EXHIBIT 10.24
REGISTRATION AGREEMENT
THIS REGISTRATION AGREEMENT (this "AGREEMENT") is made as of February
14, 2002, by and among (i) TSI Telecommunication Holdings, LLC, a Delaware
limited liability company (the "LLC"), (ii) GTCR Fund VII, L.P., a Delaware
limited partnership ("GTCR FUND VII"), GTCR Fund VII/A, L.P., a Delaware limited
partnership ("GTCR FUND VII/A") and GTCR Co-Invest, L.P., a Delaware limited
partnership ("GTCR CO-INVEST") and any other investment fund managed by GTCR
Xxxxxx Xxxxxx, L.L.C. that at any time acquires securities of the LLC and
executes a counterpart of this Agreement or otherwise agrees to be bound by this
Agreement (each, an "INVESTOR" and collectively, the "INVESTORS"), (iii) G.
Xxxxxx Xxxxx and any other executive employee of the LLC or its Subsidiaries
who, at any time, acquires securities of the LLC in accordance with SECTION 8
hereof and executes a counterpart of this Agreement or otherwise agrees to be
bound by this Agreement (each, an "EXECUTIVE" and collectively, the
"EXECUTIVES"), (iv) Snowlake Investment Pte Ltd ("PURCHASER"), and (v) each of
the other entities and individuals set forth from time to time on the attached
"SCHEDULE OF HOLDERS" under the heading "OTHER SECURITYHOLDERS" who, at any
time, acquires securities of the LLC in accordance with SECTION 8 hereof and
executes a counterpart of this Agreement or otherwise agrees to be bound by this
Agreement (the "OTHER SECURITYHOLDERS"). The Investors, the Executives,
Purchaser and the Other Securityholders are collectively referred to herein as
the "SECURITYHOLDERS".
The LLC and the Investors are parties to a Unit Purchase Agreement of
even date herewith (the "PURCHASE AGREEMENT"). In order to induce the Investors
to enter into the Purchase Agreement, the LLC has agreed to provide the
registration rights set forth in this Agreement. The execution and delivery of
this Agreement is a condition to the Initial Closing under the Purchase
Agreement. Unless otherwise provided in this Agreement, capitalized terms used
herein shall have the meanings set forth in SECTION 10 hereof.
The parties hereto agree as follows:
1. DEMAND REGISTRATIONS.
(a) REQUESTS FOR REGISTRATION. The Securityholders contemplate the
organization of a corporation and reorganization or recapitalization of the LLC
pursuant to SECTION 15.7 of the LLC Agreement. The corporate successor to the
LLC shall be referred to herein as the "COMPANY." At any time after the
organization of the Company, the holders of a majority of the Investor
Registrable Securities may request registration under the Securities Act of all
or any portion of their Registrable Securities on Form S-1 or any similar
long-form registration ("LONG-FORM REGISTRATIONS"), or on Form S-2 or S-3
(including pursuant to Rule 415 under the Securities Act) or any similar
short-form registration ("SHORT-FORM REGISTRATIONS"), if available. All
registrations requested pursuant to this SECTION 1(a) are referred to herein as
"DEMAND REGISTRATIONS." Each request for a Demand Registration shall specify the
approximate number of Registrable Securities requested to be registered and the
anticipated per share or per unit price range for such offering. Within ten days
after receipt of any such request, the Company shall give written notice of such
requested registration to all other holders of Registrable Securities and shall
include in such registration all Registrable Securities with respect to which
the Company has received written requests for inclusion therein within 15 days
after the receipt of the Company's notice.
(b) INVESTOR LONG-FORM REGISTRATIONS. The holders of a majority of
the Investor Registrable Securities shall be entitled to request an unlimited
number of Long-Form Registrations in which the Company shall pay all
Registration Expenses (as defined in SECTION 5). All Long-Form Registrations
shall be underwritten registrations.
(c) INVESTOR SHORT-FORM REGISTRATIONS. In addition to the Long-Form
Registrations provided pursuant to SECTION 1(b), the holders of a majority of
the Investor Registrable Securities shall be entitled to request an unlimited
number of Short-Form Registrations in which the Company shall pay all
Registration Expenses. Demand Registrations shall be Short-Form Registrations
whenever the Company is permitted to use any applicable short form. After the
Company has become subject to the reporting requirements of the Securities
Exchange Act, the Company shall use its best efforts to make Short-Form
Registrations on Form S-3 available for the sale of Registrable Securities. If
the Company, pursuant to the request of the holder(s) of a majority of Investor
Registrable Securities, is qualified to and has filed with the Securities and
Exchange Commission a registration statement under the Securities Act on Form
S-3 pursuant to Rule 415 under the Securities Act (the "REQUIRED REGISTRATION"),
then the Company shall use its best efforts to cause the Required Registration
to be declared effective under the Securities Act as soon as practicable after
filing, and, once effective, the Company shall cause such Required Registration
to remain effective for a period ending on the earlier of (i) the date on which
all Investor Registrable Securities have been sold pursuant to the Required
Registration, or (ii) the date as of which the holder(s) of Investor Registrable
Securities (assuming such holder(s) are affiliates of the Company) are able to
sell all of the Investor Registrable Securities then held by them within a
ninety-day period in compliance with Rule 144 under the Securities Act.
(d) PRIORITY ON DEMAND REGISTRATIONS. The Company shall not include
in any Demand Registration any securities that are not Registrable Securities
without the prior written consent of the holders of a majority of the Investor
Registrable Securities included in such registration. If a Demand Registration
is an underwritten offering and the managing underwriters advise the Company in
writing that, in their opinion, the number of Registrable Securities and, if
permitted hereunder, other securities requested to be included in such offering
exceeds the number of Registrable Securities and other securities, if any, that
can be sold in an orderly manner in such offering within a price range
acceptable to the holders of a majority of the Investor Registrable Securities
to be included in such registration, then the Company shall include in such
registration, prior to the inclusion of any securities that are not Registrable
Securities, the number of Registrable Securities requested to be included that,
in the opinion of such underwriters, can be sold in an orderly manner within the
price range of such offering, pro rata among the respective holders thereof on
the basis of the amount of Registrable Securities owned by each such holder.
(e) RESTRICTIONS ON LONG-FORM REGISTRATIONS. The Company shall not
be obligated to effect any Long-Form Registration within 90 days after the
effective date of a previous Long-Form Registration or a previous registration
in which the holders of Registrable Securities were given piggyback rights
pursuant to SECTION 2 and in which there was no reduction in the number of
Registrable Securities requested to be included. The Company may postpone for up
to 180 days the filing or the effectiveness of a registration statement for a
Demand Registration if the Company and the holders of a majority of the Investor
Registrable Securities agree that such Demand
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Registration would reasonably be expected to have a material adverse effect on
any proposal or plan by the Company or any of its Subsidiaries to acquire
financing, engage in any acquisition of assets (other than in the ordinary
course of business), or engage in any merger, consolidation, tender offer,
reorganization, or similar transaction; PROVIDED THAT, in such event, the
holders of Investor Registrable Securities initially requesting such Demand
Registration shall be entitled to withdraw such request and the Company shall
pay all Registration Expenses in connection with such registration. The Company
may delay a Demand Registration hereunder only once in any twelve-month period.
(f) SELECTION OF UNDERWRITERS. The holders of a majority of the
Investor Registrable Securities included in any Demand Registration shall have
the right to select the investment banker(s) and manager(s) to administer the
offering.
(g) OTHER REGISTRATION RIGHTS. Except as provided in this Agreement,
the Company shall not grant to any Persons the right to request the Company to
register any equity securities of the Company, or any securities, options, or
rights convertible or exchangeable into or exercisable for such securities,
without the prior written consent of the holders of a majority of the Investor
Registrable Securities.
2. PIGGYBACK REGISTRATIONS.
(a) RIGHT TO PIGGYBACK. Whenever the Company proposes to register
any of its securities (including any proposed registration of the Company's
securities by any third party) under the Securities Act (other than (i) pursuant
to a Demand Registration, to which SECTION 1 is applicable, (ii) in connection
with an initial public offering of the Company's equity securities, or (iii) in
connection with registrations on Form X-0, X-0 or any successor or similar
forms) and the registration form to be used may be used for the registration of
Registrable Securities (a "PIGGYBACK REGISTRATION"), the Company shall give
prompt written notice (and in any event within 3 business days after its receipt
of notice of any exercise of demand registration rights other than under this
Agreement) to all holders of Registrable Securities of its intention to effect
such a registration and shall include in such registration all Registrable
Securities with respect to which the Company has received written requests for
inclusion therein within 15 days after the receipt of the Company's notice.
(b) PIGGYBACK EXPENSES. The Registration Expenses of the holders of
Registrable Securities shall be paid by the Company in all Piggyback
Registrations.
(c) PRIORITY ON PRIMARY REGISTRATIONS. If a Piggyback Registration
is an underwritten primary registration on behalf of the Company, and the
managing underwriters advise the Company in writing that, in their opinion, the
number of securities requested to be included in such registration exceeds the
number which can be sold in an orderly manner in such offering within a price
range acceptable to the Company, then the Company shall include in such
registration (i) first, the securities the Company proposes to sell, (ii)
second, the Registrable Securities requested to be included in such
registration, pro rata among the holders of such Registrable Securities on the
basis of the number of shares or units owned by each such holder, and (iii)
third, the other securities requested to be included in such registration.
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(d) PRIORITY ON SECONDARY REGISTRATIONS. If a Piggyback Registration
is an underwritten secondary registration on behalf of holders of the Company's
securities other than holders of Registrable Securities (it being understood
that secondary registrations on behalf of holders of Registrable Securities are
addressed in SECTION 1 above rather than this SECTION 2(d)), and the managing
underwriters advise the Company in writing that, in their opinion, the number of
securities requested to be included in such registration exceeds the number
which can be sold in an orderly manner in such offering within a price range
acceptable to the holders of a majority of the Registrable Securities to be
included in such registration, then the Company shall include in such
registration (i) first, the securities requested to be included therein by the
holders requesting such registration, (ii) second, the Registrable Securities
requested to be included in such registration, pro rata among the holders of
such Registrable Securities on the basis of the number of shares or units owned
by each such holder, and (iii) third, the other securities requested to be
included in such registration.
(e) SELECTION OF UNDERWRITERS. If any Piggyback Registration is an
underwritten offering, then the selection of investment banker(s) and manager(s)
for the offering must be approved by the holders of a majority of the Investor
Registrable Securities included in such Piggyback Registration. Such approval
shall not be unreasonably withheld.
(f) OTHER REGISTRATIONS. If the Company has previously filed a
registration statement with respect to Registrable Securities pursuant to
SECTION 1 or pursuant to this SECTION 2, and if such previous registration has
not been withdrawn or abandoned, then, unless such previous registration is a
Required Registration, the Company shall not file or cause to be effected any
other registration of any of its equity securities or securities convertible or
exchangeable into or exercisable for its equity securities under the Securities
Act (except on Form S-8 or any successor form), whether on its own behalf or at
the request of any holder or holders of such securities, until a period of at
least 180 days has elapsed from the effective date of such previous
registration.
3. HOLDBACK AGREEMENTS.
(a) To the extent not inconsistent with applicable law, each holder
of Registrable Securities shall not effect any public sale or distribution
(including sales pursuant to Rule 144) of equity securities of the Company, or
any securities, options, or rights convertible into or exchangeable or
exercisable for such securities, during the 7 days prior to and the 180-day
period beginning on the effective date of any initial public offering or any
underwritten Demand Registration or any underwritten Piggyback Registration in
which Registrable Securities are included (except as part of such underwritten
registration or pursuant to registrations on Form S-4 or Form S-8 or any
successor form), unless the underwriters managing the registered public offering
otherwise agree.
(b) The Company (i) shall not effect any public sale or distribution
of its equity securities, or any securities, options, or rights convertible into
or exchangeable or exercisable for such securities, during the 7 days prior to
and during the 180-day period beginning on the effective date of any
underwritten Demand Registration or any underwritten Piggyback Registration
(except as part of such underwritten registration or pursuant to registrations
on Form S-8 or any successor
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form), unless the underwriters managing the registered public offering otherwise
agree, and (ii) to the extent not inconsistent with applicable law, shall cause
each holder of its equity securities, or any securities convertible into or
exchangeable or exercisable for equity securities, purchased from the Company at
any time after the date of this Agreement (other than in a registered public
offering) to agree not to effect any public sale or distribution (including
sales pursuant to Rule 144) of any such securities during such period (except as
part of such underwritten registration, if otherwise permitted), unless the
underwriters managing the registered public offering otherwise agree.
4. REGISTRATION PROCEDURES. Whenever the holders of Registrable
Securities have requested that any Registrable Securities be registered pursuant
to this Agreement, the Company shall use its best efforts to effect the
registration and the sale of such Registrable Securities in accordance with the
intended method of disposition thereof, and pursuant thereto the Company shall
as expeditiously as possible:
(a) prepare and, within 60 days after the end of the period within
which requests for registration may be given to the Company, file with the
Securities and Exchange Commission a registration statement with respect to such
Registrable Securities and use its best efforts to cause such registration
statement to become effective (provided that, before filing a registration
statement or prospectus or any amendments or supplements thereto, the Company
shall furnish to the counsel selected by the holders of a majority of the
Investor Registrable Securities covered by such registration statement copies of
all such documents proposed to be filed, which documents shall be subject to the
review and comment of such counsel);
(b) notify in writing each holder of Registrable Securities of the
effectiveness of each registration statement filed hereunder and prepare and
file with the Securities and Exchange Commission such amendments and supplements
to such registration statement and the prospectus used in connection therewith
as may be necessary to keep such registration statement effective for a period
of not less than 180 days (or, if such registration statement relates to an
underwritten offering, such longer period as in the opinion of counsel for the
underwriters a prospectus is required by law to be delivered in connection with
sales of Registrable Securities by an underwriter or dealer) and comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the sellers thereof set
forth in such registration statement;
(c) furnish to each seller of Registrable Securities such number of
copies of such registration statement, each amendment and supplement thereto,
the prospectus included in such registration statement (including each
preliminary prospectus), and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such seller;
(d) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions as
any seller reasonably requests and do any and all other acts and things which
may be reasonably necessary or advisable to enable such seller of Registrable
Securities to consummate the disposition in such jurisdictions of the
Registrable Securities owned by such seller of Registrable Securities (provided
that the Company shall not be
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required to (i) qualify generally to do business in any jurisdiction where it
would not otherwise be required to qualify but for this SECTION 4(d), (ii)
subject itself to taxation in any such jurisdiction, or (iii) consent to general
service of process in any such jurisdiction);
(e) promptly notify in writing each seller of such Registrable
Securities, at any time when a prospectus relating thereto is required to be
delivered under the Securities Act, of the happening of any event as a result of
which the prospectus included in such registration statement contains an untrue
statement of a material fact or omits any fact necessary to make the statements
therein not misleading in light of the circumstances under which they were made,
and, at the request of the holders of a majority of the Registrable Securities
covered by such registration statement, the Company shall promptly prepare and
furnish to each such seller a reasonable number of copies of a supplement or
amendment to such prospectus so that, as thereafter delivered to the purchasers
of such Registrable Securities, such prospectus shall not contain an untrue
statement of a material fact or omit to state any fact necessary to make the
statements therein not misleading in light of the circumstances under which they
were made;
(f) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed and, if not so listed, to be listed on the NASD automated quotation
system and, if listed on the NASD automated quotation system, use its best
efforts to secure designation of all such Registrable Securities covered by such
registration statement as a NASDAQ "national market system security" within the
meaning of Rule 11Aa2-1 of the Securities and Exchange Commission or, failing
that, to secure NASDAQ authorization for such Registrable Securities;
(g) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement;
(h) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the holders of
a majority of the Registrable Securities being sold or the underwriters, if any,
reasonably request in order to expedite or facilitate the disposition of
Registrable Securities (including effecting a unit split or a combination of
units);
(i) make available for inspection by any underwriter participating
in any disposition pursuant to such registration statement, and any attorney,
accountant, or other agent retained by any such underwriter, all financial and
other records, pertinent corporate documents and properties of the Company, and
cause the Company's officers, directors, employees, and independent accountants
to supply all information reasonably requested by any such underwriter,
attorney, accountant, or agent in connection with such registration statement
and assist and, at the request of any participating underwriter, use reasonable
best efforts to cause such officers or directors to participate in presentations
to prospective purchasers;
(j) otherwise use its best efforts to comply with all applicable
rules and regulations of the Securities and Exchange Commission, and make
available to its security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least twelve months beginning with
the first day of the Company's first full calendar quarter after the effective
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date of the registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(k) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any equity securities included in such registration statement for sale in any
jurisdiction, the Company shall use its best efforts promptly to obtain the
withdrawal of such order;
(l) use its best efforts to cause such Registrable Securities
covered by such registration statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary to enable the
sellers thereof to consummate the disposition of such Registrable Securities;
(m) obtain one or more cold comfort letters, dated the effective
date of such registration statement (and, if such registration includes an
underwritten public offering, dated the date of the closing under the
underwriting agreement), from the Company's independent public accountants in
customary form and covering such matters of the type customarily covered by cold
comfort letters as the holders of a majority of the Registrable Securities being
sold in such registered offering reasonably request (provided that such
Registrable Securities constitute at least 10% of the securities covered by such
registration statement); and
(n) provide a legal opinion of the Company's outside counsel, dated
the effective date of such registration statement (or, if such registration
includes an underwritten public offering, dated the date of the closing under
the underwriting agreement), with respect to the registration statement, each
amendment and supplement thereto, the prospectus included therein (including the
preliminary prospectus) and such other documents relating thereto in customary
form and covering such matters of the type customarily covered by legal opinions
of such nature.
5. REGISTRATION EXPENSES.
(a) Subject to SECTION 5(b) below, all expenses incident to the
Company's performance of or compliance with this Agreement, including all
registration and filing fees, fees and expenses of compliance with securities or
blue sky laws, printing expenses, travel expenses, filing expenses, messenger
and delivery expenses, fees and disbursements of custodians, and fees and
disbursements of counsel for the Company, and fees and disbursements of all
independent certified public accountants, underwriters including, if necessary,
a "qualified independent underwriter" within the meaning of the rules of the
National Association of Securities Dealers, Inc. (in each case, excluding
discounts and commissions), and other Persons retained by the Company or by
holders of Investor Registrable Securities or their affiliates on behalf of the
Company (all such expenses being herein called "REGISTRATION EXPENSES"), shall
be borne as provided in this Agreement, except that the Company shall, in any
event, pay its internal expenses (including all salaries and expenses of its
officers and employees performing legal or accounting duties), the expense of
any annual audit or quarterly review, the expense of any liability insurance,
and the expenses and fees for listing the securities to be registered on each
securities exchange on which similar securities issued by the
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Company are then listed or on the NASD automated quotation system (or any
successor or similar system).
(b) In connection with each Demand Registration and each Piggyback
Registration, the Company shall reimburse the holders of Registrable Securities
included in such registration for the reasonable fees and disbursements of one
counsel chosen by the holders of a majority of the Investor Registrable
Securities included in such registration.
(c) To the extent Registration Expenses are not required to be paid
by the Company, each holder of securities included in any registration hereunder
shall pay those Registration Expenses allocable to the registration of such
holder's securities so included, and any Registration Expenses not so allocable
shall be borne by all sellers of securities included in such registration in
proportion to the aggregate selling price of the securities to be so registered.
6. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless, to the
fullest extent permitted by law, each holder of Registrable Securities, its
officers, directors, agents, and employees, and each Person who controls such
holder (within the meaning of the Securities Act) against all losses, claims,
damages, liabilities, and expenses (or actions or proceedings, whether commenced
or threatened, in respect thereof), whether joint and several or several,
together with reasonable costs and expenses (including reasonable attorney's
fees) to which any such indemnified party may become subject under the
Securities Act or otherwise (collectively, "LOSSES") caused by, resulting from,
arising out of, based upon, or relating to (i) any untrue or alleged untrue
statement of material fact contained in (A) any registration statement,
prospectus or preliminary prospectus, or any amendment thereof or supplement
thereto or (B) any application or other document or communication (in this
SECTION 6, collectively called an "APPLICATION") executed by or on behalf of the
Company or based upon written information furnished by or on behalf of the
Company filed in any jurisdiction in order to qualify any securities covered by
such registration under the "BLUE SKY" or securities laws thereof or (ii) any
omission or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, and the Company will
reimburse such holder and each such director, officer, and controlling Person
for any legal or any other expenses incurred by them in connection with
investigating or defending any such Losses; PROVIDED that the Company shall not
be liable in any such case to the extent that any such Losses result from, arise
out of, are based upon, or relate to an untrue statement or alleged untrue
statement, or omission or alleged omission, made in such registration statement,
any such prospectus, or preliminary prospectus or any amendment or supplement
thereto, or in any application, in reliance upon, and in conformity with,
written information prepared and furnished in writing to the Company by such
holder expressly for use therein or by such holder's failure to deliver a copy
of the registration statement or prospectus or any amendments or supplements
thereto after the Company has furnished such holder with a sufficient number of
copies of the same. In connection with an underwritten offering, the Company
shall indemnify such underwriters, their officers and directors, and each Person
who controls such underwriters (within the meaning of the Securities Act) to the
same extent as provided above with respect to the indemnification of the holders
of Registrable Securities.
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(b) In connection with any registration statement in which a holder
of Registrable Securities is participating, each such holder will furnish to the
Company in writing such information and affidavits as the Company reasonably
requests for use in connection with any such registration statement or
prospectus and, to the fullest extent permitted by law, shall indemnify and hold
harmless the other holders of Registrable Securities and the Company, and their
respective officers, directors, agents, and employees, and each other Person who
controls the Company (within the meaning of the Securities Act) against any
Losses caused by, resulting from, arising out of, based upon, or relating to (i)
any untrue or alleged untrue statement of material fact contained in the
registration statement, prospectus or preliminary prospectus, or any amendment
thereof or supplement thereto or in any application, or (ii) any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading, but only to the extent that such
untrue statement or omission is made in such registration statement, any such
prospectus or preliminary prospectus or any amendment or supplement thereto, or
in any application in reliance upon and in conformity with written information
prepared and furnished to the Company by such holder expressly for use therein,
and such holder will reimburse the Company and each such other indemnified party
for any legal or any other expenses incurred by them in connection with
investigating or defending any such Losses; PROVIDED that the obligation to
indemnify will be individual, not joint and several, for each holder and shall
be limited to the net amount of proceeds received by such holder from the sale
of Registrable Securities pursuant to such registration statement.
(c) Any Person entitled to indemnification hereunder will (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification (provided that the failure to give prompt notice
shall not impair any Person's right to indemnification hereunder to the extent
such failure has not prejudiced the indemnifying party) and (ii) unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is assumed,
then the indemnifying party will not be subject to any liability for any
settlement made by the indemnified party without its consent (but such consent
will not be unreasonably withheld). 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.
(d) The indemnification provided for under this Agreement shall be
in addition to any other rights to indemnification or contribution which any
indemnified party may have pursuant to law or contract, and will remain in full
force and effect regardless of any investigation made or omitted by or on behalf
of the indemnified party or any officer, director, or controlling Person of such
indemnified party and shall survive the transfer of securities.
(e) If the indemnification provided for in this SECTION 6 is
unavailable to or is insufficient to hold harmless an indemnified party under
the provisions above in respect to any Losses referred to therein, then each
indemnifying party shall contribute to the amount paid or
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payable by such indemnified party as a result of such Losses (i) in such
proportion as is appropriate to reflect the relative fault of the Company on the
one hand and the sellers of Registrable Securities and any other sellers
participating in the registration statement on the other hand or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, then
in such proportion as is appropriate to reflect not only the relative fault
referred to in clause (i) above but also the relative benefit of the Company on
the one hand and of the sellers of Registrable Securities and any other sellers
participating in the registration statement on the other in connection with the
statement or omissions which resulted in such Losses, as well as any other
relevant equitable considerations. The relative benefits received by the Company
on the one hand and the sellers of Registrable Securities and any other sellers
participating in the registration statement on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering (before
deducting expenses) to the Company bear to the total net proceeds from the
offering (before deducting expenses) to the sellers of Registrable Securities
and any other sellers participating in the registration statement. The relative
fault of the Company on the one hand and of the sellers of Registrable
Securities and any other sellers participating in the registration statement on
the other shall be determined by reference to, among other things, whether the
untrue statement or alleged omission to state a material fact relates to
information supplied by the Company or by the sellers of Registrable Securities
or other sellers participating in the registration statement and the parties'
relative intent, knowledge, access to information, and opportunity to correct or
prevent such statement or omission.
(f) The Company and the sellers of Registrable Securities agree that
it would not be just and equitable if contribution pursuant to this SECTION 6
were determined by pro rata allocation (even if the sellers of Registrable
Securities were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations
referred to in SECTION 6(e) above. The amount paid or payable by an indemnified
party as a result of the Losses referred to in SECTION 6(e) above shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this SECTION 6, no seller of Registrable Securities shall be
required to contribute pursuant to this SECTION 6 any amount in excess of the
sum of (i) any amounts paid pursuant to SECTION 6(b) above and (ii) the net
proceeds received by such seller from the sale of Registrable Securities covered
by the registration statement filed pursuant hereto. 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.
7. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS.
(a) No Person may participate in any underwritten registration
hereunder unless such Person (i) agrees to sell such Person's securities on the
basis provided in any underwriting arrangements approved by the Person or
Persons entitled hereunder to approve such arrangements (including pursuant to
the terms of any over-allotment or "GREEN SHOE" option requested by the managing
underwriter(s), PROVIDED that no holder of Registrable Securities will be
required to sell more than the number of Registrable Securities that such holder
has requested the Company to include in any registration) and (ii) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements, and other documents reasonably required under the terms of
10
such underwriting arrangements; PROVIDED that no holder of Registrable
Securities included in any underwritten registration shall be required to make
any representations or warranties to the Company or the underwriters (other than
representations and warranties regarding such holder and such holder's intended
method of distribution) or to undertake any indemnification obligations to the
Company or the underwriters with respect thereto, except as otherwise provided
in SECTION 6 hereof.
(b) Each Person that is participating in any registration hereunder
agrees that, upon receipt of any notice from the Company of the happening of any
event of the kind described in SECTION 4(e) above, such Person will immediately
discontinue the disposition of its Registrable Securities pursuant to the
registration statement until such Person's receipt of the copies of a
supplemented or amended prospectus as contemplated by SECTION 4(e). In the event
the Company shall give any such notice, the applicable time period mentioned in
SECTION 4(b) during which a Registration Statement is to remain effective shall
be extended by the number of days during the period from and including the date
of the giving of such notice pursuant to this SECTION 7(b) to and including the
date when each seller of a Registrable Security covered by such registration
statement shall have received the copies of the supplemented or amended
prospectus contemplated by SECTION 4(e).
8. ADDITIONAL SECURITYHOLDERS. In connection with the issuance of any
additional equity securities of the Company, the Company, with the consent of
GTCR Fund VII, may permit such Person to become a party to this Agreement and
succeed to all of the rights and obligations of a holder of any particular
category of Registrable Securities under this Agreement by obtaining an executed
counterpart signature page to this Agreement, and, upon such execution, such
Person shall for all purposes be a holder of such category of Registrable
Securities and party to this Agreement.
9. SUBSIDIARY PUBLIC OFFERING. If, after an initial public offering of
the equity securities of a Subsidiary of the LLC, the LLC distributes securities
of such Subsidiary to members of the LLC, then the rights and obligations of the
Company pursuant to this Agreement shall apply, mutatis mutandis, to such
Subsidiary, and the LLC or the Company, as applicable, shall cause such
Subsidiary to comply with such Subsidiary's obligations under this Agreement.
10. DEFINITIONS.
(a) "COMMON STOCK" means, collectively, (i) following the
organization of a corporation and reorganization or recapitalization of the LLC
into the Company as provided in SECTION 1(a) above, the common equity securities
of the Company and any other class or series of authorized capital stock of the
Company that is not limited to a fixed sum or percentage of par or stated value
in respect of the rights of the holders thereof to participate in dividends or
in the distribution of assets upon any liquidation, dissolution or winding up of
the Company and (ii) the common stock of TSI Telecommunication Holdings, Inc.
and any other common stock of a Subsidiary of either the LLC or the Company
distributed by the LLC or the Company to its unitholders or shareholders, as
applicable.
(b) "EXECUTIVE REGISTRABLE SECURITIES" means, (i) any Common Stock
issued or distributed in respect of units of the LLC issued to the Executive and
(ii) common equity securities of the Company or a Subsidiary of either the LLC
or the Company issued or issuable with respect to
11
the securities referred to in clause (i) above by way of dividend, distribution,
split or combination of securities, or any recapitalization, merger,
consolidation or other reorganization.
(c) "INVESTOR REGISTRABLE SECURITIES" means, (i) any Common Stock
issued or distributed in respect of units of the LLC issued to the Investors
pursuant to the Purchase Agreement, (ii) common equity securities of the Company
or a Subsidiary of either the LLC or the Company issued or issuable with respect
to the securities referred to in clause (i) above by way of dividend,
distribution, split or combination of securities, or any recapitalization,
merger, consolidation or other reorganization, and (iii) other Common Stock held
by Persons holding securities described in clause (i) above.
(d) "LLC AGREEMENT" means that certain Limited Liability Company
Agreement of TSI Telecommunication Holdings, LLC, dated as of February 14, 2002.
(e) "OTHER REGISTRABLE SECURITIES" means, (i) any Common Stock
issued or distributed in respect of units of the LLC issued to the Other
Securityholders and (ii) common equity securities of the Company or a Subsidiary
of either the LLC or the Company issued or issuable with respect to the
securities referred to in clause (i) above by way of dividend, distribution,
split or combination of securities, or any recapitalization, merger,
consolidation or other reorganization.
(f) "PERSON" means an individual, a partnership, a limited
liability company, a corporation, an association, a joint stock company, a
trust, a joint venture, an unincorporated organization, an investment fund, any
other business entity and a governmental entity or any department, agency or
political subdivision thereof.
(g) "PURCHASER REGISTRABLE SECURITIES" means, (i) any Common Stock
issued or distributed in respect of units of the LLC issued to Purchaser and
(ii) common equity securities of the Company or a Subsidiary of either the LLC
or the Company issued or issuable with respect to the securities referred to in
clause (i) above by way of dividend, distribution, split or combination of
securities, or any recapitalization, merger, consolidation or other
reorganization.
(h) "REGISTRABLE SECURITIES" means the Investor Registrable
Securities, the Executive Registrable Securities, the Purchaser Registrable
Securities and the Other Registrable Securities. As to any particular
Registrable Securities, such securities shall cease to be Registrable Securities
when they (i) have been distributed to the public pursuant to an offering
registered under the Securities Act or sold to the public through a broker,
dealer, or market maker in compliance with Rule 144 under the Securities Act (or
any similar rule then in force), (ii) unless the respective Investor otherwise
elects, have been distributed to the limited partners of any of the Investors,
(iii) have been effectively registered under a registration statement including,
without limitation, a registration statement on Form S-8 (or any successor
form), or (iv) have been repurchased by the Company. For purposes of this
Agreement, a Person shall be deemed to be a holder of Registrable Securities
whenever such Person has the right to acquire such Registrable Securities (upon
conversion or exercise in connection with a transfer of securities or otherwise,
but disregarding any restrictions or limitations upon the exercise of such
right), whether or not such acquisition has actually been effected; PROVIDED
that this sentence shall not apply to shares of the common equity
12
securities of the Company issuable upon the exercise of unvested options
originally issued to employees or former employees of the LLC, the Company or
their Subsidiaries.
(i) "SECURITIES ACT" means the Securities Act of 1933, as amended,
or any successor federal law then in force, together with all rules and
regulations promulgated thereunder.
(j) "SECURITIES EXCHANGE ACT" means the Securities Exchange Act of
1934, as amended, or any successor federal law then in force, together with all
rules and regulations promulgated thereunder.
(k) "SUBSIDIARY" means, with respect to any Person, any corporation,
limited liability company, partnership, association, or business entity of which
(i) if a corporation, a majority of the total voting power of shares of stock
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers, or trustees thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof, or (ii) if a limited
liability company, partnership, association, or other business entity (other
than a corporation), a majority of partnership or other similar ownership
interest thereof is at the time owned or controlled, directly or indirectly, by
that Person or one or more Subsidiaries of that Person or a combination thereof.
For purposes hereof, a Person or Persons shall be deemed to have a majority
ownership interest in a limited liability company, partnership, association, or
other business entity (other than a corporation) if such Person or Persons shall
be allocated a majority of limited liability company, partnership, association,
or other business entity gains or losses or shall be or control any managing
director or general partner of such limited liability company, partnership,
association, or other business entity. For purposes hereof, references to a
"Subsidiary" of any Person shall be given effect only at such times that such
Person has one or more Subsidiaries, and, unless otherwise indicated, the term
"Subsidiary" refers to a Subsidiary of the Company.
(l) Unless otherwise stated, other capitalized terms contained
herein have the meanings set forth in the Purchase Agreement.
11. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. Neither the LLC nor the Company will
hereafter enter into any agreement with respect to its securities that is
inconsistent with or violates the rights granted to the holders of Registrable
Securities in this Agreement.
(b) ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. The Company shall
not take any action, or permit any change to occur, with respect to its
securities that would adversely affect the ability of the holders of Registrable
Securities to include such Registrable Securities in a registration undertaken
pursuant to this Agreement or that would adversely affect the marketability of
such Registrable Securities in any such registration (including effecting a unit
split or a combination of units).
(c) REMEDIES. Any Person having rights under any provision of this
Agreement shall be entitled to enforce such rights specifically to recover
damages caused by reason of any
13
breach of any provision of this Agreement and to exercise all other rights
granted by law. The parties hereto agree and acknowledge that money damages may
not be an adequate remedy for any breach of the provisions of this Agreement and
that any party may in its sole discretion apply to any court of law or equity of
competent jurisdiction (without posting any bond or other security) for specific
performance and for other injunctive relief in order to enforce or prevent
violation of the provisions of this Agreement. Nothing contained in this
Agreement shall be construed to confer upon any Person who is not a signatory
hereto any rights or benefits, whether as a third-party beneficiary or
otherwise.
(d) AMENDMENTS AND WAIVERS. Except as otherwise provided herein, no
modification, amendment, or waiver of any provision of this Agreement shall be
effective against the LLC, the Company or the holders of Registrable Securities
unless such modification, amendment, or waiver is approved in writing by the LLC
or the Company, as the case may be, and (i) holders of at least a majority of
the Registrable Securities or (ii) prior to the organization of a corporation
and reorganization or recapitalization of the LLC pursuant to SECTION 15.7 of
the LLC Agreement, holders of a majority of the Common Units (as defined in the
LLC Agreement); PROVIDED that no such amendment or modification that would
materially and adversely affect holders of one class or group of Registrable
Securities in a manner different than holders of any other class or group of
Registrable Securities (other than amendments and modifications required to
implement the provisions of SECTION 8) shall be effective against the holders of
such class or group of Registrable Securities without the prior written consent
of holders of at least a majority of Registrable Securities of such class or
group materially and adversely affected thereby. No failure by any party to
insist upon the strict performance of any covenant, duty, agreement, or
condition of this Agreement or to exercise any right or remedy consequent upon a
breach thereof shall constitute a waiver of any such breach or any other
covenant, duty, agreement, or condition.
(e) SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Agreement by or on behalf of any of the parties hereto shall bind and inure to
the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not. In addition, whether or not any express assignment
has been made, the provisions of this Agreement which are for the benefit of
purchasers or holders of Registrable Securities are also for the benefit of, and
enforceable by, any subsequent holder of Registrable Securities. Notwithstanding
the foregoing, in order to obtain the benefit of this Agreement, any subsequent
holder of Registrable Securities must execute a counterpart to this Agreement,
thereby agreeing to be bound the terms hereof.
(f) SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
(g) COUNTERPARTS. This Agreement may be executed simultaneously in
two or more counterparts (including by means of telecopied signature pages), any
one of which need not
14
contain the signatures of more than one party, but all such counterparts taken
together shall constitute one and the same Agreement.
(h) DESCRIPTIVE HEADINGS. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a substantive part of
this Agreement. Whenever required by the context, any pronoun used in this
Agreement shall include the corresponding masculine, feminine, or neuter forms,
and the singular form of nouns, pronouns, and verbs shall include the plural and
vice versa. The use of the word "INCLUDING" in this Agreement shall be, in each
case, by way of example and without limitation. The use of the words "OR,"
"EITHER," and "ANY" shall not be exclusive. Reference to any agreement,
document, or instrument means such agreement, document, or instrument as amended
or otherwise modified from time to time in accordance with the terms thereof,
and if applicable hereof.
(i) GOVERNING LAW. The law of the State of Delaware shall govern all
issues and questions concerning the relative rights of the LLC, the Company and
its securityholders. All other issues and questions concerning the construction,
validity, interpretation, and enforcement of this Agreement and the exhibits and
schedules hereto shall be governed by, and construed in accordance with, the
laws of the State of Delaware, without giving effect to any choice of law or
conflict of law rules or provisions (whether of the State of Delaware or any
other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Delaware.
(j) NOTICES. All notices, demands, or other communications to be
given or delivered under or by reason of the provisions of this Agreement shall
be in writing and shall be deemed to have been given when delivered personally
to the recipient, sent to the recipient by reputable overnight courier service
(charges prepaid) or mailed to the recipient by certified or registered mail,
return receipt requested and postage prepaid. Such notices, demands, and other
communications shall be sent to each Investor, each Executive, and each Other
Securityholder at the addresses indicated on the Schedule of Holders and to the
Company at the address of its corporate headquarters or to such other address or
to the attention of such other Person as the recipient party has specified by
prior written notice to the sending party.
(k) NO STRICT CONSTRUCTION. The parties hereto have participated
jointly in the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the parties hereto, and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any of the provisions of this Agreement.
* * * * *
15
IN WITNESS WHEREOF, the parties have executed this Registration
Agreement as of the date first written above.
TSI TELECOMMUNICATION HOLDINGS, LLC
By: /s/ G. Xxxxxx Xxxxx
Name: G. Xxxxxx Xxxxx
Its: Chief Executive Officer
GTCR FUND VII, L.P.
By: GTCR Partners VII, L.P.
Its: General Partner
By: GTCR Xxxxxx Xxxxxx, L.L.C.
Its: General Partner
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Its: Principal
GTCR FUND VII, L.P./A
By: GTCR Partners VII, L.P.
Its: General Partner
By: GTCR Xxxxxx Xxxxxx, L.L.C.
Its: General Partner
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Its: Principal
GTCR CO-INVEST, L.P.
By: GTCR Xxxxxx Xxxxxx, L.L.C.
Its: General Partner
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Its: Principal
SIGNATURE PAGES TO TSI SECURITYHOLDERS AGREEMENT
PAGE 1 OF 16
PURCHASER
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Director
SIGNATURE PAGES TO TSI SECURITYHOLDERS AGREEMENT
PAGE 2 OF 16
/s/ G. Xxxxxx Xxxxx
G. Xxxxxx Xxxxx
SIGNATURE PAGES TO TSI SECURITYHOLDERS AGREEMENT
PAGE 3 OF 16
/s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
SIGNATURE PAGES TO TSI SECURITYHOLDERS AGREEMENT
PAGE 4 OF 16
/s/ Xxxxxx Xxxxx
Xxxxxx Xxxxx
SIGNATURE PAGES TO TSI SECURITYHOLDERS AGREEMENT
PAGE 5 OF 16
/s/ Xxxxxx Xxxxxx, Jr.
Xxxxxx Xxxxxx, Jr.
SIGNATURE PAGES TO TSI SECURITYHOLDERS AGREEMENT
PAGE 6 OF 16
/s/ Xxxxxxx Xxxx
Xxxxxxx Xxxx
SIGNATURE PAGES TO TSI SECURITYHOLDERS AGREEMENT
PAGE 7 OF 16
/s/ Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxx
SIGNATURE PAGES TO TSI SECURITYHOLDERS AGREEMENT
PAGE 8 OF 16
/s/ Xxxxx Xxxxxx
Xxxxx Xxxxxx
SIGNATURE PAGES TO TSI SECURITYHOLDERS AGREEMENT
PAGE 9 OF 16
/s/ Xxxxxxx X'Xxxxx
Xxxxxxx X'Xxxxx
SIGNATURE PAGES TO TSI SECURITYHOLDERS AGREEMENT
PAGE 10 OF 16
/s/ Xxxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxx Xxxxxx Xxxxx
SIGNATURE PAGES TO TSI SECURITYHOLDERS AGREEMENT
PAGE 11 OF 16
/s/ Xxxx X. Xxxxxxx
Xxxx X. Xxxxxxx
SIGNATURE PAGES TO TSI SECURITYHOLDERS AGREEMENT
PAGE 12 OF 16
PROJECT NETWORK PARTNERS LLC
By: /s/ Xxxxxx Xxxx
Name: Xxxxxx Xxxx
Title: Treasurer
SIGNATURE PAGES TO TSI SECURITYHOLDERS AGREEMENT
PAGE 13 OF 16
/s/ Xxxxxxxxx Xxxxxxxx
Xxxxxxxxx Xxxxxxxx
SIGNATURE PAGES TO TSI SECURITYHOLDERS AGREEMENT
PAGE 14 OF 16
/s/ Xxxxx Xxxx
Xxxxx Xxxx
SIGNATURE PAGES TO TSI SECURITYHOLDERS AGREEMENT
PAGE 15 OF 16
/s/ Xxxx Xxxx
Xxxx Xxxx
SIGNATURE PAGES TO TSI SECURITYHOLDERS AGREEMENT
PAGE 16 OF 16
