REGISTRATION RIGHTS AGREEMENT by and between JS ACQUISITION, LLC ALDEN MEDIA HOLDINGS, LLC and JEFFREY H. SMULYAN Dated as of ____, 2010
Exhibit
(d)(v)
by and between
JS ACQUISITION, LLC
ALDEN MEDIA HOLDINGS, LLC
and
XXXXXXX X. XXXXXXX
Dated as of ____, 2010
TABLE OF CONTENTS
Page | ||||||
ARTICLE I DEFINITIONS | 1 | |||||
Section 1.1 |
Certain Definitions | 1 | ||||
ARTICLE II GENERAL; SECURITIES SUBJECT TO THIS AGREEMENT | 4 | |||||
Section 2.1 |
Grant of Rights | 4 | ||||
Section 2.2 |
Registrable Securities | 4 | ||||
Section 2.3 |
Holders of Registrable Securities | 5 | ||||
ARTICLE III DEMAND REGISTRATION | 5 | |||||
Section 3.1 |
Request for Demand Registration | 5 | ||||
Section 3.2 |
Limitations on Demand Registrations | 6 | ||||
Section 3.3 |
Incidental or “Piggy-Back” Rights with Respect to a Demand Registration | 6 | ||||
Section 3.4 |
Effective Demand Registration | 7 | ||||
Section 3.5 |
Expenses | 8 | ||||
Section 3.6 |
Underwriting Procedures | 8 | ||||
Section 3.7 |
Selection of Underwriters in a Demand Registration | 8 | ||||
ARTICLE IV INCIDENTAL OR “PIGGY-BACK” REGISTRATION | 9 | |||||
Section 4.1 |
Request for Incidental or “Piggy-Back” Registration | 9 | ||||
Section 4.2 |
Expenses | 10 | ||||
ARTICLE V REGISTRATION PROCEDURES | 10 | |||||
Section 5.1 |
Obligations of the Company | 10 | ||||
Section 5.2 |
Seller Obligations | 14 | ||||
Section 5.3 |
Notice to Discontinue | 14 | ||||
Section 5.4 |
Registration Expenses | 15 | ||||
ARTICLE VI LOCK-UP AGREEMENTS | 15 | |||||
Section 6.1 |
Designated Holder Lock-up Agreements | 15 | ||||
Section 6.2 |
Company Lock-up Agreements | 16 | ||||
Section 6.3 |
Additional Lock-up Agreements | 16 | ||||
Section 6.4 |
Third Party Beneficiaries in Lock-up Agreements | 16 | ||||
ARTICLE VII INDEMNIFICATION; CONTRIBUTION | 16 | |||||
Section 7.1 |
Indemnification by the Company | 16 | ||||
Section 7.2 |
Indemnification by Designated Holders | 17 | ||||
Section 7.3 |
Conduct of Indemnification Proceedings | 17 |
Page | ||||||
Section 7.4 |
Contribution | 18 | ||||
ARTICLE VIII EXCHANGE ACT REPORTING AND RULE 144 | 19 | |||||
ARTICLE IX MISCELLANEOUS | 19 | |||||
Section 9.1 |
Recapitalizations, Exchanges, etc. | 19 | ||||
Section 9.2 |
Further Instruments | 20 | ||||
Section 9.3 |
Consent to Jurisdiction; Service of Process; Waiver of Jury Trial | 20 | ||||
Section 9.4 |
Notices | 20 | ||||
Section 9.5 |
Entire Agreement | 21 | ||||
Section 9.6 |
Amendments and Waivers | 22 | ||||
Section 9.7 |
Governing Law | 22 | ||||
Section 9.8 |
Binding Effect; Assignment | 22 | ||||
Section 9.9 |
Usage | 22 | ||||
Section 9.10 |
Articles and Sections | 23 | ||||
Section 9.11 |
Interpretation | 23 | ||||
Section 9.12 |
Severability of Provisions | 23 | ||||
Section 9.13 |
Counterparts | 23 | ||||
Section 9.14 |
No Personal Liability | 23 | ||||
Section 9.15 |
No Third Party Beneficiaries | 23 |
ii
REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of , 2010,
by and between JS Acquisition, LLC, an Indiana limited liability company (together with any
successor or assignee thereof as a result of a Reconstitution (as defined below), the
“Company”), Alden Media Holdings, LLC, a Delaware limited liability company, and Xxxxxxx X.
Xxxxxxx, an individual.
WHEREAS, pursuant to Section 10.2 of the Amended and Restated Operating Agreement of the
Company, dated as of the date hereof (as amended, supplemented or otherwise modified from time to
time, the “Operating Agreement”), each of the Smulyan Members and the Alden Members (as
each such term is defined in the Operating Agreement and, together, the “Primary
Stockholders”) are entitled to (i) cause the Company to effect an Initial Public Offering (as
defined below) and (ii) certain registration rights in connection therewith as set forth in this
Agreement, in each case, in accordance with the terms and subject the conditions set forth therein;
WHEREAS, pursuant to Section 10.2 of the Operating Agreement, (i) the Company may be
restructured into a corporation or other organizational entity for the purposes of effecting an
Initial Public Offering (the “Reconstitution”) and (ii) in such Reconstitution, the Primary
Stockholders shall be issued shares of Common Stock (as defined below) in respect of their Common
Interests (as such term is defined in the Operating Agreement);
NOW, THEREFORE, in consideration of the mutual covenants and agreements entered into herein,
and intending to be legally bound hereby, the parties agree as follows:
ARTICLE I
DEFINITIONS .
Section 1.1 Certain Definitions.
(a) For all purposes of this Agreement, the following terms shall have the respective meanings
set forth in this Section 1.1 (such definitions to be equally applicable to both the singular and
plural forms of the terms herein defined):
“Affiliate” means, with respect to any Person, any other Person controlling,
controlled by or under common control with such Person. The term “control” (including, with
correlative meaning, the terms “controlled by” and “under common control with”), as applied to any
Person, means the possession, directly or indirectly, of the power to direct or cause the direction
of the management and policies of
1 | This Agreement to be entered at the closing simultaneously with the Operating Agreement. |
2
such Person, whether through the ownership of voting or other securities, by contract or
otherwise.
“Board of Directors” means the board of directors of the Company.
“Business Day” means a day other than Saturday, Sunday or any day on which banks
located in New York, New York are authorized or obligated by law to close.
“Commission” means the Securities and Exchange Commission.
“Common Stock” means the common stock of the Company, any other common equity security
issued in exchange for Common Interests in the Reconstitution or any other capital stock of the
Company into which such stock is reclassified or reconstituted.
“Designated Holder” means each of the Primary Stockholders and any transferee (whether
direct or indirect) of any of the foregoing to whom Registrable Securities have been transferred in
accordance with Article IX of the Operating Agreement, other than a transferee to whom Registrable
Securities have been transferred pursuant to a Registration Statement under the Securities Act or
Rule 144 or Regulation S promulgated under the Securities Act.
“Designated Holder Free Writing Prospectus” means each Free Writing Prospectus
prepared by or on behalf of the relevant Designated Holder or used or referred to by such
Designated Holder in connection with the offering of Registrable Securities.
“Disclosure Package” means, with respect to any offering of securities, (i) the
preliminary Prospectus, (ii) each Free Writing Prospectus and (iii) all other information, in each
case, that is deemed, under Rule 159 promulgated under the Securities Act, to have been conveyed to
purchasers of securities at the time of sale of such securities (including a contract of sale).
“FINRA” means the Financial Industry Regulatory Authority.
“Free Writing Prospectus” means any “free writing prospectus” as defined in Rule 405
promulgated under the Securities Act.
“Initial Public Offering” means the initial public offering of any shares of Common
Stock pursuant to an effective Registration Statement.
“IPO Effectiveness Date” means the date upon which the Company closes its Initial
Public Offering.
“Permitted Transferee” has the meaning set forth for such term in the Operating
Agreement.
3
“Person” means any individual, corporation, partnership, limited liability company,
limited liability partnership, firm, joint venture, association, joint-stock company, trust,
unincorporated organization, governmental body or other entity.
“Prospectus” means any “prospectus” as defined in Rule 405 promulgated under the
Securities Act.
“Registrable Class Securities” means the Registrable Securities and any other
securities of the Company that are of the same class as the relevant Registrable Securities.
“Registrable Securities” means each of the following: (i) any and all shares of
Common Stock owned by the Designated Holders; and (ii) any shares of Common Stock issued or
issuable to any of the Designated Holders with respect to the Registrable Securities by way of
stock dividend or stock split or in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization or otherwise and any shares of Common Stock issuable
upon conversion, exercise or exchange thereof.
“Registration Statement” means a registration statement filed pursuant to the
Securities Act.
“Securities Act” means the Securities Act of 1933 and the rules and regulations of the
Commission promulgated thereunder.
“Shelf Registration” means a registration, under the Securities Act on Form S-3 in an
offering on a delayed or continuous basis pursuant to Rule 415 promulgated under the Securities
Act.
“Transfer” means, with respect to any security, the offer for sale, sale, pledge,
transfer or other disposition or encumbrance (or any transaction or device that is designed to or
could be expected to result in the transfer or the disposition by any Person at any time in the
future) of such security, and shall include the entering into of any swap, hedge or other
derivatives transaction or other transaction that transfers to another in whole or in part any
rights, economic benefits or risks of ownership, including by way of settlement by delivery of such
security or other securities in cash or otherwise.
“underwritten public offering” of securities means a public offering of such
securities registered under the Securities Act in which an underwriter, placement agent or other
intermediary participates in the distribution of such securities.
(b) The following capitalized terms are defined in the following Sections of this Agreement:
4
Term | Section | |||
Agreement |
Preamble | |||
Approved Underwriter |
3.6 | |||
Company |
Preamble | |||
Company Underwriter |
4.1 | |||
Demand Registration |
3.1 | |||
Holders’ Counsel |
5.1 | (a) | ||
Incidental Registration |
4.1 | |||
Indemnified Party |
7.3 | |||
Indemnifying Party |
7.3 | |||
Initiating Holders |
3.1 | |||
Inspectors |
5.1 | (h) | ||
Liability |
7.1 | |||
Lock-up Agreements |
6.1 | |||
Long-Form Registration. |
3.1 | |||
Operating Agreement |
Recitals | |||
Primary Stockholders |
Recitals | |||
Reconstitution |
Recitals | |||
Records |
5.1 | (h) | ||
Short-Form Registration |
3.1 | |||
Valid Business Reason |
3.2 |
ARTICLE II
GENERAL; SECURITIES SUBJECT TO THIS AGREEMENT.
Section 2.1 Grant of Rights. The Company hereby grants registration rights to the Designated Holders upon the terms and
conditions set forth in this Agreement.
Section 2.2 Registrable Securities. For the purposes of this Agreement, Registrable Securities will cease to be Registrable
Securities when (i) a Registration Statement covering such Registrable Securities has been declared
effective under the Securities Act by the Commission and such Registrable Securities have been
disposed of pursuant to such effective Registration Statement, (ii) (A) the entire amount of the
Registrable Securities owned by the relevant Designated Holder may be sold in a single sale, in the
opinion of counsel satisfactory to the Company and such Designated Holder, each in their reasonable
judgment, without any limitation as to volume pursuant to Rule 144 promulgated under the Securities
Act and (B) such Designated Holder owning such Registrable Securities owns less than 10% of the
outstanding shares of Common Stock on a fully diluted basis, or (iii) the Registrable Securities
are proposed to be sold or distributed by a Person not entitled to the registration rights granted
by this Agreement. Notwithstanding the foregoing, if such Designated Holder owns less than 10% but
more than 5% of the outstanding shares of Common Stock on a fully diluted basis, such
5
Designated Holder’s shares of Common Stock shall continue to be Registrable Securities for
purposes of an Incidental Registration.
Section 2.3 Holders of Registrable Securities. A Person is deemed to be a holder of Registrable Securities whenever such Person owns of
record Registrable Securities, or holds an option to purchase, or a security convertible into, or
exercisable or exchangeable for, Registrable Securities whether or not such purchase, conversion,
exercise or exchange has actually been effected. If the Company receives conflicting instructions,
notices or elections from two or more Persons with respect to the same Registrable Securities, the
Company may act upon the basis of the instructions, notice or election received from the registered
owner of such Registrable Securities. Registrable Securities issuable upon exercise of an option
or upon conversion, exercise or exchange of another security shall be deemed outstanding for the
purposes of this Agreement.
ARTICLE III
DEMAND REGISTRATION.
Section 3.1 Request for Demand Registration. The Designated Holders (the “Initiating Holders”) may make a written request to the
Company to register, and the Company shall register in accordance with the terms of this Agreement,
the sale of the number of Registrable Securities stated in such request under the Securities Act
(other than pursuant to a Registration Statement on Form S-4 or S-8), at the election of the
Initiating Holders, (i) on Form S-1 or any similar long-form registration (a “Long-Form
Registration”) or (ii) on Form S-3 or any similar short-form registration (other than a Shelf
Registration), if such a short-form is then available to the Company (a “Short-Form
Registration” and, together with a Long-Form Registration, a “Demand Registration”);
provided, however, that the Company shall not be obligated to effect: (A), (1) an
Initial Public Offering caused by the Alden Members pursuant to Section 10.2(d) of the Operating
Agreement prior to the fifth anniversary of the date hereof, (2) with respect to any IPO
Effectiveness Date occurring prior to the fifth anniversary of the date hereof, any Demand
Registration by the Alden Members prior to the date that is six months after such IPO Effectiveness
Date, (3) any Demand Registration by the Smulyan Members with respect to any Initial Public
Offering prior to the later of (I) date that is six months after the IPO Effectiveness Date or (II)
such time as the Alden Members no longer own any Series A Preferred Interests (as defined in the
Operating Agreement) or Junior Subordinated Notes (as defined in the Operating Agreement), (4) any
Demand Registration by any transferee of the Primary Stockholders (other than a Permitted
Transferee) or (5) more than one such Demand Registration with respect to each of the Alden Members
and the Smulyan Members thereby within any six-month period; or (B) a Demand Registration if the
Initiating Holders propose to sell their Registrable Securities (and including any other
Registrable Securities included pursuant to Section 3.3) at an anticipated aggregate offering price
(calculated based upon the Market Price of the Registrable Securities on the date of filing of the
Registration Statement with respect to such Registrable Securities and including any Registrable
Securities subject to any applicable over-allotment option) to the public of less than (x)
$25,000,000 in the case of
6
a Long-Form Registration or (y) $15,000,000 in the case of a Short-Form Registration. For
purposes of the preceding sentence, two or more Registration Statements filed in response to one
demand for a Long-Form Registration shall be counted as one Long-Form Registration. Each request
for a Demand Registration by the Initiating Holders shall state the amount of the Registrable
Securities proposed to be sold and the intended method of disposition thereof. The Initiating
Holders shall be entitled to an unlimited number of Short-Form Registrations.
Section 3.2 Limitations on Demand Registrations. If the Board of Directors, in its good faith judgment, determines that any registration of
Registrable Securities should not be made or continued because it would materially interfere with
any material financing, acquisition, corporate reorganization or merger or other material
transaction involving the Company (a “Valid Business Reason”), (i) the Company may postpone
filing a Registration Statement relating to a Demand Registration until such Valid Business Reason
no longer exists, and (ii) in case a Registration Statement has been filed relating to a Demand
Registration, if the Valid Business Reason has not resulted from actions taken by the Company, the
Company, upon the approval of a majority of the Board of Directors, may cause such Registration
Statement to be withdrawn and its effectiveness terminated or may postpone amending or
supplementing such Registration Statement, and such Demand Registration shall not be considered a
Demand Registration for the purposes of Section 3.1(A)(3). The Company shall give written notice,
which notice shall be signed by the Chairman of the Board of Directors of the Company, to all
Designated Holders of its determination to postpone or withdraw a Registration Statement and of the
fact that the Valid Business Reason for such postponement or withdrawal no longer exists, in each
case, promptly after the occurrence thereof. If the Company gives notice of its determination to
postpone or withdraw a Registration Statement pursuant to this Section 3.2, the Company shall
extend the period during which such Registration Statement shall be maintained effective pursuant
to this Agreement (including, in the case of a Long-Form Registration, the period referred to in
the second sentence of Section 3.4) by the number of days during the period from and including the
date of the giving of such notice pursuant to this Section 3.2 to and including the date when
sellers of such Registrable Securities under such Registration Statement shall have received the
copies of the supplemented or amended Prospectus contemplated by and meeting the requirements of
Section 5.1(a)(vi). Notwithstanding anything to the contrary contained herein, the Company may not
postpone or withdraw a filing under this Section 3.2 due to a Valid Business Reason more than twice
for a period of up to 90 days in any 12-month period.
Section 3.3 Incidental or “Piggy-Back” Rights with Respect to a Demand Registration. Each of the Designated Holders (other than the Initiating Holders who have requested the
relevant Demand Registration under Section 3.1) may offer such Designated Holder’s Registrable
Securities under any such Demand Registration pursuant to this Section 3.3; provided that, until
such time as the Alden Members no longer own any Series A Preferred Interests or Junior
Subordinated Notes, the Smulyan Members may not offer Registrable Securities representing in excess
of 5% of the outstanding Common Stock in any such Demand Registration. The Company shall (i) as
7
promptly as practicable but in no event later than five days after the receipt of a request
for a Demand Registration from any Initiating Holders, give written notice thereof to all of the
Designated Holders (other than such Initiating Holders), which notice shall specify the number of
Registrable Securities subject to the request for Demand Registration, whether such Demand
Registration is a Short-Form Registration or Long-Form Registration, the names and notice
information of the Initiating Holders and the intended method of disposition of such Registrable
Securities and (ii) subject to Section 3.6, include in the Registration Statement filed pursuant to
such Demand Registration all of the Registrable Securities requested by such Designated Holders for
inclusion in such Registration Statement from whom the Company has received a written request for
inclusion therein within 10 days after the receipt by such Designated Holders of such written
notice referred to in clause (i) above. Each such request by such Designated Holders shall specify
the number of Registrable Securities proposed to be registered and such Designated Holder shall
send a copy of such request to the Initiating Holders. The failure of any Designated Holder to
respond within such 10-day period referred to in clause (ii) above shall be deemed to be a waiver
of such Designated Holder’s rights under this Section 3.3 with respect to such Demand Registration.
Any Designated Holder may waive its rights under this Section 3.3 prior to the expiration of such
10-day period by giving written notice to the Company, with a copy to the Initiating Holders. If a
Designated Holder sends the Company a written request for inclusion of part or all of such
Designated Holder’s Registrable Securities in a registration, such Designated Holder shall not be
entitled to withdraw or revoke such request without the prior written consent of the Company in the
Company’s sole discretion unless, as a result of facts or circumstances arising after the date on
which such request was made relating to the Company or to market conditions, such Designated Holder
reasonably determines that participation in such registration is reasonably likely to have a
material adverse effect on such Designated Holder.
Section 3.4 Effective Demand Registration. The Company shall use its commercially reasonable efforts to cause any such Demand
Registration to become effective not later than (i) 180 days after it receives a request under
Section 3.1 for a Long-Form Registration and (ii) 45 days after it receives a request under Section
3.1 for a Short-Form Registration, and in each case to remain effective thereafter. A registration
shall not constitute a Long-Form Registration until it has become effective and remains
continuously effective for the lesser of (A) the period during which all Registrable Securities
registered in the Long-Form Registration are sold and (B) 180 days; provided,
however, that a registration shall not constitute a Long-Form Registration if (x) after
such Long-Form Registration has become effective, such registration or the related offer, sale or
distribution of Registrable Securities thereunder is interfered with by any stop order, injunction
or other order or requirement of the Commission or other governmental agency, court or other Person
for any reason not attributable to the Initiating Holders and such interference is not thereafter
eliminated or (y) the conditions specified in the underwriting agreement, if any, entered into in
connection with such Long-Form Registration are not satisfied or waived, other than by reason of a
failure by the Initiating Holders.
8
Section 3.5 Expenses. Except as provided in Section 5.4 hereof, the Company shall pay all Registration Expenses
in connection with a Demand Registration, whether or not such Demand Registration becomes
effective.
Section 3.6 Underwriting Procedures. If the Company or the Initiating Holders holding a majority of the Registrable Securities
held by all of the Initiating Holders so elect, the Company shall use its commercially reasonable
efforts to cause the offering made pursuant to such Demand Registration to be in the form of a
firm commitment underwritten public offering, and the managing underwriter or underwriters for such
offering shall be an investment banking firm or firms of national reputation selected to act as the
managing underwriter or underwriters of the offering in accordance with Section 3.7 (each, an
“Approved Underwriter”). In connection with any Demand Registration under this ARTICLE III
involving an underwritten public offering, none of the Registrable Securities held by any
Designated Holder making a request for inclusion of such Registrable Securities pursuant to Section
3.3 shall be included in such underwritten public offering unless such Designated Holder accepts
the terms of the offering as reasonably agreed upon by the Company, the Initiating Holders and the
Approved Underwriters, and then only in such quantity as will not, in the reasonable opinion of the
Approved Underwriters, jeopardize the success of such offering by the Initiating Holders. If the
Approved Underwriters advise the Company that the aggregate amount of such Registrable Securities
requested to be included in such offering is sufficiently large to have a material adverse effect
on the success of such offering, then the Company shall include in such registration only the
aggregate amount of Registrable Securities that the Approved Underwriters believe may be sold
without any such material adverse effect and shall reduce the amount of Registrable Securities to
be included in such registration, first, as to the equity securities offered by the Company
for its own account, second, as to any Designated Holders who are not Alden Members or
Smulyan Members, as a group, if any, pro rata within each group based on the number of Registrable
Securities owned by each such party, third, as to the Registrable Securities of the Smulyan
Members who are not Initiating Holders, as a group, if any, pro rata within each group based on the
number of Registrable Securities owned by each such party, fourth, as to the Alden Members
who are not Initiating Holders, as a group, if any, pro rata within each group based on the number
of Registrable Securities owned by each such party, and fifth, as to the Registrable
Securities of the Initiating Holders, as a group, pro rata within each group based on the number of
Registrable Securities owned by each such party.
Section 3.7 Selection of Underwriters in a Demand Registration. If an offering of Registrable Securities made pursuant to any Demand Registration is in the
form of an underwritten public offering, the Company shall select the Approved Underwriters;
provided, however, that the Approved Underwriters shall, in any case, also be
reasonably acceptable to the Initiating Holders holding a majority of the Registrable Securities
held by all of the Initiating Holders.
9
ARTICLE IV
INCIDENTAL OR “PIGGY-BACK” REGISTRATION.
Section 4.1 Request for Incidental or “Piggy-Back” Registration. At any time after the IPO Effectiveness Date, if the Company proposes to file a
Registration Statement with respect to an offering by the Company for its own account (other than a
Registration Statement on Form S-4 or S-8 or a Shelf Registration in respect of the resale of
convertible debt or the related underlying capital stock thereof) or for the account of any
stockholder of the Company (other than for the account of any Designated Holder pursuant to ARTICLE
III), then the Company shall give written notice of such proposed filing to each of the Designated
Holders at least 20 days before the anticipated filing date, and such notice shall describe the
proposed registration, offering price (or reasonable range thereof) and distribution arrangements,
and offer such Designated Holders the opportunity to register the number of Registrable Securities
as each such Designated Holder may request (an “Incidental Registration”); provided that,
until such time as the Alden Members no longer own any Series A Preferred Interests or Junior
Subordinated Notes, the Smulyan Members may not register Registrable Securities representing in
excess of 5% of the outstanding Common Stock in any such Incidental Registration. In connection
with any Incidental Registration under this Section 4.1 involving an underwritten public offering,
the Company shall use its commercially reasonable efforts (within 20 days after the notice
provided for in the preceding sentence) to cause the managing underwriter or underwriters (the
“Company Underwriter”) to permit each of the Designated Holders who has requested in
writing to participate in the Incidental Registration to include the number of such Designated
Holder’s Registrable Securities specified by such Designated Holder in such offering on the same
terms and conditions as the securities of the Company or for the account of such other stockholder,
as the case may be, included therein. Any withdrawal of the Registration Statement by the Company
for any reason shall constitute and effect an automatic withdrawal of any Incidental Registration
related thereto. In connection with any Incidental Registration under this Section 4.1 involving
an underwritten public offering, the Company shall not be required to include any Registrable
Securities in such underwritten public offering unless the Designated Holders thereof accept the
terms of the underwritten public offering as agreed upon between the Company, such other
stockholders, if any, and the Company Underwriter, and then only in such quantity as the Company
Underwriter believes will not jeopardize the success of the offering by the Company. If the
Company Underwriter determines that the registration of all or part of the Registrable Securities
which the Designated Holders have requested to be included would materially adversely affect the
success of such offering, then the Company shall include in such Incidental Registration only the
aggregate amount of Registrable Securities that the Company Underwriter believes may be sold
without any such material adverse effect and shall reduce the amount of Registrable Securities to
be included in such registration, first, the Registrable Securities to be offered for the
account of any Designated Holders that are not Alden Members or Smulyan Members pursuant to this
ARTICLE IV, as a group, pro rata based on the number of Registrable Securities owned by each such
Designated Holder, second, the Registrable Securities to be offered for the account of the
Smulyan Members pursuant
10
to this ARTICLE IV, as a group, pro rata based on the number of Registrable Securities owned
by each such Alden Member, third, the Registrable Securities to be offered for the account
of the Alden Members pursuant to this ARTICLE IV, as a group, pro rata based on the number of
Registrable Securities owned by each such Alden Member, and fourth, other securities
requested to be included in such offering and fifth, securities to be offered for the
account of the Company.
Section 4.2 Expenses. Except as provided in Section 5.4 hereof, the Company shall bear all Registration Expenses
in connection with any Incidental Registration pursuant to this ARTICLE IV, whether or not such
Incidental Registration becomes effective.
ARTICLE V
REGISTRATION PROCEDURES.
Section 5.1 Obligations of the Company. Whenever registration of Registrable Securities has been requested or required pursuant to
ARTICLE III or ARTICLE IV, the Company shall use its commercially reasonable efforts to effect the
registration and sale of such Registrable Securities in accordance with the intended method of
distribution thereof as promptly as practicable, and in connection with any such request or
requirement, the Company shall:
(a) prepare and file with the Commission a Registration Statement on any form for which the
Company then qualifies or which counsel for the Company shall deem appropriate and which form shall
be available for the sale of such Registrable Securities in accordance with the intended method of
distribution thereof, and cause such Registration Statement to become effective; provided,
however, that (A) before filing a Registration Statement or Prospectus or any amendments or
supplements thereto (including any documents incorporated by reference therein), or before using
any Free Writing Prospectus, the Company shall provide counsel selected by the Designated Holders
holding a majority of the Registrable Securities being registered in such registration
(“Holders’ Counsel”) and any other Inspector (as defined below) with an adequate and
appropriate opportunity to review and comment on such Registration Statement, each Prospectus
included therein (and each amendment or supplement thereto) and each Free Writing Prospectus to be
filed with the Commission, subject to such documents being under the Company’s control, and (B) the
Company shall notify the Holders’ Counsel and each seller of Registrable Securities pursuant to
such Registration Statement of any stop order issued or threatened by the Commission and take all
actions required to prevent the entry of such stop order or to remove it if entered;
(b) prepare and file with the Commission such amendments and supplements to such Registration
Statement and the Prospectus used in connection therewith as may be necessary to keep such
Registration Statement effective for the lesser of (A) 180 days and (B) such shorter period which
will terminate when all Registrable Securities covered by such Registration Statement have been
sold;
11
(c) furnish to each seller of Registrable Securities, prior to filing a Registration
Statement, at least one copy of such Registration Statement as is proposed to be filed, and
thereafter such number of copies of such Registration Statement, each amendment and supplement
thereto (in each case including all exhibits thereto), the Prospectus included in such Registration
Statement (including each preliminary Prospectus), any Prospectus filed pursuant to Rule 424
promulgated under the Securities Act and any Free Writing Prospectus as each such seller may
reasonably request in order to facilitate the disposition of the Registrable Securities owned by
such seller;
(d) register or qualify such Registrable Securities under such other securities or “blue sky”
laws of such jurisdictions as any seller of Registrable Securities may request, and to continue
such registration or qualification in effect in such jurisdiction for as long as permissible
pursuant to the laws of such jurisdiction, or for as long as any such seller requests or until all
of such Registrable Securities are sold, whichever is shortest, and do any and all other acts and
things which may be reasonably necessary or advisable to enable any such seller to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such seller;
provided, however, that the Company shall not be required to (A) qualify generally
to do business in any jurisdiction where it would not otherwise be required to qualify but for this
Section 5.1(d), (B) subject itself to taxation in any such jurisdiction or (C) consent to general
service of process in any such jurisdiction;
(e) promptly notify each seller of Registrable Securities: (A) when a Prospectus, any
Prospectus supplement, the Disclosure Package, any Free Writing Prospectus, a Registration
Statement or a post-effective amendment to a Registration Statement has been filed with the
Commission, and, with respect to a Registration Statement or any post-effective amendment, when the
same has become effective; (B) of any request by the Commission or any other federal or state
governmental authority for amendments or supplements to a Registration Statement, related
Prospectus, Disclosure Package or Free Writing Prospectus or for additional information; (C) of the
issuance by the Commission or any other federal or state governmental authority of any stop order
suspending the effectiveness of a Registration Statement or the initiation or threatening of any
proceedings for that purpose; (D) of the receipt by the Company of any notification with respect to
the suspension of the qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction or the initiation or threatening of any proceedings for
such purpose; (E) of the existence of any fact or happening of any event of which the Company has
knowledge which makes any statement of a material fact in such Registration Statement, related
Prospectus, Disclosure Package or Free Writing Prospectus or any document incorporated or deemed to
be incorporated therein by reference untrue or which would require the making of any changes in the
Registration Statement, Prospectus, Disclosure Package or Free Writing Prospectus in order 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 such Prospectus, Disclosure Package or
Free Writing 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 light of the circumstances under which they
12
were made, not misleading; and (F) of the determination by counsel of the Company that a
post-effective amendment to a Registration Statement is advisable;
(f) upon the occurrence of any event contemplated by Section 5.1(e)(E) or, subject to Section
3.2, the existence of a Valid Business Reason, as promptly as practicable, prepare a supplement or
amendment to such Registration Statement, related Prospectus, Disclosure Package or Free Writing
Prospectus and furnish to each seller of Registrable Securities a reasonable number of copies of
such supplement to or an amendment of such Registration Statement, Prospectus, Disclosure Package
or Free Writing Prospectus as may be necessary so that, after delivery to the purchasers of such
Registrable Securities, 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 such Prospectus,
Disclosure Package or Free Writing 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 light of the circumstances under which they were made, not misleading;
(g) enter into and perform customary agreements (including underwriting and indemnification
and contribution agreements in customary form with the Approved Underwriter or the Company
Underwriter, as applicable) and take such other commercially reasonable actions as are required in
order to expedite or facilitate each disposition of Registrable Securities and shall provide all
reasonable cooperation, including causing appropriate officers to attend and participate in “road
shows” and other information meetings organized by the Approved Underwriter or Company Underwriter,
if applicable, and causing counsel to the Company to deliver customary legal opinions in connection
with any such underwriting agreements;
(h) make available at reasonable times for inspection by any seller of Registrable Securities,
any managing underwriter participating in any disposition of such Registrable Securities pursuant
to a Registration Statement, Holders’ Counsel and any attorney, accountant or other agent retained
by any such seller or any managing underwriter (collectively, the “Inspectors”), all
financial and other records, pertinent corporate documents and properties of the Company and its
subsidiaries (collectively, the “Records”) as shall be reasonably necessary to enable them
to exercise their due diligence responsibility, and cause the Company’s and its subsidiaries’
officers, directors and employees, and the independent public accountants of the Company, to supply
all information reasonably requested by any such Inspector in connection with such Registration
Statement or related Prospectus or Disclosure Package. Records that the Company determines, in
good faith, to be confidential shall not be disclosed to the Inspectors without a reasonable and
customary agreement to keep such information confidential;
(i) if such sale is pursuant to an underwritten public offering, obtain a “cold comfort”
letter dated the effective date of the Registration Statement and the date of the closing under the
underwriting agreement from the Company’s independent public accountants in customary form and
covering such matters of the type customarily covered
13
by “cold comfort” letters as Holders’ Counsel or the managing underwriter reasonably requests;
(j) furnish, at the request of any seller of Registrable Securities on the date such
securities are delivered to the underwriters for sale pursuant to such registration or, if such
securities are not being sold through underwriters, on the date the Registration Statement with
respect to such securities becomes effective, an opinion, dated such date, of counsel representing
the Company for the purposes of such registration, addressed to the underwriters, if any, and to
the seller making such request, covering such legal matters with respect to the registration in
respect of which such opinion is being given as the underwriters, if any, and such seller may
reasonably request and are customarily included in such opinions;
(k) with respect to each Free Writing Prospectus or other materials to be included in the
Disclosure Package, ensure that no Registrable Securities be sold “by means of” (as defined in Rule
159A(b) promulgated under the Securities Act) such Free Writing Prospectus or other materials
without the prior written consent of the Designated Holders of the Registrable Securities covered
by such registration statement, which Free Writing Prospectuses or other materials shall be subject
to the review of Holders Counsel;
(l) within the deadlines specified by the Securities Act, make all required filings of all
Prospectuses and Free Writing Prospectuses with the Commission;
(m) within the deadlines specified by the Securities Act, make all required filing fee
payments in respect of any Registration Statement or Prospectus used under this Agreement (and any
offering covered thereby);
(n) comply with all applicable rules and regulations of the Commission, and make available to
its security holders, as soon as reasonably practicable but no later than 15 months after the
effective date of the Registration Statement, an earnings statement covering a period of 12 months
beginning after the effective date of the Registration Statement, in a manner which satisfies the
provisions of Section 11(a) of the Securities Act and Rule 158 promulgated thereunder;
(o) cause all such Registrable Securities to be listed on each securities exchange on which
Registrable Class Securities issued by the Company are then listed, provided that the
applicable listing requirements are satisfied;
(p) keep Holders’ Counsel reasonably advised in writing as to the initiation and progress of
any registration under ARTICLE III or ARTICLE IV and provide Holders’ Counsel with all
correspondence with the Commission in connection with any such Registration Statement;
(q) cooperate with each seller of Registrable Securities and each underwriter participating in
the disposition of such Registrable Securities and their respective counsel in connection with any
filings required to be made with the FINRA;
14
(r) if such registration is pursuant to a Registration Statement on Form S-3 or any similar
short-form registration, include in such Registration Statement such additional information for
marketing purposes as the managing underwriter reasonably requests; and
(s) take all other steps reasonably necessary to effect the registration and disposition of
the Registrable Securities contemplated hereby.
Section 5.2 Seller Obligations. In connection with any offering under any Registration Statement under this Agreement, each
Designated Holder:
(a) shall promptly furnish to the Company in writing such information with respect to such
Designated Holder and the intended method of disposition of its Registrable Securities as the
Company may reasonably request or as may be required by law for use in connection with any related
Registration Statement or Prospectus (or amendment or supplement thereto) and all information
required to be disclosed in order to make the information previously furnished to the Company by
such Designated Holder not contain a material misstatement of fact or necessary to cause such
Registration Statement or Prospectus (or amendment or supplement thereto) not to omit a material
fact with respect to such Designated Holder necessary in order to make the statements therein not
misleading;
(b) shall comply with the Securities Act and the Exchange Act and all applicable state
securities laws and comply with all applicable regulations in connection with the registration and
the disposition of the Registrable Securities; and
(c) shall not use any Free Writing Prospectus without the prior written consent of the
Company.
Section 5.3 Notice to Discontinue. Each Designated Holder agrees that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 5.1(e)(E), such Designated Holder shall
forthwith discontinue disposition of Registrable Securities pursuant to the Registration Statement
covering such Registrable Securities until such Designated Holder’s receipt of the copies of the
supplemented or amended Prospectus or Free Writing Prospectus contemplated by Section 5.1(f) and,
if so directed by the Company, such Designated Holder shall deliver to the Company (at the
Company’s expense) all copies, other than permanent file copies then in such Designated Holder’s
possession, of the Prospectus or Free Writing Prospectus covering such Registrable Securities which
is current at the time of receipt of such notice. If the Company shall give any such notice, the
Company shall extend the period during which such Registration Statement shall be maintained
effective pursuant to this Agreement (including the period referred to in Section 5.1(b)) by the
number of days during the period from and including the date of the giving of such notice pursuant
to Section 5.1(e)(E) to and including the date when sellers of such Registrable Securities under
such Registration Statement shall have received the copies of the supplemented or amended
Prospectus or Free Writing Prospectus contemplated by and meeting the requirements of Section
5.1(f).
15
Section 5.4 Registration Expenses. The Company shall pay all expenses arising from or incident to its performance of, or
compliance with, this Agreement, including (i) Commission and stock exchange and FINRA registration
and filing fees, (ii) all fees and expenses incurred in complying with securities or “blue sky”
laws (including reasonable fees, charges and disbursements of counsel to any underwriter incurred
in connection with “blue sky” qualifications of the Registrable Securities as may be set forth in
any underwriting agreement), (iii) all printing, messenger and delivery expenses, (iv) the fees,
charges and expenses of Holders’ Counsel, any necessary counsel with respect to state securities
law matters, counsel to the Company and of its independent public accountants, and any other
accounting fees, charges and expenses incurred by the Company (including any expenses arising from
any “cold comfort” letters or any special audits incident to or required by any registration or
qualification) and any legal fees, charges and expenses incurred by the Designated Holders;
provided, that, in any registration pursuant to ARTICLE III or ARTICLE IV the Company shall not be
obligated to reimburse the Designated Holders or Holders’ Counsel for any amounts in excess of
$50,000, in the aggregate, pursuant to this clause (iv); and (v) any liability insurance or other
premiums for insurance obtained in connection with any Demand Registration or piggy-back
registration thereon, Incidental Registration pursuant to the terms of this Agreement, regardless
of whether such Registration Statement is declared effective. All of the expenses described in the
preceding sentence of this Section 5.4 are referred to herein as “Registration Expenses.”
The Designated Holders of Registrable Securities sold pursuant to a Registration Statement shall
bear the expense of any broker’s commission or underwriter’s discount or commission relating to the
registration and sale of such Designated Holders’ Registrable Securities and, subject to clause
(iv) above, shall bear the fees and expenses of their own counsel.
ARTICLE VI
LOCK-UP AGREEMENTS.
Section 6.1 Designated Holder Lock-up Agreements. To the extent (i) requested (A) by the Initiating Holders in the case of a non-underwritten
public offering or (B) by the Approved Underwriters or the Company Underwriter, as the case may be,
in the case of an underwritten public offering, and (ii) the Company and all of the Company’s
officers, directors and holders in excess of 5% of its outstanding shares of capital stock execute
agreements identical to or more restrictive than those referred to in this Section 6.1, each
Designated Holder agrees (x) not to effect any Transfer of any Registrable Class Securities or any
securities convertible into or exchangeable or exercisable for such Registrable Class Securities
and (y) not to make any request for the registration of the Transfer of any Registrable Class
Securities or any securities convertible into or exchangeable or exercisable for such Registrable
Class Securities, in each case, during the period beginning on the filing date of the Registration
Statement for such public offering and, unless otherwise mutually agreed upon by such Designated
Holder and the requesting party, ending on the date that is 90 days after the date of the final
Prospectus relating to such public offering (or such longer period if the Approved Underwriters or
the Company Underwriter (as the case may be) deems such period
16
reasonably necessary due to applicable regulations of FINRA), except as part of such public
offering. Upon request by the Approved Underwriters or the Company Underwriter (as the case may
be), each Designated Holder shall enter into customary lock-up agreements (“Lock-up
Agreements”) on terms consistent with the preceding sentence. No Designated Holder subject to
this Section 6.1 shall be released from any obligation under any agreement, arrangement or
understanding entered into pursuant to this Section 6.1 unless all other Designated Holders subject
to the same obligation are also released.
Section 6.2 Company Lock-up Agreements. With respect to any Demand Registration, the Company shall not (except as part of such
Demand Registration) effect any Transfer of Registrable Class Securities, or any securities
convertible into or exchangeable or exercisable for Registrable Class Securities (except pursuant
to a Registration Statement on Form S-8), during the period beginning on the filing date of any
Registration Statement in which the Designated Holders are participating and ending on the date
that is 90 days after date of the final Prospectus relating to such offering, except as part of
such Demand Registration. Upon request by the Approved Underwriters or the Company Underwriter (as
the case may be), the Company shall, from time to time, enter into Lock-up Agreements on terms
consistent with the preceding sentence.
Section 6.3 Additional Lock-up Agreements. With respect to each relevant offering, the Company shall use its commercially reasonable
efforts to cause all of its officers, directors and holders of more than 5% of the Registrable
Class Securities (or any securities convertible into or exchangeable or exercisable for such
Registrable Class Securities) to execute lock-up agreements that contain restrictions that are no
less restrictive than the restrictions contained in the Lock-up Agreements executed by the Company.
Section 6.4 Third Party Beneficiaries in Lock-up Agreements. Any Lock-up Agreements executed by the Designated Holders pursuant to this ARTICLE VI shall
contain provisions naming the Company as an intended third-party beneficiary thereof and requiring
the prior written consent of the Company for any amendments thereto or waivers thereof. Any
Lock-up Agreements executed by the Company, its officers, its directors or other stockholders
pursuant to this ARTICLE VI shall contain provisions naming the selling stockholders in the
relevant offering that are Designated Holders as intended third-party beneficiaries thereof and
requiring the prior written consent of such stockholders holding a majority of the Registrable
Securities for any amendments thereto or waivers thereof.
ARTICLE VII
INDEMNIFICATION; CONTRIBUTION.
Section 7.1 Indemnification by the Company. The Company shall indemnify and hold harmless each Designated Holder, its stockholders,
partners, members, directors, officers, Affiliates and each Person who controls (within the meaning
17
of Section 15 of the Securities Act) such Designated Holder from and against any and all
losses, claims, damages, liabilities and expenses, or any action or proceeding in respect thereof
(including reasonable costs of investigation and reasonable attorneys’ fees and expenses) (each, a
“Liability”) arising out of or based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in the Disclosure Package, the Registration Statement, the
Prospectus, any Free Writing Prospectus or in any amendment or supplement thereto, and (ii) the
omission or alleged omission to state in the Disclosure Package, the Registration Statement, the
Prospectus, any Free Writing Prospectus or in any amendment or supplement thereto any material fact
required to be stated therein or necessary to make the statements therein not misleading;
provided, however, that the Company shall not be liable in any such case to the
extent that any such Liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in such Disclosure Package, Registration Statement,
Prospectus or preliminary prospectus or amendment or supplement thereto in reliance upon and in
conformity with written information furnished to the Company by or on behalf of the Designated
Holder (including the information provided pursuant to Section 5.2(a)) expressly for use therein.
Section 7.2 Indemnification by Designated Holders. In connection with any offering in which a Designated Holder is participating pursuant to
ARTICLE III, or ARTICLE IV, such Designated Holder shall indemnify and hold harmless the Company,
each other Designated Holder, their respective directors, officers, other Affiliates and each
Person who controls the Company, such other Designated Holders (within the meaning of Section 15
of the Securities Act) from and against any and all Liabilities arising out of or based upon (i)
any untrue statement or alleged untrue statement of a material fact contained in the Disclosure
Package, the Registration Statement, the Prospectus, any Designated Holder Free Writing Prospectus
or in any amendment or supplement thereto, and (ii) the omission or alleged omission to state in
the Disclosure Package, the Registration Statement, the Prospectus, any Designated Holder Free
Writing Prospectus or in any amendment or supplement thereto any material fact required to be
stated therein or necessary to make the statements therein not misleading, in each case, to the
extent such Liabilities arise out of or are based upon written information furnished by such
Designated Holder or on such Designated Holder’s behalf expressly for inclusion in the Disclosure
Package, the Registration Statement, the Prospectus or any amendment or supplement thereto relating
to the Registrable Securities (including the information provided pursuant to Section 5.2(a));
provided, however, that the obligation to indemnify shall be individual, not joint
and several, for each Designated Holder and the total amount to be indemnified by such Designated
Holder pursuant to this Section 7.2 shall be limited to the net proceeds (after deducting the
underwriters’ discounts and commissions) received by such Designated Holder in the offering to
which the Registration Statement, Prospectus, Disclosure Package or Designated Holder Free Writing
Prospectus relates.
Section 7.3 Conduct of Indemnification Proceedings. Any Person entitled to indemnification hereunder (the “Indemnified Party”) shall
give prompt written notice to the indemnifying party (the “Indemnifying Party”) after the
receipt by
18
the Indemnified Party of any written notice of the commencement of any action, suit,
proceeding or investigation or threat thereof made in writing for which the Indemnified Party
intends to claim indemnification or contribution pursuant to this Agreement; provided,
however, that the failure to so notify the Indemnifying Party shall not relieve the
Indemnifying Party of any Liability that it may have to the Indemnified Party hereunder (except to
the extent that the Indemnifying Party forfeits substantive rights or defenses by reason of such
failure). If notice of commencement of any such action is given to the Indemnifying Party as above
provided, the Indemnifying Party shall be entitled to participate in and, to the extent it may
wish, jointly with any other Indemnifying Party similarly notified, to assume the defense of such
action at its own expense, with counsel chosen by it and reasonably satisfactory to such
Indemnified Party. The Indemnified Party shall have the right to employ separate counsel in any
such action and participate in the defense thereof, but the fees and expenses of such counsel shall
be paid by the Indemnified Party unless (i) the Indemnifying Party agrees to pay the same, (ii) the
Indemnifying Party fails to assume the defense of such action with counsel reasonably satisfactory
to the Indemnified Party or (iii) the named parties to any such action (including any impleaded
parties) include both the Indemnifying Party and the Indemnified Party and such parties have been
advised by such counsel that either (A) representation of such Indemnified Party and the
Indemnifying Party by the same counsel would be inappropriate under applicable standards of
professional conduct or (B) there may be one or more legal defenses available to the Indemnified
Party which are different from those available to the Indemnifying Party. In any of such cases,
the Indemnifying Party shall not have the right to assume the defense of such action on behalf of
such Indemnified Party; it being understood, however, that the Indemnifying Party shall not be
liable for the fees and expenses of more than one separate firm of attorneys (in addition to any
local counsel) for all Indemnified Parties. No Indemnifying Party shall be liable for any
settlement entered into without its written consent, which consent shall not be unreasonably
withheld. No Indemnifying Party shall, without the written consent of such Indemnified Party,
effect any settlement of any pending or threatened proceeding in respect of which such Indemnified
Party is a party and indemnity has been sought hereunder by such Indemnified Party, unless such
settlement includes an unconditional release of such Indemnified Party from all liability for
claims that are the subject matter of such proceeding.
Section 7.4 Contribution. If the indemnification provided for in this ARTICLE VII from the Indemnifying Party is
unavailable to an Indemnified Party hereunder in respect of any Liabilities referred to herein,
then the 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 Liabilities in such
proportion as is appropriate to reflect the relative fault of the Indemnifying Party and
Indemnified Party in connection with the actions which resulted in such Liabilities, as well as any
other relevant equitable considerations. The relative faults of such Indemnifying Party and
Indemnified Party shall be determined by reference to, among other things, whether any action in
question, including any untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact, has been made by, or relates to information supplied by,
such Indemnifying Party or Indemnified Party, and the parties’
19
relative intent, knowledge, access to information and opportunity to correct or prevent such
action. The amount paid or payable by a party as a result of the Liabilities referred to above
shall be deemed to include, subject to the limitations set forth in Section 7.1, Section 7.2 and
Section 7.3, any legal or other fees, charges or expenses reasonably incurred by such party in
connection with any investigation or proceeding; provided, that the total amount to be
contributed by such Designated Holder shall be limited to the net proceeds (after deducting the
underwriters’ discounts and commissions) received by such Designated Holder in the offering. The
parties hereto agree that it would not be just and equitable if contribution pursuant to this
Section 7.4 were determined by pro rata allocation or by any other method of allocation which does
not take account of the equitable considerations referred to in the immediately preceding
paragraph. 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.
ARTICLE VIII
EXCHANGE ACT REPORTING AND RULE 144.
The Company covenants that from and after the IPO Effectiveness Date it shall (a) file any reports
required to be filed by it under the Exchange Act and (b) take such further action as each
Designated Holder may reasonably request (including providing any information necessary to comply
with Rule 144 promulgated under the Securities Act), all to the extent required from time to time
to enable such Designated Holder to sell Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by (i) Rule 144 promulgated under
the Securities Act, as such rule may be amended from time to time, or Regulation S promulgated
under the Securities Act or (ii) any similar rules or regulations hereafter adopted by the
Commission. The Company shall, upon the request of any Designated Holder, deliver to such
Designated Holder a written statement as to whether it has complied with such requirements.
ARTICLE IX
MISCELLANEOUS.
Section 9.1 Recapitalizations, Exchanges, etc. The provisions of this Agreement shall apply to the full extent set forth herein with respect
to (i) the shares of Common Stock, and (ii) any and all equity securities of the Company or any
successor or assign of the Company (whether by merger, consolidation, sale of assets or otherwise)
which may be issued in respect of, in conversion of, in exchange for or in substitution of, the
shares of Common Stock and shall be appropriately adjusted for any stock dividends, splits, reverse
splits, combinations, recapitalizations and the like occurring after the date hereof. The Company
shall cause any successor or assign (whether by merger, consolidation, sale of assets or otherwise)
to assume this Agreement or enter into a new
20
registration rights agreement with the Designated Holders on terms substantially the same as
this Agreement as a condition of any such transaction.
Section 9.2 Further Instruments. The parties hereto agree to execute such further instruments and to take such further
action as may reasonably be necessary to carry out the intent of this Agreement.
Section 9.3 Consent to Jurisdiction; Service of Process; Waiver of Jury Trial.
(a) Any claim arising out of or relating to this Agreement or the transactions contemplated
hereby may be instituted in any Federal court in the State of New York, and each party agrees not
to assert, by way of motion, as a defense or otherwise, in any such claim, that it is not subject
personally to the jurisdiction of such court, that the claim is brought in an inconvenient forum,
that the venue of the claim is improper or that this Agreement or the subject matter hereof may not
be enforced in or by such court. Each party further irrevocably submits to the jurisdiction of
such court in any such claim.
(b) Any and all service of process and any other notice in any such claim shall be effective
against any party if given personally or by registered or certified mail, return receipt requested,
or by any other means of mail that requires a signed receipt, postage prepaid, mailed to such party
as herein provided. Nothing herein contained shall be deemed to affect the right of any party to
serve process in any manner permitted by law or to commence legal proceedings or otherwise proceed
against any other party in any other jurisdiction.
(c) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS
AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH PARTY HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY.
(d) EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT
OF LITIGATION, SEEK TO ENFORCE THE WAIVER IN Section 9.3(c), (ii) SUCH PARTY UNDERSTANDS AND HAS
CONSIDERED THE IMPLICATIONS OF SUCH WAIVER, (iii) SUCH PARTY MAKES SUCH WAIVER VOLUNTARILY AND (iv)
SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS, AGREEMENTS AND CERTIFICATIONS IN Section 9.3(c) AND THIS Section 9.3(d).
Section 9.4 Notices. Any notice or other communication required or permitted hereunder shall be in writing and
shall be deemed to have been duly given
21
(a) on the day of delivery if delivered in person, or if delivered by facsimile upon confirmation
of receipt (except if such facsimile is not received during regular business hours, then the
Business Day following the date of receipt), (b) on the first Business Day following the date of
dispatch if sent for overnight delivery via a nationally recognized express courier service or (c)
on the date actually received if delivered by registered or certified mail, return receipt
requested, postage prepaid. All notices hereunder shall be delivered as set forth below, or
pursuant to such other instructions as may be designated by notice given in accordance with this
Section 9.4 by the party to receive such notice:
(a) if to the Alden Members, to:
c/o Alden Global Capital
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
Facsimile: (000) 000-0000
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
Facsimile: (000) 000-0000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
(b) if to the Smulyan Members or the Company, to:
c/o Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP
Xxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Strain
Facsimile: (000) 000-0000
Xxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Strain
Facsimile: (000) 000-0000
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx
& Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxx
Xxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
& Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxx
Xxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
Section 9.5 Entire Agreement. This Agreement, the Operating Agreement and any other collateral agreements executed in
connection with the consummation of the transactions contemplated hereby, contain the entire
agreement
22
among the parties with respect to matters contemplated herein and supersede all prior
agreements, written or oral, with respect thereto.
Section 9.6 Amendments and Waivers. Except as otherwise provided herein, the provisions of this Agreement may not be amended,
modified or supplemented, and waivers or consents to departures from the provisions hereof may not
be given unless consented to in writing by (i) the Company, (ii) the Alden Members holding
Registrable Securities representing (after giving effect to any adjustments) at least a majority of
the aggregate number of Registrable Securities owned by all of the Alden Members and (iii) the
Smulyan Members holding Registrable Securities representing (after giving effect to any
adjustments) at least a majority of the aggregate number of Registrable Securities owned by all of
the Smulyan Members. Any such written consent shall be binding upon the Company and all of the
Designated Holders.
Section 9.7 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State
of New York without regard to any conflict of laws rules thereof that might indicate the
application of the laws of any other jurisdiction.
Section 9.8 Binding Effect; Assignment. This Agreement shall inure to the benefit of and be binding upon the successors and
permitted assigns of the parties hereto as hereinafter provided. The Demand Registration rights
and requirements and related rights of the Designated Holders contained in ARTICLE III and the
incidental or “piggy-back” registration rights of the Designated Holders contained in Section 3.3
and ARTICLE IV, shall be (i) with respect to any Registrable Security that is transferred to a
Permitted Transferee of a Designated Holder, transferred to such Permitted Transferee without the
consent of the Company and (ii) with respect to any Registrable Security that is transferred in all
cases to a transferee that is not a Permitted Transferee, transferred only in accordance with
Article IX of the Operating Agreement. At the time of the transfer of any Registrable Security as
contemplated by this Section 9.8, such transferee shall execute and deliver to the Company an
instrument, in form and substance reasonably satisfactory to the Company, to evidence its agreement
to be bound by, and to comply with, this Agreement as an Alden Member or Smulyan Member, as the
case may be. All of the obligations of the Company hereunder shall survive (i) any Reconstitution
and (ii) any transfer of Registrable Securities in accordance with this Section 9.8.
Section 9.9 Usage. All pronouns and any variations thereof refer to the masculine, feminine or neuter, singular or
plural, as the context may require. All terms defined in this Agreement in their singular or
plural forms have correlative meanings when used herein in their plural or singular forms,
respectively. Unless otherwise expressly provided, the words “include,” “includes” and “including”
do not limit the preceding words or terms and shall be deemed to be followed by the words “without
limitation.” The word “extent” in the phrase “to the extent” shall mean the degree to which a
subject or other thing extends, and the phrase shall not mean simply “if”. Any agreement,
instrument or Law defined or referred to herein means such agreement,
23
instrument or Law as from time to time amended, modified or supplemented, unless otherwise
specifically indicated.
Section 9.10 Articles and Sections. All references herein to Articles and Sections shall be deemed references to such parts of
this Agreement, unless the context shall otherwise require. The table of contents, index of
defined terms and Article and Section headings in this Agreement are for reference only and shall
not affect the interpretation of this Agreement.
Section 9.11 Interpretation. The parties acknowledge and agree that (a) each party and its counsel reviewed and
negotiated the terms and provisions of this Agreement and have contributed to its revision, (b) the
rule of construction to the effect that any ambiguities are resolved against the drafting party
shall not be employed in the interpretation of this Agreement, and (c) the terms and provisions of
this Agreement shall be construed fairly as to all parties, regardless of which party was generally
responsible for the preparation of this Agreement. Any statute, regulation, or other law defined
or referred to herein (or in any agreement or instrument that is referred to herein) means such
statute, regulation or other law as, from time to time, may be amended, modified or supplemented,
including (in the case of statutes) by succession of comparable successor statutes. References to
a person also refer to its predecessors and permitted successors and assigns.
Section 9.12 Severability of Provisions. If any provision or any portion of any provision of this Agreement shall be held invalid or
unenforceable, the remaining portion of such provision and the remaining provisions of this
Agreement shall not be affected thereby. If the application of any provision or any portion of any
provision of this Agreement to any Person or circumstance shall be held invalid or unenforceable,
the application of such provision or portion of such provision to Persons or circumstances other
than those as to which it is held invalid or unenforceable shall not be affected thereby.
Section 9.13 Counterparts. This Agreement may be executed by the parties hereto in separate counterparts, each of
which when so executed and delivered shall be an original, but all such counterparts together shall
constitute one and the same instrument. Each counterpart may consist of a number of copies hereof
each signed by less than all, but together signed by all, of the parties hereto.
Section 9.14 No Personal Liability. This Agreement (and each agreement, certificate and instrument delivered pursuant hereto)
shall not create or be deemed to create or permit any personal liability or obligation on the part
of any officer, director, employee, agent, representative or investor of any party hereto.
Section 9.15 No Third Party Beneficiaries. No provision of this Agreement is intended to, or shall, confer any third party beneficiary
or other rights or remedies upon any Person other than the parties hereto.
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IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the day and
year first above written.
JS ACQUISITION, LLC |
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By: | ||||
Name: | ||||
Title: | ||||
ALDEN MEDIA HOLDINGS, LLC |
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By: | ||||
Name: | ||||
Title: | ||||
XXXXXXX X. XXXXXXX |
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[Signature Page to Registration Rights Agreement]