Exhibit 10.6
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is made as of November 23, 1999, by and
between by and among UbiquiTel Holdings, Inc., a Delaware corporation (the
"Company"), and Xxxxx Xxxxxxx, Xxxxxx X. Xxxxxx, Xxxx X. Judge, The Xxxxxx
Group, Inc., a State of Washington corporation ("The Xxxxxx Group"), and U.S.
Bancorp (each a "Founder" and collectively "Founders"), and the individuals and
entities listed on the signature page hereto as Purchasers (the "Preferred
Stockholders"), all of whom are parties to the Series A Preferred Stock Purchase
Agreement of even date (the "Series A Agreement").
RECITALS
The Company and the Preferred Stockholders are parties to the Series
A Agreement. The parties agree that this Agreement shall govern the rights of
the Founders and the Preferred Stockholders to cause the Company to register
shares of Founder Stock and shares of Voting Common Stock issuable to the
Preferred Stockholders pursuant to the Series A Agreement and certain other
matters as set forth herein;
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Registration Rights. The Company covenants and agrees as follows:
1.1. Definitions. For purposes of this Section 1:
(a) The term "Act" means the Securities Act of 1933, as
amended.
(b) The term "Form S-3" means such form under the Act as
in effect on the date hereof or any registration form under the Act subsequently
adopted by the SEC which permits inclusion or incorporation of substantial
information by reference to other documents filed by the Company with the SEC.
(c) The term "Holder" means any person owning or having
the right to acquire Registrable Securities or any assignee thereof in
accordance with Section 1.12 hereof.
(d) The term "Founder Stock" means the 3,417,000 shares
of Voting Common Stock presently issued to the Founders and, if and to the
extent vested, any of the 16,000,000 shares of Nonvoting Common Stock presently
issued to the Founders, and any additional shares of Voting Common Stock or
Nonvoting Common Stock issued to the Founders as a result of stock splits, stock
dividends, or other recapitalizations.
(e) The term "1934 Act" shall mean the Securities
Exchange Act of 1934, as amended.
(f) The term "register," "registered," and
"registration" refer to a registration effected by preparing and filing a
registration statement or similar document in
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compliance with the Act, and the declaration or ordering of effectiveness of
such registration statement or document.
(g) The term "Registrable Securities" means the Voting
Common Stock issuable or issued upon conversion of the Series A Preferred Stock
or any shares of Voting Common Stock issued or issuable as a result of stock
splits, stock dividends, or other recapitalization, and solely with respect to
the piggyback registration rights provided in Section 1.3 below, the Founder
Stock.
(h) The number of shares of "Registrable Securities then
outstanding" means, at the time of any determination of such number, the total
of (i) the number of shares of Voting Common Stock issued as a result of the
conversion of the Series A Preferred Stock, and (ii) the number of shares of
Voting Common Stock issuable upon conversion of outstanding Series A Preferred
Stock, and (iii) the number of shares of Voting Common Stock issued or issuable
as a result of stock splits, stock dividends, or other recapitalization.
(i) The term "SEC" shall mean the Securities and
Exchange Commission.
(j) The term "Series A Preferred Stock" means the Series
A Preferred Stock being purchased by the Preferred Stockholders pursuant to the
Series A Agreement.
(k) The term "IPO" means the Company's first sale of
securities to the general public pursuant to a registration in a firm commitment
underwritten offering registered under the Securities Act of 1933, as amended,
which results in gross proceeds to the Company (prior to underwriters' discounts
and expenses) of not less than thirty million ($30,000,000) dollars.
1.2. Request for Registration.
(a) If the Company shall receive at any time a written
request from a majority of Holders of the Registrable Securities that the
Company file a registration statement under the Act covering the registration of
all Registrable Securities then outstanding, then the Company shall:
(i) within ten (10) days of the receipt thereof,
give written notice of such request to all Holders; and
(ii) effect as soon as practicable, and in any
event within 120 days of the receipt of such request, the registration under the
Act of all Registrable Securities which the Holders request to be registered,
subject to the limitations of subsection 1.2(b).
(b) If the Holders initiating the registration request
hereunder ("Initiating Holders") intend to distribute the Registrable Securities
covered by their request by
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means of an underwriting, they shall so advise the Company as a part of their
request made pursuant to subsection 1.2(a) and the Company shall include such
information in the written notice referred to in subsection 1.2(a). The
underwriter will be selected by the Company and shall be reasonably acceptable
to a majority in interest of the Initiating Holders. In such event, the right of
any Holder to include his Registrable Securities in such registration shall be
conditioned upon such Holder's participation in such underwriting and the
inclusion of such Holder's Registrable Securities in the underwriting (unless
otherwise mutually agreed by a majority in interest of the Initiating Holders
and such Holder) to the extent provided herein. All Holders proposing to
distribute their securities through such underwriting shall (together with the
Company as provided in subsection 1.4(e)) enter into an underwriting agreement
in customary form with the underwriter or underwriters selected for such
underwriting. Notwithstanding any other provision of this Section 1.2, if the
underwriter advises the Initiating Holders in writing that marketing factors
require a limitation of the number of shares to be underwritten, then the
Initiating Holders shall so advise all Holders of Registrable Securities which
would otherwise be underwritten pursuant hereto, and the number of shares of
Registrable Securities that may be included in the underwriting shall be
allocated among all Holders thereof, including the Initiating Holders, in
proportion (as nearly as practicable) to the amount of Registrable Securities of
the Company owned by each Holder.
(c) Notwithstanding the foregoing, if the Company shall
furnish to Holders requesting a registration statement pursuant to this Section
1.2, a certificate signed by the Chief Executive Officer of the Company stating
that in the good faith judgment of the Board of Directors of the Company, it
would be seriously detrimental to the Company and its stockholders for such
registration statement to be filed and it is therefore essential to defer the
filing of such registration statement, the Company shall have the right to defer
taking action with respect to such filing for a period of not more than one
hundred eighty (180) days after receipt of the request of the Initiating
Holders; provided, however, that the Company may not utilize this right more
than once in any twelve-month period.
(d) In addition, the Company shall not be obligated to
effect, or to take any action to effect, any registration pursuant to this
Section 1.2:
(i) After the Company has effected two
registrations pursuant to this Section 1.2 and such registrations have been
declared or ordered effective;
(ii) During the period starting with the date sixty
(60) days prior to the Company's good faith estimate of the date of filing of,
and ending on a date one hundred eighty (180) days after the effective date of,
a registration subject to Section 1.3 hereof; provided, that the Company is
actively employing in good faith all reasonable efforts to cause such
registration statement to become effective; or
(iii) If the Initiating Holders propose to dispose
of shares of Registrable Securities that may be immediately registered on Form
S-3 pursuant to a request made pursuant to Section 1.11 below.
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1.3. Company Registration. If (but without any obligation to
do so) the Company proposes to register (including for this purpose a
registration effected by the Company for stockholders other than the Holders)
any of its stock or other securities under the Act in connection with the public
offering of such securities solely for cash (other than a registration relating
solely to the sale of securities to participants in a Company stock plan, a
registration with respect to corporate reorganization or other transaction under
Rule 145 of the Securities Act, a registration on any form which does not
include substantially the same information as would be required to be included
in a registration statement covering the sale of the Registrable Securities or a
registration in which the only Common Stock being registered is Common Stock
issuable upon conversion of debt securities which are also being registered),
the Company shall, at such time, promptly give each Holder written notice of
such registration. Upon the written request of each Holder given within thirty
(30) days after mailing of such notice by the Company in accordance with Section
3.5, the Company shall, subject to the provisions of Section 1.8, cause to be
registered under the Act all of the Registrable Securities that each such Holder
has requested to be registered. The Founders shall have the right to have the
shares of the Founder Stock included in any Company registration under this
Section 1.3; provided, however, that such rights shall be subject and
subordinate to the rights of the Holders (other than the Founders) and; provided
further that no shares of the Founder Stock shall be included in any Company
registration hereunder, unless and until all shares of Holders (other than the
Founders) requesting that their Registrable Securities be registered are
included in such offering.
1.4. Obligations of the Company. Whenever required under this
Section 1 to effect the registration of any Registrable Securities, the Company
shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration
statement with respect to such Registrable Securities and use its best efforts
to cause such registration statement to become effective, and, upon the request
of the Holders of a majority of the Registrable Securities registered
thereunder, keep such registration statement effective for a period of up to one
hundred twenty (120) days or until the distribution contemplated in the
Registration Statement has been completed; provided, however, that (i) such
120-day period shall be extended for a period of time equal to the period the
Holder refrains from selling any securities included in such registration at the
request of an underwriter of Common Stock (or other securities) of the Company;
and (ii) in the case of any registration of Registrable Securities on Form S-3
which are intended to be offered on a continuous or delayed basis, such 120-day
period shall be extended, if necessary, to keep the registration statement
effective until all such Registrable Securities are sold, provided that Rule
415, or any successor rule under the Act, permits an offering on a continuous or
delayed basis, and provided further that applicable rules under the Act
governing the obligation to file a post-effective amendment permit, in lieu of
filing a post-effective amendment which (x) includes any prospectus required by
Section 10(a)(3) of the Act or (y) reflects facts or events representing a
material or fundamental change in the information set forth in the registration
statement, the incorporation by reference of information required to be included
in (x) and (y) above to be contained in periodic reports filed pursuant to
Section 13 or 15(d) of the 1934 Act in the registration statement.
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(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Act with respect to the disposition of all securities covered
by such registration statement.
(c) Furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Act, and such other documents as they may reasonably request
in order to facilitate the disposition of Registrable Securities owned by them.
(d) Use its best efforts to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by the
Holders; provided, that the Company shall not be required in connection
therewith or as a condition thereto to qualify to do business or to file a
general consent to service of process in any such states or jurisdictions.
(e) In the event of any underwritten public offering,
enter into and perform its obligations under an underwriting agreement, in usual
and customary form, with the managing underwriter of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(f) Notify each Holder of Registrable Securities
covered by such registration statement at any time when a prospectus relating
thereto is required to be delivered under the Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing.
(g) Cause all such Registrable Securities registered
pursuant hereunder to be listed on each securities exchange on which similar
securities issued by the Company are then listed.
(h) Provide a transfer agent and registrar for all
Registrable Securities registered pursuant hereunder and a CUSIP number for all
such Registrable Securities, in each case not later than the effective date of
such registration.
1.5. Furnish Information.
(a) It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Section 1 with
respect to the Registrable Securities of any selling Holder that such Holder
shall furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such securities
as shall be required to effect the registration of such Holder's Registrable
Securities.
(b) The Company shall have no obligation with respect
to any registration requested pursuant to Section 1.2 or Section 1.11 if the
number of shares or the
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anticipated aggregate offering price of the Registrable Securities to be
included in the registration does not equal or exceed the number of shares or
the anticipated aggregate offering price required to originally trigger the
Company's obligation to initiate such registration as specified in subsection
1.2(a) or subsection 1.11(b)(2), whichever is applicable.
1.6. Expenses of Demand Registration. All expenses other than
underwriting discounts and commissions incurred in connection with
registrations, filings or qualifications pursuant to Section 1.2, including
(without limitation) all registration, filing and qualification fees, printers'
and accounting fees, fees and disbursements of counsel for the Company, shall be
borne by the Company; provided, however, that the Company shall not be required
to pay for any expenses of any registration proceeding begun pursuant to Section
1.2 if the registration request is subsequently withdrawn at the request of the
Holders of a majority of the Registrable Securities to be registered (in which
case all participating Holders shall bear such expenses), unless the Holders of
a majority of the Registrable Securities agree to forfeit their right to one
demand registration pursuant to Section 1.2.
1.7. Expenses of Company Registration. The Company shall bear
and pay all expenses incurred in connection with any registration, filing or
qualification of Registrable Securities with respect to the registrations
pursuant to Section 1.3 for each Holder (which right may be assigned as provided
in Section 1.12), including (without limitation) all registration, filing, and
qualification fees, printers, legal and accounting fees relating or
apportionable thereto, but excluding underwriting discounts and commissions
relating to Registrable Securities.
1.8. Underwriting Requirements. In connection with any
offering involving an underwriting of shares of the Company's capital stock, the
Company shall not be required under Section 1.3 to include any of the Holders'
securities in such underwriting unless they accept the terms of the underwriting
as agreed upon between the Company and the underwriters selected by it (or by
other persons entitled to select the underwriters), and then only in such
quantity as the underwriters determine in their sole discretion will not
jeopardize the success of the offering by the Company. If the total amount of
securities, including Registrable Securities, requested by stockholders to be
included in such offering exceeds the amount of securities sold other than by
the Company that the underwriters determine in their sole discretion is
compatible with the success of the offering, then the Company shall be required
to include in the offering only that number of such securities, including
Registrable Securities, which the underwriters determine in their sole
discretion will not jeopardize the success of the offering (the securities so
included to be apportioned pro rata among the selling stockholders according to
the total amount of securities entitled to be included therein owned by each
selling stockholder or in such other proportions as shall mutually be agreed to
by such selling stockholders).
1.9. Delay of Registration. No Holder shall have any right to
obtain or seek an injunction restraining or otherwise delaying any such
registration as the result of any controversy that might arise with respect to
the interpretation or implementation of this Section 1.
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1.10. Indemnification. In the event any Registrable
Securities are included in a registration statement under this Section 1:
(a) To the extent permitted by law, the Company will
indemnify and hold harmless each Holder, such Holder's members, officers,
directors, partners, shareholders and employees, any underwriter (as defined in
the Act) for such Holder and each person, if any, who controls such Holder or
underwriter within the meaning of the Act or the 1934 Act, against any losses,
claims, damages, or liabilities (joint or several) to which they may become
subject under the Act, or the 1934 Act or other federal or state law, insofar as
such losses, claims, damages, or liabilities (or actions in respect thereof)
arise out of or are based upon any of the following statements, omissions or
violations (collectively a "Violation"): (i) any untrue statement or alleged
untrue statement of a material fact contained in such registration statement,
including any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto, (ii) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading, or (iii) any violation or alleged
violation by the Company of the Act, the 1934 Act, any state securities law or
any rule or regulation promulgated under the Act, or the 1934 Act or any state
securities law; and the Company will pay to each such Holder, underwriter or
controlling person, as incurred, any legal or other expenses reasonably incurred
by them in connection with investigating or defending any such loss, claim,
damage, liability, or action; provided, however, that the indemnity agreement
contained in this subsection 1.10(a) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability, or action if such
settlement is effected without the consent of the Company (which consent shall
not be unreasonably withheld), nor shall the Company be liable in any such case
for any such loss, claim, damage, liability, or action to the extent that it
arises out of or is based upon a Violation which occurs in reliance upon and in
conformity with written information furnished expressly for use in connection
with such registration by any such Holder, underwriter or controlling person.
(b) To the extent permitted by law, each selling Holder
will indemnify and hold harmless the Company, each of its directors, each of its
officers who has signed the registration statement, each person, if any, who
controls the Company within the meaning of the Act, any underwriter, any other
Holder selling securities in such registration statement and any controlling
person of any such underwriter or other Holder, against any losses, claims,
damages, or liabilities (joint or several) to which any of the foregoing persons
may become subject, under the Act, or the 1934 Act or other federal or state
law, insofar as such losses, claims, damages, or liabilities (or actions in
respect thereto) arise out of or are based upon any Violation, in each case to
the extent (and only to the extent) that such Violation occurs in reliance upon
and in conformity with written information furnished by such Holder expressly
for use in connection with such registration; and each such Holder will pay, as
incurred, any legal or other expenses reasonably incurred by any person intended
to be indemnified pursuant to this subsection 1.10(b), in connection with
investigating or defending any such loss, claim, damage, liability, or action;
provided, however, that the indemnity agreement contained in this subsection
1.10(b) shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without the consent
of the Holder, which consent
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shall not be unreasonably withheld; provided, that, in no event shall any
indemnity under this subsection 1.10(b) exceed the gross proceeds from the
offering received by such Holder.
(c) Promptly after receipt by an indemnified party
under this Section 1.10 of notice of the commencement of any action (including
any governmental action), such indemnified party will, if a claim in respect
thereof is to be made against any indemnifying party under this Section 1.10,
deliver to the indemnifying party a written notice of the commencement thereof
and the indemnifying party shall have the right to participate in, and, to the
extent the indemnifying party so desires, jointly with any other indemnifying
party similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
1.10, but the omission so to deliver written notice to the indemnifying party
will not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 1.10.
(d) If the indemnification provided for in this Section
1.10 is held by a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any loss, liability, claim, damage, or expense
referred to therein, then the indemnifying party, in lieu of indemnifying such
indemnified party hereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such loss, liability, claim, damage, or
expense in such proportion as is appropriate to reflect the relative fault of
the indemnifying party on the one hand and of the indemnified party on the other
in connection with the statements or omissions that resulted in such loss,
liability, claim, damage, or expense as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information, and opportunity to correct or prevent such
statement or omission.
(e) Notwithstanding the foregoing, to the extent that
the provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering are
in conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
(f) The obligations of the Company and Holders under
this Section 1.10 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 1, and otherwise.
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1.11. Form S-3 Registration. In case the Company shall
receive from any Holder or Holders a written request or requests that the
Company effect a registration on Form S-3 and any related qualification or
compliance with respect to all or a part of the Registrable Securities owned by
such Holder or Holders, and the Company is then eligible to register the Common
Stock on Form S-3, the Company will:
(a) promptly give written notice of the proposed
registration, and any related qualification or compliance, to all other Holders;
and
(b) as soon as practicable, effect such registration
and all such qualifications and compliances as may be so requested and as would
permit or facilitate the sale and distribution of all or such portion of such
Holder's or Holders' Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities of any other
Holder or Holders joining in such request as are specified in a written request
given within 15 days after receipt of such written notice from the Company;
provided, however, that the Company shall not be obligated to effect any such
registration, qualification or compliance, pursuant to this Section 1.11: (1) if
Form S-3 is not available for such offering by the Holders; (2) if the Holders,
together with the holders of any other securities of the Company entitled to
inclusion in such registration, propose to sell Registrable Securities and such
other securities (if any) at an aggregate price to the public (net of any
underwriters' discounts or commissions) of less than $500,000; (3) if the
Company shall furnish to the Holders a certificate signed by the President of
the Company stating that in the good faith judgment of the Board of Directors of
the Company, it would be seriously detrimental to the Company and its
stockholders for such Form S-3 Registration to be effected at such time, in
which event the Company shall have the right to defer the filing of the Form S-3
registration statement for a period of not more than sixty (60) days after
receipt of the request of the Holder or Holders under this Section 1.11;
provided, however, that the Company shall not utilize this right more than once
in any twelve month period; (4) if the Company has, within the twelve (12) month
period preceding the date of such request, already effected two (2)
registrations on Form S-3 for the Holders pursuant to this Section 1.11; or (5)
in any particular jurisdiction in which the Company would be required to qualify
to do business or to execute a general consent to service of process in
effecting such registration, qualification or compliance.
(c) Subject to the foregoing, the Company shall file a
registration statement covering the Registrable Securities and other securities
so requested to be registered as soon as practicable after receipt of the
request or requests of the Holders. All expenses incurred in connection with a
registration requested pursuant to Section 1.11, including (without limitation)
all registration, filing, qualification, printer's and accounting fees and the
reasonable fees and disbursements of counsel for the selling Holder or Holders
and counsel for the Company, shall be borne by the Company. Registrations
effected pursuant to this Section 1.11 shall not be counted as demands for
registration or registrations effected pursuant to Sections 1.2 or 1.3,
respectively.
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1.12. Assignment of Registration Rights
(a) The rights to cause the Company to register
Registrable Securities pursuant to this Section 1 may be assigned (but only with
all related obligations) by a Holder to a transferee or assignee of such
securities if (x) such transfer involves all the Registrable Securities held by
the Holder, or (y) a transfer by a Preferred Stockholder which is a corporation
to a wholly owned subsidiary of such corporation, a transfer by a Preferred
Stockholder which is a partnership to a partner of such partnership or a retired
partner of such partnership who retires after the date hereof, or to the estate
of any such partner or retired partner, or a transfer by a Preferred Stockholder
which is a limited liability company to a member of such limited liability
company or a retired member who resigns after the date hereof or to the estate
of any such member or retired member; or a transfer by a Preferred Stockholder
which is an individual to a member of the immediate family of such individual or
to a trust solely for the benefit of such individual or the members of the
immediate family of such individual or to the estate of such individual;
provided, that all such assignees who would not qualify individually for
assignment of registration rights under subsection 1.12 (a) shall have a single
attorney-in-fact for the purpose of exercising any rights, receiving notices or
taking any action under this Section 1 and shall provide a power of attorney to
that effect if requested by the Company.
(b) No assignment or transfer pursuant to this Section
1.12 shall be effective unless (i) the Company is, within a reasonable time
after such transfer, furnished with written notice of the name and address of
such transferee or assignee and the securities with respect to which such
registration rights are being assigned; (ii) such transferee or assignee agrees
in writing to be bound by and subject to the terms and conditions of this
Agreement, including without limitation the provisions of Section 1.14 below;
and (iii) such assignment shall be effective only if immediately following such
transfer the further disposition of such securities by the transferee or
assignee is restricted under the Act.
1.13. Limitations on Subsequent Registration Rights. From and
after the date of this Agreement, the Company shall not, without the prior
written consent of the Holders of 75% of the outstanding Registrable Securities,
enter into any agreement with any holder or prospective holder of any securities
of the Company which would allow such holder or prospective holder (a) to
include such securities in any registration filed under Section 1.2 hereof,
unless under the terms of such agreement, such holder or prospective holder may
include such securities in any such registration only to the extent that the
inclusion of his securities will not reduce the amount of the Registrable
Securities of the Holders which is included or (b) to make a demand registration
which could result in such registration statement being declared effective prior
to the earlier of either of the dates set forth in subsection 1.2(a) or within
one hundred twenty (120) days of the effective date of any registration effected
pursuant to Section 1.2.
1.14. "Market Stand-Off" Agreement. Preferred Stockholders
and the Founders hereby agree that, during the period of duration specified by
the Company and an underwriter of common stock or other securities of the
Company, following the effective date of a registration statement of the Company
filed under the Act, they shall not, to the extent requested by the Company and
such underwriter, directly or indirectly sell, offer to sell, contract
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to sell (including, without limitation, any short sale), grant any option to
purchase or otherwise transfer or dispose of (other than to donees who agree to
be similarly bound) any securities of the Company held by them at any time
during such period except common stock included in such registration; provided,
however, that:
(a) such agreement shall be applicable only to the
first two such registration statements of the Company which cover common stock
(or other securities) to be sold on its behalf to the public in an underwritten
offering;
(b) all executive officers and directors of the Company
and all other persons with registration rights (whether or not pursuant to this
Agreement) enter into similar agreements; and
(c) such market stand-off time period shall not exceed
one hundred eighty (180) days.
In order to enforce the foregoing covenant, the Company may impose
stop-transfer instructions with respect to the Registrable Securities of
Preferred Stockholders (and the shares or securities of every other person
subject to the foregoing restriction) until the end of such period.
Notwithstanding the foregoing, the obligations described in this
Section 1.14 shall not apply to a registration relating solely to employee
benefit plans on Form S-8 or similar forms which may be promulgated in the
future, or a registration relating solely to a Commission Rule 145 transaction
on Form S-4 or similar forms which may be promulgated in the future.
1.15. Termination of Registration Rights.
No Holder shall be entitled to exercise any right
provided for in this Section 1 after ten (10) years following the effective date
of the IPO.
2. Covenants of the Company.
2.1. Right of First Offer. Subject to the terms and
conditions specified in this Section 2.1, the Company hereby grants to the
Preferred Stockholders a right of first offer with respect to future sales by
the Company of its Shares (as hereinafter defined). For purposes of this Section
2.1, "Preferred Stockholders" includes any general partners, members, and
affiliates of the Preferred Stockholders. The Preferred Stockholders shall
apportion the right of first offer hereby granted among each Preferred
Stockholder in proportion to such Preferred Stockholder's proportionate
investment, or in such proportions as may be agreed upon amongst the Preferred
Stockholders, and each Preferred Stockholder shall be entitled to apportion the
right of first offer hereby granted it among itself and its partners, members,
and affiliates in such proportions as it deems appropriate.
Each time the Company proposes to offer any shares of, or securities
convertible into or exercisable for any shares of, common stock relating to the
financing of any market
11
("Shares"), other than pursuant to an IPO, while shares of the Series A
Preferred are outstanding ("Private Equity Offering"), the Company shall first
make an offering of a number of Shares to the Preferred Stockholders in
accordance with the following provisions:
(a) The Company shall deliver a notice by certified
mail ("Notice") to each Preferred Stockholder stating (i) its bona fide
intention to offer such Shares, (ii) the number of such Shares to be offered,
and (iii) the price and terms, if any, upon which it proposes to offer such
Shares.
(b) Within sixty (60) calendar days after receipt of
the Notice, the Preferred Stockholders may elect to purchase, at the price and
on the terms specified in the Notice, such number of Shares so as to maintain
their then existing ownership interest in the Company, assuming that all of the
shares of Series A Preferred then outstanding were converted into common stock
immediately prior to consummation of such Private Equity Offering.
(c) If the Preferred Stockholders do not elect to
purchase the full number of Shares that they are entitled to purchase pursuant
to subsection 2.1(b), the Company may, during the 120-day period following the
expiration of the period provided in subsection 2.4(b), offer the remaining
unsubscribed portion of such Shares to any person or persons at a price not less
than, and upon terms no more favorable to the offeree than those specified in
the Notice. If the Company does not enter into an agreement for the sale of the
Shares within such period, or if such agreement is not consummated within ninety
(90) days of the execution thereof, the right provided hereunder shall be deemed
to be revived and such Shares shall not be offered unless first reoffered to the
Preferred Stockholders in accordance herewith.
(d) The right of first offer in this Section 2.1 shall
not be applicable (i) to the issuance or sale of shares of common stock (or
options therefor) to employees, consultants, directors or vendors for the
primary purpose of soliciting or retaining their employment or services, or (ii)
after the effective date of the IPO; or (iii) the issuance of securities
pursuant to the conversion or exercise of convertible or exercisable securities,
or (iv) the issuance of securities in connection with a bona fide business
acquisition of or by the Company, whether by merger, consolidation, sale of
assets, sale or exchange of stock or otherwise, or (v) the issuance of stock,
warrants or other securities or rights to persons or entities with which the
Company has business relationships, provided such issuances are for other than
primarily equity financing purposes.
(e) The right of first offer set forth in this Section
2.1 may not be assigned or transferred, and shall terminate upon an IPO.
2.2. Negative Covenants. So long as the Series A Preferred
Stock, the Paribas Stock and the BET Stock is still outstanding, the Company
shall not, without the prior written consent of the holders of at least seventy
five percent (75%) of all outstanding shares of Series A Preferred Stock:
12
(a) Grant registration rights superior to those set
forth in Section 1 without also making such rights available to the Preferred
Stockholders; or
(b) Grant rights of first offer or first refusal
superior to those set forth in Section 2.1, without also making such rights
available to the Preferred Stockholders.
2.3 Additional Rights. In addition to the registration rights
granted in Section 1, and the right of first offer granted in Section 2.1, the
Company grants to the Preferred Stockholders any registration rights, or rights
of first refusal, which are granted to any subsequent purchasers of the
Company's equity securities if and to the extent that any such rights are in the
good faith judgment of the Company's Board of Directors superior to those
granted in Sections 1, and 2.1.
3. Miscellaneous.
3.1. Successors and Assigns. Except as otherwise provided
herein, the terms and conditions of this Agreement shall inure to the benefit of
and be binding upon the respective successors and assigns of the parties
(including transferees of any shares of Registrable Securities). Nothing in this
Agreement, express or implied, is intended to confer upon any party other than
the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.
3.2. Governing Law. This Agreement shall be governed by and
construed under the laws of the State of Delaware as applied to agreements
entered into and to be performed entirely within Delaware.
3.3. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
3.4. Titles and Subtitles. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
3.5. Notices. Unless otherwise provided, any notice required
or permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified or upon
delivery by recognized overnight courier service, or upon deposit with the
United States Post Office, by registered or certified mail, postage prepaid and
addressed to the party to be notified at the address indicated for such party on
the signature page hereof, or at such other address as such party may designate
by ten (10) days' advance written notice to the other parties.
3.6. Expenses. If any action at law or in equity is necessary
to enforce or interpret the terms of this Agreement, the prevailing party shall
be entitled to reasonable
13
attorneys' fees, costs and necessary disbursements in addition to any other
relief to which such party may be entitled.
3.7. Amendments and Waivers. Any term of this Agreement may
be amended and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the holders of
a majority of the Registrable Securities then outstanding; provided that the
sections of this Agreement that contain a super majority requirement shall be
amended only with the written consent of the Company and the holders of 75% of
the Registrable Securities then outstanding. Any amendment or waiver effected in
accordance with this paragraph shall be binding upon each holder of any
Registrable Securities then outstanding, each future holder of all such
Registrable Securities, and the Company.
3.8. Severability. If one or more provisions of this
Agreement are held to be unenforceable under applicable law, such provision
shall be excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
3.9. Aggregation of Stock. All shares of Registrable
Securities held or acquired by affiliated entities or persons shall be
aggregated together for the purpose of determining the availability of any
rights under this Agreement.
3.10. Entire Agreement. This Agreement (including the
Exhibits hereto, if any) constitutes the full and entire understanding and
agreement between the parties with regard to the subjects hereof and thereof.
14
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
SIGNATURE PAGE FOR REGISTRATION RIGHTS AGREEMENT
The foregoing agreement is hereby executed as of the date set forth on the
first page:
COMPANY:
UBIQUITEL HOLDINGS, INC.
By:_____________________________________
Name: Xxxxxx X. Xxxxxx
Title: President and CEO
0 Xxxx Xxxxx - Xxxxx 000
Xxxx Xxxxxx, XX 00000
(000) 000-0000 (fax)
FOUNDERS:
________________________________________
Xxxxxx X. Xxxxxx
000 Xxxxxxxx Xxxx
Xx. Xxxxxx, XX 00000
(000) 000-0000 (fax)
________________________________________
Xxxxx Xxxxxxx
000 Xxxxxxx Xxxxxx X.
Xxxxxxxxxx Xxxxxx, XX 00000
(000) 000-0000 (fax)
________________________________________
Xxxx X. Judge
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000-0000
(000)000-0000 (fax)
THE XXXXXX GROUP
By:_____________________________________
Name:___________________________________
Title:__________________________________
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000-0000
(000) 000-0000 (fax)
US BANCORP.
By:_____________________________________
Name:___________________________________
Title:__________________________________
000 XX 0xx Xxxxxx - 0xx Xxxxx
Xxxxxxxx, XX 00000
(000) 000-0000
PURCHASERS
________________________________________
Xxxxxx X. Xxxxxx
BROOKWOOD FINANCIAL
PARTNERS, LLC
By:_____________________________________
Name: Xxxxxx X. Xxxxx
Title: Chairman and CEO
00 Xxxxx Xxxx
Xxxxxxx, XX 00000
(000) 000-0000 (fax)
Copy to:
Xxxxx X. Xxxxxxxxxx
Ungaretti & Xxxxxx
0000 Xxxxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
(000) 000-0000
LANCASTER INVESTMENT PARTNERS
By:_____________________________________
Name:___________________________________
Title:__________________________________
000 X. Xxxxx Xxxx - Xxxxx 000
Xxxx xx Xxxxxxx, XX 00000
(000) 000-0000 (fax)
________________________________________
Xxxxxxx X. Xxxxxx
000 Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
(000) 000-0000 (fax)
________________________________________
Xxxxxx Xxxxxxxxx
000 Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
(000) 000-0000 (fax)
________________________________________
Xxxxxxx X. Xxxxxxx, Xx.
c/o Xxxxxxx X. Xxxxxxx, Xx.
Express Marine, Inc.
00xx Xxxxxx on the Delaware
Xxxxxx, XX 00000
(000) 000-0000 (fax)
XXXXXX PARTNERS, LP
By:_____________________________________
Name:___________________________________
Title:__________________________________
000 Xxxxxxxxx, Xxxxx 000X
Xxxx Xxxxxx, XX 00000
(000) 000-0000 (fax)
BALLYSHANNON PARTNERS LP
By:_____________________________________
Name:___________________________________
Title:__________________________________
000 Xxxx Xxxx Xxxxxx
Xxxx Xxxx, XX 00000
(000) 000-0000 (fax)
________________________________________
Xxxxx Xxxxxx
(000) 000-0000 (fax)
XXXXXXXX COMMUNICATIONS,
By:_____________________________________
Name:___________________________________
Title:__________________________________
0000 X Xxxxxx, #000-000
Xxxxxx, XX 00000
Copy to:
Xxxxxxxx Communications Ltd.
00000 00 Xxxxxx
Xxxxxx XX X00 0X0
(000) 000-0000 (fax)
SPECTRASITE COMMUNICATIONS
By:_____________________________________
Name:___________________________________
Title:__________________________________
000 Xxxxxxx Xxxxxx Xxxxx - Xxxxx 000
Xxxx, XX 00000
(000) 000-0000 (fax)
________________________________________
Xxxx Xxxxxxxx
________________________________________
Xxxxx Xxxxxxxx
X.X. Xxx 000
Xxxxx, XX 00000
(000) 000-0000 (fax)
Copy to:
Xxxx Xxxxxxxx
Xxxxx Xxxxxx Xxxxxxx
0000 XX 0xx Xxxxxx, Xxxxx 0000
Xxxxxxxx, XX 00000
(000) 000-0000 (fax)
New Ventures, LLC
By:_____________________________________
Name:___________________________________
Title:__________________________________
000 X. Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
(000) 000-0000 (fax)
EXHIBIT A
PREFERRED STOCKHOLDERS
