Exhibit H
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") dated as of July 24,
2008, is among SkyTerra Communications, Inc., a Delaware corporation (including
its successors, the "Company"), Harbinger Capital Partners Master Fund I, Ltd.,
an exempted company organized under the laws of the Cayman Islands ("Master
Fund"), Harbinger Capital Partners Special Situations Fund, L.P., a limited
partnership organized under the laws of the state of Delaware ("Special
Situations Fund"), Harbinger Co-Investment Fund, L.P., a Delaware limited
partnership ("Satellite Fund"), and Harbinger Capital Partners Fund I, L.P., a
limited partnership organized under the laws of the state of Delaware ("Capital
Fund," and collectively with Master Fund, Special Situations Fund and Satellite
Fund, the "Securityholders").
RECITALS
WHEREAS, the Securityholders own in the aggregate 20,580,940 shares of the
Company's non-voting common stock, par value $0.01 per share (the "Non-Voting
Common Stock"), 17,098,565 shares of the Company's voting common stock, par
value $0.01 per share (the "Voting Common Stock" and together with the
Non-Voting Common Stock, the "Common Stock"), and warrants to purchase an
aggregate of 12,356,931 shares, subject to certain anti-dilution adjustments
(the "Existing Warrant Shares") of Common Stock, with respect to which
registration rights are granted or modified hereunder; and
WHEREAS, the Company, MSV, Mobile Satellite Ventures Subsidiary LLC, and
the Securityholders are parties to the Master Contribution and Support Agreement
dated as of the date hereof (the "Master Agreement"); and
WHEREAS, the Company and Satellite Fund are parties to the Stock Purchase
Agreement dated as of the date hereof (the "Stock Purchase Agreement"), pursuant
to which the Company will sell to Satellite Fund shares of Voting Common Stock;
and
WHEREAS, the Company, Mobile Satellite Ventures LP, a Delaware limited
partnership ("MSV"), MSV Finance Co., a Delaware corporation ("MSV Finance"),
Master Fund and Special Situations Fund are parties to the Securities Purchase
Agreement dated as of the date hereof (the "Securities Purchase Agreement"),
pursuant to which the Company will sell to Master Fund and Special Situations
Fund up to an aggregate of $500 million aggregate principal amount of 16.0%
Senior Notes due 2013, and two warrants dated as of January 6, 2009 and April 1,
2009 (the "Warrants"), to purchase up to an aggregate of 25,000,000 shares,
subject to certain anti-dilution adjustments (the "Warrant Shares"), of
Non-Voting Common Stock or Voting Common Stock or any combination thereof; and
WHEREAS, pursuant to the terms of the Securities Purchase Agreement, Master
Fund and Special Situations Fund may exchange the Warrant Shares that are
Non-Voting Common Stock on a one-for-one basis for shares of Voting Common Stock
upon the satisfaction of certain conditions, as more fully set forth in the
Warrants; and
WHEREAS, in order to induce the Securityholders to enter into the Master
Agreement, the Satellite Fund to enter into the Stock Purchase Agreement, and
the Master Fund and the Special Situations Fund to enter into the Securities
Purchase Agreement, the Company desires to grant to the Securityholders certain
rights as provided herein;
NOW, THEREFORE, in consideration of the premises, mutual covenants and
agreements hereinafter contained and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I - DEFINITIONS
1.1 Definitions.
(a) For purposes of this Agreement, the following terms shall have the
meanings specified in this Section 1.1.
"Affiliate" means, with respect to any Person, any Person who, directly or
indirectly through one or more intermediaries, controls, is controlled by or is
under common control with any Person.
"Business Day" means a day other than a Saturday, Sunday or other day on
which commercial banks are authorized or required to close under the laws of the
United States or the State of New York.
"Common Stock Equivalents" means, without duplication, any rights,
warrants, options or other securities directly or indirectly convertible or
exchangeable into or exercisable for Common Stock, whether at the time of
issuance or upon the passage of time or the occurrence of any future event.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or
any similar federal statute, and the rules and regulations promulgated by the
SEC thereunder.
"Excluded Registration" means a registration under the Securities Act of
(i) securities pursuant to one or more Demand Registrations (including any
Underwritten Shelf Takedown) pursuant to Section 2.1 hereof, (ii) securities
registered on Form S-8 or any similar successor form, (iii) securities
registered on Form S-4 or any similar successor form, (iv) securities of the
Company registered to effect the acquisition of or combination with another
Person, and (v) securities of the Company registered to effect any rights
offering as contemplated by the Master Agreement.
"Holder" means (i) any Initial Holder or (ii) any Subsequent Holder.
"Initial Holder" means (i) a securityholder listed on the signature page
hereof and (ii) any transferee of any such securityholder or any other Initial
Holder, including any securityholder that receives shares of Common Stock upon a
distribution or liquidation of an Initial Holder, who has been assigned the
rights of the transferor Initial Holder under this Agreement in accordance with
Section 2.8; provided, however, that such direct or indirect transferee is an
Affiliate of a securityholder listed on the signature page hereof.
"January 2006 Rights Agreement" means the Registration Rights Agreement
among Xxxxxx Communications, Inc., Apollo Investment Fund IV, L.P., Apollo
Overseas Partners IV, L.P., AIF IV/RRRR LLC, AP/RM Acquisition LLC and ST/RRRR
LLC dated as of January 1, 2006.
"January 2008 Rights Agreement" means the Registration Rights Agreement
among the Company, Master Fund and Special Situations Fund dated as of January
7, 2008.
"Maximum Registrable Shares" means, as determined from time to time and
without duplication, the total number of Registrable Shares (including for this
purpose Registrable Shares that are issuable under warrants, escrow arrangements
and other rights to acquire Registrable Shares owned by the Securityholders)
that have been owned by the Securityholders from the date of this Agreement to
the date of determination.
"Person" or "person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization or government or other agency or political
subdivision thereof.
"register," "registered" and "registration" refer to a registration
effected by preparing and filing a registration statement with the SEC in
compliance with the Securities Act, and the effectiveness of such registration
statement thereunder.
"Registrable Shares" means (a) all shares of Common Stock issued to
Satellite Fund pursuant to the Stock Purchase Agreement; (b) all shares of
Common Stock issued to the Initial Holders pursuant to or contemplated by the
Master Agreement; (c) all Warrant Shares; (d) all Existing Warrant Shares; (e)
all shares of Common Stock owned by the Securityholders as of the date hereof;
(f) all shares of Common Stock, if any, issued to Master Fund and Special
Situations Fund upon conversion of the notes contemplated by Section 8.9(c) of
the Securities Purchase Agreement; (g) the 442,825 shares of Common Stock that
remain to be acquired by Master Fund and Special Situations Fund pursuant to the
Securities Purchase Agreement dated as of April 7, 2008, by and between Master
Fund, Special Situations Fund, Apollo Investment Fund IV, L.P., Apollo Overseas
Partners IV, L.P., AIF IV/RRRR LLC, AP/RM Acquisition LLC and ST/RRRR LLC; and
(h) any shares of Common Stock which may be issued or distributed by way of
stock split, recapitalization or reclassification in respect of shares of Common
Stock issued pursuant to clauses (a) through (g); provided, however, that
Registrable Shares shall not include any shares of Common Stock (i) the sale of
which has been registered pursuant to the Securities Act and which shares have
been sold or otherwise disposed of pursuant to such registration, (ii) that have
been sold pursuant to Rule 144 or Rule 145 (or any successor provision of either
of them) under the Securities Act, (iii) that have been otherwise transferred,
new certificates for such securities not bearing a legend restricting further
transfer have been delivered by the Company and subsequent disposition of such
securities would not require registration or qualification of such securities
under the Securities Act, (iv) that are no longer outstanding, or (v) in the
case of shares of Common Stock held by a Subsequent Holder, shares of Common
Stock that may be resold without volume limitation pursuant to Rule 144 under
the Securities Act.
"Required Holders" means Holders who then own beneficially more than a
majority of the aggregate number of Registrable Shares subject to this
Agreement.
"SEC" means the Securities and Exchange Commission or any other Federal
agency at the time administering the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar Federal statute, and the rules and regulations promulgated by the SEC
thereunder.
"Subsequent Holder" means any transferee of an Initial Holder who has been
assigned the rights of the transferor Initial Holder under this Agreement in
accordance with Section 2.8; provided, however, that such direct or indirect
transferee does not meet the requirements to be an Initial Holder.
"Subsidiary" means any entity with respect to which a specified Person (or
a Subsidiary thereof) owns or has the power to vote 50% or more of the equity
interests in such entity having general voting power to participate in the
election of the governing body of such entity.
(b) For purposes of this Agreement, the following terms have the meanings
set forth in the sections indicated:
Term Section
---- -------
Advice 2.5
Agreement Introductory Paragraph
Board 2.1(g)
Capital Fund Introductory Paragraph
Common Stock Recitals
Company Introductory Paragraph
Demand Registration 2.1(a)
Demand Request 2.1(a)
Existing Rights Agreement 2.2(c)
Existing Warrant Shares Recitals
FINRA 2.4(n)
Inspectors 2.4(j)
Losses 2.7(a)
Majority Requesting Holders 2.1(c)
Master Agreement Recitals
Master Fund Introductory Paragraph
Material Adverse Effect 2.1(e)
MSV Recitals
MSV Finance Co. Recitals
Non-Voting Common Stock Recitals
Non-Voting Registrable Shares Section 2.2(a)
Receipt Date Section 2.1(f)
Records 2.4(j)
Registration Expenses 2.6
Requesting Holders 2.1(a)
Required Filing Date 2.1(b)
Satellite Fund Introductory Paragraph
Securities Purchase Agreement Recitals
Securityholders Introductory Paragraph
Seller Affiliates 2.7(a)
Shelf Registration Statement 2.1(d)
Special Situations Fund Introductory Paragraph
Stock Purchase Agreement Recitals
Subsequent Rights Agreement 2.2(c)
Suspension Notice 2.5
Underwritten Shelf Takedown 2.1(d)
Voting Common Stock Recitals
Warrants Recitals
Warrant Shares Recitals
1.2 Other Definitional and Interpretive Matters. Unless otherwise expressly
provided or the context otherwise requires, for purposes of this Agreement the
following rules of interpretation apply.
(a) When calculating the period of time before which, within which or
following which any act is to be done or step taken pursuant to this Agreement,
the date that is the reference date in calculating such period is excluded. If
the last day of such period is a non-Business Day, the period in question ends
on the next succeeding Business Day.
(b) Any reference in this Agreement to $ means U.S. dollars.
(c) Any reference in this Agreement to gender includes all genders, and
words imparting the singular number also include the plural and vice versa.
(d) The provision of a Table of Contents, the division of this Agreement
into Articles, Sections and other subdivisions and the insertion of headings are
for convenience of reference only and do not affect, and should not be utilized
in, the construction or interpretation of this Agreement.
(e) All references in this Agreement to any "Article," "Section,"
"Schedule" or "Exhibit" are to the corresponding Article, Section, Schedule or
Exhibit of this Agreement.
(f) The words "herein," "hereinafter," "hereof," and "hereunder" refer to
this Agreement as a whole and not merely to a subdivision in which such words
appear unless the context otherwise requires.
(g) The word "including" or any variation thereof means "including, but not
limited to," and does not limit any general statement that it follows to the
specific or similar items or matters immediately following it.
ARTICLE II - REGISTRATION RIGHTS
2.1 Demand Registration.
(a) At any time and from time to time after the date of this Agreement, any
Holder or Holders of more than 25% of the Registrable Shares (the "Requesting
Holders," which term shall include parties deemed "Requesting Holders" pursuant
to Section 2.1(f) hereof) may request in writing (a "Demand Request") that the
Company effect the registration under the Securities Act of all or part of its
or their Registrable Shares (a "Demand Registration"); provided, that if all the
Requesting Holders are Subsequent Holders, such request must be to register
Registrable Shares resulting in anticipated gross proceeds of at least
$50,000,000. The Company will not be obligated to effect a Demand Registration
pursuant to a Demand Request made only by one or more Subsequent Holders more
than once in any six (6) month period, or within six (6) months after any
Underwritten Shelf Takedown or any Demand Request made by Requesting Holders
that include Initial Holders.
(b) Each Demand Request shall specify the number of Registrable Shares
proposed to be sold. Subject to Section 2.1(g), the Company shall use its
reasonable best efforts to file the Demand Registration as soon as reasonably
practicable, but not later than 60 days after receiving a Demand Request
(subject to the delay period referred to in Section 2.1(g), the "Required Filing
Date"), and shall use its reasonable best efforts to cause the same to be
declared effective by the SEC as soon as reasonably practicable after such
filing.
(c) The offering of Registrable Shares pursuant to a Demand Registration
may, at the option of the Holders of a majority of the Registrable Shares to be
registered in a Demand Registration (the "Majority Requesting Holders"), be in
the form of a "firm commitment" underwritten offering. The Company shall not be
obligated to effect more than an aggregate of 10 underwritten offerings
(including any Underwritten Shelf Takedowns pursuant to Section 2.1(d) hereof).
If such Majority Requesting Holders request a "firm commitment" underwritten
offering, the Majority Requesting Holders shall select the investment banking
firm or firms to manage such underwritten offering, provided that such selection
shall be subject to the consent of the Company, which consent shall not be
unreasonably withheld. No Person may participate in any underwritten
registration pursuant to Section 2.1(a) unless such Person (i) agrees to sell
such Person's Registrable Shares on the basis provided in any underwriting
arrangements described above, and (ii) such Person completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements.
(d) If the Company is then eligible to file a registration statement on
Form S-3 and if requested by the Majority Requesting Holders, any Demand
Registration may be made pursuant to a "shelf" registration statement filed
pursuant to Rule 415 under the Securities Act (a "Shelf Registration"). The
Holders of a majority of Registrable Shares included in any such Shelf
Registration may request an underwritten takedown of Registrable Shares off of
such Shelf Registration (an "Underwritten Shelf Takedown"), subject to the
limitation provided in Section 2.1(c), and shall select the investment banking
firm or firms to manage such Underwritten Shelf Takedown, provided that such
selection shall be subject to the consent of the Company, which consent shall
not be unreasonably withheld. In an effort to conduct any such Underwritten
Shelf Takedown in the most efficient and organized manner, each Holder included
in such Shelf Registration agrees to coordinate with the other Holders prior to
initiating any sales efforts and cooperate with the other Holders as to the
terms of such Underwritten Shelf Takedown, including, without limitation, the
aggregate amount of securities to be sold and the number of Registrable Shares
to be sold by each Holder. In furtherance of the foregoing, the Company shall
give prompt notice to all Holders whose Registrable Shares are included in the
Shelf Registration of the receipt of a request from another Holder whose
Registrable Shares are included in the Shelf Registration of a proposed
Underwritten Shelf Takedown under and pursuant to the Shelf Registration and,
notwithstanding anything to the contrary contained herein, will provide such
Holders a period of two (2) Business Days to participate in such Underwritten
Shelf Takedown. All such Holders electing to be included in an Underwritten
Shelf Takedown must sell their Registrable Shares to the underwriters selected
on the same terms and conditions as apply to any other selling Holders. The
Company will not be obligated to effect more than one Underwritten Shelf
Takedown requested by Majority Requesting Holders consisting only of Subsequent
Holders in any six month period or within six months after any Demand
Registration or Underwritten Shelf Takedown. Consummation of any Underwritten
Shelf Takedown is also subject to Section 2.1(g).
(e) The Company and the other holders of the Company's securities that have
piggyback rights pursuant to the agreements set forth on Schedule 2.1(d) (as in
effect on the date hereof) shall have the right to participate in and be
included in a Demand Registration (including any Underwritten Shelf Takedown),
unless, if such Demand Registration is an underwritten offering, the managing
underwriter or underwriters shall advise the Company or the Requesting Holders
in writing that the inclusion of all such securities requested to be included in
such Demand Registration will materially and adversely affect the price or
success of the offering (a "Material Adverse Effect"). If the inclusion of all
securities requested to be included therein will have a Material Adverse Effect,
then the Company shall include in such Demand Registration (including any
Underwritten Shelf Takedown) the maximum number of shares of Common Stock that
such managing underwriter advises can be so sold without having a Material
Adverse Effect, allocated (i) first, to Registrable Shares requested by Holders
to be included in such Demand Registration allocated among such requesting
Holders on a pro rata basis based on the number of shares of Common Stock owned
or in such other manner as the Holders may agree, and (ii) second, to shares of
Common Stock the Company proposes to sell and to other shares of Common Stock
requested to be included by the other holders of the Company's securities that
have piggyback rights pursuant to the agreements set forth on Schedule 2.1(d)
(as in effect on the date hereof) in such Demand Registration on a pro rata
basis based on the number of shares of Common Stock requested to be included or
in such other manner as the Company and such holders may agree.
(f) Upon receipt of any Demand Request (other than pursuant to Section
2.1(d)), the Company shall promptly (but in any event within 10 days) give
written notice of such proposed Demand Registration to all other Holders, who
shall have the right, exercisable by written notice to the Company within 10
days of their receipt of the Company's notice, to elect to include in such
Demand Registration such portion of their Registrable Shares as they may
request. All Holders requesting to have their Registrable Shares included in a
Demand Registration in accordance with the preceding sentence shall be deemed to
be "Requesting Holders" for purposes of this Section 2.1(f).
(g) The Company may defer the filing (but not the preparation) of a
registration statement required by Section 2.1(a) or any post-effective
amendment or prospectus for any Underwritten Shelf Takedown pursuant to Section
2.1(c) until a date not later than 90 days after the Required Filing Date (or,
if longer, 90 days after the effective date of the registration statement
contemplated by clause (ii) below) if (i) at the time the Company receives the
Demand Request or Underwritten Shelf Takedown, the Company or any of its
Subsidiaries are engaged in confidential negotiations or other confidential
business activities, disclosure of which would be required in such registration
statement (but would not be required if such registration statement were not
filed), and the Board of Directors of the Company determines in good faith that
such disclosure would be materially detrimental to the Company and its
stockholders, or the Board of Directors determines in good faith that such
postponement is necessary in order to avoid premature disclosure of a matter
that the Board has determined would not be in the best interest of the Company
to be disclosed at that time, or (ii) prior to receiving the Demand Request or
Underwritten Shelf Takedown, the Board of Directors had determined to effect a
registered underwritten public offering of the Company's securities for the
Company's account and the Company and is proceeding with reasonable diligence to
effect such offering, or (iii) if the Company cannot obtain, after using its
reasonable best efforts, financial information (or information used to prepare
such information) from any third party necessary for inclusion in such Demand
Registration (including any Underwritten Shelf Takedown). A deferral of the
filing of a registration statement pursuant to this Section 2.1(g) shall be
lifted, and the requested registration statement shall be filed forthwith, if,
in the case of a deferral pursuant to clause (i) of the preceding sentence, the
negotiations or other activities are disclosed or terminated, or, in the case of
a deferral pursuant to clause (ii) of the preceding sentence, the proposed
registration for the Company's account is abandoned. In order to defer the
filing of a registration statement pursuant to this Section 2.1(g), the Company
shall promptly (but in any event within ten days), upon determining to seek such
deferral, deliver to each Requesting Holder a certificate signed by an executive
officer of the Company stating that the Company is deferring such filing
pursuant to this Section 2.1(g). The Company may defer the filing of a
particular registration statement or prospectus pursuant to this Section 2.1(g)
only two times in any 12 month period; provided, however, that any second such
deferral in any 12 month period may not occur until at least 120 days after the
termination of the first such deferral period in any 12 month period.
2.2 Piggyback Registrations.
(a) Each time the Company proposes to register any of its equity securities
(other than pursuant to an Excluded Registration) under the Securities Act for
sale to the public (whether for the account of the Company or the account of any
securityholder of the Company) and the form of registration statement to be used
permits the registration of Registrable Shares, the Company shall give prompt
written notice to each Holder of Registrable Shares (which notice shall be given
not less than 15 Business Days prior to the initial filing date of the Company's
registration statement, or if such notice period is not practicable under the
circumstances, the Company shall use reasonable best efforts to provide the
maximum prior written notice as is reasonably practicable under the
circumstances), which notice shall offer each such Holder the opportunity to
include any or all of its or his Registrable Shares in such registration
statement, subject to the limitations contained in Section 2.2(b) and Section
2.2(c) hereof; provided, however, that if a Holder requests the inclusion of
Registrable Shares that are Non-Voting Common Stock ("Non-Voting Registrable
Shares") in any such registration of an underwritten offering, such Non-Voting
Registrable Shares will not be included in the registration in the event that
the managing underwriter advises the Company in its reasonable opinion that
inclusion of the Non-Voting Registrable Shares will have a Material Adverse
Effect on such offering. Each Holder who desires to have its or his Registrable
Shares included in such registration statement shall so advise the Company in
writing (stating the number of shares desired to be registered) within 10
Business Days after the date of such notice from the Company (or such shorter
period if the Company provides less than 15 Business Days notice as described in
the parenthetical above). Any Holder shall have the right to withdraw such
Holder's request for inclusion of such Holder's Registrable Shares in any
registration statement pursuant to this Section 2.2(a) by giving written notice
to the Company of such withdrawal prior to the effectiveness of such
registration statement. Subject to Section 2.2(b) and Section 2.2(c) below, the
Company shall include in such registration statement all such Registrable Shares
so requested to be included therein; provided, however, that the Company may at
any time withdraw or cease proceeding with any such registration if it shall at
the same time withdraw or cease proceeding with the registration of all other
equity securities originally proposed to be registered. The Holder's right to
participate in any piggyback registration shall be conditioned on the Holder
entering into an underwriting agreement in customary form and acting in
accordance with the terms and conditions thereof.
(b) Priority on Primary Registrations. If a piggyback registration is
initiated as an underwritten primary registration of Common Stock on behalf of
the Company, and the managing underwriter advises the Company in its reasonable
opinion that the number of shares of Common Stock requested to be included in
such registration exceeds the number that can be sold in such offering without
having a Material Adverse Effect on such offering, then the Company shall
include in such registration the maximum number of shares that such underwriter
advises can be so sold without having such Material Adverse Effect, allocated
(i) if the Initial Holders own 50% or more of the Maximum Registrable Shares,
(1) first, to the shares of Common Stock the Company proposes to sell, and (2)
second, to Registrable Shares requested to be included therein and any other
securities of the Company entitled to piggyback registration rights pursuant to
the agreements listed on Schedule 2.1(d) (as in effect on the date hereof)
requested to be included therein, on a pro rata basis based on the number of
shares of Common Stock owned or in such other manner as the holders of such
securities may agree, or (ii) if the Initial Holders own less than 50% of the
Maximum Registrable Shares, (1) first, to the shares of Common Stock the Company
proposes to sell, (2) second, to Registrable Shares requested to be included
therein and any other securities of the Company then entitled to piggyback
registration rights on a pro rata basis based on the number of shares of Common
Stock requested to be included or in such other manner as the holders of such
securities may agree, and (c) third, among other shares of Common Stock
requested to be included in such piggyback registration by securityholders of
the Company pro rata among such holders on a pro rata basis based on the number
of shares of Common Stock requested to be included or in such other manner as
the holders of such securities may agree.
(c) Priority on Secondary Registrations. If a piggyback registration is
initiated as an underwritten secondary registration of shares of Common Stock
(other than the Registrable Shares) owned by securityholders of the Company, and
the managing underwriter advises the Company in its reasonable opinion that the
number of shares of Common Stock requested to be included in such registration
exceeds the number that can be sold in such offering without having a Material
Adverse Effect on such offering, then the Company shall include in such
registration the maximum number of shares that such underwriter advises can be
so sold without having such Material Adverse Effect, allocated (i) if such
registration is initiated pursuant to demand registration rights contained in
one or more of the agreements listed on Schedule 2.1(d) (as in effect on the
date hereof) (each such agreement is referred to herein as an "Existing Rights
Agreement"), (1) first, to shares of Common Stock (other than the Registrable
Shares) requested to be included in such secondary registration by holder(s) of
Common Stock then entitled to such registration pursuant to such Existing Rights
Agreement, (2) second, to Registrable Shares requested by Holders to be included
in such piggyback registration allocated among such requesting Holders on a pro
rata basis based on the number of shares of Common Stock owned or in such other
manner as the Holders may agree, and (3) third, to shares of Common Stock the
Company proposes to sell and to other shares of Common Stock requested to be
included in such piggyback registration on a pro rata basis based on the number
of shares of Common Stock owned or in such other manner as the Company and such
holders may agree; provided, however, that if the Registrable Shares may be
allocated in such registration at a higher priority pursuant to the terms of the
applicable Existing Rights Agreement, then the Registrable Shares requested to
be included in such secondary registration by holder(s) of Common Stock then
entitled to such registration shall be allocated pursuant to the terms of such
Existing Rights Agreement, or (ii) if such registration is initiated pursuant to
demand registration rights granted after the date hereof (each such agreement is
referred to herein as a "Subsequent Rights Agreement"), (1) first, to shares of
Common Stock (including Registrable Shares) requested to be included in such
secondary registration by holder(s) of Common Stock then entitled to such
registration pursuant to agreements with the Company on a pro rata basis based
on the number of shares of Common Stock requested to be included or in such
other manner as the holders of such securities may agree, and (2) second, to
shares of Common Stock the Company proposes to sell and to other shares of
Common Stock requested to be included in such piggyback registration on a pro
rata basis based on the number of shares of Common Stock requested to be
included or in such other manner as the Company and such holders may agree;
provided, however, that if the Registrable Shares may be allocated in such
registration at a higher priority pursuant to the terms of the applicable
Subsequent Rights Agreement, then the Registrable Shares requested to be
included in such secondary registration by holder(s) of Common Stock then
entitled to such registration shall be allocated pursuant to the terms of such
Subsequent Rights Agreement.
2.3 Holdback Agreement. Unless the Company and the managing underwriter
otherwise agrees, each of the Company and the Holders agrees (and the Company
agrees, in connection with any underwritten registration or Underwritten Shelf
Takedown, to use its reasonable best efforts to cause its controlled Affiliates,
other than the Securityholders, to agree) not to effect any public sale or
private offer or distribution of any Common Stock or Common Stock Equivalents
during the 5 Business Days prior to the effectiveness under the Securities Act
of any underwritten registration or the filing of any prospectus supplement with
respect to an Underwritten Shelf Takedown, and during such time period after the
effectiveness under the Securities Act of any underwritten registration or the
date of filing the prospectus supplement in the course of a Underwritten Shelf
Takedown (not to exceed 90 days) (except, if applicable, as part of such
underwritten registration) as the Company and the managing underwriter may agree
in writing, and the Holders will deliver an undertaking to the managing
underwriters (if requested) consistent with this covenant. The foregoing shall
not apply to issuances by the Company pursuant to any benefit or similar plan or
pursuant to a registration statement on Form S-8, or any sales made pursuant to
a Rule 10b5-1 trading plan established prior to notice of the applicable
offering having been given under this Agreement. Neither the Company, its
controlled Affiliates, nor the Holders shall be obligated to enter into a
holdback agreement more than twice in any 12-month period.
2.4 Registration Procedures.
(a) Whenever any Holder has requested that any Registrable Shares be
registered pursuant to this Agreement, the Company will use its reasonable best
efforts to effect the registration and the sale of such Registrable Shares in
accordance with the intended method of disposition thereof, and pursuant thereto
the Company will as soon as reasonably practicable:
(1) prepare and file with the SEC a registration statement on any
appropriate form under the Securities Act with respect to such Registrable
Shares and use its reasonable best efforts to cause such registration
statement to become effective;
(2) prepare and file with the SEC such amendments, post-effective
amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be reasonably necessary to
keep such registration statement effective for a period of not less than
180 days (or such lesser period as is necessary for the underwriters in an
underwritten offering to sell unsold allotments); and comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the sellers thereof
set forth in such registration statement;
(3) furnish to each Holder of Registrable Shares named in such
registration statement and the underwriters of the securities being
registered a reasonable number of copies of such registration statement,
each amendment and supplement thereto, the prospectus included in such
registration statement (including each preliminary prospectus), any
documents incorporated by reference therein (unless otherwise available on
the SEC's Xxxxx system) and such other documents as such seller or
underwriters may reasonably request in order to facilitate the disposition
of the Registrable Shares owned by such seller or the sale of such
securities by such underwriters (it being understood that, subject to
Section 2.5 and the requirements of the Securities Act and applicable state
securities laws, the Company consents to the use of the prospectus and any
amendment or supplement thereto by each seller and the underwriters in
connection with the offering and sale of the Registrable Shares covered by
the registration statement of which such prospectus, amendment or
supplement is a part); provided, however, that the Company shall have no
obligation to furnish copies of a final prospectus if the conditions of
Rule 172(c) under the Securities Act are satisfied;
(4) use its reasonable best efforts to register or qualify the
Registrable Shares under the other securities or blue sky laws of the
jurisdictions as the managing underwriter reasonably requests (or, in the
event the registration statement does not relate to an underwritten
offering, as the holders of a majority of the Registrable Shares may
reasonably request); use its reasonable best efforts to keep each such
registration or qualification (or exemption therefrom) effective during the
period in which the registration statement is required to be kept
effective; and do any and all other acts and things which may be reasonably
necessary or advisable to enable each seller to consummate the disposition
of the Registrable Shares owned by such seller in such jurisdictions
(provided, however, that the Company will not be required to (i) qualify
generally to do business in any jurisdiction where it would not otherwise
be required to qualify but for this subparagraph, (ii) consent to general
service of process in any such jurisdiction, or (iii) subject itself to
taxation in any such jurisdiction);
(5) promptly notify each Holder of Registrable Shares named in such
registration statement and the managing underwriter and, if requested by
any such Person, 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 effective, (ii) of the issuance by any state
securities or other regulatory authority of any order suspending the
qualification or exemption from qualification of any of the Registrable
Shares under state securities or "blue sky" laws or the initiation of any
proceedings for that purpose and (iii) of the happening of any event which
makes any statement made in such registration statement or related
prospectus untrue or which requires the making of any changes in such
registration statement, prospectus or documents so that they 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 (in light of the circumstances under
which they were made), and, as soon as reasonably practicable thereafter,
prepare and file with the SEC and furnish a supplement or amendment to such
prospectus so that, as thereafter deliverable to the purchasers of such
Registrable Shares, such prospectus will not contain any untrue statement
of a material fact or omit a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading;
(6) upon request, make generally available to the Company's
securityholders an earnings statement (which need not be audited)
satisfying the provisions of Section 11(a) of the Securities Act as soon as
reasonably practicable after the end of the 12 month period beginning with
the first day of the Company's first fiscal quarter commencing after the
effective date of a registration statement, which earnings statement shall
cover said 12 month period, and which requirement will be deemed to be
satisfied if the Company timely files complete and accurate information on
Forms 10-Q, 10-K or 8-K under the Exchange Act and otherwise complies with
Rule 158 under the Securities Act;
(7) if requested by the managing underwriter or any Holder of
Registrable Shares named in such registration statement, promptly
incorporate in a prospectus supplement or post-effective amendment such
information as the managing underwriter or any Holder reasonably requests
to be included therein, including, without limitation, with respect to the
Registrable Shares being sold by such Holder, the purchase price being paid
therefor by the underwriters and with respect to any other terms of the
underwritten offering of the Registrable Shares to be sold in such
offering, and promptly make all required filings of such prospectus
supplement or post-effective amendment, it being agreed that the Company
will not be deemed to have breached this Agreement for any period that the
registration statement is not effective following the filing of any post
effective amendment at the request of the managing underwriter or any
Holder;
(8) cooperate with the sellers and the managing underwriter to
facilitate the timely preparation and delivery of certificates (which shall
not bear any restrictive legends unless required under applicable law),
which may be registered in global form, representing securities sold under
any registration statement, and enable such securities to be in such
denominations and registered in such names as the managing underwriter or
such sellers may request;
(9) make available for inspection by the Holders of Registrable Shares
named in a registration statement, any underwriter participating in any
disposition pursuant to any registration statement of such Registrable
Shares, and any attorney, accountant or other agent retained by any such
Holder or underwriter (collectively, the "Inspectors"), at reasonable times
and in a reasonable manner, all pertinent financial and other records,
corporate documents and properties of the Company (collectively, the
"Records"), and cause the Company's officers, directors and employees to
supply all information reasonably requested by any such Inspector to
conduct a reasonable investigation within the meaning of Section 11 of the
Securities Act in connection with such registration statement; provided,
that the foregoing investigation and information gathering shall be
coordinated on behalf of such parties by up to two firms of counsel (one
being for the Holders and one being for the underwriters) designated by and
on behalf of such parties; and provided, unless the disclosure of such
Records is necessary to avoid or correct a misstatement or omission in the
registration statement or the release of such Records is ordered pursuant
to a subpoena or other order from a court of competent jurisdiction, the
Company shall not be required to provide any information under this
subparagraph (9) if (i) the Company believes, after consultation with
counsel for the Company, that to do so would cause the Company to forfeit
an attorney-client privilege that was applicable to such information or
(ii) if either (A) the Company has requested and been granted from the SEC
confidential treatment of such information contained in any filing with the
SEC or documents provided supplementally or otherwise or (B) the Company
reasonably determines in good faith that such Records are confidential and
so notifies the Inspectors in writing unless prior to furnishing any such
information with respect to (i) or (ii) such Holder of Registrable Shares
requesting such information agrees to enter into a confidentiality
agreement in customary form and subject to customary exceptions; and
provided, further, that each Holder of Registrable Shares agrees that it
will, upon learning that disclosure of any Records is sought in a court of
competent jurisdiction, give notice to the Company and allow the Company,
at its expense, to undertake appropriate action and to prevent disclosure
of the Records deemed confidential;
(10) furnish to the managing underwriter (i) an opinion or opinions of
counsel to the Company and (ii) a comfort letter or comfort letters from
the Company's independent public accountants, each in customary form and
covering such matters of the type customarily covered by opinions or
comfort letters, as the case may be, as the managing underwriter reasonably
requests;
(11) cause the Registrable Shares included in any registration
statement to be listed on each securities exchange, if any, on which
similar securities issued by the Company are then listed;
(12) provide a transfer agent and registrar for all Registrable Shares
registered hereunder and provide a CUSIP number for the Registrable Shares
included in any registration statement not later than the effective date of
such registration statement;
(13) reasonably cooperate with each seller and each underwriter
participating in the disposition of such Registrable Shares and their
respective counsel in connection with any filings required to be made with
the Financial Industry Regulatory Authority ("FINRA");
(14) notify each Holder of Registrable Shares named in a registration
statement promptly of any request by the SEC for the amending or
supplementing of such registration statement or prospectus or for
additional information;
(15) prepare and file with the SEC any amendments or supplements to
such registration statement or prospectus which, in the opinion of counsel
for the Company or the managing underwriter, is reasonably required in
connection with the distribution of the Registrable Shares;
(16) enter into such agreements (including underwriting agreements in
the managing underwriter's customary form) as are reasonable and customary
in connection with an underwritten registration permitted to be made
herein; and
(17) advise each Holder of such Registrable Shares named in a
registration statement, promptly after it shall receive notice or obtain
knowledge thereof, of the issuance of any stop order by the SEC suspending
the effectiveness of such registration statement or the initiation or
threatening of any proceeding for such purpose and promptly use its
reasonable best efforts to prevent the issuance of any stop order or to
obtain its withdrawal at the earliest possible moment if such stop order
should be issued.
(b) Upon request of the Company, each Holder shall furnish the Company as
soon as reasonably practicable with any information regarding such Holder and
the disposition of the Registrable Shares, including without limitation the plan
of distribution of the Registrable Shares, as the Company reasonably determines
is required to be included in a registration statement.
2.5 Suspension of Dispositions. Each Holder agrees by acquisition of any
Registrable Shares that, upon receipt of any notice (a "Suspension Notice") from
the Company of the happening of any event of the kind described in Section
2.4(a)(5)(iii) such Holder will forthwith discontinue disposition of Registrable
Shares until such Holder's receipt of the copies of the supplemented or amended
prospectus, or until it is advised in writing (the "Advice") by the Company that
the use of the prospectus may be resumed, and has received copies of any
additional or supplemental filings which are incorporated by reference in the
prospectus (the "Suspension Period"), and, if so directed by the Company, such
Holder will deliver to the Company all copies, other than permanent file copies
then in such Holder's possession, of the prospectus covering such Registrable
Shares current at the time of receipt of such notice. In the event the Company
shall give any such notice, the time period regarding the effectiveness of
registration statements set forth in Section 2.4(b) hereof shall be extended by
the number of days during the period from and including the date of the giving
of the Suspension Notice to and including the date when each seller of
Registrable Shares covered by such registration statement shall have received
the copies of the supplemented or amended prospectus or the Advice. The Company
shall use its reasonable best efforts and take such actions as are reasonably
necessary to render the Advice as promptly as practicable. Each Holder agrees,
other than as required by applicable law, to keep confidential the existence of
any Suspension Notice and, if disclosed to the Holders, the facts and
circumstances giving rise thereto.
2.6 Registration Expenses. All expenses incident to the Company's
performance of or compliance with this Article II including, without limitation,
all registration and filing fees, all fees and expenses associated with filings
required to be made with FINRA (including, if applicable, the fees and expenses
of any "qualified independent underwriter" as such term is defined in Rule 2720
of the National Association of Securities Dealers, Inc. Manual), as may be
required by the rules and regulations of FINRA, fees and expenses of compliance
with securities or "blue sky" laws (including reasonable fees and disbursements
of one counsel in connection with "blue sky" qualifications of the Registrable
Shares), printing expenses (including expenses of printing certificates for the
Registrable Shares in a form eligible for deposit with Depository Trust Company
and of printing prospectuses if the printing of prospectuses is requested by the
managing underwriter in an underwritten offering that includes any Registrable
Shares), messenger and delivery expenses of the Company, the Company's internal
expenses (including without limitation all salaries and expenses of its officers
and employees performing legal or accounting duties), the fees and expenses
incurred in connection with any listing of the Registrable Shares, fees and
expenses of counsel for the Company and its independent certified public
accountants (including the expenses of any special audit or "cold comfort"
letters required by or incident to such performance), securities acts liability
insurance (if the Company elects to obtain such insurance), the fees and
expenses of any special experts retained by the Company in connection with such
registration, and the fees and expenses of other persons retained by the Company
and reasonable fees and expenses of one firm of counsel for the sellers (which
shall be selected by the holders of a majority of the Registrable Shares being
included in any particular registration statement) (all such expenses being
herein called "Registration Expenses") will be borne by the Company whether or
not any registration statement becomes effective; provided, however, that in no
event shall Registration Expenses include any underwriting discounts,
commissions, fees or expenses attributable to the sale of the Registrable Shares
or any accountants or other persons (other than the counsel whose expenses are
to be paid by the Company as set forth herein) retained or employed by the
Holders, which shall be borne solely by the Holders.
2.7 Indemnification.
(a) The Company agrees to indemnify and reimburse, to the fullest extent
permitted by law, each seller of Registrable Shares, and each of its employees,
advisors, agents, representatives, partners, officers, and directors and each
Person who controls such seller (within the meaning of the Securities Act or the
Exchange Act) and any agent or investment advisor thereof (collectively, the
"Seller Affiliates") (i) against any and all losses, claims, damages,
liabilities and reasonable expenses, joint or several (including, without
limitation, attorneys' fees and disbursements except as limited by Section
2.7(c)) based upon, arising out of, related to or resulting from any untrue or
alleged untrue statement of a material fact contained in any registration
statement, prospectus preliminary prospectus, free writing prospectus or any
amendment thereof or supplement thereto for the offering of Registrable Shares,
or any omission or alleged omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading (in the case
of any prospectus, in light of the circumstances under which they were made),
(ii) against any and all losses, liabilities, claims, damages and expenses
whatsoever (including, without limitation, attorneys' fees and disbursements
except as limited by Section 2.7(c)), as incurred, to the extent of the
aggregate amount paid in settlement of any litigation or investigation or
proceeding by any governmental agency or body, commenced or threatened, or of
any claim whatsoever based upon, arising out of, related to or resulting from
any such untrue statement or omission or alleged untrue statement or omission,
and (iii) against any and all costs and expenses (including, without limitation,
attorneys' fees and disbursements except as limited by Section 2.7(c)) as may be
reasonably incurred in investigating, preparing or defending against any
litigation, investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon, arising out of,
related to or resulting from any such untrue statement or omission or alleged
untrue statement or omission, or such violation of the Securities Act or
Exchange Act, to the extent that any such expense or cost is not paid under
subparagraph (i) or (ii) above (collectively, "Losses"); except insofar as any
(x) such statements are made in reliance upon and in conformity with information
furnished in writing to the Company by such seller or any Seller Affiliate for
use therein or arise from such seller's or any Seller Affiliate's failure to
deliver a copy of the registration statement or prospectus or any amendments or
supplements thereto after the Company has furnished such seller or Seller
Affiliate with a sufficient number of copies of the same, or (y) such Losses
arise from the use by and such seller or Seller Affiliate of any prospectus for
Registrable Shares during any Suspension Period. The reimbursements required by
this Section 2.7(a) will be made by periodic payments during the course of the
investigation or defense, as and when bills are received or expenses incurred.
(b) In connection with any registration statement in which a seller of
Registrable Shares is participating, each such seller will furnish to the
Company in writing such information and affidavits as the Company reasonably
requests for use in connection with any such registration statement or
prospectus and, to the fullest extent permitted by law, each such seller will
indemnify the Company and its employees, advisors, agents, representatives,
partners, officers, and directors and each Person who controls the Company
(within the meaning of the Securities Act or the Exchange Act) (i) against any
and all losses, claims, damages, liabilities and reasonable expenses (including,
without limitation, reasonable attorneys' fees and disbursements except as
limited by Section 2.7(c)) based upon, arising out of, related to or resulting
from any untrue statement or alleged untrue statement of a material fact
contained in the registration statement, prospectus, preliminary prospectus,
free writing prospectus or any amendment thereof or supplement thereto for the
offering of Registrable Shares or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading (in the case of any prospectus, in light of the circumstances
under which they were made), but only to the extent that such untrue statement
or alleged untrue statement or omission or alleged omission is contained in any
information or affidavit so furnished in writing by such seller or any of its
Seller Affiliates specifically for inclusion in the registration statement, (ii)
against any and all losses, liabilities, claims, damages and expenses whatsoever
(including, without limitation, attorneys' fees and disbursements except as
limited by Section 2.7(c)), as incurred, to the extent of the aggregate amount
paid in settlement of any litigation or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim whatsoever
based upon, arising out of, related to or resulting from any such untrue
statement or omission or alleged untrue statement or omission, and (iii) against
any and all costs and expenses (including, without limitation, attorneys' fees
and disbursements except as limited by Section 2.7(c)) as may be reasonably
incurred in investigating, preparing or defending against any litigation,
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon, arising out of, related to or
resulting from any such untrue statement or omission or alleged untrue statement
or omission, or such violation of the Securities Act or Exchange Act, to the
extent that any such expense or cost is not paid under subparagraph (i) or (ii)
above; provided that the obligation to indemnify will be several, not joint and
several, among such sellers of Registrable Shares, and the liability of each
such seller of Registrable Shares will be in proportion to the net amount
received by such seller from the sale of Registrable Shares pursuant to such
registration statement as compared to the total net amount received by all such
sellers of Registrable Shares who are liable for indemnification payments or
reimbursements hereunder in connection with such registration statement, and,
provided, further, that such liability will be limited to, the net amount
received by such seller from the sale of Registrable Shares pursuant to such
registration statement; provided, however, that such seller of Registrable
Shares shall not be liable in any such case to the extent that prior to the
filing of any such registration statement or prospectus or amendment thereof or
supplement thereto, such seller has furnished in writing to the Company
information expressly for use in such registration statement or prospectus or
any amendment thereof or supplement thereto which corrected or made not
misleading information previously furnished to the Company.
(c) Any Person entitled to indemnification hereunder will (i) give prompt
written notice to the indemnifying party of any claim with respect to which it
seeks indemnification (provided that the failure to give such notice shall not
limit the rights of such Person) and (ii) unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party; provided, however, that any person
entitled to indemnification hereunder shall have the right to employ separate
counsel and to participate in the defense of such claim, but the fees and
expenses of such counsel shall be at the expense of such person unless (A) the
indemnifying party has agreed to pay such fees or expenses or (B) the
indemnifying party shall have failed to assume the defense of such claim and
employ counsel reasonably satisfactory to such person. If such defense is not
assumed by the indemnifying party as permitted hereunder, the indemnifying party
will not be subject to any liability for any settlement made by the indemnified
party without its consent (but such consent will not be unreasonably withheld).
If such defense is assumed by the indemnifying party pursuant to the provisions
hereof, such indemnifying party shall not settle or otherwise compromise the
applicable claim unless (i) such settlement or compromise contains a full and
unconditional release of the indemnified party or (ii) the indemnified party
otherwise consents in writing. An indemnifying party who is not entitled to, or
elects not to, assume the defense of a claim will not be obligated to 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
reasonable fees and disbursements of such additional counsel or counsels.
(d) Each party hereto agrees that, if for any reason the indemnification
provisions contemplated by Section 2.7(a) or Section 2.7(b) are unavailable to
or insufficient to hold harmless an indemnified party in respect of any losses,
claims, damages, liabilities or expenses (or actions in respect thereof)
referred to therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
liabilities or expenses (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative fault of the indemnifying party and the
indemnified party in connection with the actions which resulted in the losses,
claims, damages, liabilities or expenses as well as any other relevant equitable
considerations. The relative fault of such indemnifying party and indemnified
party shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by such
indemnifying party or indemnified party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 2.7(d) were determined by pro
rata allocation (even if the Holders or any underwriters or all of them were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to in this
Section 2.7(d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages, liabilities or expenses (or actions in respect
thereof) referred to above shall be deemed to include any legal or other fees or
expenses reasonably incurred by such indemnified party in connection with
investigating or, except as provided in Section 2.7(c), defending any such
action or claim. Notwithstanding the provisions of this Section 2.7(d), no
Holder shall be required to contribute an amount greater than the dollar amount
by which the net proceeds received by such Holder with respect to the sale of
any Registrable Shares exceeds the amount of damages which such Holder has
otherwise been required to pay by reason of any and all untrue or alleged untrue
statements of material fact or omissions or alleged omissions of material fact
made in any registration statement, prospectus or preliminary prospectus or any
amendment thereof or supplement thereto related to such sale of Registrable
Shares. 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. The Holders'
obligations in this Section 2.7(d) to contribute shall be several in proportion
to the amount of Registrable Shares registered by them and not joint.
If indemnification is available under Section 2.7(a) or Section 2.7(b), the
indemnifying parties shall indemnify each indemnified party to the full extent
provided in Section 2.7(a) and Section 2.7(b) without regard to the relative
fault of said indemnifying party or indemnified party or any other equitable
consideration provided for in this Section 2.7(d) subject, in the case of the
Holders, to the limited dollar amounts set forth in Section 2.7(b).
(e) The indemnification and contribution provided for under this Agreement
will remain in full force and effect regardless of any investigation made by or
on behalf of the indemnified party or any officer, director or controlling
Person of such indemnified party and will survive the transfer of securities.
2.8 Transfer of Registration Rights. A Holder may transfer or assign the
rights of such Holder under this Agreement to a transferee or assignee upon a
transfer or assignment by such Holder of at least 100,000 of such Holder's
Registrable Shares (as adjusted for stock splits, stock dividends,
recapitalizations and the like); provided, however, that the Company is given:
(a) written notice by such Holder at or within a reasonable time after said
transfer, stating the name and address of such transferee or assignee, whether
such transferee or assignee qualifies as an Initial Holder or Subsequent Holder,
and identifying the Registrable Shares with respect to which such registration
rights are being transferred or assigned; and (b) a joinder agreement executed
by such transferee or assignee pursuant to which such transferee or assignee
agrees to be bound by the terms of this Agreement. Notwithstanding the
foregoing, a Holder may transfer or assign the rights of such Holder under this
Agreement to a transferee or assignee upon a transfer or assignment by such
Holder of less than 100,000 of such Holder's Registrable Shares (as adjusted for
stock splits, stock dividends, recapitalizations and the like) if such
transferee or assignee is (i) an Affiliate, partner or retired partner of any
Holder or (ii) any family member or trust for the benefit of any individual
Holder. Nothing in this Section 2.8 shall affect any restrictions on transfer
contained in any other contract between the Company and any Holder.
2.9 Current Public Information. With a view to making available to the
Holders the benefits of certain rules and regulations of the SEC that may at any
time permit the sale of securities to the public without registration, the
Company agrees to use its reasonable best efforts to:
(a) make and keep available Current Public Information, as such term is
defined in Rule 144 under the Securities Act, at all times;
(b) file with the SEC in a timely manner all reports and other documents
required of the Company under the Securities Act and the Exchange Act; and
(c) furnish to any Holder, so long as such Holder owns any Registrable
Shares, upon request by such Holder, (i) a written statement by the Company that
it has complied with the reporting requirements of Rule 144, and of the
Securities Act and the Exchange Act, and (ii) a copy of the most recent annual
or quarterly report of the Company (if such reports are not otherwise available
on the SEC's website).
ARTICLE III - OTHER AGREEMENTS
3.1 Waiver of January 2006 Rights Agreement . The Securityholders represent
and warrant that they and their Affiliates hold at least the majority of the
"Registrable Securities" outstanding under the January 2006 Rights Agreement. In
consideration for the Company entering into this Agreement, the Securityholders
hereby agree to waive indefinitely any and all rights to which they otherwise
would be entitled under the January 2006 Rights Agreement pursuant to Section 13
thereof, and to take any actions required to be taken by them under the January
2006 Rights Agreement (including delivery of a written agreement to such effect)
in order to effectuate such waiver, and the January 2006 Rights Agreement will
thereupon be terminated in accordance with Section 13.2 thereof.
3.2 Waiver of January 2008 Rights Agreement . The Securityholders represent
and warrant that they and their Affiliates hold at least the majority of the
"Registrable Securities" outstanding under the January 2008 Rights Agreement. In
consideration for the Company entering into this Agreement, the Securityholders
hereby agree to waive indefinitely any and all rights to which they otherwise
would be entitled under the January 2008 Rights Agreement pursuant to Section
7.2 thereof, and to take any actions required to be taken by them under the
January 2008 Rights Agreement (including delivery of a written agreement to such
effect) in order to effectuate such waiver, and the January 2008 Rights
Agreement will thereupon be terminated.
ARTICLE IV - TERMINATION
4.1 Termination. Except with respect to the parties' obligations under
Section 2.7, this Agreement shall terminate upon the earliest to occur of (i)
such time as there are no Registrable Shares hereunder, and (ii) ten (10) years
from the date hereof.
ARTICLE V - MISCELLANEOUS
5.1 Notices. Any notices or other communications required or permitted
hereunder shall be in writing, and shall be sufficiently given if made by hand
delivery, by telex, by telecopier or registered or certified mail, postage
prepaid, return receipt requested, addressed as follows (or at such other
address as may be substituted by notice given as herein provided):
If to the Company:
SkyTerra Communications, Inc.
00000 Xxxxxxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: General Counsel
With a copy to (which shall not constitute notice):
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxxx
If to any Securityholder:
c/o Harbinger Capital Partners Funds
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx
With copies to (which shall not constitute notice):
Xxxxxxx Management Corporation
Xxx Xxxxxxxxxx Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Attention: General Counsel
and
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Xx.
Any notice or communication hereunder shall be deemed to have been given or
made as of the date so delivered if personally delivered; when answered back, if
telexed; when receipt is acknowledged, if telecopied; and five calendar days
after mailing if sent by registered or certified mail (except that a notice of
change of address shall not be deemed to have been given until actually received
by the addressee). Failure to transmit a notice or communication to a Holder or
any defect in it shall not affect its sufficiency with respect to other Holders.
If a notice or communication is given or made in the manner provided above, it
is duly given, whether or not the addressee receives it.
5.2 Governing Law. THIS AGREEMENT, THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AGREEMENT, AND ANY CLAIM OR CONTROVERSY DIRECTLY OR
INDIRECTLY BASED UPON OR ARISING OUT OF THIS AGREEMENT (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY), INCLUDING ALL MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE, SHALL IN ALL RESPECTS BE GOVERNED BY AND INTERPRETED,
CONSTRUED AND DETERMINED EXCLUSIVELY IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW (OTHER THAN SECTIONS
5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW) THAT WOULD REQUIRE
THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION.
5.3 Jurisdiction. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY
CONSENTS TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE STATE OR FEDERAL COURTS
LOCATED IN THE BOROUGH OF MANHATTAN NEW YORK, NEW YORK, AND ANY APPELLATE COURT
THEREFROM, FOR THE RESOLUTION OF ANY AND ALL DISPUTES, CONTROVERSIES, CONFLICTS,
LITIGATION OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE
SUBJECT MATTER HEREOF, AGREES NOT TO COMMENCE ANY LITIGATION OR ACTIONS ARISING
OUT OF OR RELATING TO THIS AGREEMENT AND THE SUBJECT MATTER HEREOF IN ANY OTHER
COURT, AND WAIVES ANY RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY LITIGATION OR
ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE SUBJECT MATTER
HEREOF.
5.4 Successors and Assigns. Except as otherwise expressly provided herein,
this Agreement shall be binding upon and benefit the Company, each Holder and
their respective successors and assigns.
5.5 Duplicate Originals. All parties may sign any number of copies of this
Agreement. Each signed copy shall be an original, but all of them together shall
represent the same agreement.
5.6 Severability. In case any provision in this Agreement shall be 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 the
remaining provisions shall not in any way be affected or impaired thereby.
5.7 No Waivers; Amendments.
(a) No failure or delay on the part of the Company or any Holder in
exercising any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. The remedies provided for herein are cumulative
and are not exclusive of any remedies that may be available to the Company or
any Holder at law or in equity or otherwise.
(b) Any provision of this Agreement may be amended or waived if, but only
if, such amendment or waiver is in writing and is signed by the Company and the
Required Holders.
5.8 Negotiated Agreement. This Agreement was negotiated by the parties with
the benefit of legal representation, and any rule of construction or
interpretation otherwise requiring this Agreement to be construed or interpreted
against any party shall not apply to the construction or interpretation hereof.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized signatories as of the date first
written above.
SKYTERRA COMMUNICATIONS, INC.
By: /s/ Xxxxxxxxx X. Good
-------------------------------
Name: Xxxxxxxxx X. Good
Title: Chairman, Chief Executive Officer
and President
HARBINGER CAPITAL PARTNERS MASTER FUND I, LTD.
By: Harbinger Capital Partners Offshore
Manager, LLC, as investment manager
By: /s/ Xxxxxxx X. Xxxxx, Xx.
-----------------------------------------
Name: Xxxxxxx X. Xxxxx, Xx.
Title: Executive Vice President
HARBINGER CAPITAL PARTNERS SPECIAL SITUATIONS
FUND, L.P.
By: Harbinger Capital Partners Special
Situations GP, LLC, as general partner
By: /s/ Xxxxxxx X. Xxxxx, Xx.
-------------------------------------------
Name: Xxxxxxx X. Xxxxx, Xx.
Title: Executive Vice President
HARBINGER CAPITAL PARTNERS FUND I, L.P.
By: Harbinger Capital Partners GP, LLC,
as general partner
By: /s/ Xxxxxxx X. Xxxxx, Xx.
-------------------------------------------
Name: Xxxxxxx X. Xxxxx, Xx.
Title: Executive Vice President
HARBINGER CO-INVESTMENT FUND, L.P.
By: Harbinger Co-Investment GP, LLC, as
general partner
By: HMC-New York, Inc., as managing member
By: /s/ Xxxxxxx X. Xxxxx, Xx.
-------------------------------------------
Name: Xxxxxxx X. Xxxxx, Xx.
Title: Executive Vice President
REGISTRATION RIGHTS AGREEMENT
SKYTERRA COMMUNICATIONS, INC.
Dated as of July 24, 2008
TABLE OF CONTENTS
Page
ARTICLE I - DEFINITIONS..............................................2
1.1 Definitions..................................................2
1.2 Other Definitional and Interpretive Matters..................5
ARTICLE II - REGISTRATION RIGHTS......................................6
2.1 Demand Registration..........................................6
2.2 Piggyback Registrations......................................8
2.3 Holdback Agreement..........................................10
2.4 Registration Procedures.....................................11
2.5 Suspension of Dispositions..................................14
2.6 Registration Expenses.......................................15
2.7 Indemnification.............................................15
2.8 Transfer of Registration Rights.............................19
2.9 Current Public Information..................................19
ARTICLE III - OTHER AGREEMENTS........................................19
3.1 Waiver of January 2006 Rights Agreement.....................19
3.2 Waiver of January 2008 Rights Agreement.....................20
ARTICLE IV - TERMINATION.............................................20
4.1 Termination.................................................20
ARTICLE V - MISCELLANEOUS...........................................20
5.1 Notices.....................................................20
5.2 Governing Law...............................................21
5.3 Jurisdiction................................................21
5.4 Successors and Assigns......................................22
5.5 Duplicate Originals.........................................22
5.6 Severability................................................22
5.7 No Waivers; Amendments......................................22
5.8 Negotiated Agreement........................................22
