Exhibit 4.4
REGISTRATION RIGHTS AGREEMENT
Dated as of September 19, 1997
among
FRONTIERVISION HOLDINGS, L.P.,
FRONTIERVISION HOLDINGS CAPITAL CORPORATION
and
X.X. XXXXXX SECURITIES INC.,
CHASE SECURITIES INC.,
CIBC WOOD GUNDY SECURITIES CORP.
and
FIRST UNION CAPITAL MARKETS CORP.
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is dated as of
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September 19, 1997, by and among FRONTIERVISION HOLDINGS, L.P., a Delaware
limited partnership (the "Company"), FRONTIERVISION HOLDINGS CAPITAL
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CORPORATION, a Delaware corporation ("Capital," and together with the Company,
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the "Issuers"), and X.X. XXXXXX SECURITIES INC., CHASE SECURITIES INC., CIBC
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WOOD GUNDY SECURITIES CORP. and FIRST UNION CAPITAL MARKETS CORP. (collectively,
the "Initial Purchasers").
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This Agreement is entered into in connection with the Purchase
Agreement, dated as of September 16, 1997, between the Issuers and the Initial
Purchaser s (the "Purchase Agreement") relating to the sale by the Issuers to
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the Initial Purchasers, severally, of $237,650,000 aggregate principal amount at
maturity of their 11 7/8% Senior Discount Notes due 2007 (the "Securities"). In
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order to induce the Initial Purchasers to enter into the Purchase Agreement, the
Issuers have agreed to provide the registration rights set forth in this
Agreement for the equal benefit of the Initial Purchasers and their direct and
indirect transferees. The execution and delivery of this Agreement is a
condition to the Initial Purchasers' obligation to purchase the Securities under
the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions
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As used in this Agreement, the following terms shall have the following
meanings:
Additional Interest: See Section 4.
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Advice: See Section 5.
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Applicable Period: See Section 2(b).
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Capital: See the introductory paragraph to this Agreement.
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Company: See the introductory paragraph to this Agreement.
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Consummation Date: The 210th day after the Issue Date.
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Effectiveness Date: The 180th day after the Issue Date.
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Effectiveness Period: See Section 3(a).
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Event Date: See Section 4(b).
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Exchange Act: The Securities Exchange Act of 1934, as amended, and the
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rules and regulations of the SEC promulgated thereunder.
Exchange Offer: See Section 2(a).
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Exchange Registration Statement: See Section 2(a).
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Exchange Securities: See Section 2(a).
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Filing Date: The 60th day after the Issue Date.
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First Union: See Section 11.
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Holder: Any record holder of Registrable Securities.
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Indemnified Person: See Section 7.
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Indemnifying Person: See Section 7.
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Indenture: The Indenture, dated as of September 19, 1997, between the
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Issuers and Colorado National Bank, as trustee, pursuant to which the Securities
are being issued, as amended or supplemented from time to time in accordance
with the terms thereof.
Initial Purchasers: See the introductory paragraph to this Agreement.
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Initial Shelf Registration: See Section 3(a).
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Inspectors: See Section 5(p).
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Issue Date: The date of original issuance of the Securities.
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Issuers: See the introductory paragraph to this Agreement.
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JPMS: See Section 11.
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NASD: See Section 5(t).
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Participant: See Section 7.
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Participating Broker-Dealer: See Section 2(b).
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Person: An individual, corporation, limited or general
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partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
Private Exchange: See Section 2(b).
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Private Exchange Securities: See Section 2(b).
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Prospectus: The prospectus included in any Registration
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Statement (including, without limitation, a prospectus that includes any
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the Registrable
Securities covered by such Registration Statement, and all other amendments and
supplements to the Prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by reference in
such Prospectus.
Records: See Section 5(p).
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Registrable Securities: The Securities upon original issuance
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of the Securities and at all times subsequent thereto, each Exchange Security as
to which Section 2(c)(1)(i) hereof is applicable upon original issuance and at
all times subsequent thereto and, if issued, the Private Exchange Securities,
until in the case of any such Securities, Exchange Securities or Private
Exchange Securities, as the case may be, (i) a Registration Statement (other
than, with respect to any Exchange Security as to which Section 2(c)(1)(i)
hereof is applicable, the Exchange Registration Statement) covering such
Securities, Exchange Securities or Private Exchange Securities has been declared
effective by the SEC and such Securities, Exchange Securities or Private
Exchange Securities, as the case may be, have been disposed of in accordance
with such effective Registration Statement, (ii) such Securities, Exchange
Securities or Private Exchange Securities, as the case may be, are sold in
compliance with Rule 144 or would be permitted to be sold pursuant to Rule
144(k), or (iii) such Securities, Exchange Securities or Pri-
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vate Exchange Securities, as the case may be, cease to be outstanding.
Registration Statement: Any registration statement of the
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Issuers, including, but not limited to, the Exchange Registration Statement,
that covers any of the Registrable Securities pursuant to the provisions of this
Agreement, including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits, and
all material incorporated by reference or deemed to be incorporated by reference
in such registration statement.
Rule 144: Rule 144 promulgated under the Securities Act, as
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such Rule may be amended from time to time, or any similar rule (other than Rule
144A) or regulation hereafter adopted by the SEC providing for offers and sales
of securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
Rule 144A: Rule 144A promulgated under the Securities Act, as
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such Rule may be amended from time to time, or any similar rule (other than Rule
144) or regulation hereafter adopted by the SEC.
Rule 415: Rule 415 promulgated under the Securities Act, as
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such Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
SEC: The Securities and Exchange Commission.
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Securities: See the preamble to this Agreement.
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Securities Act: The Securities Act of 1933, as amended, and
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the rules and regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2(c).
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Shelf Registration: See Section 3(b).
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Subsequent Shelf Registration: See Section 3(b).
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TIA: The Trust Indenture Act of 1939, as amended.
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Trustee: The trustee as defined in the Indenture and, if
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existent, the trustee under any indenture governing the Exchange Securities and
Private Exchange Securities (if any).
Underwritten registration or underwritten offering: A
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registration in which securities of the Issuers are sold to an underwriter for
reoffering to the public.
2. Exchange Offer
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(a) The Issuers agree to file with the SEC as soon as
practicable after the Issue Date, but in no event later than the Filing
Date, an offer to exchange (the "Exchange Offer") any and all of the
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Registrable Securities for a like aggregate principal amount at maturity of
debt securities of the Issuers which are identical in all material respects
to the Securities (the "Exchange Securities") (and which are entitled to
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the benefits of the Indenture or a trust indenture which is identical in
all material respects to the Indenture (other than such changes as are
necessary to comply with any requirements of the SEC to effect or maintain
the qualification of such trust indenture under the TIA) and which has been
qualified under the TIA), except that the Exchange Securities shall have
been registered pursuant to an effective Registration Statement under the
Securities Act and shall contain no legend thereon with respect to
restrictions on transfer pursuant to the Securities Act. The Issuers agree
to use their reasonable best efforts to keep the Exchange Offer open for at
least 20 business days (or longer if required by applicable law) after the
date notice of the Exchange Offer is mailed to Holders and to consummate
the Exchange Offer on or prior to the Consummation Date. The Exchange Offer
will be registered under the Securities Act on the appropriate form (the
"Exchange Registration Statement") and will comply with all applicable
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tender offer rules and regulations under the Exchange Act. If after such
Exchange Registration Statement is initially declared effective by the SEC
and prior to the consummation of the Exchange Offer, the Exchange Offer or
the issuance of the Exchange Securities thereunder is interfered with by
any stop order, injunction or other order or requirement of the SEC or any
other governmental agency or court such Exchange Registration Statement
shall be deemed not to have become effective for purposes of this
Agreement. Each Holder who participates in the Exchange Offer will be
deemed to represent that any Exchange Securities received by it will be
acquired in the ordinary course of its busi-
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ness, that at the time of the consummation of the Exchange Offer such
Holder will have no arrangement with any person to participate in the
distribution of the Exchange Securities in violation of the provisions of
the Securities Act, and that such Holder is not an affiliate of the Issuers
within the meaning of the Securities Act. Upon consummation of the Exchange
Offer in accordance with this Section 2, the provisions of this Agreement
(other than the first four sentences of this Section 2(a)) shall continue
to apply, mutatis mutandis, solely with respect to Registrable Securities
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that are Private Exchange Securities and Exchange Securities held by
Participating Broker-Dealers, and the Issuers shall have no further
obligation to register Registrable Securities (other than Private Exchange
Securities and other than Exchange Securities as to which clause (c)(1)(i)
hereof applies) pursuant to Section 3 of this Agreement. No securities
other than the Exchange Securities shall be included in the Exchange
Registration Statement.
(b) The Issuers shall include within the Prospectus contained
in the Exchange Registration Statement one or more section(s) reasonably
acceptable to the Initial Purchasers which shall contain a summary
statement of the publicly disseminated positions of the Staff of the SEC
with respect to the potential "underwriter" status of any broker-dealer
that is the beneficial owner (as defined in Rule 13d-3 under the Exchange
Act) of Exchange Securities received by such broker-dealer in the Exchange
Offer (a "Participating Broker-Dealer"). Such section(s) shall also allow
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the use of the prospectus by all persons subject to the prospectus delivery
requirements of the Securities Act (other than a Participating Broker
Dealer (an "Excluded Participating Broker Dealer") who either (x) acquired
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Securities other than for its own account as a result of market-making
activities or other trading activities or (y) has entered into any
arrangement or understanding with any Issuer or any affiliate of any Issuer
to distribute the Exchange Securities) and include a statement describing
the means by which Participating Broker-Dealers may resell the Exchange
Securities.
The Issuers shall use their reasonable best efforts to keep
the Exchange Registration Statement effective and to amend and supplement
the Prospectus contained therein in order to permit such Prospectus to be
lawfully delivered by all persons subject to the prospectus delivery
requirements of the Securities Act for such period of time
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as such persons must comply with such requirements in order to resell the
Exchange Securities; provided, however, that such period shall not exceed
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180 days (or such longer period if extended pursuant to the last paragraph
of Section 5) (the "Applicable Period"); provided, further, however, that,
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if requested by the Company in the letter of transmittal for the Exchange
Offer, such persons shall have expressed that they may be subject to such
requirements and have undertaken to use their reasonable best efforts to
notify the Company when they are no longer subject to such requirements (if
they are no longer subject to such requirements at any time prior to the
expiration of the Applicable Period).
If, prior to consummation of the Exchange Offer, an Initial
Purchaser holds any Securities acquired by it and having the status of an
unsold allotment in the initial distribution or if JPMS or First Union
holds any Securities (whether acquired in market making activities or
having the status of an unsold allotment) after consummation of the
Exchange Offer, the Issuers upon the request of such Initial Purchaser
shall, simultaneously with the delivery of the Exchange Securities in the
Exchange Offer, issue and deliver to each such Initial Purchaser, in
exchange (the "Private Exchange") for the Securities held by such Initial
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Purchaser, a like principal amount at maturity of debt securities of the
Issuers that are identical in all material respects to the Exchange
Securities (the "Private Exchange Securities") (and which are issued
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pursuant to the same indenture as the Exchange Securities) except for the
placement of a restrictive legend on such Private Exchange Securities. If
practicable, the Private Exchange Securities shall bear the same CUSIP
number as the Exchange Securities. Accreted Value (as defined in the
Indenture) will accrue on the Exchange Securities and Private Exchange
Securities in the same manner as the Securities.
Any indenture under which the Exchange Securities or the
Private Exchange Securities will be issued shall provide that the holders
of any of the Exchange Securities and the Private Exchange Securities will
vote and consent together on all matters (to which such holders are
entitled to vote or consent) as one class and that none of the holders of
the Exchange Securities and the Private Exchange Securities will have the
right to vote or consent as a separate class on any matter (to which such
holders are entitled to vote or consent).
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(c) If (1) prior to the consummation of the Exchange Offer,
the Issuers reasonably determine in good faith or Holders of a majority in
aggregate principal amount at maturity of the Registrable Securities notify
the Issuers that they have reasonably determined in good faith that (i) in
the opinion of counsel, the Exchange Securities would not, upon receipt, be
tradeable by such Holders who are not affiliates of the Issuers or Excluded
Participating Broker Dealers without registration under the Securities Act
and without registration under applicable blue sky or state securities laws
or (ii) in the opinion of counsel, the SEC is unlikely to permit the
consummation of the Exchange Offer and/or (2) subsequent to the
consummation of the Private Exchange, any holder of Private Exchange
Securities so requests with respect to the Private Exchange Securities
and/or (3) the Exchange Offer is commenced and not consummated prior to the
60th day following the Consummation Date for any reason, then the Issuers
shall promptly deliver to the Holders and the Trustee notice thereof (the
"Shelf Notice") and shall thereafter file an Initial Shelf Registration as
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set forth in Section 3 (which only in the circumstances contemplated by
clause (2) of this sentence will relate solely to the Private Exchange
Securities) pursuant to Section 3. The parties hereto agree that, following
the delivery of a Shelf Notice to the Holders of Registrable Securities
(only in the circumstances contemplated by clauses (1) and/or (3) of the
preceding sentence), the Issuers shall not have any further obligation to
conduct the Exchange Offer or the Private Exchange under this Section 2.
3. Shelf Registration
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If a Shelf Notice is delivered as contemplated by Section 2(c), then :
(a) Initial Shelf Registration. The Issuers shall as promptly
as reasonably practicable prepare and file with the SEC a Registration
Statement for an offering to be made on a continuous basis pursuant to Rule
415 covering all of the Registrable Securities (the "Initial Shelf
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Registration"). If the Issuers shall have not yet filed an Exchange Offer
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and the Shelf Notice was delivered at least 45 days prior to the Filing
Date, the Issuers shall file with the SEC the Initial Shelf Registration on
or prior to the Filing Date. Otherwise, the Issuers shall file with the SEC
the Initial Shelf Registration within 60 days of the delivery of the Shelf
Notice. The Initial
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Shelf Registration shall be on Form S-1 or another appropriate form
permitting registration of such Registrable Securities for resale by such
holders in the manner or manners designated by them (including, without
limitation, one or more underwritten offerings). The Issuers shall use
their reasonable best efforts to cause the Initial Shelf Registration to be
declared effective under the Securities Act on or prior to the 120th day
after the filing thereof with the SEC and to keep the Initial Shelf
Registration continuously effective under the Securities Act until the date
which is 24 months from the Issue Date (the "Effectiveness Period"), or
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such shorter period ending when (i) all Registrable Securities covered by
the Initial Shelf Registration have been sold in the manner set forth and
as contemplated in the Initial Shelf Registration or (ii) a Subsequent
Shelf Registration covering all of the Registrable Securities has been
declared effective under the Securities Act.
Notwithstanding any other provision of this Agreement, the
Issuers may postpone or suspend the filing or effectiveness of a
Registration Statement (or any amendments or supplements thereto) if (i)
such action is required by applicable law or (ii) such action is taken by
the Issuers in good faith and for valid business reasons (not including the
avoidance of the Issuers' obligations hereunder), including the acquisition
or divestiture of assets, other pending corporate developments, public
filings with the SEC or other similar events, so long as the Issuers
promptly thereafter comply with the requirements of Section 5(b) hereof, if
applicable. Notwithstanding the occurrence of any event referred to in the
immediately preceding sentence, such event shall not suspend, postpone or
in any other manner affect the running of any time periods for the purpose
of determining the entitlement of the Holders to Additional Interest under
Section 4 hereof.
(b) Subsequent Shelf Registrations. If the Initial Shelf
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Registration or any Subsequent Shelf Registration ceases to be effective
for any reason at any time during the Effectiveness Period (other than
because of the sale of all of the securities registered thereunder), the
Issuers shall use their reasonable best efforts to obtain the prompt
withdrawal of any order suspending the effectiveness thereof, and in any
event shall within 45 days of such cessation of effectiveness amend the
Shelf Registration in a manner reasonably expected to obtain the withdrawal
of the order suspending the effectiveness thereof,
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or file an additional "shelf" Registration Statement pursuant to Rule 415
covering all of the Registrable Securities (a "Subsequent Shelf
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Registration"). If a Subsequent Shelf Registration is filed, the Issuers
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shall use their reasonable best efforts to cause the Subsequent Shelf
Registration to be declared effective as soon as practicable after such
filing and to keep such Registration Statement continuously effective for a
period equal to the number of days in the Effectiveness Period less the
aggregate number of days during which the Initial Shelf Registration or any
Subsequent Shelf Registration was previously continuously effective. As
used herein the term "Shelf Registration" means the Initial Shelf
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Registration and any Subsequent Shelf Registration.
(c) Supplements and Amendments. The Issuers shall promptly
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supplement and amend the Shelf Registration if required by the rules,
regulations or instructions applicable to the registration form used for
such Shelf Registration or if required by applicable law.
4. Additional Interest
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(a) The Issuers and the Initial Purchasers agree that the
Holders of Registrable Securities will suffer damages if the Issuers fail
to fulfill their obligations under Section 2 or Section 3 hereof and that
it would not be feasible to ascertain the extent of such damages with
precision. Accordingly, the Issuers agree to pay, as liquidated damages,
cash interest on the Registrable Securities (whether or not cash interest
is then payable on the Registrable Securities in accordance with the
Indenture) ("Additional Interest") under the circumstances and to the
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extent set forth below (each of which shall be given independent effect and
shall not be duplicative):
(i) if the Exchange Registration Statement has not been filed
on or prior to the Filing Date or the Initial Shelf Registration has not
been filed on or prior to the date by which it is required to be filed
pursuant to Section 3(a) hereof, Additional Interest shall accrue on the
Registrable Securities over and above the stated cash interest rate (if
any) at a rate of 25 basis points per annum for the first 90 days
immediately following the Filing Date or such required date, as the case
may be, such Additional Interest rate increasing by an additional 25 basis
points per annum at the beginning of each subsequent 90-day period;
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(ii) if Additional Interest is not then accruing pursuant to
Section 4(a)(i) and the Exchange Registration Statement is not declared
effective by the SEC on or prior to the Effectiveness Date or the Initial
Shelf Registration is not declared effective on or prior to the 120th day
after filing thereof, Additional Interest shall accrue on the Registrable
Securities included or which should have been included in such Registration
Statement over and above the stated cash interest rate (if any) at a rate
of 25 basis points per annum for the first 90 days immediately following
the day after the Effectiveness Date, such Additional Interest rate
increasing by an additional 25 basis points per annum at the beginning of
each subsequent 90-day period; and
(iii) if Additional Interest is not then accruing pursuant to
Section 4(a)(i) and 4(a)(ii) and (A) the Issuers have not exchanged
Exchange Securities for all Notes validly tendered in accordance with the
terms of the Exchange Offer on or prior to the Consummation Date (including
by reason of the Exchange Registration Statement ceasing to be effective)
or (B) if applicable, the Shelf Registration has been declared effective
and such Shelf Registration ceases to be effective at any time during the
Effectiveness Period, then Additional Interest shall be accrued on the
Registrable Securities (over and above the stated cash interest rate (if
any) otherwise payable on the Registrable Securities) at a rate of 25 basis
points per annum for the first 90 days commencing on the (x) 210th day
after the Issue Date, in the case of (A) above, or (y) the day such Shelf
Registration ceases to be effective, in the case of (B) above, such
Additional Interest rate increasing by an additional 25 basis points per
annum at the beginning of each such subsequent 90-day period;
provided, however, that the Additional Interest rate on the Registrable
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Securities may not exceed at any one time in the aggregate 100 basis points
per annum; and provided, further, that (1) upon the filing of the Exchange
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Registration Statement or a Shelf Registration as required hereunder (in
the case of clause (a)(i) of this Section 4), (2) upon the effectiveness of
the Exchange Registration Statement or the Shelf Registration as required
hereunder (in the case of clause (a)(ii) of this Section 4), or (3) upon
the exchange of Exchange Securities for all Notes tendered (in the case of
clause (a)(iii)(A) of this Section 4), or upon the effectiveness of the
Shelf Registration which had ceased to remain effective (in the
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case of clause (a)(iii)(B) of this Section 4), Additional Interest on the
Registrable Securities as a result of such clause (or the relevant
subclause thereof), as the case may be, shall cease to accrue.
(b) The Issuers shall notify the Trustee within five business days
after each and every date on which an event occurs in respect of which
Additional Interest is required to be paid (an "Event Date"). The Issuers
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shall pay the Additional Interest due on the Registrable Securities by
depositing with the Trustee, in trust, for the benefit of the Holders
thereof, on or before the applicable semi-annual interest payment date (or
the calendar date which would be a semi-annual interest payment date if
cash interest were then payable on the Registrable Securities) immediately
available funds in sums sufficient to pay the Additional Interest then due
to Holders of Registrable Securities. The Additional Interest amount due
shall be payable on each such date to the record Holder of Registrable
Securities on the March 1 or September 1, as the case may be, immediately
preceding such semi-annual interest payment date (or the calendar date
which would be a semi-annual interest payment date if cash interest were
then payable on the Registrable Securities). The amount of Additional
Interest will be determined by applying the applicable Additional Interest
rate to the principal amount at maturity of the affected Registrable
Securities of such Holders, (determined on the basis of a 360-day year
comprised of twelve 30-day months and, in the case of a partial month, the
actual number of days elapsed). Each obligation to pay Additional Interest
shall be deemed to accrue immediately following the occurrence of the
applicable Event Date. The parties hereto agree that the Additional
Interest provided for in this Section 4 constitutes the sole and exclusive
remedy for a breach of Sections 2 or 3 and is a reasonable estimate of the
damages that may be incurred by Holders of Registrable Securities by reason
of the failure of a Shelf Registration or Exchange Registration Statement
to be filed or declared effective, an Exchange Offer to be consummated or a
Shelf Registration to remain effective, as the case may be, in accordance
with this Section 4.
5. Registration Procedures
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In connection with the registration of any Registrable Securities
pursuant to Sections 2 or 3 hereof, the Issuers shall effect such registrations
to permit the sale of such Reg-
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istrable Securities in accordance with the intended method or methods of
disposition thereof, and pursuant thereto the Issuers shall:
(a) Use their reasonable best efforts to prepare and file with the
SEC a Registration Statement or Registration Statements, as soon as
practicable after the date hereof but in any event prior to the applicable
date prescribed by Sections 2 or 3, and to use their reasonable best
efforts to cause each such Registration Statement to become effective and
remain effective as provided herein; provided, however, that, if (1) such
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filing is pursuant to Section 3, or (2) a Prospectus contained in an
Exchange Registration Statement filed pursuant to Section 2 is required to
be delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Securities during the Applicable Period, before
filing any Registration Statement or Prospectus or any amendments or
supplements thereto, the Issuers shall upon written request furnish to and
afford the Holders of the Registrable Securities (which in the case of
Registrable Securities in the form of global certificates shall be The
Depository Trust Company ("DTC")) and each such Participating Broker-
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Dealer, as the case may be, covered by such Registration Statement, their
counsel and the managing underwriters, if any, a reasonable opportunity to
review copies of all such documents (including copies of any documents to
be incorporated by reference therein and all exhibits thereto) proposed to
be filed.
(b) Prepare and file with the SEC such amendments and post-
effective amendments to each Shelf Registration or Exchange Registration
Statement, as the case may be, as may be necessary to keep such
Registration Statement continuously effective for the Effectiveness Period
or the Applicable Period, as the case may be; cause the related Prospectus
to be supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 (or any similar provisions
then in force) under the Securities Act; and comply with the provisions of
the Securities Act and the Exchange Act with respect to the disposition of
all securities covered by such Registration Statement as so amended or in
such Prospectus as so supplemented and with respect to the subsequent
resale of any securities being sold by a Participating Broker-Dealer
covered by any such Prospectus; the Issuers shall not be deemed to have
used their reasonable best efforts to keep a Registration Statement
effective during the Applicable
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Period if the Issuers voluntarily take any action that would result in
selling Holders of the Registrable Securities covered thereby or
Participating Broker-Dealers seeking to sell Exchange Securities not being
able to sell such Registrable Securities or such Exchange Securities during
that period unless such action is required by applicable law or unless the
Issuers comply with this Agreement, including without limitation, the
provisions of paragraph 5(k) hereof and the last paragraph of this Section
5.
(c) If (1) a Shelf Registration is filed pursuant to Section 3, or
(2) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act
by any Participating Broker-Dealer who seeks to sell Exchange Securities
during the Applicable Period, notify the selling Holders of Registrable
Securities, or each such Participating Broker-Dealer, as the case may be,
their counsel and the managing underwriters, if any, who have provided the
Issuers with their names and addresses promptly (but in any event within
two business days), and confirm such notice in writing, (i) when a
Prospectus or any Prospectus supplement or post-effective amendment has
been filed, and, with respect to a Registration Statement or any post-
effective amendment, when the same has become effective under the
Securities Act (including in such notice a written statement that any
Holder may, upon request, obtain, without charge, one conformed copy of
such Registration Statement or post-effective amendment including financial
statements and schedules, documents incorporated or deemed to be
incorporated by reference and exhibits), (ii) of the issuance by the SEC of
any stop order suspending the effectiveness of a Registration Statement or
of any order preventing or suspending the use of any preliminary prospectus
or the initiation of any proceedings for that purpose, (iii) of the receipt
by the Issuers of any notification with respect to the suspension of the
qualification or exemption from qualification of a Registration Statement
or any of the Registrable Securities or the Exchange Securities to be sold
by any Participating Broker-Dealer for offer or sale in any jurisdiction,
or the initiation or threatening of any proceeding for such purpose, (iv)
of the happening of any event or any information becoming known that makes
any statement made in such Registration Statement or related Prospectus or
any document incorporated or deemed to be incorporated therein by reference
untrue in any material respect or that requires
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the making of any changes in such Registration Statement, Prospectus or
documents so that, in the case of the Registration Statement, it will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, and that in the case of the Prospectus,
it will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading, and (v) of the Issuers' reasonable determination
that a post-effective amendment to a Registration Statement would be
appropriate.
(d) If (1) a Shelf Registration is filed pursuant to Section 3, or
(2) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act
by any Participating Broker-Dealer who seeks to sell Exchange Securities
during the Applicable Period, use their reasonable best efforts to oppose
the issuance of any order suspending the effectiveness of a Registration
Statement or of any order preventing or suspending the use of a Prospectus
or suspending the qualification (or exemption from qualification) of any of
the Registrable Securities or the Exchange Securities to be sold by any
Participating Broker-Dealer, for sale in any jurisdiction, and, if any such
order is issued, to use their reasonable best efforts to obtain the
withdrawal of any such order at the earliest possible moment.
(e) If a Shelf Registration is required pursuant to Section 3,
before filing any Registration Statement or prospectus or any amendment or
supplement thereto (including any document that would be incorporated by
reference therein) furnish counsel for the Holders of Registrable
Securities covered by such Shelf Registration a reasonable opportunity to
review copies of all such documents proposed to be filed.
(f) If (1) a Shelf Registration is filed pursuant to Section 3, or
(2) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act
by any Participating Broker-Dealer who seeks to sell Exchange Securities
during the Applicable Period, furnish to each selling Holder of Registrable
Securities and to each such
-16-
Participating Broker-Dealer who so requests and to counsel and each
managing underwriter, if any, without charge, one conformed copy of the
Registration Statement or Statements and each post-effective amendment
thereto, including financial statements and schedules, and if requested,
all documents incorporated or deemed to be incorporated therein by
reference and all exhibits.
(g) If (1) a Shelf Registration is filed pursuant to Section 3, or
(2) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act
by any Participating Broker-Dealer who seeks to sell Exchange Securities
during the Applicable Period, deliver to each selling Holder of Registrable
Securities, or each such Participating Broker-Dealer, as the case may be,
their counsel, and the underwriters, if any, without charge, as many copies
of the Prospectus or Prospectuses (including each form of preliminary
prospectus) and each amendment or supplement thereto and any documents
incorporated by reference therein as such Persons may reasonably request;
and, subject to the last paragraph of this Section 5, the Issuers hereby
consent to the use of such Prospectus and each amendment or supplement
thereto by each of the selling holders of Registrable Securities or each
such Participating Broker-Dealer, as the case may be, and the underwriters
or agents, if any, and dealers (if any), in connection with the offering
and sale of the Registrable Securities covered by or the sale by
Participating Broker-Dealers of the Exchange Securities pursuant to such
Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities or any
delivery of a Prospectus contained in the Exchange Registration Statement
by any Participating Broker-Dealer who seeks to sell Exchange Securities
during the Applicable Period, to use their reasonable best efforts to
register or qualify, and to cooperate with the selling Holders of
Registrable Securities or each such Participating Broker-Dealer, as the
case may be, the underwriters, if any, and their respective counsel in
connection with the registration or qualification (or exemption from such
registration or qualification) of such Registrable Securities for offer and
sale under the securities or Blue Sky laws of such jurisdictions within the
United States as any selling Holder, Participating Broker-Dealer, or the
managing underwriters reasonably request in writing; provided, however,
that where Exchange
-17-
Securities held by Participating Broker-Dealers or Registrable Securities
are offered other than through an underwritten offering, the Issuers agree
to cause their counsel to perform Blue Sky investigations and file
registrations and qualifications required to be filed pursuant to this
Section 5(h); keep each such registration or qualification (or exemption
therefrom) effective during the period such Registration Statement is
required to be kept effective and do any and all other reasonable acts or
things necessary or advisable to enable the disposition in such
jurisdictions of the Exchange Securities held by Participating Broker-
Dealers or the Registrable Securities covered by the applicable
Registration Statement; provided, however, that no Issuer shall be required
-------- -------
to (A) qualify generally to do business in any jurisdiction where it is not
then so qualified, (B) take any action that would subject it to general
service of process in any such jurisdiction where it is not then so subject
or (C) subject itself to taxation in excess of a nominal dollar amount in
any such jurisdiction.
(i) If a Shelf Registration is filed pursuant to Section 3,
reasonably cooperate with the selling Holders of Registrable Securities and
the managing underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold,
which certificates shall not bear any legends with respect to restrictions
on transfer pursuant to the Securities Act and shall be in a form eligible
for deposit with DTC; and enable such Registrable Securities to be
registered in such names as the managing underwriter or underwriters, if
any, or Holders may request.
(j) Use their reasonable best efforts to cause the Registrable
Securities covered by the Registration Statement to be registered with or
approved by such other United States governmental agencies or authorities
of the United States as may be necessary to enable the seller or sellers
thereof or the underwriters, if any, to consummate the disposition of such
Registrable Securities, except as may be required solely as a consequence
of the nature of such selling Holder's business, in which case the Issuers
will cooperate in all reasonable respects with the filing of such
Registration Statement and the granting of such approvals.
(k) If (1) a Shelf Registration is filed pursuant to Section 3, or
(2) a Prospectus contained in an Exchange
-18-
Registration Statement filed pursuant to Section 2 is required to be
delivered under the Securities Act by any Participating Broker-Dealer who
seeks to sell Exchange Securities during the Applicable Period, upon the
occurrence of any event contemplated by paragraph 5(c)(iv) or 5(c)(v)
above, as promptly as practicable prepare and (subject to Section 5(a) and
the second paragraph of Section 3(a) above) file with the SEC, solely at
the expense of the Issuers, a supplement or post-effective amendment to the
Registration Statement or a supplement to the related Prospectus or any
document incorporated or deemed to be incorporated therein by reference, or
file any other required document so that, as thereafter delivered to the
purchasers of the Registrable Securities being sold thereunder or to the
purchasers of the Exchange Securities to whom such Prospectus will be
delivered by a Participating Broker-Dealer, any such Prospectus will not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
(l) Use their reasonable best efforts to cause the Registrable
Securities covered by a Registration Statement or the Exchange Securities,
as the case may be, to be rated with the appropriate rating agencies, if so
reasonably requested by the Holders of a majority in aggregate principal
amount at maturity of Registrable Securities covered by such Registration
Statement or the Exchange Securities, as the case may be, or the managing
underwriters, if any.
(m) Prior to the effective date of the first Registration Statement
relating to the Registrable Securities, (i) provide the Trustee with
certificates for the Registrable Securities in a form eligible for deposit
with DTC and (ii) provide a CUSIP number for the Registrable Securities.
(n) Use their reasonable best efforts to cause all Registrable
Securities covered by such Registration Statement or the Exchange
Securities, as the case may be, to be (i) listed on each securities
exchange, if any, on which similar securities issued by the Issuers are
then listed, or (ii) authorized to be quoted on the National Association of
Securities Dealers Automated Quotation System
-19-
("NASDAQ") or the National Market System of NASDAQ if similar securities of
------
the Issuers are so authorized.
(o) In connection with an underwritten offering of Registrable
Securities pursuant to a Shelf Registration, enter into an underwriting
agreement as is customary in underwritten offerings and take all such other
actions as are reasonably requested by the managing underwriters in order
to expedite or facilitate the registration or the disposition of such
Registrable Securities, and in such connection, (i) make such
representations and warranties to the underwriters, with respect to the
business of the Issuers and their subsidiaries and the Registration
Statement, Prospectus and documents, if any, incorporated or deemed to be
incorporated by reference therein, in each case, as are customarily made by
issuers to underwriters in underwritten offerings and consistent with past
practice of the Issuers and their affiliates, and confirm the same if and
when requested; (ii) obtain an opinion of counsel to the Issuers and
updates thereof in form and substance reasonably satisfactory to the
managing underwriters, addressed to the underwriters covering the matters
customarily covered in opinions requested in underwritten offerings and
consistent with past practice of the Issuers and their affiliates and such
other matters as may be reasonably requested by underwriters; (iii) obtain
"cold comfort" letters and updates thereof in form and substance reasonably
satisfactory to the managing underwriters from the independent certified
public accountant(s) of the Company (and, if necessary, any other
independent certified public accountants of any subsidiary of the Company
or of any business acquired by the Company for which financial statements
and financial data are, or are required to be, included in the Registration
Statement), addressed to each of the underwriters, such letters to be in
customary form and covering matters of the type customarily covered in
"cold comfort" letters in connection with underwritten offerings and
consistent with past practice of the Issuers and their affiliates and such
other matters as may be reasonably requested by underwriters; and (iv) if
an underwriting agreement is entered into, the same shall contain
indemnification provisions and procedures no less favorable than those set
forth in Section 7 hereof (or such other provisions and procedures
acceptable to the Issuers and to the Holders of a majority in aggregate
principal amount at maturity of Registrable Securities covered by such
Registration Statement and the managing underwriters or agents) with
respect to all parties to
-20-
be indemnified pursuant to said Section. The above shall be done at each
closing under such underwriting agreement, or as and to the extent required
thereunder.
(p) If (1) a Shelf Registration is filed pursuant to Section 3, or
(2) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act
by any Participating Broker-Dealer who seeks to sell Exchange Securities
during the Applicable Period, make available for inspection by any selling
Holder of such Registrable Securities being sold, or each such
Participating Broker-Dealer, as the case may be, any underwriter
participating in any such disposition of Registrable Securities, if any,
and any attorney, accountant or other agent retained by any such selling
holder or each such Participating Broker-Dealer, as the case may be, or
underwriter (collectively, the "Inspectors"), at the offices where normally
----------
kept, during reasonable business hours, all financial and other records,
pertinent corporate documents and properties of the Issuers (collectively,
the "Records"), as shall be reasonably necessary to enable them to exercise
-------
any applicable due diligence responsibilities, and cause the officers,
directors and employees of the Issuers and their subsidiaries to supply all
information in each case reasonably requested by any such Inspector in
connection with such Registration Statement. Records determined in good
faith by the Issuers to be confidential shall not be disclosed by any
Inspector notified of such determination unless (i) the disclosure of such
Records is necessary to avoid or correct a material misstatement or
omission in such Registration Statement, (ii) the release of such Records
is ordered pursuant to a subpoena or other order from a court of competent
jurisdiction or (iii) the information in such Records has been made
generally available to the public in a manner that does not otherwise
involve a breach of any confidentiality obligation by any party. Each
selling Holder of such Registrable Securities and each such Participating
Broker-Dealer will be required to agree that information obtained by it as
a result of such inspections shall be deemed confidential and shall not be
used by it as the basis for any market transactions in the securities of
the Issuers unless and until such is made generally available to the
public. Each selling Holder of such Registrable Securities and each such
Participating Broker-Dealer will be required to further agree that it will,
upon learning that disclosure of such Records is sought in a court of
-21-
competent jurisdiction, give notice to the Issuers and allow them at their
own expense to undertake appropriate action to prevent disclosure of the
Records deemed confidential.
(q) Provide an indenture trustee for the Registrable Securities or
the Exchange Securities, as the case may be, and cause the Indenture or the
trust indenture provided for in Section 2(a), as the case may be, to be
qualified under the TIA not later than the effective date of the first
Registration Statement relating to the Registrable Securities or the
Exchange Offer; and in connection therewith, cooperate with the trustee
under any such indenture and the holders of the Registrable Securities, to
effect such changes to such indenture as may be required for such indenture
to be so qualified in accordance with the terms of the TIA; and execute,
and use their reasonable best efforts to cause such trustee to execute, all
documents as may be required to effect such changes, and all other forms
and documents required to be filed with the SEC to enable such indenture to
be so qualified in a timely manner.
(r) Comply in all material respects with all applicable rules and
regulations of the SEC and make generally available to their
securityholders earning statements satisfying the provisions of Section
11(a) of the Securities Act and Rule 158 thereunder (or any similar rule
promulgated under the Securities Act) no later than 90 days after the end
of any 12-month period (i) commencing at the end of any fiscal quarter in
which Registrable Securities are sold to underwriters in a firm commitment
or best efforts underwritten offering and (ii) if not sold to underwriters
in such an offering, commencing on the first day of the first fiscal
quarter of the Issuers after the effective date of a Shelf Registration
Statement, which statements shall cover said 12-month periods.
(s) If an Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Registrable Securities by Holders to the
Issuers (or to such other Person as directed by the Issuers) in exchange
for the Exchange Securities or the Private Exchange Securities, as the case
may be, the Issuers shall xxxx, or caused to be marked, on such Registrable
Securities that such Registrable Securities are being cancelled in exchange
for the Exchange Securities or the Private Exchange Securities, as the case
-22-
may be; in no event shall such Registrable Securities be marked as paid or
otherwise satisfied.
(t) Reasonably cooperate with each seller of Registrable Securities
covered by any Registration Statement and each underwriter, if any,
participating in the disposition of such Registrable Securities and their
respective counsel in connection with any filings required to be made with
the National Association of Securities Dealers, Inc. (the "NASD").
----
(u) Use their reasonable best efforts to take all other steps
necessary to effect the registration of the Registrable Securities covered
by a Registration Statement contemplated hereby.
The Issuers may require each seller of Registrable Securities or
Participating Broker-Dealer as to which any registration is being effected to
furnish to the Issuers such information regarding such seller or Participating
Broker-Dealer and the distribution of such Registrable Securities or Exchange
Securities to be sold by such Participating Broker-Dealer, as the case may be,
as the Issuers may, from time to time, reasonably request. The Issuers may
exclude from such registration the Registrable Securities of any seller or
Participating Broker-Dealer who fails to furnish such information within a
reasonable time after receiving such request and, notwithstanding anything to
the contrary in this Agreement, such Seller or Participating Broker Dealer shall
not be entitled to receive any Additional Interest pursuant to Section 4. Each
seller as to which any Shelf Registration is being effected is deemed to agree
to furnish promptly to the Issuers all information required to be disclosed in
order to make the information previously furnished to the Issuers by such seller
not materially misleading.
Each Holder of Registrable Securities agrees by acquisition of
such Registrable Securities or Exchange Securities to be sold by such Holder
that, upon receipt of any notice from the Issuers of the happening of any event
of the kind described in Section 5(c)(ii), 5(c)(iii), 5(c)(iv), or 5(c)(v), such
Holder shall forthwith discontinue disposition of such Registrable Securities
covered by such Registration Statement or Prospectus until such Holder's receipt
of the copies of the supplemented or amended Prospectus contemplated by Section
5(k), or until it is advised in writing (the "Advice") by the Issuers that the
------
use of the applicable Prospectus may be resumed, and has received copies of any
amendments or supplements
-23-
thereto. In the event the Issuers shall give any such notice, each of the
Effectiveness Period and the Applicable Period shall be extended by the number
of days during such periods from and including the date of the giving of such
notice to and including the date when each seller of Registrable Securities
covered by such Registration Statement shall have received (x) the copies of the
supplemented or amended Prospectus contemplated by Section 5(k) or (y) the
Advice.
6. Registration Expenses
---------------------
(a) All fees and expenses incident to the performance of or
compliance with this Agreement by the Issuers shall be borne by the Issuers
whether or not the Exchange Offer or a Shelf Registration is filed or
becomes effective, including, without limitation, (i) all registration and
filing fees (including, without limitation, (A) fees with respect to
filings required to be made with the NASD in connection with an
underwritten offering and (B) fees and expenses of compliance with state
securities or Blue Sky laws (including, without limitation, reasonable fees
and disbursements of counsel in connection with Blue Sky qualifications of
the Registrable Securities or Exchange Securities and determination of the
eligibility of the Registrable Securities or Exchange Securities for
investment under the laws of such jurisdictions in the United States (x)
where the holders of Registrable Securities are located, in the case of the
Exchange Securities, or (y) as provided in Section 5(h), in the case of
Registrable Securities or Exchange Securities to be sold by a Participating
Broker-Dealer during the Applicable Period)), (ii) printing expenses
(including, without limitation, expenses of printing certificates for
Registrable Securities or Exchange Securities in a form eligible for
deposit with DTC and of printing prospectuses if the printing of
prospectuses is reasonably requested by the managing underwriters, if any,
or, in respect of Registrable Securities or Exchange Securities to be sold
by any Participating Broker-Dealer during the Applicable Period, by the
Holders of a majority in aggregate principal amount at maturity of the
Registrable Securities included in any Registration Statement or of such
Exchange Securities, as the case may be), (iii) messenger, telephone and
delivery expenses, (iv) fees and disbursements of counsel for the Issuers,
(v) fees and disbursements of all independent certified public accountants
referred to in Section 5(o)(iii) (including, without limitation, the
expenses of any special audit and "cold comfort" letters required by or
inci-
-24-
dental to such performance), (vi) rating agency fees, (vii) Securities Act
liability insurance, if the Issuers desire such insurance, (viii) fees and
expenses of all other Persons retained by the Issuers, (ix) internal
expenses of the Issuers (including, without limitation, all salaries and
expenses of officers and employees of the Issuers performing legal or
accounting duties), (x) the expense of any annual audit, (xi) the fees and
expenses incurred in connection with the listing of the securities to be
registered on any securities exchange, if applicable and (xii) the expenses
relating to printing, word processing and distributing all Registration
Statements, underwriting agreements, securities sales agreements,
indentures and any other documents necessary in order to comply with this
Agreement; provided, however, that notwithstanding the foregoing, the
-------- -------
Issuers will not be responsible for any underwriter's discounts,
commissions or fees attributable to the sale of Registrable Securities.
(b) In connection with any Shelf Registration hereunder, the
Issuers shall reimburse the Holders of the Registrable Securities being
registered in such registration for the reasonable fees and disbursements
of not more than one counsel chosen by the Holders of a majority in
aggregate principal amount at maturity of the Registrable Securities to be
included in such Registration Statement, subject to the reasonable approval
of the Issuers. Such Holders shall be responsible for any and all other
out-of-pocket expenses of the Holders of Registrable Securities incurred in
connection with the registration of the Registrable Securities.
7. Indemnification
---------------
The Issuers agree to indemnify and hold harmless each Holder of
Registrable Securities and each Participating Broker-Dealer selling Exchange
Securities during the Applicable Period, the officers and directors of each such
person, and each person, if any, who controls any such person within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act
(each, a "Participant"), from and against any and all losses, claims, damages
-----------
and liabilities (including, without limitation, the reasonable legal fees and
other expenses actually incurred in connection with any suit, action or
proceeding or any claim asserted) caused by any untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement (or
any amendment thereto) or Prospectus (as amended or supplemented if the Issu-
-25-
ers shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, except insofar as such losses, claims, damages or liabilities
are caused by any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with information relating to
any Participant furnished to the Company in writing by such Participant
expressly for use therein; provided, however, that the foregoing indemnity with
-------- -------
respect to any preliminary prospectus shall not inure to the benefit of any
Participant (or to the benefit of any person controlling such Participant) from
whom the person asserting any such losses, claims, damages or liabilities
purchased Registrable Securities or Exchange Securities if such untrue statement
or omission or alleged untrue statement or omission made in such preliminary
prospectus is eliminated or remedied in the related Prospectus (as amended or
supplemented if the Issuers shall have furnished any amendments or supplements
thereto) and a copy of the related Prospectus (as so amended or supplemented)
shall not have been furnished to such person at or prior to the sale of such
Registrable Securities or Exchange Securities, as the case may be, to such
person.
Each Participant will be required to agree, severally and not jointly,
to indemnify and hold harmless the Company, its directors, its officers and each
person who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Issuers to each Participant, but only with
reference to information relating to such Participant furnished to the Company
in writing by such Participant expressly for use in any Registration Statement
or Prospectus, any amendment or supplement thereto, or any preliminary
prospectus. The liability of any Participant under this paragraph shall in no
event exceed the proceeds received by such Participant from sales of Registrable
Securities giving rise to such obligations.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "Indemnified Person") shall promptly
------------------
notify the person against whom such indemnity may be sought (the "Indemnifying
------------
Person") in writing, and the Indemni-
------
-26-
fying Person, upon request of the Indemnified Person, shall retain counsel
reasonably satisfactory to the Indemnified Person to represent the Indemnified
Person and any others the Indemnifying Person may designate in such proceeding
and shall pay the reasonable fees and expenses actually incurred by such counsel
related to such proceeding; provided, however, that the failure to so notify the
-------- -------
Indemnifying Person shall not relieve it of any obligation or liability which it
may have hereunder or otherwise (unless and only to the extent that such failure
results in the loss or compromise of any rights or defenses). In any such
proceeding, any Indemnified Person 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 Person unless (i) the Indemnifying Person and the Indemnified
Person shall have mutually agreed to the contrary, (ii) the Indemnifying Person
has failed within a reasonable time to retain counsel reasonably satisfactory to
the Indemnified Person or (iii) the named parties in any such proceeding
(including any impleaded parties) include both the Indemnifying Person and the
Indemnified Person and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them. It
is understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for the Participants
and such control persons of Participants shall be designated in writing by
Participants who sold a majority in interest of Registrable Securities sold by
all such Participants and any such separate firm for the Issuers, their
directors, officers and such control persons of the Issuers shall be designated
in writing by the Issuers. The Indemnifying Person 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 non-appealable judgment for the
plaintiff, the Indemnifying Person agrees to indemnify any Indemnified Person
from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an Indemnified Person
shall have requested an Indemnifying Person to reimburse the Indemnified Person
for reasonable fees and expenses actually incurred by counsel as contemplated by
the third sentence of this paragraph, the Indemnifying Person 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 Person of the aforesaid request and (ii) such In-
-27-
demnifying Person shall not have reimbursed the Indemnified Person in accordance
with said sentence prior to the date of such settlement to the extent it
considers such request to be reasonable or provided written notice to the
Indemnified Person to substantiate the non-payment of the unpaid balance as
reasonable. No Indemnifying Person shall, without the prior written consent of
the Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party and indemnity could have been sought hereunder by such Indemnified Person,
unless such settlement includes an unconditional release of such Indemnified
Person from all liability on claims that are the subject matter of such
proceeding.
If the Indemnification provided for in the first and second paragraphs
of this Section 7 is unavailable to an Indemnified Person in respect of any
losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities in such proportion as is appropriate to reflect the relative fault
of the Issuers on the one hand and the Participants on the other in connection
with the statements or omissions that resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable considerations. The
relative fault of the Issuers on the one hand and the Participants on the other
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 Issuers or by
the Participants and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The parties agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
--- ----
(even if the Participants 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 Person as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding paragraph shall
be deemed to include, subject to the limitations set forth above, any reasonable
legal or other expenses actually incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Sec-
-28-
tion 7, in no event shall a Participant be required to contribute any amount in
excess of the amount by which proceeds received by such Participant from sales
of Registrable Securities exceeds the amount of any damages that such
Participant has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged 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.
The indemnity and contribution agreements contained in this Section 7
will be in addition to any liability which the Indemnifying Persons may
otherwise have to the Indemnified Persons referred to above.
8. Rule 144 and Rule 144A
----------------------
The Issuers covenant that they will file the reports required to be
filed by them under the Securities Act and the Exchange Act in a timely manner
and, if at any time the Issuers are not required to file such reports, they
will, upon the request of any Holder of Registrable Securities, make publicly
available other information so long as necessary to permit sales pursuant to
Rule 144 and Rule 144A under the Securities Act. The Issuers further covenant
that they 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
and Rule 144A under the Securities Act, as such Rules may be amended from time
to time, or (b) any similar rule or regulation hereafter adopted by the SEC.
9. Underwritten Registrations
--------------------------
If any of the Registrable Securities covered by any Shelf Registration
are to be sold in an underwritten offering, the investment banker or investment
bankers and manager or managers that will manage the offering will be selected
by the Holders of a majority in aggregate principal amount at maturity of such
Registrable Securities included in such offering, subject to the reasonable
approval of the Issuers.
No Holder of Registrable Securities may participate in any
underwritten registration hereunder unless such Holder (a) agrees to sell such
Holder's Registrable Securities on the
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basis provided in any underwriting arrangements approved by the Issuers and the
Holders of a majority in aggregate principal amount at maturity of the
Registrable Securities included in such offering and (b) completes and executes
all questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required under the terms of such underwriting arrangements.
10. Miscellaneous
-------------
(a) No Inconsistent Agreements. The Issuers have not, as of the date
--------------------------
hereof, entered and shall not, after the date of this Agreement, enter into
any agreement with respect to any of their securities that is inconsistent
with the rights granted to the Holders of Registrable Securities in this
Agreement or otherwise conflicts with the provisions hereof.
(b) Adjustments Affecting Registrable Securities. Except as may be
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required by the Indenture, the Issuers shall not, directly or indirectly,
take any action with respect to the Registrable Securities as a class that
would adversely affect the ability of the Holders of Registrable Securities
to include such Registrable Securities in a registration undertaken
pursuant to this Agreement.
(c) 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 Issuers have obtained the written
consent of Holders of at least a majority of the then outstanding aggregate
principal amount at maturity of Registrable Securities. Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof with
respect to a matter 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,
impair, limit or compromise the rights of other Holders of Registrable
Securities may be given by Holders of at least a majority in aggregate
principal amount at maturity of the Registrable Securities being sold by
such Holders pursuant to such Registration Statement, provided that the
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provisions of this sentence may not be amended, modified or supplemented
except in accordance with the provisions of the immediately preceding
sentence.
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(d) Notices. All notices and other communications (including without
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limitation any notices or other communications to the Trustee) provided for
or permitted hereunder shall be made in writing by hand-delivery,
registered first-class mail, next-day air courier or telecopier:
(i) if to a Holder of Registrable Securities, at the most current
address given by the Trustee to the Issuers; and
(ii) if to the Issuers, c/o FrontierVision Holdings, L.P., 0000 Xxxxx
Xxxxxxxx Xxxxxx, Xxxxx X-000, Xxxxxx, XX. 00000 (telecopy: (000) 000-0000),
Attention: Xxxx X. Xxx, Senior Vice President and Chief Financial Officer.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five business days
after being deposited in the mail, postage prepaid, if mailed; one business
day after being timely delivered to a next-day air courier; and when
telephonic confirmation of receipt is obtained, if telecopied.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee under
the Indenture at the address specified in such Indenture.
(e) Successors and Assigns. This Agreement shall inure to the benefit
----------------------
of and be binding upon the successors and assigns of each of the parties,
including without limitation and without the need for an express
assignment, subsequent Holders of Registrable Securities; provided, that,
with respect to the indemnity and contribution agreements in Section 7,
each Holder of Registrable Securities subsequent to the Initial Purchasers
shall be bound by the terms thereof if such Holder elects to include
Registrable Securities in a Shelf Registration; provided, however, that
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this Agreement shall not inure to the benefit of or be binding upon a
successor or assignee of a Holder unless and to the extent such successor
or assignee holds Registrable Securities.
(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
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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
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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, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO
SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(i) Severability. If any term, provision, covenant or restriction of
------------
this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the
parties hereto shall use their reasonable best efforts to find and employ
an alternative means to achieve the same or substantially the same result
as that contemplated by such term, provision, covenant or restriction. It
is hereby stipulated and declared to be the intention of the parties that
they would have executed the remaining terms, provisions, covenants and
restrictions without including any of such that may be hereafter declared
invalid, illegal, void or unenforceable.
(j) Entire Agreement. This Agreement, together with the Purchase
----------------
Agreement, is intended by the parties as a final expression of their
agreement, and is intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein and therein.
(k) Securities Held by the Issuers or Their Affiliates. Whenever the
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consent or approval of holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities held by the
Issuers or any of their affiliates (as such term is defined in Rule 405
under the Securities Act) shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage.
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(l) Subsidiary Guarantor a Party. Immediately upon the designation of
----------------------------
any subsidiary of the Company as a Guarantor (as defined in the Indenture),
the Company shall cause such Guarantor to guarantee the obligations of the
Issuers hereunder (including, without limitation, the obligation to pay
Additional Interest, if any, pursuant to the terms of Section 4 hereof), by
executing and delivering to the Initial Purchasers an appropriate amendment
to this Agreement.
11. Additional Agreements
---------------------
From and after the effectiveness of any Registration Statement with
respect to the Securities, the Exchange Securities or the Private Exchange
Securities, each of the Issuers will, for the benefit of X.X. Xxxxxx Securities
Inc. ("JPMS") and First Union Capital Markets Corp. ("First Union") and for so
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long as any of the Securities, Exchange Securities or Private Exchange
Securities are outstanding and JPMS, First Union or any of their respective
affiliates (as defined in the Securities Act) is required by applicable law to
deliver a prospectus in connection with sales of the Securities, Exchange
Securities or Private Exchange Securities (the "Undertaking Period"), (i) (a)
------------------
periodically amend each Registration Statement covering Securities, Exchange
Securities or Private Exchange Securities so that the information contained in
such Registration Statement complies with the requirements of Section 10(a)
under the Securities Act; (b) amend each such Registration Statement within 90
days following the end of the Company's most recent fiscal year so that the
information contained in such Registration Statement complies with the
requirements of Section 10(a) under the Securities Act; (c) if requested by JPMS
or First Union, within 45 days following the end of the Company's most recent
fiscal quarter (except for the fourth fiscal quarter of any fiscal year), file a
supplement to the Prospectus included in each such Registration Statement which
sets forth the consolidated financial results of the Issuers for the previous
quarter; and (d) promptly amend each such Registration Statement or supplement
each such Prospectus when reasonably requested by JPMS or First Union or when
necessary to reflect pro forma financial information set forth in the most
recent Form 8-K filed by the Company or to reflect any material changes in the
information provided therein or to reflect the occurrence of any fact or
information becoming known that should be set forth in an amendment to each such
Registration Statement or a supplement to each such Prospectus so that each such
Prospectus when delivered to a purchaser will comply with applicable law;
provided, however, that (x) prior to fil-
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ing any amendment to any such Registration Statement or any supplement to any
such Prospectus, the Issuers will furnish for a reasonable period of time prior
to the proposed filing thereof to each of Xxxxxx Xxxxxx & Xxxxxxx, acting as
counsel to JPMS and First Union, and JPMS and First Union copies of all such
documents proposed to be filed, which documents will be subject to the review of
such counsel and JPMS and First Union, (y) the Issuers will not file any
amendment to any such Registration Statement or any supplement to any such
Prospectus to which such counsel or JPMS or First Union shall reasonably object,
and (z) the Issuers will provide such counsel and JPMS and First Union with such
number of copies of each amendment or supplement filed as JPMS and First Union
shall reasonably request; and (ii) indemnify JPMS and First Union, and if
applicable contribute to JPMS and First Union, in a manner substantially
identical to that specified in Section 7 hereof in connection with sales of the
Securities by Participants.
SIGNATURES
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
FRONTIERVISION HOLDINGS, L.P.
By: FrontierVision Partners, L.P.,
its general partner
By: FVP GP, L.P.,
its general partner
By: FrontierVision Inc.,
its general partner
By: /s/ Xxxxx X. XxXxxx
---------------------------------------
Title: Vice President & Treasurer
FRONTIERVISION HOLDINGS CAPITAL
CORPORATION
By: /s/ Xxxxx X. XxXxxx
---------------------------------------
Title: Vice President & Treasurer
X.X. XXXXXX SECURITIES INC.
CHASE SECURITIES INC.
CIBC WOOD GUNDY SECURITIES CORP.
FIRST UNION CAPITAL MARKETS CORP.
By: X.X. Xxxxxx Securities Inc.
By: /s/ Xxxxxx Tulip
---------------------------------------
Title: Vice President
