EXHIBIT 4.13
JORDAN TELECOMMUNICATION PRODUCTS, INC.
$25,000,000 13 1/4% Series A Senior Exchangeable Preferred Stock due 2009
REGISTRATION RIGHTS AGREEMENT
-----------------------------
July 25, 1997
XXXXXXXXX & COMPANY, INC.
00000 Xxxxx Xxxxxx Xxxxxxxxx
00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
JORDAN TELECOMMUNICATION PRODUCTS, INC., a Delaware corporation (the
"Company"), is issuing and selling to Xxxxxxxxx & Company, Inc. (the
"Purchaser") upon the terms set forth in a purchase agreement, dated as of July
21, 1997 (the "Purchase Agreement"), $25,000,000 aggregate liquidation
preference of its 13 1/4% Series A Senior Exchangeable Preferred Stock due 2009
(the "Preferred Stock"). As an inducement to the Purchaser to enter into the
Purchase Agreement, the Company agrees with the Purchaser, for the benefit of
the holders of the Securities (defined below) (including, without limitation,
the Purchaser), as follows:
1. Definitions
Capitalized terms used herein without definition shall have their
respective meanings set forth in the Purchase Agreement. As used in this
Agreement, the following terms shall have the following meanings:
Advice: See Section 6.
Agreement: This Registration Rights Agreement.
Applicable Period: See Section 2.
Business Days: Any day other than (i) Saturday or Sunday, or (ii) a
day on which banking institutions in the State of New York are authorized or
obligated by law or executive order to be closed.
Certificate of Designation: The Certificate of Designation of the
Powers, Preferences and Relative, Participating, Optional and other Special
Rights of the Preferred Stock and Qualification, Limitations and Restrictions
thereof filed by the Company with the Secretary of State of the State of
Delaware on July 24, 1997.
Closing Date: July 25, 1997.
Effectiveness Date: The 120th day following the Closing Date.
Effectiveness Period: See Section 3.
Event Date: See Section 4.
Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated thereunder.
Exchange Offer: See Section 2.
Exchange Offer Registration Statement: See Section 2.
Exchange Securities: 13 1/4% Series B Senior Exchangeable Preferred
Stock due 2009 of the Company identical in all material respects to the
Preferred Stock, except for references to series and restrictive legends and, if
the Company shall issue any of its Subordinated Exchange Notes, 13 1/4% Series B
Subordinated Preferred Stock Exchange Notes due 2009 of the Company identical in
all material respects to the Subordinated Exchange Notes, except for references
to series and restrictive legends.
Filing Date: The 60th day following the Closing Date.
Holder: Each holder of Registrable Securities.
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indemnified party: See Section 8.
indemnifying parties: See Section 8.
Initial Shelf Registration: See Section 3.
Losses: See Section 8.
NASD: The National Association of Securities Dealers, Inc.
Participating Broker-Dealer: See Section 2.
Person: An individual, trustee, corporation, partnership, joint stock
company, joint venture, trust, unincorporated organization or government or any
agency or political subdivision thereof, union, business association, firm or
other entity.
Private Exchange: See Section 2.
Private Exchange Securities: See Section 2.
Prospectus: The prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Securities covered by such Registration
Statement, and all other amendments and supplements to the Prospectus, including
post-effective amendments, and all material incorporated by reference or deemed
to be incorporated by reference in such Prospectus.
Registrable Securities: The (i) Preferred Stock, (ii) Private
Exchange Securities and (iii) Exchange Securities received in the Exchange Offer
that may not be sold without restriction under federal or state securities law;
provided, that if the Company shall issue any of its 13 1/4% Subordinated
Preferred Stock Exchange Notes (the "Subordinated Exchange Notes") for any
shares of Preferred Stock, such Subordinated Exchange Notes shall be Registrable
Securities hereunder.
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Registrar and Transfer Agent: The Registrar and Transfer Agent with
respect to the Preferred Stock, which initially shall be Xxxxxx Trust and
Savings Bank.
Registration Statement: Any registration statement of the Company that
covers any of the Securities pursuant to the provisions of this Agreement,
including the Prospectus, amendments and supplements to such registration
statement, including post-effective amendments, all exhibits, and all material
incorporated by reference or deemed to be incorporated by reference in such
registration statement.
Rule 144: Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule (other than Rule 144A) or
regulation hereafter adopted by the SEC.
Rule 144A: Rule 144A under the Securities Act, as such Rule may be
amended from time to time, or any similar rule (other than Rule 144) or
regulation hereafter adopted by the SEC.
Rule 415: Rule 415 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
SEC: The Securities and Exchange Commission.
Securities: The Preferred Stock, the Subordinated Exchange Notes, the
Private Exchange Securities and the Exchange Securities, collectively.
Securities Act: The Securities Act of 1933, as amended, and the rules
and regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2.
Shelf Registration: The Initial Shelf Registration and any Subsequent
Shelf Registration.
Special Counsel: Counsel chosen by the holders of a majority in
aggregate liquidation preference of Securities (or, in the case of the
Subordinated Exchange Notes, principal amount).
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Subsequent Shelf Registration: See Section 3.
Underwritten Registration or Underwritten Offering: A registration in
which securities of the Company are sold to an underwriter for reoffering to the
public.
Weekly Liquidated Damages Amount: See Section 4.
2. Exchange Offer
(a) The Company shall (i) prepare and file with the SEC promptly
after the date hereof, but in no event later than the Filing Date, a
registration statement (the "Exchange Offer Registration Statement") on an
appropriate form under the Securities Act with respect to a proposed offer (the
"Exchange Offer") to the Holders to issue and deliver to such Holders, in
exchange for the shares of Preferred Stock, a like aggregate liquidation
preference of Exchange Securities, (ii) use its best efforts to cause the
Exchange Offer Registration Statement to become effective as promptly as
practicable after the filing thereof, but in no event later than the
Effectiveness Date, (iii) use its best efforts to keep the Exchange Offer
Registration Statement effective until the consummation of the Exchange Offer
pursuant to its terms, and (iv) unless the Exchange Offer would not be permitted
by a policy of the SEC, commence the Exchange Offer and use its best efforts to
issue, on or prior to 30 business days after the date on which the Exchange
Offer Registration Statement is declared effective, Exchange Securities in
exchange for all shares of Preferred Stock tendered prior thereto pursuant to
the Exchange Offer. The Exchange Offer shall not be subject to any conditions,
other than that the Exchange Offer does not violate Applicable Law or any
applicable interpretation of the staff of the SEC.
(b) The Exchange Securities shall be issued under, and entitled to
the benefits of, the Certificate of Designation.
(c) In connection with the Exchange Offer, the Company shall:
(i) mail to each Holder a copy of the Prospectus forming part of
the Exchange Offer Registration Statement, together with an appropriate letter
of transmittal that is an exhibit thereto and related documents;
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(ii) use its best efforts to keep the Exchange Offer open for
not less than 20 Business Days after the date notice thereof is mailed to the
Holders (or longer if required by applicable law);
(iii) utilize the services of a depository for the Exchange Offer
with an address in the Borough of Manhattan, The City of New York;
(iv) permit Holders to withdraw tendered shares of Preferred
Stock at any time prior to 12:00 midnight, New York time, on the last Business
Day on which the Exchange Offer shall remain open; and
(v) otherwise comply in all material respects with all laws
applicable to the Exchange Offer.
(d) As soon as practicable after the close of the Exchange Offer, the
Company shall:
(i) accept for exchange all shares of Preferred Stock validly
tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) deliver to the Registrar and Transfer Agent for
cancellation all shares of Preferred Stock so accepted for exchange; and
(iii) use its best efforts to cause the Registrar and Transfer
Agent promptly to countersign and deliver to each Holder of shares of Preferred
Stock, Exchange Securities equal in aggregate liquidation preference to the
shares of Preferred Stock of such Holder so accepted for exchange.
(e) Dividends on each Exchange Security and Private Exchange Security
will accrue from the last dividend payment date on which dividends were paid on
the shares of Preferred Stock surrendered in exchange therefor or, if no
dividends have been paid on the shares Preferred Stock, from the date of
original issue of the shares of Preferred Stock. Each Exchange Security and
Private Ex change Security shall accrue dividends at the rate set forth thereon;
provided that dividends with respect to the period prior to the issuance thereof
shall accrue at the rate or rates borne by the shares of Preferred Stock from
time to time during such period.
(f) The Company shall include within the Prospectus contained in the
Exchange Offer Registration Statement a section entitled "Plan of Distribu-
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tion," containing a summary statement of the positions taken or policies made by
the staff of the SEC with respect to the potential "underwriter" status of any
broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the
Exchange Act) of Exchange Securities received by such broker-dealer in the
Exchange Offer (a "Participating Broker-Dealer"). Such "Plan of Distribution"
section shall also allow the use of the Prospectus by all Persons subject to the
prospectus delivery requirements of the Securities Act, including (without
limitation) all Participating Brokers-Dealers, and include a statement
describing the means by which Participating Broker-Dealers may resell the
Exchange Securities. The Company shall use its best efforts to keep the
Exchange Offer Registration Statement effective and to amend and supplement the
Prospectus to be lawfully delivered by all Persons subject to the prospectus
delivery requirements of the Securities Act for such period of time as such
Persons must comply with such requirements in order to resell the Exchange
Securities; provided that such period shall not exceed 180 days after
consummation of the Exchange Offer (as such period may be extended pursuant to
the last paragraph of Section 6 hereof (the "Applicable Period")).
(g) If, prior to consummation of the Exchange Offer, the Purchaser
holds any Securities acquired by it and having the status as an unsold allotment
in the initial distribution, the Company shall, upon the request of the
Purchaser, simultaneously with the delivery of the Exchange Securities in the
Exchange Offer, issue (pursuant to the same Certificate of Designation as the
Exchange Securities) and deliver to the Purchaser, in exchange for the
Securities held by the Purchaser (the "Private Exchange"), a like aggregate
liquidation preference of preferred securities of the Company that are identical
to the Exchange Securities (the "Private Exchange Securities"). The Private
Exchange Securities shall bear the same CUSIP number as the Exchange Securities.
(h) The Company may require each Holder participating in the Exchange
Offer to represent to the Company that at the time of the consummation of the
Exchange Offer (i) any Exchange Securities received by such Holder in the
Exchange Offer will be acquired in the ordinary course of its business, (ii)
such Holder will have no arrangement or understanding with any Person to
participate in the distribution of the Exchange Securities within the meaning of
the Securities Act or resale of the Exchange Securities in violation of the
Securities Act, (iii) if such Holder is not a broker-dealer, that it is not
engaged in and does not intend to engage in, the distribution of the Exchange
Securities, (iv) if such Holder is a broker-dealer that will receive Exchange
Securities for its own account in exchange for shares of Preferred Stock that
were acquired as a result of market-
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making or other trading activities, that it will deliver a prospectus, as
required by law, in connection with any resale of such Exchange Securities, and
(v) if such Holder is an affiliate, that it will comply with the registration
and prospectus delivery requirements of the Securities Act applicable to it.
(i) If (i) prior to the consummation of the Exchange Offer,
either the Company or a majority of the holders of Registrable Securities deter
mines in its or their reasonable judgment that (A) the Exchange Securities would
not, upon receipt, be tradeable by the Holders thereof without restriction under
the Securities Act and the Exchange Act and without material restrictions under
applicable Blue Sky or state securities laws, or (B) the interests of the
Holders under this Agreement, taken as a whole, would be materially adversely
affected by the consummation of the Exchange Offer, (ii) applicable
interpretations of the staff of the SEC would not permit the consummation of the
Exchange Offer prior to the Effectiveness Date, (iii) subsequent to the
consummation of the Private Exchange, the Purchaser so requests, (iv) the
Exchange Offer is not consummated within 150 days of the Closing Date for any
reason or (v) in the case of any Holder not permitted to participate in the
Exchange Offer or of any Holder participating in the Exchange Offer that
receives Exchange Securities that may not be sold without restriction under
state and federal securities laws and, in either case contemplated by this
clause (v), such Holder notifies the Company within one year of the consummation
of the Exchange Offer, then the Company shall promptly deliver to the Holders
(or in the case of any occurrence of the event described in clause (v) hereof,
to any such Holder) and the Registrar and Transfer Agent notice thereof (the
"Shelf Notice") and shall file an Initial Shelf Registration pursuant to Section
3.
3. Shelf Registration
If a Shelf Notice is required to be delivered pursuant to Section
2(i)(i), (ii) or (iv), then this section shall apply to all Registrable
Securities. Otherwise, upon consummation of the Exchange Offer in accordance
with Section 2, the provisions of this section shall apply solely with respect
to (i) shares of Preferred Stock held by any Holder thereof not permitted to
participate in the Ex change Offer, (ii) shares of Preferred Stock held by the
Purchaser and (iii) Ex change Securities that are not freely tradeable as
contemplated by Section 2(i)(v) hereof.
(a) Initial Shelf Registration. The Company shall, under the
circumstances set forth in Section 2(i), prepare and file with the SEC a
Xxxxxxxx-
0
tion Statement for an offering to be made on a continuous basis pursuant to Rule
415 covering all of the Registrable Securities (the "Initial Shelf
Registration"). The Company shall use its best efforts to file the Initial Shelf
Registration within 20 days of the delivery of the Shelf Notice or as promptly
as possible following the request of the Purchaser or, if later, by the Filing
Date. The Initial Shelf Registration shall be an appropriate form permitting
registration of such Registrable Securities for resale by such Holders in the
manner or manners designated by a majority in liquidation preference of the
securities then outstanding (including, without limitation, one or more
underwritten offerings). The Company shall (i) not permit any securities other
than the Registrable Securities to be included in any Shelf Registration, and
(ii) use its best efforts to cause the Initial Shelf Registration to be declared
effective under the Securities Act as promptly as practicable after the filing
thereof and to keep the Initial Shelf Registration continuously effective under
the Securities Act until the date that is 24 months from the Effectiveness Date
(subject to extension pursuant to the last paragraph of Section 6 hereof) (the
"Effectiveness Period"), or such shorter period ending when (i) all Registrable
Securities covered by the Initial Shelf Registration have been sold or (ii) a
Subsequent Shelf Registration covering all of the Registrable Securities has
been declared effective under the Securities Act.
(b) Subsequent Shelf Registrations. If any Shelf Registration
ceases to be effective for any reason at any time during the Effectiveness
Period (other than because of the sale of all of the securities registered
thereunder), the Company shall use its reasonable best efforts to obtain the
prompt withdrawal of any order suspending the effectiveness thereof, and in any
event shall within 30 days of such cessation of effectiveness amend the Shelf
Registration in a manner reasonably expected to obtain the withdrawal of the
order suspending the effectiveness thereof, or file an additional "shelf"
Registration Statement pursuant to Rule 415 covering all of the Registrable
Securities (a "Subsequent Shelf Registration"). If a Subsequent Shelf
Registration is filed, the Company shall use its best efforts to cause the
Subsequent Shelf Registration to be declared effective as soon as practicable
after such filing and to keep such Subsequent Shelf Registration continuously
effective for a period equal to the number of days in the Effectiveness Period
less the aggregate number of days during which the Initial Shelf Registration,
and any Subsequent Shelf Registration, was previously effective.
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4. Liquidated Damages.
(a) The Company acknowledges and agrees that the Holders will
suffer damages, and that it would not be feasible to ascertain the extent of
such damages with precision, if the Company fails to fulfill its obligations
hereunder. Accordingly, in the event of such failure, the Company agrees to pay
liquidated damages to each Holder under the circumstances and to the extent set
forth below:
(i) if neither the Exchange Offer Registration Statement nor
the Initial Shelf Registration has been filed with the SEC on or prior to the
Filing Date; or
(ii) if neither the Exchange Offer Registration Statement nor
the Initial Shelf Registration is declared effective by the SEC on or prior to
the Effectiveness Date; or
(iii) if the Company has not exchanged Exchange Securities for
all shares of Preferred Stock validly tendered in accordance with the terms of
the Exchange Offer within 30 business days after the date on which an Exchange
Offer Registration Statement is declared effective by the SEC; or
(iv) if a Shelf Registration is filed and declared effective by
the SEC but thereafter ceases to be effective without being succeeded within 30
days by a Subsequent Shelf Registration filed and declared effective, other than
as a result of a change in applicable laws or a published change in SEC policy
such that the Company, using reasonable efforts, is not able to have the
Subsequent Shelf Registration declared effective;
(each of the foregoing an "Event," and the date on which the Event occurs being
referred to herein as an "Event Date").
Upon the occurrence of any Event, the Company shall pay, or cause
to be paid, in addition to amounts otherwise due under the Certificate of
Designation and the Registrable Securities, as liquidated damages, and not as a
penalty, to each Holder of a Registrable Security, an additional amount (the
"Weekly Liquidated Damages Amount") equal to (A) for each weekly period
beginning on the Event Date for the first 90-day period immediately following
such Event Date, $.05 per week per $1,000 liquidation preference of Registrable
Securities held by such Holder, and (B) for each weekly period beginning with
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the first full week after the 90-day period set forth in the foregoing clause
(A), $.10 per week per $1,000 liquidation preference of Registrable Securities
held by such Holder; provided that such liquidated damages will, in each case,
cease to accrue (subject to the occurrence of another Event) on the date on
which all Events have been cured. An Event under clause (i) above shall be cured
on the date that either the Exchange Offer Registration Statement or the Initial
Shelf Registration is filed with the SEC; an Event under clause (ii) above shall
be cured on the date that either the Exchange Offer Registration Statement or
the Initial Shelf Registration is declared effective by the SEC; an Event under
clause (iii) above shall be cured on the earlier of the date (A) the Exchange
Offer is consummated with respect to all shares of Preferred Stock validly
tendered or (B) the Company delivers a Shelf Notice to the Holders; and an Event
under clause (iv) above shall be cured on the earlier of (A) the date on which
the applicable Shelf Registration is no longer subject to an order suspending
the effectiveness thereof or proceedings relating thereto or (B) a new
Subsequent Shelf Registration is declared effective.
(b) The Company shall notify the Registrar and Transfer Agent
within five Business Days after each Event Date. The Company shall pay the
liquidated damages due on the Registrable Securities by depositing with the
Registrar and Transfer Agent, in trust, for the benefit of the Holders thereof,
by 12:00 noon, New York City time, on or before the applicable quarterly
dividend payment date for the Registrable Securities, immediately available
funds in sums sufficient to pay the liquidated damages then due. The liquidated
damages amount due shall be payable on each dividend payment date to the record
Holder of Registrable Securities entitled to receive the dividend payment to be
made on such date as set forth in the Certificate of Designation.
5. [Intentionally left blank]
6. Registration Procedures
In connection with the registration of any Securities pursuant to
Sections 2 or 3 hereof, the Company shall effect such registrations to permit
the sale of such Securities in accordance with the intended method or methods of
disposition thereof, and pursuant thereto the Company shall:
(a) Prepare and file with the SEC, as soon as practicable after
the date hereof but in any event on or prior to the Filing Date, or such later
date as is provided for in Section 3, a Registration Statement or Registration
State-
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ments as prescribed by Section 2 or 3, and use its best efforts to cause each
such Registration Statement to become effective and remain effective as provided
herein; provided, that, if (i) such filing is pursuant to Section 3 or (ii) a
Prospectus contained in an Exchange Offer Registration Statement filed pursuant
to Section 2 is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, before filing any Registration Statement or Prospectus or any
amendments or supplements thereto, the Company shall, if requested, furnish to
and afford the Holders of the Registrable Securities covered by such
Registration Statement, their Special Counsel, each Participating Broker-Dealer,
the managing underwriters, if any, and their counsel, a reasonable opportunity
to review and make available for inspection by such Persons copies of all such
documents (including copies of any documents to be incorporated by reference
therein and all exhibits thereto) proposed to be filed, such financial and other
information and books and records of the Company, and cause the officers,
directors and employees of the Company, Company counsel and independent
certified public accountants of the Company, to respond to such inquiries, as
shall be necessary, in the reasonable opinion of respective counsel to such
Holders, Participating Broker-Dealer and underwriters, to conduct a reasonable
investigation within the meaning of the Securities Act. The Company may, prior
to furnishing any such information, require each Holder, its counsel, each
Participating Broker-Dealer, the managing underwriters and their counsel to
execute a confidentiality agreement reasonably satisfactory to the Company to
keep confidential any non-public information relating to the Company received by
such person and not disclose such information (other than to an Affiliate or
prospective purchaser who agrees to respect the confidentiality provisions of
this Section 6(a)) until such information has been made generally available to
the public unless the release of such information is required by law or is
necessary to respond to inquiries of regulatory authorities (including the
National Association of Insurance Commissioners, or similar organizations or
their successors). The Company shall not file any Registration Statement or
Prospectus or any amendments or supplements thereto in respect of which the
Holders must be afforded an opportunity to review prior to the filing of such
document, if the Holders of a majority in aggregate liquidation preference of
the Registrable Securities covered by such Registration Statement, their Special
Counsel, any Participating Broker-Dealer or the managing underwriters, if any,
or their counsel shall reasonably object in writing.
(b) Provide a registrar and transfer agent for the Registrable
Securities or the Exchange Securities, as the case may be.
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(c) Prepare and file with the SEC such amendments and post-
effective amendments to the Registration Statement as may be necessary to keep
such Registration Statement continuously effective for the time periods required
hereby; cause the related Prospectus to be supplemented by any Prospectus
supplement required by Applicable Law, and as so supplemented to be filed
pursuant to Rule 424 (or any similar provisions then in force) under the
Securities Act; and comply in all material respects with the provisions of the
Securities Act and the Exchange Act applicable thereto with respect to the
disposition of all securities covered by such Registration Statement, as so
amended, or in such Prospectus, as so supplemented, in accordance with the
intended methods of distribution set forth in such Registration Statement or
Prospectus as so amended.
(d) Furnish to such selling Holders and Participating Broker-
Dealers who so request (i) upon the Company's receipt, a copy of the order of
the SEC declaring such Registration Statement and any post-effective amendment
thereto effective and (ii) such reasonable number of copies of such Registration
Statement and of each amendment and supplement thereto (in each case including
any documents incorporated therein by reference and all exhibits), (iii) such
reasonable number of copies of the Prospectus included in such Registration
Statement (including each preliminary Prospectus), and such reasonable number of
copies of the final Prospectus as filed by the Company pursuant to Rule 424(b)
under the Securities Act, in conformity with the requirements of the Securities
Act, and (iv) such other documents (including any amendments required to be
filed pursuant to clause (c) of this Section), as any such Person may reasonably
request. The Company hereby consents to the use of the Prospectus by each of the
selling Holders of Registrable Securities or each such Participating Broker-
Dealer, as the case may be, and the underwriters or agents, if any, and dealers
(if any), in connection with the offering and sale of the Registrable Securities
covered by, or the sale by Participating Broker-Dealers of the Exchange
Securities pursuant to, such Prospectus and any amendment thereto.
(e) If (A) a Shelf Registration is filed pursuant to Section 3
or (B) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, notify the selling Holders of Registrable Securities, their
Special Counsel, each Participating Broker-Dealer and the managing underwriters,
if any, promptly (but in any event within two Business Days), and confirm such
notice in writing, (i) when a Prospectus has been filed, and, with respect to a
Registration Statement or any post-effective amendment, when the same has
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become effective under the Securities Act, (ii) of the issuance by the SEC of
any stop order suspending the effectiveness of a Registration Statement or of
any order preventing or suspending the use of any Prospectus or the initiation
of any proceedings for that purpose, (iii) if, at any time when a Prospectus is
required by the Securities Act to be delivered in connection with sales of the
Registrable Securities, the representations and warranties of the Company
contained in any agreement (including any underwriting agreement) contemplated
by Section 6(n) below cease to be true and correct in any material respect, (iv)
of the receipt by the Company of any notification with respect to the suspension
of the qualification or exemption from qualification of a Registration Statement
or any of the Registrable Securities or the Exchange Securities to be sold by
any Participating Broker-Dealer for offer or sale in any jurisdiction, or the
contemplation, initiation or threatening of any proceeding for such purpose, (v)
of the happening of any event that makes any statement made in such Registration
Statement or related Prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue in any material respect or that
requires the making of any changes in such Registration Statement, Prospectus or
documents so that 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, and (vi) of the Company's reasonable determination that a
post-effective amendment to a Registration Statement would be appropriate.
(f) Use its best efforts to register or qualify, and, if
applicable, to cooperate with the selling Holders of Registrable Securities, the
underwriters, if any, and their respective counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of, Securities to be included in a Registration Statement for
offer and sale under the securities or Blue Sky laws of such jurisdictions
within the United States as any selling Holder, Participating Broker-Dealer or
the managing underwriters reasonably request in writing; and, if Securities are
offered other than through an Underwritten Offering, the Company shall cause its
counsel to perform Blue Sky investigations and file registrations and
qualifications required to be filed pursuant to this Section 6(f) at the expense
of the Company; keep each such registration or qualification (or exemption
therefrom) effective during the period such Registration Statement is required
to be kept effective and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of the Securities
covered by the applicable Registration Statement, provided, however, that the
Company shall not be required to (i) qualify generally to do business in any
jurisdiction where it is not then so qualified, (ii) take action that would
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subject it to general service of process in any jurisdiction where it is not so
subject or (iii) subject it to taxation in excess of a nominal dollar amount in
any such jurisdiction where it is not then subject.
(g) Use its best efforts to prevent the issuance of any order
suspending the effectiveness of a Registration Statement or of any order
preventing or suspending the use of a Prospectus or suspending the qualification
(or exemption from qualification) of any of the Securities for sale in any
jurisdiction, and, if any such order is issued, to use its best efforts to
obtain the withdrawal of any such order at the earliest possible time.
(h) If (A) a Shelf Registration is filed pursuant to Section 3
or (B) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, and if requested by the managing underwriters, if any, or the
Holders of a majority in aggregate liquidation preference of the Registrable
Securities, (i) promptly incorporate in a Prospectus or post-effective amendment
such information as the managing underwriters, if any, or such Holders
reasonably request to be included therein required to comply with any Applicable
Law and (ii) make all required filings of such Prospectus or such post-effective
amendment as soon as practicable after the Company has received notification of
such matters required by Applicable Law to be incorporated in such Prospectus or
post-effective amendment.
(i) If (A) a Shelf Registration is filed pursuant to Section 3
or (B) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, cooperate with the selling Holders and the managing under
writers, if any, to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold, which certificates
shall not bear any restrictive legends, other than as required by applicable
law, and shall be in a form eligible for deposit with The Depository Trust
Company ("DTC"); and enable such Registrable Securities to be in such
denominations and registered in such names as the managing underwriters, if any,
or Holders may reasonably request.
(j) If (i) a Shelf Registration is filed pursuant to Section 3
or (ii) a Prospectus contained in an Exchange Offer Registration Statement filed
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pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, upon the occurrence of any event contemplated by Section
6(e)(v) or 6(e)(vi) above, as promptly as practicable prepare a supplement or
post-effective amendment to the Registration Statement or a supplement to the
related Prospectus or any document incorporated or deemed to be incorporated
therein by reference, or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Securities being sold thereunder
or to the purchasers of the Exchange Securities to whom such Prospectus will be
delivered by a Participating Broker-Dealer, such Prospectus will not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(k) Use its best efforts to cause the Securities covered by a
Registration Statement to be rated with the appropriate rating agencies, if
appropriate, if so requested by the Holders of a majority in aggregate
liquidation preference of Securities covered by such Registration Statement or
the managing underwriters, if any.
(l) Prior to the effective date of the first Registration
Statement relating to the Securities, (i) provide the applicable registrar and
transfer agent with printed certificates for the Securities in a form eligible
for deposit with DTC and (ii) provide a CUSIP number for each of the Securities.
(m) Use its best efforts to cause all Securities covered by such
Registration Statement to be listed on each securities exchange, if any, on
which similar preferred securities issued by the Company are then listed.
(n) If a Shelf Registration is filed pursuant to Section 3,
enter into such agreements (including an underwriting agreement in form, scope
and substance as is customary in Underwritten Offerings) and take all such other
actions in connection therewith (including those reasonably requested by the
managing underwriters, if any, or the Holders of a majority of the Registrable
Securities being sold) in order to expedite or facilitate the registration or
the disposition of such Registrable Securities, and in such connection, whether
or not an underwriting agreement is entered into and whether or not the
registration is an Underwritten Registration, (i) make such representations and
warranties to the Holders and the underwriters, if any, with respect to the
business of the Company and its Subsidiaries, and the Registration Statement,
Prospectus and documents, if
16
any, incorporated or deemed to be incorporated by reference therein, in each
case, in form, substance and scope as are customarily made by issuers to
underwriters in Underwritten Offerings, and confirm the same if and when
reasonably requested; (ii) obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the managing underwriters, if any, and the Holders of
a majority in liquidation preference of the Registrable Securities being sold),
addressed to each selling Holder and each of the underwriters, if any, covering
the matters customarily covered in opinions requested in Underwritten Offerings;
(iii) obtain "cold comfort" letters and updates thereof (which letters and
updates (in form, scope and substance) shall be reasonably satisfactory to the
managing underwriters) from the independent certified public accountants of the
Company (and, if necessary, any other independent certified public accountants
of any Subsidiary of the Company or of any business acquired by the Company for
which financial statements and financial data are, or are required to be,
included in the Registration Statement), addressed to each of the underwriters
and each selling Holder, such letters to be in customary form and covering
matters of the type customarily covered in "cold comfort" letters in connection
with Underwritten Offerings and such other matters as reasonably requested by
underwriters; and (iv) deliver such documents and certificates as may be
reasonably requested by the Holders of a majority in liquidation preference of
the Registrable Securities being sold and the managing underwriters, if any, to
evidence the continued validity of the representations and warranties of the
Company and its Subsidiaries made pursuant to clause (i) above and to evidence
compliance with any conditions contained in the underwriting agreement or other
similar agreement entered into by the Company.
(o) Comply with all applicable rules and regulations of the SEC
and make generally available to its security holders earnings statements
satisfying the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder (or any similar rule promulgated under the Securities Act) no later
than 45 days after the end of any 12-month period (or 90 days after the end of
any 12-month period if such period is a fiscal year) (i) commencing on the first
day of the fiscal quarter following each fiscal quarter in which Registrable
Securities are sold to underwriters in a firm commitment or best efforts
underwritten offering and (ii) if not sold to underwriters in such an offering,
commencing on the first day of the first fiscal quarter of the Company after the
effective date of a Registration Statement, which statements shall cover said
12-month periods.
(p) Upon consummation of an Exchange Offer or Private Exchange,
obtain an opinion of counsel to the Company (in form, scope and substance
reasonably satisfactory to the Purchaser), addressed to all Holders par-
17
ticipating in the Exchange Offer or Private Exchange, as the case may be, to the
effect that (i) the Company has duly authorized, executed and delivered the
Exchange Securities or the Private Exchange Securities, as the case may be, and
the Indenture and (ii) the Exchange Securities or the Private Exchange
Securities, as the case may be, constitute legal, valid and binding obligations
of the Company, enforceable against the Company in accordance with their
respective terms, except as such enforcement may be subject to (x) applicable
bankruptcy, insolvency, reorganization, moratorium and similar laws affecting
creditors' rights and remedies generally and (y) general principles of equity
(regardless of whether such enforcement is sought in a proceeding in equity or
at law).
(q) If an Exchange Offer or Private Exchange is to be
consummated, upon delivery of the Registrable Securities by such Holders to the
Company (or to such other Person as directed by the Company) in exchange for the
Exchange Securities or the Private Exchange Securities, as the case may be, the
Company shall xxxx, or cause to be marked, on such Registrable Securities that
such Registrable Securities are being cancelled in exchange for the Exchange
Securities or the Private Exchange Securities, as the case may be; in no event
shall such Registrable Securities be marked as paid or otherwise satisfied.
(r) Cooperate with each seller of Registrable Securities covered
by any Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Securities and their respective counsel in
connection with any filings required to be made with the NASD.
(s) Use its best efforts to take all other steps necessary to
effect the registration of the Registrable Securities covered by a Registration
Statement contemplated hereby.
As a condition to its participation in the Exchange Offer or a
Shelf Registration pursuant to the terms of this Agreement, each Holder of
Registrable Securities shall furnish, upon the written request of the Company, a
written representation to the Company (which may be contained in the letter of
transmittal contemplated by the Exchange Offer Registration Statement) to the
effect that (A) it is not an affiliate of the Company, (B) it is not engaged in,
and does not intend to engage in, and has no arrangement or understanding with
any person to participate in, a distribution of the Securities to be issued in
the Exchange Offer and (C) it is acquiring the Exchange Securities or the
Private Exchange Securities, as applicable, in its ordinary course of business.
18
Notwithstanding anything to the contrary contained herein, if (A)
the Board of Directors of the Company determines in good faith that it is in the
best interests of the Company not to disclose the existence of or facts
surrounding any proposed or pending material corporate transaction involving the
Company or its subsidiaries and (B) the Company notifies the Holders within two
Business Days after the Board of Directors makes such determination, the Company
may allow the Shelf Registration Statement to fail to be effective and usable as
a result of such nondisclosure for up to 60 days during the Effectiveness
Period, but in no event for any period in excess of 30 consecutive days;
provided, however, that the Effectiveness Period shall be extended by the number
of days during which such registration statement was not effective or usable
pursuant to the foregoing provisions; provided, further, that the Company shall
be required to pay any applicable liquidated damages pursuant to Section 4
during any such period.
Each Holder and each Participating Broker-Dealer agrees by
acquisition of such Registrable Securities or Exchange Securities of any
Participating Broker-Dealer that, upon receipt of written notice from the
Company of the happening of any event of the kind described in Section 6(e)(ii),
6(e)(iv), 6(e)(v) or 6(e)(vi), such Holder will forthwith discontinue
disposition (in the jurisdictions specified in a notice of a Section 6(e)(iv)
event, and elsewhere in a notice of a Section 6(e)(ii), 6(e)(v) or 6(e)(vi)
event) of such Securities covered by such Registration Statement or Prospectus
until such Holder's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 6(j), or until it is advised in writing (the
"Advice") by the Company that offers or sales in a particular jurisdiction may
be resumed or that the use of the applicable Prospectus may be resumed, as the
case may be, and has received copies of any amendments or supplements thereto.
If the Company shall give such notice, each of the Effectiveness Period and the
Applicable Period shall be extended by the number of days during such periods
from and including the date of the giving of such notice to and including the
date when each seller of such Securities covered by such Registration Statement
shall have received (x) the copies of the supplemented or amended Prospectus
contemplated by Section 6(j) or (y) the Advice.
7. Registration Expenses
(a) All fees and expenses incident to the performance of or
compliance with this Agreement by the Company shall be borne by the Company
whether or not the Exchange Offer or a Shelf Registration is filed or becomes
effective, including, without limitation:
19
(i) all registration and filing fees (including, without
limitation, (A) fees with respect to filings required to be made with the
NASD and (B) fees and expenses of compliance with state securities or Blue
Sky laws (including, without limitation, reasonable fees and disbursements
of counsel in connection with Blue Sky qualifications of the Registrable
Securities or Exchange Securities and determination of the eligibility of
the Registrable Securities or Exchange Securities for investment under the
laws of such jurisdictions (x) where the Holders are located, in the case
of the Exchange Securities, or (y) as provided in Section 6(f), in the case
of Registrable Securities or Exchange Securities to be sold by a
Participating Broker-Dealer during the Applicable Period));
(ii) printing expenses (including, without limitation, expenses
of printing certificates for Registrable Securities or Exchange Securities
in a form eligible for deposit with DTC and of printing prospectuses if the
printing of prospectuses is requested by the managing underwriters, if any,
or, in respect of Registrable Securities or Exchange Securities to be sold
by a Participating Broker-Dealer during the Applicable Period, by the
Holders of a majority in aggregate liquidation preference of the
Registrable Securities included in any Registration Statement or of such
Exchange Securities, as the case may be);
(iii) messenger, telephone, duplication, word processing and
delivery expenses incurred by the Company in the performance of its
obligations hereunder;
(iv) fees and disbursements of counsel for the Company;
(v) fees and disbursements of all independent certified public
accountants referred to in Section 6(n)(iii) (including, without
limitation, the expenses of any special audit and "cold comfort" letters
required by or incident to such performance);
(vi) Securities Act liability insurance, if the Company so
desires such insurance;
(vii) fees and expenses of all other Persons retained by the
Company; internal expenses of the Company (including, without limitation,
all salaries and expenses of officers and employees of the
20
Company performing legal or accounting duties); and the expense of any
annual audit; and
(viii) rating agency fees and the fees and expenses incurred in
connection with the listing of the Securities to be registered on any
securities exchange.
(b) The Company shall reimburse the Holders for the reasonable
fees and disbursements of not more than one counsel (in addition to appropriate
local counsel) chosen by the Holders of a majority in aggregate principal
liquidation preference of the Registrable Securities to be included in any
Registration Statement which counsel shall be reasonably satisfactory to the
Company.
8. Indemnification
(a) Indemnification by the Company. The Company shall, without
limitation as to time, indemnify and hold harmless each Holder and each
Participating Broker-Dealer selling Exchange Securities during the Applicable
Period, each Person who controls each such Holder (within the meaning of Section
15 of the Securities Act or Section 20(a) of the Exchange Act) and the officers,
directors, partners, employees, representatives and agents of each such Holder,
Participating Broker-Dealer and controlling person, to the fullest extent
lawful, from and against any and all losses, claims, damages, liabilities, costs
(including, without limitation, reasonable costs of preparation and reasonable
attorneys' fees) and expenses (including, without limitation, reasonable costs
and expenses incurred in connection with investigating, preparing, pursuing or
defending against any of the foregoing) (collectively, "Losses"), as incurred,
directly or indirectly caused by, related to, based upon, arising out of or in
connection with any untrue or alleged untrue statement of a material fact
contained in any Registration Statement, Prospectus or form of prospectus, or in
any amendment or supplement thereto, or in any preliminary prospectus, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except insofar as such
Losses are based upon information relating to such Holder or Participating
Broker-Dealer and furnished in writing to the Company (or reviewed and approved
in writing) by such Holder or Participating Broker-Dealer expressly for use
therein; provided, however, that the Company shall not be liable to any
Indemnified Party to the extent that any such Losses arise solely out of an
untrue statement or alleged untrue statement or omission or alleged omission
made in
21
any preliminary prospectus, or Prospectus that has been amended or supplemented,
if (i) such Indemnified Party or related Holder of a Registrable Security failed
to send or deliver a copy of the Prospectus, as then amended or supplemented,
with or prior to the delivery of written confirmation of the sale by such
Indemnified Party or the related Holder of a Registrable Security to the person
asserting the claim from which such Losses arise, (ii) the Prospectus, as
amended or supplemented, would have corrected such untrue statement or alleged
untrue statement or omission or alleged omission, and (iii) the Company has
complied with its obligations under Section 6(e) hereof; provided, further, that
the Company shall not be liable to any Indemnified Party to the extent that any
such Losses are a result of the use by the Indemnified Party of any Prospectus,
when, upon receipt of a notice from the Company of the existence of any fact of
the kind described in Section 6(e) and as contemplated by the last paragraph of
Section 6, the Indemnified Party or the related Holder was not permitted to do
so. The Company shall also indemnify underwriters, selling brokers, dealer
managers and similar securities industry professionals participating in the
distribution, their officers, directors, agents and employees and each Person
who controls such Persons (within the meaning of Section 15 of the Securities
Act or Section 20(a) of the Exchange Act) to the same extent as provided above
with respect to the indemnification of the Holders or the Participating Broker-
Dealer.
(b) Indemnification by Holder of Registrable Securities. In
connection with any Registration Statement, Prospectus or form of prospectus,
any amendment or supplement thereto, or any preliminary prospectus in which a
Holder is participating, such Holder shall furnish to the Company in writing
such information as the Company reasonably requests for use in connection with
any Registration Statement, Prospectus or form of prospectus, any amendment or
supplement thereto, or any preliminary prospectus and shall, without limitation
as to time, indemnify and hold harmless the Company, its directors, officers,
agents and employees, each Person, if any, who controls the Company (within the
meaning of Section 15 of the Securities Act and Section 20(a) of the Exchange
Act), and the directors, officers, agents or employees of such controlling
persons, to the fullest extent lawful, from and against all Losses arising out
of or based upon any untrue or alleged untrue statement of a material fact
contained in any Registration Statement, Prospectus or form of prospectus or in
any amendment or supplement thereto or in any preliminary prospectus, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading to the extent, but only
to the extent, that such untrue statement or alleged untrue statement of a
material fact or omission or alleged
22
omission of a material fact is contained in any information so furnished in
writing by such Holder to the Company expressly for use therein. In no event
shall the liability of any selling Holder be greater in amount than the dollar
amount of the proceeds (net of payment of all expenses) received by such Holder
upon the sale of the Registrable Securities giving rise to such indemnification
obligation.
(c) Conduct of Indemnification Proceedings. If any Proceeding shall
be brought or asserted against any Person entitled to indemnity hereunder (an
"indemnified party"), such indemnified party shall promptly notify the party or
parties from which such indemnity is sought (the "indemnifying parties") in
writing; provided that the failure to so notify the indemnifying parties shall
not relieve the indemnifying parties from any obligation or liability except to
the extent (but only to the extent) that it shall be finally determined by a
court of competent jurisdiction (which determination is not subject to appeal)
that the indemnifying parties have been prejudiced materially by such failure.
The indemnifying party shall have the right, exercisable by giving
written notice to an indemnified party, within 20 business days after receipt of
written notice from such indemnified party of such Proceeding, to assume, at its
expense, the defense of any such Proceeding, provided that an indemnified party
shall have the right to employ separate counsel in any such Proceeding and to
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such indemnified party or parties unless: (1) the
indemnifying party has agreed to pay such fees and expenses; or (2) the
indemnifying party shall have failed promptly to assume the defense of such
Proceeding or shall have failed to employ counsel reasonably satisfactory to
such indemnified party; or (3) the named parties to any such Proceeding
(including any impleaded parties) include both such indemnified party and the
indemnifying party or any of its affiliates or controlling persons, and such
indemnified party shall have been advised by counsel that there may be one or
more defenses available to such indemnified party that are in addition to, or in
conflict with, those defenses available to the indemnifying party or such
affiliate or controlling person (in which case, if such indemnified party
notifies the indemnifying parties in writing that it elects to employ separate
counsel at the expense of the indemnifying parties, the indemnifying parties
shall not have the right to assume the defense thereof and the reasonable fees
and expenses of such counsel shall be at the expense of the indemnifying party;
it being understood, however, that, the indemnifying party shall not, in
connection with any one such Proceeding or separate but substantially similar or
related Proceedings in the same jurisdiction, arising out of the same general
allegations or circumstances, be liable for the fees
23
and expenses of more than one separate firm of attorneys (together with
appropriate local counsel) at any time for such indemnified party).
No indemnifying party shall be liable for any settlement of any such
Proceeding effected without its written consent, but if settled with its written
consent, or if there be a final judgment for the plaintiff in any such
Proceeding, each indemnifying party jointly and severally agrees, subject to the
exceptions and limitations set forth above, to indemnify and hold harmless each
indemnified party from and against any and all Losses by reason of such
settlement or judgment. The indemnifying party shall not consent to the entry of
any judgment or enter into any settlement that does not include as an
unconditional term thereof the giving by the claimant or plaintiff to each
indemnified party of a release, in form and substance reasonably satisfactory to
the indemnified party, from all liability in respect of such Proceeding for
which such indemnified party would be entitled to indemnification hereunder
(whether or not any indemnified party is a party thereto).
(d) Contribution. If the indemnification provided for in this Section
8 is unavailable to an indemnified party or is insufficient to hold such
indemnified party harmless for any Losses in respect of which this Section 8
would otherwise apply by its terms (other than by reason of exceptions provided
in this Section 8), then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall have a joint and several obligation
to contribute to the amount paid or payable by such indemnified party as a
result of such Losses, in such proportion as is appropriate to reflect the
relative fault of the indemnifying party, on the one hand, and such indemnified
party, on the other hand, in connection with the actions, statements or
omissions that resulted in such Losses as well as any other relevant equitable
considerations. The relative fault of such indemnifying party, on the one hand,
and indemnified party, on the other hand, shall be determined by reference to,
among other things, whether any untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by such indemnifying party or indemnified party, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent any such statement or omission. The amount paid or payable by
an indemnified party as a result of any Losses shall be deemed to include any
legal or other fees or expenses incurred by such party in connection with any
Proceeding, to the extent such party would have been indemnified for such fees
or expenses if the indemnification provided for in Section 8(a) or 8(b) was
available to such party.
24
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 8(d) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 8(d), an indemnifying party that
is a selling Holder shall not be required to contribute, in the aggregate, any
amount in excess of such Holder's Maximum Contribution Amount. A selling
Holder's "Maximum Contribution Amount" shall equal the excess of (i) the
aggregate proceeds received by such Holder pursuant to the sale of such
Registrable Securities over (ii) the aggregate amount of damages that such
Holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
The indemnity and contribution agreements contained in this Section 8
are in addition to any liability that the indemnifying parties may have to the
indemnified parties.
9. Rule 144 and Rule 144A
The Company covenants that it shall (a) file the reports required to
be filed by it (if so required) under the Securities Act and the Exchange Act in
a timely manner and, if at any time any such Person is not required to file such
reports, it will, upon the request of any Holder, make publicly available other
information necessary to permit sales pursuant to Rule 144 and Rule 144A and (b)
take such further action as any Holder 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 pursuant to the exemptions
provided by Rule 144 and Rule 144A. Upon the request of any Holder, the Company
shall deliver to such Holder a written statement as to whether they have
complied with such information and requirements.
10. Underwritten Registrations
If any of the Registrable Securities covered by any Shelf Registration
are to be sold in an Underwritten Offering, the investment banker or investment
bankers and manager or managers that will manage the offering will be selected
by the Holders of a majority in aggregate liquidation preference of such
25
Registrable Securities included in such offering and shall be reasonably
acceptable to the Company.
No Holder of Registrable Securities may participate in any
Underwritten Registration hereunder unless such Holder (a) agrees to sell such
Holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) completes and executes all questionnaires, underwriting
agreements, powers of attorney, lock-up letters and other documents reasonably
required under the terms of such underwriting arrangements.
11. Miscellaneous
(a) Remedies. In the event of a breach by the Company of any of its
obligations under this Agreement, each Holder, in addition to being entitled to
exercise all rights provided herein, in the Certificate of Designation or, in
the case of the Purchaser, in the Purchase Agreement, or granted by law,
including recovery of damages, will be entitled to specific performance of its
rights under this Agreement. The Company agrees that monetary damages would not
be adequate compensation for any loss incurred by reason of a breach by it of
any of the provisions of this Agreement and hereby further agrees that, in the
event of any action for specific performance in respect of such breach, it shall
waive the defense that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company has not entered into, as
of the date hereof, and shall not enter into, after the date of this Agreement,
any agreement with respect to any of its securities that is inconsistent with
the rights granted to the Holders of Registrable Securities in this Agreement or
otherwise conflicts with the provisions hereof.
(c) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of Holders
of at least a majority of the then outstanding aggregate liquidation preference
of Registrable Securities; provided that Section 8 shall not be amended,
modified or supplemented, and waivers or consents to departures from this
proviso may not be given, unless the Company has obtained the written consent of
each Holder. Notwithstanding the foregoing, a waiver or consent to depart from
the provisions hereof with respect to a matter that relates exclusively to the
26
rights of Holders whose securities are being sold pursuant to a Registration
Statement and that does not directly or indirectly affect the rights of other
Holders may be given by Holders of at least a majority in aggregate liquidation
preference of the Registrable Securities being sold by such Holders pursuant to
such Registration Statement, provided that the provisions of this sentence may
not be amended, modified or supplemented except in accordance with the
provisions of the immediately preceding sentence.
(d) Notices. All notices and other communications (including, without
limitation, any notices or other communications to the Registrar and Transfer
Agent) provided for or permitted hereunder shall be made in writing by hand-
delivery, certified first-class mail, return receipt requested, next-day air
courier or facsimile:
(i) if to a Holder, at the most current address given by such
Holder to the Company in accordance with the provisions of this Section
11(d), which address initially is, with respect to each Holder, the address
of such Holder maintained by the Registrar under the Indenture, with a copy
to Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, telecopy number (000) 000-0000, Attention: Xxxx X. Xxxxxx,
Esq.; and
(ii) if to the Company, initially ArborLake Center, 0000 Xxxx
Xxxx Xxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000, telecopy number (847)
945-9909, Attention: Chief Executive Officer, and thereafter at such other
address, notice of which is given in accordance with the provisions of this
Section 11(d), with copies to Xxxxx, Xxxxx & Xxxxx, 000 Xxxxx XxXxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, telecopy number (000) 000-0000, Attention:
Xxxxxx X. Xxxxxxx, Esq.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five business days after
being deposited in the mail, postage prepaid, if mailed; one business day after
being timely delivered to a next-day air courier; and when receipt is
acknowledged by the addressee, if telecopied.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Registrar and
Transfer Agent at the following address: 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000. Attention: Xxxxxxx Xxxx.
27
(e) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
including, without limitation and without the need for an express assignment,
subsequent Holders.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. THE COMPANY HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN
THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN
THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT
OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID
COURTS. THE COMPANY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY
EFFECTIVELY DO SO UNDER APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION THAT IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
THE COMPANY IRREVOCABLY CONSENTS, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO
UNDER APPLICABLE LAW, TO THE SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED
COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY
REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE COMPANY AT ITS SAID
ADDRESS, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. NOTHING
HEREIN SHALL AFFECT THE RIGHT OF
28
ANY HOLDER TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE
LEGAL PROCEEDINGS OR OTHER WISE PROCEED AGAINST THE COMPANY IN ANY OTHER
JURISDICTION.
(i) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(j) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement, and is intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein, with respect to the registration rights granted by the Company in
respect of securities sold pursuant to the Purchase Agreement. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
(k) Attorneys' Fees. In any Proceeding brought to enforce any
provision of this Agreement, or where any provision hereof is validly asserted
as a defense, the prevailing party, as determined by the courts, shall be
entitled to recover reasonable attorneys' fees in addition to its costs and
expenses and any other available remedy.
(l) Securities Held by the Company or its Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities held by the Company or
its affiliates (as such term is defined in Rule 405 under the Securities Act)
(other than Holders deemed to be such affiliates solely by reason of their
holdings of such Registrable Securities) shall not be counted in determining
whether such consent or approval was given by the Holders of such required
percentage.
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(m) Third Party Beneficiaries. Each purchaser who purchases shares of
Preferred Stock from the Purchaser is intended to be a beneficiary of the
Company's covenants contained herein to the same extent as if the shares of
Preferred Stock were sold and those covenants were made directly to such
purchaser by the Company.
(n) Substitution of Subordinated Exchange Notes. If the Company shall
exchange its Subordinated Exchange Notes for Preferred Stock, the terms of this
Agreement applicable to the Preferred Stock shall be equally applicable to the
Subordinated Exchange Notes, except that (i) references to liquidation
preference shall thereafter be deemed to be references to principal amount and
(ii) references to the Certificate of Designation shall thereafter be deemed to
be references to the indenture pursuant to which the Subordinated Exchange Notes
are issued.
30
REGISTRATION RIGHTS AGREEMENT
-----------------------------
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
JORDAN TELECOMMUNICATION
PRODUCTS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President and Chief
Executive Officer
ACCEPTED AND AGREED TO:
XXXXXXXXX & COMPANY, INC.
By: /s/ M. Xxxxx Xxxxxxx
-----------------------
Name: M. Xxxxx Xxxxxxx
Title: Managing Director
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