Exhibit 10.26
================================================================================
REGISTRATION RIGHTS AGREEMENT
MJD COMMUNICATIONS, INC.
Dated as of January ___, 2000
================================================================================
TABLE OF CONTENTS
Page
1. Registrations Upon Request.............................................................................1
1.1. IPO Request by the Investor Stockholders....................................................1
1.2. Requests by the Investor Stockholders.......................................................2
1.3. Registration Statement Form.................................................................3
1.4. Expenses....................................................................................3
1.5. Priority in Demand Registrations............................................................3
1.6. No Company Initiated Registration...........................................................4
2. Incidental Registrations...............................................................................4
3. Registration Procedures................................................................................6
4. Underwritten Offerings................................................................................11
4.1. Underwriting Agreement.....................................................................11
4.2. Selection of Underwriters..................................................................11
5. Holdback Agreements...................................................................................12
6. Preparation; Reasonable Investigation.................................................................13
7. No Other Registration Rights; No Grant of Future Registration Rights..................................13
8. Xxxxx Holders; THL Holders............................................................................13
9. Indemnification.......................................................................................14
9.1. Indemnification by the Company.............................................................14
9.2. Indemnification by the Sellers.............................................................14
9.3. Notices of Claims, etc.....................................................................15
9.4. Other Indemnification......................................................................16
9.5. Indemnification Payments...................................................................16
9.6. Other Remedies.............................................................................17
10. Representations and Warranties.......................................................................17
11. Definitions..........................................................................................18
12. Miscellaneous........................................................................................20
12.1. Rule 144, etc.............................................................................20
12.2. Successors, Assigns and Transferees.......................................................20
12.3. Stock Splits..............................................................................21
12.4. Amendment and Modification................................................................21
12.5. Additional Management Stockholders........................................................21
12.6. Governing Law.............................................................................22
12.7. Invalidity of Provision...................................................................22
12.8. Notices...................................................................................22
12.9. Headings; Execution in Counterparts.......................................................24
12.10. Injunctive Relief........................................................................24
12.11. Term.....................................................................................24
12.12. Further Assurances.......................................................................24
12.13. Entire Agreement.........................................................................24
ii
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of January 20, 2000,
by and among MJD Communications, Inc., a Delaware corporation (the "COMPANY"),
Xxxxx Investment Associates V, L.P., a Delaware limited partnership ("KIA V"),
Xxxxx Equity Partners V, L.P., a Delaware limited partnership ("KEP V"; and,
together with KIA V, "XXXXX"), Xxxxxx X. Xxx Equity Fund IV, L.P., a Delaware
limited partnership ("THL FUND IV"), those parties listed on Schedule A attached
hereto (collectively, the "THL RELATED PARTIES"; together with THL Fund IV,
"THL" and each of them together with Xxxxx, the "INVESTOR STOCKHOLDERS"), XXX
Communications Associates, Inc., a Delaware corporation (formerly named Bugger
Associates, Inc. ("XXX")), Xxxxxx X. Xxxxxxxxx ("XXXXXXXXX"), Xxxx Xxxxxxxxx,
Xxxxxxx Xxxxxxxxx, Xxxxx Xxxxx Xxxxxxxxx, Xxxxx Xxxxxxxx ("XXXXXXXX"; together
with XXX, Xxxxxxxxx, Xxxx Xxxxxxxxx, Xxxxxxx Xxxxxxxxx and Xxxxx Xxxxx Xxxxxxxxx
(the "OTHER INVESTORS"), and those employees of the Company or its subsidiaries
listed on Schedule B (collectively, the "MANAGEMENT STOCKHOLDERS"). The Investor
Stockholders, the Other Investors and the Management Stockholders are
hereinafter referred to collectively as the "STOCKHOLDERS". Capitalized terms
used herein without definition are defined in Section 11.
WHEREAS, the Stockholders have purchased or, simultaneously
with the execution of this Agreement, are purchasing shares of Common Stock;
WHEREAS, the parties hereto wish to set forth certain rights
and obligations with respect to the registration of the shares of Common Stock
under the Securities Act.
NOW, THEREFORE, in consideration of the mutual covenants and
obligations set forth in this Agreement, the parties hereto agree as follows:
1. REGISTRATIONS UPON REQUEST.
1.1. IPO REQUEST BY THE INVESTOR STOCKHOLDERS. The Investor
Stockholders shall jointly have the right to request that the Company effect an
IPO of its Common Stock at any time and after December 31, 2004 either Investor
Stockholder that still owns at least 10% of the Shares owned by it as of the
Closing Date shall have such right. In the event that the Investor Stockholders
(or a single Investor Stockholder if so entitled) make such a request, the
Company agrees that it will use its best efforts
to file a registration statement for an IPO of its Common Stock with the
Commission and that the Company will use its best efforts to have such
registration statement declared effective by the Commission as soon as is
reasonably practicable.
1.2. REQUESTS BY THE INVESTOR STOCKHOLDERS. At any time
following an IPO, each Investor Stockholder shall have the right to make up to
four requests that the Company effect the registration under the Securities Act
of all or a portion of the Registrable Securities owned by such Investor
Stockholder, each such request to specify the intended method or methods of
disposition thereof, PROVIDED that the Company shall not be required to effect a
registration pursuant to this Section 1.2 until a period of 90 days (or such
longer period as may be required by any other agreement to which the Company is
a party but in any event no longer than 180 days) shall have elapsed from the
effective date of the most recent registration previously effected pursuant to
this Section 1.1 or Section 1.2. A request made by either of the Investor
Stockholders shall not be counted for purposes of the request limitations set
forth above (A) if such Investor Stockholder determines in its good faith
judgment to withdraw the proposed registration of any Registrable Securities
requested to be registered pursuant to this Section 1.2 due to marketing or
regulatory reasons; PROVIDED, HOWEVER that such withdrawal shall be effected
prior to the effectiveness of the registration statement related to the proposed
registration, (B) the registration statement relating to any such request is not
declared effective within 120 days of the date such registration statement is
first filed with the Commission, (C) if, within 180 days after the registration
relating to any such request has become effective, such registration is
interfered with by any stop order, injunction or other order or requirement of
the Commission or other governmental agency or court for any reason and the
Company fails to have such stop order, injunction or other order or requirement
removed, withdrawn or resolved to such Investor Stockholder's reasonable
satisfaction within 30 days, (D) if more than 10% of the Registrable Securities
requested by such Investor Stockholder to be included in the registration are
not so included pursuant to Section 1.5, or (E) the conditions to closing
specified in the underwriting agreement or purchase agreement entered into in
connection with the registration relating to any such request are not satisfied
(other than as a result of a default or breach thereunder by such Investor
Stockholder). Upon any such request, the Company will promptly, but in any event
within 15 days, give written notice of such request to all holders of
Registrable Securities and thereupon the Company will, subject to Section 1.5,
use its best efforts to effect the prompt registration under the Securities Act
of:
(i) the Registrable Securities which the Company has been so requested
to register by the Investor Stockholder pursuant to this Section 1.2,
and
2
(ii) all other Registrable Securities which the Company has been
requested to register by the holders thereof by written request given
to the Company by such holders within 15 days after the giving of such
written notice by the Company to such holders,
all to the extent required to permit the disposition of the Registrable
Securities so to be registered in accordance with the intended method or methods
of disposition of the Requesting Stockholder.
1.3. REGISTRATION STATEMENT FORM. A registration requested
pursuant to Section 1.2 shall be effected by the filing of a registration
statement on a form agreed to by the Investor Stockholder requesting such
registration.
1.4. EXPENSES. The Company will pay all Registration Expenses
in connection with any registration requested under Sections 1.1 and 1.2,
whether or not any related registration statement becomes effective; PROVIDED
that, with respect to registrations requested under Section 1.2, each seller of
Registrable Securities shall pay all Registration Expenses to the extent
required to be paid by such seller under applicable law.
1.5. PRIORITY IN DEMAND REGISTRATIONS. If a registration
pursuant to Section 1.2 involves an underwritten offering, and the managing
underwriter (or, in the case of an offering which is not underwritten, a
nationally recognized investment banking firm) shall advise the Company in
writing (with a copy to each Person requesting registration of Registrable
Securities) that, in its opinion, the number of securities requested and
otherwise proposed to be included in such registration exceeds the number which
can be sold in such offering without adversely affecting the marketability or
offering price of the offering, the Company will include in such registration up
to the number which the Company is so advised can be sold in such offering
without such adverse effect, FIRST, the Registrable Securities of the Investor
Stockholders, the Other Investors and the Management Stockholders, on a PRO RATA
basis (based on the number of shares of Registrable Securities owned by each
such Stockholder), and SECOND, the securities, if any, being sold by the
Company. Notwithstanding the foregoing, no Management Stockholder (or any
successor manager of the Company and its subsidiaries) will be entitled to
participate in any such registration requested by an Investor Stockholder to the
extent that the managing underwriter (or, in the case of an offering that is not
underwritten, a nationally recognized investment banking firm) shall determine
in good faith and in writing (with a copy to each affected Person requesting
registration of Registrable Securities), that the participation of such
Management Stockholder would adversely affect the marketability
3
or offering price of the securities being sold in such registration, it being
understood that the Company will include in such registration that number of
shares of those Management Stockholders which can be sold in such offering
without such adverse effect. In the event of any such determination under this
Section 1.5, the Company shall give the affected Management Stockholders notice
of such determination in lieu of the notice otherwise required under Section
1.2.
1.6. NO COMPANY INITIATED REGISTRATION. After receipt of
notice of a requested registration pursuant to Section 1.2, the Company shall
not initiate, without the consent of the Investor Stockholders, a registration
of any of its equity securities for its own account until 90 days after such
registration has been terminated or declared effective (unless advised by the
managing underwriter that a longer period, not to exceed 180 days, is required,
or such shorter period as the managing underwriter for any underwritten offering
may agree), except as provided in Section 5(b).
2. INCIDENTAL REGISTRATIONS. If the Company at any time
proposes to register any of its equity securities under the Securities Act for
its own account (other than pursuant to a registration on Form S-4 or S-8 or any
successor form), the Company will give prompt written notice to all holders of
Registrable Securities regarding such proposed registration. Upon the written
request of any such holder made within 15 days after the receipt of any such
notice (which request shall specify the number of Registrable Securities
intended to be disposed of by such holder and the intended method or methods of
disposition thereof), the Company will use its best efforts to effect the
registration under the Securities Act of such Registrable Securities on a PRO
RATA basis in accordance with such intended method or methods of disposition,
PROVIDED that:
(a) (i) if such registration shall be in connection with an
IPO, the Company shall not include any Registrable Securities in such
proposed registration if the Board shall have determined, after
consultation with the managing underwriter for such offering, that it
is not in the best interests of the Company to include any Registrable
Securities in such registration and (ii) the Company shall not include
any Registrable Securities of any Management Stockholder in any
proposed registration pursuant to this Section 2 to the extent that the
managing underwriter (or, in the case of an offering that is not
underwritten, a nationally recognized investment banking firm) shall
determine in good faith that the participation of such Management
Stockholder would adversely affect the marketability or the offering
price of such offering and PROVIDED, FURTHER, that in the event of any
such determination under subsection (i) or (ii), the Company shall give
the affected holders of Registrable Securities
4
notice of such determination in lieu of the notice otherwise required
by the first paragraph of this Section 2.
(b) if, at any time after giving written notice (pursuant to
this Section 2) of its intention to register equity securities and
prior to the effective date of the registration statement filed in
connection with such registration, the Company shall determine for any
reason not to register such equity securities, the Company may, at its
election, give written notice of such determination to each holder of
Registrable Securities and, thereupon, shall not be obligated to
register any Registrable Securities in connection with such
registration (but shall nevertheless pay the Registration Expenses in
connection therewith, other than Registration Expenses required to be
paid by the holder of such Registrable Securities under applicable law
), without prejudice, however, to the rights of the Investor
Stockholders to request that a registration be effected under Section
1.2; and
(c) if in connection with a registration pursuant to this
Section 2, the managing underwriter of such registration (or, in the
case of an offering that is not underwritten, a nationally recognized
investment banking firm) shall advise the Company in writing (with a
copy to each holder of Registrable Securities requesting registration
thereof) that the number of securities requested and otherwise proposed
to be included in such registration exceeds the number which can be
sold in such offering without adversely affecting the marketability and
offering price of such offering, then in the case of any registration
pursuant to this Section 2, the Company will include in such
registration to the extent of the number which the Company is so
advised can be sold in such offering without such adverse effect,
FIRST, the securities, if any, being sold by the Company, and SECOND,
the Registrable Securities of the Investor Stockholders, the Other
Investors and, subject to Section 2(a)(ii), the Management
Stockholders, on a PRO RATA basis (based on the number of shares of
Registrable Securities owned by each such Stockholder).
The Company will pay all Registration Expenses in connection
with each registration of Registrable Securities requested pursuant to this
Section 2, PROVIDED that each seller of Registrable Securities shall pay all
Registration Expenses to the extent required to be paid by such seller under
applicable law and all underwriting discounts and commissions and transfer
taxes, if any. No registration effected under this Section 2 shall relieve the
Company from its obligation to effect registrations under Section 1.2.
5
3. REGISTRATION PROCEDURES. If and whenever the Company is
required to use its best efforts to effect the registration under the Securities
Act of any shares of its Common Stock as provided in Section 1.1, or of
Registrable Securities as provided in Sections 1.2 and 2, the Company will
promptly:
(a) prepare, and as soon as practicable (but in any event
within 90 days of receipt of a request for an IPO or 60 days of receipt
of a request for registration pursuant to Section 1.2) thereafter, file
with the Commission, a registration statement with respect to such
Registrable Securities, make all required filings with the NASD and use
its best efforts to cause such registration statement to become
effective as soon as practicable;
(b) prepare and promptly file with the Commission such
amendments and post-effective amendments and supplements to such
registration statement and the prospectus used in connection therewith
as may be necessary to keep such registration statement effective for
so long as is required to comply with the provisions of the Securities
Act and to complete the disposition of all securities covered by such
registration statement in accordance with the intended method or
methods of disposition thereof, but in no event for a period of more
than six months after such registration statement becomes effective;
(c) furnish copies of all documents proposed to be filed with
the Commission in connection with such registration to (I) counsel
selected by the Investor Stockholders in the case of a registration
pursuant to Section 1.1, by the Investor Stockholder requesting
registration, in the case of a registration pursuant to Section 1.2,
and otherwise, by the Majority Holders, whether or not such Majority
Holders are participating as selling stockholders in such registration
and which counsel may also be counsel to the Company and (II) each
seller of Registrable Securities, if any, and such documents shall be
subject to the review of such counsel. The Company shall give such
counsel and sellers reasonable time and opportunity to review and
comment on all documents proposed to be filed with the Commission in
connection with such registration. The Company shall not file any
registration statement or any amendment or post-effective amendment or
supplement to such registration statement or the prospectus used in
connection therewith to which such counsel shall have reasonably
objected in writing on the grounds that such amendment or supplement
does not comply (explaining why) in all material respects with the
requirements of the Securities Act or of the rules or regulations
thereunder;
6
(d) furnish to each seller of Registrable Securities, without
charge, such number of conformed copies of such registration statement
and of each such amendment and supplement thereto (in each case
including all exhibits and documents filed therewith) and such number
of copies of the prospectus included in such registration statement
(including each preliminary prospectus and any summary prospectus) and
any other prospectus filed under Rule 424 under the Securities Act, in
conformity with the requirements of the Securities Act, and such other
documents, as such seller may reasonably request in order to facilitate
the disposition of the Registrable Securities owned by such seller in
accordance with the intended method or methods of disposition thereof;
(e) use its best efforts to register or qualify such
Registrable Securities covered by such registration statement under the
securities or blue sky laws of such jurisdictions as each seller shall
reasonably request, and do any and all other acts and things which may
be necessary or advisable to enable such seller to consummate the
disposition of such Registrable Securities in such jurisdictions in
accordance with the intended method or methods of disposition thereof,
PROVIDED that the Company shall not for any such purpose be required to
qualify generally to do business as a foreign corporation in any
jurisdiction wherein it is not so qualified, subject itself to taxation
in any jurisdiction wherein it is not so subject, or take any action
which would subject it to general service of process in any
jurisdiction wherein it is not so subject;
(f) use its best efforts to cause all Registrable Securities
covered by such registration statement to be registered with or
approved by such other governmental agencies, authorities or
self-regulatory bodies as may be necessary by virtue of the business
and operations of the Company to enable the seller or sellers thereof
to consummate the disposition of such Registrable Securities in
accordance with the intended method or methods of disposition thereof;
(g) furnish to the Investor Stockholders, if such Investor
Stockholder is a seller of Registrable Securities:
(i) an opinion of counsel for the Company experienced
in securities law matters, dated the effective date of the
registration statement (and, if such registration includes an
underwritten public offering, the date of the closing under
the underwriting agreement), and
7
(ii) to the extent permitted by generally accepted
auditing standards, a "comfort" letter (unless the
registration is pursuant to Section 2 and such a letter is not
otherwise being furnished to the Company), dated the effective
date of such registration statement (and if such registration
includes an underwritten public offering, dated the date of
the closing under the underwriting agreement), signed by the
independent public accountants who have issued an audit report
on the Company's financial statements included in the
registration statement,
covering such matters as are customarily covered in opinions of
issuer's counsel and in accountants' letters delivered to the
underwriters in underwritten public offerings of securities and such
other matters as the Investor Stockholders may reasonably request;
(h) notify each seller of any Registrable Securities covered
by such registration statement at any time when a prospectus relating
thereto is required to be delivered under the Securities Act of the
happening of any event or existence of any fact as a result of which
the prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the
circumstances then existing, and, as promptly as is practicable,
prepare and furnish to such seller a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary so
that, as thereafter delivered to the purchasers of such securities,
such prospectus shall not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing;
(i) otherwise comply with all applicable rules and regulations
of the Commission, and make available to its security holders, as soon
as reasonably practicable, an earnings statement of the Company (in
form complying with the provisions of Rule 158 under the Securities
Act) covering the period of at least 12 months, but not more than 18
months, beginning with the first month after the effective date of such
registration statement;
(j) notify each seller of any Registrable Securities covered
by such registration statement (I) when the prospectus or any
prospectus supplement or post-effective amendment has been filed, and,
with respect to such registration statement or any post-effective
amendment, when the same has become
8
effective, (II) of any request by the Commission for amendments or
supplements to such registration statement or to amend or to supplement
such prospectus or for additional information, (III) of the issuance by
the Commission of any stop order suspending the effectiveness of such
registration statement or the initiation of any proceedings for that
purpose and (IV) of the suspension of the qualification of such
securities for offering or sale in any jurisdiction, or of the
institution of any proceedings for any of such purposes;
(k) use every reasonable effort to obtain the lifting of any
stop order that might be issued suspending the effectiveness of such
registration statement or of any order suspending or preventing the use
of any related prospectus at the earliest possible moment;
(l) use its best efforts (I) (A) to list such Registrable
Securities on any securities exchange on which the equity securities of
the Company are then listed or, if no such equity securities are then
listed, on an exchange selected by the Company, if such listing is then
permitted under the rules of such exchange, or (B) if such listing is
not practicable, to secure designation of such securities as a NASDAQ
"national market system security" within the meaning of Rule 11Aa2-1
under the Exchange Act or, failing that, to secure NASDAQ authorization
for such Registrable Securities, and, without limiting the foregoing,
to arrange for at least two market makers to register as such with
respect to such Registrable Securities with the NASD, and (II) to
provide a transfer agent and registrar for such Registrable Securities
not later than the effective date of such registration statement and to
instruct such transfer agent (A) to release any stop transfer order
with respect to the certificates with respect to the Registrable
Securities being sold and (B) to furnish certificates without
restrictive legends representing ownership of the shares being sold, in
such denominations requested by the sellers of the Registrable
Securities or the lead underwriter;
(m) enter into such agreements and take such other actions as
the sellers of Registrable Securities or the underwriters reasonably
request in order to expedite or facilitate the disposition of such
Registrable Securities, including, without limitation, preparing for,
and participating in, such number of "road shows" and all such other
customary selling efforts as the underwriters reasonably request in
order to expedite or facilitate such disposition;
9
(n) furnish to any holder of such Registrable Securities such
information and assistance as such holder may reasonably request in
connection with any "due diligence" effort which such seller deems
appropriate; and
(o) use its best efforts to take all other steps necessary to
effect the registration of such Registrable Securities contemplated
hereby.
As a condition to its registration of Registrable Securities
of any prospective seller, the Company may require such seller of any
Registrable Securities as to which any registration is being effected to execute
powers-of-attorney, custody arrangements and other customary agreements
appropriate to facilitate the offering and to furnish to the Company such
information regarding such seller, its ownership of Registrable Securities and
the disposition of such Registrable Securities as the Company may from time to
time reasonably request in writing and as shall be required by law in connection
therewith. Each such holder agrees to furnish promptly to the Company all
information required to be disclosed in order to make the information previously
furnished to the Company by such holder not materially misleading.
The Company agrees not to file or make any amendment to any
registration statement with respect to any Registrable Securities, or any
amendment of or supplement to the prospectus used in connection therewith, which
refers to (in a capacity as a selling stockholder) any seller of any Registrable
Securities covered thereby by name, or otherwise identifies such seller as the
holder of any Registrable Securities, to which counsel to such seller may
reasonably object.
By acquisition of Registrable Securities, each holder of such
Registrable Securities shall be deemed to have agreed that upon receipt of any
notice from the Company of the happening of any event of the kind described in
Section 3(h), such holder will promptly discontinue such holder's disposition of
Registrable Securities pursuant to the registration statement covering such
Registrable Securities until such holder's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 3(h). If so directed
by the Company, each holder of Registrable Securities will deliver to the
Company (at the Company's expense) all copies, other than permanent file copies,
in such holder's possession of the prospectus covering such Registrable
Securities at the time of receipt of such notice. In the event that the Company
shall give any such notice, the period mentioned in Section 3(a) shall be
extended by the number of days during the period from and including the date of
the giving of such notice to and including the date when each seller of any
Registrable Securities covered by such registration statement shall have
received the copies of the supplemented or amended prospectus contemplated by
Section 3(h).
10
4. UNDERWRITTEN OFFERINGS.
4.1. UNDERWRITING AGREEMENT. If requested by the underwriters
for any underwritten offering pursuant to a registration requested under
Sections 1.1, 1.2 or 2, the Company shall enter into an underwriting agreement
with the underwriters for such offering, such agreement to be reasonably
satisfactory in substance and form to the underwriters and to the Investor
Stockholders (unless the Investor Stockholders are not participating in such
registration, in which case, counsel to the Majority Holders). Any such
underwriting agreement shall contain such representations and warranties by the
Company and such other terms and provisions as are customarily contained in
agreements of this type, including, without limitation, indemnities to the
effect and to the extent provided in Section 9. The holders of a majority of the
Registrable Securities to be distributed by such underwriter shall be parties to
such underwriting agreement and may, at their option, require that any or all of
the representations and warranties by, and the agreements on the part of, the
Company to and for the benefit of such underwriters be made to and for the
benefit of such holders of Registrable Securities and that any or all of the
conditions precedent to the obligations of such underwriters under such
underwriting agreement shall also be conditions precedent to the obligations of
such holders of Registrable Securities. No underwriting agreement (or other
agreement in connection with such offering) shall require the Investor
Stockholders in their respective capacities as stockholders and/or controlling
persons, to make any representations or warranties to or agreements with the
Company or the underwriters other than representations, warranties or agreements
regarding such holder, the ownership of such holder's Registrable Securities and
such holder's intended method or methods of disposition and any other
representation required by law or to furnish any indemnity to any Person which
is broader than the indemnity furnished by such holder pursuant to Section 9.2.
4.2. SELECTION OF UNDERWRITERS. If the Company at any time
proposes to register any of its securities under the Securities Act for sale for
its own account pursuant to an underwritten offering, the Company will have the
right to select the underwriter group (the members of which shall be of
nationally recognized standing) to administer the offering with the consent of
any Investor Stockholder who continues to hold at least 10% of the number of
Shares such Investor Stockholder owns on the date hereof. Notwithstanding the
foregoing sentence, whenever a registration requested pursuant to Section 1.2 is
for an underwritten offering, the Investor Stockholder requesting such
registration will have the right to select the underwriter group (the member of
which shall be of nationally recognized standing) to administer the offering,
but only with the approval of the Company and any Investor Stockholder who
continues
11
to hold at least 10% of the of the number of Shares such Investor Stockholder
owns on the date hereof, such approval not to be unreasonably withheld.
5. HOLDBACK AGREEMENTS. (a) If and whenever the Company
proposes to register any of its equity securities under the Securities Act for
its own account (other than on Form S-4 or S-8 or any successor form) or is
required to use its best efforts to effect the registration of any Registrable
Securities under the Securities Act pursuant to Sections 1.1, 1.2 or 2, each
holder of Registrable Securities agrees by acquisition of such Registrable
Securities not to effect any sale or distribution, including any sale pursuant
to Rule 144 under the Securities Act, except for sales or distributions not
involving a public offering and where the transferee agrees to be bound by the
terms of this Agreement, or to request registration under Section 1.2 of any
Registrable Securities within seven days prior to and 90 days (unless advised by
the managing underwriter that a longer period, not to exceed 180 days, is
required, or such shorter period as the managing underwriter for any
underwritten offering may agree) after the effective date of the registration
statement relating to such registration, except as part of such registration or
unless, in the case of a sale or distribution not involving a public offering,
the transferee agrees in writing to be subject to this Section 5 even if such
Registrable Securities cease to be Registrable Securities upon such transfer. If
requested by such managing underwriter, each holder of Registrable Securities
agrees to execute an agreement to such effect with the Company and consistent
with such managing underwriter's customary form of holdback agreement.
(b) The Company agrees not to effect any public sale or
distribution of its equity securities or securities convertible into or
exchangeable or exercisable for any of such securities within seven days prior
to and 90 days (unless advised in writing by the managing underwriter that a
longer period, not to exceed 180 days, is required, or such shorter period as
the managing underwriter for any underwritten offering may agree) after the
effective date of any registration statement filed pursuant to Sections 1.1 or
1.2 (except (I) as part of such registration, (II) as permitted by the related
underwriting, or (III) pursuant to a registration on Form S-4 or S-8 or any
successor form). In addition, upon the request of the managing underwriter, the
Company shall use its best efforts to cause each holder (other than any holder
already subject to Section 5(a)) of its equity securities or any securities
convertible into or exchangeable or exercisable for any of such securities,
whether outstanding on the date of this Agreement or issued at any time after
the date of this Agreement (other than any such securities acquired in a public
offering), to agree not to effect any such public sale or distribution of such
securities during such period, except as part of any such registration if
permitted, and to cause each such holder to enter into an agreement to
12
such effect with the Company and consistent with such managing underwriter's
customary form of holdback agreement.
6. PREPARATION; REASONABLE INVESTIGATION. In connection with
the preparation and filing of each registration statement registering
Registrable Securities under the Securities Act, the Company will give counsel
to the holders of such Registrable Securities so to be registered the
opportunity to participate in the preparation of such registration statement,
each prospectus included therein or filed with the Commission, and each
amendment thereof or supplement thereto, and will give such counsel access to
the financial and other records, pertinent corporate documents and properties of
the Company and its subsidiaries and opportunities to discuss the business of
the Company with its officers and the independent public accountants who have
issued audit reports on its financial statements in each case as shall be
reasonably requested by such counsel in connection with such registration
statement.
7. NO OTHER REGISTRATION RIGHTS; NO GRANT OF FUTURE
REGISTRATION RIGHTS. The Company has not granted registration rights to any
Person other than those reflected in this Agreement and the Registration Rights
Agreement, dated as of July 31, 1997, by and among the Company, Carousel Capital
Partners, L.P., Xxxxx and the other parties thereto, which agreement has been
terminated as of the date hereof and is of no further force or effect. The
Company shall not grant any other demand or incidental registration rights to
any other Person without the prior written consent of: (I) Xxxxx, so long as
Xxxxx continues to own at least 15% of the number of shares of Common Stock that
Xxxxx owns on the date hereof and (II) THL, so long as THL continues to own at
least 15% of the number of shares of Common Stock that THL owns on the date
hereof.
8. XXXXX HOLDERS; THL HOLDERS. (a) Notwithstanding the
definition of the term "Registrable Securities": (I) Xxxxx shall have the right
to have included in any registration pursuant to Section 1.2 or 2 any shares of
Common Stock owned by any Xxxxx Holder and such shares shall be deemed
Registrable Securities that shall be considered owned by Xxxxx for purposes of
the "cut-back" provisions applicable to such registration and (II) THL shall
have the right to have included in any registration pursuant to Section 1.1 or 2
any shares of Common Stock owned by any THL Holder and such shares shall be
deemed Registrable Securities that shall be considered owned by THL for purposes
of the "cut-back" provisions applicable to such registration.
13
9. INDEMNIFICATION.
9.1. INDEMNIFICATION BY THE COMPANY. In the event of any
registration of any Registrable Securities pursuant to this Agreement, the
Company will indemnify, defend and hold harmless (A) each seller of such
Registrable Securities, (B) the directors, members, stockholders, officers,
partners, employees, agents and Affiliates of such seller, (C) each Person who
participates as an underwriter in the offering or sale of such securities and
(D) each person, if any, who controls (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) any of the foregoing against
any and all losses, claims, damages or liabilities (or actions, investigations
or proceedings in respect thereof), jointly or severally, directly or
indirectly, based upon or arising out of (I) any untrue statement or alleged
untrue statement of a fact contained in any registration statement under which
such Registrable Securities were registered under the Securities Act, any
preliminary prospectus, final prospectus or summary prospectus contained therein
or used in connection with the offering of securities covered thereby, or any
amendment or supplement thereto, or (II) any omission or alleged omission to
state a fact required to be stated therein or necessary to make the statements
therein not misleading; and the Company will reimburse each such indemnified
party for any legal or any other expenses reasonably incurred by them in
connection with enforcing its rights hereunder or under the underwriting
agreement entered into in connection with such offering or investigating,
preparing, pursuing or defending any such loss, claim, damage, liability,
action, investigation, proceeding or expense, except insofar as any such loss,
claim, damage, liability, action, proceeding or expense arises out of or is
based upon an untrue statement or omission made in such registration statement,
any such preliminary prospectus, final prospectus, summary prospectus, amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by such seller expressly for use in the preparation
thereof. Such indemnity shall remain in full force and effect, regardless of any
investigation made by such indemnified party and shall survive the transfer of
such Registrable Securities by such seller. If the Company is entitled to, and
does, assume the defense of the related action or proceedings provided herein,
then the indemnity agreement contained in this Section 9.1 shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability, action or
proceeding if such settlement is effected without the consent of the Company
(which consent shall not be unreasonably withheld or delayed).
9.2. INDEMNIFICATION BY THE SELLERS. The Company may require,
as a condition to including any Registrable Securities in any registration
statement filed pursuant to Section 1.2 or 2 that the Company shall have
received an undertaking satisfactory to it from each of the prospective sellers
of such Registrable Securities to
14
indemnify and hold harmless, severally and ratably, not jointly, in the same
manner and to the same extent as set forth in Section 9.1, the Company, its
directors, officers, employees, agents and each person, if any, who controls
(within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act) the Company with respect to any statement or alleged statement in
or omission or alleged omission from such registration statement, any
preliminary prospectus, final prospectus or summary prospectus contained
therein, or any amendment or supplement thereto, if such statement or alleged
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such seller
expressly for use in the preparation of such registration statement, preliminary
prospectus, final prospectus, summary prospectus, amendment or supplement. (The
Company and the holders of the Registrable Securities hereby acknowledge and
agree that, unless otherwise expressly agreed to in writing by such holders, the
only information furnished or to be furnished to the Company for use in any
registration statement or prospectus relating to the Registrable Securities or
the holder thereof or in any amendment, supplement or preliminary materials
associated therewith are statements specifically relating to (A) transactions
between such holder and its Affiliates, on the one hand, and the Company, on the
other hand, (B) the beneficial ownership of shares of Common Stock by such
holder and its Affiliates, (C) the name and address of such holder and (D) any
other information relating to the Registrable Securities or the holder thereof
required to be furnished in a registration statement by applicable law. If any
additional information about such holder or the plan of distribution (other than
for an underwritten offering) is required by law to be disclosed in any such
document, then such holder shall not unreasonably withhold its agreement
referred to in the immediately preceding sentence of this Section 9.2). Such
indemnity shall remain in full force and effect, regardless of any investigation
made by or on behalf of the Company or any such director, officer or controlling
Person and shall survive the transfer of such Registrable Securities by such
seller. The indemnity agreement contained in this Section 9.2 shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability, action or
proceeding if such settlement is effected without the consent of such seller
(which consent shall not be unreasonably withheld or delayed). The indemnity
provided by each seller of Registrable Securities under this Section 9.2 shall
be limited in amount to the net amount of proceeds actually received by such
seller from the sale of Registrable Securities pursuant to such registration
statement.
9.3. NOTICES OF CLAIMS, ETC. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding paragraphs of this Section 9,
such indemnified party will, if a claim in respect thereof is to be made against
an indemnifying party, give written
15
notice to the indemnifying party of the commencement of such action or
proceeding, PROVIDED that the failure of any indemnified party to give notice as
provided herein shall not relieve the indemnifying party of its obligations
under the preceding paragraphs of this Section 9, except to the extent that the
indemnifying party is materially prejudiced by such failure to give notice. In
case any such action is brought against an indemnified party, the indemnifying
party will be entitled to participate therein and to assume the defense thereof,
jointly with any other indemnifying party similarly notified, to the extent that
it may wish, with counsel reasonably satisfactory to such indemnified party, and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party for any legal or other expenses subsequently
incurred by the latter in connection with the defense thereof except for the
reasonable fees and expenses of any counsel retained by such indemnified party
to monitor such action or proceeding. Notwithstanding the foregoing, if such
indemnified party reasonably determines, based upon advice of independent
counsel, that a conflict of interest may exist between the indemnified party and
the indemnifying party with respect to such action and that it is advisable for
such indemnified party to be represented by separate counsel, such indemnified
party may retain other counsel, reasonably satisfactory to the indemnifying
party, to represent such indemnified party, and the indemnifying party shall pay
all reasonable fees and expenses of such counsel. No indemnifying party, in the
defense of any such claim or litigation, shall, except with the consent of such
indemnified party, which consent shall not be unreasonably withheld, consent to
entry of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect of such claim or
litigation.
9.4. OTHER INDEMNIFICATION. Indemnification similar to that
specified in the preceding paragraphs of this Section 9 (with appropriate
modifications) shall be given by the Company and each seller of Registrable
Securities with respect to any required registration (other than under the
Securities Act) or other qualification of such Registrable Securities under any
federal or state law or regulation of any governmental authority.
9.5. INDEMNIFICATION PAYMENTS. Any indemnification required to
be made by an indemnifying party pursuant to this Section 9 shall be made by
periodic payments to the indemnified party during the course of the action or
proceeding, as and when bills are received by such indemnifying party with
respect to an indemnifiable loss, claim, damage, liability or expense incurred
by such indemnified party.
16
9.6. OTHER REMEDIES. If for any reason the foregoing indemnity
is unavailable, or is insufficient to hold harmless an indemnified party, other
than by reason of the exceptions provided therein, then the indemnifying party
shall contribute to the amount paid or payable by the indemnified party as a
result of such losses, claims, damages, liabilities, actions, investigations,
proceedings or expenses in such proportion as is appropriate to reflect the
relative benefits to and faults of the indemnifying party on the one hand and
the indemnified party on the other in connection with the offering of
Registrable Securities (taking into account the portion of the proceeds of the
offering realized by each such party) and the statements or omissions or alleged
statements or omissions which resulted in such loss, claim, damage, liability,
action, investigation, proceeding or expense, as well as any other relevant
equitable considerations. The relative fault of the indemnifying party and of
the indemnified party shall be determined by reference to, among other things,
whether the untrue statement of a material fact or the omission to state a
material fact relates to information supplied by the indemnifying party or by
the indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statements or omissions.
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. No party shall be
liable for contribution under this Section 9.6 except to the extent and under
such circumstances as such party would have been liable for indemnification
under this Section 9 if such indemnification were enforceable under applicable
law.
10. REPRESENTATIONS AND WARRANTIES. Each Stockholder
represents and warrants to the Company and each other Stockholder that:
(i) such Stockholder has the power, authority and capacity
(or, in the case of any Stockholder that is a corporation, limited liability
company or limited partnership, all corporate, limited liability company or
limited partnership power and authority, as the case may be) to execute, deliver
and perform this Agreement;
(ii) in the case of a Stockholder that is a corporation,
limited liability company or limited partnership, the execution, delivery and
performance of this Agreement by such Stockholder has been duly and validly
authorized and approved by all necessary corporate, limited liability company or
limited partnership action, as the case may be;
(iii) this Agreement has been duly and validly executed and
delivered by such Stockholder and constitutes a valid and legally binding
obligation of such Stockholder, enforceable in accordance with its terms,
subject to bankruptcy,
17
insolvency, reorganization, moratorium or other similar laws affecting or
relating to creditors' rights generally and general principles of equity; and
(iv) the execution, delivery and performance of this Agreement
by such Stockholder does not and will not violate the terms of or result in the
acceleration of any obligation under (A) any material contract, commitment or
other material instrument to which such Stockholder is a party or by which such
Stockholder is bound or (B) in the case of a Stockholder that is a corporation,
limited liability company or limited partnership, the certificate of
incorporation, certificate of formation, certificate of limited partnership,
by-laws, limited liability company agreement or limited partnership agreement,
as the case may be.
11. DEFINITIONS. For purposes of this Agreement, the following
terms shall have the following respective meanings:
AFFILIATE: a Person that directly, or indirectly through one
or more intermediaries, controls, or is controlled by, or is under common
control with, the Person specified, including immediate family members of
natural persons, partners in a partnership and members of a limited liability
company.
BOARD: the board of directors of the Company.
COMMISSION: the Securities and Exchange Commission.
COMMON STOCK: the Class A Common Stock of the Company, par
value $.01 per share.
CONVERSION DATE: As defined in the Stockholders' Agreement.
EXCHANGE ACT: the Securities Exchange Act of 1934, as amended,
or any successor federal statute, and the rules and regulations thereunder which
shall be in effect at the time.
IPO: As defined in the Stockholders' Agreement.
XXXXX HOLDERS: As defined in the Stockholders' Agreement.
MAJORITY HOLDERS: the holders of at least 51% of the
Registrable Securities.
18
NASD: National Association of Securities Dealers, Inc.
NASDAQ: the Nasdaq National Market.
PERMITTED TRANSFEREE: as defined in Section 12.2.
PERSON: an individual, corporation, partnership, limited
liability company, joint venture, association, trust or other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
REGISTRABLE SECURITIES: the shares of Common Stock
beneficially owned (within the meaning of Rule 13d-3 of the Exchange Act) by
Xxxxx, the Xxxxx Holders, THL, the THL Holders, the Other Investors, the
Management Stockholders or the Permitted Transferees. As to any particular
shares of Common Stock, such securities shall cease to be Registrable Securities
when (I) a registration statement with respect to the sale of such securities
shall have become effective under the Securities Act and such securities shall
have been disposed of in accordance with such registration statement, (II) in
the case of Management Stockholders who hold options to purchase shares of
Common Stock, a registration statement on Form S-8 with respect to the sale of
the shares of Common Stock into which such options are exercisable shall have
become effective under the Securities Act, (III) they shall have been sold to
the public pursuant to Rule 144 under the Securities Act, (IV) they shall have
been otherwise transferred other than to a Permitted Transferee, Xxxxx Holder or
THL Holder and subsequent disposition of them shall not require registration
under the Securities Act or an exemption therefrom or any similar state law then
in force or (V) they shall have ceased to be outstanding. In the event that any
action is required hereunder prior to the Conversion Date, the shares of the
Company's Class B Non-Voting Common Stock, par value $.01 per share, and the
Company's Series D Non-Voting Convertible Preferred Stock, par value $.01 per
share, held by Xxxxx and THL will be treated on an as-converted basis.
REGISTRATION EXPENSES: all expenses incident to the Company's
performance of or compliance with any registration pursuant to this Agreement,
including, without limitation, (I) registration, filing and NASD fees, (II) fees
and expenses of complying with securities or blue sky laws, (III) fees and
expenses associated with listing securities on an exchange or NASDAQ, (IV) word
processing, duplicating and printing expenses, (V) messenger and delivery
expenses, (VI) transfer agents', trustees', depositories', registrars' and
fiscal agents' fees, (VII) fees and disbursements of counsel for the Company and
of its independent public accountants, including the expenses of any special
audits or "cold comfort" letters, (VIII) reasonable
19
fees and disbursements of any one counsel retained by the sellers of Registrable
Securities, which counsel shall be designated in the manner specified in Section
3(c) and (IX) any fees and disbursements of underwriters customarily paid by
issuers or sellers of securities, but excluding underwriting discounts and
commissions and transfer taxes, if any.
SECURITIES ACT: the Securities Act of 1933, as amended, or any
successor federal statute, and the rules and regulations thereunder which shall
be in effect at the time.
SHARES: As defined in the Stockholders' Agreement.
STOCKHOLDERS' AGREEMENT: the Stockholders' Agreement, dated as
of the date hereof, as the same may be amended from time to time, among the
Company, THL, KIA V, KEP V, the Other Investors and the Management Stockholders.
12. MISCELLANEOUS.
12.1. RULE 144, ETC. If the Company shall have filed a
registration statement pursuant to the requirements of Section 12 of the
Exchange Act or a registration statement pursuant to the requirements of the
Securities Act relating to any class of equity securities, the Company will file
the reports required to be filed by it under the Securities Act and the Exchange
Act and the rules and regulations adopted by the Commission thereunder, and will
take such further action as any holder of Registrable Securities may reasonably
request, all to the extent required from time to time to enable such holder to
sell Registrable Securities without registration under the Securities Act within
the limitation of the exemptions provided by (A) Rule 144 under the Securities
Act, as such rule may be amended from time to time, or (B) any successor rule or
regulation hereafter adopted by the Commission. Upon the request of any holder
of Registrable Securities, the Company will deliver to such holder a written
statement as to whether it has complied with such requirements.
12.2. SUCCESSORS, ASSIGNS AND TRANSFEREES. This Agreement
shall be binding upon and insure to the benefit of the parties hereto and their
respective successors and permitted assigns under this Section 12.2. Provided
that an express assignment shall have been made, and the assignee has executed a
joinder agreement agreeing to be bound by all of the assignor's obligations
hereunder, including, without limitation, Section 5 hereof, copies of which
shall have been delivered to the Company, the provisions of this Agreement which
are for the benefit of a holder of Registrable Securities shall be for the
benefit of and enforceable by any subsequent holder of any
20
Registrable Securities, PROVIDED that such transferee acquires such Registrable
Securities in accordance with the terms of the Stockholders' Agreement
("PERMITTED TRANSFEREES"). Notwithstanding anything herein to the contrary, (A)
the Management Stockholders must exercise all rights hereunder on behalf of any
of their Permitted Transferees and all other parties hereto shall be entitled to
deal exclusively with the Management Stockholders and rely on the consent,
waiver or any other action by the Management Stockholders as the consent, waiver
or other action, as the case may be, of any such Permitted Transferees of such
Management Stockholders and (B) THL shall be entitled to and must exercise all
rights hereunder on behalf of any of the THL Related Parties or the THL Holders,
and Xxxxx shall be entitled to and must exercise all rights hereunder on behalf
of any of the Xxxxx Holders, and all other parties hereto shall be entitled to
deal exclusively with THL or Xxxxx, as applicable, and rely on the consent,
waiver or any other action by THL or Xxxxx, as applicable, as the consent,
waiver or other action, as the case may be, of the THL Related Parties, the THL
Holders and the Xxxxx Holders.
12.3. STOCK SPLITS. Each holder of Registrable Securities
agrees that it will vote to effect a stock split, reverse stock split,
recapitalization or combination with respect to any Registrable Securities in
connection with any registration of any Registrable Securities hereunder, or
otherwise, if the managing underwriter shall advise the Company in writing (or,
in connection with an offering that is not underwritten, if an investment banker
shall advise the Company in writing) that in its opinion such a stock split,
reverse stock split, recapitalization or combination would facilitate or
increase the likelihood of success of the offering. The Company shall cooperate
in all respects in effecting any such stock split, reverse stock split,
recapitalization or combination.
12.4. AMENDMENT AND MODIFICATION. This Agreement may be
amended, modified or supplemented by the Company with the written consent of the
Investor Stockholders and a majority (by number of shares) of any other holders
of Registrable Securities whose interests would be adversely affected by such
amendment.
12.5. ADDITIONAL MANAGEMENT STOCKHOLDERS. Notwithstanding
anything in this Agreement to the contrary, the Company may, with only the
consent of the Investor Stockholders, admit additional Management Stockholders
to this Agreement and amend Schedule 1 accordingly, provided that (A) any such
Management Stockholder(s) holds Registrable Securities, (B) has become a party
to the Stockholders' Agreement (to extent the Stockholders' Agreement is still
in effect) and (C) has executed and delivered a joinder agreement and such other
agreements or documents as may reasonably be requested by the Company.
21
12.6. GOVERNING LAW. This Agreement and the rights and
obligations of the parties hereunder and the persons subject hereto shall be
governed by, and construed and interpreted in accordance with, the law of the
State of Delaware, without giving effect to the choice of law principles
thereof.
12.7. INVALIDITY OF PROVISION. The invalidity or
unenforceability of any provision of this Agreement in any jurisdiction shall
not affect the validity or enforceability of the remainder of this Agreement in
that jurisdiction or the validity or enforceability of this Agreement, including
that provision, in any other jurisdiction.
12.8. NOTICES. All notices, requests, demands, letters,
waivers and other communications required or permitted to be given under this
Agreement shall be in writing and shall be deemed to have been duly given if (A)
delivered personally, (B) mailed, certified or registered mail with postage
prepaid, (C) sent by next-day or overnight mail or delivery or (D) sent by fax,
as follows:
(i) If to the Company, to it at:
MJD Communications, Inc.
000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xx. Xxxxxx X. Xxxxx, Xx.
with a copy to:
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxx X. Xxxxxx, Esq.
and a copy to Xxxxx at its address set forth in (vi) below and
a copy to THL at its address set forth in (vii) below.
(ii) If to a Management Stockholder, as provided on Schedule 1.
(iii) If to XXX, Xxxx Xxxxxxxxx, Xxxxxxx Xxxxxxxxx or Xxxxx Xxxxx
Xxxxxxxxx, to such party c/x Xxxxxxxxx at his address set
forth in (iv) below.
22
(iv) If to Bergstein, to him at:
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxx
(v) If to Xxxxx Xxxxxxxx, to him at:
Interquest, Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
Fax: (000) 000-0000
Attention: Xxxxx Xxxxxxxx
(vi) If to Xxxxx, to it at:
Xxxxx & Company
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: 000-000-0000
Attention: Xxxxx X. Xxxxxxx, XX, Esq.
General Counsel
(vii) If to THL, to it at:
Xxxxxx X. Xxx Partners, L.P.
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Fax: 000-000-0000
Attention: Xxxxxxx X. XxXxxx
Xxxx X. Xxxxxx
with a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, P.C.
23
or to such other person or address as any party shall specify by notice in
writing to the Company. All such notices, requests, demands, letters, waivers
and other communications shall be deemed to have been received (W) if by
personal delivery on the day after such delivery, (X) if by certified or
registered mail, on the fifth business day after the mailing thereof, (Y) if by
next-day or overnight mail or delivery, on the day delivered or (Z) if by fax,
on the next day following the day on which such fax was sent, provided that a
copy is also sent by certified or registered mail.
12.9. HEADINGS; EXECUTION IN COUNTERPARTS. The headings and
captions contained herein are for convenience and shall not control or affect
the meaning or construction of any provision hereof. This Agreement may be
executed in any number of counterparts, each of which shall be deemed to be an
original and which together shall constitute one and the same instrument.
12.10. INJUNCTIVE RELIEF. Each of the parties recognizes and
agrees that money damages may be insufficient and, therefore, in the event of a
breach of any provision of this Agreement the aggrieved party may elect to
institute and prosecute proceedings in any court of competent jurisdiction to
enforce specific performance or to enjoin the continuing breach of this
Agreement. Such remedies shall, however, be cumulative and not exclusive, and
shall be in addition to any other remedy which such party may have.
12.11. TERM. This Agreement shall be effective as of the date
hereof and shall continue in effect thereafter until the earlier of (A) its
termination by the consent of the parties hereto or their respective successors
in interest and (B) the date on which no Registrable Securities remain
outstanding.
12.12. FURTHER ASSURANCES. Subject to the specific terms of
this Agreement, each of the Company and the Stockholders shall make, execute,
acknowledge and deliver such other instruments and documents, and take all such
other actions, as may be reasonably required in order to effectuate the purposes
of this Agreement and to consummate the transactions contemplated hereby.
12.13. ENTIRE AGREEMENT. This Agreement, together with the
Stockholders' Agreement, is intended by the parties hereto as a final expression
of their agreement and intended to be a complete and exclusive statement of
their agreement and understanding in respect of the subject matter contained
herein. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
24
IN WITNESS WHEREOF this Agreement has been signed by each of
the parties hereto, and shall be effective as of the date first above written.
MJD COMMUNICATIONS, INC.
By: /s/ Xxxxxx X. Xxxxx, Xx.
-------------------------------
Name:
Title:
XXXXX INVESTMENT ASSOCIATES V, L.P.
By: Xxxxx Partners V, L.P.,
its general partner
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: General Partner
XXXXX EQUITY PARTNERS V, L.P.
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: General Partner
XXXXXX X. XXX EQUITY FUND IV, L.P.
By: THL Equity Advisors IV, LLC,
its general partner
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Name:
Title:
[Signature Page to Registration Rights Agreement]
XXX COMMUNICATIONS ASSOCIATES, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------
Name:
Title:
/s/ Xxxxxx X. Xxxxxxxxx
-------------------------------
Xxxxxx X. Xxxxxxxxx
/s/ Xxxx Xxxxxxxxx
-------------------------------
Xxxx Xxxxxxxxx
/s/ Xxxxxxx Xxxxxxxxx
-------------------------------
Xxxxxxx Xxxxxxxxx
/s/ Xxxxx Xxxxx Xxxxxxxxx
-------------------------------
Xxxxx Xxxxx Xxxxxxxxx
/s/ Xxxxx Xxxxxxxx
-------------------------------
Xxxxx Xxxxxxxx
/s/ Xxxx X. Xxxx
-------------------------------
Xxxx X. Xxxx
/s/ Xxxx X. Xxxx
-------------------------------
Xxxx X. Xxxx
/s/ Xxxxxx X. Xxxxxxx
-------------------------------
Xxxxxx X. Xxxxxxx
[Signature Page to Registration Rights Agreement]
/s/ Xxxxxx X. Xxxxx, Xx.
-------------------------------
Xxxxxx X. Xxxxx, Xx.
/s/ Xxxxx X. Xxxxx
-------------------------------
Xxxxx X. Xxxxx
/s/ Xxxxxxx X. Xxxxx
-------------------------------
Xxxxxxx X. Xxxxx
/s/ Xxxx X. Xxxxxx
-------------------------------
Xxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxx
-------------------------------
Xxx Xxxxx
/s/ Xxx Xxxxx
-------------------------------
Xxx Xxxxx
/s/ Xxx Xxxx
-------------------------------
Xxx Xxxx
XXXXXX X. XXX FOREIGN FUND IV, L.P.
By: THL Equity Advisors IV, LLC,
its general partner
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Name:
Title:
[Signature Page to Registration Rights Agreement]
XXXXXX X. XXX FOREIGN FUND IV-B, L.P.
By: THL Equity Advisors IV, LLC,
its general partner
By: /s/ X. Xxxxxx Xxxx
-------------------------------
Name:
Title:
1987 XXXXXX X. XXX NOMINEE TRUST
By: /s/ Xxxxxx X. Xxx
-------------------------------
Trustee:
/s/ Xxxxx X. Xxxxxxx
-----------------------------------
Xxxxx X. Xxxxxxx
THE HARKINS 1995 GIFT TRUST
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Trustee: Xxxxxxx X. Xxxxxxx
Trustee
/s/ Xxxxx X. Xxxxxx
-----------------------------------
Xxxxx X. Xxxxxx
/s/ X. Xxxxxx Xxxx
-----------------------------------
X. Xxxxxx Xxxx
/s/ Xxxxx X. Xxxxxxxx
-----------------------------------
Xxxxx X. Xxxxxxxx
[Signature Page to Registration Rights Agreement]
/s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Xxxxxxx X. XxXxxx
/s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxxx, Xx.
-----------------------------------
Xxxxxx X. Xxxxx, Xx.
/s/ Xxxx X. Xxxxx
-----------------------------------
Xxxx X. Xxxxx
/s/ Xxxx X. Xxxxxx
-----------------------------------
Xxxx X. Xxxxxx
/s/ Xxxxxxxx X. Xxxxxx
-----------------------------------
Xxxxxxxx X. Xxxxxx
/s/ Xxxx X. Xxxxxxxx
-----------------------------------
Xxxx X. Xxxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxxxx Xxxxxxx
-----------------------------------
Xxxxx Xxxxxxx
/s/ Xxxxx Xxxxx
-----------------------------------
Xxxxx Xxxxx
/s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxxx
[Signature Page to Registration Rights Agreement]
/s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxxxx
/s/ Xxxxx X. Xxxxxx
---------------------------------
Xxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxx
XXXXXX XXXXXX XXX 1988 IRREVOCABLE
TRUST
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------
Trustee:
/s/ Xxxxxxx Xxxxxxx Xxx
---------------------------------
Xxxxxxx Xxxxxxx Xxx
/s/ Xxxxxxx X. Xxxxxx
---------------------------------
Xxxxxxx X. Xxxxxx as Custodian
for Xxxxx Xxx
/s/ Xxxxxxx X. Xxxxxx
---------------------------------
Xxxxxxx X. Xxxxxx as Custodian
for Xxxxxx Xxx
/s/ Xxxxxxx X. Xxxxxx
---------------------------------
Xxxxxxx X. Xxxxxx
/s/ Xxxxx Xxxxxx
---------------------------------
Xxxxx Xxxxxx
[Signature Page to Registration Rights Agreement]
XXXXXX X. XXX CHARITABLE
INVESTMENT L.P.
By: Xxxxxx X. Xxx,
its general partner
By: /s/ Xxxxxx X. Xxx
---------------------------------
Name:
Title:
THL-CCI INVESTORS LIMITED PARTNERSHIP
By: THL Investment Management Corp.,
its general partner
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name:
Title:
XXXXXX INVESTMENTS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
---------------------------------
Name:
Title:
[Signature Page to Registration Rights Agreement]
SCHEDULE A
THL Related Parties
Xxxxxx X. Xxx Foreign Fund IV, L.P.
Xxxxxx X. Xxx Foreign Fund IV-B, L.P.
1987 Xxxxxx X. Xxx Nominee Trust
Xxxxx X. Xxxxxxx
The Xxxxxxx 1995 Gift Trust
Xxxxx X. Xxxxxx
X. Xxxxxx Xxxx
Xxxxx X. Xxxxxxxx
Xxxxxxx X. XxXxxx
Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxx, Xx.
Xxxx X. Xxxxx
Xxxx X. Xxxxxx
Xxxxxxxx X. Xxxxxx
Xxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxx Xxxxxxx
Xxxxx Xxxxx
Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxxx
Xxxxxx X. Xxxxxxx
Xxxxxx Xxxxxx Xxx 1988 Irrevocable Trust
Xxxxxxx Xxxxxxx Xxx
Xxxxxxx X. Xxxxxx as Custodian for Xxxxx Xxx
Xxxxxxx X. Xxxxxx as Custodian for Xxxxxx Xxx
Xxxxxxx X. Xxxxxx
Xxxxx Xxxxxx
Xxxxxx X. Xxx Charitable Investment L.P.
THL-CCI Investors Limited Partnership
Xxxxxx Investments, Inc.
SCHEDULE B
Management Stockholders
Xxxx X. Xxxx
0000 X. Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Fax:
Xxxx X. Xxxx
X.X. Xxx 000
Xxxxxxx, XX 00000
Fax:
Xxxxxx X. Xxxxxxx
[Address]
Fax:
Xxxxxx X. Xxxxx, Xx.
0000 Xxxxxx Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Fax:
Xxxxx X. Xxxxx
X.X. Xxx 000
Xxxxxxxxx, XX 00000
Fax:
Xxxxxxx X. Xxxxx
0000 Xxxxxxx
Xxxxx Xxxx, XX 00000
Fax:
Xxxx X. Xxxxxx
[Address]
Fax:
Xxx Xxxxx
[Address]
Fax:
Xxx Xxxxx
[Address]
Fax:
Xxx Xxxx
[Address]
Fax:
