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MEMBERSHIP UNITHOLDERS AGREEMENT
Dated as of September 30, 1997
among
ACME INTERMEDIATE HOLDINGS, LLC
and
ACME TELEVISION HOLDINGS, LLC
and
CIBC WOOD GUNDY SECURITIES CORP.
(as Initial Purchaser)
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THIS MEMBERSHIP UNITHOLDERS AGREEMENT (the "Agreement") is made and
entered into as of September 30, 1997 among ACME Intermediate Holdings, LLC, a
Delaware limited liability company (the "Company"), ACME Television Holdings,
LLC, a Delaware limited liability company ("ACME Parent"), and CIBC Wood Gundy
Securities Corp., as Initial Purchaser (the "Initial Purchaser").
This Agreement is made pursuant to the Purchase Agreement, dated as
of September 24, 1997, among the Company, ACME Finance Inc., a Delaware
corporation ("Xxxxx" and, together with the Company, the "Notes Issuers"), and
the Initial Purchaser (the "Purchase Agreement"), relating, among other things,
to the sale to the Initial Purchaser of an aggregate of 71,634 Units, each Unit
consisting of $1,000 principal amount at maturity of the Notes Issuers' 12%
Senior Secured Discount Notes due 2005 (the "Notes") and one membership unit of
the Company (each, a "Membership Unit"). In order to induce the Initial
Purchaser to enter into the Purchase Agreement, the Company and ACME Parent have
agreed to enter into this Agreement for the benefit of the holders of Membership
Units.
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:
"ACME PARENT" shall have the meaning set forth in the preamble and
shall also include ACME Parent's successors.
"AFFILIATE" has the meaning ascribed to such term in the
Indenture.
"AGREEMENT" means this Membership Unit holders Agreement.
"BOARD OF DIRECTORS" has the meaning ascribed to such term in the
Indenture.
"BUSINESS DAY" shall mean a day that is not a Legal Holiday.
"CHANGE OF CONTROL" has the meaning ascribed to such term in the
Indenture.
"CHANGE OF CONTROL EQUITY OFFER" has the meaning set forth in
Section 4.1(a).
"CHANGE OF CONTROL EQUITY OFFER EXPIRATION DATE" shall have the
meaning set forth in Section 4.1(b).
"CLOSING DATE" shall mean the Closing Date as defined in the
Purchase Agreement.
"COMMON STOCK" of any Person means equity securities of such Person
generally entitled to vote in the election of directors of such Person, if
such Person is a corporation, or if such Person is not a corporation,
generally entitled to vote or otherwise participate in the election of the
governing body, partners, managers or others that will control the
management and policies of such Person.
"COMPANY" shall have the meaning set forth in the preamble and shall
also include the Company's successors.
"CONVERTIBLE DEBENTURES" means the 6 1/2% Convertible Debentures of
ACME Subsidiary Holdings IV, LLC issued on the Closing Date.
"CONVERTIBLE PREFERRED UNITS" means the preferred membership units
of ACME Subsidiary Holdings IV, LLC issued on the Closing Date.
"CONVERTIBLE SECURITIES" means the Convertible Debentures and the
Convertible Preferred Units.
"DEMAND EVENT" means the date of the earliest to occur of (i) a
Change of Control, (ii) the date on which the Company consummates an
Initial Public Equity Offering, (iii) the date on which any Common Stock
of the Company is listed on a national securities exchange or authorized
for quotation on the NASDAQ National Market System or (iv) September 30,
2002. The Company will promptly mail to each holder of Registrable
Membership Units notice of the occurrence of a Demand Event.
"DEMAND OFFER" shall have the meaning set forth in Section 3.1(b).
"DEMAND OFFER EXPIRATION DATE" shall have the meaning set forth in
Section 3.1(b).
"DEMAND REGISTRANT" has the meaning set forth in Section 3.1(a).
"DEMAND REGISTRATION" shall have the meaning set forth in Section
3.1(a).
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"DRAG ALONG PURCHASE" shall have the meaning set forth in Section
4.2.
"EQUITY EXCHANGE OFFER" has the meaning set forth in Section 2.1.
"EQUITY EXCHANGE SECURITIES" has the meaning set forth in Section
2.1.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"EXCHANGE ISSUER" has the meaning set forth in Section 2.1.
"EXCHANGE OFFER EXPIRATION DATE" has the meaning set forth in
Section 2.3(a).
"EXCHANGE OFFER NOTICE" has the meaning set forth in Section
2.3(a).
"FCC" means the Federal Communications Commission.
"HOLDER" shall have the meaning set forth in Section 6(a).
"INCLUDED SECURITIES" shall have the meaning set forth in Section
3.1(b).
"INDENTURE" means the Indenture dated as of September 30, 1997
between the Notes Issuers and Willmington Trust Company, as trustee, as in
effect on the date hereof.
"INITIAL PUBLIC EQUITY OFFERING" of any Person means an underwritten
public offering by such Person of Common Stock of such Person (which
Common Stock is generally freely transferable, subject to applicable
securities laws and FCC rules and regulations) registered under the
Securities Act and listed on a national securities exchange or authorized
for quotation on the NASDAQ National Market System.
"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
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are required by law, regulation or executive order to remain closed.
"MANDATORY EXCHANGE" has the meaning set forth in Section 2.1.
"MANDATORY EXCHANGE DATE" has the meaning set forth in Section
2.2.
"MANDATORY EXCHANGE NOTICE" has the meaning set forth in Section
2.2.
"MEMBERSHIP UNIT" shall have the meaning set forth in the preamble
and shall include any Common Stock into which the Membership Units are
converted or exchanged, upon conversion of the Company to a corporation or
otherwise.
"NOTES" shall have the meaning set forth in the preamble.
"NOTES ISSUERS" shall have the meaning set forth in the preamble.
"PERMITTED HOLDER" shall have the meaning ascribed to such term
in the Indenture.
"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 3.2.
"PURCHASE AGREEMENT" shall have the meaning set forth in the
preamble.
"REGISTRABLE EQUITY EXCHANGE SECURITIES" means each Equity Exchange
Security, including each Equity Exchange Security issuable or issued upon
conversion of the Convertible Securities, until such Equity Exchange
Security is sold pursuant to an effective Registration Statement in
connection with a Demand Registration or a Piggy-Back Registration.
"REGISTRABLE MEMBERSHIP UNITS" means each Membership Unit (or other
Common Stock into which such Membership Unit is converted or exchanged,
upon conversion of the Company to a corporation or otherwise), including
each Membership Unit issuable or issued upon conversion of the
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Convertible Securities, until such Membership Unit (or other Common Stock)
is (i) sold pursuant to an effective Registration Statement in connection
with a Demand Registration or a Piggy-back Registration or (ii) purchased
pursuant to a Change of Control Equity Offer or a Drag Along Purchase.
"REGISTRABLE SECURITIES" means the Registrable Membership Units
and/or the Registrable Equity Exchange Securities, as the context
requires.
"REGISTRANT" shall have the meaning set forth in Section 6(a).
"REGISTRATION EXPENSES" shall mean all expenses incident to the
Company's and the Exchange Issuer's 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 the Company and the Exchange Issuer 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 the reasonable fees and expenses of one firm
acting as counsel to the Holders.
"REGISTRATION STATEMENT" shall mean any registration statement of
the Company which covers any of the Registrable Securities 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.
"SEC" or "COMMISSION" shall mean the Securities and Exchange
Commission.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended
from time to time.
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"SUBSIDIARY" has the meaning ascribed to such term in the
Indenture.
2. EXCHANGE RIGHTS.
2.1 EQUITY EXCHANGE SECURITIES. If ACME Parent or any of its
Subsidiaries (other than the Company) proposes to consummate an Initial Public
Equity Offering prior to the consummation of an Initial Public Equity Offering
by the Company, ACME Parent (if it proposes to consummate such Initial Public
Equity Offering) or its Subsidiary that proposes to consummate such Initial
Public Equity Offering (such person, the "Exchange Issuer") shall have the
option to either (a) exchange equity securities of the Exchange Issuer of the
same class and series which are proposed to be sold in such Initial Public
Equity Offering (the "Equity Exchange Securities") for all outstanding
Registrable Membership Units at an exchange ratio based on the fair market
values of the Membership Units and the Equity Exchange Securities (without any
discount for lack of liquidity of the Membership Units or the fact that the
Membership Units may represent a minority interest in a private company or a
company under the control of another person) as determined in good faith by the
Board of Directors of the Exchange Issuer and determined to be fair, from a
financial point of view, to the holders of Registrable Membership Units by a
nationally recognized investment banking firm (as set forth in such firm's
written fairness opinion) (the "Mandatory Exchange") or (b) offer to Exchange
Equity Securities for all outstanding Registrable Membership Units at an
exchange ratio based on the fair market values of the Membership Units and the
Exchange Equity Securities (without any discount for lack of liquidity of the
Membership Units or the fact that the Membership Units may represent a minority
interest in a private company or a company under the control of another person)
as determined in good faith by the Board of Directors of the Exchange Issuer and
determined to be fair, from a financial point of view, to the holders of
Registrable Membership Units by a nationally recognized investment banking firm
(as set forth in such firm's written fairness opinion) (the "Equity Exchange
Offer"). The consummation of the Mandatory Exchange or the Equity Exchange Offer
shall be subject to the consummation of the Initial Public Equity Offering by
the Exchange Issuer.
2.2 MANDATORY EXCHANGE PROCEDURES. If the Exchange Issuer elects to
consummate the Mandatory Exchange, it shall give notice of such election (the
"Mandatory Exchange Notice") to each holder of Registrable Membership Units, no
more than 60 days and not less than 30 days prior to the anticipated date of
consummation of the Initial Public Equity Offering by the Ex-
6
change Issuer, by first class mail, postage prepaid. The Mandatory Exchange
Notice shall (a) set forth the exchange ratio and the respective fair market
values of the Membership Units and the Exchange Equity Securities as determined
by the Board of Directors of the Exchange Issuer, (b) include the full text of
the fairness opinion referred to in clause (a) of Section 2.1, (c) identify the
anticipated date on which the exchange shall occur, which exchange shall occur
simultaneously with the consummation of the Initial Public Equity Offering by
the Exchange Issuer (the "Mandatory Exchange Date"); PROVIDED that if the
consummation of such Initial Public Equity Offering shall not have occurred
within 90 days following the date the Mandatory Exchange Notice is mailed to the
holders of Registrable Membership Units, the Exchange Issuer shall mail notice
thereof to the holders of Registrable Membership Units by first class mail,
postage prepaid, which notice shall revoke the Mandatory Exchange; PROVIDED,
FURTHER, that if such Initial Public Equity Offering is thereafter consummated,
the Exchange Issuer shall mail a second Mandatory Exchange Notice within 10 days
of such consummation that complies with clauses (i)-(v) of this paragraph and
the Mandatory Exchange Date with respect thereto shall be not less than 30 nor
more than 60 days following the date the second Mandatory Exchange Notice is so
mailed, (iv) identify where certificates representing the Registrable Membership
Units are to be delivered for exchange and (v) state that unless the Exchange
Issuer defaults in making the Mandatory Exchange, holders of Registrable
Membership Units shall have no right as members of the Company and the only
remaining right of such holders is to receive the applicable amount of Exchange
Equity Securities. Promptly after the Mandatory Exchange Date (and thereafter
upon receipt of certificates reporting Registrable Membership Units), the
Exchange Issuer shall issue in exchange for the Registrable Membership Units
certificates for the applicable amount of Exchange Equity Securities to holders
of Registrable Membership Units. After the Mandatory Exchange Date, each
Convertible Security will be convertible into that number of Equity Exchange
Securities equal to the number of Equity Exchange Securities the holder of such
Convertible Security would have received in the Mandatory Exchange had such
Convertible Security been converted immediately prior to the Mandatory Exchange
Date.
2.3 EQUITY EXCHANGE OFFER PROCEDURES. (a) If the Exchange Issuer
elects to consummate the Equity Exchange Offer, it shall give notice of such
election (the "Exchange Offer Notice") to each holder of Registered Membership
Units, no more than 60 days and not less than 30 days prior to the anticipated
date of consummation of the Initial Public Equity Offering by the Exchange
Issuer, by first class mail, postage prepaid, of-
7
fering to exchange the Exchange Equity Securities for the Registrable Membership
Units. The Exchange Offer Notice shall govern the terms of the Equity Exchange
Offer and shall (i) set forth the exchange ratio and the respective fair market
values of the Membership Units and the Equity Exchange Securities as determined
by the Board of Directors of the Exchange Issuer, (ii) include the full text of
the fairness opening referred to in clause (b) of Section 2.1, (iii) identify
the date on which the Equity Exchange Offer will expire (the "Exchange Offer
Expiration Date"), which date shall be not less than 30 days following the date
of commencement of the Equity Exchange Offer and shall be extended, if
necessary, such that the Exchange Offer Expiration Date shall be the date on
which the Initial Public Equity Offering is consummated by the Exchange Issuer,
which commencement date shall be the date the Exchange Offer Notice is mailed to
holders of Registrable Membership Units, (iv) each holder of Registrable
Membership Units may tender all of such holders' Registrable Membership Units,
but not a portion thereof, (v) include a letter of transmittal which identifies
where certificates representing the Registrable Membership Units tendered for
exchange pursuant to the Equity Exchange Offer are to be delivered, (vi) state
that unless the Exchange Issuer defaults in exchanging Exchange Equity
Securities for Registrable Membership Units promptly following the Exchange
Offer Expiration Date, holders of Registrable Membership Units tendered for
exchange shall have no rights as members of the Company after the Exchange Offer
Expiration Date and the only remaining right of such holders is to receive the
applicable amount of Equity Exchange Securities promptly after the Exchange
Offer Expiration Date and (vii) each holder of Registrable Membership Units that
elects not to tender such holder's Registrable Membership Units pursuant to the
Equity Exchange Offer will not have any rights after the Exchange Offer
Expiration Date to effect a Demand Registration (as defined below) with respect
to the Registrable Membership Units. If a holder of the Convertible Securities
elects to participate in the Equity Exchange Offer, it shall provide written
notice of such participation to the Company, but need not surrender the
certificate(s) representing such Convertible Securities.
(b) On the Exchange Offer Expiration Date, the Exchange Issuer will
(i) accept for exchange all Registrable Membership Units tendered pursuant to
the Equity Exchange Offer and (ii) promptly deliver to tendering holders of
Registrable Membership Units certificates representing their respective amounts
of Equity Exchange Securities. If a holder of a Convertible Security elects to
participate in the Equity Exchange Offer, after the Exchange Offer Expiration
Date, such Convertible Security will be convertible into that number of Equity
Ex-
8
change Securities equal to the number of Equity Exchange Securities the holder
of such Convertible Security would have received in the Equity Exchange Offer
had such Convertible Security been converted and tendered immediately prior to
the Exchange Offer Expiration Date.
(c) The Exchange Issuer and the Company will comply with the
requirements of the Exchange Act and other securities laws and regulations to
the extent such laws and regulations are applicable in connection with the
Equity Exchange Offer. To the extent the provisions of any securities laws or
regulations conflict with the Equity Exchange Offer provisions of this
Agreement, the Company and the Exchange Issuer shall comply with the applicable
securities laws and regulations and shall not be deemed to have breached their
obligations under this Agreement by virtue thereof.
(d) ACME Parent shall cause the Exchange Issuer (if other than ACME
Parent) to become a party to this Agreement. Neither ACME Parent nor any of its
Subsidiaries shall be obligated to consummate more than one Mandatory Exchange
or Equity Exchange Offer.
3. REGISTRATION RIGHTS.
3.1 DEMAND REGISTRATION.
(a) REQUEST FOR REGISTRATION. Prior to the consummation of an
Initial Public Equity Offering by ACME Parent or one of its Subsidiaries (other
than the Company), holders of Registrable Membership Units shall have the demand
registration rights set forth in this Section 3.1 with respect to Registrable
Membership Units of the Company after the occurrence of a Demand Event. After
consummation of such an Initial Public Equity Offering, holders of Registrable
Equity Exchange Securities shall have the demand registration rights set forth
in this Section 3.1 with respect to Registrable Equity Exchange Securities of
the Exchange Issuer received after consummation of the Mandatory Exchange or
Equity Exchange Offer, as the case may be.
After the occurrence of (i) a Demand Event or (ii) the consummation
of a Mandatory Exchange or Equity Exchange Offer, (a) the holders of Registrable
Membership Units equivalent to 25% of the Membership Units originally issued as
part of the Units (in the case of clause (i)), including the Membership Units
issuable upon conversion of the Convertible Securities, or (b) the holders of
Registrable Equity Exchange Securities equivalent to 25% of the Equity Exchange
Securities issued as
9
part of the Mandatory Exchange or Equity Exchange Offer, including Equity
Exchange Securities issuable upon conversion of the Convertible Securities, as
the case may be (in the case of clause (ii)), will be entitled to require the
Company or the Exchange Issuer, as the case may be (the "Demand Registrant"), to
effect up to two registrations (each, a "Demand Registration") under the
Securities Act of the applicable Registrable Securities; PROVIDED, HOWEVER, that
if a Demand Registration is requested with respect to the Company prior to the
consummation of an Initial Public Equity Offering by the Company, ACME Parent or
one of its Subsidiaries may consummate a Mandatory Exchange in accordance with
Sections 2.1 and 2.2 hereof, in which case the Demand Registration shall be
consummated by the Exchange Issuer. Any such request will specify the number of
Registrable Securities proposed to be sold and will also specify the intended
method of disposition thereof. No Demand Registration may be requested either
(x) within 180 days of the consummation of an underwritten public offering of
Common Stock by the Demand Registrant or (y) after notice of a Piggy-Back
Registration has been mailed to holders of Registrable Securities and until the
earlier of the withdrawal of the Piggy-Back Registration by the Demand
Registrant or 180 days after consummation of the Piggy-Back Registration.
Subject to Section 3.1(b), upon a demand, the Demand Registrant will prepare,
file and cause to be effective within 180 days of such demand a Registration
Statement in respect of all the Included Securities (including any Registrable
Securities issuable upon conversion of Convertible Securities requested to be
included in the Demand Registration by holders of Convertible Securities). The
Demand Registrant shall give written notice of such registration request within
10 days after the receipt thereof to all other holders of the Registrable
Securities. Within 20 days after receipt of such notice by any such holder, such
holder may request in writing that Registrable Securities be included in such
registration and the Demand Registrant shall include in the Demand Registration
the Registrable Securities of any such holder requested to be so included (all
such Registrable Securities requested to be registered, the "Included
Securities"). Each such request by such holders shall specify the number of
Included Shares proposed to be sold and the intended method of disposition
thereof. If a Demand Registration is requested in the form of an underwritten
public offering, (x) it shall be a condition to a holder of Registrable
Securities including such securities therein that such holder agree to enter
into customary underwriting, custody and power of attorney agreements and a
"lock-up" agreement for a period of up to 180 days and (y) the underwriters in
such public offering shall agree to purchase from each holder of Included
Securities issuable upon conversion of a Convertible Security such Convertible
Security
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(or applicable portion thereof) at a purchase price equal to the product of (x)
the price per Included Security to be paid by the underwriters and (y) the
number of Included Securities issuable upon conversion of such Convertible
Security on the date of consummation of such public offering. Subject to Section
3.1(c), the Demand Registrant shall be required to register Registrable
Securities pursuant to this Section 3.1 on a maximum of two separate occasions.
(b) REPURCHASE ELECTION. (i) Notwithstanding the foregoing
provisions of Section 3.1(a), in lieu of filing and causing to become effective
a Registration Statement with respect to a Demand Registration, the Demand
Registrant may satisfy its obligation with respect to such Demand Registration
by making an offer to purchase (the "Demand Offer") (x) all Included Securities
at a cash purchase price at least equal to the fair market value of the Included
Securities (without any discount for lack of liquidity, the amount of Included
Securities proposed to be sold or the fact that the Included Securities may
represent a minority interest in a private company or a company under the
control of another person) as determined in good faith by the Board of Directors
of the Demand Registrant and determined to be fair, from a financial point of
view, to the holders of Included Securities by a nationally recognized
investment banking firm (as set forth in such firm's written fairness opinion
delivered to the holders of Included Securities) and (y) all Convertible
Securities convertible into Included Securities at a cash purchase price equal
to the product of (A) the purchase price per Included Security set forth in
clause (x)of this Section 4.1(b)(i) and (B) the number of Included Securities
issuable upon conversion of such Convertible Security on the Demand Offer
Expiration Date. It shall be a condition to the consummation of a Demand Offer
that a majority of the Included Securities (either directly or through the
tender of Convertible Securities) are tendered for purchase in such Demand
Offer. If a majority of the Included Securities are not so tendered, the Company
shall not be deemed to have satisfied its obligation with respect to the Demand
Registration, PROVIDED that the holders of Registrable Securities may again
require a Demand Registration only after 180 days have elapsed from the date
notice of such Demand Offer was mailed to the holders of Included Securities.
(ii) If the Demand Registrant elects to make the Demand Offer in lieu
of a Demand Registration, it shall give notice of such election to each holder
of Included Securities by first class mail, postage prepaid, within 30 days of
receipt of the notice for a Demand Registration, which notice shall govern the
terms of the Demand Offer and shall (A) set forth the pur-
11
chase price to be paid for the Included Securities tendered in the Demand Offer,
(B) include the full text of the fairness opinion referred to in the immediately
preceding paragraph, (C) identify the date on which the Demand Offer will expire
(the "Demand Offer Expiration Date"), which date shall be not less then 20
business days following the date of commencement of the Demand Offer, which
commencement date shall be the date such notice is mailed to holders of Included
Securities, (D) include a letter of transmittal which identifies where
certificates representing the Included Securities tendered pursuant to the
Demand Offer are to be delivered, (E) state that, unless the Demand Registrant
defaults in the purchase of the Included Securities and Convertible Securities
tendered pursuant to the Demand Offer or a majority of the Included Securities
are not tendered pursuant thereto, holders of Included Securities and
Convertible Securities so tendered shall have no rights with respect to such
Included Securities and Convertible Securities tendered after the Demand Offer
Expiration Date and the only remaining right of such holders is to recover the
purchase price therefor promptly after the Demand Offer Expiration Date and (F)
that holders whose Included Securities and Convertible Securities are tendered
for purchase in part only will be issued new certificates representing the
number of unpurchased Registrable Securities, Convertible Debentures or
Convertible Preferred Units, as the case may be, surrendered.
(iii) On the Demand Offer Expiration Date, if a majority of the
Included Securities have been tendered for purchase, the Demand Registrant will
(A) accept for purchase all Included Securities and Convertible Securities
tendered pursuant to the Demand Offer, (B) promptly deliver to tendering holders
of Included Securities and Convertible Securities the purchase price therefor
and (C) issue and mail or deliver to holders tendering a portion of their
Included Securities, Convertible Debentures or Convertible Preferred Units, as
the case may be, new certificates representing a number of Registrable
Securities, Convertible Debentures or Convertible Preferred Units, as the case
may be, equal to the unpurchased portion of the Registrable Securities,
Convertible Debentures or Convertible Preferred Units, as the case may be,
surrendered.
(iv) The Demand Registrant will comply with the requirements of the
Exchange Act and other securities laws and regulations to the extent such laws
and regulations are applicable in connection with the Demand Offer. To the
extent the provisions of any securities laws or regulations conflict with the
Demand Offer provisions of this Agreement, the Demand Registrant shall comply
with the applicable securities laws and
12
regulations and shall not be deemed to have breached its obligations under this
Agreement by virtue thereof.
(c) EFFECTIVE REGISTRATION. A registration will not be deemed to
have been effective as a Demand Registration unless it has been declared
effected by the SEC and the Demand Registrant 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 the 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 holders of Registrable
Securities), such registration will be deemed not to have been effected. If (i)
a registration requested pursuant to this Section 3.1 is deemed not to have been
effected or (ii) the registration requested pursuant to this Section 3.1 does
not remain effective for a period of at least 180 days beyond the effective date
thereof or until the consummation of the distribution by the holders of the
Included Securities, then the Demand Registrant shall continue to be obligated
to effect an additional registration pursuant to this Section 3.1. The holders
of Included Securities shall be permitted to withdraw all or any part of the
Included Securities 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 Securities 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 holders who have not
withdrawn their Included Securities 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, the Demand Registrant may withdraw the Registration Statement. Such
withdrawn Registration Statement will not count as a Demand Registration
effected pursuant to this Section 3.1.
(d) PRIORITY IN DEMAND REGISTRATIONS PURSUANT TO SECTION 3.1. If a
Demand Registration pursuant to this Section 3.1 involves an underwritten
offering and the managing underwriter advises the Demand Registrant in writing
that, in its opinion, the number of securities requested to be included in such
registration (including securities of the Demand Regis-
13
xxxxx) exceeds the number which can be sold in such offering, the Demand
Registrant 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 among all requesting holders on the basis of the relative
number of Registrable Securities requested for registration by each such holder.
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, the Demand Registrant may include in such
registration the securities the Demand Registrant proposes to sell up to the
number of securities that, in the opinion of the underwriter, can be sold.
(e) SELECTION OF UNDERWRITER. If the holders so elect, the offering
of such Registrable Securities pursuant to such Demand Registration shall be in
the form of an underwritten offering. The holders making such Demand
Registration shall select one or more nationally recognized firms of investment
bankers, who shall be reasonably acceptable to the Demand Registrant, to act as
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.
(f) EXPENSES. The Demand Registrant will pay all Registration
Expenses in connection with the registrations requested pursuant to Section
3.1(a). Each holder of Included Securities shall pay all underwriting
discounts and commissions and transfer taxes, if any, relating to the sale or
disposition of such holder's of Included Securities pursuant to a registration
statement requested pursuant to this Section 3.1.
3.2 PIGGY-BACK REGISTRATION. If at any time the Company or the
Exchange Issuer proposes to file a Registration Statement under the Securities
Act with respect to an offering by the Company or the Exchange Issuer for its
own account or for the account of any of its respective securityholders of any
class of its Common Stock (other than (i) a Registration Statement on Form S-4
or S-8 (or any substitute form that may be adopted by the SEC) or (ii) a
Registration Statement filed in connection with an offer or offering of
securities solely to the Company's or the Exchange Issuer's existing
securityholders), then the Company or the Exchange Issuer, as the case may be,
shall give written notice of such proposed filing to the
14
holders of Registrable Membership Units or Registrable Equity Exchange
Securities, as the case may be, as soon as practicable (but in no event less
than 20 Business Days before the anticipated filing date), and such notice shall
offer such holders the opportunity to register such number of the applicable
Registrable Securities as each such holder may request (a "Piggy-Back
Registration"). The Company or the Exchange Issuer, as the case may be, shall
use its best efforts to cause any managing underwriter or underwriters of a
proposed underwritten offering to permit 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 the Company or the Exchange Issuer, as
the case may be, or any other securityholder included therein and to permit the
sale or other disposition of such Registrable Securities in accordance with the
intended method of distribution thereof. The underwriters in such public
offering shall agree to purchase from each holder of Registrable Securities
issuable upon conversion of a Convertible Security such Convertible Security (or
applicable portion thereof) at a purchase price equal to the product of (x) the
price per Registrable Security to be paid by the underwriters and (y) the number
of Included Securities issuable upon conversion of such Convertible Security on
the date of consummation of such public offering. Any holder shall have the
right to withdraw its request for inclusion of its Registrable Securities in any
Registration Statement pursuant to this Section 3.2 by giving written notice to
the Company or the Exchange Issuer, as the case may be, of its request to
withdraw. The Company or the Exchange Issuer, as the case may be, may withdraw a
Piggy-Back Registration at any time prior to the time it becomes effective;
PROVIDED that the Company or the Exchange Issuer, as the case may be, shall give
prompt notice thereof to participating holders. The Company or the Exchange
Issuer, as the case may be, will pay all Registration Expenses in connection
with each registration of Registrable Securities requested pursuant to this
Section 3.2, 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 3.2.
3.3 REDUCTION OF OFFERING. (a) If a managing underwriter or
underwriters of any underwritten offering described in Section 3.2 have
informed, in writing, the holders of the Registrable Securities requesting
inclusion in such offering that it is their opinion that the total number of
shares which the Company or the Exchange Issuer, as the case may be, such
holders and any other Persons desiring to participate in such registration
intend to include in such offering is such as
15
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 such holders and all such other Persons (other than
the Company or the Exchange Issuer, as the case may be) participating in such
registration shall be reduced or limited PRO RATA in proportion to the
respective number of securities requested to be registered to the extent
necessary to reduce the total number of securities requested to be included in
such offering to the number of securities, if any, recommended by such managing
underwriters; PROVIDED, HOWEVER, that if such offering is effected for the
account of any securityholder of the Company or the Exchange Issuer, as the case
may be, other than the holders of Registrable Securities, pursuant to the demand
registration rights of any such securityholder, then the number of securities to
be offered for the account of the holders of Registrable Securities (but not
such securityholders who have exercised their demand registration rights or the
Company or the Exchange Issuer, as the case may be) shall be reduced or limited
PRO RATA in proportion to the respective number of securities requested to be
registered to the extent necessary to reduce the total number of securities
requested to be included in such offering to the number of securities, if any,
recommended by such managing Underwriters.
(b) If, as a result of the proration provisions of Section 3.3, any
holder shall not be entitled to include all Registrable Securities in a
Piggy-Back Registration that such holder has requested to be included, such
holder may elect to withdraw his request to include Registrable Securities in
such registration; PROVIDED, HOWEVER, that such election shall be irrevocable
and, after making such election, a holder shall no longer have any right to
include Registrable Securities in the registration as to which such election was
made.
4. TAKE ALONG AND DRAG ALONG RIGHTS; CERTAIN AGREEMENTS.
4.1 TAKE ALONG RIGHTS. (a) If, prior to the consummation of an
Initial Public Equity Offering by ACME Parent or any of its Subsidiaries
(including the Company), a Change of Control occurs pursuant to which a Person
(including such Person's Affiliates and associates), other than a Permitted
Holder, becomes the beneficial owner of more than 70% of the total voting power
of the Common Stock of ACME Parent or the Company, and ACME Parent is not
eligible to, or elects not to, effect a Drag Along Purchase, ACME Parent shall
make an offer to purchase (the "Change of Control Equity Offer") (i) any and all
of the outstanding Registrable Membership Units at a cash
16
purchase price at least equal to (x) if such Change of Control resulted from a
purchase of Membership Units, the price paid by the acquiring Person in the
transaction pursuant to which such Change of Control Occurred or (y) in each
other case, the fair market value of the Registrable Membership Units (without
any discount for lack of liquidity, the amount of Registrable Membership Units
offered to be purchased or the fact that the Registrable Membership Units
represent a minority interest in a private company or a company under the
control of another Person) as determined in good faith by the Board of Directors
of ACME Parent and determined to be fair, from a financial point of view, to the
holders of Registrable Membership Units by a nationally recognized investment
banking firm (as set forth in such firm's written fairness opinion delivered to
the holders of Registrable Membership Units) and (ii) any and all Convertible
Securities at a cash purchase price for each Convertible Security at least equal
to the product of (x) the purchase price per Registrable Membership Unit set
forth in clause (i) of this Section 4.1(a) and (y) the number of Registrable
Membership Units issuable upon conversion of such Convertible Security on the
Change of Control Equity Offer Expiration Date.
(b) Within 30 days of such a Change of Control, ACME Parent shall
give notice of the Change of Control Equity Offer to each holder of Registrable
Membership Units by first class mail, postage prepaid, which notice shall govern
the terms of the Change of Control Equity Offer and shall (i) set forth the
purchase price to be paid for Registrable Membership Units and Convertible
Debentures tendered in the Change of Control Equity Offer, (ii) if clause (y) of
Section 4.1(a) is applicable, include the full text of the fairness opinion
referred to in Section 4.1(a), (iii) identify the date on which the Change of
Control Equity Offer will expire (the "Change of Control Equity Offer Expiration
Date"), which date shall not be less than 20 business days following the date of
commencement of the Change of Control Equity Offer, which commencement date
shall be the date such notice is mailed to holders of Registrable Membership
Units, (iv) explain the facts and circumstances of the Change of Control, (v)
include a letter of transmittal which identifies where certificates representing
the Registrable Membership Units and Convertible Debentures tendered pursuant to
the Change of Control Equity Offer are to be delivered, (vi) state that, unless
ACME Parent defaults in the purchase of the Registrable Membership Units and
Convertible Securities tendered pursuant to the Change of Control Equity Offer,
holders of Registrable Membership Units so tendered shall have no rights with
respect to the Registrable Membership Units tendered, and holders of Convertible
Securities shall have no rights with respect to the Convertible Securities
tendered, after the Change of
17
Control Expiration Date and the only remaining right of such holders with
respect thereto is to receive the purchase price therefor promptly after the
Change of Control Equity Offer Expiration Date and (vii) that holders whose
Registrable Membership Units and Convertible Securities are tendered for
purchase in part only will be issued new certificates representing the number of
unpurchased Registrable Membership Units, Convertible Debentures or Convertible
Preferred Units as the case may be, surrendered.
(c) On the Change of Control Equity Offer Expiration Date, ACME
Parent will (i) accept for purchase all Registrable Membership Units and
Convertible Securities tendered pursuant to the Change of Control Equity Offer,
(ii) promptly deliver to tendering holders of Registrable Membership Units and
Convertible Debentures the purchase price therefor and (iii) issue and mail or
deliver to holders tendering a portion of their Registrable Membership Units or
Convertible Debentures, Convertible Preferred Units new certificates
representing a number of Registrable Membership Units, Convertible Debentures or
Convertible Preferred Units, as the case may be, equal to the unpurchased
portion of the Registrable Membership Units, Convertible Debentures or
Convertible Preferred Units, as the case may be, surrendered.
(d) ACME Parent will comply with the requirements of the Exchange
Act and other securities laws and regulations to the extent such laws and
regulations are applicable in connection with the Change of Control Equity
Offer. To the extent the provisions of any securities laws or regulations
conflict with the provisions of this Agreement, ACME Parent shall comply with
the applicable securities laws and regulations and shall not be deemed to have
breached its obligations under this Agreement by virtue thereof.
4.2 DRAG ALONG RIGHTS. For so long as ACME Parent, together with its
Affiliates, beneficially owns at least a majority of the outstanding Common
Stock of the Company, if, at any time prior to the consummation of an Initial
Public Equity Offering by ACME Parent or any of its Subsidiaries (including the
Company), ACME Parent, together with its Affiliates, determines to sell all of
the Common Stock of the Company beneficially owned by ACME Parent and its
Affiliates to a Person other than an Affiliate of ACME Parent or an underwriter
in an Initial Public Equity Offering of the Company, ACME Parent shall have the
right to require the holders of Registrable Membership Units and Convertible
Preferred Units to sell such Membership Units and Convertible Preferred Units to
such transferee; PROVIDED that the consideration to be received by such
18
holders is the same as that to be received by ACME Parent and its Affiliates
and, in any event, shall be cash and/or securities registered under the
Securities Act and listed on a national security exchange or authorized for
quotation on the NASDAQ National Market System and (b) after giving effect to
such transaction, ACME Parent and its Affiliates shall not beneficially own,
directly or indirectly, any Common Stock of the Company. Any (i) Registrable
Membership Units purchased pursuant to this Section 4.2 (a "Drag Along
Purchase") shall be purchased at the same price per Membership Unit and (ii)
each Convertible Preferred Unit purchased pursuant to a Drag Along Purchase
shall be purchased at a price equal to the product of (x) the purchase price per
Registrable Membership Unit set forth in clause (i) of this Section 4.2 and (y)
the number of Membership Units issuable upon conversion of such Convertible
Preferred Unit on the closing date of the Drag Along Purchase and, in each case,
upon the same terms and conditions of such proposed transfer by ACME Parent and
its Affiliates. Immediately prior to the closing of the Drag Along Purchase,
each Holder of a Convertible Debenture shall have the right to require the
transferee to purchase such Convertible Debenture at a purchase price equal to
the product of (x) the consideration per Registrable Membership Unit to be paid
in the Drag Along Purchase by the transferee and (y) the number of Registrable
Membership Units issuable upon conversion of such Convertible Debenture. In
addition, the transferee in the Drag Along Purchase shall have the right to
require each holder of a Convertible Debenture which is unconverted as of the
closing of the Drag Along Purchase to sell such Convertible Debenture to such
transferee at a purchase price equal to the principal amount of such Convertible
Debenture plus accrued and unpaid interest to the date of closing of the Drag
Along Purchase.
4.3 CERTAIN AGREEMENTS. (a) ACME Parent agrees that it shall not,
and shall not permit any of its Subsidiaries to, enter into any amendment,
modification or waiver with respect to the Amended and Restated Limited
Liability Company Agreement dated the date hereof of the Company (the "LLC
Agreement") that would materially and adversely affect the rights of the holders
of Registrable Membership Units thereunder without the prior written consent of
holders of a majority of the then outstanding Registrable Membership Units.
(b) The Company agrees that it shall not issue any additional
Capital Stock (as defined in the Indenture) unless the Majority Member (as
defined in the LLC Agreement) or members owning a majority of the outstanding
Membership Units, as the case may be, determine in good faith that the
consideration
19
to be received therefor by the Company is at least equal to the fair market
value of such Capital Stock.
(c) So long as ACME Parent has the right to cause a Drag Along
Purchase pursuant to Section 4.2, ACME Parent shall cause ACME Subsidiary
Holdings IV, LLC to own exactly that number of Membership Units equal to the
Membership Units issuable upon conversion of the Convertible Securities and no
other significant assets.
5. REGISTRATION PROCEDURES. In connection with the obligations
of the Company or the Exchange Issuer with respect to any Registration
Statement pursuant to Sections 3.1 or 3.2 hereof, the Company or the Exchange
Issuer, as the case may be, 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 the Company or the Exchange Issuer, as the case may be, 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 the Company or the Exchange
Issuer, as the case may be, shall use its best efforts to cause such
Registration Statement to become effective and remain effective in
accordance with Section 3 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 its 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 reasona-
20
xxx 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 neither the
Company nor the Exchange Issuer, as the case may be, shall 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 5(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 the Company or the Exchange Issuer, as the case may be, 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 the Company or the Exchange Issuer, as the
case may be, 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;
(f) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement at the
earliest possible moment;
21
(g) furnish to each holder of Registrable Securities and to the
Initial 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 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 holders may
reasonably request at least two Business Days prior to the closing of any
sale of Registrable Securities;
(i) upon the occurrence of any event contemplated by Section 5(e)(v)
hereof, 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 the Company or the
Exchange Issuer, as the case may be, 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 the good faith judgment of the Company or the Exchange Issuer, as the
case may be, 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.
The Company or the Exchange Issuer, as the case may be, 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 the Company or the Exchange Issuer, as
the case may be, has amended or supplemented the Prospectus to correct
such misstatement or omission. At such time as such public disclosure is
otherwise made or the Company or the Exchange Issuer, as the case may be,
determines in good faith that such disclosure is not necessary, the
Company or the Exchange Issuer, as the case may be,
22
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 the Company or the Exchange Issuer, as the case may
be, as shall be reasonably requested by the Holders of Registrable
Securities;
(k) obtain a CUSIP number for the Registrable Securities;
(l) (i) make reasonably available for inspection by a representative
of, and counsel for, any underwriter participating in any disposition
pursuant to a Registration Statement, all relevant financial and other
records, pertinent corporate documents and properties of the Company and
(ii) cause the officers, directors and employees of the Company or the
Exchange Issuer, as the case may be, to supply all relevant information
reasonably requested by such representative, counsel or any such
underwriter in connection with any such Registration Statement; and
(m) if requested by the holders in connection with any Registration
Statement, shall use its best efforts to cause (w) counsel for the Company
or the Exchange Issuer, as the case may be, to deliver an opinion relating
to the Registration Statement and the Registrable Securities, in customary
form, (x) its officers to execute and deliver all 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.
The Company or the Exchange Issuer, as the case may be, may, as a
condition to such holder's participation in any Registration Statement, require
each holder of Registrable Securities to (i) furnish to the Company or the
Exchange Issuer, as the case may be, such information regarding the holder and
23
the proposed distribution by such holder of such Registrable Securities as the
Company or the Exchange Issuer, as the case may be, may from time to time
reasonably request in writing and (ii) agree in writing to be bound by this
Agreement.
6. INDEMNIFICATION AND CONTRIBUTION. (a) The Company or the
Exchange Issuer, as the case may be, with respect to each Registration Statement
(and related Prospectus) filed by it (with respect to such Registration
Statement, the "Registrant") agrees to indemnify and hold harmless each holder
whose Registrable Securities are included in such Registration Statement (each,
a "Holder"), the officers and directors of such 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 of them in connection with defending or
investigating any such action or claim) caused by, arising out of or based upon
any untrue statement or alleged untrue statement of a material fact contained in
any Prospectus, preliminary prospectus or Registration Statement (or any
amendment thereto) pursuant to which Registrable Securities were registered
under the Securities Act, or caused by, arising out of or based upon 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, or caused by any untrue statement or alleged untrue statement of
a material fact contained in any Prospectus (as amended or supplemented if the
Registrant 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, with respect to a Holder, its
officers and directors and its controlling person, insofar as such losses,
claims, damages or liabilities are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information relating
to such Holder furnished to the Registrant in writing by such Holder expressly
for use in any such Registration Statement, Prospectus or preliminary
prospectus.
(b) Each Holder agrees, severally and not jointly, to indemnify and
hold harmless the Registrant, its directors, its officers and each person, if
any, who controls the Registrant 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 the Registrant to such Holder, but
24
only with reference to information relating to such Holder furnished to the
Registrant 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) or any preliminary prospectus. The liability of any Holder
under this paragraph (b) shall in no event exceed the proceeds received by such
Holder from sales of Registrable Securities giving rise to such obligations.
(c) If any suit, action, proceeding (including any governmental
investigation), claim or demand shall be brought or asserted 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 against which such indemnity may be sought (the "indemnifying party")
in writing but failure to so notify the indemnified party shall not relieve the
indemnifying party from any liability which it may have hereunder or otherwise
except to the extent such failure actually prejudiced the rights of the
indemnifying party, and the indemnifying party, upon request of the indemnified
party, shall retain counsel (and any local 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 (and any local 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 party 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 except as provided above, the indemnifying parties
shall not, in connection with any one such proceeding or separate but
substantially similar or related proceedings in
25
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. Notwithstanding
the foregoing sentence, the indemnifying party agrees that it shall be liable
for any settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than 30 days after receipt by such
indemnifying party of a request for fees and expenses of counsel retained by the
indemnified party pursuant to this paragraph and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement; PROVIDED, HOWEVER, that the indemnifying
party shall not be liable for any settlement effected without its consent
pursuant to this sentence if the indemnifying person is contesting, in good
faith, the request for reimbursement. 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 6 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 the
Registrant 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 the Registrant 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
26
considerations. The relative fault of the Registrant 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 information
supplied by the Registrant or by the Holders and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
(e) The Registrant and each Holder agrees that it would not be just
or equitable if contribution pursuant to this Section 6 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 11(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 6 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.
7. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. Each of the ACME Parent and the
Company has not entered into nor will ACME Parent or the Company 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.
(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 the Company has obtained the written consent of holders
of at least a majority of the 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 Reg-
27
istrable Securities may be given by the holders of a majority of the Registrable
Securities proposed to be sold.
(c) NOTICES. Each notice given to a holder of Membership Units
pursuant to this Agreement shall simultaneously be given to the holder of the
Convertible Security. 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 the Initial Purchaser, at its address set forth in the
Purchase Agreement; (ii) if to the Company or ACME Parent, at the Company's
address set forth in the Purchase Agreement; (iii) if to a holder of Membership
Units, as set forth in the register of the Membership Units; or (iv) if to the
holder of a Convertible Debenture, as set forth in the register of the
Convertible Debenture; or (v) if to a holder of a Convertible Preferred Unit, as
set forth in the register of the Convertible Preferred Units.
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.
(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 of Registrable Securities. If any transferee of
any holder of Registrable Securities 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 of Registrable Securities
shall be third party beneficiaries to the agreements made hereunder between the
Company and ACME Parent, 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 of Registrable
Securities hereunder.
28
(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 without any
regard to conflict of laws provisions thereof.
(i) SEVERABILITY. In the event that any on 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 impair thereby.
29
IN WITNESS WHEREOF, the parties have executed this Membership
Unitholders Agreement as of the date first written above.
ACME INTERMEDIATE HOLDINGS, LLC
By: ACME Television Holdings, LLC
its majority member
By:/s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx Xxxxx
Title: President
ACME TELEVISION HOLDINGS, LLC
By:/s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx Xxxxx
Title: President
CIBC WOOD GUNDY SECURITIES CORP.
By:/s/ Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx Xxxxx
Title: Managing Director
