Exhibit 4.18
12 1/8% SERIES B SENIOR REDEEMABLE EXCHANGEABLE
PREFERRED STOCK DUE 2004
REGISTRATION RIGHTS AGREEMENT
Dated as of October 2, 1997
by and among
EchoStar Communications Corporation
the ("Company")
and
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
and
Xxxxxx Brothers Inc.,
(as "Initial Purchasers")
This Registration Rights Agreement (this "REGISTRATION RIGHTS
AGREEMENT") is made and entered into as of October 2, 1997 by and among EchoStar
Communications Corporation, a Nevada corporation (the "COMPANY"), and Xxxxxxxxx,
Xxxxxx & Xxxxxxxx Securities Corporation and Xxxxxx Brothers Inc. (each, an
"INITIAL PURCHASER" and, together, the "INITIAL PURCHASERS"), each of whom has
agreed to purchase the Company's 121/8% Series B Senior Redeemable Exchangeable
Preferred Stock due 2004 (the "SENIOR PREFERRED STOCK") pursuant to the Purchase
Agreement.
This Registration Rights Agreement is made pursuant to the Purchase
Agreement, dated September 26, 1997 (the "PURCHASE AGREEMENT"), by and among the
Company and the Initial Purchasers. In order to induce the Initial Purchasers
to purchase the Senior Preferred Stock, the Company has agreed to provide the
registration rights set forth in this Registration Rights Agreement. The
execution and delivery of this Registration Rights Agreement is a condition to
the obligations of the Initial Purchasers set forth in Section 2 of the Purchase
Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Registration Rights Agreement, the following
capitalized terms shall have the following meanings:
ACT: The Securities Act of 1933, as amended.
ADVICE: As defined in Section 5 hereof.
BROKER-DEALER: Any broker or dealer registered under the Exchange
Act.
CERTIFICATE OF DESIGNATION: The certificate of designation filed by
the Company with the Secretary of State of Nevada for the authorization of the
Senior Preferred Stock and also (if applicable) for the authorization of the
Series C Preferred Stock.
CLOSING DATE: The date of this Registration Rights Agreement.
COMMISSION: The Securities and Exchange Commission.
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COMPANY: As defined in the preamble hereto.
CONSUMMATE: A Registered Exchange Offer shall be deemed "Consummated"
for purposes of this Registration Rights Agreement upon the occurrence of: (i)
the filing and effectiveness under the Act of the Exchange Offer Registration
Statement relating to the Registered Securities to be issued in the Exchange
Offer, (ii) the maintaining of such Registration Statement continuously
effective and the keeping of the Exchange Offer open for a period not less than
the minimum period required pursuant to Section 2(b) hereof, and (iii) the
delivery by the Company to the Registrar under the Exchange Indenture or the
Certificate of Designation of Registered Securities in the same aggregate
principal amount or liquidation preference as the aggregate principal amount or
liquidation preference of the Nonregistered Securities that were tendered by
Holders thereof pursuant to the Exchange Offer.
CONTROLLING PERSON: As defined in Section 7(a)(ii) hereof.
DAMAGES PAYMENT DATE: With respect to the Initial Securities, each
Dividend Payment Date or Interest Payment Date, as the case may be.
DIVIDEND PAYMENT DATE: As defined in the Certificate of Designation.
EFFECTIVENESS TARGET DATE: As defined in Section 5 hereof.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
EXCHANGE INDENTURE: The indenture, a form of which is attached as
Exhibit B to the Purchase Agreement, between the Company and the Trustee,
pursuant to which the Senior Exchange Notes are to be issued, as such indenture
may be amended or supplemented from time to time in accordance with the terms
thereof.
EXCHANGE OFFER: The transaction by which the Company requires the
Holders of all outstanding Transfer Restricted Securities to exchange all such
outstanding Transfer Restricted Securities for Registered Securities pursuant to
the Exchange Offer Registration Statement in any of the following manners: with
respect to the exchange of:
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(i) Registered Preferred Stock in an aggregate liquidation preference amount
equal to the aggregate liquidation preference amount of the Nonregistered
Preferred Stock tendered in such exchange offer by such Holders or
(ii) Registered Exchange Notes (A) in an aggregate principal amount equal to the
aggregate liquidation preference amount of the Nonregistered Preferred Stock
tendered in such exchange offer, if any, by such Holders or (B) in an aggregate
principal amount equal to the aggregate principal amount of the Nonregistered
Exchange Notes tendered in such exchange offer, if any, by such Holders.
EXCHANGE OFFER REGISTRATION STATEMENT: The Registration Statement
relating to the Exchange Offer, including the related Prospectus.
EXEMPT RESALES: The transactions in which the Initial Purchasers
propose to sell the Nonregistered Securities to certain "qualified institutional
buyers," as such term is defined in Rule 144A under the Act, and to certain
institutional "accredited investors," as such term is defined in Rule 501(a)(1),
(2), (3) and (7) of Regulation D under the Act ("ACCREDITED INSTITUTIONS").
HOLDER: Any Person who owns Transfer Restricted Securities.
INDEMNIFIED HOLDER: As defined in Section 7(a) hereof.
INITIAL PURCHASER and INITIAL PURCHASERS: As defined in the preamble
hereto.
INTEREST PAYMENT DATE: As defined in the Exchange Indenture.
LOSSES: As defined in Section 7(a) hereof.
NASD: National Association of Securities Dealers, Inc.
NONREGISTERED EXCHANGE NOTES: The Company's 121/8% Senior Exchange
Notes due 2004, which will have substantially the same rights and preferences as
the Senior Exchange Notes, which are Transfer Restricted Securities.
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NONREGISTERED PREFERRED STOCK: Either the Senior Preferred Stock or
the Series C Preferred Stock to the extent such are Transfer Restricted
Securities.
NONREGISTERED SECURITIES: The Nonregistered Preferred Stock and the
Nonregistered Exchange Notes.
PERSON: An individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
PROSPECTUS: The prospectus included in a Registration Statement, as
amended or supplemented by any prospectus supplement and by all other amendments
thereto, including post-effective amendments, and all material incorporated by
reference into such Prospectus.
PURCHASE AGREEMENT: As defined in the preamble hereto.
RECORD HOLDER: With respect to any Dividend Payment Date or Interest
Payment Date, as the case may be, each Person who is a Holder of Nonregistered
Securities on the record date with respect to such Dividend Payment Date or
Interest Payment Date, as the case may be.
REGISTERED EXCHANGE NOTES: The Company's 12 1/8% Senior Exchange
Notes due 2004, which will have substantially the same rights and preferences as
the Senior Exchange Notes, to be issued pursuant to the Exchange Offer.
REGISTERED PREFERRED STOCK: The series of the Company's Senior
Preferred Stock or the Series C Preferred Stock, as appropriate, to be issued
pursuant to the Exchange Offer Registration Statement.
REGISTRATION DEFAULT: As defined in Section 4 hereof.
REGISTRATION RIGHTS AGREEMENT: As defined in the preamble hereto.
REGISTRATION SECURITIES: The Registered Preferred Stock and the
Registered Exchange Notes.
REGISTRATION STATEMENT: The Exchange Registration Statement and the
Shelf Registration Statement, as applicable, in each case, including the
Prospectus included therein, all
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amendments and supplements thereto (including post-effective amendments) and all
exhibits and material incorporated by reference therein.
SECURITIES: The Nonregistered Securities and the Registered
Securities, as appropriate.
SENIOR EXCHANGE NOTES: The Company's 121/8% Senior Exchange Notes due
2004 to be issued pursuant to the Indenture in the Exchange Offer.
SENIOR PREFERRED STOCK: As defined in the preamble hereto.
SERIES C PREFERRED STOCK: The Company's 12 1/8% Series C Senior
Exchangeable Redeemable Preferred Stock due 2004, which will have substantially
the same rights and preferences as the Senior Preferred Stock, to be issued
pursuant to the Certificate of Designation, or any subsequent series of
Nonregistered Preferred Stock into which such preferred stock is exchanged if
Series C has previously been issued for any other purpose.
SHELF FILING DEADLINE: As defined in Section 4 hereof.
SHELF REGISTRATION STATEMENT: As defined in Section 3 hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb)
as in effect on the date of the Indenture.
TRANSFER RESTRICTED SECURITIES: Each Nonregistered Security, until
the earliest to occur of (a) the date on which such Nonregistered Security is
exchanged by a Person other than a Broker-Dealer for an Exchange Security in the
Exchange Offer and, as a result, is entitled to be resold to the public by the
Holder thereof without complying with the prospectus delivery requirements of
the Act, (b) following the exchange by a Broker-Dealer in the Exchange Offer of
a Nonregistered Security for a Registered Security, the date on which such
Registered Security is sold to a purchaser who receives from such Broker-Dealer
on or prior to the date of such sale a copy of the Prospectus contained in the
Exchange Offer Registration Statement, (c) the date on which such Security has
been effectively registered under the Act and disposed of in accordance with a
Shelf Registration Statement, (d) the date
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on which such Security is distributed to the public pursuant to Rule 144 under
the Act (or any similar provision than in effect) or is saleable pursuant to
Rule 144(k) under the Act, and (e) the date upon which such Security ceases to
be outstanding.
TRUSTEE: The Person to be trustee under the Exchange Indenture as such
Person may be appointed by the Company.
UNDERWRITTEN REGISTRATION or UNDERWRITTEN OFFERING: A registration in
which securities of the Company are sold to an underwriter for reoffering to the
public pursuant to the Act.
SECTION 2. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permissible under
applicable law or Commission policy (after the procedures set forth in Section
6(a) below have been complied with), the Company shall (i) cause to be filed
with the Commission on or prior to 45 days after the Closing Date, a
Registration Statement under the Act relating to the Registered Securities and
the Exchange Offer, (ii) use commercially reasonable efforts to cause such
Registration Statement to become effective on or prior to 150 days after the
Closing Date, (iii) in connection with the foregoing, file (A) all pre-effective
amendments to such Registration Statement as may be necessary in order to cause
such Registration Statement to become effective, (B) if applicable, a
post-effective amendment to such Registration Statement pursuant to Rule 430A
under the Act and (C) cause all necessary filings in connection with the
registration and qualification of the Registered Securities to be made under the
Blue Sky laws of such jurisdictions as are necessary to permit Consummation of
the Exchange Offer, and (iv) upon the effectiveness of such Registration
Statement, commence the Exchange Offer and use commercially reasonable efforts
to cause the Exchange Offer to be Consummated on the earliest practicable date
after the Exchange Offer Registration Statement has become effective, but in no
event later than 180 days after the Closing Date. The Exchange Offer shall be
on the appropriate form permitting registration of the Registered Securities to
be offered in exchange for the Transfer Restricted Securities and to permit
resales of Securities held by Broker-Dealers as contemplated by Section 2(c)
below.
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(b) The Company shall cause the Exchange Offer Registration Statement
to be effective continuously and shall keep the Exchange Offer open for a period
of not less than the minimum period required under applicable federal and state
securities laws to Consummate the Exchange Offer, provided, however, that in no
event shall such period be less than 10 nor more than 60 business days. The
Company shall cause the Exchange Offer to comply with all applicable federal and
state securities laws. No securities other than the Securities shall be
included in the Exchange Offer Registration Statement. The Company shall use
its comedically reasonable efforts to cause the Exchange Offer to be Consummated
on the earliest practicable date after the Exchange Offer Registration Statement
has become effective, but in no event later than 30 business days thereafter.
(c) The Company shall indicate in a "Plan of Distribution" section
contained in the Prospectus contained in the Exchange Offer Registration
Statement that any Broker-Dealer who holds Nonregistered Securities which are
Transfer Restricted Securities and which were acquired for its own account as a
result of market-making activities or other trading activities (other than
Transfer Restricted Securities acquired directly from the Company), may exchange
such Nonregistered Securities pursuant to the Exchange Offer; however, such
Broker-Dealer may be deemed to be an "underwriter" within the meaning of the Act
and must, therefore, deliver a prospectus meeting the requirements of the Act in
connection with any resales of the Registered Securities received by such
Broker-Dealer in the Exchange Offer, which prospectus delivery requirement may
be satisfied by the delivery by such Broker-Dealer of the Prospectus contained
in the Exchange Offer Registration Statement. Such "Plan of Distribution"
section shall also contain all other information with respect to such resales by
Broker-Dealers that the Commission may require in order to permit such resales
pursuant thereto, but such "Plan of Distribution" shall not name any such
Broker-Dealer or disclose the amount of Securities held by any such
Broker-Dealer except to the extent required by the Commission as a result of a
change in policy after the date of this Registration Rights Agreement.
The Company shall use its best efforts to keep the Exchange Offer
Registration Statement continuously effective, supplemented and amended as
required by the provisions of Section 5(c) below to the extent necessary to
ensure that it is available for resales of Securities acquired by Broker-Dealers
for their own accounts as a result of market-making
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activities or other trading activities, and to ensure that it conforms with the
requirements of this Registration Rights Agreement, the Act and the policies,
rules and regulations of the Commission as announced from time to time, for a
period of one year from the date on which the Exchange Offer Registration
Statement is declared effective.
The Company shall provide sufficient copies of the latest version of
such Prospectus to Broker-Dealers promptly upon request at any time during such
one-year period in order to facilitate such resales.
SECTION 3. SHELF REGISTRATION
(a) SHELF REGISTRATION. If (i) the Company is not required to file
an Exchange Offer Registration Statement or permitted to Consummate the Exchange
Offer because the Exchange Offer is not permitted by applicable law or
Commission policy (after the procedures set forth in Section 5(a) below have
been complied with) or (ii) if any Holder of Transfer Restricted Securities
shall notify the Company within 20 business days of the Consummation of the
Exchange Offer (A) that such Holder is prohibited by applicable law or
Commission policy from participating in the Exchange Offer, or (B) that such
Holder may not resell the Registered Securities acquired by it in the Exchange
Offer to the public without delivering a Prospectus and that the Prospectus
contained in the Exchange Offer Registration Statement is not appropriate or
available for such resales by such Holder, or (C) that such Holder is a
Broker-Dealer and holds Nonregistered Securities acquired directly from the
Company or one of its affiliates, then the Company shall
(x) cause to be filed a shelf registration statement pursuant to
Rule 415 under the Act, which may be an amendment to the Exchange Offer
Registration Statement (in either event, the "Shelf Registration Statement") on
or prior to the earliest to occur of the 150th day after the Closing Date (the
"SHELF FILING DEADLINE"), which Shelf Registration Statement shall provide for
resales of all Transfer Restricted Securities the Holders of which shall have
provided the information required pursuant to Section 3(b) hereof; and
(y) use its commercially reasonable efforts to cause such Shelf
Registration Statement to be declared effective by the Commission on or before
the 30th day after the Shelf Filing Deadline.
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The Company shall use its best efforts to keep such Shelf Registration Statement
continuously effective, supplemented and amended as required by the provisions
of Sections 5(b) and (c) hereof to the extent necessary to ensure that it is
available for resales of Securities by the Holders of Transfer Restricted
Securities entitled to the benefit of this Section 4(a), and to ensure that it
conforms with the requirements of this Registration Rights Agreement, the Act
and the policies, rules and regulations of the Commission as announced from time
to time, for a period constituting the earlier of the date transfer restrictions
are no longer applicable to any Transfer Restricted Securities and three years
following the Closing Date.
(b) PROVISION BY HOLDERS OF CERTAIN INFORMATION IN CONNECTION WITH
THE SHELF REGISTRATION STATEMENT. No Holder of Transfer Restricted Securities
may include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Registration Rights Agreement unless and until such
Holder furnishes to the Company in writing, within 20 business days after
receipt of a request therefore, such information as the Company may reasonably
request for use in connection with any Shelf Registration Statement or
Prospectus or preliminary Prospectus included therein. No Holder of Transfer
Restricted Securities shall be entitled to liquidated damages pursuant to
Section 4 hereof unless and until such Holder shall have used its best efforts
to provide all such reasonably requested information. Each Holder as to which
any Shelf Registration Statement is being effected agrees to furnish promptly to
the Company all information required to be disclosed in order to make the
information previously furnished to the Company by such Holder not materially
misleading.
SECTION 4. LIQUIDATED DAMAGES
(a) If (1)(i) the Company fails to file the Exchange Offer with the
Commission on or prior to 45 days after the Closing Date, (ii) the Exchange
Offer Registration Statement has not been declared effective by the Commission
on or prior to 150 days after the Closing Date, (iii) the Exchange Offer has not
been Consummated within 180 days after the Closing Date with respect to the
Exchange Offer Registration Statement, or (iv) a Shelf Registration Statement
has not been declared effective within 150 days after the Closing Date (each
such event referred to in clauses (i) through (iv), a "REGISTRATION DEFAULT"),
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(2) the Company hereby agrees to pay liquidated damages to each
Holder of Transfer Restricted Securities from and including the next day
following each of (i) such 45-day period immediately following the occurrence of
such Registration Default in the case of clause (i) above, (ii) such 150-day
period immediately following the occurrence of such Registration Default in the
case of clause (ii) above, (iii) such 180-day period immediately following the
occurrence of such Registration Default in the case of clause (ii) above, or
(iv) such 150-day period immediately following the occurrence of such
Registration Default in the case of clause (iv) above, in the case of each of
the clauses (i) through (iv) in an amount equal to $.05 per week per $1,000 in
principal amount or liquidation preference, as the case may be, of Transfer
Restricted Securities held by such Holder for each week or portion thereof that
the Registration Default continues (determined on a daily basis).
(3) The amount of the liquidated damages shall increase by an
additional $.05 per week per $1,000 in principal amount or liquidation
preference, as the case may be, of Transfer Restricted Securities with respect
to each subsequent 90-day period until all Registration Defaults have been
cured, up to a maximum amount of liquidated damages of $.40 per week per $1,000
in principal amount or liquidation preference, as the case may be, of Transfer
Restricted Securities. All accrued liquidated damages shall be paid to Record
Holders by the Company by wire transfer of immediately available funds or by
federal funds check on each Damages Payment Date, as provided in the Indenture
or the Certification of Designation, as the case may be. Following the cure of
all Registration Defaults relating to any particular Transfer Restricted
Securities, the accrual of liquidated damages with respect to such Transfer
Restricted Securities will cease.
(b) If a Shelf Registration Statement is declared effective pursuant
to the terms of this Registration Rights Agreements and if the Company fails to
keep such Shelf Registration Statement continuously effective for the period
required by this Registration Rights Agreement, then from such time as the Shelf
Registration Statement is no longer effective until the earlier of (i) the date
the Shelf Registration Statement is again deemed effective, (ii) the date that
is the third anniversary of the Closing Date or (iii) the date as of which
transfer restrictions are no longer applicable to any Transfer Restricted
Security, in the case of each of clauses (i) through (iii) the Company hereby
agrees to
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pay liquidated damages to each Holder of Transfer Restricted Securities in an
amount equal to $.05 per week per $1,000 in principal amount or liquidation
preference, as applicable, of the Nonregistered Securities (determined on a
daily basis). The Company will be permitted to suspend use of the Prospectus
that is part of any Shelf Registration Statement during certain periods of time
and in certain circumstances relating to pending corporate developments and
public filings with the Commission and similar events.
(c) All obligations of the Company set forth in the preceding
paragraph that are outstanding with respect to any Transfer Restricted Security
at the time such Security ceases to be a Transfer Restricted Security shall
survive until such time as all such obligations with respect to such Security
shall have been satisfied in full.
SECTION 5. REGISTRATION PROCEDURES
(a) EXCHANGE OFFER REGISTRATION STATEMENT. In connection with the
Exchange Offer, the Company shall comply with all of the provisions of Section
5(c) below, shall use commercially reasonable efforts to effect such exchange to
permit the sale of Transfer Restricted Securities being sold in accordance with
the intended method or methods of distribution thereof, and shall comply with
all of the following provisions:
(i) If in the reasonable opinion of counsel to the Company there
is a question as to whether the Exchange Offer is permitted by applicable law,
the Company hereby agrees to seek a no-action letter or other favorable decision
from the Commission allowing the Company to Consummate an Exchange Offer for
such Registered Securities. The Company hereby agrees to pursue the issuance of
such a decision to the Commission staff level but shall not be required to take
commercially unreasonable action to effect a change of Commission policy. The
Company hereby agrees, however, to (A) participate in telephonic conferences
with the Commission, (B) deliver to the Commission staff an analysis prepared by
counsel to the Company setting forth the legal bases, if any, upon which such
counsel has concluded that such an Exchange Offer should be permitted and (C)
diligently pursue a resolution (which need not be favorable) by the Commission
staff of such submission.
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(ii) As a condition to its participation in the Exchange Offer
pursuant to the terms of this Registration Rights Agreement, each Holder of
Transfer Restricted Securities shall furnish, upon the request of the Company,
prior to the Consummation thereof, 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 Registered Securities to be issued in the
Exchange Offer and (C) it is acquiring the Registered Securities in its ordinary
course of business. In addition, all such Holders of Transfer Restricted
Securities shall otherwise cooperate in the Company's preparations for the
Exchange Offer. Each Holder hereby acknowledges and agrees that any
Broker-Dealer and any such Holder using the Exchange Offer to participate in a
distribution of the Registered Securities to be acquired in the Exchange Offer
(1) could not under Commission policy as in effect on the date of this
Registration Rights Agreement rely on the position of the Commission enunciated
in XXXXXX XXXXXXX AND CO., INC. (available June 5, 1991) and EXXON CAPITAL
HOLDINGS CORPORATION (available May 13, 1988), as interpreted in the
Commission's letter to Shearman & Sterling dated July 2, 1993, and similar
no-action letters (including any no-action letter obtained pursuant to clause
(i) above), and (2) must comply with the registration and prospectus delivery
requirements of the Act in connection with a secondary resale transaction and
that such a secondary resale transaction should be covered by an effective
registration statement containing the selling security holder information
required by Item 507 or 508, as applicable, of Regulation S-K if the resales are
of Registered Securities obtained by such Holder in exchange for Nonregistered
Securities acquired by such Holder directly from the Company.
(iii) Prior to effectiveness of the Exchange Offer Registration
Statement and if directed by the Initial Purchaser, the Company shall provide a
supplemental letter to the Commission (A) stating that the Company is
registering the Exchange Offer in reliance on the position of the Commission
enunciated in EXXON CAPITAL HOLDINGS CORPORATION (available May 13, 1988),
XXXXXX XXXXXXX AND CO., INC. (available June 5, 1991) and, if applicable, any
no-action letter obtained pursuant to clause (i) above and (B) including a
representation that the Company has not entered into any arrangement or
understanding with any Person to distribute the
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Registered Securities to be received in the Exchange Offer and that, to the best
of the Company's information and belief, each Holder participating in the
Exchange Offer is acquiring the Registered Securities in its ordinary course of
business and has no arrangement or understanding with any Person to participate
in the distribution of the Registered Securities received in the Exchange Offer.
(b) SHELF REGISTRATION STATEMENT. In connection with the Shelf
Registration Statement, the Company shall comply with all the provisions of
Section 6(e) below and shall use commercially reasonable efforts to effect such
registration to permit the sale of the Transfer Restricted Securities being sold
in accordance with the intended method or methods of distribution thereof, and
pursuant thereto the Company will as expeditiously as possible prepare and file
with the Commission a Registration Statement relating to the registration on any
appropriate form under the Act, which form shall be available for the sale of
the Transfer Restricted Securities in accordance with the intended method or
methods of distribution thereof.
(c) GENERAL PROVISIONS. In connection with any Registration
Statement and any Prospectus required by this Registration Rights Agreement to
permit the sale or resale of Transfer Restricted Securities (including, without
limitation, any Registration Statement and the related Prospectus required to
permit resales of Securities by Broker-Dealers), the Company shall:
(i) use its best efforts to keep such Registration Statement
continuously effective and provide all requisite financial statements for
the period specified in Section 3 or 4 of this Registration Rights
Agreement, as applicable; upon the occurrence of any event that would cause
any such Registration Statement or the Prospectus contained therein (A) to
contain a material misstatement or omission or (B) not to be effective and
usable for resale of Transfer Restricted Securities during the period
required by this Registration Rights Agreement, the Company shall file
promptly an appropriate amendment to such Registration Statement, in the
case of clause (A), correcting any such misstatement or omission, and, in
the case of either clause (A) or (B), use its best efforts to cause such
amendment to be declared effective and such Registration Statement and the
related Prospectus to become usable for
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their intended purpose(s) as soon as practicable thereafter;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be necessary
to keep the Registration Statement effective for the applicable period set
forth in Section 3 or 4 hereof, as applicable, or such shorter period as
will terminate when all Transfer Restricted Securities covered by such
Registration Statement have been sold; cause the Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented
to be filed pursuant to Rule 424 under the Act, and to comply fully with
the applicable provisions of Rules 424 and 430A under the Act in a timely
manner; and comply with the provisions of the Act with respect to the
disposition of all securities covered by such Registration Statement during
the applicable period in accordance with the intended method or methods of
distribution by the sellers thereof set forth in such Registration
Statement or supplement to the Prospectus;
(iii) advise the underwriter(s), if any, and Holders promptly
and, if requested by such Persons, to confirm such advice in writing, (A)
when the Prospectus or any Prospectus supplement or post-effective
amendment has been filed, and, with respect to any Registration Statement
or any post-effective amendment thereto, when the same has become
effective, (B) of any request by the Commission for amendments to the
Registration Statement or amendments or supplements to the Prospectus or
for additional information relating thereto, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement under the Act or of the suspension by any state
securities commission of the qualification of the Transfer Restricted
Securities for offering or sale in any jurisdiction, or the initiation of
any proceeding for any of the preceding purposes, (D) of the existence of
any fact or the happening of any event that makes any statement of a
material fact made in the Registration Statement, the Prospectus, any
amendment or supplement thereto, or any document incorporated by reference
therein untrue, or that requires the making of any additions to or changes
in the Registration Statement or the Prospectus in order to make the
statements therein not misleading. If at any time the Commission shall
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issue any stop order suspending the effectiveness of the Registration
Statement, or any state securities commission or other regulatory authority
shall issue an order suspending the qualification or exemption from
qualification of the Transfer Restricted Securities under state securities
or Blue Sky laws, the Company shall use their best efforts to obtain the
withdrawal or lifting of such order at the earliest possible time;
(iv) furnish to each of the Holders and each of the
underwriter(s), if any, before filing with the Commission, copies of any
Registration Statement or any Prospectus included therein or any amendments
or supplements to any such Registration Statement or Prospectus (including
all documents incorporated by reference after the initial filing of such
Registration Statement), which documents will be subject to the review of
such Holders and underwriter(s), if any, for a period of at least five
business days, and the Company will not file any such Registration
Statement or Prospectus or any amendment or supplement to any such
Registration Statement or Prospectus (including all such documents
incorporated by reference) to which a Holder of Transfer Restricted
Securities covered by such Registration Statement or the underwriter(s), if
any, shall reasonably object within five business days after the receipt
thereof. A Holder or underwriter, if any, shall be deemed to have
reasonably objected to such filing if such Registration Statement,
amendment, Prospectus or supplement, as applicable, as proposed to be
filed, contains a material misstatement or omission;
(v) promptly prior to the filing of any document that is to be
incorporated by reference into a Registration Statement or Prospectus,
provide copies of such document to the Holders and to the underwriter(s),
if any, make the Company's representatives available for discussion of such
document and other customary due diligence matters, and include such
information in such document prior to the filing thereof as such Holders or
underwriter(s), if any, reasonably may request;
(vi) make available at reasonable times for inspection by the
Holders, any underwriter participating in any disposition pursuant to such
Registration Statement, and any attorney or accountant retained by such
Holders or any of the underwriter(s), all financial and other records,
pertinent corporate documents and
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properties of the Company and cause the Company's officers, directors and
employees to supply all information reasonably requested by any such
Holder, underwriter, attorney or accountant in connection with such
Registration Statement subsequent to the filing thereof and prior to its
effectiveness;
(vii) if requested by any Holders or the underwriter(s), if any,
promptly incorporate in any Registration Statement or Prospectus, pursuant
to a supplement or post-effective amendment if necessary, such information
as such Holders and underwriter(s), if any, may reasonably request to have
included therein, including, without limitation, information relating to
the "Plan of Distribution" of the Transfer Restricted Securities,
information with respect to the principal amount of Transfer Restricted
Securities being sold to such underwriter(s), the purchase price being paid
therefor and any other terms of the offering of the Transfer Restricted
Securities to be sold in such offering; and make all required filings of
such Prospectus supplement or post-effective amendment as soon as
practicable after the Company is notified of the matters to be incorporated
in such Prospectus supplement or post-effective amendment;
(viii) cause the Transfer Restricted Securities covered by the
Registration Statement to be rated with the appropriate rating agencies, if
so requested by the Holders of a majority in aggregate principal amount of
Securities covered thereby or the underwriter(s), if any.
(ix) furnish to each Holder and each of the underwriter(s), if
any, without charge, at least one copy of the Registration Statement, as
first filed with the Commission, and of each amendment thereto, including
all documents incorporated by reference therein and all exhibits (including
exhibits incorporated therein by reference);
(x) deliver to each Holder and each of the underwriter(s), if
any, without charge, as many copies of the Prospectus (including each
preliminary prospectus) and any amendment or supplement thereto as such
Persons reasonably may request; the Company hereby consents to the use of
the Prospectus and any amendment or supplement thereto by each of the
Holders and each of the
-16-
underwriter(s), if any, in connection with the offering and the sale of the
Transfer Restricted Securities covered by the Prospectus or any amendment
or supplement thereto;
(xi) enter into such agreements (including an underwriting
agreement), and make such representations and warranties, and take all such
other actions in connection therewith in order to expedite or facilitate
the disposition of the Transfer Restricted Securities pursuant to any
Registration Statement contemplated by this Registration Rights Agreement,
all to such extent as may be requested by any Initial Purchaser or by any
Holder of Transfer Restricted Securities or underwriter in connection with
any sale or resale pursuant to any Registration Statement contemplated by
this Registration Rights Agreement; and whether or not an underwriting
agreement is entered into and whether or not the registration is an
Underwritten Registration, the Company shall:
(A) furnish to each Initial Purchaser, each selling Holder and
each underwriter, if any, in such substance and scope as they may
request and as are customarily made by issuers to underwriters in
primary underwritten offerings, upon the date of the Consummation of
the Exchange Offer and, if applicable, the effectiveness of the Shelf
Registration Statement:
(1) a certificate, dated the date of Consummation of the
Exchange Offer or the date of effectiveness of the Shelf
Registration Statement, as the case may be, signed by (y) the
President or any Vice President and (z) a principal financial or
accounting officer of the Company, confirming, as of the date
thereof, the matters set forth in paragraphs (a), (b) and (d) of
Section 9 of the Purchase Agreement and such other matters as
such parties may reasonably request;
(2) an opinion, dated the date of Consummation of the
Exchange Offer or the date of effectiveness of the Shelf
Registration Statement, as the case may be, of counsel for the
Company, which counsel may include in-house counsel, covering the
matters set forth
-17-
in paragraph (e) of Section 9 of the Purchase Agreement and such
other matter as such parties may reasonably request, and in any
event including a statement to the effect that such counsel has
participated in conferences with officers and other
representatives of the Company, representatives of the
independent public accountants for the Company, the Initial
Purchasers' representatives and the Initial Purchasers' counsel
in connection with the preparation of such Registration Statement
and the related Prospectus and have considered the matters
required to be stated therein and the statements contained
therein, although such counsel has not independently verified the
accuracy, completeness or fairness of such statements; and that
such counsel advises that, on the basis of the foregoing (relying
as to materiality to a large extent upon facts provided to such
counsel by officers and other representatives of the Company and
without independent check or verification), no facts came to such
counsel's attention that caused such counsel to believe that the
applicable Registration Statement, at the time such Registration
Statement or any post-effective amendment thereto became
effective, and, in the case of the Exchange Offer Registration
Statement, as of the date of Consummation, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus contained in such
Registration Statement as of its date and, in the case of the
opinion dated the date of Consummation of the Exchange Offer, as
of the date of Consummation, contained an untrue statement of a
material fact or omitted to state a material fact necessary in
order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
Without limiting the foregoing, such counsel may state further
that such counsel assumes no responsibility for, and has not
independently verified, the accuracy, completeness or fairness of
the financial statements, notes and schedules and other
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financial data included in any Registration Statement
contemplated by this Registration Rights Agreement or the related
Prospectus; and
(3) a customary comfort letter, dated as of the date of
Consummation of the Exchange Offer or the date of effectiveness
of the Shelf Registration Statement, as the case may be, from the
Company's independent accountants, in the customary form and
covering matters of the type customarily covered in comfort
letters by underwriters in connection with primary underwritten
offerings, and affirming the matters set forth in the comfort
letters delivered pursuant to Section 9(j) of the Purchase
Agreement, without exception;
(B) set forth in full or incorporate by reference in the
underwriting agreement, if any, the indemnification provisions and
procedures of Section 8 hereof with respect to all parties to be
indemnified pursuant to said Section; and
(C) deliver such other documents and certificates as may be
reasonably requested by such parties to evidence compliance with
clause (A) above and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Company
pursuant to this clause (xi), if any.
If at any time the representations and warranties of the Company
contemplated in clause (A)(1) above cease to be true and correct, the
Company shall so advise the Initial Purchasers and the underwriter(s), if
any, and each selling Holder promptly and, if requested by such Persons,
shall confirm such advice in writing;
(xii) prior to any public offering of Transfer Restricted
Securities, cooperate with the Holders, the underwriter(s), if any, and
their respective counsel in connection with the registration and
qualification of the Transfer Restricted Securities under the securities or
Blue Sky laws of such jurisdictions as the selling Holders or
underwriter(s) may request and do any and all other acts or things
necessary or advisable to enable the
-19-
disposition in such jurisdictions of the Transfer Restricted Securities
covered by the Shelf Registration Statement; PROVIDED, HOWEVER, that
neither the Company shall not be required to register or qualify as a
foreign corporation where it is not now so qualified or to take any action
that would subject it to the service of process in suits or to taxation,
other than as to matters and transactions relating to the Registration
Statement, in any jurisdiction where it is not now so subject;
(xiii) shall issue, upon the request of any Holder of Initial
Securities covered by the Shelf Registration Statement, New Securities,
having an aggregate principal amount equal to the aggregate liquidation
value of Initial Securities surrendered to the Company by such Holder in
exchange therefor or being sold by such Holder; such New Securities to be
registered in the name of such Holder or in the name of the purchaser(s) of
such Securities, as the case may be; in return, the Initial Securities held
by such Holder shall be surrendered to the Company for cancellation;
(xiv) cooperate with the selling Holders and the underwriter(s),
if any, to facilitate the timely preparation and delivery of certificates
representing Transfer Restricted Securities to be sold and not bearing any
restrictive legends; and enable such Transfer Restricted Securities to be
in such denominations and registered in such names as the Holders or the
underwriter(s), if any, may request at least two business days prior to any
sale of Transfer Restricted Securities made by such underwriter(s);
(xv) use its best efforts to cause the Transfer Restricted
Securities covered by the Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may be
necessary to enable the seller or sellers thereof or the underwriter(s), if
any, to consummate the disposition of such Transfer Restricted Securities,
subject to the proviso contained in clause (viii) above;
(xvi) if any fact or event contemplated by clause (c)(iii)(D)
above shall exist or have occurred, prepare a supplement or post-effective
amendment to the Registration Statement or related Prospectus or any
document incorporated therein by reference or file any other required
document so that, as thereafter delivered
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to the purchasers of Transfer Restricted Securities, the Prospectus will
not contain an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not misleading;
(xvii) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of the Registration Statement
and provide the Trustee under the Indenture with printed certificates for
the Transfer Restricted Securities which are in a form eligible for deposit
with the Depositary Trust Company;
(xviii) cooperate and assist in any filings required to be made
with the NASD and in the performance of any due diligence investigation by
any underwriter (including any "qualified independent underwriter") that is
required to be retained in accordance with the rules and regulations of the
NASD, and use its reasonable best efforts to cause such Registration
Statement to become effective and approved by such governmental agencies or
authorities as may be necessary to enable the Holders selling Transfer
Restricted Securities to consummate the disposition of such Transfer
Restricted Securities;
(xix) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make generally
available to its security holders, as soon as practicable, a consolidated
earnings statement meeting the requirements of Rule 158 (which need not be
audited) for the twelve-month period (A) commencing at the end of any
fiscal quarter in which Transfer Restricted Securities are sold to
underwriters in a firm or best efforts Underwritten Offering or (B) if not
sold to underwriters in such an offering, beginning with the first month of
the Company's first fiscal quarter commencing after the effective date of
the Registration Statement;
(xx) cause the Indenture to be qualified under the TIA not later
than the effective date of the first Registration Statement required by
this Registration Rights Agreement, and, in connection therewith, cooperate
with the Trustee and the Holders of Securities so as to cause such
Indenture as may be required for such Indenture to be so qualified in
accordance with the terms of the TIA; and execute and use its best efforts
to cause the Trustee to execute, all documents and all other forms
-21-
required to be filed with the Commission to enable such Indenture to be so
qualified in a timely manner;
(xxi) cause all Transfer Restricted Securities covered by the
Registration Statement to be listed on each securities exchange on which
similar securities issued by the Company are then listed (if any) if
requested by the Holders of a majority in aggregate principal amount of
Initial Securities or the managing underwriter(s), if any; and
(xxii) provide promptly to each Holder upon request each document
filed with the Commission pursuant to the requirements of Section 13 and
Section 15 of the Exchange Act.
Each Holder agrees by acquisition of a Transfer Restricted Security
that, upon receipt of any notice from the Company of the existence of any fact
of the kind described in Section 6(c)(iii)(D) hereof, such Holder will forthwith
discontinue disposition of Transfer Restricted Securities pursuant to the
applicable Registration Statement until such Holder's receipt of the copies of
the supplemented or amended Prospectus contemplated by Section 6(c)(xvi) hereof,
or until it is advised in writing (the "ADVICE") by the Company that the use of
the Prospectus may be resumed, and has received copies of any additional or
supplemental filings that are incorporated by reference in the Prospectus. If
so directed by the Company, each Holder will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Transfer Restricted
Securities that was current at the time of receipt of such notice. In the event
the Company shall give any such notice, the time period regarding the
effectiveness of such Registration Statement set forth in Section 3 or 4 hereof,
as applicable, shall be extended by the number of days during the period from
and including the date of the giving of such notice pursuant to Section
6(c)(iii)(D) hereof to and including the date when each selling Holder covered
by such Registration Statement shall have received the copies of the
supplemented or amended Prospectus contemplated by Section 6(c)(xvi) hereof or
shall have received the Advice.
SECTION 6. REGISTRATION EXPENSES
(a) All expenses incident to the Company's performance of or
compliance with this Registration Rights
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Agreement will be borne by the Company, regardless of whether a Registration
Statement becomes effective, including without limitation: (i) all registration
and filing fees and expenses (including filings made by any Initial Purchaser or
Holder with the NASD (and, if applicable, the fees and expenses of any
"qualified independent underwriter" and its counsel that may be required by the
rules and regulations of the NASD)); (ii) all fees and expenses of compliance
with federal securities and state Blue Sky or securities laws; (iii) all
expenses of printing (including printing certificates for the Registered
Securities to be issued in the Exchange Offer and printing of Prospectuses),
messenger and delivery services and telephone; (iv) all fees and disbursements
of counsel for the Company, and, subject to Section 6(b) below, the Holders of
Transfer Restricted Securities; (v) all application and filing fees in
connection with listing Securities on a national securities exchange or
automated quotation system pursuant to the requirements hereof; and (vi) all
fees and disbursements of independent certified public accountants of the
Company (including the expenses of any special audit and comfort letters
required by or incident to such performance).
The Company will, in any event, bear its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expenses of any annual audit and the
fees and expenses of any Person, including special experts, retained by the
Company.
(b) In connection with any Registration Statement required by this
Registration Rights Agreement, (including, without limitation, the Exchange
Offer Registration Statement and the Shelf Registration Statement), the Company
will reimburse the Initial Purchasers and the Holders of Transfer Restricted
Securities being tendered in the Exchange Offer and/or resold pursuant to the
"Plan of Distribution" contained in the Exchange Offer Registration Statement or
registered pursuant to the Shelf Registration Statement, as applicable, for the
reasonable fees and disbursements of not more than one counsel, who shall be
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP or such other counsel as may be chosen by
the Holders of a majority in principal amount or aggregate liquidation
preference, as the case may be, of the Transfer Restricted Securities for whose
benefit such Registration Statement is being prepared.
-23-
SECTION 7. INDEMNIFICATION
(a) The Company agrees to severally indemnify and hold harmless (i)
each Holder and (ii) each Person, if any, who controls (within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act) any Holder (any of the
Persons referred to in this clause (ii) being hereinafter referred to as a
"CONTROLLING PERSON") and (iii) the respective officers, directors, partners,
employees, representatives and agents of any Holder or any controlling person
(any person referred to in clause (i), (ii) or (iii) may hereinafter be referred
to as an "INDEMNIFIED HOLDER"), to the fullest extent lawful, from and against
any and all losses, claims, damages, liabilities, judgments, actions and
expenses (including, without limitation and as incurred, reimbursement of all
reasonable costs of investigating, preparing, pursuing or defending any claim or
action, or any investigation or proceeding by any governmental agency or body,
commenced or threatened, including the reasonable fees and expenses of counsel
to any Indemnified Holder) (collectively, the "Losses") directly or indirectly
caused by, related to, based upon, arising out of or in connection with any
untrue statement or alleged untrue statement of a material fact contained in any
Registration Statement or Prospectus (or any amendment or supplement thereto),
or any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
except insofar as such Losses are caused by an untrue statement or omission or
alleged untrue statement or omission that is made in reliance upon and in
conformity with information relating to any of the Holders furnished in writing
to the Company by any of the Holders expressly for use therein.
In case any action or proceeding (including any governmental or
regulatory investigation or proceeding) shall be brought or asserted against any
of the Indemnified Holders with respect to which indemnity may be sought against
the Company, such Indemnified Holder (or the Indemnified Holder controlled by
such controlling person) shall promptly notify the Company in writing (PROVIDED,
that, the failure to give such notice shall not relieve the Company of its
obligations pursuant to this Registration Rights Agreement). Such Indemnified
Holder shall have the right to employ its own counsel in any such action and the
fees and expenses of such counsel shall be paid, as incurred, by the Company
(regardless of whether it is ultimately determined that an Indemnified Holder is
not entitled to indemnification hereunder). The
-24-
Company shall not, in connection with any one such action or proceeding or
separate but substantially similar or related actions or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of more than one separate firm of
attorneys (in addition to any local counsel) at any time for such Indemnified
Holders, which firm shall be designated by the Holders of a majority of the
outstanding principal amount or aggregate liquidation preference amount, as the
case may be, of Transfer Restricted Securities. The Company shall be liable for
any settlement of any such action or proceeding effected with the Company's
prior written consent, which consent shall not be withheld unreasonably, and the
Company agrees to indemnify and hold harmless any Indemnified Holder from and
against any Loss by reason of any settlement of any action effected with the
written consent of the Company. The Company shall not without the prior written
consent of each Indemnified Holder, settle or compromise or consent to the entry
of judgment in or otherwise seek to terminate any pending or threatened action,
claim, litigation or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not any Indemnified Holder is a
party thereto), unless such settlement, compromise, consent or termination
includes an unconditional release of each Indemnified Holder from all liability
arising out of such action, claim, litigation or proceeding.
(b) Each Holder of Transfer Restricted Securities agrees, severally
and not jointly, to indemnify and hold harmless the Company and its directors,
officers, and any person controlling (within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act) the Company, and the officers, directors,
partners, employees, representatives and agents of such person, to the same
extent as the foregoing indemnity from the Company to each of the Indemnified
Holders, but only with respect to claims and actions based on information
relating to such Holder furnished in writing by such Holder expressly for use in
any Registration Statement. In case any action or proceeding shall be brought
against the Company or its directors or officers or any such controlling person
in respect of which indemnity may be sought against a Holder of Transfer
Restricted Securities, such Holder shall have the rights and duties given the
Company and the Company or its directors or officers or such controlling person
shall have the rights and duties given to each Holder by the preceding
paragraph. In no event shall the liability of any Holder hereunder be greater
in amount than the dollar amount
-25-
of the proceeds received by such Holder upon the sale of the Transfer Restricted
securities giving rise to such indemnification obligation.
(c) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under Section 8(a) or Section 7(b) hereof
(other than by reason of exceptions provided in those Sections) in respect of
any Losses referred to therein, then each applicable indemnifying party, in lieu
of indemnifying such indemnified party, shall 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 benefits received by the Company on
the one hand and the Holders on the other hand from their sale of Transfer
Restricted Securities or if such allocation is not permitted by applicable law,
the relative fault of the Company on the one hand and of the Indemnified Holder
on the other in connection with the statements or omissions which resulted in
such Losses as well as any other relevant equitable considerations. The
relative fault of the Company on the one hand and of the Indemnified Holder on
the other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or by the Indemnified Holder and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the Losses referred to
above shall be deemed to include, subject to the limitations set forth in the
second paragraph of Section 7(a), any legal or other fees or expenses reasonably
incurred by such party in connection with investigating or defending any action
or claim.
The Company and each Holder of Transfer Restricted Securities agree
that it would not be just and equitable if contribution pursuant to this Section
7(c) were determined by pro rata allocation (even if the Holders 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 the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the Losses referred to in the immediately preceding paragraph 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
-26-
provisions of this Xxxxxxx 0, xxxx of the Holders (and its related Indemnified
Holders) shall be required to contribute, in the aggregate, any amount in excess
of the amount by which the total discount received by such Holder with respect
to the Senior Preferred Stock exceeds the amount of any damages which 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 Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. The Holders' obligations to contribute pursuant
to this Section 8(c) are several in proportion to the respective principal
amount of Senior Preferred Stock held by each of the Holders hereunder and not
joint.
SECTION 8. RULE 144A
The Company hereby agrees with each Holder, for so long as any
Transfer Restricted Securities remain outstanding, to make available to any
Holder or beneficial owner of Transfer Restricted Securities in connection with
any sale thereof and any prospective purchaser of such Transfer Restricted
Securities from such Holder or beneficial owner, the information required by
Rule 144A(d)(4) under the Act in order to permit resales of such Transfer
Restricted Securities pursuant to Rule 144A.
SECTION 9. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration hereunder
unless such Holder (a) agrees to sell such Holder's Transfer Restricted
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 reasonable questionnaires, powers of attorney, indemnities,
underwriting agreements, lock-up letters and other documents required under the
terms of such underwriting arrangements.
SECTION 10. SELECTION OF UNDERWRITERS
The Holders of Transfer Restricted Securities covered by the Shelf
Registration Statement who desire to do so may sell such Transfer Restricted
Securities in an Underwritten
-27-
Offering. In any such Underwritten Offering, the investment banker or
investment bankers and manager or managers that will administer the offering
will be selected by the Holders of a majority in aggregate principal amount or
aggregate liquidation preference amount, as the case may be, of the Transfer
Restricted Securities included in such offering; PROVIDED, that any such
investment bankers and managers must be reasonably satisfactory to the Company.
SECTION 11. MISCELLANEOUS
(a) REMEDIES. The Company agrees that monetary damages (including
the liquidated damages contemplated hereby) would not be adequate compensation
for any loss incurred by reason of a breach by it of the provisions of this
Registration Rights Agreement and hereby agrees to waive the defense in any
action for specific performance that a remedy at law would be adequate.
(b) NO INCONSISTENT AGREEMENTS. The Company will not, on or after
the date of this Registration Rights Agreement enter into any agreement with
respect to the Securities that is inconsistent with the rights granted to the
Holders in this Registration Rights Agreement or otherwise conflicts with the
provisions hereof. The Company has not previously entered into any agreement
granting any registration rights with respect to the Securities to any Person.
The rights granted to the Holders hereunder do not in any way conflict with and
are not inconsistent with the rights granted to the holders of the Company's
securities under any agreement in effect on the date hereof.
(c) ADJUSTMENTS AFFECTING THE SECURITIES. The Company will not take
any action, or permit any change to occur, with respect to the Securities that
would materially and adversely affect the ability of the Holders to Consummate
any Exchange Offer.
(d) AMENDMENTS AND WAIVERS. The provisions of this Registration
Rights Agreement may not be amended, modified or supplemented, and waivers or
consents to or departures from the provisions hereof may not be given unless the
Company has obtained the written consent of Holders of a majority of the
outstanding principal amount or aggregate liquidation preference amount, as the
case may be, of Transfer Restricted Securities. Notwithstanding the foregoing,
a waiver or consent to departure from the provisions hereof that relates
-28-
exclusively to the rights of Holders whose securities are being tendered
pursuant to the Exchange Offer and that does not affect directly or indirectly
the rights of other Holders whose securities are not being tendered pursuant to
such Exchange Offer may be given by the Holders of a majority of the outstanding
principal amount or aggregate liquidation preference amount, as the case may be,
of Transfer Restricted Securities being tendered or registered.
(e) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of
the Registrar under the Certificate of Designation or the Indenture, as the case
may be, with a copy to the Registrar under the Certificate of Designation or the
Indenture, as the case may be; and
(ii) if to the Company:
EchoStar Communications Corporation
00 Xxxxxxxxx Xxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
With a copy to:
Friedlob Xxxxxxxxx Xxxxxx
Xxxxxxx & Xxxxxxxxxxx, LLC
0000 Xxxxxxx Xxxxx, Xxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Xx., Esq.
All such notices and communications shall be deemed to have been duly given: at
the time delivered by hand, if personally delivered; five business days after
being deposited in the mail, postage prepaid, if mailed; when answered back, if
telexed; when receipt acknowledged, if telecopied; and on the next business day,
if timely delivered to an air courier guaranteeing overnight delivery. Copies
of all such notices, demands or other communications shall be concurrently
-29-
delivered by the Person giving the same to the Trustee at the address specified
in the Certificate of Designation or the Indenture, as the case may be.
(f) SUCCESSORS AND ASSIGNS. This Registration Rights 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 of Transfer Restricted Securities; PROVIDED, that
this Registration Rights Agreement shall not inure to the benefit of or be
binding upon a successor or assign of a Holder unless and to the extent such
successor or assign acquired Transfer Restricted Securities from such Holder.
(g) COUNTERPARTS. This Registration Rights 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.
(h) HEADINGS. The headings in this Registration Rights Agreement are
for convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(i) GOVERNING LAW. THIS REGISTRATION RIGHTS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO THE CONFLICT OF LAW RULES THEREOF.
(j) SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(k) ENTIRE AGREEMENT. This Registration Rights Agreement together
with the other Operative Documents (as defined in the Purchase Agreement) is
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. 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 with respect to the Transfer Restricted Securities. This Registration
Rights Agreement supersedes all
-30-
prior agreements and understandings between the parties with respect to such
subject matter.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
ECHOSTAR COMMUNICATIONS CORPORATION
By: ___________________________________
Name: Xxxxx X. Xxxxxxxxx
Title: Senior Vice President,
General Counsel and
Secretary
XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES
CORPORATION
Acting severally on behalf of themselves
and the Initial Purchasers named above.
By: ___________________________________
Name:
Title:
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