This excerpt taken from the SBN 8-K filed Aug 23, 2005.
Section 1.1 Certain
Definitions. As used in this Agreement,
the following terms shall have the following respective meanings:
ABRY Registrable Securities means any
shares of Common Stock issued or issuable to ABRY, including shares of Common
Stock issuable upon exercise of the Series C Warrants or upon conversion
of the Series C Shares issued pursuant to the Purchase Agreement.
Affiliate of any
particular Person means any other Person controlling, controlled by or under
common control with such particular Person and with respect to any Person that
is an investment fund, the term Affiliate shall also include any investment
fund now or hereafter existing which is controlled by or under common control
with one or more general partners of such Person, where control means the
possession, directly or indirectly, of the power to direct the management and
policies of a Person whether through the ownership of voting securities,
contract or otherwise.
the United States Securities and Exchange Commission, or any other federal
agency at the time administering the Securities Act.
means (i) the Companys Common Stock, par value $0.01 per share, as
authorized on the date of this Agreement, (ii) any other capital stock of
any class or classes (however designated) of the Company, authorized on or
after the date hereof, the holders of which shall have the right, without
limitation as to amount per share, either to all or to a share of the balance
of current dividends and liquidating distributions after the payment of
dividends and distributions on any shares entitled to preference in the payment
thereof, and the holders of which shall ordinarily, in the absence of
contingencies, be entitled to vote for the election of a majority of directors
of the Company (even though the right so to vote has been suspended by the
happening of such a contingency), and (iii) any other securities into
which or for which any of the securities described in (i) or (ii) above
may be converted or exchanged pursuant to a plan of recapitalization, reorganization,
merger, sale of assets or otherwise.
Agreement means that certain Senior Subordinated Secured Note and Warrant
Purchase Agreement, by and between the Company and Capital Resource Partners
IV, L.P. dated November 26, 2002 and amended on September 30, 2003, August 18,
2004 and September 30, 2004.
Securities means the shares of Common Stock issuable (i) pursuant to
the CRP Warrants (ii) upon conversion of the Series B Shares issued
to CRP pursuant to the CRP Purchase Agreement and (iii) upon conversion of
the Series C Shares issued to CRP pursuant to the Purchase Agreement.
means those certain warrants to purchase shares of Common Stock issued to CRP
pursuant to the CRP Purchase Agreement and the Purchase Agreement.
means (a) any capital stock or other equity security, or ownership
interests (including limited liability company, partnership and joint venture
interests), (b) any security directly or indirectly convertible into or
exchangeable for any capital shares or other equity security or security
containing any profit participation features, (c) any warrants, options or
other rights, directly or indirectly, to subscribe for or to purchase any
capital shares, other equity security or security containing any profit
participation features or directly or indirectly to subscribe for or to
purchase any security directly or indirectly convertible into or
any capital shares or other equity security or security containing profit
participation features or (d) any share appreciation rights, phantom share
rights or other similar rights.
means the Securities Exchange Act of 1934, as amended, or any similar federal
statute, and the rules and regulations of the Commission promulgated
thereunder, all as the same shall be in effect at the time.
Majority ABRY Holders
means, at any time, the holders of a majority of the ABRY Registrable
Securities outstanding at such time.
Majority CRP Holders
means, at any time, the holders of a majority of the CRP Registrable Securities
outstanding at such time.
Person means an
individual, a corporation, a partnership, limited liability company, a joint
venture, a trust, an unincorporated organization, a government and any agency
or political subdivision thereof.
Securities means, collectively, the CRP Registrable Securities and the
ABRY Registrable Securities. As to any
particular Registrable Securities, such securities shall cease to be
Registrable Securities when they have been (i) distributed to the public
pursuant to an offering registered under the Securities Act, (ii) sold to
the public through a broker, dealer or market maker in compliance with Rule 144,
or (iii) repurchased by the Company.
For purposes of this Agreement, a Person shall be deemed to be a holder
of Registrable Securities, and the Registrable Securities shall be deemed to be
in existence, whenever such Person has the right to acquire directly or
indirectly such Registrable Securities (upon conversion or exercise in
connection with a transfer of securities or otherwise, but disregarding any
restrictions or limitations upon the exercise of such right), whether or not
such acquisition has actually been effected, and such Person shall be entitled
to exercise the rights of a holder of Registrable Securities hereunder.
means the expenses so described in Section 2.4.
means the Securities Act of 1933, as amended, or any similar federal statute,
and the rules and regulations of the Commission promulgated thereunder,
all as the same shall be in effect at the time.
Series B Shares
means the Series B Convertible Preferred Stock, $0.01 par value per share,
of the Company.