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EXHIBIT 10.1
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REGISTRATION RIGHTS AGREEMENT
Dated as of July 10, 1997
between
AMERICAN COMMUNICATIONS SERVICES, INC.
as Issuer
and
BT SECURITIES CORPORATION,
ALEX. XXXXX & SONS INCORPORATED
and the Other Parties Signatory hereto
14.75% Redeemable Preferred Stock due 2008
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TABLE OF CONTENTS
Page
1. Definitions...................................................... 1
2. Shelf Notice..................................................... 4
3. Shelf Registration............................................... 4
4. Additional Dividends............................................. 6
5. Registration Procedures.......................................... 6
6. Registration Expenses............................................ 14
7. Indemnification.................................................. 14
8. Rules 144 and 144A............................................... 18
9. Miscellaneous.................................................... 19
(a) No Inconsistent Agreements............................. 19
(b) Adjustments Affecting Registrable Preferred Stock...... 19
(c) Amendments and Waivers................................. 19
(d) Notices................................................ 19
(e) Successors and Assigns................................. 21
(f) Counterparts........................................... 21
(g) Headings............................................... 22
(h) Governing Law.......................................... 22
(i) Severability........................................... 22
(j) Securities Held by the Company......................... 22
(k) Third Party Beneficiaries.............................. 22
(l) Entire Agreement....................................... 22
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is dated
as of July 10, 1997, among American Communications Services, Inc., a Delaware
corporation (the "Company"), BT Securities Corporation and Alex. Xxxxx & Sons
Incorporated (together, the "Initial Purchasers")and the other parties signatory
hereto (the "Other Purchasers" and with the Initial Purchasers the
"Purchasers").
This Agreement is entered into in connection with each of the
respective Purchase Agreements, dated July 3, 1997, between and among the
Company and the Initial Purchasers and between and among the Company and the
Other Purchasers (collectively, the "Purchase Agreements"), which provide for
the issuance and sale by the Company to the Purchasers of, among other things,
29,000 shares and 46,000 shares, respectively, of the Company's 14.75%
Redeemable Preferred Stock due 2008 (including any additional shares of
Preferred Stock issuable in lieu of cash dividends thereon, the "Preferred
Stock"). In order to induce the Purchasers to enter into the Purchase
Agreements, the Company has agreed to provide the registration rights set forth
in this Agreement for the benefit of the Purchasers and their direct and
indirect transferees and assigns. The execution and delivery of this Agreement
is a condition to the Purchasers' obligation to purchase the Preferred Stock
under the Purchase Agreements.
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms shall have the
following meanings:
Additional Dividends: See Section 4 hereof.
Advice: See Section 5 hereof.
Agreement: See the introductory paragraphs hereto.
Certificate of Designation: The Certificate of Designation
governing the Preferred Stock, as filed with the Secretary of State of the State
of Delaware, as amended from time to time.
Certificated Shares: See Section 10 hereof.
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Closing Date: The Closing Date as defined in the Purchase
Agreement.
Company: See the introductory paragraphs hereto.
Effectiveness Date: The 225th day after the Issue Date.
Effectiveness Period: See Section 3 hereof.
Event Date: See Section 4 hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
Filing Date: Within 150 days after the Issue Date.
Holder: Any holder of Registrable Preferred Stock.
Indemnified Person: See Section 7(c) hereof.
Indemnifying Person: See Section 7(c) hereof.
Initial Purchasers: See the introductory paragraphs hereto.
Initial Shelf Registration: See Section 3(a) hereof.
Inspectors: See Section 5(o) hereof.
Issue Date: The date on which the original Preferred Stock was
issued and sold to the Purchasers pursuant to the Purchase Agreement.
NASD: See Section 5(r) hereof.
Other Purchasers: See the introductory paragraphs hereto.
Participant: See Section 7(a) hereof.
Person: An individual, partnership, corporation, limited
liability company, unincorporated association, trust or joint venture, or a
governmental agency or political subdivision thereof.
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Preferred Stock: See the introductory paragraphs hereto.
Prospectus: The prospectus included in any Registration
Statement (including, without limitation, any prospectus subject to completion
and a prospectus that includes any information previously omitted from a
prospectus filed as part of an effective registration statement in reliance upon
Rule 430A promulgated under the Securities Act), as amended or supplemented by
any prospectus supplement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
Purchase Agreement: See the introductory paragraphs hereto.
Purchasers: See the introductory paragraphs hereto.
Records: See Section 5(o) hereof.
Registrable Preferred Stock: Each share of Preferred Stock
(including any additional shares of Preferred Stock issued in lieu of cash
dividends thereon) upon original issuance thereof and at all times subsequent
thereto, until in the case of any such shares of Preferred Stock, the earliest
to occur of (i) in the case of any share, the date on which such share has been
effectively registered under the Securities Act and disposed of in accordance
with the Shelf Registration Statement, (ii) the date on which such Preferred
Stock is distributed to the public pursuant to Rule 144 under the Securities Act
or is saleable pursuant to Rule 144(k) under the Securities Act and (iii) the
date on which no Preferred Stock is outstanding.
Registration Statement: Any registration statement of the
Company filed with the SEC pursuant to the provisions of this Agreement,
including the Prospectus, amendments and supplements to such registration
statement, including post-effective amendments, all exhibits, and all material
incorporated by reference or deemed to be incorporated by reference in such
registration statement.
Rule 144: Rule 144 promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule (other than Rule
144A) or regulation hereafter adopted by the SEC providing for offers and sales
of securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such
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securities being free of the registration and prospectus delivery requirements
of the Securities Act.
Rule 144A: Rule 144A promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule (other than Rule
144) or regulation hereafter adopted by the SEC.
Rule 415: Rule 415 promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, and
the rules and regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2 hereof.
Shelf Registration: See Section 3(b) hereof.
Subsequent Shelf Registration: See Section 3(b) hereof.
Transfer Agent: The Transfer Agent for the Preferred Stock,
the Exchange Preferred Stock and/or the Private Exchange Preferred Stock, as the
context may require.
Underwritten registration or underwritten offering: A
registration in which securities of the Company are sold to an underwriter for
reoffering to the public.
2. Shelf Notice
At any time within 120 days of the Issue Date, the Company
shall deliver to the Holders written notice (the "Shelf Notice") that the
Company shall file a Shelf Registration pursuant to Section 3 hereof.
3. Shelf Registration
After a Shelf Notice is delivered as required by Section 2
hereof, then:
(a) Shelf Registration. The Company shall as promptly as
reasonably practicable file with the SEC a Registration Statement for an
offering to be made on a continuous
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basis pursuant to Rule 415 covering all of the Registrable Preferred Stock (the
"Initial Shelf Registration"). The Company shall use its commercially reasonable
efforts to file with the SEC the Initial Shelf Registration on or prior to the
Filing Date. The Initial Shelf Registration shall be on an appropriate form
permitting registration of such Registrable Preferred Stock for resale by
Holders.
The Company shall use its commercially reasonable efforts to
cause the Initial Shelf Registration to be declared effective under the
Securities Act on or prior to the Effectiveness Date and to keep the Initial
Shelf Registration continuously effective under the Securities Act until the
date that is 36 months from the Issue Date (the "Effectiveness Period"), or such
shorter period ending when (i) all Registrable Preferred Stock covered by the
Initial Shelf Registration has been sold in the manner set forth and as
contemplated in the Initial Shelf Registration or (ii) a Subsequent Shelf
Registration covering all of the Registrable Preferred Stock has been declared
effective under the Securities Act or (iii) there is no longer any Registrable
Preferred Stock outstanding.
(b) Subsequent Shelf Registrations. If the Initial Shelf
Registration or any Subsequent Shelf Registration ceases to be effective for any
reason at any time during the Effectiveness Period (other than because of the
sale of all of the securities registered thereunder or there is no longer any
Registrable Preferred Stock outstanding), the Company shall use its commercially
reasonable efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof, and in any event shall within 90 days of such cessation
of effectiveness amend the Initial Shelf Registration in a manner to obtain the
withdrawal of the order suspending the effectiveness thereof, or file an
additional "shelf" Registration Statement pursuant to Rule 415 covering all of
the Registrable Preferred Stock (a "Subsequent Shelf Registration"). If a
Subsequent Shelf Registration is filed, the Company shall use its commercially
reasonable efforts to cause the Subsequent Shelf Registration to be declared
effective under the Securities Act as soon as practicable after such filing and
to keep such Registration Statement continuously effective until the end of the
Effectiveness Period. As used herein the term "Shelf Registration" means the
Initial Shelf Registration and any Subsequent Shelf Registration.
(c) Supplements and Amendments. The Company shall use
commercially reasonable efforts to supplement and amend the Shelf Registration
if required by the rules, regulations or in-
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structions applicable to the registration form used for such Shelf Registration,
if required by the Securities Act, or if reasonably requested by the Holders of
a majority of shares of the Registrable Preferred Stock covered by such
Registration Statement or if reasonably requested by an underwriter, if any, of
such Registrable Preferred Stock.
(d) Suspension of Shelf Registration. The Company's obligation
to keep the Shelf Registration effective and usable for offers and sales of the
Preferred Stock may be suspended by the Company in good faith for valid business
reasons, including, without limitation, a pending acquisition or divestiture of
assets. Any such period during which the Company fails to keep the Shelf
Registration effective and usable for offers and sales of Preferred Stock is
referred to as a "Suspension Period." A Suspension Period shall commence on and
include the date that the Company gives notice that the Shelf Registration is no
longer effective or the prospectus included therein is no longer usable for
offers and sales of Preferred Stock and shall end on the date when each Holder
of Preferred Stock covered by such registration statement either receives the
copies of the supplemented or amended prospectus contemplated by Section 3(c)
hereof or is advised in writing by the Company that use of the prospectus may be
resumed. During the pendency of any Suspension Period, the Company may not issue
any securities, whether or not in a public offering, except for issuances of
Common Stock pursuant to an acquisition or other business combination
transaction or upon exercise of options or warrants outstanding prior to such
Suspension Period.
4. Additional Dividends
The Company and the Purchasers agree that the Holders of
Preferred Stock will suffer damages if the Company fails to fulfill its
obligations under Section 3 hereof and that it would not be feasible to
ascertain the extent of such damages with precision. Accordingly, the Company
agrees to pay, as liquidated damages, additional dividends on the Preferred
Stock (in either case, "Additional Dividends") under the circumstances and to
the extent set forth in the Certificate of Designation.
5. Registration Procedures
In connection with the filing of any Registration Statement
pursuant to Section 3 hereof, the Company shall effect such registrations to
permit the sale of the securities covered thereby in accordance with the
intended method or meth-
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ods of disposition thereof, and pursuant thereto and in connection with any
Registration Statement filed by the Company hereunder the Company shall:
(a) Prepare and file with the SEC prior to the Filing Date, a
Registration Statement as prescribed by Section 3 hereof, and use its
commercially reasonable efforts to cause such Registration Statement to become
effective and remain effective as provided herein; provided, however, that,
before filing any Registration Statement or Prospectus or any amendments or
supplements thereto, the Company shall furnish to and afford the Holders of the
Registrable Preferred Stock covered by such Registration Statement, their
counsel and the managing underwriters, if any, a reasonable opportunity to
review copies of all such documents (including, if requested in writing, copies
of any documents to be incorporated by reference therein and all exhibits
thereto) proposed to be filed (in each case at least five business days prior to
such filing). The Company shall not file any Registration Statement or
Prospectus or any amendments or supplements thereto if the Holders of a majority
of shares of Registrable Preferred Stock covered by such Registration Statement,
their counsel, or the managing underwriters, if any, shall reasonably object
within two business days after the receipt thereof. Notwithstanding anything to
the contrary contained in this Agreement, the Company shall not be required to
engage in more than one underwritten offering, if any, pursuant to this
Agreement.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Shelf Registration, as may be necessary to
keep such Registration Statement continuously effective for the Effectiveness
Period; cause the related Prospectus to be supplemented by any Prospectus
supplement required by applicable law, and as so supplemented to be filed
pursuant to Rule 424 (or any similar provisions then in force) promulgated under
the Securities Act; and comply with the provisions of the Securities Act and the
Exchange Act applicable to it with respect to the disposition of all securities
covered by such Registration Statement as so amended or in such Prospectus as so
supplemented.
(c) Notify the selling Holders of Registrable Preferred Stock,
their counsel and the managing underwriters, if any, reasonably promptly (but in
any event within five business days), and confirm such notice in writing, (i)
when a Prospectus or any Prospectus supplement or post-effective amendment has
been filed, and, with respect to a Registration Statement or any post-effective
amendment, when the same has become ef-
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fective under the Securities Act, (ii) of the issuance by the SEC of any stop
order suspending the effectiveness of a Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus or the initiation
of any proceedings for that purpose, (iii) if at any time when a prospectus is
required by the Securities Act to be delivered in connection with sales of the
Registrable Preferred Stock the representations and warranties of the Company
contained in any agreement (including an underwriting agreement, if any),
contemplated by Section 5(m) hereof cease to be true and correct, (iv) of the
receipt by the Company of any notification with respect to the suspension of the
qualification or exemption from qualification of a Registration Statement or any
of the Registrable Preferred Stock for offer or sale in any jurisdiction, or the
initiation or threatening of any proceeding for such purpose, (v) of the
happening of any event, the existence of any condition or any information
becoming known that makes any statement made in such Registration Statement or
related Prospectus or any document incorporated or deemed to be incorporated
therein by reference untrue in any material respect or that requires the making
of any changes in or amendments or supplements to such Registration Statement,
Prospectus or documents so that, in the case of the Registration Statement, it
will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, and that in the case of the Prospectus, it will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading and
(vi) of the Company's determination that a post-effective amendment to a
Registration Statement would be appropriate.
(d) Use its commercially reasonable efforts to prevent the
issuance of any order suspending the effectiveness of a Registration Statement
or of any order preventing or suspending the use of a Prospectus or suspending
the qualification (or exemption from qualification) of any of the Registrable
Preferred Stock for sale in any jurisdiction, and, if any such order is issued,
to use its commercially reasonable best efforts to obtain the withdrawal of any
such order at the earliest possible moment.
(e) If requested by the managing underwriter or underwriters
(if any), or the Holders of a majority of shares of Registrable Preferred Stock
being sold in connection with an underwritten offering, if any, (i) promptly
incorporate in a
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prospectus supplement or post-effective amendment such information as the
managing underwriter or underwriters (if any), such Holders, or its counsel
determine is reasonably necessary to be included therein and (ii) make all
required filings of such prospectus supplement or such post-effective amendment
as soon as practicable after the Company has received notification of the
matters to be incorporated in such prospectus supplement or post-effective
amendment.
(f) Furnish to each selling Holder of Registrable Preferred
Stock who so requests in writing and to counsel and each managing underwriter,
if any, at the sole expense of the Company, one conformed copy of the
Registration Statement or Registration Statements and each post-effective
amendment thereto, including financial statements and schedules, and, if
requested in writing, all documents incorporated or deemed to be incorporated
therein by reference and all exhibits.
(g) Deliver to each selling Holder of Registrable Preferred
Stock, its respective counsel, and the underwriters, if any, at the sole expense
of the Company, as many copies of the Prospectus (including each form of
preliminary prospectus) and each amendment or supplement thereto and any
documents incorporated by reference therein as such Persons may reasonably
request in writing; and, subject to the last paragraph of this Section 5, the
Company hereby consents to the use of such Prospectus and each amendment or
supplement thereto by each of the selling Holders of Registrable Preferred Stock
and the underwriters or agents, if any, and dealers (if any), in connection with
the offering and sale of the Registrable Preferred Stock covered by, such
Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Preferred
Stock, to use its commercially reasonable efforts to register or qualify, and to
cooperate with the selling Holders of Registrable Preferred Stock, the managing
underwriter or underwriters, if any, and their respective counsel in connection
with the registration or qualification (or exemption from such registration or
qualification) of such Registrable Preferred Stock for offer and sale under the
securities or Blue Sky laws of such jurisdictions within the United States as
any selling Holder, or the managing underwriter or reasonably request; provided,
however, that where Registrable Preferred Stock offered other than through an
underwritten offering, the Company agrees to cause the Company's counsel to
perform Blue Sky investigations, if necessary, and file registrations and
qualifications required to be filed pursuant to this Section 5(h); keep each
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such registration or qualification (or exemption therefrom) effective during the
period such Registration Statement is required to be kept effective and do any
and all other acts or things reasonably necessary or advisable to enable the
disposition in such jurisdictions of the Registrable Preferred Stock covered by
the Registration Statement; provided, however, that the Company shall not be
required to qualify as a foreign corporation or to execute a general consent to
service of process in any jurisdiction or be subject to taxation in any
jurisdiction in which it is not so subject.
(i) Cooperate with the selling Holders of Registrable
Preferred Stock and the managing underwriter or underwriters, if any, to
facilitate the timely preparation and delivery of certificates representing
Registrable Preferred Stock to be sold, which certificates shall not bear any
restrictive legends and shall be in a form eligible for deposit with The
Depository Trust Company; and enable such Registrable Preferred Stock to be in
such denominations and registered in such names as the managing underwriter or
underwriters, if any, or Holders may reasonably request.
(j) Use its commercially reasonable efforts to cause the
Registrable Preferred Stock covered by the Registration Statement to be
registered with or approved by such other governmental agencies or authorities
as may be necessary to enable the seller or sellers thereof or the underwriter
or underwriters, if any, to consummate the disposition of such Registrable
Preferred Stock except as may be required solely as a consequence of the nature
of such selling Holder's business, in which case the Company will cooperate in
all reasonable respects with the filing of such Registration Statement and the
granting of such approvals.
(k) Upon the occurrence of any event contemplated by paragraph
5(c)(v) or 5(c)(vi) hereof, as promptly as practicable prepare and (subject to
Sections 3(d) and 5(a) hereof) file with the SEC, at the sole expense of the
Company, a supplement or post-effective amendment to the Registration Statement
or a supplement to the related Prospectus or any document incorporated or deemed
to be incorporated therein by reference, or file any other required document so
that, as thereafter delivered to the purchasers of the Registrable Preferred
Stock being sold thereunder, any such Prospectus will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
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(l) Prior to the effective date of the first Registration
Statement relating to the Registrable Preferred Stock, (i) provide the Transfer
Agent with certificates for the Registrable Preferred Stock in a form eligible
for deposit with The Depository Trust Company and (ii) provide a CUSIP number
for the Registrable Preferred Stock.
(m) In connection with an underwritten offering, if any, of
Registrable Preferred Stock pursuant to a Shelf Registration, enter into an
underwriting agreement as is customary in underwritten offerings of securities
similar to the Preferred Stock and take all such other actions as are reasonably
requested by the managing underwriter or underwriters in order to expedite or
facilitate the registration or the disposition of such Registrable Preferred
Stock and, in such connection, (i) make such representations and warranties to,
and covenants with, the underwriters with respect to the business of the Company
and its subsidiaries (including any acquired business, properties or entity, if
applicable) and the Registration Statement, Prospectus and documents, if any,
incorporated or deemed to be incorporated by reference therein, in each case, as
are customarily made by issuers to underwriters in underwritten offerings of
securities similar to the Preferred Stock, and confirm the same in writing if
and when requested; (ii) obtain the written opinion of counsel to the Company
and written updates thereof in form, scope and substance reasonably satisfactory
to the managing underwriter or underwriters, addressed to the underwriters
covering the matters customarily covered in opinions requested in underwritten
offerings of securities similar to the Preferred Stock and such other matters as
may be reasonably requested by the managing underwriter or underwriters; (iii)
if entitled, obtain "cold comfort" letters and updates thereof in form, scope
and substance reasonably satisfactory to the managing underwriter or
underwriters from the independent certified public accountants of the Company
(and, if necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company for which
financial statements and financial data are, or are required to be, included or
incorporated by reference in the Registration Statement), addressed to each of
the underwriters, such letters to be in customary form and covering matters of
the type customarily covered in "cold comfort" letters in connection with
underwritten offerings of securities similar to the Preferred Stock and such
other matters as reasonably requested by the managing underwriter or
underwriters; and (iv) if an underwriting agreement is entered into, the same
shall contain indemnification provisions and procedures in customary form and
covering matters customarily
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covered in connection with underwritten offerings of securities similar to the
Preferred Stock (or such other provisions and procedures acceptable to Holders
of a majority of shares of Registrable Preferred Stock covered by such
Registration Statement and the managing underwriter or underwriters or agents)
with respect to all parties to be indemnified pursuant to said Section. The
above shall be done at each closing under such underwriting agreement, or as and
to the extent required thereunder.
(n) Make available for inspection by any selling Holder of
such Registrable Preferred Stock being sold, an underwriter, if any,
participating in any such disposition of Registrable Preferred Stock, and any
attorney, accountant or other agent retained by any such selling Holder or
underwriter (collectively, the "Inspectors"), at the offices where normally
kept, during reasonable business hours, all financial and other records,
pertinent corporate documents and instruments of the Company and its
subsidiaries (collectively, the "Records") as shall be reasonably necessary to
enable them to exercise any applicable due diligence responsibilities, and cause
the officers, directors and employees of the Company and its subsidiaries to
supply all information reasonably requested by any such Inspector in connection
with such Registration Statement. Records that the Company determines, in good
faith, to be confidential and any Records that it notifies the Inspectors are
confidential shall not be disclosed by the Inspectors unless upon five business
days' prior written notice and (i) the disclosure of such Records is necessary
to avoid or correct a misstatement or omission in such Registration Statement,
(ii) the release of such Records is ordered pursuant to a subpoena or other
order from a court of competent jurisdiction, (iii) disclosure of such
information is, in the reasonable opinion of counsel for any Inspector,
necessary or advisable in connection with any action, claim, suit or proceeding,
directly or indirectly, involving or potentially involving such Inspector and
arising out of, based upon, relating to, or involving this Agreement or any
transactions contemplated hereby or arising hereunder or (iv) the information in
such Records has been made generally available to the public (other than as a
result of an impermissible disclosure or failure to safeguard by the
Inspectors). Each selling holder of such Registrable Preferred Stock will be
required to agree that information obtained by it as a result of such
inspections shall be deemed confidential and shall not be used by it as the
basis for any market transactions in the securities of the Company unless and
until such information is generally available to the public (other than as a
result of an impermissible disclosure or failure to safeguard
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by such person). Each selling Holder of such Registrable Preferred Stock will be
required to further agree that it will, upon learning that disclosure of such
Records is sought in a court of competent jurisdiction, give notice to the
Company and allow the Company to undertake appropriate action to prevent
disclosure of the Records deemed confidential at the Company's sole expense.
(o) Comply with all applicable rules and regulations of the
SEC and make generally available to its securityholders earning statements
satisfying the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder (or any similar rule promulgated under the Securities Act) no later
than 45 days after the end of any 12-month period (or 90 days after the end of
any 12-month period if such period is a fiscal year) commencing on the first day
of the first fiscal quarter of the Company after the effective date of a
Registration Statement, which statements shall cover said 12-month periods.
(p) Cooperate with each seller of Registrable Preferred Stock
covered by any Registration Statement and each underwriter, if any,
participating in the disposition of such Registrable Preferred Stock and their
respective counsel in connection with the filings, if any, required to be made
with the National Association of Securities Dealers, Inc. (the "NASD").
(q) Use its commercially reasonable efforts to take all other
steps necessary or advisable to effect the registration of the Registrable
Preferred Stock covered by a Registration Statement contemplated hereby.
The Company may require each seller of Registrable Preferred
Stock as to which any registration is being effected to furnish to the Company
such information regarding such seller and the distribution of such Registrable
Preferred Stock as the Company may, from time to time, reasonably request. The
Company may exclude from such registration the Registrable Preferred Stock of
any seller who fails to furnish such information within a reasonable time (but
in no event later than 20 business days) after receiving such request. Each
seller as to which any Shelf Registration is being effected agrees to furnish
promptly to the Company all information required to be disclosed in order to
make the information previously furnished to the Company by such seller not
materially misleading.
Each Holder of Registrable Preferred Stock agrees by
acquisition of such Registrable Preferred Stock, that, upon ac-
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tual receipt of any notice from the Company of the happening of any event of the
kind described in Section 5(c)(ii), 5(c)(iv), 5(c)(v), or 5(c)(vi) hereof, such
Holder will forthwith discontinue disposition of such Registrable Preferred
Stock covered by such Registration Statement or Prospectus to be sold by such
Holder until such Holder's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 5(k) hereof, or until it is advised in
writing (the "Advice") by the Company that the use of the applicable Prospectus
may be resumed, and has received copies of any amendments or supplements
thereto.
6. Registration Expenses
(a) All fees and expenses incident to the performance of or
compliance with this Agreement by the Company shall be borne by the Company
whether or not a Shelf Registration is filed or becomes effective.
Notwithstanding the foregoing, the Holders of any shares of Preferred Stock
being registered shall pay all underwriting discounts, commissions and placement
agent fees attributable to the sale of such securities.
(b) The Company shall reimburse the Holders of the Registrable
Preferred Stock being registered in a Shelf Registration for the reasonable fees
and disbursements of not more than two counsel (in addition to appropriate local
counsel) chosen by the Holders of Registrable Preferred Stock to be included in
such Registration Statement, all such reasonable fees and expenses not to exceed
$30,000 in the aggregate (provided such fees do not exceed $10,000 per counsel
in the event Holders choose three counsel, and $15,000 per counsel in the event
Holders choose two counsel).
7. Indemnification
(a) The Company agrees to indemnify and hold harmless each
Holder of shares of Registrable Preferred Stock, the officers and directors of
each such Person, and each Person, if any, who controls any such Person within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act (each, a "Participant"), from and against any and all losses,
claims, damages and liabilities (including, without limitation, the reasonable
legal fees and other expenses actually incurred in connection with any suit,
action or proceeding or any claim asserted) caused by, arising out of or based
upon any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement (or any amendment thereto) or Prospectus
(as amended or supplemented if the Com-
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pany shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, or caused by, arising out of or based upon any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with information relating to any Participant furnished to the Company
in writing by such Participant expressly for use therein; provided, however,
that the Company will not be required to indemnify a Participant if such untrue
statement or omission or alleged untrue statement or omission was contained or
made in any preliminary prospectus and corrected in the Prospectus or any
amendment or supplement thereto and it is established in the related proceeding
that such Participant failed to deliver or provide a copy of the Prospectus (as
amended or supplemented) to such Person with or prior to the confirmation of the
sale of such Registrable Preferred Stock sold to such Person if required by
applicable law, unless such failure to deliver or provide a copy of the
Prospectus (as amended or supplemented) shall have been determined by a court of
competent jurisdiction by final and non-appealable judgment (or stipulated in a
settlement agreement reached by all parties involved in any action or proceeding
related to such claim) to have been the result of noncompliance by the Company
with Section 5 of this Agreement.
(b) Each Participant agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors and officers who sign the
Registration Statement and each Person who controls the Company within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Company to each Participant,
but only (i) with reference to information relating to such Participant
furnished to the Company in writing by such Participant expressly for use in any
Registration Statement or Prospectus, any amendment or supplement thereto, or
any preliminary prospectus or (ii) with respect to any untrue statement or
representation made by such Participant in writing to the Company. The liability
of any Participant under this paragraph shall in no event exceed the proceeds
received by such Participant from sales of Registrable Preferred Stock or
Exchange Preferred Stock giving rise to such obligations.
(c) If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand
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shall be brought or asserted against any Person in respect of which indemnity
may be sought pursuant to either of the two preceding paragraphs, such Person
(the "Indemnified Person") shall promptly notify the Person against whom such
indemnity may be sought (the "Indemnifying Person") in writing, and the
Indemnifying Person, upon request of the Indemnified Person, shall retain
counsel reasonably satisfactory to the Indemnified Person to represent the
Indemnified Person and any others the Indemnifying Person may reasonably
designate in such proceeding and shall pay the reasonable fees and expenses
actually incurred by such counsel related to such proceeding; provided, however,
that the failure to so notify the Indemnifying Person shall not relieve it of
any obligation or liability which it may have hereunder or otherwise (unless and
to the extent such Indemnifying Person has been materially prejudiced by such
failure, including, without limitation, that such failure results in the
forfeiture by the Indemnifying Person of substantial rights and defenses). In
any such proceeding, any Indemnified Person shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such Indemnified Person unless (i) the Indemnifying Person and the
Indemnified Person shall have mutually agreed in writing to the contrary, (ii)
the Indemnifying Person has failed to retain counsel reasonably satisfactory to
the Indemnified Person or (iii) the named parties in any such proceeding
(including any impleaded parties) include both the Indemnifying Person and the
Indemnified Person and the Indemnified Person shall have been advised by counsel
that representation of both parties by the same counsel would be inappropriate
under applicable standards of professional conduct due to differing interests
between them. It is understood that, unless there exists a conflict among
Indemnified Persons, the Indemnifying Person shall not, in connection with any
one such proceeding or separate but substantially similar related proceeding in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one separate
firm (in addition to any local counsel) for all Indemnified Persons, and that
all such fees and expenses shall be reimbursed promptly as they are incurred.
Any such separate firm for the Participants and such control Persons of
Participants shall be designated in writing by Participants who sold a majority
of shares of Registrable Preferred Stock sold by all such Participants and any
such separate firm for the Company, its directors, its officers and such control
Persons of the Company shall be designated in writing by the Company. The
Indemnifying Person shall not be liable for any settlement of any proceeding
effected without its prior written consent (which consent shall not be
unreasonably withheld or delayed), but if
19
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settled with such consent or if there be a final non-appealable judgment for the
plaintiff for which the Indemnified Person is entitled to indemnification
pursuant to this Agreement, the Indemnifying Person agrees to indemnify and hold
harmless each Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. No Indemnifying Person shall, without the
prior written consent of the Indemnified Person, effect any settlement or
compromise of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party, or indemnity could have been
sought hereunder by such Indemnified Person, unless such settlement (A) includes
an unconditional written release of such Indemnified Person, in form and
substance reasonably satisfactory to such Indemnified Person, from all liability
on claims that are the subject matter of such proceeding and (B) does not
include any statement as to an admission of fault, culpability or failure to act
by or on behalf of any Indemnified Person.
(d) If the indemnification provided for in the first and
second paragraphs of this Section 7 is for any reason unavailable to, or
insufficient to hold harmless, an Indemnified Person in respect of any losses,
claims, damages or liabilities referred to therein, then each Indemnifying
Person under such paragraphs, in lieu of indemnifying such Indemnified Person
thereunder and in order to provide for just and equitable contribution, shall
contribute to the amount paid or payable by such Indemnified Person as a result
of such losses, claims, damages or liabilities in such proportion as is
appropriate to reflect (i) the relative benefits received by the Indemnifying
Person or Persons on the one hand and the Indemnified Person or Persons on the
other from the offering of the Preferred Stock or (ii) if the allocation
provided by the foregoing clause (i) is not permitted by applicable law, not
only such relative benefits but also the relative fault of the Indemnifying
Person or Persons on the one hand and the Indemnified Person or Persons on the
other in connection with the statements or omissions or alleged statements or
omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof) as well as any other relevant equitable
considerations. The relative fault of the parties shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or such
Participant or such other Indemnified Person, as the case may be, on the other,
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such state-
20
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ment or omission, and any other equitable considerations appropriate in the
circumstances.
(e) The parties agree that it would not be just and equitable
if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Participants were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any reasonable legal or other expenses actually incurred by such
Indemnified Person in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 7, in no event shall a
Participant be required to contribute any amount in excess of the amount by
which proceeds received by such Participant from sales of Registrable Preferred
Stock exceeds the amount of any damages that such Participant has otherwise been
required to pay or has paid by reason of such untrue or alleged untrue statement
or omission or alleged omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
(f) The indemnity and contribution agreements contained in
this Section 7 will be in addition to any liability that the Indemnifying
Persons may otherwise have to the Indemnified Persons referred to above.
8. Rules 144 and 144A
So long as any shares of Registrable Preferred Stock are
outstanding, the Company will provide to holders of the Registrable Preferred
Stock and file with the Commission copies of the annual reports and any of the
information, documents and other reports that the Company would have been
required to file with the Commission pursuant to Sections 13 or 15(d) of the
Exchange Act regardless of whether the Company is obligated to file such
reports. The Company further covenants for so long as any Registrable Preferred
Stock remains outstanding, to make available to any Holder or beneficial owner
of Registrable Preferred Stock in connection with any sale thereof and any
prospective purchaser of such Registrable Preferred Stock from such Holder or
beneficial owner, the information required by Rule 144A(d)(4) under the
Securities Act in order to permit re-
21
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sales of such Registrable Preferred Stock pursuant to Rule 144A.
9. Miscellaneous
(a) No Inconsistent Agreements. The Company shall not, after
the date of this Agreement, enter into any agreement with respect to any of its
securities that conflicts with the provisions hereof.
(b) Adjustments Affecting Registrable Preferred Stock. The
Company shall not, directly or indirectly, take any action with respect to the
Registrable Preferred Stock as a class that would adversely affect the ability
of the Holders of Registrable Preferred Stock to include such Registrable
Preferred Stock in a registration undertaken pursuant to this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement
may not be amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, otherwise than with the
prior written consent of the Holders of not less than a majority of the then
outstanding shares of Registrable Preferred Stock; provided, however, that
Section 7 and this Section 10(c) may not be amended, modified or supplemented
without the prior written consent of each Holder (including any person who was a
Holder of Registrable Preferred Stock disposed of pursuant to any Registration
Statement). Notwithstanding the foregoing, a waiver or consent to depart from
the provisions hereof with respect to a matter that relates exclusively to the
rights of Holders of Registrable Preferred Stock whose securities are being sold
pursuant to a Registration Statement and that does not directly or indirectly
affect, impair, limit or compromise the rights of other Holders of Registrable
Preferred Stock may be given by Holders of at least a majority of shares of the
Registrable Preferred Stock being sold by such Holders pursuant to such
Registration Statement; provided, however, that the provisions of this sentence
may not be amended, modified or supplemented except in accordance with the
provisions of the immediately preceding sentence.
(d) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day air courier or facsimile:
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1. if to a Holder of the Registrable Preferred
Stock, at the most current address of such Holder on the stock books of
the Company with a copy in like manner to the Initial Purchasers as
follows:
BT Securities Corporation
Alex. Xxxxx & Sons Incorporated
c/o BT Securities Corporation
One Bankers Trust Plaza
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No: (000) 000-00000
Attention: Corporate Finance Department
with copies to:
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
The Xxxx Alternative Income Fund L.P.
1776 On the Green
00 Xxxx Xxxxx
Xxxxxxxxxx, XX 00000
Facsimile No: (000) 000-0000
Attention: Xxxxxx Xxxxxxxx
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Facsimile No: (000) 000-0000
Attention: Xxxxx Xxxxxxx, Esq.
XxXxxxxxx Inc. Master Trust
P.O. Box N7796
Norfolk House
Xxxxxxxxx Street
Nassau, Bahamas
Attention: Xxxxxxx Xxxxx
General Motors Domestic
Group Pension Trust
One Mellon Bank Center
000 Xxxxx Xxxxxx 0000
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxx
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and
Xxxxx Xxxxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Facsimile No: (000) 000-0000
Attention: Xxxxxxxx Xxxxxxxx, Esq.
2. if to the Initial Purchasers, at the addresses
specified in Section 10(d)(1);
3. if to the Company, at the address as follows:
American Communications Services, Inc.
000 Xxxxxxxx Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxx Xxxxxxxx, XX 00000
Facsimile No: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
with a copy to:
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Facsimile No: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Xx., Esq.
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; one business
day after being timely delivered to a next-day air courier; and when receipt is
acknowledged by the addressee, if sent by facsimile.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties
hereto, including the Holders; provided, however, that this Agreement shall not
inure to the benefit of or be binding upon a successor or assign of a Holder
unless and to the extent such successor or assign holds Registrable Preferred
Stock.
(f) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be
24
-22-
deemed to be an original and all of which taken together shall constitute one
and the same agreement.
(g) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT
TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(i) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their reasonable best efforts to find and employ an alternative
means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction. It is hereby stipulated and
declared to be the intention of the parties that they would have executed the
remaining terms, provisions, covenants and restrictions without including any of
such that may be hereafter declared invalid, illegal, void or unenforceable.
(j) Securities Held by the Company. Whenever the consent or
approval of Holders of a specified percentage of shares of Registrable Preferred
Stock is required hereunder, Registrable Preferred Stock held by the Company or
its subsidiaries shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
(k) Third Party Beneficiaries. Holders of Registrable
Preferred Stock and Participants are intended third party beneficiaries of this
Agreement and this Agreement may be enforced by such Persons.
(l) Entire Agreement. This Agreement, together with the
Purchase Agreement, is intended by the parties as a final and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained
25
-23-
herein and therein and any and all prior oral or written agreements,
representations, or warranties, contracts, understandings, correspondence,
conversations and memoranda between the Purchasers on the one hand and the
Company on the other, or between or among any agents, representatives, parents,
subsidiaries, affiliates, predecessors in interest or successors in interest
with respect to the subject matter hereof and thereof are merged herein and
replaced hereby.
26
-S1-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
AMERICAN COMMUNICATIONS SERVICES, INC.
By:________________________________
Name:
Title:
BT SECURITIES CORPORATION
By:________________________________
Name:
Title:
ALEX. XXXXX & SONS INCORPORATED
By:________________________________
Name:
Title:
27
-S2-
THE XXXX ALTERNATIVE INCOME FUND L.P.
By:________________________________
Name:
Title:
GENERAL MOTORS DOMESTIC GROUP PENSION
TRUST
By: Mellon Bank, N.A. solely in its
capacity as Trustee for the General
Motors Domestic Group Pension Trust (as
directed by General Motors Investment
Management Corp.) and not in its
individual capacity
By:________________________________
Name:
Title:
XxXXXXXXX INC. MASTER TRUST
By:________________________________
Name:
Title:
