or any amendment thereof or supplement thereto, in light of the
circumstances under which they were made, not misleading; provided, however,
-------- -------
that the indemnification set forth in this Section 2.01(c) shall only apply if,
and each such Holder shall be liable hereunder if and only to the extent that,
any such loss, claim, damage or liability arises solely out of or is based
solely upon an untrue statement or alleged untrue statement or omission or
alleged omission, made in reliance upon and in conformity with information
pertaining to such Holder, which is furnished in writing to the Company or any
underwriter of any underwritten offering by such Holder expressly for use in any
such registration statement or prospectus.
(d) In the case of an underwritten offering of Registrable
Securities, each Holder of Registrable Securities shall agree to indemnify such
underwriters, their officers and directors, if any, and each Person, if any, who
controls such underwriters within the meaning of section 15 of the Securities
Act and section 20 of the Exchange Act, to the extent customary in the
circumstances for a selling stockholder in an underwritten public offering.
Section 2.02 Notices of Claims. (a) Any Person seeking indemnification
-----------------
under the provisions of this Article 2 shall,
-18-
promptly after receipt by such Person of notice of the existence of such claim
or of the commencement of any action, suit, claim or proceeding, notify each
party against whom indemnification is to be sought in writing of the existence
or commencement thereof; provided, however, the failure so to notify an
-------- -------
indemnifying party shall not relieve the indemnifying party from any liability
which it may have under this Article 2 or from any liability which the
indemnifying party may otherwise have (except if and to the extent that it has
been prejudiced in any material respect by such failure). In case any such
action, suit, claim or proceeding is brought against any indemnified party, and
it notifies an indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, to the extent it may elect
by written notice delivered to the indemnified party promptly after receiving
the aforesaid notice from such indemnified party, to assume the defense thereof
with counsel reasonably satisfactory to such indemnified party, except as
otherwise provided in Section 2.02(c) hereof. Upon delivery of such notice by
the Company (if it is the indemnifying party) to such indemnified party and
approval of such counsel by such indemnified party, the Company will not be
liable under this Article 2 for any legal or other expenses subsequently
incurred by any Holder of Registrable Securities in connection with the defense
of such action, suit, claim or proceeding, except as otherwise provided in
Section 2.02(b) hereof.
(b) Notwithstanding the foregoing, the indemnified party shall have
the right to employ its own counsel in any such case, but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i) the
employment of such counsel shall have been authorized in writing by the
indemnifying party in connection with the defense of such suit, action, claim or
proceeding, (ii) the indemnifying party shall not have employed counsel
(reasonably satisfactory to the indemnified party) to take charge of the defense
of such action, suit, claim or proceeding within a reasonable time after notice
of commencement of the action, suit, claim or proceeding, or (iii) such
indemnified party shall have reasonably concluded that there may be defenses
available to it which are different from or additional to those available to the
indemnifying party which, if the indemnifying party and the indemnified party
were to be represented by the same counsel, could result in a conflict of
interest for such counsel or materially prejudice the prosecution of the
defenses available to such indemnified party. If any of the events specified in
clauses (ii) or (iii) of the preceding sentence shall have occurred or such
clauses shall otherwise be applicable, then the fees and expenses of one counsel
or firm of counsel, plus one local or regulatory counsel or firm of counsel,
selected by a majority in interest of the indemnified parties shall be borne by
the indemnifying party.
-19-
(c) If, in any case, the indemnified party employs separate counsel,
the indemnifying party shall not have the right to direct the defense of such
action, suit, claim or proceeding on behalf of the indemnified party.
(d) Anything in this Article 2 to the contrary notwithstanding, an
indemnifying party shall not be liable for any settlement or compromise of, or
consent to entry of any judgment with respect to, any action, suit, claim or
proceeding effected without its prior written consent (which consent in the case
of an action, suit, claim or proceeding exclusively seeking monetary relief
shall not be unreasonably withheld). Such indemnification shall remain in full
force and effect irrespective of any investigation made by or on behalf of an
indemnified party.
Section 2.03 Contribution. (a) If the indemnification from the
------------
indemnifying party as provided in this Article 2 is unavailable or is otherwise
insufficient to hold harmless an indemnified party in respect of any losses,
claims, damages, liabilities or expenses referred to therein, then the
indemnifying party shall, to the fullest extent permitted by law, contribute to
the amount paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities or expenses in such proportion as is appropriate to
reflect the relative fault of the indemnifying party and indemnified parties in
connection with the actions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations,
subject to the provisions of Section 2.03(b) hereof. The relative fault of such
indemnifying party shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact, has
been made, or relates to information supplied by such indemnifying party, and
the parties, relative intent, knowledge, access to information and opportunity
to correct or prevent such action. The amount paid or payable by a party as a
result of the losses, claims, damages, liabilities and expenses referred to
above shall be deemed to include, subject to the limitations set forth in
Section 2.02 hereof, any legal or other fees or expenses reasonably incurred by
such party in connection with any investigation or proceeding. The parties
hereto agree that it would not be just and equitable if contribution pursuant to
this Article 2 were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to in this Section 2.03(a).
(b) No Person guilty of fraudulent misrepresentation (within the
meaning of section 11(f) of the Securities Act) shall
-20-
be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
(c) If indemnification is available under this Article 2, the
indemnifying parties shall indemnify each indemnified party to the fullest
extent provided in Section 2.01 and Section 2.02 hereof without regard to the
relative fault of said indemnifying party or indemnified party or any other
equitable consideration provided for in this Section 2.03.
Section 2.04 Indemnification Payments. The indemnification and
------------------------
contribution required by this Article 2 shall be made by periodic payments of
the amount thereof during the course of the investigation or defense, as and
when bills are received or expense, loss, damage or liability is incurred.
ARTICLE 3.
CERTAIN DEFINITIONS
-------------------
As used herein, the following terms have the following respective meanings:
"Affiliate" shall have the meaning specified for "affiliate" in Rule 12b-2
under the Exchange Act.
"Commission" shall mean the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
"Class A Common Stock" shall mean Class A Common Stock, par value $.01 per
share, of the Company.
"CP/BV Registrable Securities" shall mean the securities of the Company
which are defined as "Registrable Securities" under either the CP Agreement or
the BV Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission thereunder, all as the same
shall be in effect at the time.
"Expected Proceeds" shall mean, as of any date, the aggregate proceeds that
would be expected to be received by a holder of securities from the sale of such
securities in an offering made on such date (without being reduced by any pro
forma expenses or underwriting discounts). The determination of Expected
Proceeds shall be made (a) if the offering is intended to be made in an
underwritten public offering, then by the intended managing underwriter of such
offering or (b) if the offering is not intended to be made in an underwritten
public offering, then by investment bankers mutually agreeable to the
-21-
Company and the Representative, the fees and expenses of which shall be paid by
the Company.
"Person" shall mean a corporation, an association, a partnership, an
organization, a business, an individual, a governmental or political subdivision
thereof or a governmental agency.
"Register", "registered" and "registration" shall mean a registration
effected by preparing and filing a registration statement in compliance with the
Securities Act and the declaration or ordering of the effectiveness of such
registration statement.
"Registrable Securities" shall mean, subject to the provisions of Sections
4.04(b) and 4.13 hereof, any and all Merger Securities which are shares of Class
A Common Stock. As to any particular Registrable Securities, such securities
shall cease to constitute Registrable Securities when (i) a registration
statement (other than the registration statement on Form S-4 with respect to the
Registrable Securities heretofore filed by the Company) with respect to the sale
of such securities shall have been declared effective under the Securities Act
and such securities shall have been disposed of in accordance with the methods
contemplated by the registration statement, (ii) such securities shall have been
sold in satisfaction of all applicable conditions to the resale provisions of
Rule 144 under the Securities Act (or any successor provision thereto), (iii)
such securities shall have been otherwise transferred, or (iv) such securities
shall have ceased to be issued and outstanding.
"Registration Expenses" shall mean all expenses incident to the Company's
performance of or compliance with Article 1, including, without limitation, (a)
any allocation of salaries and expenses of Company personnel or other general
overhead expenses of the Company, or other expenses for the preparation of
historical and pro forma financial statements or other data normally prepared by
the Company in the ordinary course of business; (b) all registration,
application, filing, listing, transfer and registrar fees; (c) all NASD fees and
fees and expenses of registration or qualification of Registrable Securities
under state securities or "blue sky" laws pursuant to Section 1.03(d) hereof;
(d) all word processing, duplicating and printing expenses, messenger and
delivery expenses; (e) the fees and disbursements of counsel for the Company and
of its independent public accountants, including the expenses of customary "cold
comfort" letters required by or incident to such performance and compliance; and
(f) any fees and disbursements of underwriters and broker-dealers customarily
paid by issuers or sellers of securities; provided, however, that in all cases
-------- -------
in which the Company is required to pay Registration Expenses
-22-
hereunder, Registration Expenses shall exclude, and the sellers of the
Registrable Securities being registered shall pay, the fees and disbursements of
counsel to such sellers, and underwriting discounts and commissions and transfer
taxes in respect of the Registrable Securities being registered and, to the
extent such laws prohibit the Company from paying such expenses on behalf of the
holders of Registrable Securities, expenses of registering or qualifying
Registrable Securities under state securities or blue sky laws.
"Securities Act" shall mean the Securities Act of 1933, as amended, and the
rules and regulations of the Commission thereunder, all as the same shall be in
effect at the time.
ARTICLE 4.
MISCELLANEOUS
-------------
Section 4.01 Rule 144. If the Company shall have filed with the
--------
Commission and obtained the effectiveness of a registration statement covering
the Company's equity securities pursuant to the requirements of section 12 of
the Exchange Act or pursuant to the requirements of the Securities Act, the
Company agrees that it shall timely file the reports required to be filed by it
under the Securities Act or the Exchange Act (including, without limitation, the
reports under sections 13 and 15(d) of the Exchange Act referred to in paragraph
(c)(1) of Rule 144 under the Securities Act), and shall take such further
actions as the Representative may reasonably request, all to the extent
necessary to enable the holders to sell Registrable Securities, from time to
time, pursuant to the resale limitations of (a) Rule 144 under the Securities
Act, as such rule may be hereafter amended, or (b) any similar rules or
regulations hereafter adopted by the Commission. Upon the written request of
the Representative, the Company shall deliver to the Representative a
written statement as to whether it has complied with such requirements.
Section 4.02 Nominees for Beneficial Owners. In the event that
------------------------------
Registrable Securities are held by a nominee for the beneficial owner thereof,
the beneficial owner thereof may, at its option, upon delivery to the Company of
such evidence of beneficial ownership as the Company may reasonably request, be
treated as the holder of such Registrable Securities for the purpose of any
request or other action by any Holder or Holders of Registrable Securities
pursuant to this Agreement (or any determination of any number or percentage of
shares constituting Registrable Securities held by any Holder or Holders of
Registrable Securities contemplated by this Agreement).
-23-
Section 4.03 Other Registration Rights. The Company hereby covenants and
-------------------------
agrees not to hereafter enter into any agreement, arrangement or understanding
with respect to its securities which is inconsistent or otherwise materially
interferes with the rights granted to the Holders of Registrable Securities
under Section 1.01 of this Agreement unless Holders of Registrable Securities
holding a majority of the Registrable Securities at the time outstanding shall
have consented thereto in writing. The Representative and the Holders of
Registrable Securities acknowledge and agree that the Company's entering into
any agreement, arrangement or understanding after the date hereof pursuant to
which the Company grants demand registration rights to a third party or parties
shall not be deemed to be inconsistent or to otherwise materially interfere with
the rights granted to the Holders of Registrable Securities under Section 1.01
of this Agreement so long as the rights so granted to such a third party or
parties shall not conflict with, and shall be subject to, the provisions of
Section 1.04(e) hereof.
Section 4.04 Assignment; Calculation of Percentage Interests in
--------------------------------------------------
Registrable Securities. (a) This Agreement shall be binding upon and inure to
----------------------
the benefit of and be enforceable by the Company, the Representative and the
Holders of Registrable Securities and, with respect to the Company, its
respective successors and assigns and, with respect to any Holder of any
Registrable Securities, subject to the provisions respecting the minimum numbers
of percentages of shares of Registrable Securities required in order to be
entitled to certain rights, or take certain actions, contained herein.
(b) The rights of Holders of Registrable Securities to cause the
Company to register Registrable Securities under Sections 1.01 and 1.02 hereof
may not be assigned or otherwise conveyed to any transferee or assignee of
Registrable Securities.
(c) For purposes of this Agreement, references to a percentage of the
Registrable Securities shall be calculated based upon the aggregate number of
shares of Registrable Securities outstanding at the date hereof, which aggregate
number is 30,142,732, unless otherwise expressly stated herein.
Section 4.05 Notices. Except as otherwise provided below, whenever it is
-------
provided in this Agreement that any notice, demand, request, consent, approval,
declaration or other communication shall or may be given to or served upon the
Company, the Representative or any Holder of Registrable Securities, or whenever
the Company, the Representative or any Holder of Registrable Securities desires
to provide to or serve upon any Person any other communication with respect to
this Agreement, each such notice, demand, request, consent, approval,
-24-
declaration or other communication shall be in writing and either shall be
delivered in person with receipt acknowledged or sent by registered or certified
mail (return receipt requested, postage prepaid), or by overnight mail, courier,
or delivery service or by telecopy and confirmed by telecopy answerback,
addressed as follows:
(a) If to the Company, to:
---------------------
Continental Cablevision, Inc.
The Xxxxx Xxxxx
Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Vice President and Treasurer
---------
- With a copy to -
Xxxxxxxx & Worcester
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
---------
(b) If to the Representative, to:
------------------------
The Providence Journal Company
00 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Secretary
---------
- With a copy to -
The Providence Journal Company
00 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxxxx, Esq.
---------
- And a copy to -
Xxxxxxx & Xxxxxx
-25-
0000 Xxxxxxxx Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxx X.X. Xxxx, Esq.
---------
(c) If to any Holder of Registrable Securities, to
------------------------------------------
such Holder at:
c/o The Providence Journal Company
00 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Secretary
---------
- With a copy to -
The Providence Journal Company
00 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxxxx, Esq.
---------
- And a copy to -
Xxxxxxx & Xxxxxx
0000 Xxxxxxxx Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxx X.X. Xxxx, Esq.
---------
or, in the case of the Company or the Representative, at such other address as
may be substituted by it by notice delivered as provided herein. The furnishing
of any notice required hereunder may be waived in writing by the party entitled
to receive such notice. Every notice, demand, request, consent, approval,
declaration or other communication hereunder shall be deemed to have been duly
delivered, furnished or served on (i) the date on which personally delivered,
with receipt acknowledged, (ii) the date on which telecopied and confirmed by
telecopy answerback, (iii) the next business day if delivered by overnight or
express mail, courier or delivery service, or (iv) three business days after the
same shall have been deposited in the United States mail, as the case may be.
Failure or delay in delivering copies
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of any notice, demand, request, consent, approval, declaration or other
communication to the persons designated above to receive copies shall in no way
adversely affect the effectiveness of such notice, demand, request, consent,
approval, declaration or other communication. The Representative shall be
responsible for relaying any notice, demand, request, consent, approval,
declaration or other communication hereunder delivered, furnished or served upon
any Holder of Registrable Securities in care of the Representative pursuant to
Section 4.04(c) hereof to such Holder of Registrable Securities.
Section 4.05 Entire Agreement; Amendment. This Agreement represents the
---------------------------
entire agreement and understanding among the parties hereto with respect to the
subject matter hereof and supersedes any and all prior oral and written
agreements, arrangements and understandings among the parties hereto with
respect to such subject matter; and can be amended, supplemented or changed, and
any provision hereof can be waived, only by a written instrument making specific
reference to this Agreement signed by the Company, the Representative and the
Holders of Registrable Securities holding a majority of the Registrable
Securities at the time outstanding.
Section 4.07 Paragraph Headings, etc. The paragraph headings contained in
-----------------------
this Agreement are for general reference purposes only and shall not affect in
any manner the meaning, interpretation or construction of the terms or other
provisions of this Agreement. The terms "including", "includes" and "included"
shall not be limiting.
Section 4.08 Applicable Law. This Agreement shall be governed by,
--------------
construed and enforced in accordance with the laws of The Commonwealth of
Massachusetts, applicable to contracts to be made, executed, delivered and
performed wholly within such state and, in any case, without regard to the
conflicts of law principles of such state.
Section 4.09 Severability. If at any time subsequent to the date hereof,
------------
any provision of this Agreement shall be held by any court of competent
jurisdiction to be illegal, void or unenforceable, such provision shall be of no
force and effect, but the illegality or unenforceability of such provision shall
have no effect upon and shall not impair the enforceability of any other
provision of this Agreement.
Section 4.10 Equitable Remedies. The parties hereto agree that
------------------
irreparable harm would occur in the event that any of the agreements and
provisions of this Agreement were not performed fully by the parties hereto in
accordance with their specific terms or conditions or were otherwise breached,
and that money damages are an inadequate remedy for breach of this Agreement
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because of the difficulty of ascertaining and quantifying the amount of damage
that will be suffered by the parties hereto in the event that this Agreement is
not performed in accordance with its terms or conditions or is otherwise
breached. It is accordingly hereby agreed that the parties hereto shall be
entitled to an injunction or injunctions to restrain, enjoin and prevent
breaches of this Agreement by the other parties and to enforce specifically the
terms and provisions hereof in any court of the United States or any state
having jurisdiction, such remedy being in addition to and not in lieu of, any
other rights and remedies to which the other parties are entitled to at law or
in equity.
Section 4.11 No Waiver. The failure of any party at any time or times to
---------
require performance of any provision hereof shall not affect the right at a
later time to enforce the same. No waiver by any party of any condition, and no
breach of any provision, term, covenant, representation or warranty contained in
this Agreement, whether by conduct or otherwise, in any one or more instances,
shall be deemed to be construed as a further or continuing waiver of any such
condition or of the breach of any other provision, term, covenant,
representation or warranty of this Agreement.
Section 4.12 Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute but one and the same original instrument.
Section 4.13 Special Limitation and Termination of Registration Rights.
---------------------------------------------------------
Anything in this Agreement to the contrary notwithstanding:
(a) The Company shall only be required to include Registrable
Securities in any registration statement to the extent that, in the Company's
reasonable judgment, such registration would not materially interfere with, or
violate or conflict with, any registration rights which may then be held by any
holders of the Company's capital stock.
(b) The obligations of the Company to each Holder of Registrable
Securities with respect to its rights of registration provided for in Sections
1.01 and 1.02 hereof shall not apply to any proposed sales or other dispositions
or offers therefor of any Registrable Securities with respect to which Messrs.
Xxxxxxxx & Worcester or other counsel for the Company knowledgeable in
securities law matters has delivered a written opinion to the Company and the
Representative (and the Representative shall be responsible for relaying such
opinion to the such Holder of Registrable Securities proposing to make such
offer, sale or other disposition) to the effect that such Holder of Registrable
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Securities has no obligation to comply with the registration requirements of the
Securities Act or to deliver a prospectus meeting the requirements of section
10(a)(3) of the Securities Act with respect to such proposed sales or other
dispositions or offers therefor or only has such obligation because such Holder
of Registrable Securities is or may be, or is an Affiliate of a Person who is or
may be, a "controlling person" of the Company or Providence Journal Company
within the meaning of the Securities Act. Notwithstanding the provisions of the
immediately preceding sentence, the Company shall be obligated to provide the
rights of registration set forth in Sections 1.01 and 1.02 hereof if, within
twenty (20) days of the delivery of any opinion of counsel pursuant to either
such paragraph, the Holder of Registrable Securities to whom such opinion was
delivered shall have delivered to the Company an opinion of its counsel, which
counsel shall be knowledgeable in securities law matters, to the effect that it
cannot concur in the opinion of counsel for the Company. In any such event, the
Company shall have the right to submit the matter, at its expense, to counsel
independent of the Company and reasonably satisfactory to such Holder of
Registrable Securities, whose opinion shall be determinative and conclusive, or
to seek a no-action letter from the Commission.
(c) The obligations of the Company to each Holder of Registrable
Securities with respect to its rights of registration provided for in Sections
1.01 and 1.02 hereof shall cease and terminate upon the earlier of (i) six (6)
years after the date hereof and (ii) the date on which the aggregate number of
Registrable Securities issued and outstanding shall no longer exceed one third
(1/3) of the aggregate number of shares of Registrable Securities outstanding at
the date hereof .
(d) The rights of registration provided for in Sections 1.01 and 1.02
hereof are subject to and limited by the terms and provisions of Article XIII of
the Restated By-Laws of the Company effective as of May 14, 1992, as amended
through the date hereof.
Section 4.14 Representations of the Representative. The Representative
-------------------------------------
represents and warrants as follows: The Representative is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, and has all requisite corporate power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby.
All necessary action, corporate or otherwise, required to have been taken by or
on behalf of the Representative by applicable Law, its charter documents or
otherwise, or required to have been taken by Holders of Registrable Securities,
to authorize (i) the approval, execution and delivery by the Representative, as
agent for the Holders of Registrable Securities, of this Agreement and (ii) the
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performance by the Representative of its obligations under this Agreement, has
been taken. Each Holder of Registrable Securities has duly appointed the
Representative as his, her or its agent and has duly authorized the
Representative to execute this Agreement and to deliver it to the Company on
his, her or its behalf. This Agreement constitutes a valid and binding
agreement of the Representative and each of the Holders of Registrable
Securities, enforceable against the Representative and each such Holder in
accordance with its terms, except (i) as the same may be limited by applicable
bankruptcy, insolvency, moratorium or similar laws of general application
relating to or affecting creditors' rights, including without limitation, the
effect of statutory or other laws regarding fraudulent conveyances and
preferential transfers, and (ii) for the limitations imposed by general
principles of equity.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered by their respective officers thereunto duly authorized as of the
date first above written.
CONTINENTAL CABLEVISION, INC.
By:/s/ P. Xxxx Xxxxxx
-----------------------------
Name: P. Xxxx Xxxxxx
Title: Vice President and
Treasurer
THE HOLDERS OF REGISTRABLE
SECURITIES NAMED IN SCHEDULE A
----------
HERETO
By: The Providence Journal
Company, as agent
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Chairman
THE PROVIDENCE JOURNAL COMPANY, as
Representative
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Chairman
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Schedule A has been omitted, but will be provided upon the request of the
Commission.
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