AGREEMENT
This Agreement ("Agreement") dated as of October 26, 1995 by and between
SA Telecommunications, Inc., a Delaware corporation (the "Company") and the
Persons listed on the signature page hereto (individually, a "Holder" and
collectively, the "Holders").
WHEREAS, the Company and each of the Holders entered into a Subscription
Agreement executed as of September 20, 1995 (the "Subscription Agreements"),
pursuant to which the Holders purchased an aggregate of 1,100,000 shares of
the Company's Common Stock, $.0001 par value (the "Common Stock") and
warrants exercisable into an aggregate of 1,100,000 shares of Common Stock
(the "Warrants");
WHEREAS, pursuant to the Subscription Agreements, the Company granted to
the Holders demand registration rights ("Demand Registration") with respect
to the 1,100,000 shares of Common Stock purchased pursuant to the
Subscription Agreement and the 1,100,000 shares of Common Stock into which
the Warrants are exercisable which have not been previously sold pursuant to
the registration statement or Rule 144 promulgated under the Act (the
"Registrable Securities");
WHEREAS, pursuant to Section 5(c) of the Subscription Agreements, the
Company and each of the Holders is required to enter into indemnification
agreements with respect to the registration of the Registrable Securities;
NOW, THEREFORE, in consideration of the above premises and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. DEFINITIONS. For purposes of this Agreement, the following terms
shall have the following meanings:
"ACT" means the Securities Act of 1933, as amended.
"COMMISSION" means Securities and Exchange Commission.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust or unincorporated organization.
"PROSPECTUS" means the prospectus which is part of a Registration
Statement, and includes any preliminary prospectus and/or supplemental
prospectus.
"REGISTRATION STATEMENT" means a registration statement filed with the
Commission
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under the Act which includes the Registrable Securities being registered
pursuant to the demand registration rights granted pursuant to the
Subscription Agreements.
"SELLING HOLDER" means a Holder whose Registrable Securities are
included in a Registration Statement.
2. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. The Company agrees to
indemnify and hold harmless, to the full extent permitted by law, each
Selling Holder in its capacity as a Selling Holder, its officers and
directors and each Person who controls such Selling Holder (within the
meaning of Section 15 of the Act and Section 20(a) of the Exchange Act),
against any losses, claims, damages, liabilities and expenses (including
attorneys fees) caused by any untrue statement of a material fact
contained in any Registration Statement, Prospectus or preliminary
Prospectus or any omission to state therein a material fact necessary to
make the statements therein (in the case of the Prospectus or any
preliminary Prospectus, in light of the circumstances under which they
were made) not misleading, except insofar as the same are (I) caused by
or contained in any information furnished to the Company by such Selling
Holder in its capacity as a Selling Holder expressly for use in the
preparation thereof, (ii) caused by such Selling Holder's failure to
deliver a copy of the Registration Statement or Prospectus or any
amendments or supplements thereto, or (iii) arise out of the Selling
Holders failure to comply with the terms and provisions of this Agreement.
(b) INDEMNIFICATION BY SELLING HOLDERS. Each Selling Holder in its
capacity as a Selling Holder agrees to indemnify, to the full extent
permitted by law, the Company, its directors and officers and each Person
who controls the Company (within the meaning of Section 15 of the Act
and Section 20(a) of the Exchange Act) and its respective agents and
counsel against any losses, claims, damages, liabilities and expenses
(including attorneys' fees) resulting from any untrue statement of a
material fact or any omission to state a material fact necessary to make
the statements in the Registration Statement or Prospectus or preliminary
Prospectus (in the case of the Prospectus or any preliminary Prospectus,
in light of the circumstances under which they were made) not misleading,
to the extent, but only to the extent, that such untrue statement or
omission was made in reliance upon information furnished by, or on behalf
of, such Selling Holder in its capacity as a Selling Holder specifically
for use in the preparation thereof. The Company shall be entitled to
receive indemnities from underwriters, selling brokers, dealer managers
and similar securities industry professionals participating in the
distribution, to the same extent as provided above with respect to
information with respect to such Persons so furnished by such Persons
specifically for use in the preparation of any Prospectus or Registration
Statement.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. Any Person entitled to
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indemnification hereunder will (I) give prompt written notice to the
indemnifying party of any claim with respect to which it seeks
indemnification and (ii) unless in such indemnified party's reasonable
judgment a conflict of interest may exist between such indemnified and
indemnifying parties with respect to such claim, permit such indemnifying
party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party. Whether or not such defense is
assumed by the indemnifying party, the indemnifying party will not be
subject to any liability for any settlement made without its consent
(but such consent will not be unreasonably withheld). No indemnifying
party will consent to entry of any judgment or enter into any settlement
which does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such indemnified party of a release from all
liability in respect of such claim or litigation. An indemnifying party
who is not entitled to, or elects not to, assume the defense of a claim
will not be obligated to pay the fees and expenses of more than one
counsel for all parties indemnified by such indemnifying party with
respect to such claim, unless in the reasonable judgment of any
indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect
to such claim, in which event the indemnifying party shall be obligated
to pay the fees and expenses of such additional counsel or counsels.
(d) CONTRIBUTION. If for any reasons the indemnification provided
for in the preceding clauses (a) and (b) is unavailable to an indemnified
party as contemplated by the preceding clauses (a) and (b), then the
indemnifying party shall contribute to the amount paid or payable by the
indemnified party as a result of such loss, claim, damage or liability in
such proportion as is appropriate to reflect not only the relative
benefits received by the indemnified party and the indemnifying party,
but also the relative fault of the indemnified party and indemnifying
party, as well as any other relevant equitable considerations.
3. BLUE SKY STATES. Pursuant to Section 5 of the Subscription
Agreement, the Selling Holders designate the states listed on Exhibit A
hereto as the list of blue sky jurisdictions requested in connection with the
Demand Registration.
4. AMENDMENTS AND WAIVERS. Except as otherwise provided herein, the
provisions of this Agreement may not be amended, modified or supplemented
without the written consent of the Company and the Holders owning a majority
of the Registrable Securities.
5. NOTICES. All notices and other communications provided for or
permitted hereunder shall be made by hand delivery or registered first-class
mail to the Company or each Holder, as the case may be, at its address set
forth in the Subscription Agreement.
6. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
except that no Holder may
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assign its rights hereunder to any Person.
7. 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.
8. HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
9. GOVERNING LAW. This Agreement shall be governed and controlled as
to validity, enforcement, interpretation, constructions and effect and in all
other aspects by the substantive laws of the State of Texas, without
reference to conflicts of laws principles.
10. SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be in any
way impaired thereby, it being intended that all of the rights and privileges
established by this Agreement shall be enforceable to the fullest extent
permitted by law.
11. ENTIRE AGREEMENT. This Agreement and the Subscription Agreement
and the agreements contemplated thereby are intended by the parties as a
final expression of their agreement and 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.
12. ATTORNEYS' FEES. In any action or proceeding brought to enforce
any provision of this Agreement or where any provision hereof is validly
asserted as a defense, the successful party shall be entitled to recovery
reasonable attorneys' fees in addition to any other available remedy.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
SA TELECOMMUNICATIONS, INC. ______________________________________
Seth Xxxxxx Xxxxxx
By:_________________________________
Xxxx X. Xxxx, Xx. ______________________________________
Chairman & Chief Executive Xxxx Xxxx
Officer
____________________________________ ______________________________________
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Xxxxx Xxxxxxxxx Xxxxx Xxxxx
____________________________________ _____________________________________
Xxxxx Xxxxx Xx. Xxxxxxx Xxxxxxxxx
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____________________________________ _____________________________________
Xxxxxx Xxxxxx Xxxx Xxxxxxxxx
XXXXXXX TRADING L.P. CONG. AHAVAS TZEDACH VACHSED
By:________________________________ By:__________________________________
Title:_____________________________ Title:_______________________________
XXXXX XXXXXXXXX/XXXXX XXXXXX PARTNERSHIP
By:________________________________
Title:_____________________________
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EXHIBIT A
BLUE SKY STATES
New York
New Jersey
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