EXHIBIT 10.11
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is
entered into as of April 23, 2002, by and among Globix Corporation, a Delaware
corporation (the "Company"), and the Holders (as hereinafter defined) of
Registrable Securities (as hereinafter defined) who are parties to this
Agreement.
W I T N E S S E T H
WHEREAS, certain Holders who are or may be deemed to be
Affiliates of the Company are acquiring Common Stock (as hereinafter defined)
and New Notes (as hereinafter defined) pursuant to the Plan (as hereinafter
defined); and
WHEREAS, pursuant to the Plan, the Company is obligated to
provide the Holders with certain registration rights with respect to the
Registrable Securities and to take certain other actions with respect to the
Registrable Securities.
NOW, THEREFORE, in consideration of the foregoing and of the
mutual premises and covenants contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. Definitions.
Unless otherwise defined herein, capitalized terms used herein
and in the recitals above shall have the following meanings:
"Affiliate" of a Person means any Person that directly or
indirectly through one or more intermediaries controls or is controlled by, or
is under common control with, such other Person. For purposes of this
definition, the term "control" (including the terms "controlling," "controlled
by," and "under common control with") means the possession, direct or indirect,
of the power to cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract, or otherwise.
"Business Day" means any day except a Saturday, Sunday, or
other day which shall be a legal holiday or a day on which commercial banks in
New York City generally are authorized or required by law or other government
actions to be closed.
"Claim" has the meaning ascribed to such term in Section 5(a).
"Common Stock" means the Common Stock, $.01 par value per
share, of the Company.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder, or any similar or successor
statute.
"Holder" means a Person who (i) is a party to this Agreement
(or a permitted transferee thereof who has agreed in writing to be bound by the
terms of this Agreement) and (ii) owns Registrable Securities.
"Indemnified Party" has the meaning ascribed to such term in
Section 5(c).
"Indemnifying Party" has the meaning ascribed to such term in
Section 5(c).
"Inspectors" has the meaning ascribed to such term in Section
4(a)(i).
"Lock-Up Period" has the meaning ascribed to such term in
Section 3.
"Losses" has the meaning ascribed to such term in Section
5(a).
"Nasdaq" means the Nasdaq Stock Market.
"NASD" means the National Association of Securities Dealers,
Inc.
"New Common Stock" means the Common Stock issued pursuant to
the Plan and includes any securities of the Company issued or issuable with
respect to such securities by way of a stock split, recapitalization, merger,
consolidation or other reorganization, or otherwise.
"New Notes" means the 11% Senior Secured Notes due 2008 of the
Company issued or issuable to the Holders pursuant to the Plan and all 11%
Senior Secured Notes due 2008 of the Company paid or payable as interest
thereon.
"Person" means any individual, firm, corporation, company,
partnership, trust, incorporated or unincorporated association, limited
liability company, joint venture, joint stock company, government (or an agency
or political subdivision thereof), or other entity of any kind, and shall
include any successor (by merger or otherwise) of any such entity.
"Plan" means the joint prepackaged reorganization plan of the
Company under Chapter 11 of title 11 of the United States Code, 11 U.S.C.
Section Section 101 - 1330 that was filed by with the United States Bankruptcy
Court for the District of DelaWare on March 1, 2002, as the same may be amended,
modified, or supplemented from time to time in accordance with the terms
thereof, and confirmed by such court on April 8, 2002.
"Registrable Securities" means any and all (i) shares of New
Common Stock and (ii) New Notes; provided however, that as to any particular
Registrable Securities, once issued such securities shall cease to be
Registrable Securities when (a) a registration statement with respect to the
sale of such securities shall have become effective under the Securities Act and
such securities shall have been disposed of in accordance with such registration
statement, (b) they shall have been distributed to the public pursuant to Rule
144 (or any successor provision) under the Securities Act, (c) they shall have
been otherwise transferred and subsequent disposition of them shall not require
registration or qualification of them under the Securities Act, or (d) they
shall have ceased to be outstanding.
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"Registration Expenses" mean all expenses arising from or
incident to the performance of, or compliance with, this Agreement, including,
without limitation, (a) SEC, stock exchange, NASD, and other registration and
filing fees, (b) all fees and expenses incurred in connection with complying
with any securities or blue sky laws (including, without limitation, fees,
charges, and disbursements of counsel in connection with blue sky qualifications
of the Registrable Securities), (c) all printing, messenger, and delivery
expenses, (d) the fees, charges, and disbursements of counsel to the Company and
of its independent public accountants and any other accounting and legal fees,
charges, and expenses incurred by the Company (including, without limitation,
any expenses arising from any special audits or "comfort letters" required in
connection with or incident to any registration), (e) the fees, charges, and
disbursements of any special experts retained by the Company in connection with
any registration pursuant to the terms of this Agreement, (f) all internal
expenses of the Company (including, without limitation, all salaries and
expenses of its officers and employees performing legal or accounting duties),
(g) the fees and expenses incurred in connection with the listing of the
Registrable Securities on any securities exchange or Nasdaq, and (h) Securities
Act liability insurance (if the Company elects to obtain such insurance),
regardless of whether any Registration Statement filed in connection with such
registration is declared effective. "Registration Expenses" shall (i) also
include reasonable fees, charges and disbursements of a single counsel to all of
the Holders participating in preparation of the Shelf Registration Statement and
(ii) not include underwriters' and brokers' discounts and commissions or fees of
any underwriter's counsel or related costs.
"Registration Statement" shall mean any Registration Statement
of the Company filed with the SEC on the appropriate form pursuant to the
Securities Act which covers any of the shares of New Common Stock and any other
Registrable Securities pursuant to the provisions of this Agreement and all
amendments and supplements to any such Registration Statement, including
post-effective amendments, in each case including the prospectus contained
therein, all exhibits thereto, and all materials incorporated by reference
therein.
"SEC" means the Securities and Exchange Commission, or any
other successor thereto.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated by the SEC thereunder or any similar
or successor statute.
"Shelf Registration" has the meaning ascribed to such term in
Section 2(a).
"Shelf Registration Statement" has the meaning ascribed to
such term in Section 2(a).
2. Shelf Registration
(a) Filing Obligation. Within ninety (90) days after the
Effective Date (as such term is defined in the Plan), the Company shall prepare
and file with the SEC a "shelf' Registration Statement for an offering to be
made on a continuous basis pursuant to Rule 415 under the Securities Act (a
"Shelf Registration Statement") on Form S-1 or Form S-3 or any other appropriate
form (or any successor form) under the Securities Act covering the resale of the
Registrable Securities (the "Shelf Registration"). The Company shall use its
reasonable best efforts to cause the Shelf Registration to be declared effective
under the Securities Act as promptly as practicable and, once effective, the
Company shall use its reasonable best
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efforts to cause such Shelf Registration to remain effective for a period ending
on the earlier of: (i) the date on which all Registrable Securities have been
sold pursuant to the Shelf Registration or pursuant to Rule 144 under the
Securities Act, (ii) subject to Section 4(c), the date which is the three
(3)-year anniversary of the date the Shelf Registration Statement is declared
effective by the SEC and (iii) there are no remaining Registrable Securities
outstanding. The Company shall not permit any securities other than the
Registrable Securities to be included in the Shelf Registration. The Shelf
Registration Statement shall contain a broad-form plan of distribution.
(b) With respect to shares of New Common Stock that are
Registrable Securities, if requested by Holders of such Registrable Securities
representing more than 10% of the Common Stock then outstanding, the Company
shall use its reasonable best efforts to enter into an underwriting agreement
with a national recognized investment banking firm or firms selected by such
Holders and reasonably acceptable to the Company containing representations,
warranties, indemnities and agreements then customarily included by an issuer in
underwriting agreements with respect to secondary underwritten distributions. No
Holder may participate in any such underwritten registered offering unless such
Holder (i) agrees to sell its Registrable Securities on the basis provided in
any underwriting arrangements, (ii) completes and executes all questionnaires,
powers of attorney, custody arrangements, indemnities, underwriting agreements
and other documents reasonably required under the terms of such underwriting
arrangements and this Agreement and (iii) furnishes in writing to the Company
such information regarding such Holder, the plan of distribution of the
Registrable Securities and other information as the Company may from time to
time request or as may be legally required in connection with such registration.
(c) Expenses. The Company shall pay all Registration Expenses
in connection with the Shelf Registration, whether or not it becomes effective.
3. Holdback Agreements.
Each Holder whose Registrable Securities are covered by the
Shelf Registration Statement agrees not to effect any public sale or
distribution of any Registrable Securities being registered or of any securities
convertible into or exchangeable or exercisable for such Registrable Securities,
including a sale pursuant to Rule 144 under the Securities Act, during a period
of not more than ninety (90) days (the "Lock-Up Period"), as may be requested by
the managing underwriter in the case of an underwritten public offering;
provided, however, that if any other holder of securities participating in such
underwritten public offering shall be subject to a shorter period, then the
Lock-Up Period shall be such shorter period.
4. Registration Procedures.
(a) Obligations of The Company. In connection with the Shelf
Registration, the Company shall use its reasonable best efforts to effect the
registration and sale of Registrable Securities in accordance with the intended
method of distribution thereof as quickly as practicable, and in connection with
any such request, the Company shall, as expeditiously as possible:
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(i) Participation In Preparation. Provide any Holder of
Registrable Securities and any attorney, accountant or other agent retained by
any Holder (each, an "Inspector" and, collectively, the "Inspectors") the
opportunity to participate, including, but not limited to, reviewing, commenting
on, and attending all meetings in the preparation of the Shelf Registration
Statement, each prospectus included therein or filed with the SEC and each
amendment or supplement thereto;
(ii) Due Diligence. For a reasonable period prior to the
filing of the Shelf Registration Statement pursuant to this Agreement, make
available for inspection and copying by the Inspectors such financial and other
information and books and records, pertinent corporate documents, and properties
of the Company and its subsidiaries, and cause the officers, directors,
employees, counsel, and independent certified public accountants of the Company
and its subsidiaries to respond to such inquiries and to supply all information
reasonably requested by any such Inspector in connection with such Registration
Statement, as shall be reasonably necessary, in the judgment of the respective
counsel referred to in Section 4(a)(i), to conduct a reasonable investigation
within the meaning of the Securities Act;
(iii) General Notifications. Promptly notify in writing the
Holders (A) when the Shelf Registration Statement or the prospectus included
therein or any prospectus amendment or supplement or post-effective amendment
has been filed, and, with respect to the Shelf Registration Statement or any
post-effective amendment, when the same has become effective, (B) when the SEC
notifies the Company whether there will be a "review" of the Shelf Registration
Statement, (C) of any comments (oral or written) by the SEC and by the blue sky
or securities commissioner or regulator of any state with respect thereto, or
(D) of any request by the SEC for any amendments or supplements to the Shelf
Registration Statement or the prospectus or for additional information;
(iv) 10b-5 Notification. Promptly notify in writing the
Holders, any sales or placement agent therefor, and the managing underwriter of
the securities being sold pursuant to any Registration Statement at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act upon discovery that, or upon the happening of any event as a
result of which, any prospectus included in the Shelf Registration Statement (or
amendment or supplement thereto) contains an untrue statement of a material fact
or omits to state any material fact required to be stated therein or necessary
to make the statements therein not misleading in light of the circumstances
under which they were made and the Company shall promptly prepare a supplement
or amendment to such prospectus so that after delivery of such prospectus, as so
amended or supplemented, to the purchasers of such Registrable Securities, such
prospectus, as so amended or supplemented, shall not contain an 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 in light of
the circumstances under which they were made;
(v) Notification of Stop Orders; Suspensions of
Qualifications And Exemptions. Promptly notify in writing the Holders of the
issuance by the SEC of (A) any stop order issued or threatened to be issued by
the SEC or (B) any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose and the Company agrees to use its reasonable best
efforts to (x) prevent the issuance of
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any such stop order, and in the event of such issuance, to obtain the withdrawal
of any such stop order and (y) obtain the withdrawal of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any Registrable Securities included in the Shelf Registration Statement for sale
in any jurisdiction at the earliest practicable date;
(vi) Amendments and Supplements. Prepare and file with the
SEC such amendments, including post-effective amendments, as may be necessary to
keep the Shelf Registration Statement continuously effective for the applicable
time period required hereunder; cause the related prospectus to be supplemented
by any required prospectus supplement, 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 with respect to the disposition of all securities covered by the
Shelf Registration Statement during such period in accordance with the intended
methods of disposition by the sellers thereof set forth in the Shelf
Registration Statement as so amended or in such prospectus as so supplemented;
(vii) Copies. Furnish as promptly as practicable to each
Inspector prior to filing the Shelf Registration Statement or any supplement or
amendment thereto, copies of the Shelf Registration Statement, supplement, or
amendment as it is proposed to be filed, and after such filing such number of
copies of the Shelf Registration Statement, each amendment and supplement
thereto (in each case including all exhibits thereto), the prospectus included
in the Shelf Registration Statement (including each preliminary prospectus) and
such other documents as each such Holder or underwriter may reasonably request
to facilitate the disposition of the Registrable Securities owned by such
Holder;
(viii) Blue Sky. Use its reasonable best efforts to, prior
to any public offering of the Registrable Securities, register or qualify (or
seek an exemption from registration or qualifications) such Registrable
Securities under such other securities or blue sky laws of such jurisdictions as
any Holder may request, and to continue such qualification in effect in each
such jurisdiction for as long as is permissible pursuant to the laws of such
jurisdiction, or for as long as a Holder requests or until all of such
Registrable Securities are sold, whichever is shortest, and do any and all other
acts and things which may be reasonably necessary or advisable to enable any
Holder to consummate the disposition in such jurisdictions of the Registrable
Securities; provided, however, that the Company shall not be required to (A)
qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this Section 4(a)(viii), (B) subject
itself to material taxation in any such jurisdiction, or (C) consent to general
service of process in any such jurisdiction;
(ix) Other Approvals. Use its reasonable best efforts to
obtain all other approvals, consents, exemptions, or authorizations from such
governmental agencies or authorities as may be necessary to enable the Holders
to consummate the disposition of Registrable Securities;
(x) Agreements. Enter into customary agreements and take
such other actions as may be reasonably required in order to expedite or
facilitate the disposition of Registrable Securities;
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(xi) "Cold Comfort" Letter. Use its reasonable best efforts
to obtain a "cold comfort" letter from the Company's independent public
accountants in customary form and covering such matters of the type customarily
covered by "cold comfort" letters as the Holders may reasonably request;
(xii) SEC Compliance. Use its reasonable best efforts to
comply with all applicable rules and regulations of the SEC;
(xiii) NASD. Cooperate with each Holder in connection with
any filings required to be made with the NASD;
(xiv) Listing. Use its reasonable best efforts to cause the
Common Stock to be listed on the Nasdaq (including any required filing of a
registration statement under the Exchange Act), and, if listed on Nasdaq, use
its reasonable best efforts to (A) secure designation of all such Registrable
Securities as a Nasdaq "national market system security" within the meaning of
Rule 11 Aa2-1 under the Exchange Act and (B) cause such Registrable Securities
to be listed on the Nasdaq National Market or, failing that, to secure Nasdaq
authorization for such Registrable Securities; and
(xv) Best Efforts. Use its reasonable best efforts to take
all other actions necessary to effect the registration of the Registrable
Securities contemplated hereby.
(b) Seller Information. The Company may require each Holder as
to which any registration is being effected to furnish to the Company with such
information regarding such Holder and such Holder's method of distribution of
such Registrable Securities as the Company may from time to time reasonably
request in writing.
(c) Notice To Discontinue. Each Holder whose Registrable
Securities are covered by the Shelf Registration Statement filed pursuant to
Section 2 agrees that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 4(a)(iv), such Holder
shall forthwith discontinue disposition of Registrable Securities pursuant to
the Shelf Registration Statement covering such Registrable Securities until such
Holder's receipt of the copies of the supplemented or amended prospectus
contemplated by Section 4(a)(iv) and, if so directed by the Company in the case
of an event described in Section 4(a)(iv), such Holder shall deliver to the
Company (at the Company's expense) all copies, other than permanent file copies
then in such Holder's possession, of the prospectus covering such Registrable
Securities which is current at the time of receipt of such notice. If the
Company shall give any such notice, the Company shall extend the period during
which the Shelf Registration Statement is to be maintained effective by the
number of days during the period from and including the date of the giving of
such notice pursuant to Section 4(a)(iv) to and including the date when the
Holder shall have received the copies of the supplemented or amended prospectus
contemplated by, and meeting the requirements of, Section 4(a)(iv).
5. Indemnification; Contribution.
(a) Indemnification By The Company. The Company agrees,
notwithstanding termination of this Agreement, to indemnify and hold harmless to
the fullest extent permitted by law, each Holder, each of its directors,
officers, partners, employees, advisors, and agents, their
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respective Affiliates and each Person who controls (within the meaning of the
Securities Act or the Exchange Act) any of such Persons, and each underwriter
and each Person who controls (within the meaning of the Securities Act or the
Exchange Act) any underwriter from and against any and all losses, claims,
damages, expenses (including, without limitation, reasonable costs of
investigation and fees, disbursements, and other charges of counsel) or other
liabilities (collectively, "Losses") resulting from or arising out of or based
upon any untrue, or alleged untrue, statement of a material fact contained in
the Shelf Registration Statement, prospectus, or preliminary prospectus (as
amended or supplemented) or any document incorporated by reference in any of the
foregoing or resulting from or 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 case of a prospectus, in
light of the circumstances under which they were made), not misleading, and the
Company will reimburse each such Holder, each of its officers, directors,
partners, employees, advisors, and agents, their respective Affiliates, and each
Person controlling any such Persons, for any legal and any other Losses
reasonably incurred in connection with investigating, preparing or defending any
such claim, loss, damage, liability, action, investigation, or proceeding
(collectively, a "Claim") by any court or governmental agency or body commenced
or threatened, or any Claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided, however,
that the Company will not be liable in any such case to the extent that any
Losses arise out of or are based on any untrue statement or omission or alleged
untrue statement or omission, made in reliance upon and in conformity with
written information furnished to the Company by such Holder or underwriter
expressly for use therein.
(b) Indemnification by Holders. In connection with the Shelf
Registration, each such Holder shall furnish to the Company in writing such
information with respect to such Holder as the Company may reasonably request or
as may be required by law for use in connection with the Shelf Registration
Statement or prospectus or preliminary prospectus to be used in connection with
such registration, and each Holder, severally but not jointly, agrees to
indemnify and hold harmless the Company, any underwriter retained by the
Company, and their respective directors, officers, partners, employees,
advisors, and agents, their respective Affiliates, and each Person who controls
(within the meaning of the Securities Act and the Exchange Act) any of such
Persons to the same extent as the foregoing indemnity from the Company to the
Holders as set forth in Section 5(a) (subject to the exceptions set forth in the
foregoing indemnity, the proviso to this sentence and applicable law), but only
with respect to any such information furnished in writing by such Holder
expressly for use therein; provided, however, that the liability of any Holder
under this Section 5(b) shall be limited to the amount of the net proceeds
received by such Holder in the offering giving rise to such liability.
(c) Conduct of Indemnification Proceedings. Any Person
entitled to indemnification hereunder (the "Indemnified Party") agrees to give
prompt written notice to the indemnifying party (the "Indemnifying Party") after
the receipt by the Indemnified Party of any written notice of the commencement
of any action, suit, proceeding, or investigation or threat thereof made in
writing for which the Indemnified Party intends to claim indemnification or
contribution pursuant to this Agreement; provided, however, that the failure so
to notify the Indemnifying Party shall not relieve the Indemnifying Party of any
liability that it may have to the Indemnified Party hereunder unless such
Indemnifying Party is materially prejudiced by such failure. If notice of
commencement of any such action is given to the Indemnifying Party as
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above provided, the Indemnifying Party shall be entitled to participate in and,
to the extent it may wish, jointly with any other Indemnifying Party similarly
notified, to assume the defense of such action at its own expense, with counsel
chosen by it and reasonably satisfactory to such Indemnified Party. The
Indemnified Party shall have the right to employ separate counsel in any such
action and participate in the defense thereof, but the fees and expenses of such
counsel shall be paid by the Indemnified Party unless (i) the Indemnifying Party
agrees to pay the same, (ii) the Indemnifying Party fails to assume the defense
of such action with counsel satisfactory to the Indemnified Party in its
reasonable judgment, or (iii) the named parties to any such action (including,
but not limited to, any impleaded parties) reasonably believe that the
representation of such Indemnified Party and the Indemnifying Parry by the same
counsel would be inappropriate under applicable standards of professional
conduct; provided, however, that the Indemnifying Party shall only have to pay
the fees and expenses of one firm of counsel for all Indemnified Parties in each
jurisdiction. In the case of clauses (ii) and (iii) above, the Indemnifying
Party shall not have the right to assume the defense of such action on behalf of
such Indemnified Party. No Indemnifying Party shall be liable for any settlement
entered into without its written consent, which consent shall not be
unreasonably withheld. No Indemnifying Party shall, without the written consent
of the Indemnified Party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the Indemnified Party is an actual or potential party
to such action or claim) unless such settlement, compromise, or judgment (A)
includes an unconditional release of the Indemnified Party from all liability
arising out of such action or claim and (B) does not include a statement as to,
or an admission of, fault, culpability, or a failure to act by or on behalf of
any Indemnified Party. The rights afforded to any Indemnified Party hereunder
shall be in addition to any rights that such Indemnified Party may have at
common law, by separate agreement, or otherwise.
(d) Contribution. If the indemnification provided for in this
Section 5 from the Indemnifying Party is unavailable or insufficient to hold
harmless an Indemnified Party in respect of any Losses referred to herein, then
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 in such proportion as is appropriate to reflect the relative
fault of the Indemnifying Party and the Indemnified Party, as well as any other
relevant equitable considerations. The relative faults of such Indemnifying
Party and Indemnified Party shall be determined by reference to, among other
things, whether any action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact, was made by, or relates to information supplied by, such Indemnifying
Party or Indemnified Party, and the Indemnifying Party's and Indemnified Party's
relative intent, knowledge, access to information, and opportunity to correct or
prevent such action; provided, however, that the liability of any Holder under
this Section 5(d) shall be limited to the amount of the net proceeds received by
such Holder in the offering giving rise to such liability. The amount paid or
payable by a party as a result of the losses, claims, damages, expenses, or
other liabilities referred to above shall be deemed to include, subject to the
limitations set forth in Sections 5(a), 5(b), and 5(c), any legal or other fees,
charges or expenses reasonably incurred by such party in connection with any
investigation or proceeding.
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The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 5(d) were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution
pursuant to this Section 5(d).
6. Rule 144; Other Exemptions.
With a view to making available to the Holders the benefits of
Rules 144 and 144A promulgated under the Securities Act and other rules and
regulations of the SEC that may at any time permit a Holder to sell securities
of the Company to the public without registration, the Company covenants that
following the filing date of the Shelf Registration Statement it shall use
reasonable efforts to (i) file in a timely manner all reports and other
documents required to be filed by it under the Securities Act and the Exchange
Act and the rules and regulations adopted by the SEC thereunder and (ii) take
such further action as each Holder may reasonably request (including, but not
limited to, providing any information necessary to comply with Rules 144 and
144A, if available with respect to resales of the Registrable Securities, under
the Securities Act), all to the extent required from time to time to enable such
Holder to sell Registrable Securities without registration under the Securities
Act within the limitation of the exemptions provided by (x) Rule 144 or Rule
144A (if available with respect to resales of the Registrable Securities) under
the Securities Act, as such rules may be amended from time to time, or (y) any
other rules or regulations now existing or hereafter adopted by the SEC.
7. Miscellaneous.
(a) Termination. This Agreement shall terminate upon the
earlier of (i) the written agreement of the Company and all Holders hereto, (ii)
the date upon which there are no Registrable Securities outstanding and (iii)
the date on which the Company is no longer obligated to maintain the
effectiveness of the Shelf Registration Statement in accordance with the second
sentence of Section 2(a) hereof.
(b) No Inconsistent Agreements; Other Registration Rights. The
Company shall not enter into any agreement with respect to its Common Stock or
New Notes that is inconsistent with the rights granted to the Holders in this
Agreement other than any lock-up agreement with the underwriters in connection
with an underwritten offering pursuant to which the Company agrees, for a period
not in excess of one hundred thirty five (135) days, not to register for sale,
and not to sell or otherwise dispose of, Common Stock, New Notes or any
securities convertible into or exercisable or exchangeable for Common Stock.
(c) Remedies. The Holders, in addition to being entitled to
exercise all rights granted by law, including recovery of damages, shall be
entitled to specific performance of their rights under this Agreement. The
Company agrees that monetary damages would not be adequate compensation for any
loss incurred by reason of a breach by it of the provisions of this Agreement
and hereby agrees to waive in any action for specific performance the defense
that a remedy at law would be adequate.
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(d) Amendments And Waivers. Except as otherwise provided
herein, the provisions of this Agreement may not be amended, modified, or
supplemented, and waivers or consents to departures from the provisions of such
section may not be given, unless the Company has obtained the prior written
consent of a majority of the Holders at the time of the amendment, modification,
supplement, waiver or consent; provided, that, this Agreement shall not be
amended, modified, or supplemented, and waivers or consents to departures from
the provisions of such section may not be given, in a manner that adversely
affects the rights of any Holder hereunder unless such Holder consents to such
amendment, modification, supplement, waiver or consent.
(e) Notices. All notices, demands, and other communications
provided for or permitted hereunder shall be made in writing and shall be by
registered or certified first-class mail, return receipt requested, facsimile,
courier service, or personal delivery:
(i) if to the Company:
Globix Corporation
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
(000) 000-0000
with a copy to (which shall not constitute notice):
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx
(000) 000-0000
(ii) if to Holders: at the address set forth in the
Company's records.
with a copy to (which shall not constitute notice):
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
(000) 000-0000
Each such notice, request or other communication will be
effective (a) if given by certified mail, 96 hours after such communication is
deposited in the mails with certified postage prepaid addressed as aforesaid,
(b) one Business Day after being furnished to a nationally recognized overnight
courier for next Business Day delivery, and (c) on the date sent if sent by
electronic facsimile transmission, receipt confirmed followed by a hard copy by
mail.
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(f) Successors And Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of the parties hereto;
provided, however, that the registration rights of the Holders and the other
obligations of the Company contained in this Agreement shall, with respect to
any class of Registrable Securities, be automatically transferred from a Holder
to any purchaser or other transferee of more than 2% of the outstanding amount
of such class of Registrable Securities prior to the Shelf Registration
Statement becoming effective under the Securities Act who agrees to be bound by
this Agreement as a Holder in a written instrument reasonably acceptable to the
Company upon delivery of a copy thereof to the Company. Notwithstanding any
transfer of such rights, all of the obligations of the Company hereunder shall
survive any such transfer and shall continue to inure to the benefit of all
transferees.
(g) 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 deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS AND NOT THE LAWS OF CONFLICTS
(OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK) OF THE STATE OF NEW YORK.
(j) Jurisdiction. Each party to this Agreement hereby
irrevocably agrees that any legal action or proceeding arising out of or
relating to this Agreement or any agreements or transactions contemplated hereby
may be brought in the courts of the State of New York or of the United States of
America for the Southern District of New York and hereby expressly submits to
the personal jurisdiction and venue of such courts for the purposes thereof and
expressly waives any claim of improper venue and any claim that such courts are
an inconvenient forum. Each party hereby irrevocably consents to the service of
process of any of the aforementioned courts in any such suit, action, or
proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to the address set forth in Section 7(e), such service to
become effective ten (10) Business Days after such mailing.
(k) Severability. If any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal, or unenforceable in any respect for any reason, the validity,
legality, and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired, it being
intended that all of the rights and privileges of the Holders shall be
enforceable to the fullest extent permitted by law.
(l) Rules of Construction. Unless the context otherwise
requires, "or" is not exclusive, and references to sections or subsections refer
to sections or subsections of this Agreement.
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(m) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. There are no restrictions,
promises, warranties, or undertakings in respect of the subject matter contained
herein, other than those set forth or referred to herein. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
(n) Further Assurances. Each of the parties shall execute such
documents and perform such further acts as may be reasonably required or
desirable to carry out or to perform the provisions of this Agreement.
(o) Interpretation. This Agreement is the result of
arms-length negotiations between the parties hereto and has been prepared
jointly by the parties. In applying and interpreting the provisions of this
Agreement, there shall be no presumption that the Agreement was prepared by any
one party or that the Agreement shall be construed in favor of or against any
one party.
(p) No Third Party Beneficiaries. This Agreement is for the
benefit of the parties hereto and any Person who agrees to become bound by the
terms hereof and become a Holder for the purposes of this Agreement, and is not
intended to confer upon any other Person any rights or remedies hereunder.
13
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
GLOBIX CORPORATION
By: /S/ XXXXXXX X. XXXXX
-------------------------------------------------
Name:
Title:
HOLDERS:
HM4 GLOBIX QUALIFIED FUND, LLC
By: /S/ XXXXX X. XXXXXXX
-------------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President and Treasurer
HM4 GLOBIX PRIVATE FUND, LLC
By: /S/ XXXXX X. XXXXXXX
-------------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President and Treasurer
HM PG-IV GLOBIX, LLC
By: /S/ XXXXX X. XXXXXXX
-------------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President and Treasurer
HM 4-EQ GLOBIX COINVESTORS, LLC
By: /S/ XXXXX X. XXXXXXX
-------------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President and Treasurer
14
HM 4-SBS GLOBIX COINVESTORS, LLC
By: /S/ XXXXX X. XXXXXXX
-------------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President and Treasurer
MACKAY XXXXXXX, LLC
By: /S/ XXXXXX XXXX
-------------------------------------------------
Name: Xxxxxx Xxxx
Title: General Counsel
XXXXXX BROTHERS INC.
By: /S/ XXXXXX X'XXXXXXX
-------------------------------------------------
Name: Xxxxxx X'Xxxxxxx
Title: Vice President
By:
-------------------------------------------------
Name:
Title:
15
