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EXHIBIT 10.54
SUPPLEMENTAL REGISTRATION RIGHTS AGREEMENT
SUPPLEMENTAL REGISTRATION RIGHTS AGREEMENT, dated as of July 10, 1997,
among American Communications Services, Inc., a Delaware corporation (the
"COMPANY"), The Xxxx Alternative Income Fund, L.P. (the "FUND"), General Motors
Domestic Group Pension Trust and XxXxxxxxx Inc. Master Trust (individually, a
"HOLDER" and collectively, the "HOLDERS").
The Company and the Holders are parties to a Purchase Agreement (the
"PURCHASE AGREEMENT"), dated as of July 10, 1997, pursuant to which the Holders
are acquiring units, consisting of shares of the Company's 14-3/4% Redeemable
Preferred Stock due 2008 and certain warrants (the "WARRANTS") issued pursuant
to a Warrant Agreement (the "WARRANT AGREEMENT"), dated as of July 10, 1997,
between the Company and The Chase Manhattan Bank, as Warrant Agent. The Company,
BT Securities Corporation, Alex. Xxxxx & Sons Incorporated and the Holders are
parties to a Registration Rights Agreement (the "REGISTRATION RIGHTS
AGREEMENT"), dated as of July 10, 1997. Capitalized terms used herein and not
otherwise defined shall have the meanings given to them in the Registration
Rights Agreement.
NOW, THEREFORE, in order to induce the Holders to enter into the
Purchase Agreement and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. From and after the Effectiveness Period, any Holder of Registrable
Preferred Stock having in the aggregate a Liquidation Preference (as defined in
the Company's Second Restated Certificate of Incorporation) with respect to the
Registrable Preferred Stock then held by it of at least $10 million may request
in writing that the Company effect the registration of such Registrable
Preferred Stock under the Securities Act, specifying in such written request the
intended method or methods of disposition thereof. The Company shall thereupon
promptly notify all Holders then holding Registrable Preferred Stock in writing
of the receipt of such request and each such Holder may elect (by written notice
sent to the Company within ten days from the date of such Holder's receipt of
the notice from the Company) to have all or any part of its Registrable
Preferred Stock included in such registration pursuant to this Agreement. The
Company shall use its best commercial efforts to effect the registration as soon
as is practicable under the Securities Act of all shares of Registrable
Preferred Stock with respect to which the Company has received timely notice in
writing hereunder, to the extent required to permit the disposition (in
accordance with the intended method or methods of distribution described in such
written request) of the Registrable Preferred Stock so registered; provided,
that the Company shall not effect more than three registrations of Registrable
Preferred Stock pursuant to this Agreement.
2. From and after the Warrant Shelf Registration Period (as defined in
the Warrant Agreement), any Holder of Warrants may request in writing that the
Company effect the registration of Warrants then held by it under the Securities
Act, specifying in such written request the intended method or methods of
disposition thereof. The Company shall thereupon promptly notify all Holders
then holding Warrants in writing of the receipt of such request and each such
Holder may elect (by written notice sent to the Company within ten days from the
date of such Holder's receipt of the notice from the Company) to have all or any
part of its Warrants included in such registration pursuant to this Agreement.
The Company shall use its best commercial efforts to effect the registration as
soon as possible under the Securities Act of all Warrants with respect to which
the Company has received timely notice in writing hereunder, to the extent
required to permit the disposition (in accordance with the intended method or
methods of distribution described in such written request) of the Warrants so
registered; provided, that the
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Company shall not effect more than three registrations of Warrants pursuant to
this Agreement.
3. From and after the Common Shelf Registration Period (as defined in
the Warrant Agreement), any Holder of Warrant Shares (as defined in the Warrant
Agreement) may request in writing that the Company effect the registration of
Warrant Shares then held by it under the Securities Act, specifying in such
written request the intended method or methods of disposition thereof. The
Company shall thereupon promptly notify all Holders then holding Warrant Shares
in writing of the receipt of such request and each such Holder may elect (by
written notice sent to the Company within ten days from the date of such
Holder's receipt of the notice from the Company) to have all or any part of its
Warrant Shares included in such registration pursuant to this Agreement. The
Company shall use its best commercial efforts to effect the registration as soon
as possible under the Securities Act of all Warrant Shares with respect to which
the Company has received timely notice in writing hereunder, to the extent
required to permit the disposition (in accordance with the intended method or
methods of distribution described in such written request) of the Warrant Shares
so registered; provided, that the Company shall not effect more than three
registrations of Warrant Shares pursuant to this Agreement.
4. (a) If a registration hereunder is to be underwritten, the Holders
of a majority of the Registrable Preferred Stock, Warrants or Warrant Shares, as
the case may be, to be registered in such registration shall select the managing
underwriter(s); provided, that such managing underwriter(s) shall be reasonably
acceptable to the Company. If any such registration involves an underwritten
offering, all decisions as to the number of shares to be included in such
offering, the sale price, the underwriting discount and other aspects of the
offering shall be made by Holders then holding a majority of the Registrable
Preferred Stock, Warrants or Warrant Shares, as the case may be, validly
requested to be registered in the offering, upon the advice of the managing
underwriter or underwriters (collectively, the "Underwriters"). If the
Underwriters advise the Holders participating in the offering that, in their
judgment, the inclusion in such offering of some of the Registrable Securities,
Warrants or Warrant Shares, as the case may be, validly requested to be
registered would create a substantial risk that the proceeds per unit will be
materially reduced or the number of shares of Registrable Preferred Stock,
Warrants or Warrant Shares, as the case may be, proposed to be included in the
offering is too large a number to be reasonably sold, then each Holder
participating in the offering shall reduce the amount of Registrable Preferred
Stock, Warrants or Warrant Shares, as the case may be, to be registered and
offered on a pro rata basis in accordance with the amount of Registrable
Preferred Stock, Warrants or Warrant Shares, as the case may be, originally
requested to be registered.
(b) In order to count as an "effected" registration hereunder, the
relevant registration statement shall not have been withdrawn and all shares
properly registered pursuant to it in accordance with this Agreement (excluding
any overallotment shares) shall have been sold.
(c) Notwithstanding anything to the contrary herein, the Company shall
have the right to defer the filing of any registration statement requested
pursuant to this Agreement for a period not to exceed 90 days if in the good
faith determination of the Board of Directors of the Company the filing of such
registration statement would interfere with any material financing, acquisition,
corporate reorganization or other material transaction or development involving
the Company; provided, that during the pendency of any such 90-day period, the
Company may not issue any securities, whether or not in a public offering,
except for issuances of Common Stock pursuant to an acquisition or other
business combination transaction or upon exercise of options or warrants
outstanding prior to such period.
(d) In connection with any registration effected hereunder involving an
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underwritten offering, (i) the representations of each Holder to the
underwriters shall be several, rather than joint with any other Holders
participating in the underwriting, and shall be limited to information provided
by the Holder for inclusion in the prospectus as to the identity of such Holder,
the amount of securities of the Company owned and to be sold by such Holder, and
any material relationships and related transactions between the Company and such
Holder and (ii) each Holder's indemnification and contribution obligations with
respect to the underwriters shall be several, rather than joint, limited in
amount to the proceeds received by such Holder from the sale of Registrable
Preferred Stock, Warrants or Warrant Shares, as the case may be, in the offering
and limited further to material misstatements or omissions from written
information such Holder provides to the Company with respect to clause (i) above
for use in the prospectus.
(e) In connection with any registration hereunder, the Company shall
bear the reasonable fees and expenses of one counsel for the Fund and one
counsel selected by a majority of the other Holders as a group, not to exceed
$20,000 each.
(f) No less than six months shall elapse between any registrations
effected pursuant to this Agreement; provided, that any registration statement
filed pursuant to this Agreement shall, upon the request of the relevant
Holders, include any combination of the Registrable Preferred Stock, Warrants
and Warrant Shares.
5. The provisions of Sections 1 and 5 through 9 of the Registration
Rights Agreement, with the exception of Sections 9(a), (c), (d), (k) and (l)
thereof, are hereby incorporated by reference into this Agreement, to apply to a
registration properly requested in writing hereunder as if it were a Shelf
Registration thereunder; provided, that:
(a) in the event of any inconsistency between the terms of this
Agreement and the terms of the Registration Rights Agreement or the Warrant
Agreement, the terms of this Agreement shall govern;
(b) in connection with any claim for indemnification in which the
Holders are entitled to separate legal representation as provided and subject to
the limitations in Section 7(c) of the Registration Rights Agreement, the
Company shall bear the reasonable fees and expenses actually incurred of one
counsel for the Fund and one counsel selected by a majority of the other
Holders; and
(c) if (i) during any period in which a registration statement filed
pursuant to this Agreement is effective, the Company or any of its subsidiaries
shall file a registration statement with the SEC under the Securities Act (other
than in connection with the registration of securities issuable pursuant to an
employee stock option, stock purchase or similar plan or pursuant to a merger,
exchange offer or a transaction of the type specified in Rule 144 under the
Securities Act) with respect to its common stock or similar securities or
securities convertible into, or exchangeable or exercisable for, such securities
and (ii) with reasonable prior notice, the Company (in the case of a
non-underwritten offering by the Company pursuant to such registration
statement) advises the Holders in writing that a public sale or distribution of
Registrable Preferred Stock, Warrants or Warrant Shares, as the case may be,
would materially adversely affect such offering or the underwriter (in the case
of an underwritten offering by the Company pursuant to such registration
statement) advises the Company in writing (in which case the Company shall
notify the Holders) that a public sale or distribution of Registrable Preferred
Stock, Warrants or Warrant Shares, as the case may be, would adversely impact
such offering, then each Holder shall not, to the extent not inconsistent with
applicable law, effect any public sale or distribution of Registrable Preferred
Stock, Warrants or Warrant Shares, as the case may be, or otherwise dispose of
any securities of the Company of the same type of securities to be so registered
during the period (a "SUSPENSION PERIOD") commencing 15 days prior to the
effective date of such
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registration statement and ending on the earliest of (A) 90 days from the
effective date of such registration statement, (B) the abandonment of such
offering and (C) if such offering is an underwritten offering, the termination
in whole or in part of any "holdback" period obtained by the underwriter in such
offering from the Company in connection therewith.
6. (a) The Company and the Holders agree that the Holders will suffer
damages if the Company fails to honor its obligations hereunder and that it
would not be feasible to ascertain the extent of such damages. Accordingly, from
and during the continuation of an Additional Payment Event (as defined below),
the Company shall pay to each Holder of Registrable Preferred Stock, Warrants or
Warrant Shares, as the case may be, for which a registration has been properly
requested hereunder, as liquidated damages, an amount equal to the Additional
Payment Amount (as defined below), which shall accrue, cumulate and be payable
in cash, as and when dividends are payable with respect to the Registrable
Preferred Stock held by such Holder.
(b) For purposes of this Agreement, the term "ADDITIONAL PAYMENT EVENT"
shall mean (i) the failure of the Company to file a registration statement with
respect to a registration properly requested in writing pursuant to this
Agreement within 150 days of the Company's receipt of the relevant registration
request, (ii) the failure of a registration statement filed pursuant to this
Agreement to become effective within 195 days of the Company's receipt of the
relevant registration request or (iii) the exercise by the Company of its rights
under Section 5(c) hereof if as a result of the exercise of such rights by the
Company any Holder is prohibited from selling its Registrable Preferred Stock,
Warrants or Warrant Shares, as the case may be, under an effective registration
statement filed with respect to such Registrable Preferred Stock, Warrants or
Warrant Shares, as the case may be, pursuant to this Agreement during more than
two Suspension Periods (a "SUBSEQUENT SUSPENSION PERIOD") in any two-year
period. The Additional Payment Event shall continue until (i) the filing of the
relevant registration statement (in the case of clause (i) of the preceding
sentence), (ii) the relevant registration statement is declared effective (in
the case of clause of (ii) of the preceding sentence) or (iii) the end of the
relevant Subsequent Suspension Period (in the case of clause (iii) of the
preceding sentence).
(c) For purposes of this Agreement, the term "ADDITIONAL PAYMENT
AMOUNT" shall mean (i) if the securities sought to be registered consist of
Registrable Preferred Stock or Warrants, an amount per share of Registrable
Preferred Stock or per Warrant, as the case may be, sought to be registered,
that would be equal to an additional dividend of 0.50% of the Liquidation
Preference of one share of Registrable Preferred Stock, and (ii) if the
securities sought to be registered consist of Warrant Shares, an amount per
Warrant Share sought to be registered equal to (x) the amount that would be
equal to an additional dividend of 0.50% of the Liquidation Preference of one
share of Registrable Preferred Stock, divided by (y) the maximum number of
Warrant Shares for which each outstanding Warrant may then be exercised.
7. (a) The provisions of this Agreement may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, other than with the prior written consent of the Holders of
not less than 75% of the (i) Registrable Preferred Stock (in the case of
provisions relating to the Registrable Preferred Stock), (ii) Warrants (in the
case of provisions relating to the Warrants) and (iii) Warrant Shares (in the
case of provisions relating to the Warrant Shares). Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof with respect
to a matter that relates exclusively to the rights of Holders whose Registrable
Preferred Stock, Warrants or Warrant Shares, as the case may be, are being sold
pursuant to a Registration Statement and that does not directly or indirectly
affect, impair, limit or compromise the rights of other such Holders may be
given by Holders of at least a majority of Registrable Preferred Stock, Warrants
or Warrant Shares, as the case may be, being sold by such Holders pursuant to
such Registration Statement; provided, however, that the provisions of this
sentence may not be amended, modified or supplemented
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except in accordance with the provisions of the immediately preceding sentence.
(b) all notices and other communications to the Holders under this
Agreement shall be sent to the following addresses:
THE XXXX ALTERNATIVE INCOME FUND, L.P.
1776 On the Green
00 Xxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
GENERAL MOTORS DOMESTIC GROUP PENSION TRUST
1 Mellon Bank Center
000 Xxxxx Xxxxxx 0000
Xxxxxxxxxx, XX. 15288-0001
Attn: Xxxxxx Xxxxx
XxXXXXXXX INC. MASTER TRUST
P.O. Box N 7796
Norfolk House
Xxxxxxxxx Street
Nassau, Bahamas
Attn: Xxxxxxx Xxxxx
with copies to:
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx, Esq.
and
Xxxxx Xxxxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxxx Xxxxxxxx, Esq.
(c) The provisions of this Agreement shall supersede any inconsistent
provisions of Section 9(l) of the Registration Rights Agreement.
(d) This Agreement shall be binding upon and shall inure to the benefit
of the Company and its successors and assigns and the Holders, from time to
time, of Registrable Preferred Stock, Warrants and Warrant Shares; provided,
that the Agreement shall not apply to any shares of Registrable Preferred Stock
or any Warrants or Warrant Shares that have been transferred to a person who may
resell such Registrable Preferred Stock, Warrants or Warrant Shares pursuant to
Rule 144(k) under the Securities Act.
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IN WITNESS WHEREOF, the undersigned have executed this Supplemental
Registration Rights Agreement as of the date first above written.
AMERICAN COMMUNICATIONS SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxx
______________________________________
Title: Executive Vice President/Secretary
THE XXXX ALTERNATIVE INCOME FUND, L.P.
By: WRH PARTNERS, L.L.C., General Partner
By: /s/ Xxxxxx X. Xxxxxxxx
___________________________________
Xxxxxx X. Xxxxxxxx
Attorney-in-Fact
GENERAL MOTORS DOMESTIC
GROUP PENSION TRUST
By: MELLON BANK N.A. Solely in its
Capacity as Trustee for the
General Motors Domestic Group
Pension Trust (as directed by
General Motors Investment Management Corp.)
and not in its individual capacity
By: /s/ Xxxxxx X. Xxxxx
____________________________________
Name: Xxxxxx X. Xxxxx
Title: Trust Officer
XXXXXXXXX INC. MASTER TRUST
By: /s/ Xxxxxxx Xxxxx
______________________________________
Name: Xxxxxxx Xxxxx
Title: Member of the Investment Committee
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