Exhibit 10.10
REGISTRATION RIGHTS AGREEMENT
Dated as of July 26, 1996
TABLE OF CONTENTS
SECTION PAGE
1. INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. REGISTRATION UNDER SECURITIES ACT, ETC. . . . . . . . . . . . . . . . . 1
2.1 REGISTRATION ON REQUEST. . . . . . . . . . . . . . . . . . . . . . 1
(a) REQUEST. . . . . . . . . . . . . . . . . . . . . . . . . . . 1
(b) REGISTRATION STATEMENT FORM . . . . . . . . . . . . . . . . 2
(c) EXPENSES. . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(d) EFFECTIVE REGISTRATION STATEMENT. . . . . . . . . . . . . . . 3
(e) SELECTION OF UNDERWRITERS . . . . . . . . . . . . . . . . . 3
(f) PRIORITY IN REQUESTED REGISTRATIONS . . . . . . . . . . . . 3
2.2 INCIDENTAL REGISTRATION . . . . . . . . . . . . . . . . . . . . . 4
(a)RIGHT TO INCLUDE REGISTRABLE SECURITIES . . . . . . . . . . . 4
(b) PRIORITY IN INCIDENTAL REGISTRATIONS . . . . . . . . . . . . 5
2.3 REGISTRATION PROCEDURES . . . . . . . . . . . . . . . . . . . . . 5
2.4 UNDERWRITTEN OFFERINGS . . . . . . . . . . . . . . . . . . . . . . 10
(a) REQUESTED UNDERWRITTEN OFFERINGS . . . . . . . . . . . . . . 10
(b) INCIDENTAL UNDERWRITTEN OFFERINGS . . . . . . . . . . . . . . 11
(c) HOLDBACK AGREEMENTS . . . . . . . . . . . . . . . . . . . . . 11
(d) PARTICIPATION IN UNDERWRITTEN OFFERINGS . . . . . . . . . . . 12
2.5 PREPARATION; REASONABLE INVESTIGATION . . . . . . . . . . . . . . 12
2.6 RIGHTS OF REQUESTING HOLDERS . . . . . . . . . . . . . . . . . . . 12
2.7 INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . 13
(a) INDEMNIFICATION BY THE COMPANY . . . . . . . . . . . . . . . 13
(b) INDEMNIFICATION BY THE SELLERS . . . . . . . . . . . . . . . 14
(c) NOTICES OF CLAIMS, ETC . . . . . . . . . . . . . . . . . . . 15
(d) OTHER INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . 15
(e) INDEMNIFICATION PAYMENTS. . . . . . . . . . . . . . . . . . . 16
(f) CONTRIBUTION. . . . . . . . . . . . . . . . . . . . . . . . . 16
2.8 ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES . . . . . . . . . . . 17
3. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
4. RULES 144 AND 144A . . . . . . . . . . . . . . . . . . . . . . . . . . 19
5. AMENDMENTS AND WAIVERS . . . . . . . . . . . . . . . . . . . . . . . . 20
6. NOMINEES FOR BENEFICIAL OWNERS . . . . . . . . . . . . . . . . . . . . 20
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7. NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
8. ASSIGNMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
9. DESCRIPTIVE HEADINGS . . . . . . . . . . . . . . . . . . . . . . . . . 21
10. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
11. COUNTERPARTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
12. ENTIRE AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
13. SUBMISSION TO JURISDICTION . . . . . . . . . . . . . . . . . . . . . . 22
14. SEVERABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
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REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of July 26, 1996, among Universal
Outdoor Holdings, Inc., a Delaware corporation (the "Company"), and the other
undersigned parties hereto.
1. INTRODUCTION. The Company is a party to the separate Agreement and
Plan of Recapitalization (the "Recapitalization Agreement"), dated as of July
26, 1996, with Xxxxx Investment Associates V, L.P. ("KIA V"), Xxxxx Equity
Partners V, L.P. ("KEP V") and the Company Stockholders, pursuant to which the
Company has agreed, among other things, to reclassify shares of Class B Common
Stock, par value $.01 per share, and Class C Common Stock, par value $.01 per
share, of the Company into shares of Common Stock, par value $.01 per share, of
the Company (the "Common Stock"). This Agreement shall become effective upon
the reclassification of such securities pursuant to the Recapitalization
Agreement and the initial public offering of the Common Stock by the Company as
described in the Form S-1 Registration Statement filed by the Company with the
Commission on June 6, 1996. The Company has also issued warrants to purchase
Common Stock to the Management Individuals pursuant to, and subject to the terms
and conditions of, its 1996 Warrant Plan adopted on April 5, 1996, as amended on
July 26, 1996. Certain capitalized terms used in this Agreement are defined in
section 3 hereof; references to sections shall be to sections of this agreement.
2. REGISTRATION UNDER SECURITIES ACT, ETC.
2.1 REGISTRATION ON REQUEST.
(a) REQUEST. Subject to the last sentence of this section 2.1(a),
upon the written request of one or more Initiating Holders, requesting that the
Company effect the registration under the Securities Act of all or part of such
Initiating Holders' Registrable Securities and specifying the intended method of
disposition thereof, the Company will promptly give written notice of such
requested registration to all registered holders of Registrable Securities who
would be entitled to participate in such registration, and thereupon the Company
will, subject to the terms of this Agreement, effect the registration under the
Securities Act of:
(i) the Registrable Securities which the Company has been so
requested to register by such Initiating Holders for disposition in accordance
with the intended method of disposition stated in such request;
(ii) all other Registrable Securities the holders of which shall have
made a written request to the Company for registration thereof within 30 days
after the giving of such written notice by the Company (which request shall
specify the intended method of disposition of such Registrable Securities);
(iii) all shares of Common Stock which the Company may elect to
register in connection with the offering of Registrable Securities pursuant to
this section 2.1; PROVIDED however, for so long as any shares of Common Stock
are held by any Xxxxx Entity or by any Management Individual, shares of Common
Stock which the Company may elect to register shall not be so registered
pursuant to this Section 2.1(a) without the prior written consent of, (X) in the
event that any shares of Common Stock are held by any Xxxxx Entity, KIA V, and
(Y) in the event that any shares of Common Stock are held by any Management
Individual, each such Management Individual,
all to the extent requisite to permit the disposition (in accordance with the
intended methods thereof as aforesaid) of the Registrable Securities and the
additional shares of Common Stock, if any so to be registered , PROVIDED that
the Company shall not be required to effect any registration of Registrable
Securities pursuant to this section 2.1 unless (X) a single holder of
Registrable Securities has requested the registration of a number of shares of
Registrable Securities held by such holder which is equal to or greater than 5%
of the shares of Common Stock at the time outstanding and (Y) the aggregate
number of shares of Registrable Securities requested to be registered by all
holders of Registrable Securities is equal to or greater than 10% of the number
of shares of Common Stock at the time outstanding, and PROVIDED, FURTHER, that
the foregoing proviso shall not apply if any Xxxxx Entity is initiating a
request as an Initiating Holder for the registration of all of such Xxxxx
Entity's Registrable Securities. Subject to the provisions of Section 2.1(d)
and to the following sentence, each Initiating Holder will have the right to
request registration pursuant to this Section 2.1(a) an aggregate of four (4)
times. In the event that any Management Shareholder requests registration as an
Initiating Holder pursuant to this section 2.1(a), the Company shall notify KIA
V in writing of such request and KIA V may elect, in its sole discretion, within
15 business days of receipt of such written request, to request registration as
an Initiating Holder pursuant to this section 2.1(a) in which case KIA V shall
be treated as an Initiating Holder for purposes of this section 2.1(a) and such
Management Shareholder originally requesting registration shall not to be
treated as an Initiating Holder pursuant to this section 2.1(a) (and such
registration request shall not be counted with respect to such Management
Shareholder for purposes of the preceding sentence).
(b) REGISTRATION STATEMENT FORM. Registrations under this section
2.1 shall be on such appropriate registration form of the Commission (i) as
shall be selected by the Company and,as shall be reasonably acceptable to the
holders of more than 50% (by number of shares) of the Registrable Securities so
to be registered and (ii) as shall permit the disposition of such Registrable
Securities in accordance with the intended method or methods of disposition
specified in their request for such registration. If, in connection with any
registration under section 2.1 which is proposed by the Company to be on Form
S-3 or any similar short form registration statement which is a successor to
Form S-3, the managing underwriters, if any, shall advise the Company in writing
that in their opinion the use of
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another permitted form is of material importance to the success of the offering,
then such registration shall be on such other permitted form.
(c) EXPENSES. The Company will pay all Registration Expenses in
connection with any registration requested pursuant to this section 2.1
(including any registration deemed not to be "effected" under Section 2.1) and
any other actions that may be taken in connection with any such registration as
contemplated by this Agreement.
(d) EFFECTIVE REGISTRATION STATEMENT. A registration requested
pursuant to this section 2.1 shall not be deemed to have been effected (and
therefore not requested for purposes of the second to last sentence of section
2.1(a)) (i) unless a registration statement with respect thereto has become
effective, PROVIDED that a registration which does not become effective after
the Company has filed a registration statement with respect thereto solely by
reason of the refusal to proceed of the Initiating Holders (other than a refusal
to proceed based upon the advice of counsel relating to a matter with respect to
the Company) shall be deemed to have been effected by the Company at the request
of such Initiating Holders unless the Initiating Holders shall have elected to
pay all Registration Expenses in connection with such registration, (ii) if,
after it has become effective, such registration becomes subject to any stop
order, injunction or other order or requirement of the Commission or other
governmental agency or court for any reason, or (iii) the conditions to closing
specified in the purchase agreement or underwriting agreement entered into in
connection with such registration are not satisfied, other than by reason of
some act or omission by such Initiating Holders.
(e) SELECTION OF UNDERWRITERS. If a requested registration pursuant
to this section 2.1 involves an underwritten offering, the underwriter or
underwriters thereof shall be selected by the holders of at least a majority (by
number of shares) of the Registrable Securities as to which registration has
been requested; PROVIDED, however, that if any Xxxxx Entity is an Initiating
Holder pursuant to section 2.1(a), then the underwriter or underwriters in such
underwritten offering shall be selected by KIA V.
(f) PRIORITY IN REQUESTED REGISTRATIONS. If a requested registration
pursuant to this section 2.1 involves an underwritten offering, and the managing
underwriter shall advise the Company in writing (with a copy to each holder of
Registrable Securities requesting registration) that, in its opinion, the number
of securities requested to be included in such registration (including
securities of the Company which are not Registrable Securities) exceeds the
number which can be sold in such offering within a price range acceptable to the
holders of a majority of the Registrable Securities requested to be included in
such registration, the Company will include in such registration, to the extent
of the number which the Company is so advised can be sold in such offering, (X)
in the event that any Xxxxx Entity is an Initiating Holder, (i) first,
Registrable Securities requested to be included in such registration by any
Xxxxx Entity which is a holder of Registrable Securities, PRO RATA among such
holders requesting such registration on the basis of the number of such
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securities requested to be included by such holders, (ii) second, Registrable
Securities requested to be included in such registration by any other holder of
Registrable Securities, PRO RATA among such other holders requesting such
registration on the basis of the number of such securities requested to be
included by such holders and (iii) third, subject to section 2.1(a) hereof,
securities the Company proposes to sell and other securities of the Company
included in such registration by the holders thereof, and (Y) in the event no
Xxxxx Entity is an Initiating Holder, securities proposed by the Company to be
sold for its own account, Registrable Securities and other securities of the
Company requested to be included in such registration PRO RATA on the basis of
the number of shares of such securities so proposed to be sold and so requested
to be included.
2.2 INCIDENTAL REGISTRATION.
(a) RIGHT TO INCLUDE REGISTRABLE SECURITIES. If the Company at any
time proposes to register any of its securities under the Securities Act (other
than by a registration on Form S-4 or S-8, or any successor or similar forms and
other than pursuant to section 2.1), whether or not for sale for its own
account, it will each such time give prompt written notice to all holders of
Registrable Securities of its intention to do so and of such holders' rights
under this section 2.2. Upon the written request of any such holder made within
30 days after the receipt of any such notice (which request shall specify the
Registrable Securities intended to be disposed of by such holder and the
intended method of disposition thereof), the Company will, subject to the terms
of this Agreement, effect the registration under the Securities Act of all
Registrable Securities which the Company has been so requested to register by
the holders thereof, to the extent requisite to permit the disposition (in
accordance with the intended methods thereof as aforesaid) of the Registrable
Securities so to be registered, by inclusion of such Registrable Securities in
the registration statement which covers the securities which the Company
proposes to register; PROVIDED that if, at any time after giving written notice
of its intention to register any securities and prior to the effective date of
the registration statement filed in connection with such registration, the
Company shall determine for any reason either not to register or to delay
registration of such securities, the Company may, at its election, give written
notice of such determination to each holder of Registrable Securities and,
thereupon, (i) in the case of a determination not to register, shall be relieved
of its obligation to register any Registrable Securities in connection with such
registration (but not from its obligation to pay the Registration Expenses in
connection therewith), without prejudice, however, to the rights of any holder
or holders of Registrable Securities entitled to do so to request that such
registration be effected as a registration under section 2.1, and (ii) in the
case of a determination to delay registering, shall be permitted to delay
registering any Registrable Securities, for the same period as the delay in
registering such other securities. No registration effected under this section
2.2 shall relieve the Company of its obligation to effect any registration upon
request under section 2.1, nor shall any such registration hereunder be deemed
to have been effected pursuant to section 2.1. The Company will pay all
Registration Expenses in connection with each registration of Registrable
Securities requested pursuant to this section 2.2, and each
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requesting holder whose Registrable Securities are included in a registration
requested pursuant to this section 2.2 will pay any underwriting discounts and
commissions in connection therewith
(b) PRIORITY IN INCIDENTAL REGISTRATIONS. If (i) a registration
pursuant to this section 2.2 involves an underwritten offering of the securities
so being registered, whether or not for sale for the account of the Company, to
be distributed (on a firm commitment basis) by or through one or more
underwriters of recognized standing under underwriting terms appropriate for
such a transaction, (ii) the Registrable Securities so requested to be
registered for sale for the account of holders of Registrable Securities are not
also to be included in such underwritten offering (either because the Company
has not been requested so to include such Registrable Securities pursuant to
section 2.4(b) or, if requested to do so, is not obligated to do so under
section 2.4(b), and (iii) the managing underwriter of such underwritten offering
shall inform the Company and holders of the Registrable Securities requesting
such registration by letter of its belief that the number of securities
requested to be included in such registration exceeds the number which can be
sold in (or during the time of) such offering, then the Company will include in
such registration, to the extent of the number which the Company is so advised
can be sold in (or during the time of) such offering, securities proposed by the
Company to be sold for its own account, Registrable Securities and other
securities of the Company requested to be included in such registration PRO RATA
on the basis of the number of shares of such securities so proposed to be sold
and so requested to be included.
2.3 REGISTRATION PROCEDURES. If and whenever (a) the Company is required
to effect the registration of any Registrable Securities under the Securities
Act as provided in sections 2.1 and 2.2 or (b) there is a Requesting Holder in
connection with any other proposed registration by the Company under the
Securities Act, the Company shall, as expeditiously as possible:
(i) prepare and (within 60 days after the end of the period within
which requests for registration may be given to the Company or in any event
as soon thereafter as possible) file with the Commission the requisite
registration statement to effect such registration (including such audited
financial statements as may be required by the Securities Act or the rules
and regulations promulgated thereunder) and thereafter cause such
registration statement to become and remain effective, PROVIDED however
that the Company may discontinue any registration of its securities which
are not Registrable Securities (and, under the circumstances specified in
section 2.2(a), its securities which are Registrable Securities) at any
time prior to the effective date of the registration statement relating
thereto;
(ii) prepare and file with the Commission such amendment and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective and to
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comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement until
the earlier of such time as all of such securities have been disposed of in
accordance with the intended methods of disposition by the seller or
sellers thereof set forth in such registration statement or (i) in the case
of a registration pursuant to section 2.1, the expiration of one hundred
eighty days after such registration statement becomes effective, or (ii) in
the case of a registration pursuant to section 2.2, the expiration of 90
days after such registration statement becomes effective;
(iii) furnish to each seller of Registrable Securities covered by
such registration statement and each Requesting Holder and each
underwriter, if any, of the securities being sold by such seller such
number of conformed copies of such registration statement and of each such
amendment and supplement thereto (in each case including all exhibits),
such number of copies of the prospectus contained in such registration
statement (including each preliminary prospectus and any summary
prospectus) and any other prospectus filed under Rule 424 under the
Securities Act, in conformity with the requirements of the Securities Act,
and such other documents, as such seller and underwriter, if any, may
reasonably request;
(iv) use its best efforts to register or qualify all Registrable
Securities and other securities covered by such registration statement
under such other securities laws or blue sky laws of such jurisdictions as
any seller thereof and any underwriter of the securities being sold by such
seller and any Requesting Holder shall reasonably request, to keep such
registrations or qualifications in effect for so long as such registration
statement remains in effect, and take any other action which may be
reasonably necessary or advisable to enable such seller and underwriter to
consummate the disposition in such jurisdictions of the securities owned by
such seller, except that the Company shall not for any such purpose be
required to qualify generally to do business as a foreign corporation in
any jurisdiction wherein it would not but for the requirements of this
subdivision (iv) be obligated to be so qualified or to consent to general
service or process in any such jurisdiction;
(v) use its best efforts to cause all Registrable Securities covered
by such registration statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary to enable
the seller or sellers thereof to consummate the disposition of such
Registrable Securities;
(vi) furnish to each seller of Registrable Securities and each
Requesting Holder a signed counterpart, addressed to such seller, such
Requesting Holder and the underwriters, if any, of:
(X) an opinion of counsel for the Company, dated the effective
date of such registration statement (or, if such registration includes
an
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underwritten public offering, an opinion dated the date of the closing
under the underwriting agreement), reasonably satisfactory in form and
substance to such seller, and
(Y) a "comfort" letter (or, in the case of any such Person which
does not satisfy the conditions for receipt of a "comfort" letter
specified in Statement on Auditing Standards No. 72, an "agreed upon
procedures" letter), dated the effective date of such registration
statement (and, if such registration includes an underwritten public
offering, a letter of like kind dated the date of the closing under
the underwriting agreement), signed by the independent public
accountants who have certified the Company's financial statements
included in such registration statement,
covering substantially the same matters with respect to such registration
statement (and the prospectus included therein) and, in the case of the
accountants' letter, with respect to events subsequent to the date of such
financial statements, as are customarily covered in opinions of issuer's
counsel and in accountants' letters delivered to the underwriters in
underwritten public offerings of securities (with, in the case of an
"agreed upon procedure" letter, such modifications or deletions as may be
required under Statement on Auditing Standards No. 35) and, in the case of
the accountants' letter, such other financial matters, and, in the case of
the legal opinion, such other legal matters, as such seller or such
Requesting Holder (or the underwriters, if any) may reasonably request;
(vii) notify the holders of Registrable Securities and the
managing underwriter or underwriters, if any, promptly and confirm such
advice in writing promptly thereafter:
(V) when the registration statement, the prospectus or any
prospectus supplement related thereto or post-effective amendment to
the registration statement has been filed, and, with respect to the
registration statement or any post-effective amendment thereto, when
the same has become effective;
(W) of any request by the Commission for amendments or
supplements to the registration statement or the prospectus or for
additional information;
(X) of the issuance by the Commission of any stop order
suspending the effectiveness of the registration statement or the
initiation of any proceedings by any Person for that purpose;
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(Y) if at any time the representations and warranties of the
Company made as contemplated by section 2.4 below cease to be true and
correct; and
(Z) of the receipt by the Company of any notification with
respect to the suspension of the qualification of any Registrable
Securities for sale under the securities or blue sky laws of any
jurisdiction or the initiation or threat of any proceeding for such
purpose;
(viii) notify each seller of Registrable Securities covered by such
registration statement and each Requesting Holder, at any time when a
prospectus relating thereto is required to be delivered under the
Securities Act, upon the Company's discovery that, or upon the happening of
any event as a result of which, the prospectus included in such
registration statement, as then in effect, includes an untrue statement of
a material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading in the
light of the circumstances under which they were made, and at the request
of any such seller or Requesting Holder promptly prepare and furnish to
such seller or Requesting Holder and each underwriter, if any, a reasonable
number of copies of a supplement to or an amendment of such prospectus as
may be necessary so that, as thereafter delivered to the purchasers of such
securities, such prospectus shall not include an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in the
light of the circumstances under which they were made;
(ix) make every reasonable effort to obtain the witrawal of any order
suspending the effectiveness of the registration statement at the earliest
possible moment;
(x) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make available to its security
holders, as soon as reasonably practicable, an earnings statement covering
the period of at least twelve months, but not more than eighteen months,
beginning with the first day of the Company's first full calendar quarter
after the effective date of such registration statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the Securities
Act and Rule 158 thereunder, and will furnish to each such seller and each
Requesting Holder at least five business days prior to the filing thereof a
copy of any amendment or supplement to such registration statement or
prospectus and shall not file any thereof to which any such seller or any
Requesting Holder shall have reasonably objected on the grounds that such
amendment or supplement does not comply in all material respects with the
requirements of the Securities Act or of the rules or regulations
thereunder;
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(xi) provide and cause to be maintained a transfer agent and registrar
for all Registrable Securities covered by such registration statement from
and after a date not later than the effective date of such registration
statement;
(xii) enter into such agreements and take such other actions as
sellers of such Registrable Securities holding more than 50% of the shares
so to be sold shall reasonably request in order to expedite or facilitate
the disposition of such Registrable Securities;
(xiii) use its best efforts to list all Registrable Securities
covered by such registration statement on any securities exchange on which
any of the securities of the same class as the Registrable Securities are
then listed;
(xiv) use its best efforts to provide a CUSIP number for the
Registrable Securities, not later than the effective date of the
registration statement.
The Company may require each seller of Registrable Securities as to which any
registration is being effected to furnish the Company such information regarding
such seller and the distribution of such securities as the Company may from time
to time reasonably request in writing.
The Company will not file any registration statement or amendment thereto
or any prospectus or any supplement thereto (including such documents
incorporated by reference and proposed to be filed after the initial filing of
the registration statement) to which the holders of at least a majority of the
Registrable Securities covered by such registration statement or the underwriter
or underwriters, if any, shall reasonably object, PROVIDED that the Company may
file such document in a form required by law or upon the advice of its counsel.
Each holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon receipt of any notice from the Company of the
occurrence of any event of the kind described in subdivision (viii) of this
section 2.3, such holder will forthwith discontinue such holder's disposition of
Registrable Securities pursuant to the registration statement relating to such
Registrable Securities until such holder's receipt of the copies of the
supplemented or amended prospectus contemplated by subdivision (viii) of this
section 2.3 and, if so directed by the Company, will deliver to the Company (at
the Company's expense) all copies, other than permanent file copies, then in
such holder's possession of the prospectus relating to such Registrable
Securities current at the time of receipt of such notice. In the event the
Company shall give any such notice, the period mentioned in paragraph (ii) of
this section 2.3 shall be extended by the length of the period from and
including the date when each seller of any Registrable Securities covered by
such registration statement shall have received such notice to the date on which
each such seller has received
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the copies of the supplemented or amended prospectus contemplated by paragraph
(viii) of this section 2.3.
If any such registration statement refers to any holder of Registrable
Securities by name or otherwise as the holder of any securities of the Company,
then such holder shall have the right to require (i) the insertion therein of
language, in form and substance satisfactory to such holder, to the effect that
the holding by such holder of such securities is not to be construed as a
recommendation by such holder of the investment quality of the Company's
securities covered thereby and that such holding does not imply that such holder
will assist in meeting any future financial requirements of the Company, or (ii)
in the event that such reference to such holder by name or otherwise is not
required by the Securities Act or any similar federal statute then in force, the
deletion of the reference to such holder.
2.4 UNDERWRITTEN OFFERINGS.
(a) REQUESTED UNDERWRITTEN OFFERINGS. If requested by the
underwriters for any underwritten offering by holders of Registrable Securities
pursuant to a registration requested under section 2.1, the Company will enter
into an underwriting agreement with such underwriters for such offering, such
agreement to be reasonably satisfactory in substance and form to the Company,
each such holder and the underwriters, and to contain such representations and
warranties by the Company and such other terms as are generally prevailing in
agreements of this type, including, without limitation, indemnities to the
effect and to the extent provided in section 2.7. The holders of the
Registrable Securities will cooperate with the Company in the negotiation of the
underwriting agreement and will give consideration to the reasonable suggestions
of the Company regarding the form thereof, PROVIDED that nothing herein
contained shall diminish the foregoing obligations of the Company. The holders
of Registrable Securities to be distributed by such underwriters shall be
parties to such underwriting agreement and may, at their option, require that
any or all of the representations and warranties by, and the other agreements on
the part of, the Company to and for the benefit of such underwriters shall also
be made to and for the benefit of such holders of Registrable Securities and
that any or all of the conditions precedent to the obligations of such
underwriters under such underwriting agreement be conditions precedent to the
obligations of such holders of Registrable Securities. Any such holder of
Registrable Securities shall not be required to make any representations or
warranties to or agreements with the Company or the underwriters other than
representations and warranties contained in writing furnished by such holder
expressly for use in such registration statement or agreements regarding such
holder, such holder's Registrable Securities and such holder's intended method
of distribution and any other representation required by law or to make any
agreements with the Company or the underwriters with respect to indemnification
of any Person or the contribution obligations of any Person that would impose
any obligation beyond or inconsistent with the provisions of section 2.7.
10
(b) INCIDENTAL UNDERWRITTEN OFFERINGS. If the Company at any time
proposes to register any of its securities under the Securities Act as
contemplated by section 2.2 and such securities are to be distributed by or
through one or more underwriters, the Company will, if requested by any holder
of Registrable Securities as provided in section 2.2 and subject to the
provisions of section 2.2(b), use its best efforts to arrange for such
underwriters to include all the Registrable Securities to be offered and sold by
such holder among the securities to be distributed by such 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 and any other representation required
by law or to make any agreements with the Company or the underwriters with
respect to indemnification of any Person or the contribution obligations of any
Person that would impose any obligation beyond or inconsistent with the
provisions of section 2.7.
(c) HOLDBACK AGREEMENTS.
(i) Each holder of Registrable Securities agrees by acquisition
of such Registrable Securities, if and to the extent so required by the
managing underwriter, not to sell, make any short sale of, loan, grant any
option for the purchase of, effect any public sale or distribution of or
otherwise dispose of any securities of the Company, during the 7 days prior
to and the 180 days after any underwritten registration pursuant to section
2.1 or 2.2 has become effective, except as part of such underwritten
registration, whether or not such holder participates in such registration,
PROVIDED that the foregoing restrictions shall not apply with regard to any
Xxxxx Entity in a distribution of Registrable Securities to its partners or
to the transfer to any Affiliate of such Persons or to any other transferee
in a private transaction not requiring registration under the Securities
Act, or to any bona fide pledge of such Registrable Securities, provided
that such Affiliate or other transferee and/or lender or creditor
acknowledges in writing that it is bound by the provisions of this section
2.4(c). Each holder of Registrable Securities agrees that the Company may
instruct its transfer agent to place stop transfer notations in its records
to enforce this section 2.4(c).
(ii) The Company agrees (X) if so required by the managing
underwriter not to sell, make any short sale of, loan, grant any option for
the
11
purchase of, effect any public sale or distribution of or otherwise dispose
of its equity securities or securities convertible into or exchangeable or
exercisable for any of such securities during the seven days prior to and
the 180 days after any -underwritten registration pursuant to section 2.1
or 2.2 has become effective, except as part of such underwritten
registration and except pursuant to registrations on Form X-0, X-0, or any
successor or similar forms thereto, and (Y) to cause each holder of its
securities purchased from the Company at any time after the date of this
Agreement (other than in a public offering) to agree not to sell, make any
short sale of, loan, xxxx any option for the purchase of, effect any public
sale or distribution of or otherwise dispose of such securities during such
period.
(d) PARTICIPATION IN UNDERWRITTEN OFFERINGS. No Person may
participate in any underwritten offering hereunder unless such person (i) agrees
to sell such Person's securities on the basis provided in any underwriting
arrangements approved, subject to the terms and conditions hereof, by the
Company and the holders of a majority of Registrable Securities to be included
in such underwritten offering and (ii) completes and executes all
questionnaires, indemnities, underwriting agreements and other documents (other
than powers of attorney) required under the terms of such underwriting
arrangements. Notwithstanding the foregoing, no underwriting agreement (or
other agreement in connection with such offering) shall require any holder of
Registrable Securities to make any representations or warranties to or
agreements with the Company or the underwriters other than representations and
warranties contained in a writing furnished by such holder expressly for use in
the related registration statement or agreements regarding such holder, such
holder's registrable Securities and such holder's intended method of
distribution and any other representation required by law or to make any
agreements with the Company or the underwriters with respect to indemnification
of any Person or the contribution obligations of any Person that would impose
any obligation beyond or inconsistent with the provisions of section 2.7.
2.5 PREPARATION; REASONABLE INVESTIGATION. In connection with the
preparation and filing of each registration statement under the Securities Act
pursuant to this Agreement, the Company will give the holders of Registrable
Securities registered under such registration statement, their underwriters, if
any, each Requesting Holder and their respective counsel and accountants, the
opportunity to participate in the preparation of such registration statement,
each prospectus included therein or filed with the Commission, and each
amendment thereof or supplement thereto, and will give each of them such access
to its books and records and such opportunities to discuss the business of the
Company with its officers and the independent public accountants who have
certified its financial statements as shall be necessary, in the opinion of such
holders' and such underwriters' respective counsel, to conduct a reasonable
investigation within the meaning of the Securities Act.
2.6 RIGHTS OF REQUESTING HOLDERS. The Company will not file any
registration statement under the Securities Act (other than by a registration on
Form S-8), unless it shall
12
first have given to each holder of Registrable Securities (who would be entitled
to participate in such registration) at the time outstanding (other than any
such Person who acquired all such securities held by such Person in a public
offering registered under the Securities Act or as the direct or indirect
transferee of shares initially issued in such an offering), at least 30 days
prior written notice thereof. Any such Person who shall so request within 30
days after such notice (a "Requesting Holder") shall have the rights of a
Requesting Holder provided in sections 2.3, 2.5 and 2.7. In addition, if any
such registration statement refers to any Requesting Holder by name or otherwise
as the holder of any securities of the Company, then such holder shall have the
right to require (a) the insertion therein of language, in form and substance
satisfactory to such holder, to the effect that the holding by such holder of
such securities does not necessarily make such holder a "controlling person" of
the Company within the meaning of the Securities Act and is not to be construed
as a recommendation by such holder of the investment quality of the Company's
debt or equity securities covered thereby and that such holding does not imply
that such holder will assist in meeting any future financial requirements of the
Company, or (b) in the event that such reference to such holder by name or
otherwise is not required by the Securities Act or any rules and regulations
promulgated thereunder, the deletion of the reference to such holder.
2.7 INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. In the event of any registration
of any securities of the Company under the Securities Act, the Company will, and
hereby does agree to, indemnify and hold harmless (i) in the case of any
registration statement filed pursuant to section 2.1 or 2.2, the holder of any
Registrable Securities covered by such registration statement and its partners,
if any, its and their respective directors, officers, partners, agents and
Affiliates, each other Person who participates as an underwriter in the offering
or sale of such securities and each other Person, if any, who controls such
holder or any such underwriter within the meaning of the Securities Act, and
(ii) in the case of any registration statement of the Company, any Requesting
Holder and it partners, if any, its and their respective directors, officers,
partners, agents and Affiliates and each other Person, if any, who controls such
Requesting Holder within the meaning of the Securities Act, against any losses,
claims, damages or liabilities, joint or several, to which such holder or
Requesting Holder or partner thereof or any such director or officer or partner
or agent or Affiliate or underwriter or controlling person may become subject
under the Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions or proceedings, whether commenced or threatened, in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any registration statement
under which such securities were registered under the Securities Act, any
preliminary prospectus, final prospectus or summary prospectus contained
therein, or any amendment or supplement thereto, or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and the Company will
reimburse such holder, such Requesting Holder, their respective partners and
each such director, officer, partner, agent, Affiliate, underwriter and
13
controlling person for any legal or any other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim,
liability, action or proceeding, PROVIDED that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage, liability (or
action or proceeding in respect thereof) or expense arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in such registration statement, any such preliminary prospectus,
final prospectus, summary prospectus, amendment or supplement in reliance upon
and in conformity with written information furnished to the Company through an
instrument duly executed by such holder or Requesting Holder, as the case may
be, specifically stating that it is for use in the preparation thereof. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of such holder or such Requesting Holder or partner thereof
or any such director, officer, partner, agent, Affiliate, underwriter or
controlling person and shall survive the transfer of such securities by such
holder. The indemnity agreement contained in the section 2.7(a) shall not apply
to amounts paid in settlement of any such loss, claim, damage, liability, action
or proceeding if such settlement is effected without the consent of the Company
(which consent shall not be unreasonably withheld).
(b) INDEMNIFICATION BY THE SELLERS. The Company may require, as a
condition to including any Registrable Securities in any registration statement
filed pursuant to section 2.3, that the Company shall have received an
undertaking reasonably satisfactory to it from the prospective seller of such
Registrable Securities, to indemnify severally and hold harmless (in the same
manner and to the same extent as set forth in subdivision (a) of this section
2.7) the Company, each director of the Company, each officer of the Company and
each other person, if any, who controls the Company within the meaning of the
Securities Act, with respect to any statement or alleged statement in or
omission or alleged omission from such registration statement, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, if such statement or alleged statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company through an instrument duly executed
by such seller specifically stating that it is for use in the preparation of
such registration statement, preliminary prospectus, final prospectus, summary
prospectus, amendment or supplement. Any such indemnity shall remain in full
force and effect, regardless of any investigation made by or on behalf of the
Company or any such director, officer or controlling person and shall survive
the transfer of such securities by such seller. The indemnity agreement
contained in the section 2.7(b) shall not apply to amounts paid in settlement of
any such loss, claim, damage, liability, action or proceeding if such settlement
is effected without the consent of such seller (which consent shall not be
unreasonably withheld). The parties hereto hereby acknowledge and agree that,
unless otherwise expressly agreed to in writing by holders of Registrable
Securities to the contrary, for all purposes of this Agreement the only
information furnished or to be furnished to the Company for use in any
registration statement, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto are
statements
14
specifically relating to (i) transactions between such holder and its
Affiliates, on the one hand, and the Company, on the other hand, (ii) the
beneficial ownership of shares of Common Stock by such holders and its
Affiliates and (iii) the name and address of such holder. If any additional
information about such holder or the plan of distribution (other than for an
underwritten offering) is required by law to be disclosed in any such document,
then such holder shall not unreasonably withhold its agreement referred to in
the immediately preceding sentence. The indemnity provided under this section
2.7(b) shall be limited in amount to the net amount of proceeds actually
received by such seller from the sale of Registrable Securities pursuant to such
registration statement.
(c) NOTICES OF CLAIMS, ETC. Promptly after receipt by an indemnified
party of notice of the commencement of any action or proceeding involving a
claim referred to in the preceding subdivisions of this section 2.7, such
indemnified party will, if a claim in respect thereof is to be made against an
indemnifying party, give written notice to the latter of the commencement of
such action, PROVIDED that the failure of any indemnified party to give notice
as provided herein shall not relieve the indemnifying party of its obligations
under the preceding subdivisions of this section 2.7, except to the extent that
the indemnifying party is actually prejudiced by such failure to give notice.
In case any such action is brought against an indemnified party, unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist in respect of such claim, the
indemnifying party shall be entitled to participate in and to assume the defense
thereof, jointly with any other indemnifying party similarly notified, to the
extent that the indemnifying party may wish, with counsel reasonably
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified party
for any legal or other expenses subsequently incurred by the latter in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the consent of the
indemnified party, consent to entry of any judgment or enter into any settlement
of any such action which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such indemnified party of a release from
all liability, or a covenant not to xxx, in respect to such claim or litigation.
No indemnified party shall consent to entry of any judgment or enter into any
settlement of any such action the defense of which has been assumed by an
indemnifying party without the consent of such indemnifying party.
(d) OTHER INDEMNIFICATION. Indemnification similar to that specified
in the preceding subdivisions of this section 2.7 (with appropriate
modifications) shall be given by the Company and each seller of Registrable
Securities with respect to any required registration or other qualification of
securities under any Federal or state law or regulation of any governmental
authority, other than the Securities Act, provided that the indemnifying party
receives an undertaking by or on behalf of such indemnified party to repay
amounts so advanced if it shall ultimately be determined that such indemnified
party is not entitled to be indemnified hereunder.
15
(e) INDEMNIFICATION PAYMENTS. The indemnification required by this
section 2.7 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.
(f) CONTRIBUTION. If the indemnification provided for in the
preceding subdivisions of this section 2.7 is unavailable to an indemnified
party in respect of any expense, loss, claim, damage or liability referred to
therein, then each indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such expense, loss, claim, damage or liability in such proportion
as is appropriate to reflect the relative benefits and the relative fault of the
Company on the one hand and the holder or underwriter, as the case may be, on
the other in connection with the distribution of the Registrable Securities and
the statements or omissions which result in any expense, loss, damage or
liability, as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the holder or underwriter,
as the case may be, on the other in connection with the distribution of the
Registrable Securities shall be deemed to be in the same proportion as the total
net proceeds received by the Company from the sale of the Common Stock by the
Company to the purchasers (plus the purchase price received by the Company from
any previous sale of the Registrable Securities to the holder in the case of
shares sold by such holder) in a registered offering hereunder, bear to the
gain, if any, realized by the selling holder (minus, in the case of any selling
holder, the price paid by such holder to the Company) or the underwriting
discounts and commissions received by the underwriter, as the case may be. The
relative fault of the Company on the one hand and of the holder or underwriter,
as the case may be, on the other shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or omission to state a material fact relates to information supplied by the
Company, by the holder of by the underwriter and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission, PROVIDED that the foregoing contribution agreement shall
not inure to the benefit of any indemnified party if indemnification would be
unavailable to such indemnified party by reason of the provisions contained in
the first sentence of subdivision (a) of this section 2.7, and in no event shall
the obligation of any prospective seller of Registrable Securities to contribute
under this subdivision (f) exceed the amount that such indemnifying party would
have been obligated to pay by way of indemnification if the indemnification
provided for under subdivisions (a) or (b) of this section 2.7 had been
available under the circumstances.
The Company and the holders of Registrable Securities agree that it would
not be just and equitable if contribution pursuant to this subdivision (a) were
determined by PRO RATA allocation (even if the holders, Requesting Holders and
any underwriters were treated as one entity for such purpose) or by any other
method of allocation that does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
16
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth in the preceding sentence and
subdivision (c) of this Section 2.7, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim.
Notwithstanding the provisions of the subdivision (f), no holder of
Registrable Securities or underwriter shall be required to contribute any amount
in excess of the amount by which (i) in the case of any such holder the net
proceeds received by such holder form the sale of Registrable Securities or (ii)
in the case of an underwriter, the total price at which the Registrable
Securities purchased by it and distributed to the public were offered to the
public exceeds, in any such case, the amount of any damages that such holder or
underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission. 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.
2.8 ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. The Company will not
effect or permit to occur any combination or subdivision of shares which would
adversely affect the ability of the holders of Registrable Securities to include
such Registrable Securities in any registration of its securities contemplated
by this section 2 or the marketability of such Registrable Securities under any
such registration.
3. DEFINITIONS. As used herein, unless the context otherwise requires,
the following terms have the following respective meanings:
AFFILIATE: As defined in Rule 12b-2 promulgated under the Exchange Act.
COMMISSION: The Securities and Exchange Commission or any other Federal
agency at the time administering the Securities Act.
COMMON STOCK: As defined in section 1.
COMPANY: As defined in the introductory paragraph of this Agreement.
COMPANY STOCKHOLDERS: Collectively, Xxxxxxx X. Xxxxxxxx, Xxxxx X. Xxxxxxxx,
Xxxxxx Xxxxxxxx, Xxxxxx X. Xxxxx, Xxxxxxxx Xxxxxx Xxxxx, Xxxx X.
XxXxxxxxxxxx and Xxxx Xxxxxxxx.
EXCHANGE ACT: The Securities Exchange Act of 1934, or any similar Federal
statute, and the rules and regulations of the Commission thereunder, all as
the same shall be in effect at the time. Reference to a particular section
of the Securities Exchange Act of 1934 shall include a reference to the
comparable section, if any, of any such similar federal statute.
17
INITIATING HOLDERS: Any holder or holders of Registrable Securities
holding at least 5% of the Registrable Securities (by number of shares at
the time issued and outstanding), and initiating a request pursuant to
section 2.1 for the registration of all or part of such holder's or
holders' Registrable Securities; PROVIDED however, that the definition of
Initiating Holder shall include any Xxxxx Entity who is a holder of
Registrable Securities, irrespective of such Xxxxx Entity's percentage of
ownership of Registrable Securities, if such Xxxxx Entity is initiating a
request for the registration of all of such Xxxxx Entity's Registrable
Securities.
XXXXX ENTITY: Collectively, KIA V, KEP V, the Company Stockholders and any
Transferee and any of their respective Permitted Transferees.
KEP V: As defined in section 1.
KIA V: As defined in section 1.
MANAGEMENT INDIVIDUALS: Collectively, Xxxxx X. Xxxxxxx, Xxxxxx X. Xxxxx and
Xxxx X. Xxxxx.
PERMITTED TRANSFEREE: Any Person who is specifically approved in writing by
KIA V, in its sole discretion, prior to any transfer of Registrable
Securities to such Person by a Company Stockholder or a Transferee and is
designated by KIA V as a Permitted Transferee, and who is therefor entitled
through such designation to the rights and privileges of a Permitted
Transferee set forth herein subject to the terms and conditions hereof.
PERSON: A corporation, an association, a partnership, an organization,
business, an individual, a governmental or political subdivision thereof or
a governmental agency.
RECAPITALIZATION AGREEMENT: As defined in section 1.
REGISTRABLE SECURITIES: The Common Stock and any securities issued or
issuable with respect to any Common Stock by way of stock dividend or stock
split or in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization or otherwise, PROVIDED that
shares of Common Stock registered pursuant to the Registration Statement of
Form S-1 filed by the Company with the Commission on June 6, 1996 shall be
excluded from the definition of Registrable Securities and such shares
shall not be included as Registrable Securities for any purpose
contemplated by this Agreement. As to any particular Registrable
Securities, once issued such securities shall cease to be Registrable
Securities when (a) a registration statement with respect to the sale of
such securities shall have
18
become effective under the Securities Act and such securities have been
disposed of in accordance with such registration statement, (b) they shall
have been distributed to the public pursuant to Rule 144 (or any successor
provision) under the Securities Act, (c) any disposition of them shall not
require registration or qualification of them under the Securities Act, or
(d) they shall have ceased to be outstanding.
REGISTRATION EXPENSES: All expenses incident to the Company's performance
of or compliance with section 2, including, without limitation, all
registration, filing and NASD fees, all stock exchange listing fees, all
fees and expenses of complying with securities or blue sky laws, all word
processing, duplicating and printing expenses, messenger and delivery
expenses, the fees and disbursements of counsel for the Company and of its
independent public accountants, including the expenses of any special
audits or "cold comfort" letters required by or incident to such
performance and compliance, the fees and disbursements of any counsel and
accountants retained by the holder or holders of more than 50% of the
Registrable Securities being registered, premiums and other costs of
policies of insurance against liabilities arising out of the pubic offering
of the Registrable Securities being registered and any fees and
disbursements of underwriters customarily paid by issuers or sellers or
securities, but excluding underwriting discounts and commissions and
transfer taxes, if any.
REQUESTING HOLDER: As defined in section 2.6.
SECURITIES ACT: The Securities Act of 1933, or any similar Federal
statute, and the rules and regulations of the Commission thereunder, all as
of the same shall be in effect at the time. References to a particular
section of the Securities Act of 1933 shall include a reference to the
comparable section, if any, of any such similar Federal statute.
TRANSFEREE: As defined in section 8.
4. RULES 144 AND 144A. The Company shall timely file the reports
required to be filed by it under the Securities Act and the Exchange Act
(including but not limited to the reports under sections 13 and 15(d) of the
Exchange Act referred to in subparagraph (c) of Rule 144 adopted by the
Commission under the Securities Act) and the rules and regulations adopted by
the Commission thereunder and will take such further action as any holder of
Registrable Securities may reasonably request, all to the extent required from
time to time to enable such holder to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by (a) Rule 144 under the Securities Act, as such Rule may be amended
from time to time, or (b) any similar rule or regulation hereafter adopted by
the Commission. Upon the request of any holder of Registrable Securities, the
Company will (a) deliver to such holder a written statement as to whether it has
complied with the requirements of the Section 4, or (b) take such action
19
as is necessary to allow transfer of such Registrable Securities in accordance
with the provisions of Rule 144(k) (or any successor provision) under the
Securities Act including without limitation, if necessary, the issuance of new
certificates for such Registrable Securities bearing a legend restricting
further transfer.
5. AMENDMENTS AND WAIVERS. This Agreement may be amended and the Company
may take any action herein prohibited, or omit to perform any act herein
required to be performed by it, only if the Company shall have obtained the
written consent to such amendment, action or omission to act, of the holder or
holders of more than 50% of the shares of Registrable Securities and in the case
of any such amendment, action or omission to act in respect of the first
sentence of Section 4, the written consent of each holder affected thereby;
PROVIDED however, for so long as any shares of Common Stock are held by any
Xxxxx Entity, any amendment, action or omission to act is also subject to the
prior written consent of KIA V. Each holder of any Registrable Securities at
the time or thereafter outstanding shall be bound by any consent authorized by
this Section 5, whether or not such Registrable Securities shall have been
marked to indicate such consent.
6. NOMINEES FOR BENEFICIAL OWNERS. In the event that any Registrable
Securities are held by a nominee for the beneficial owner thereof, the
beneficial owner thereof may, at its election, be treated as the holder of such
Registrable Securities for purposes of any request or other action by any holder
of holders of Registrable Securities pursuant to this Agreement or any
determination of any number or percentage of shares of Registrable Securities
held by any holder or holders of Registrable Securities contemplated by this
Agreement. If the beneficial owner of any Registrable Securities so elects, the
Company may require assurances reasonably satisfactory to it of such owner's
beneficial ownership of such Registrable Securities.
7. NOTICES. Except as otherwise provided in this Agreement, all notices,
requests and other communications to any Person provided for hereunder shall be
in writing and shall be given to such Person (a) in the case of any Xxxxx
Entity, addressed to such party care of Xxxxx & Company, 000 Xxxx Xxxxxx, 00xx
xxxxx, Xxx Xxxx, Xxx Xxxx 00000 to the attentions of Xxxxx X. Xxxxxxx III, Esq.
or at such other address as such party shall have furnished to the Company in
writing, (b) in the case of any other holder of Registrable Securities, at the
address that such holder shall have furnished to the Company in writing, or,
until any such other holder so furnishes to the Company an address, then to and
at the address of the last holder of such Registrable Securities who has
furnished an address to the Company or (c) in the case of the Company, at
Universal Outdoor Holdings, Inc., 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx 00000 to the attention of its General Counsel, or at such another
address, or to the attention of such other officer, as the Company shall have
furnished to each holder of Registrable Securities at the time outstanding.
Each such notice, request or other communication shall be effective (i) if given
by mail, 72 hours after such communication is deposited in the mail with first
class postage prepaid, addressed as aforesaid or (ii) if given by any other
means (including without
20
limitation, by air courier), when delivered at the address specified above,
PROVIDED that any such notice, request or communication to any holder of
Registrable Securities shall not be effective until received.
8. ASSIGNMENT. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and their respective
successors and assigns. In addition, and whether or not any express assignment
shall have been made, the provisions of this Agreement which are for the benefit
of KIA V or KEP V shall also be for the benefit of and enforceable by (i) the
Company Stockholders and their Permitted Transferees (and any such party shall
have the rights under sections 2 and 4 and be subject to the obligations of KIA
V and KEP V under sections 2 and 4 hereof), and (ii) any subsequent holder of
any Registrable Securities held by KIA V or KEP V as of the date hereof and
their Permitted Transferees (and any such party shall have the rights under
sections 2 and 4 and be subject to the obligations of KIA V and KEP V under
sections 2 and 4 hereof), in the case of each of clause (i) and clause (ii), as
and to the extent set forth in an instrument executed by KIA V or KEP V, as the
case may be, and the Company Stockholder or the respective transferee (a
"Transferee") or their respective Permitted Transferees, as the case may be,
subject to the provisions respecting the minimum numbers or percentages of
shares of Registrable Securities required in order to be entitled to certain
rights, or take certain actions, contained herein. Prior to the exercise of any
rights by a Company Stockholder or a Transferee or any of their respective
Permitted Transferees pursuant to the provisions of the proceeding sentence, KIA
V shall designate in writing to the Company a representative (which may be KIA V
or KEP V or any of their respective Affiliates, and which, if not, will be
subject to the approval of the Company, which approval shall not be unreasonably
withheld) for the Company Stockholders and all Transferees and their respective
Permitted Transferees with respect to the rights and obligations of such parties
hereunder, and such representative shall act on behalf of such parties at the
direction of such parties in connection with all matters relating to such
parties hereunder.
9. DESCRIPTIVE HEADINGS. The descriptive headings of the several
sections and paragraphs of this Agreement are inserted for reference only and
shall not limit or otherwise affect the meaning hereof.
10. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAWS OF
THE STATE OF DELAWARE WITHOUT REFERENCE TO THE PRINCIPLES OF CONFLICTS OF LAWS.
11. COUNTERPARTS. This Agreement may be executed simultaneously in any
number of counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.
21
12. ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding between the Company and each other party hereto relating to the
subject matter hereof and supersedes all prior agreements and understandings
relating to such subject matter.
13. SUBMISSION TO JURISDICTION. ANY LEGAL ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF DELAWARE
OR OF THE UNITED STATES OF AMERICA FOR THE STATE OF DELAWARE AND, BY EXECUTION
AND DELIVERY OF THIS AGREEMENT, THE COMPANY HEREBY ACCEPTS FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE
AFORESAID COURTS AND APPELLATE COURTS FROM ANY THEREOF. EACH PARTY HERETO
HEREBY IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE
AFOREMENTIONED COURTS IN ANY ACTION OR PROCEEDING BY THE MAILING OF COPIES
THEREOF TO SUCH PARTY BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, RETURN
RECEIPT REQUESTED, TO SUCH PARTY AT ITS ADDRESS SPECIFIED IN SECTION 7. THE
PARTIES HERETO HEREBY IRREVOCABLY WAIVE TRIAL BY JURY AND ANY OBJECTION,
INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON
THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS.
14. SEVERABILITY. If any provision of this Agreement, or the application
of such provisions to any Person or circumstance, shall be held invalid, the
remainder of this Agreement, or the application of such provision to Persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
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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.
UNIVERSAL OUTDOOR HOLDINGS, INC.
By
-------------------------
Name:
Title:
XXXXX INVESTMENT ASSOCIATES V, L.P.
By Xxxxx Partners V, L.P.,
as general partner
By
-------------------------
Name:
Title:
XXXXX EQUITY PARTNERS V, L.P.
By
-------------------------
Name:
Title:
-------------------------------------
Xxxxxx X. Xxxxx
-------------------------------------
Xxxxx X. Xxxxxxx
-------------------------------------
Xxxx X. Xxxxx
