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EXHIBIT 10.3
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement") dated as of September
17, 1999 between VoiceStream Wireless Holding Corporation, a Delaware
Corporation (the "Company"), Sonera Corporation (formerly Sonera Ltd.), a
Finnish limited liability Company corporation ("Sonera") and Sonera Holding
B.V., a company organized under the laws of the Netherlands.
RECITALS
WHEREAS, pursuant to that certain Stock Subscription Agreement dated
September 17, 1999, by and among Company, and Holder ("Stock Subscription
Agreement"), Holder shall acquire shares of Common Stock of the Company;
WHEREAS, in connection with Holder's investment pursuant to the Stock
Subscription Agreement, the Company agreed to provide certain rights to Holder
to cause the shares so purchased to be registered pursuant to the Securities
Act; and
WHEREAS, the parties hereto hereby desire to set forth Holder's rights
and the Company's obligations to cause the registration of the Registrable
Securities pursuant to the Securities Act;
NOW, THEREFORE, in consideration of the agreement to purchase Common
Stock of the Company by the Holder pursuant to the Stock Subscription Agreement,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
Section 1. Definitions and Usage.
As used in this Agreement:
1.1. Definitions.
"Affiliates" shall have the meaning set forth for such term in
the Stock Subscription Agreement.
"Agent" shall mean the principal placement agent on an agented
placement of Registrable Securities.
"Commission" shall mean the Securities and Exchange
Commission.
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"Common Stock" shall mean (i) the common stock, no par value
of the Company, and (ii) shares of capital stock of the Company issued by the
Company in respect of or in exchange for shares of such common stock in
connection with any stock dividend or distribution, stock split-up,
recapitalization, recombination or exchange by the Company generally of shares
of such common stock.
"Continuously Effective", with respect to a specified
registration statement, shall mean that it shall not cease to be effective and
available for Transfers of Registrable Securities thereunder for longer than
either (i) any ten (10) consecutive business days, or (ii) an aggregate of
fifteen (15) business days during the period specified in the relevant provision
of this Agreement.
"Demand Registration" shall have the meaning set forth in
Section 2.1(i).
"Demanding Holders" shall have the meaning set forth in
Section 2.1(i).
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
"Holder" shall mean Sonera and any affiliate thereof that
holds Registrable Securities and any subsequent transferee of Registrable
Securities as permitted by Section 8 and the term "Holders" shall include Holder
and transferees of Registrable Securities with respect to the rights that such
Transferees shall have acquired in accordance with Section 8 hereof, at such
times as such Persons shall own Registrable Securities.
"Initiating Substantial Holder" shall have the meaning set
forth in Section 2.2.
"Investor Agreement" shall mean that certain Investor
Agreement as of September 17, 1999 by and between Holder, VoiceStream Wireless
Corporation, a Washington corporation ("VoiceStream"), and Company.
"Majority Selling Holders" means those Selling Holders whose
Registrable Securities included in such registration represent a majority of the
Registrable Securities of all Selling Holders included therein.
"Person" shall mean an individual, corporation, partnership,
limited liability company, joint venture, association, joint stock company,
unincorporated syndicate, unincorporated organization, trust, trustee, executor,
administrator or other
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legal representative, governmental authority or agency, political subdivision,
or any group of Persons acting in concert.
"Piggyback Registration" shall have the meaning set forth in
Section 3.
"Register", "registered", and "registration" shall refer to a
registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act, and the declaration or
ordering by the Commission of effectiveness of such registration statement or
document.
"Registrable Securities" shall mean, subject to Section 8 and
Section 10.3: (i) the Shares owned by Holder on the date hereof or issued by the
Company to a Holder thereafter, and owned by a Holder on the date of
determination, including derivative securities with respect to such Shares (ii)
any shares of Common Stock or other securities issued as (or issuable upon the
conversion or exercise of any warrant, right or other security which is issued
as) a dividend or other distribution with respect to, or in exchange by the
Company generally for, or in replacement by the Company generally of, such
Shares; and (iii) any securities issued in exchange for Shares in any subsequent
merger or reorganization of the Company; provided, however, that Registrable
Securities shall not include any Securities which have theretofore been
registered and sold pursuant to the Securities Act or which have been sold to
the public pursuant to Rule 144 or any similar rule promulgated by the
Commission pursuant to the Securities Act, and, provided further, the Company
shall have no obligation under Sections 2 and 3 to register any Registrable
Securities of a Holder if the Company shall deliver to the Holders requesting
such registration an opinion of counsel reasonably satisfactory to such Holders
and its counsel to the effect that the proposed sale or disposition of all of
the Registrable Securities for which registration was requested does not require
registration under the Securities Act for a sale or disposition in a single
public sale, and offers to remove any and all legends restricting transfer from
the certificates evidencing such Registrable Securities. For purposes of this
Agreement, a Person will be deemed to be an owner of Registrable Securities
whenever such Person has the then-existing right to acquire such Registrable
Securities (by conversion, purchase or otherwise, including acquisition pursuant
to the Stock Subscription Agreement and the Reorganization Agreement), whether
or not such acquisition has actually been effected.
"Registrable Securities then outstanding" shall mean, with
respect to a specified determination date, the Registrable Securities owned by
all Holders on such date.
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"Registration Expenses" shall have the meaning set forth in
Section 6.1.
"Reorganization Agreement" shall mean that certain Agreement
and Plan of Reorganization, dated as of September 17, 1999 among VoiceStream,
Company, VoiceStream Subsidiary III Corporation, Aerial Communications, Inc. and
Telephone and Data Systems, Inc.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Selling Holders" shall mean, with respect to a specified
registration pursuant to this Agreement, Holders whose Registrable Securities
are included in such registration.
"Shares" shall mean all shares of Common Stock issued to
Holder or its Affiliates pursuant to the Reorganization Agreement or the Stock
Subscription Agreement.
"Shelf Registration" shall have the meaning set forth in
Section 2.2.
"Stock Subscription Agreement" Shall have the meaning set
forth in the Recitals.
"Substantial Holder" shall mean Holder on the date of this
Agreement and after the date of this Agreement, any Holder of 15% or more of the
Registrable Securities then outstanding.
"Transfer" shall mean and include the act of selling, giving,
transferring, creating a trust (voting or otherwise), assigning or otherwise
disposing of (other than pledging, hypothecating or otherwise transferring as
security) (and correlative words shall have correlative meanings); provided
however, that any transfer or other disposition upon foreclosure or other
exercise of remedies of a secured creditor after an event of default under or
with respect to a pledge, hypothecation or other transfer as security shall
constitute a "Transfer."
"Underwriters' Representative" shall mean the managing
underwriter, or, in the case of a co-managed underwriting, the managing
underwriter designated as the Underwriters' Representative by the co-managers.
"Violation" shall have the meaning set forth in Section 7.1.
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1.2. Usage.
(i) When a reference is made in this Agreement to a Section,
Schedule, Annex or Exhibit, such reference shall be to a Section, Schedule,
Annex or Exhibit of this Agreement unless otherwise indicated or unless the
context otherwise requires.
(ii) The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
(iii) Whenever the words "include," "includes" or "including"
are used in this Agreement, they shall be deemed to be followed by the words
"without limitation."
(iv) References to a Person are also references to its assigns
and successors in interest (by means of merger, consolidation or sale of all or
substantially all the assets of such Person or otherwise, as the case may be).
(v) References to a document are to such document as amended,
waived and otherwise modified from time to time and references to a statute or
other governmental rule are to such statute or rule as amended and otherwise
modified from time to time (and references to any provision thereof shall
include references to any successor provision).
(vi) The definitions set forth herein are equally applicable
both to the singular and plural forms and the feminine, masculine and neuter
forms of the terms defined.
(vii) The term "hereof" and similar terms refer to this
Agreement as a whole.
(viii) References to Registrable Securities "owned" by a
Holder shall include Registrable Securities beneficially owned by such Person
but which are held of record in the name of a nominee, trustee, custodian, or
other agent, but shall exclude shares of Common Stock held by a Holder in a
fiduciary capacity for customers of such Person.
(ix) The "date of" any notice or request given pursuant to
this Agreement shall be determined in accordance with Section 13.2.
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Section 2. Demand Registration.
2.1.
(i) At any time on or after the date six months after the date
hereof , if one or more Holders that own an aggregate of 51% or more of the
Registrable Securities then outstanding shall make a written request to the
Company (the "Demanding Holders"), the Company shall cause there to be filed
with the Commission a registration statement meeting the requirements of the
Securities Act (a "Demand Registration"), and each Demanding Holder shall be
entitled to have included therein (subject to Section 2.7) all or such number of
such Demanding Holder's Registered Shares, as the Demanding Holder shall report
in writing; provided, however, that no request may be made pursuant to this
Section 2.1 if within nine (9) months prior to the date of such request a Demand
Registration Statement pursuant to this Section 2.1 shall have been declared
effective by the Commission. Any request made pursuant to this Section 2.1 shall
be addressed to the attention of the Secretary of the Company, and shall specify
the number of Registrable Securities to be registered, the intended methods of
disposition thereof and that the request is for a Demand Registration pursuant
to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to
ninety (90) days the filing of any Demand Registration statement otherwise
required to be prepared and filed pursuant to this Section 2.1, if the Board
determines, in its good faith reasonable judgment (with the concurrence of the
managing underwriter, if any), that such registration and the Transfer of
Registrable Securities contemplated thereby would materially interfere with, or
require premature disclosure of, any financing, acquisition or reorganization
involving the Company or any of its wholly owned subsidiaries and the Company
promptly gives the Demanding Holders notice of such determination; provided,
however, that the Company shall not have postponed pursuant to this Section
2.1(ii) the filing of any other Demand Registration statement otherwise required
to be prepared and filed pursuant to this Section 2.1 during the twelve (12)
month period ended on the date of the relevant request pursuant to Section
2.1(i).
(iii) Whenever the Company shall have received a demand
pursuant to Section 2.1(i) to effect the registration of any Registrable Shares,
the Company shall promptly give written notice of such proposed registration to
all other Holders. Any such Holder may, within twenty (20) days after receipt of
such notice, request in writing that all of such Holder's Registrable Shares, or
any portion thereof designated by such Holder, be included in the registration.
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2.2. On or after the date of this Agreement each Substantial
Holder that shall make a written request to the Company (the "Initiating
Substantial Holder"), shall be entitled to have all or any number of such
Initiating Substantial Holder's Registrable Securities included in a
registration with the Commission in accordance with the Securities Act for an
offering on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act (a "Shelf Registration"). Any request made pursuant to this
Section 2.2 shall be addressed to the attention of the Secretary of the Company,
and shall specify the number of Registrable Securities to be registered, the
intended methods of disposition thereof and that the request is for a Shelf
Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand Registration
or a Shelf Registration, the Company shall:
(i) File the registration statement with the Commission as
promptly as practicable, and shall use the Company's best efforts to have the
registration declared effective under the Securities Act as soon as reasonably
practicable, in each instance giving due regard to the need to prepare current
financial statements, conduct due diligence and complete other actions that are
reasonably necessary to effect a registered public offering.
(ii) Use the Company's best efforts to keep the relevant
registration statement Continuously Effective (x) if a Demand Registration, for
up to ninety (90) days or until such earlier date as of which all the
Registrable Securities under the Demand Registration statement shall have been
disposed of in the manner described in the Registration Statement, and (y) if a
Shelf Registration, for three (3) years. Notwithstanding the foregoing, if for
any reason the effectiveness of a registration pursuant to this Section 2 is
suspended or, in the case of a Demand Registration, postponed as permitted by
Section 2.1(ii), the foregoing period shall be extended by the aggregate number
of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more than
four Demand Registrations and such number of Shelf Registrations as may be
necessary to provide each and every Substantial Holder with the right to request
one Shelf Registration. For purposes of the preceding sentence, registration
shall not be deemed to have been effected (i) unless a registration statement
with respect thereto has become effective, (ii) if after such registration
statement has become effective, such registration or the related offer, sale or
distribution of Registrable Securities thereunder is interfered with by any stop
order, injunction or other order or requirement of the Commission or other
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governmental agency or court for any reason not attributable to the Selling
Holders and such interference is not thereafter eliminated, or (iii) if the
conditions to closing specified in the underwriting agreement, if any, entered
into in connection with such registration are not satisfied or waived, other
than by reason of a failure on the part of the Selling Holders. If the Company
shall have complied with its obligations under this Agreement, a right to demand
a registration pursuant to this Section 2 shall be deemed to have been satisfied
(i) if a Demand Registration, upon the earlier of (x) the date as of which all
of the Registrable Securities included therein shall have been disposed of
pursuant to the Registration Statement, and (y) the date as of which such Demand
Registration shall have been Continuously Effective for a period of ninety (90)
days, and (ii) if a Shelf Registration, upon the effective date of a Shelf
Registration, provided no stop order or similar order, or proceedings for such
an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall be on
such appropriate registration form of the Commission as shall (i) be selected by
the Company and be reasonably acceptable to the Majority Selling Holders, or by
the Initiating Substantial Holder, as the case may be, and (ii) permit the
disposition of the Registrable Securities in accordance with the intended method
or methods of disposition specified in the request pursuant to Section 2.1(i) or
Section 2.2, respectively.
2.6. If any registration pursuant to Section 2 involves an
underwritten offering (whether on a "firm", "best efforts" or "all reasonable
efforts" basis or otherwise), or an agented offering, the Company, shall have
the right to select the underwriter or underwriters and manager or managers to
administer such underwritten offering or the placement agent or agents for such
agented offering; provided, however, that each Person so selected shall be
reasonably acceptable to the Majority Selling Holders, or the Initiating
Substantial Holder, as the case may be.
2.7. Whenever the Company shall effect a registration pursuant
to this Section 2 in connection with an underwritten offering by one or more
Selling Holders of Registrable Securities: (i) if such Selling Holders have
requested the inclusion therein of more than one class of Registrable
Securities, and the Underwriters' Representative or Agent advises each such
Selling Holder in writing that, in its opinion, the inclusion of more than one
class of Registrable Securities would adversely affect such offering, the
Demanding Holders holding at least a majority of the Registrable Securities
(determined by the relative market value as of the date on which a timely demand
is last received from Holder) proposed to be sold therein by them, shall decide
which class of Registrable Securities shall be included
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therein in such offering and the related registration, and the other class shall
be excluded; and (ii) if the Underwriters' Representative or Agent advises each
such Selling Holder in writing that, in its opinion, the amount of securities
requested to be included in such offering (whether by Selling Holders or others)
exceeds the amount which can be sold in such offering within a price range
acceptable to the Majority Selling Holders, securities shall be included in such
offering and the related registration, to the extent of the amount which can be
sold within such price range, and on a pro rata basis among all Selling Holders;
first for the account of the Substantial Holders, and second by all other
Selling Holders.
Section 3. Piggyback Registration.
3.1. If at any time during the term of this Agreement the
Company proposes to register (including for this purpose a registration effected
by the Company for shareholders of the Company other than the Holders)
securities under the Securities Act in connection with the public offering
solely for cash on Form X-0, X-0 or S-3 (or any replacement or successor forms),
the Company shall promptly give each Holder written notice of such registration
(a "Piggyback Registration"). Upon the written request of each Holder given
within 20 days following the date of such notice, the Company shall cause to be
included in such registration statement and use its best efforts to be
registered under the Securities Act all the Registrable Securities that each
such Holder shall have requested to be registered. The Company shall have the
absolute right to withdraw or cease to prepare or file any registration
statement for any offering referred to in this Section 3 without any obligation
or liability to any Holder.
3.2. If the Underwriters' Representative or Agent shall advise
the Company in writing (with a copy to each Selling Holder) that, in its
opinion, the amount of Registrable Securities requested to be included in such
registration would materially adversely affect such offering, or the timing
thereof, then the Company will include in such registration, to the extent of
the amount and class which the Company is so advised can be sold without such
material adverse effect in such offering: First, all securities proposed to be
sold by the Company for its own account; second, the Registrable Securities
requested to be included in such registration by Holders pursuant to this
Section 3, and all other securities being registered pursuant to the exercise of
contractual rights comparable to the rights granted in this Section 3, pro rata
based on the estimated gross proceeds from the sale thereof; provided, however,
that the Registrable Securities that have been requested to be registered shall
not be reduced below 20% of the shares included in such registration unless such
action is
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necessary to avoid a material adverse effect on the Company taken as a whole.
3.3. Each Holder shall be entitled to have its Registrable
Securities included in an unlimited number of Piggyback Registrations pursuant
to this Section 3.
3.4. If the Corporation has previously filed a registration
statement with respect to Registerable Securities pursuant to Section 2 or
pursuant to this Section 3, and if such previous registration has not been
withdrawn or abandoned, the Corporation will not file or cause to be effected
any other registration of any of its equity securities or securities convertible
or exchangeable into or exercisable for its equity securities under the
Securities Act (except on Form S-8 or any successor form), whether on its own
behalf or at the request of any holder or holders of such securities, until a
period of 180 days has elapsed from the effective date of such a previous
registration.
Section 4. Registration Procedures. Whenever required under Section 2 or
Section 3 to effect the registration of any Registrable Securities, the Company
shall, as expeditiously as practicable:
4.1. Prepare and file with the Commission a registration
statement with respect to such Registrable Securities and use the Company's best
efforts to cause such registration statement to become effective; provided,
however, that before filing a registration statement or prospectus or any
amendments or supplements thereto, including documents incorporated by reference
after the initial filing of the registration statement and prior to
effectiveness thereof, the Company shall furnish to one firm of counsel for the
Selling Holders (selected by Majority Selling Holders or the Initiating
Substantial Holder, as the case may be) copies of all such documents in the form
substantially as proposed to be filed with the Commission at least four (4)
business days prior to filing for review and comment by such counsel, which
opportunity to comment shall include an absolute right to control or contest
disclosure if the applicable Selling Holder reasonably believes that it may be
subject to controlling person liability under applicable securities laws with
respect thereto.
4.2. Prepare and file with the Commission 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 Securities Act and rules thereunder with respect to the
disposition of all securities covered by such registration statement. If the
registration is for an underwritten offering, the Company shall
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amend the registration statement or supplement the prospectus whenever required
by the terms of the underwriting agreement entered into pursuant to Section 5.2.
Subject to Rule 415 under the Securities Act, if the registration statement is a
Shelf Registration, the Company shall amend the registration statement or
supplement the prospectus so that it will remain current and in compliance with
the requirements of the Securities Act for three years after its effective date,
and if during such period any event or development occurs as a result of which
the registration statement or prospectus contains a misstatement 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, the Company shall
promptly notify each Selling Holder, amend the registration statement or
supplement the prospectus so that each will thereafter comply with the
Securities Act and furnish to each Selling Holder of Registerable Shares such
amended or supplemented prospectus, which each such Holder shall thereafter use
in the Transfer of Registerable Shares covered by such registration statement.
Pending such amendment or supplement each such Holder shall cease making offers
or Transfers of Registerable Shares pursuant to the prior prospectus. In the
event that any Registrable Securities included in a registration statement
subject to, or required by, this Agreement remain unsold at the end of the
period during which the Company is obligated to use its best efforts to maintain
the effectiveness of such registration statement, the Company may file a
post-effective amendment to the registration statement for the purpose of
removing such Securities from registered status.
4.3. Furnish to each Selling Holder of Registrable Securities,
without charge, such numbers of copies of the registration statement, any
pre-effective or post-effective amendment thereto, the prospectus, including
each preliminary prospectus and any amendments or supplements thereto, in each
case in conformity with the requirements of the Securities Act and the rules
thereunder, and such other related documents as any such Selling Holder may
reasonably request in order to facilitate the disposition of Registrable
Securities owned by such Selling Holder.
4.4. Use the Company's best efforts (i) to register and
qualify the securities covered by such registration statement under such other
securities or Blue Sky laws of such states or domestic jurisdictions as shall be
reasonably requested by the Underwriters' Representative or Agent (as
applicable, or if inapplicable, the Majority Selling Holders), and (ii) to
obtain the withdrawal of any order suspending the effectiveness of a
registration statement, or the lifting of any suspension of the qualification
(or exemption from qualification) of the offer and transfer of any of the
Registrable Securities in any jurisdiction, at the earliest possible moment;
provided, however, that the
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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.
4.5. In the event of any underwritten or agented offering,
enter into and perform the Company's obligations under an underwriting or agency
agreement (including indemnification and contribution obligations of
underwriters or agents), in usual and customary form, with the managing
underwriter or underwriters of or agents for such offering. The Company shall
also cooperate with the Majority Selling Holders or Initiating Substantial
Holder, as the case may be, and the Underwriters' Representative or Agent for
such offering in the marketing of the Registerable Shares, including making
available the Company's officers, accountants, counsel, premises, books and
records for such purpose.
4.6. Promptly notify each Selling Holder of any stop order
issued or threatened to be issued by the Commission in connection therewith (and
take all reasonable actions required to prevent the entry of such stop order or
to remove it if entered.
4.7. Make generally available to the Company's security
holders copies of all periodic reports, proxy statements, and other information
referred to in Section 10.1 and an earnings statement satisfying the provisions
of Section 11(a) of the Securities Act no later than 90 days following the end
of the 12-month period beginning with the first month of the Company's first
fiscal quarter commencing after the effective date of each registration
statement filed pursuant to this Agreement.
4.8. Make available for inspection by any Selling Holder, any
underwriter participating in such offering and the representatives of such
Selling Holder and underwriter (but not more than one firm of counsel to such
Selling Holders), all financial and other information as shall be reasonably
requested by them, and provide the Selling Holder, any underwriter participating
in such offering and the representatives of such Selling Holder and underwriter
the opportunity to discuss the business affairs of the Company with its
appropriate officers and independent public accountants who have certified the
audited financial statements included in such registration statement, in each
case all as necessary to enable them to exercise their due diligence
responsibility under the Securities Act; provided, however, that information
that the Company determines, in good faith, to be confidential and which the
Company advises such Person in writing, is confidential shall not be disclosed
unless such Person signs a confidentiality agreement reasonably satisfactory to
the Company or the related Selling Holder of Registrable Securities agrees to be
responsible for such Person's breach of confidentiality on terms reasonably
satisfactory to the Company.
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4.9. Use the Company's best efforts to obtain a so-called
"comfort letter" from its independent public accountants, and legal opinions of
counsel to the Company addressed to the Selling Holders, in customary form and
covering such matters of the type customarily covered by such letters, and in a
form that shall be reasonably satisfactory to Majority Selling Holders or the
Initiating Substantial Holder, as the case be. The Company shall furnish to each
Selling Holder a signed counterpart of any such comfort letter or legal opinion.
Delivery of any such opinion or comfort letter shall be subject to the recipient
furnishing such written representations or acknowledgments as are customarily
provided by selling shareholders who receive such comfort letters or opinions.
4.10. Provide and cause to be maintained a transfer agent and
registrar for all Registrable Securities covered by such registration statement
from and after a date not later than the effective date of such registration
statement.
4.11. Use all reasonable efforts to cause the Registrable
Securities covered by such registration statement (i) if the Common Stock is
then listed on a securities exchange or included for quotation in a recognized
trading market, to continue to be so listed or included for a reasonable period
of time after the offering, and (ii) to be registered with or approved by such
other United States or state governmental agencies or authorities as may be
necessary by virtue of the business and operations of the Company to enable the
Selling Holders of Registrable Securities to consummate the disposition of such
Registrable Securities.
4.12. Use the Company's reasonable efforts to provide a CUSIP
number for the Registrable Securities prior to the effective date of the first
registration statement including Registrable Securities.
4.13. Take such other actions as are reasonably required in
order to expedite or facilitate the disposition of Registrable Securities
included in each such registration.
Section 5. Holders' Obligations. It shall be a condition precedent to
the obligations of the Company to take any action pursuant to this Agreement
with respect to the Registrable Securities of any Selling Holder of Registrable
Securities that such Selling Holder shall:
5.1. Furnish to the Company such information regarding such
Selling Holder, the number of the Registrable Securities owned by it, and the
intended method of disposition of such securities as shall be required to effect
the registration of
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such Selling Holder's Registrable Securities, and to cooperate with the Company
in preparing such registration;
5.2. Agree to sell their Registrable Securities to the
underwriters at the same price and on substantially the same terms and
conditions as the Company or the other Persons on whose behalf the registration
statement was being filed have agreed to sell their securities, and to execute
the underwriting agreement agreed to by the Majority Selling Holders (in the
case of a registration under Section 2) or the Company and the Majority Selling
Holders (in the case of a registration under Section 3).
Section 6. Expenses of Registration. Expenses in connection with
registrations pursuant to this Agreement shall be allocated and paid as follows:
6.1. With respect to each Demand Registration and Shelf
Registration, the Company shall bear and pay all expenses incurred in connection
with any registration, filing, or qualification of Registrable Securities with
respect to such Demand Registrations for each Selling Holder (which right may be
assigned to any Person to whom Registrable Securities are Transferred as
permitted by Section 9), including all registration, filing and National
Association of Securities Dealers, Inc. fees, all fees and expenses of complying
with securities or blue sky laws, all word processing, duplicating and printing
expenses, messenger and delivery expenses, the reasonable fees and disbursements
of counsel for the Company, and of the Company's independent public accountants,
including the expenses of "cold comfort" letters required by or incident to such
performance and compliance (the "Registration Expenses"), but excluding
underwriting discounts and commissions relating to Registrable Securities and
any fees and disbursements of counsel for the Selling Holders which shall be
selected by the Majority Selling Holders (which shall be paid on a pro rata
basis by the Selling Holders) provided, however, that the Company shall not be
required to pay for any expenses of any registration proceeding begun pursuant
to Section 2 if the registration is subsequently withdrawn at the request of the
Majority Selling Holders (in which case all Selling Holders shall bear such
expense), unless Holders whose Registrable Securities constitute a majority of
the Registrable Securities then outstanding agree that such withdrawn
registration shall constitute one of the demand registrations under Section 2
hereof.
6.2. The Company shall bear and pay all Registration Expenses
incurred in connection with any Piggyback Registrations pursuant to Section 3
for each Selling Holder (which right may be Transferred to any Person to whom
Registrable Securities are Transferred as permitted by Section 8), but excluding
underwriting discounts and commissions relating to
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Registrable Securities and any fees and disbursements of counsel for the Selling
Holders (which shall be paid on a pro rata basis by the Selling Holders of
Registrable Securities).
6.3. Any failure of the Company to pay any Registration
Expenses as required by this Section 6 shall not relieve the Company of its
obligations under this Agreement.
Section 7. Indemnification; Contribution. If any Registrable Securities
are included in a registration statement under this Agreement:
7.1. To the extent permitted by applicable law, the Company
shall indemnify and hold harmless each Selling Holder, each Person, if any, who
controls such Selling Holder within the meaning of the Securities Act, and each
officer, director, partner, and employee of such Selling Holder and such
controlling Person, against any and all losses, claims, damages, liabilities and
reasonable expenses (joint or several), including reasonable attorneys' fees and
disbursements and expenses of investigation, incurred by such party pursuant to
any actual or threatened action, suit, proceeding or investigation, or to which
any of the foregoing Persons may become subject under the Securities Act, the
Exchange Act or other federal or state laws, insofar as such losses, claims,
damages, liabilities and reasonable expenses 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
Securities Act, the Exchange Act, any applicable state securities law or any
rule or regulation promulgated under the Securities Act, the Exchange Act or any
applicable state securities law; provided, however, that the indemnification
required by this Section 7.1 shall not apply to amounts paid in settlement of
any such loss, claim, damage, liability or expense if such settlement is
effected without the consent of the Company, nor shall the Company be liable in
any such case for any such loss, claim, damage, liability or expense 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 to the
Company by the indemnified party expressly for use in connection
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16
with such registration; provided, further, that the indemnity agreement
contained in this Section 7 shall not apply to any underwriter to the extent
that any such loss is based on or arises out of an untrue statement or alleged
untrue statement of a material fact, or an omission or alleged omission to state
a material fact, contained in or omitted from any preliminary prospectus if the
final prospectus shall correct such untrue statement or alleged untrue
statement, or such omission or alleged omission, and a copy of the final
prospectus has not been sent or given to such person at or prior to the
confirmation of sale to such person if such underwriter was under an obligation
to deliver such final prospectus and failed to do so. The Company shall also
indemnify the Selling Holders against claims asserted by underwriters, selling
brokers, dealer managers and similar securities industry professionals
participating in the distribution, their officers, directors, agents and
employees and each person who controls such persons (within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same
extent as provided above with respect to the indemnification of the Selling
Holders.
7.2. To the extent permitted by applicable law, each Selling
Holder shall indemnify and hold harmless the Company, each of its directors,
each of its officers who shall have signed the registration statement, each
Person, if any, who controls the Company within the meaning of the Securities
Act, any other Selling Holder, any controlling Person of any such other Selling
Holder and each officer, director, partner, and employee of such other Selling
Holder and such controlling Person, against any and all losses, claims, damages,
liabilities and expenses (joint and several), including attorneys' fees and
disbursements and expenses of investigation, incurred by such party pursuant to
any actual or threatened action, suit, proceeding or investigation, or to which
any of the foregoing Persons may otherwise become subject under the Securities
Act, the Exchange Act or other federal or state laws, insofar as such losses,
claims, damages, liabilities and expenses 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 Selling Holder expressly for use in connection with such
registration; provided, however, that (x) the indemnification required by this
Section 7.2 shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability or expense if settlement is effected without the
consent of the relevant Selling Holder of Registrable Securities, and (y) in no
event shall the amount of any indemnity under this Section 7.2 exceed the gross
proceeds from the applicable offering received by such Selling Holder.
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17
7.3. Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, suit, proceeding,
investigation or threat thereof made in writing for which such indemnified party
may make a claim under this Section 7, such indemnified party shall 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. The failure to deliver written notice to the
indemnifying party within a reasonable time following 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 7 but shall not relieve the indemnifying party of any liability that it
may have to any indemnified party otherwise than pursuant to this Section 7. Any
fees and expenses incurred by the indemnified party (including any fees and
expenses incurred in connection with investigating or preparing to defend such
action or proceeding) shall be paid to the indemnified party, as incurred,
within thirty (30) days of written notice thereof to the indemnifying party;
provided, however, that such notice is accompanied by an appropriate undertaking
of the indemnified party to reimburse the indemnifying party to the extent it is
ultimately determined that such party is not entitled to indemnification. Any
such indemnified party shall have the right to employ separate counsel in any
such action, claim or proceeding and to participate in the defense thereof, but
the fees and expenses of such counsel shall be the expenses of such indemnified
party unless (i) the indemnifying party has agreed to pay such fees and expenses
or (ii) the indemnifying party shall have failed to promptly assume the defense
of such action, claim or proceeding. No indemnifying party shall be liable to an
indemnified party for any settlement of any action, proceeding or claim without
the written consent of the indemnifying party, which consent shall not be
unreasonably withheld.
7.4. If the indemnification required by this Section 7 from
the indemnifying party is unavailable to an indemnified party hereunder in
respect of any losses, claims, damages, liabilities or expenses referred to in
this Section 7:
(i) The 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, claims, damages, liabilities or
expenses in such proportion as is appropriate to reflect the relative fault of
the indemnifying party and indemnified parties in connection with the actions
which resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations. The
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18
relative fault of such indemnifying party and indemnified parties shall be
determined by reference to, among other things, whether any Violation has been
committed by, or relates to information supplied by, such indemnifying party or
indemnified parties, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such Violation. The amount
paid or payable by a party as a result of the losses, claims, damages,
liabilities and expenses referred to above shall be deemed to include, subject
to the limitations set forth in Section 7.1 and Section 7.2, any legal or other
fees or expenses reasonably incurred by such party in connection with any
investigation or proceeding.
(ii) The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 7.4 were determined by pro
rata allocation or by any other method of allocation which does not take into
account the equitable considerations referred to in Section 7.4(i). No Person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any Person who was
not guilty of such fraudulent misrepresentation.
7.5. If indemnification is available under this Section 7, the
indemnifying parties shall indemnify each indemnified party to the full extent
provided in this Section 8 without regard to the relative fault of such
indemnifying party or indemnified party or any other equitable consideration
referred to in Section 7.4.
7.6. The obligations of the Company and the Selling Holders of
Registrable Securities under this Section 7 shall survive the completion of any
offering of Registrable Securities pursuant to a registration statement under
this Agreement, and otherwise.
Section 8. Transfer of Registration Rights. Subject to restrictions in
the Investor Agreement on the right to transfer the Shares, rights with respect
to Registrable Securities may be Transferred as follows: (i) the rights of the
Holder and any subsequent Substantial Holder to require a Shelf Registration
pursuant to Section 2.2 may be Transferred to any Person in connection with the
Transfer to such Person by such Substantial Holder of a number of Registrable
Securities equal to 15% or more of the Registrable Securities outstanding on the
date of this Agreement, and (ii) all other rights of the Holder and any
subsequent Holder with respect to Registrable Securities pursuant to this
Agreement may be Transferred by such Holder to any Person in connection with the
Transfer of Registrable Securities to such Person, in all cases, if (x) any such
Transferee that is not a party to this Agreement shall have executed and
delivered to the
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19
Secretary of the Company a properly completed agreement substantially in the
form of Exhibit A, and (y) the Transferor shall have delivered to the Secretary
of the Company, no later than 15 days following the date of the Transfer,
written notification of such Transfer setting forth the name of the Transferor,
name and address of the Transferee, and the number of Registrable Securities
which shall have been so Transferred.
Section 9. Holdback. Each Holder entitled pursuant to this Agreement to
have Registrable Securities included in a registration statement prepared
pursuant to this Agreement, if so requested by the Underwriters' Representative
or Agent in connection with an offering of any Registrable Securities, shall not
effect any public sale or distribution of shares of Common Stock or any
securities convertible into or exchangeable or exercisable for shares of Common
Stock, including a sale pursuant to Rule 144 under the Securities Act (except as
part of such underwritten or agented registration), during the five (5) day
period prior to, and during the ninety (90) day period beginning on, the date
such registration statement is declared effective under the Securities Act by
the Commission, provided that such Holder is timely notified of such effective
date in writing by the Company or such Underwriters' Representative or Agent. In
order to enforce the foregoing covenant, the Company shall be entitled to impose
stop-transfer instructions with respect to the Registrable Securities of each
Holder until the end of such period.
Section 10. Covenants of the Company. The Company hereby agrees and
covenants as follows:
10.1. The Company shall file as and when applicable, on a
timely basis, all reports required to be filed by it under the Exchange Act. If
the Company is not required to file reports pursuant to the Exchange Act, upon
the request of any Holder of Registrable Securities, the Company shall make
publicly available the information specified in subparagraph (c)(2) of Rule 144
of the Securities Act, and take such further action as may be reasonably
required from time to time and as may be within the reasonable control of the
Company, to enable the Holders to Transfer Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by Rule 144 under the Securities Act or any similar rule or regulation
hereafter adopted by the Commission.
10.2. (i) The Company shall not, and shall not permit its
majority owned subsidiaries to, effect any public sale or distribution of any
shares of Common Stock or any securities convertible into or exchangeable or
exercisable for shares of Common Stock, during the five business days prior to,
and during the 90-day period beginning on, the commencement of a public
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20
distribution of the Registrable Securities pursuant to any registration
statement prepared pursuant to this Agreement (other than by the Company
pursuant to such registration if the registration is pursuant to Section 3). The
Company shall not effect any registration of its securities (other than on Form
X-0, Xxxx X-0, or any successor forms to such forms or pursuant to such other
registration rights agreements as may be approved in writing by the Majority
Selling Holders or the Initiating Substantial Holder, as the case may be, or
effect any public or private sale or distribution of any of its securities,
including a sale pursuant to Regulation D under the Securities Act, whether on
its own behalf or at the request of any holder or holders of such securities
from the date of a request for a Demand Registration pursuant to Section 2.1
until the earlier of (x) 90 days following the date as of which all securities
covered by such Demand Registration Statement shall have been Transferred, and
(y) one hundred eighty (180) days following the effective date of such Demand
Registration statement, unless the Company shall have previously notified in
writing all Selling Holders of the Company's desire to do so, and Selling
Holders owning a majority of the Registrable Securities or the Underwriters'
Representative, if any, shall have consented thereto in writing.
(ii) Any agreement entered into after the date of this
Agreement pursuant to which the Company or any of its majority owned
subsidiaries issues or agrees to issue any privately placed securities similar
to any issue of the Registrable Securities (other than (x) shares of Common
Stock pursuant to a stock incentive, stock option, stock bonus, stock purchase
or other employee benefit plan of the Company approved by its Board of
Directors, and (y) securities issued to Persons in exchange for ownership
interests in any Person in connection with a business combination in which the
Company or any of its majority owned subsidiaries is a party) shall contain a
provision whereby holders of such securities agree not to effect any public sale
or distribution of any such securities during the periods described in the first
sentence of Section 10.2(i), in each case including a sale pursuant to Rule 144
under the Securities Act (unless such Person is prevented by applicable statute
or regulation from entering into such an agreement).
10.3. The Company shall not, directly or indirectly, (x) enter
into any merger, consolidation or reorganization in which the Company shall not
be the surviving corporation or (y) Transfer or agree to Transfer all or
substantially all the Company's assets, unless prior to such merger,
consolidation, reorganization or asset Transfer, the surviving corporation or
the Transferee, respectively, shall have agreed in writing to assume the
obligations of the Company under this Agreement, and for that purpose references
hereunder to
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21
"Registrable Securities" shall be deemed to include the securities which the
Holders of Registrable Securities would be entitled to receive in exchange for
Registrable Securities pursuant to any such merger, consolidation or
reorganization.
Section 11. Amendment, Modification and Waivers; Further
Assurances.
(i) This Agreement may be amended with the consent of
the Company and the Company may take any action herein prohibited, or omit to
perform any act herein required to be performed by it, only if the Company shall
have obtained the written consent of Holders owning Registrable Securities
possessing a majority in number of the Registrable Securities then outstanding
to such amendment, action or omission to act.
(ii) No waiver of any terms or conditions of this
Agreement shall operate as a waiver of any other breach of such terms and
conditions or any other term or condition, nor shall any failure to enforce any
provision hereof operate as a waiver of such provision or of any other provision
hereof. No written waiver hereunder, unless it by its own terms explicitly
provides to the contrary, shall be construed to effect a continuing waiver of
the provisions being waived and no such waiver in any instance shall constitute
a waiver in any other instance or for any other purpose or impair the right of
the party against whom such waiver is claimed in all other instances or for all
other purposes to require full compliance with such provision.
(iii) Each of the parties hereto shall execute all such
further instruments and documents and take all such further action as any other
party hereto may reasonably require in order to effectuate the terms and
purposes of this Agreement.
Section 12. Assignment; Benefit. This Agreement and all of the
provisions hereof shall be binding upon and shall inure to the benefit of the
parties hereto and their respective heirs, assigns, successors, transferees,
heirs, executors, administrators or personal representatives; provided, however,
that except as specifically provided herein with respect to certain matters,
neither this Agreement nor any of the rights, interests or obligations hereunder
shall be assigned or delegated by the Company without the prior written consent
of Holders owning Registrable Securities possessing a majority in number of the
Registrable Securities outstanding on the date as of which such delegation or
assignment is to become effective. A Holder may Transfer its rights hereunder to
a successor in interest to the Registrable Securities owned by such assignor
only as permitted by Section 8.
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Section 13. Miscellaneous.
13.1. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, REGARDLESS
OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICT
OF LAWS.
13.2. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed given if delivered personally,
sent by overnight courier (with delivery confirmed) or telecopied (with a
confirmatory copy sent by overnight courier) to the parties at the following
addresses (or at such other address for a party as shall be specified by like
notice):
(a) if to Parent or Sub, to:
VoiceStream Wireless Holding Corporation
0000 000xx Xxxxxx XX, Xxxxx 000
Xxxxxxxx, XX 00000
Attn: General Counsel
Telecopy No.: 000-000-0000
with a copy to:
Xxxxxxx Xxxxx & Xxxxx XXX
0000 Xxxxxxxx Center
000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxx, Esq.
Telecopy No.: 206-623-7022
(b) if to the original Holder, to:
Sonera Ltd.
Xxxxxxxxxxxxxx 00
X.X. Xxx 000, XXX-00000
Xxxxxxxx, Xxxxxxx
Attn: Xxxxx Xxxxxxxx, General Counsel
Telecopy No.: 011-358-2040-3414
With a copy (which shall not constitute notice)to:
Xxxxxx Xxxxx LLP
0000 X Xx., X.X.
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxxxx X. Xxxxxxxx
Telecopy No.: 000-000-0000
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23
In the event of a Transfer of any Registrable Securities,
notices given pursuant to this Agreement to a subsequent Holder shall be
delivered to the relevant address specified in the relevant agreement in the
form of Exhibit A whereby such Holder became bound by the provisions of this
Agreement.
Except as otherwise provided in this Agreement, the date of
each such notice and request shall be deemed to be, and the date on which each
such notice and request shall be deemed given shall be: at the time delivered,
if personally delivered or mailed; when receipt is acknowledged, if sent by
telecopy; and the next business day after timely delivery to the courier, if
sent by overnight air courier guaranteeing next business day delivery.
13.3. Entire Agreement; Integration. This Agreement supersedes
all prior agreements between or among any of the parties hereto with respect to
the subject matter contained herein and therein, and such agreements embody the
entire understanding among the parties relating to such subject matter.
13.4. Injunctive Relief. Each of the parties hereto
acknowledges that in the event of a breach by any of them of any material
provision of this Agreement, the aggrieved party may be without an adequate
remedy at law. Each of the parties therefore agrees that in the event of such a
breach hereof the aggrieved party may elect to institute and prosecute
proceedings in any court of competent jurisdiction to enforce specific
performance or to enjoin the continuing breach hereof. By seeking or obtaining
any such relief, the aggrieved party shall not be precluded from seeking or
obtaining any other relief to which it may be entitled.
13.5. Section Headings. Section headings are for convenience
of reference only and shall not affect the meaning of any provision of this
Agreement.
13.6. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original, and all of which
shall together constitute one and the same instrument. All signatures need not
be on the same counterpart.
13.7. Severability. If any provision of this Agreement shall
be invalid or unenforceable, such invalidity or unenforceability shall not
affect the validity and enforceability of the remaining provisions of this
Agreement, unless the result thereof would be unreasonable, in which case the
parties hereto shall negotiate in good faith as to appropriate amendments
hereto.
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13.8. Filing. A copy of this Agreement and of all amendments
thereto shall be filed at the principal executive office of the Company with the
corporate recorder of the Company.
13.9. Termination. This Agreement may be terminated at any
time by a written instrument signed by the parties hereto. Unless sooner
terminated in accordance with the preceding sentence, this Agreement (other than
Section 7 hereof) shall terminate in its entirety on such date as there shall be
no Registrable Securities outstanding, provided that any shares of Common Stock
previously subject to this Agreement shall not be Registrable Securities
following the sale of any such shares in an offering registered pursuant to this
Agreement; and provided further, that a Holder shall cease to be a Holder under
this Agreement for all purposes if such Holder (i) is provided with an opinion
of counsel of the Company which is reasonably satisfactory to Holder to the
effect that such Holder may sell all of the Registrable Securities without
registration under the Securities Act and (ii) enters into an agreement with the
Company pursuant to which the Company agrees remove all legends and "stop
transfers" relating to such Registrable Securities.
13.10. Attorneys' Fees. In any action or proceeding brought to
enforce any provision of this Agreement, or where any provision hereof is
validly asserted as a defense, the successful party shall be entitled to recover
reasonable attorneys' fees (including any fees incurred in any appeal) in
addition to its costs and expenses and any other available remedy.
13.11. No Third Party Beneficiaries. Nothing herein expressed
or implied is intended to confer upon any person, other than the parties hereto
or their respective permitted assigns, successors, heirs and legal
representatives, any rights, remedies, obligations or liabilities under or by
reason of this Agreement.
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IN WITNESS WHEREOF, this Agreement has been duly executed by
the parties hereto as of the date first written above.
VOICESTREAM WIRELESS HOLDING CORPORATION
By:
------------------------------------
Name:
Title:
SONERA CORPORATION
By:
------------------------------------
Name:
Title:
SONERA HOLDING B.V.
By:
------------------------------------
Name:
Title:
SIGNATURE PAGE TO
REGISTRATION RIGHTS AGREEMENT
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26
EXHIBIT A
to Registration
Rights Agreement
AGREEMENT TO BE BOUND
BY THE REGISTRATION RIGHTS AGREEMENT
The undersigned, being the transferee of ______ shares of the common
stock, no par value (the "Registrable Securities"), of __________________, a
_______ corporation (the "Company"), as a condition to the receipt of such
Registrable Securities, acknowledges that matters pertaining to the registration
of such Registrable Securities is governed by the Registration Rights Agreement
dated as of __________, 19__ initially among the Company and the Holders
referred to therein (the "Agreement"), and the undersigned hereby (1)
acknowledges receipt of a copy of the Agreement, and (2) agrees to be bound as a
Holder by the terms of the Agreement, as the same has been or may be amended
from time to time.
Agreed to this __ day of ______________, ____________.
_________________________________
_________________________________*
_________________________________*
*Include address for notices.
A-1
