AGREEMENT
This Agreement ("Agreement") dated as of October 26, 1995 by and between
SA Telecommunications, Inc., a Delaware corporation (the "Company") and Jesup
& Xxxxxx Capital Markets, Inc. (the "Holder").
WHEREAS, the Company and the Holder entered into a Warrant Purchase
Agreement dated as of July 31, 1995 ("Warrant Agreement"), pursuant to which
the Holder purchased a Common Stock Purchase Warrant dated July 31, 1995
exercisable into an aggregate of 500,000 shares (the "Warrant Shares") of
the Company's Common Stock, $.0001 par value (the "Common Stock") (the
"Warrant");
WHEREAS, the Company and the Holder entered into a Share Purchase
Agreement dated as of July 31, 1995 ("Share Agreement"), pursuant to which
the Holder purchased 166,667 shares (the "Conversion Shares") of Series A
Cumulative Convertible Preferred Stock, convertible into 1,333,336 shares of
Common Stock;
WHEREAS, pursuant to the Share Agreement and the Warrant Agreement, the
Company granted to the Holder piggy-back registration rights (" Registration")
with respect to the Conversion Shares and the Warrant Shares (the "Registrable
Securities");
WHEREAS, the Company and the Holder desire to enter into an
indemnification agreement with respect to the registration of the Registrable
Securities;
NOW, THEREFORE, in consideration of the above premises and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. DEFINITIONS. For purposes of this Agreement, the following terms
shall have the following meanings:
"ACT" means the Securities Act of 1933, as amended.
"COMMISSION" means Securities and Exchange Commission.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust or unincorporated organization.
"PROSPECTUS" means the prospectus which is part of a Registration
Statement, and includes any preliminary prospectus and/or supplemental
prospectus.
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"REGISTRATION STATEMENT" means a registration statement filed with the
Commission under the Act which includes the Registrable Securities being
registered pursuant to the registration rights granted pursuant to the
Share Agreement and the Warrant Agreement.
"SELLING HOLDER" means the Holder whose Registrable Securities are
included in a Registration Statement.
2. INDEMNIFICATION.
(a) INDEMNIFICATION BY SELLING HOLDER. Selling Holder in its
capacity as a Selling Holder agrees to indemnify, to the full extent
permitted by law, the Company, its directors and officers and each
Person who controls the Company (within the meaning of Section 15 of
the Act and Section 20(a) of the Exchange Act) and its respective
agents and counsel against any losses, claims, damages, liabilities and
expenses (including attorneys' fees) resulting from any untrue
statement of a material fact or any omission to state a material fact
necessary to make the statements in the Registration Statement or
Prospectus or preliminary Prospectus (in the case of the Prospectus or
any preliminary Prospectus, in light of the circumstances under which
they were made) not misleading, to the extent, but only to the extent,
that such untrue statement or omission was made in reliance upon
information furnished by, or on behalf of, such Selling Holder in its
capacity as a Selling Holder specifically for use in the preparation
thereof. The Company shall be entitled to receive indemnities from
underwriters, selling brokers, dealer managers and similar securities
industry professionals participating in the distribution, to the same
extent as provided above with respect to information with respect to
such Person so furnished by such Person specifically for use in the
preparation of any Prospectus or Registration Statement.
(b) CONDUCT OF INDEMNIFICATION PROCEEDINGS. Any Person entitled to
indemnification hereunder or under Section 10.5 of the Warrant
Agreement or under Section 8.5 of the Share Agreement will (I) give prompt
written notice to the indemnifying party of any claim with respect to
which it seeks indemnification and (ii) unless in such indemnified
party's reasonable judgment a conflict of interest may exist between
such indemnified and indemnifying parties with respect to such claim,
permit such indemnifying party to assume the defense of such claim with
counsel reasonably satisfactory to the indemnified party. Whether or not
such defense is assumed by the indemnifying party, the indemnifying party
will not be subject to any liability for any settlement made without its
consent (but such consent will not be unreasonably withheld). No
indemnifying party will consent to entry of any judgment or enter into
any settlement which does not include as an unconditional term thereof
the giving by the claimant or plaintiff to such indemnified party of a
release from all liability in respect of such claim or litigation. An
indemnifying party who is not entitled to, or elects not to, assume the
defense of a claim will not be obligated to
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pay the fees and expenses of more than one counsel for all parties
indemnified by such indemnifying party with respect to such claim,
unless in the reasonable judgment of any indemnified party a conflict
of interest may exist between such indemnified party and any other of
such indemnified parties with respect to such claim, in which event the
indemnifying party shall be obligated to pay the fees and expenses of
such additional counsel or counsels.
(d) CONTRIBUTION. If for any reasons the indemnification provided
for in the preceding clauses (a) and (b) is unavailable to an
indemnified party as contemplated by the preceding clauses (a) and (b),
then the indemnifying party shall contribute to the amount paid or
payable by the indemnified party as a result of such loss, claim,
damage or liability in such proportion as is appropriate to reflect not
only the relative benefits received by the indemnified party and the
indemnifying party, but also the relative fault of the indemnified
party and indemnifying party, as well as any other relevant equitable
considerations.
3. BLUE SKY STATES. The Selling Holder designates the states listed on
Exhibit A hereto as the list of blue sky jurisdictions requested in
connection with the Registration.
4. AMENDMENTS AND WAIVERS. Except as otherwise provided herein, the
provisions of this Agreement may not be amended, modified or supplemented
without the written consent of the Company and the Holder.
5. NOTICES. All notices and other communications provided for or
permitted hereunder shall be made by hand delivery or registered first-class
mail to the Company or Holder, as the case may be, at its address set forth
on the signature page hereto.
6. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
except that Holder may not assign its rights hereunder to any Person.
7. 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.
8. HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
9. GOVERNING LAW. This Agreement shall be governed and controlled as
to validity, enforcement, interpretation, constructions and effect and in all
other aspects by the substantive laws of the State of Texas, without
reference to conflicts of laws principles.
10. SEVERABILITY. In the event that any one or more of the provisions
contained
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herein, or the application thereof in any circumstances, 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 contained herein shall not be in any way impaired
thereby, it being intended that all of the rights and privileges established
by this Agreement shall be enforceable to the fullest extent permitted by law.
11. ENTIRE AGREEMENT. This Agreement, the Share Agreement and the
Warrant Agreement and the agreements contemplated thereby are 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.
12. ATTORNEYS' FEES. In any action or proceeding brought to enforce any
provision of this Agreement or where any provision hereof is validly asserted
as a defense, the successful party shall be entitled to recovery reasonable
attorneys' fees in addition to any other available remedy.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
SA TELECOMMUNICATIONS, INC. JESUP & XXXXXX CAPITAL
MARKETS, INC.
By:________________________
Xxxx X. Xxxx, Xx. BY:_____________________________
Chairman & Chief Executive TITLE:___________________
Officer 000 Xxxxx Xxxxxx
0000 Xxxxxx X, Xxxxx 000 Xxx Xxxx, XX 00000
Xxxxx, XX 00000
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EXHIBIT A
BLUE SKY STATES
New York
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