EXHIBIT 10.9
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (the
"Agreement"), dated as of February 8, 2001 (the "Effective Date"), is entered
into by and among EarthLink, Inc., a Delaware corporation, (the "Company"),
Sprint Corporation, a Kansas corporation ("Sprint") and Sprint Communications
Company L.P., a Delaware limited partnership ("Sprint L.P.").
WHEREAS, the Company (as successor in interest to Dolphin, Inc.),
Sprint and Sprint L.P. are parties to a Registration Rights Agreement dated
February 10, 1998 (the "Registration Rights Agreement");
WHEREAS, the Company, Sprint and Sprint L.P. (for the purposes of
this Agreement, Sprint and Sprint L.P. shall hereafter be collectively
referred to as "Sprint") desire to amend and restate the Registration Rights
Agreement, as set forth herein;
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained in this Agreement and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree that the Registration Rights
Agreement shall be superseded and replaced in its entirety by this Agreement
as set forth herein, and further agree as follows:
ARTICLE 1.
DEFINITIONS AND CONSTRUCTION
Section 1.1. CERTAIN DEFINITIONS. As used in this Agreement, the
following terms shall have the meanings specified below:
"AFFILIATE" means, with respect to any Person, any other Person
controlling, controlled by, or under common control with such Person. For
purposes of this Agreement, the term "control" (including, with correlative
meanings, the terms "controlled by" and "under common control with" as used
with respect to any Person) means the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies of
such Person through ownership of securities.
"ANCILLARY AGREEMENT" shall mean any and all of the following
documents to which Sprint and EarthLink are a party: (i) the Governance
Agreement, (ii) the Certificates of Designation (as defined in the Governance
Agreement), (iii) the Master Services Agreement (as defined in the Governance
Agreement), (iv) the Termination Mutual Release and Waiver Agreement (as
defined in the Governance Agreement), (v) the Network Services Agreement,
dated February 10, 1998 and as amended, by and among the Company and Sprint,
and (vi) the Sprint Custom Network Services Arrangement, dated May 11, 2000
and as amended, by and
between the Company and Sprint.
"CHANGE OF ENTITY TRANSACTION" means a transaction or series of
related transactions with a third party, other than an Affiliate of Sprint or
Sprint L.P., or third parties, other than Affiliates of Sprint or Sprint
L.P., who are acting as a group (as defined in Rule 13d-5 of the Exchange
Act), undertaken in any form whatsoever, involving a merger, consolidation,
combination, share exchange, reorganization or other extraordinary
transaction with respect to the Company, in which the Common Stock is
converted into or exchanged for securities of a third party (the "Successor
Entity").
"COMMON STOCK" shall mean (i) the common stock, par value $.01 per
share, of the Company and (ii) any other class of common equity of the
Company into which the shares defined in (i) may hereafter have been changed
or reclassified.
"CONVERTIBLE PREFERRED STOCK" means shares of Series A Convertible
Preferred Stock, par value $.01 per share, and Series B Convertible Preferred
Stock, par value $.01 per share, of the Company.
"EFFECTIVE DATE" shall have the meaning ascribed to that term in the
introductory paragraph of this Agreement.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder as in effect at
the time.
"GOVERNANCE AGREEMENT" means the Amended and Restated Governance
Agreement, dated as of February 8, 2001, by and between Sprint, Sprint L.P.,
the Company and the Company's wholly owned subsidiary EarthLink Operations,
Inc., a Delaware corporation.
"HOLDER" means Sprint, so long as it holds any Registrable
Securities, and any Person owning Registrable Securities who is a permitted
transferee or assignee of rights under Article 11 of this Agreement.
"INITIAL SHELF REGISTRATION" shall have the meaning given to it in
Section 2.1 of this Agreement.
"INITIATING HOLDER" shall have the meaning given to it in Section
3.1.
"PARTY" means any Person that is a signatory to this Agreement.
"PERSON" means any natural person, corporation, partnership, limited
liability company, trust, unincorporated organization or other entity.
"PRIMARY SECURITIES" means, in an offering of Company securities
initiated by the Company, the securities to be issued and sold by the
Company, and in an offering initiated or done pursuant to the request of any
security holder of the Company other than any Holder, the securities of such
other security holder or holders.
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"REGISTER" and the terms "register," "registered," and
"registration" refer to (i) a registration effected by the preparation and
filing of a Registration Statement in compliance with the Securities Act,
and the declaration or ordering of effectiveness of such Registration
Statement by the SEC, or (ii) the filing of a Rule 424 Prospectus with the
SEC and other actions to be taken pursuant thereto in connection with any
Takedown pursuant to Section 3.4 hereof.
"REGISTRABLE SECURITIES" means at any time: (i) the Registration
Common Shares then owned or held by the Holders, and (ii) the Registration
Common Shares then issuable upon conversion of any and all Convertible
Preferred Stock then owned or held by the Holders, and, in each case, all
shares of capital stock issued as (or issuable upon the conversion or
exercise of any warrant, right or other security which is issued as) a
dividend, stock split or other distribution including as a result of any
merger, consolidation or other reorganization involving the Company with
respect to, in exchange for, or in replacement of such Registration Common
Shares then owned or held by such Holder or Holders or Registration Common
Shares then issuable upon conversion of any and all Convertible Preferred
Stock then owned or held by the Holders, as the case may be, including as a
result of any merger, consolidation or other reorganization involving the
Company. The term "Registrable Securities" excludes, however, any security
(i) the sale by a Holder of which has been effectively registered under the
Securities Act and which has been disposed of by a Holder in accordance with
a Registration Statement, (ii) that has been sold by a Holder in a
transaction exempt from the registration and prospectus delivery
requirements of the Securities Act under Section 4(1) thereof (including
transactions pursuant to Rules 144 and 144A) such that the further
disposition of such securities by the transferee or assignee is not
restricted under the Securities Act, (iii) that has been sold by a Holder in
a transaction in which such Holder's rights under this Agreement are not, or
cannot be, assigned, or (iv) for which the registration rights provided under
this Agreement have expired pursuant to Article 14 of this Agreement.
"REGISTRATION COMMON SHARES" shall mean all shares of Common Stock
owned or acquired by Sprint or by any permitted assignee or transferee as of
the date hereof or any time subsequent thereto.
"REGISTRATION EXPENSES" means all fees and expenses relating to a
Registration Statement incident to the performance of or compliance with this
Agreement by the Company, including without limitation: (i) registration,
qualification and filing fees; (ii) fees and expenses of compliance with
securities or blue sky laws (including reasonable fees and disbursements of
counsel in connection with blue sky qualifications or registration of any
Registrable Securities being registered under the Securities Act or any
applicable state securities or blue sky laws); (iii) printing expenses; (iv)
fees and disbursements of counsel for the Company and customary fees and
expenses for independent certified public accountants retained by the Company
(including the expenses of any comfort letters or costs associated with the
delivery by independent certified public accountants of comfort letters
customarily requested by underwriters); and (v) fees and expenses of listing
any Registrable Securities on any securities exchange or automated quotation
system on which the Common Stock is then listed or quoted, but in all events
excluding the compensation of regular employees of the Company and excluding
underwriter's fees, discounts and commissions.
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"REGISTRATION STATEMENT" means any registration statement or similar
document under the Securities Act or any successor thereto that covers any of
the Registrable Securities pursuant to the provisions of this Agreement,
including the prospectus or preliminary prospectus included therein, all
amendments and supplements to such Registration Statement, including
post-effective amendments, all exhibits to such Registration Statement and
all material incorporated by reference or deemed to be incorporated by
reference in such Registration Statement.
"RULE 144" means Rule 144 promulgated under the Securities Act or
any successor rule thereto.
"RULE 144A" means Rule 144A promulgated under the Securities Act or
any successor rule thereto.
"RULE 424 PROSPECTUS" means a prospectus or a prospectus supplement
and base prospectus prepared pursuant to a Takedown in connection with the
Initial Shelf Registration Statement and/or the Subsequent Shelf Registration
Statement, as filed upon request by the Initiating Holders with the SEC
pursuant to Rule 424 under the Securities Act.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder as in effect at the time.
"SHELF REGISTRATION STATEMENTS" shall have the meaning given to it
in Section 2.1 of this Agreement.
"SUBSEQUENT REGISTRATION STATEMENT" shall have the meaning given to
in Section 2.1 of this Agreement.
"Successor Entity" is defined in the definition of "Change of Entity
Transaction."
"TAKEDOWN" shall have the meaning given to it in Section 3.4 of this
Agreement.
Section 1.2. CONSTRUCTION. The definitions in Section 1.1 shall
apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include," "includes," and
"including" shall be deemed to be followed by the phrase "without
limitation." All references to Articles and Sections shall be deemed to be
references to Articles and Sections of this Agreement unless the context
otherwise requires. The headings of the Articles and Sections are inserted
for convenience of reference only and are not intended to be a part of or to
affect the meaning or interpretation of this Agreement. Unless the context
otherwise requires or provides, any reference to any agreement or other
instrument or statute or regulation is to such agreement, instrument, statute
or regulation as amended and supplemented from time to time (and, in the case
of a statute or regulation, to any successor provision).
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ARTICLE 2.
SHELF REGISTRATION
Section 2.1. SHELF REGISTRATION STATEMENTS. (a) As soon as
reasonably practicable after the date hereof, the Company shall prepare and
file, or cause to be filed, with the SEC a Registration Statement pursuant to
Rule 415 of the Securities Act for the number of Registrable Securities
specified in a notice to be provided to the Company by Sprint (the "Initial
Shelf Registration").
(b) If specified in a written Demand request by the Holders pursuant
to Article 3 and otherwise permitted by this Agreement (including without
limitation Section 3.3), as soon as practicable after receipt of such Demand
request (but in no event more than forty-five (45) days), the Company shall
prepare and file, or cause to be filed, with the SEC a second Registration
Statement pursuant to Rule 415 of the Securities Act for the number of
Registrable Securities specified in such notice (the "Subsequent Shelf
Registration," and together with the Initial Shelf Registration, the "Shelf
Registration Statements") and shall otherwise comply with the provisions of
Article 3, as applicable, PROVIDED, that the Subsequent Shelf Registration
shall not be required to become effective prior to the expiration of the
effective period of the Initial Shelf Registration. The Shelf Registration
Statements shall be on Form S-3 (or any equivalent form if such form is
replaced or modified by the SEC) (except that if the Company is not then
eligible to register for resale the Registrable Securities on Form S-3, such
registration shall be on another appropriate form in accordance herewith).
Section 2.2. TERMINATION OF SHELF REGISTRATIONS. Termination of the
Company's obligations pursuant to Section 2.1 hereof, including with respect
to the Company's ability to terminate either of the Shelf Registration
Statements prior to the end of the applicable Effectiveness Period, shall be
as set forth in Article 14 hereof.
ARTICLE 3.
DEMAND REGISTRATION
Section 3.1. DEMAND RIGHTS. Subject to the other provisions of this
Agreement (including without limitation Section 3.3 hereof), if the Company
receives a written request from Sprint, or if Sprint is not a Holder at such
time, from Holder(s) who in the aggregate hold a majority of the Registrable
Securities (in either case, collectively, the "Initiating Holders") that the
Company (a) file a Registration Statement under the Securities Act covering
the registration of any or all of such Holder's Registrable Securities not
previously registered, (b) file the Subsequent Shelf Registration Statement,
or (c) effect a Takedown (each, a "Demand"), then the Company shall: (A) if
the Demand relates to establishment of the Subsequent Shelf Registration
pursuant to Section 3.1(b) hereof, comply with the provisions of Section
2.1(b) hereof, (B) if the Demand relates to a Takedown pursuant to Section
3.1(c) hereof, comply with the provisions of Section 3.4 hereof; and (C) if
the Demand relates to a registration pursuant to Section 3.1(a) hereof, shall
take the following actions: (i) within ten (10) calendar days of the receipt
of such notice, give written notice of such request to all Holders of
outstanding Registrable Securities
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known to the Company and to any additional addressees provided to the Company
by any transferee of any Holder, and (ii) subject to the limitations
contained in this Article 3, as soon as practicable and in any event within
forty-five (45) calendar days of the receipt of such request, file the
Registration Statement to effect such registration under the Securities Act
covering all Registrable Securities for which the Company receives a request
from the Holders and transferees thereof within 30 days of the delivery of
the notice by the Company as required in clause (i) above. The Company,
however, shall not be required to file a Registration Statement pursuant to
this Article 3 unless the aggregate number of Registrable Securities
requested to be registered is greater than 750,000 (as adjusted to reflect
stock splits, reverse stock splits, stock dividends and similar actions). The
written request delivered pursuant to this Section 3.1 shall specify in
detail the type of requested registration (Subsequent Shelf Registration, a
Takedown or otherwise) and the number of shares, requested schedule and other
applicable information.
Section 3.2. UNDERWRITING AGREEMENT. If an Initiating Holder intends
to distribute the Registrable Securities covered by its Demand request by
means of an underwriting, it shall so advise the Company as a part of its
Demand request made pursuant to Section 3.1 hereof and the Company shall
include such information in the written notice to the Holders referred to in
such section. In such event, the right of any Holder to include its
Registrable Securities in such registration shall be conditioned upon such
Holder's participation in the underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided herein. All
Holders proposing to sell Registrable Securities through such underwriting
(together with the Company as provided in Section 5.1(ix) of this Agreement
and any other holder of shares of Common Stock permitted to participate in
such Demand registration pursuant to this Section 3.2) shall, upon the terms
and conditions agreed upon among the Company, the Initiating Holder(s) and
such underwriter(s), enter into an underwriting agreement in customary form
with the underwriter or underwriters selected for such underwriting by the
Initiating Holder(s), PROVIDED that the same are underwriters of recognized
national standing; FURTHER PROVIDED that such selection is subject to the
approval of the Company, which shall not be unreasonably withheld).
Notwithstanding any other provision of this Article 3, if the underwriter(s)
advise the Initiating Holder(s) and the Company in writing that marketing or
other factors require a limitation of the number of Registrable Securities to
be underwritten, then the Company shall so advise all Holders of Registrable
Securities that would otherwise be underwritten pursuant hereto, and the
number of Registrable Securities that may be included in the underwriting
shall be allocated among all Holders thereof, including the Initiating
Holder(s), in proportion (as nearly as practicable) to the number of
Registrable Securities which each Holder requested to be included in such
registration; PROVIDED, that there shall be no reduction in the number of
shares included in such Demand registration by Holders of Registrable
Securities until all shares (including (i) shares proposed to be sold by
other holders of Shares of capital stock of the Company who have rights to or
are otherwise permitted to participate in the registration and (ii) shares
proposed to be sold by the Company) other than Shares of Registrable
Securities proposed to be sold by Holders of Registrable Securities have been
excluded from such registration. If the number of Registrable Securities to
be underwritten has not been so limited, the Company may include shares of
Common Stock for its own account (or for the account of other shareholders)
in such registration if the underwriter(s) so agree and to the extent that,
in the opinion of such underwriter(s), the inclusion of such additional
shares will not adversely affect
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the offering and successful marketing of the Registrable Securities included
in such registration and if the number of Registrable Securities that would
otherwise have been included in such registration and underwriting will not
thereby be limited.
Section 3.3. LIMIT ON DEMAND RIGHTS; EFFECTIVENESS. The Company
shall not be obligated to: (a) effect a total of more than four (4) Demand
registrations upon the Holders' request, including without limitation the
Demand used to require the Company to establish the Subsequent Shelf
Registration (which Demand shall constitute one (1) of the four (4) Demand
rights hereunder), and (b) cause any registration pursuant to this Article 3
to be declared effective unless at least nine (9) months have elapsed since
the later of (as applicable): (i) the date on which the prior Registration
Statement (other than any Shelf Registration Statement) ceased to be
effective, and (ii) the date on which the prior Takedown securities offering
was completed. The Company's obligations to effect any registration pursuant
to this Article 3 shall be subject to Section 5.2 hereof.
Section 3.4. SHELF TAKEDOWN RIGHTS. (a) Subject to the other
provisions of this Agreement (including without limitation Section 3.3
hereof), if the Company receives a Demand request that the Company prepare,
in connection with an underwritten offering, a prospectus supplement to the
prospectus contained in a Shelf Registration Statement pursuant to Section
3.1(c) hereof (a "Takedown Request") from Sprint (or if Sprint is not a
Holder at such time, from Holder(s) who in the aggregate hold a majority of
the Registrable Securities registered on such Shelf Registration) (in either
case, collectively, the "Initiating Holders), the Company shall take the
actions as set forth in Section 3.4(b) below (a "Takedown").
(b) In connection with each Takedown Request, the Company shall (i)
within five (5) calendar days of the receipt thereof, give written notice of
such request to all Holders of outstanding Registrable Securities registered
on a Shelf Registration Statement then known to the Company, (ii) subject to
the limitations contained in this Article 3, as soon as reasonably
practicable and in any event within fifteen (15) calendar days of the receipt
of such Takedown Request, prepare a Rule 424 Prospectus (initially in
preliminary form if specified in the Takedown Request) covering all
Registrable Securities described in the Takedown Request and any other
Registrable Securities described in responses from other Holders, and (iii)
after receiving instructions to file from the Initiating Holders, file such
preliminary Rule 424 Prospectus, if requested, and file the final Rule 424
Prospectus with the SEC , in each case within two (2) business days following
receipt of such instructions. The Company, however, shall not be required to
prepare or file a Rule 424 Prospectus pursuant to this Section 3.4 unless the
aggregate number of Registrable Securities to be offered is greater than
750,000 (as adjusted to reflect stock splits, reverse stock splits, stock
dividends and similar actions).
ARTICLE 4.
INCIDENTAL REGISTRATION
If at any time (but without obligation to do so) the Company
proposes to register (including a registration effected by the Company for
shareholders other than the Holders) any shares of Common Stock under the
Securities Act in connection with the public offering of such
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shares solely for cash on any form of Registration Statement that would
permit the registration of Registrable Securities (other than a registration:
(i) relating solely to the sale of securities to participants in a the
Company stock or stock option plan, (ii) pursuant to a Registration Statement
on Form S-8 (or any successor forms) or any form that does not include
substantially the same information, other than information relating to the
selling shareholders or their plan of distribution, as would be required to
be included in a Registration Statement covering the sale of Registrable
Securities, (iii) in connection with any dividend reinvestment or similar
plan, or (iv) for the sole purpose of offering securities to another entity
or its security holders in connection with the acquisition of assets or
securities of such entity or any similar business combinations transaction),
the Company shall promptly give each Holder written notice of each such
registration at least ten (10) days before the anticipated filing date of any
such Registration Statement. Such notice shall describe fully the proposed
method of distribution of the securities being registered. If the
registration of which the Company gives notice is for a registered public
offering involving an underwriting, the Company shall so advise each of the
Holders as a part of the written notice given pursuant to this Article. Upon
the written request of any Holder (the "Requesting Holders") given within ten
(10) calendar days after the delivery of such notice by the Company, the
Company shall cause to be registered in such registration under the
Securities Act all of the Registrable Securities that such Requesting Holder
has so requested to be registered. The Company may decline to file a
Registration Statement after giving notice to the Requesting Holders, or
withdraw a Registration Statement after filing and after such notice, but
prior to the effectiveness thereof, provided that the Company shall promptly
notify each Requesting Holder in writing of any such action and provided
further that the Company shall bear all out-of-pocket expenses incurred by
each Requesting Holder or otherwise in connection with such declined or
withdrawn Registration Statement. Further, any such declination or withdrawal
shall be without prejudice to the rights (if any) of the Requesting Holders
immediately to request that such registration be effected as a Demand
registration under Article 3. The right of any Holder to have Registrable
Securities included in such Registration Statement shall be conditioned upon
participation in any underwriting to the extent provided herein. The Company
shall not be required to include any Registrable Securities in such
underwriting unless the Holders thereof agree to enter into an underwriting
agreement in customary form, and upon terms and conditions agreed upon among
such Holders, the Company and the underwriter(s), with the underwriter(s)
selected by the Company. In the event that the underwriter(s) shall advise
the Company that marketing or other factors require a limitation of the
number of shares to be underwritten, then the Company shall so advise all
Holders of Registrable Securities that would otherwise be underwritten
pursuant hereto. If the underwriters so advise the Company, then, subject to
the following sentence, the underwriter(s) may subsequent to such
notification exclude some or all of the Registrable Securities from such
underwriting and the number of Registrable Securities, if any, that may be
included in the underwriting shall be allocated among all Holders thereof in
proportion (as nearly as practicable) to the number of Registrable Securities
which each Holder requested be included in such registration (an "Underwriter
Cutback"). No Registrable Securities of any Holder shall be excluded from
such underwriting pursuant to an Underwriter Cutback unless all securities
proposed to be included in such underwriting (other than the Primary
Securities) are similarly excluded on a pro rata basis from such
underwriting. Nothing in this Article 4 is intended to diminish the number of
shares to be sold by the Company in such underwriting if its a
Company-initiated underwriting. The Company and the underwriter(s)
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selected by the Company shall make all determinations with respect to the
timing, pricing and other matters related to the offering, provided that no
Holder shall be obligated to sell any Registrable Securities in such offering
and may be withdrawn at any time for any reason, including a disagreement
with respect to the timing, pricing and other matters related to the offering.
ARTICLE 5.
REGISTRATION PROCEDURE
Section 5.1. Whenever required under this Agreement to effect the
registration of any Registrable Securities, the Company shall, as
expeditiously as reasonably practicable:
(i) Prepare and file with the SEC as soon as practicable the
requisite Registration Statement with respect to such Registrable
Securities and use its reasonable best efforts to cause such
Registration Statement to become effective as promptly as
practicable, and keep such Registration Statement continuously
effective for at least (x) in the case of a Shelf Registration
Statement, two (2) years (subject to the following proviso) from
the date such Shelf Registration is declared effective by the SEC
(the "Shelf Effectiveness Period"); PROVIDED, HOWEVER, that such two
(2) year time period shall be extended for a period of time equal to
the length of any Blackout or Demand Prohibition pursuant to Section
5.2 hereof or any Holder Lockup Period pursuant to Section 13.2
hereof or any discontinuance period pursuant to Section 6.2 hereof,
and (y) in the case of a registration pursuant to Section 3.1
hereof, one hundred twenty (120) calendar days; PROVIDED, however,
that no Registration Statement need remain effective after all
Registrable Securities covered thereby have been sold and the
confirmation of sale and prospectus delivery requirements of the
Securities Act and applicable state securities or blue sky laws have
been effected.
(ii) Furnish to each Holder and to any underwriter, before
filing with the SEC, copies of any Registration Statement (including
all exhibits) and any prospectus forming a part thereof and any
amendments and supplements thereto (including all documents
incorporated or deemed incorporated by reference therein prior to
the effectiveness of such Registration Statement and including each
preliminary prospectus, any summary prospectus or any term sheet (as
such term is used in Rule 434(e) under the Securities Act)) and any
other Rule 424 Prospectus, which documents, other than documents
incorporated or deemed incorporated by reference, will be subject to
the review of the Holders and any such underwriter for a period of
at least two business days. The Company shall not file any such
Registration Statement or such prospectus or any amendment or
supplement to such Registration Statement or prospectus to which any
Holder or any such underwriter shall reasonably object within two
business days after the receipt thereof. A Holder or such
underwriters, if any, may only object to such filing if the
Registration Statement, amendment, prospectus or supplement, as
applicable, as proposed to be filed, contains a material
misstatement or omission.
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(iii) Prepare and file with the SEC such amendments and
supplements to the applicable Registration Statement, prospectus,
prospectus supplement and/or the Rule 424 Prospectus used in
connection with such Registration Statement and/or Takedown, as may
be necessary to keep such Registration Statement effective and to
comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such Registration Statement
or to be disposed of in such Takedown.
(iv) Furnish to the Holders of Registrable Securities to be
registered and to any underwriter, without charge, such number of
copies of a prospectus, including each preliminary prospectus,
summary prospectus or term sheet, and any amendment or supplement
thereto as they may, from time to time, reasonably request and a
reasonable number of copies of the then-effective Registration
Statement and any post-effective amendment thereto, including
financial statements and schedules, all documents incorporated
therein by reference and all exhibits (including those incorporated
by reference).
(v) To the extent practicable, promptly prior to the filing of
any document that is to be incorporated by reference into any
Registration Statement or prospectus forming a part thereof
subsequent to the effectiveness thereof, and in any event no later
than the date such document is filed with the SEC, provide copies of
such document to the Holders of Registrable Securities covered
thereby and any underwriter and make representatives of the Company
available for discussion of such document and other customary due
diligence matters, and include in such document prior to the filing
thereof such information as any Holder or any such underwriter may
reasonably request.
(vi) Use its reasonable best efforts (x) to register and qualify
the securities covered by such Registration Statement under such
other securities or blue sky laws of such jurisdictions as shall be
reasonably requested by the Holders, (y) to keep such registration
or qualification in effect for so long as the applicable
Registration Statement remains in effect, and (z) to take any other
action which may be reasonably necessary or advisable to enable such
Holders to consummate the disposition in such jurisdictions of the
securities to be sold by such Holders; PROVIDED, however, that the
Company shall not be required to qualify to do business or to file a
general consent to service of process in any such states or
jurisdictions where it would not otherwise be required to so qualify
to do business or consent to service of process or subject itself
to taxation in any such jurisdiction.
(vii) Use its reasonable best efforts to cause all Registrable
Securities covered by such Registration Statement to be registered
with or approved by such other federal or state governmental
agencies or authorities as may be necessary in the opinion of
counsel to the Company and counsel to the Holders of Registrable
Securities to enable the Holders thereof to consummate the
disposition of such Registrable Securities.
(viii) Cooperate with the Holders of Registrable Securities and
each underwriter participating in the disposition of such
Registrable Securities and their respective counsel
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in connection with any filings required to be made with the National
Association of Securities Dealers, Inc.
(ix) In the event of any underwritten public offering, enter
into and perform its obligations under an underwriting agreement, in
usual and customary form, with the underwriter(s) of such offering,
with such terms and conditions as the Company, the Holders and the
underwriter(s) may reasonably agree, including customary
indemnification and contribution obligations of the type
contemplated by Article 9 hereof. The Company agrees to cause the
participation by senior management of the Company in such
meetings with and presentations (including the provision of all
customary information in connection therewith) to investors,
analysts, investment banking firms and other institutions as are
usual and customary in connection with the public offering of
registered securities by companies similar to the Company. Each
Holder participating in such underwriting shall also enter into and
perform its obligations under such an agreement; provided, that no
Holder shall be required to make any representation concerning
information in a Registration Statement that is more broad than the
information for which such Holder has agreed to provide indemnity
under Section 9.2.
(x) Promptly notify each Holder of Registrable Securities
covered by a Registration Statement (A) upon discovery that, or upon
the happening of any event as a result of which, the prospectus
forming a part of such Registration Statement, as then in effect,
includes 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, in light of the circumstances under which
they were made, not misleading, (B) of the issuance by the SEC of
any stop order suspending the effectiveness of such Registration
Statement or the initiation of proceedings for that purpose, (C) of
any request by the SEC for (1) amendments to such Registration
Statement or any document incorporated or deemed to be incorporated
by reference in any such Registration Statement, (2) supplements to
any prospectus forming a part of such Registration Statement or (3)
additional information, or (D) of the receipt by the Company of 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 of any proceeding for
such purpose, and at the request of any such Holder promptly
prepare, file with the SEC and other required agency, and furnish to
it a reasonable number of copies of a supplement to or an amendment
of such prospectus as may be necessary or take other action so that,
as applicable, (a) as thereafter delivered to the purchasers of such
securities, such prospectus shall not include an untrue statement of
a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading, (b) such stop order is lifted at the earliest possible
time, or the proceedings that might otherwise lead to a stop order
are terminated at the earliest practicable time, (c) such request by
the SEC is satisfied, or (d) such suspension is lifted at the
earliest possible time.
(xi) Use its reasonable best efforts to obtain the withdrawal of
any order suspending the effectiveness of any such registration, or
the lifting of any suspension of
11
the qualification (or exemption from qualification) of any of the
Registrable Securities for sale in any jurisdiction.
(xii) If requested by any Initiating Holder, or any
underwriter, promptly incorporate in such Registration Statement or
prospectus, pursuant to a supplement or post-effective amendment if
necessary, such information as the Initiating Holder and any
underwriter may reasonably request to have included therein,
including information relating to the "plan of distribution" of the
Registrable Securities, information with respect to the principal
amount or number of shares of Registrable Securities being sold to
such underwriter, the purchase price being paid therefor and any
other terms of the offering of the Registrable Securities to be sold
in such offering and make all required filings of any such
prospectus supplement or post-effective amendment as soon as
practicable after the Company is notified of the matters to be
incorporated in such prospectus supplement or post-effective
amendment.
(xiii) Otherwise use its reasonable best efforts to comply with
all applicable rules and regulations of the SEC, and make available
to its security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least 12 months, but
not more than 18 months, beginning after the effective date of such
Registration Statement, which earnings statement shall satisfy the
provision of Section 11(a) of the Securities Act and Rule 158
promulgated thereunder.
(xiv) Provide promptly to the Holders upon request any document
filed by the Company with the SEC pursuant to the requirements of
Section 13 and Section 15 of the Exchange Act.
(xv) Cause all Registrable Securities covered by the
Registration Statement to be listed on each securities exchange or
automated quotation system on which shares of the Common Stock is
then listed. If any of such shares are not so listed, the Company
shall cause such shares to be listed on the securities exchange or
automated quotation system as may be reasonably requested by the
Holders of a majority of the Registrable Securities being registered.
(xvi) Furnish to the Holders, at the request of any Holder
participating in a registration pursuant to this Agreement, (A) an
opinion of counsel representing the Company for the purposes of such
registration addressed to such Holder and dated the date of the
closing under the underwriting agreement, if any, or the date of
effectiveness of the Registration Statement if such registration
is not an underwritten offering, and (B) if such accountant will
render such letter to such Holders, a "comfort" letter from
independent certified public accountants of the Company who have
certified the Company's financial statements included in such
registration with respect to events included in and subsequent to
the date of such financial statements, in each case to be dated such
date and to be in form and substance as is customarily given by
counsel or independent certified public accountants, as the case may
be, to underwriters in an underwritten public offering, addressed to
the underwriters.
12
(xvii) Permit a representative of any Holder of Registrable
Securities, any underwriter participating in any disposition
pursuant to such registration, and any attorney or accountant
retained by such Holder or underwriter, to participate, at each
Person's own expense, in the preparation of the Registration
Statement or Rule 424 Prospectus, as applicable, and cause the
Company's officers, directors and employees to supply all
information reasonably requested by any such representative,
underwriter, attorney or accountant in connection with such
registration; PROVIDED, HOWEVER, that such representatives,
underwriters, attorneys or accountants enter into a confidentiality
agreement, in form and substance reasonably satisfactory to the
Company, prior to the release or disclosure of any such information.
(xviii) Promptly notify the Holders and any underwriter when any
Registration Statement filed pursuant to this Agreement is declared
effective.
Section 5.2. Notwithstanding anything to the contrary in this
Agreement, upon the receipt of a Demand request pursuant to Section 3.1 (or,
if any such registration transaction is pending, at any time prior to the
actual commencement of the `road show' for such offering, and if a road show
is not to be utilized, at any time prior to the printing of preliminary
prospectuses for such offering, and if no preliminary prospectuses are to be
utilized, then prior to the pricing of such offering), the Company may delay
or suspend any Demand registration (or withdraw any pending Demand
registration, if such a withdrawal is required by the SEC, provided, that if
a registration is withdrawn, then at the end of the applicable Blackout
period, the Company shall effect a new Demand Registration pursuant to the
terms of this Agreement for such offering, which shall not be deemed to
utilize a Demand right), and at any time during the effectiveness of such
Shelf Registration the Company may suspend sales under such Shelf
Registration Statement, in either case for a period not exceeding one hundred
and twenty (120) calendar days (each, a "Blackout") if: (i) the Company
intends in good faith to raise capital or commence the process to raise
capital in the capital markets within such Blackout period; PROVIDED that
this basis for a Blackout may be utilized only during the period of five (5)
business days or seven (7) calendar days (whichever is longer) after the
Company receives the applicable Demand request pursuant to Section 3.1, or
(ii) if the Company in its good faith judgment determines that such
registration would adversely affect any other contemplated material corporate
event (including without limitation, requiring the premature disclosure of
such event); PROVIDED that there shall be no more than three (3) Blackouts
during any two (2) year period. In addition to the above Blackout rights, no
request for a Demand may be submitted to the Company (and if so submitted,
such Demand shall be rejected by the Company) during each and any of the
following periods: (i) beginning on the date of filing with the SEC by the
Company of any registration statement under the Securities Act covering
Common Stock (including without limitation registrations on Form S-4 related
to business combinations, but excluding registrations on Form S-8 and
registrations pursuant to Rule 415, including without limitation those
relating to dividend reinvestment programs), and ending at the closing or
termination of the offering or other transaction contemplated by such
registration statement (each such period, a "Demand Prohibition").
13
ARTICLE 6.
CERTAIN HOLDER OBLIGATIONS
Section 6.1. INFORMATION FROM HOLDERS. It shall be a condition
precedent to the obligations of the Company to take any action pursuant to
this Agreement with respect to any Registrable Securities that the Holder of
such securities furnish to the Company such information regarding itself, the
Registrable Securities held by it, and the intended method of disposition of
such securities as shall be required to effect the registration of such
Holder's Registrable Securities.
Section 6.2. DISCONTINUANCE. Each Holder agrees that, upon receipt
of any notice from the Company pursuant to Section 5.1(x) hereof (other than
Section 5.1(x)(C)(3), such Holder will forthwith discontinue disposition of
Registrable Securities pursuant to the then current prospectus until (i) such
Holder is advised in writing by the Company that a new Registration Statement
covering the reoffer of Registrable Securities has become effective under the
Securities Act, or (ii) such Holder receives copies of a supplemented or
amended prospectus contemplated by Article 5 which addresses any additional
information, including material nonpublic information, required to be
disclosed therein, or until such Holder is advised in writing by the Company
that the use of the prospectus may be resumed. The Company shall use its
reasonable best efforts to limit the duration of any discontinuance of
disposition of Registrable Securities pursuant to this paragraph.
ARTICLE 7.
REGISTRATION EXPENSES
In the case of any Demand registration or any offering pursuant to a
Takedown, each pursuant to Article 3, or any incidental registration pursuant
to Article 4, the Company shall pay all Registration Expenses.
Notwithstanding the foregoing, if as a result of the withdrawal of a request
for registration pursuant to Article 3 by any of the Holders, as applicable,
the Registration Statement does not become effective, the Holders and the
other stockholders requesting registration may elect to bear the Registration
Expenses (pro rata on the basis of the number of their shares included in the
registration request, or on such other basis as such Holders and other
stockholders may agree), in which case such registration shall not be counted
as a registration requested under Section 3.3.
ARTICLE 8.
EFFECTIVENESS OF REGISTRATION
A registration requested pursuant to Article 3 will not be deemed to
have been effected if (i) the Registration Statement has not been kept
effective for the period required under Section 5.1(i) of this Agreement,
(ii) the offering of Registrable Securities pursuant to such registration is
interfered with by any stop order, injunction or other order or requirement
of the SEC or other
00
xxxxxxxxxxxx xxxxxx xx xxxxx, (xxx) the conditions to the closing of any such
registration that is underwritten are not satisfied, unless such conditions
have not been satisfied by the Holders participating in the underwriting, or
(iv) the Company has not complied with the terms of this Agreement, including
Article 5.
ARTICLE 9.
INDEMNIFICATION AND CONTRIBUTION
Section 9.1. In the event any Registrable Securities are included in
a Registration Statement pursuant to this Agreement, the Company will
indemnify and hold harmless each Holder, each Person, if any, who "controls"
such Holder (within the meaning of the Securities Act or the Exchange Act)
and their respective directors, officers, employees and agents against all
losses, claims, damages, or liabilities, joint or several, or actions in
respect thereof to which such Holder or other Person entitled to
indemnification hereunder may become subject under the Securities Act, the
Exchange Act, state securities or blue sky law, common law or otherwise,
insofar as such losses, claims, damages, liabilities or actions in respect
thereof arise out of, or are based upon, any untrue statement or alleged
untrue statement of any material fact contained in such Registration
Statement, any related preliminary prospectus, or any related prospectus or
any amendment or supplement thereto, offering circular or other document
(including any related notification or the like) incident to any such
registration, qualification or compliance, or arise out of, or are 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 not
misleading, or any violation by the Company of the Securities Act, the
Exchange Act, state securities or blue sky law, common law or otherwise and
relating to action or inaction required of the Company in connection with any
such registration, qualification or compliance, and the Company will
reimburse each such Holder or other Person entitled to indemnification
hereunder for any legal or other expenses reasonably incurred by it in
connection with investigating or defending any such loss, claim, damage,
liability or action; PROVIDED, however, that the Company will not be so
liable to the extent that any such loss, claim, damage, liability or action
arises out of, or is based upon, an untrue statement or alleged untrue
statement of a material fact or an omission or alleged omission to state a
material fact in such Registration Statement, such preliminary prospectus, or
such prospectus, or any such amendment or supplement thereto, offering
circular or other document (including any related notification or the like)
incident to any registration, qualification or compliance, in reliance upon,
and in conformity with, written information furnished to the Company by the
Holder specifically for use therein. The Company will also indemnify
underwriters and dealer managers participating in the distribution, each
Person who "controls" such Persons (within the meaning of the Securities Act
or the Exchange Act), and their respective officers, directors, employees and
agents to the same extent as provided above with respect to the
indemnification of the Holders, if so requested, except (i) with respect to
information furnished in writing specifically for use in any prospectus or
Registration Statement by any selling Holders or any such underwriters, or
(ii) to the extent that any such loss, claim, damage, liability or action is
solely attributable to such underwriter's failure to deliver a final
prospectus (or amendment or supplement thereto) that corrects a material
misstatement or omission contained in the preliminary prospectus (or final
prospectus).
15
Section 9.2. With respect to written information furnished to the
Company by a Holder specifically for use in a Registration Statement, any
related preliminary prospectus, or any related prospectus or any supplement
or amendment thereto, offering circular or other document (including any
related notification or the like) incident to any registration, qualification
or compliance, if Registrable Securities held by it are included in the
securities as to which such registration, qualification or compliance is
being effected, such Holder will severally indemnify and hold harmless the
Company and its directors, officers, employees, agents and each Person, if
any, who "controls" the Company (within the meaning of the Securities Act or
the Exchange Act) and any other Holder against any losses, claims, damages or
liabilities, joint or several, or actions in respect thereof, to which the
Company or such other Person entitled to indemnification hereunder may become
subject under the Securities Act, the Exchange Act, state securities or blue
sky laws, common law or otherwise, insofar as such losses, claims, damages,
liabilities or actions in respect thereof arise out of, or are based upon,
any untrue statement or alleged untrue statement of any material fact
contained in such Registration Statement, such preliminary prospectus, or
such prospectus, or any such amendment or supplement thereto, offering
circular or other document (including any related notification or the like)
incident to any registration, qualification or compliance, or arise out of,
or are based upon, the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and such Holder will reimburse the Company
and such other Persons for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim,
damage, liability or action, in each case to the extent, but only to the
extent, that the same arises out of or is based upon, an untrue statement or
alleged untrue statement of material fact or an omission or alleged omission
to state a material fact in such Registration Statement, such preliminary
prospectus, or such prospectus or any such amendment or supplement thereto in
reliance upon, and in conformity with, such written information; provided,
however, that the obligations of each of the Holders hereunder shall be
limited to an amount equal to the net proceeds to such Holder of Registrable
Securities sold as contemplated herein. 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 the information so
furnished in writing by such Persons specifically for inclusion in any
prospectus or Registration Statement. The Holder will also indemnify
underwriters and dealer managers participating in the distribution and each
Person who "controls" such Persons (within the meaning of the Securities Act
or the Exchange Act), their officers, directors, employees and agents to the
same extent as provided herein with respect to the indemnification of the
Company, if so requested.
Section 9.3. Promptly after receipt by an indemnified Party of
notice of any claim or the commencement of any action or proceeding involving
a claim referred to in Sections 9.1 and 9.2, the indemnified Party will, if a
claim in respect thereof is to be made against the indemnifying Party, notify
the indemnifying Party in writing of the claim or the commencement of that
action; PROVIDED, however, that the failure to notify the indemnifying Party
will not relieve it from any liability that it may have to the indemnified
Party except to the extent it was actually damaged or suffered any loss or
incurred any additional expense as a result thereof. If any such claim or
action is brought against an indemnified Party, and it notifies the
indemnifying Party thereof, the indemnifying Party will be entitled to assume
the defense thereof with counsel
16
selected by the indemnifying Party and reasonably satisfactory to the
indemnified Party. After notice from the indemnifying Party to the
indemnified Party of its election to assume the defense of such claim or
action, (i) the indemnifying Party will not be liable to the indemnified
Party for any legal or other expense subsequently incurred by the indemnified
Party in connection with the defense thereof, (ii) the indemnifying Party
will not be liable for the costs and expenses of any settlement of such claim
or action unless such settlement was effected with the written consent of the
indemnifying Party or the indemnified Party waived any rights to
indemnification hereunder in writing, in which case the indemnified Party may
effect a settlement without such consent, and (iii) the indemnified Party
will be obligated to cooperate with the indemnifying Party in the
investigation of such claim or action; PROVIDED, however, that the
indemnified Party who may be subject to liability arising out of any claim in
respect of which indemnity may be sought by such indemnified Party against
the Company may employ its own counsel if such indemnified Party has been
advised by counsel in writing that, in the reasonable judgment of such
counsel, it is advisable for such indemnified Party to be represented by
separate counsel due to the presence of actual or potential conflicts of
interest, and in that event the fees and expenses of such separate counsel
will also be paid by the Company; provided that the Company shall not be
liable for the reasonable fees and expenses of more than one separate counsel
at any time for all such indemnified parties. An indemnifying Party shall
not, without the prior written consent of the indemnified parties, settle,
compromise or consent to the entry of any judgment with respect to any
pending or threatened Claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes a release of such
indemnified Party reasonably acceptable to such indemnified Party from all
liability arising out of such claim, action, suit or proceeding and unless
the indemnifying Party shall confirm in a written agreement reasonably
acceptable to such indemnified Party, that notwithstanding any federal, state
or common law, such settlement, compromise or consent shall not adversely
affect the right of any indemnified Party to indemnification or contribution
as provided in this Agreement.
Section 9.4. If for any reason the indemnification provided for in
Sections 9.1 or 9.2 is unavailable to an indemnified Party or is insufficient
to hold such indemnified Party harmless as contemplated therein, 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 indemnifying Party and the indemnified Party, but also the
relative fault of the indemnifying Party and the indemnified Party, as well
as any other relevant equitable considerations. The relative fault of the
indemnifying Party and of the indemnified Party shall be determined by
reference to, among other things, whether the untrue (or alleged untrue)
statement of a material fact or the omission (or alleged omission) to state a
material fact relates to information supplied by the indemnifying Party or by
the indemnified Party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission,
PROVIDED, however, that the obligations of each of the Holders hereunder
shall be limited to an amount equal to the net proceeds to such Holder of
Registrable Securities sold as contemplated herein. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall
17
be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
Section 9.5. The obligations under this Article 9 shall survive the
completion of any offering of Registrable Securities in a Registration
Statement pursuant to this Agreement, and otherwise.
Section 9.6. Notwithstanding the foregoing provisions of this
Article 9, to the extent that the provisions regarding indemnification and
contribution contained in the underwriting agreement entered into in
connection with any underwritten public offering contemplated by this
Agreement are in conflict with the foregoing provisions, the provisions in
such underwriting agreement shall be controlling, provided that each Holder,
each Person, if any, who controls such Holder (within the meaning of the
Securities Act or the Exchange Act) and their respective directors, officers,
employees and agents receive protection at least as extensively and are
subject to obligations that are no more extensive, than those set forth in
this Article 9.
ARTICLE 10.
REPORTS UNDER EXCHANGE ACT
With a view to making available to the Holders the benefits of Rule
144 and any other rule or regulation of the SEC that may at any time permit a
Holder to sell securities of the Company to the public without registration,
the Company agrees that so long as the Company is subject to the reporting
requirements of the Exchange Act, to:
(i) Make and keep public information available, as those terms
are understood and defined in Rule 144;
(ii) 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
(iii) Furnish to any Holder, so long as the Holder owns any
Registrable Securities, upon request (a) a written statement by the
Company as to its compliance with the reporting requirements of Rule
144, the Securities Act and the Exchange Act, (b) a copy of the most
recent annual or quarterly report of the Company and such other
reports and documents so filed by the Company, and (c) such other
information as may be reasonably requested in availing any Holder of
any rule or regulation of the SEC which permits the selling of any
such securities without registration or pursuant to such form.
ARTICLE 11.
ASSIGNMENT OF REGISTRATION RIGHTS
The Holders' rights pursuant to this Agreement may not be assigned
or transferred by any Holder without the consent of the Company, PROVIDED,
that (i) such consent is not required for assignments or transfers to
Affiliates of Sprint or any transfer pursuant to any merger or sale of
18
all or substantially all of the assets of Sprint or any such Affiliate, (ii)
that as a condition to any such assignment or transfer, Sprint shall cause
such Affiliate or other appropriate Person to execute a signature page to,
and become bound by, this Agreement, and (iii) a Holder transferring less
than all of its Registrable Securities (or Securities convertible into
Registrable Securities) hereunder shall retain registration rights as to its
remaining shares. Such an assignment or transfer shall be in accordance with
all applicable securities laws. Notwithstanding any permitted assignments
pursuant to this Article 11 or otherwise, the Company's registration
obligations under this Agreement (including without limitation the provisions
of Article 2, Article 3 and Article 4) shall not be extended, increased or
modified in any manner as a result of any such assignment, which obligations
shall remain collectively as set forth in this Agreement.
ARTICLE 12.
AMENDMENT OF REGISTRATION RIGHTS
Any provision of this Agreement may be amended or the observance
thereof may be waived (either generally or in a particular instance and
either retroactively or prospectively), only with the written consent of the
Company and the Holders of a majority of Registrable Securities then
outstanding. Notwithstanding the foregoing, a waiver of or consent to depart
from the provisions hereof with respect to a matter that relates exclusively
to the rights of Holders of Registrable Securities whose securities are being
sold pursuant to a registration and that does not directly or indirectly
affect the rights of other Holders of Registrable Securities may be given by
Holders of a majority of the Registrable Securities being sold by such
Holders; PROVIDED, HOWEVER, that the provisions of this sentence may not be
amended, modified, or supplemented except in accordance with the provisions
of the immediately preceding sentence. Any amendment or waiver effected in
accordance with this Section shall be binding upon each Holder of any
Registrable Securities, each future Holder of such Registrable Securities and
the Company.
ARTICLE 13.
LOCKUP AGREEMENTS
Section 13.1. COMPANY LOCKUP. If a Demand registration effected for
a Holder hereunder involves an underwritten offering, then if requested by
the lead underwriters for such offering, the Company agrees that it shall
not, directly or indirectly, offer, sell or otherwise transfer or dispose of,
or file a registration statement under the Securities Act relating to any
offer to sell, any of its Common Stock or securities convertible or
exercisable for its Common Stock (other than such registration for Holder),
and shall not publicly announce any intention to do any of the foregoing, for
a period of up to five (5) calendar days prior to and up to ninety (90)
calendar days after (a) the effective date of such Registration Statement, in
the case of a Demand pursuant to Section 3.1, and (b) the date of the Rule
424 Prospectus, in the case of a Demand pursuant to Section 3.4.
19
Section 13.2. HOLDER LOCKUP. Each Holder, if requested by the lead
underwriters of an underwritten public offering pursuant to Article 2 or
Article 3 or in which such Holder participates pursuant to Article 4, agrees
not to, directly or indirectly, offer, sell or otherwise transfer or dispose
of any Common Stock held by such Holder or securities convertible into or
exercisable for such Common Stock (other than Registrable Securities included
in such registration) without the prior written consent of the Company or
such lead underwriter, during a period of up to five (5) calendar days prior
to the pricing of such public offering and up to ninety (90) days after the
effective date of any underwritten registration of the Company's securities
effected pursuant to Articles 2, 3 or 4 (a "Holder Lockup Period"). Such
agreement shall be in writing in form satisfactory to the Company and such
underwriter, and may be included in the underwriting agreement. The Company
may impose stop-transfer instructions with respect to the securities subject
to the foregoing restriction until the end of the required lock up period.
If, in any underwritten offering in which a Holder exercises its incidental
registration rights pursuant to Article 4 hereof, the number of such Holder's
shares of Registrable Securities allowed to be included in such registration
is reduced by an Underwriter Cutback as permitted thereunder (an "Underwriter
Reduced Registration") resulting in (i) the reduction of the total number of
Holder's Registrable Securities to be registered by fifty percent (50%) or
more and (ii) the number of Registrable Securities included in the
Registration Statement held by the Holders is less than 12.5% of the total
amount of Registrable Securities included in such Registration Statement,
then such Holder shall be exempted from the provisions of this Section 13.2
for purposes of such offering.
ARTICLE 14.
TERMINATION OF REGISTRATION RIGHTS
If the number of shares of Registrable Securities owned by the
Holders, including shares of Common Stock the Holders have the right to
receive upon conversion of all the Convertible Preferred Stock and after the
expiration of any applicable "top up rights" as set forth in Section 3.01 of
the Governance Agreement, represents less than three percent (3%) of the
Company's total issued and outstanding shares of Common Stock at such time,
then all of such Holder's registration rights under this Agreement relating
to such Registrable Securities shall terminate immediately, and shall not
be reinstated under any circumstances, including without limitation if the
Holders subsequently acquire additional securities that raise the Holders
over such 3% threshold.
ARTICLE 15.
MISCELLANEOUS
Section 15.1. CONFIDENTIAL INFORMATION. No Holder may use any
confidential information received by it pursuant to this Agreement in
violation of applicable law or reproduce, disclose, or disseminate such
information to any other Person (other than its employees or agents having a
need to know the contents of such information and its accountants and
attorneys), except to the extent reasonably related to the exercise of rights
under this Agreement, unless (i) such information has been made available to
the public generally (other than by such recipient
20
in violation of this Section 15.1), or (ii) such recipient is required to
disclose such information by a governmental body, regulatory agency or
subpoena or by law in connection with a transaction that is not otherwise
prohibited hereby and, to the extent possible, the Company is given a
reasonable opportunity to obtain injunctive relief or a protective order to
maintain the confidentiality of such information.
Section 15.2. NOTICES. Unless otherwise provided herein, any notice,
request, waiver, instruction, consent or document or other communication
required or permitted to be given by this Agreement shall be effective only
if it is in writing and (a) delivered by hand or sent by certified mail,
return receipt requested, (b) if sent by a nationally-recognized overnight
delivery service with delivery confirmed, or (c) if telexed or telecopied,
with receipt confirmed as follows:
Company: EarthLink, Inc.
0000 Xxxx Xxxxxxxxx Xx.
Xxxxxxx, XX 00000
Attn: Chief Executive Officer
Telecopy No.: (000) 000-0000
Hunton & Xxxxxxxx
with a copy to Bank of America Plaza, Suite 4100
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxx X. Hobby, Esq.
Telecopy No.: (000) 000-0000
Sprint: Sprint Corporation
0000 Xxxxxxx Xxxxxxx Xxxxxxx
Xxxxxxxx, Xxxxxx 00000
Attn: Chief Financial Officer
Telecopy No.: (000) 000-0000
with a copy to: Sprint Corporation
0000 Xxxxxxx Xxxxxxx Xxxxxxx
Xxxxxxxx, Xxxxxx 00000
Attn: Corporate Secretary
Telecopy No.: (000) 000-0000
with an additional copy to: King & Spalding
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxx III
Telecopy No.: (000) 000-0000
The Parties shall promptly notify each other of any change in their
respective addresses or facsimile numbers or of the Person or office to
receive notices, requests or other communications
21
under this Section 15.2. Notice shall be deemed to have been given as of the
date when so personally delivered, when physically delivered by the U.S.
Postal Service at the proper address, the next day when delivered during
business hours to an overnight delivery service properly addressed or when
receipt of a telex or telecopy is confirmed, as the case may be, unless the
sending Party has actual "knowledge" that such notice was not received by the
intended recipient. "Knowledge", for purposes hereof, shall mean the actual
knowledge of any of the executive officers and directors of a Party without
any duty to inquire or attribution of knowledge from any other person to the
person in such capacity.
Section 15.3. ENTIRE AGREEMENT. This Agreement embodies the entire
agreement and understanding of the Parties in respect to the matter
contemplated hereby and supersedes and renders null and void all other prior
agreements and understandings, written and oral, with respect to the subject
matter hereof, PROVIDED that this provision shall not abrogate any other
written agreement executed simultaneously with this Agreement by one or more
of the Parties to the Governance Agreement with respect to the Parties
signing such other agreement. No Party shall be liable or bound to any other
Party in any manner by any promises, conditions, representations, warranties,
covenants, agreements and understandings, except as specifically set forth
herein.
Section 15.4. WAIVER. Except as otherwise permitted in this
Agreement, the terms or conditions of this Agreement may not be waived unless
set forth in a writing signed by the Party entitled to the benefits thereof.
No waiver of any of the provisions of this Agreement shall be deemed or shall
constitute a waiver of such provision at any time in the future or a waiver
of any other provision hereof. The rights and remedies of the Parties are
cumulative and not alternative. Except as otherwise provided in this
Agreement, neither the failure nor any delay by any Party in exercising any
right, power or privilege under this Agreement, or any of the Ancillary
Agreements or the documents referred to in this Agreement or therein will
operate as a waiver of such right, power or privilege, and no single or
partial exercise of any such right, power or privilege will preclude any
other or further exercise of such right, power or privilege or the exercise
of any other right, power or privilege.
Section 15.5. SUCCESSORS AND ASSIGNS. Neither this Agreement nor any
of the rights, interests or obligations under this Agreement shall be
assigned or transferred, in whole or in part, by any of the Parties without
the prior written consent of the other Parties except as set forth in Article
11. Subject to the preceding sentence, this Agreement will be binding upon,
inure to the benefit of, and be enforceable by, the parties and their
respective successors and assigns; provided, that in connection with any
Change of Entity Transaction, the Company will cause the Successor Entity, at
or prior to the consummation of the Change of Entity Transaction, to assume
and agree to be bound by all of the Company's obligations under this
Agreement, and the Company shall deliver to Sprint an agreement executed by a
duly authorized officer of the Successor Entity to such effect. In such
event, all references to the Company in this Agreement shall be deemed to be
references to the Successor Entity.
Section 15.6. GOVERNING LAW. This Agreement shall be governed by the
laws of the State of Delaware, without regard to conflict of laws principles.
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Section 15.7. SEVERABILITY. If any term or provision of this
Agreement or the application thereof to either Party or set of circumstances
shall, in any jurisdiction and to any extent, be finally held invalid or
unenforceable, such term or provision shall only be ineffective as to such
jurisdiction, and only to the extent of such invalidity or unenforceability,
without invalidating or rendering unenforceable any other terms or provisions
of this Agreement or under any other circumstances, and the Parties shall
negotiate in good faith a substitute provision which comes as close as
possible to the invalidated or unenforceable term or provision, and which
puts each Party in a position as nearly comparable as possible to the
position it would have been in but for the finding of invalidity or
unenforceability, while remaining valid and enforceable.
Section 15.8. NO INCONSISTENT AGREEMENTS. The Company will not
hereafter enter into any agreement with respect to its securities which is
inconsistent with the rights granted to the Holders of Registrable Securities
in this Agreement.
Section 15.9. REMEDIES. The Parties hereto recognize and agree that
immediate irreparable damages for which there is no adequate remedy at law
would occur in the event that any provision of this Agreement is not
performed in accordance with the specific terms hereof or is otherwise
breached. It is accordingly agreed that in the event of a failure by a Party
to perform its obligations under this Agreement, the non-breaching Party
shall be entitled to specific performance through injunctive relief to
prevent breaches of the provisions of this Agreement and to enforce
specifically the provisions of this Agreement in any action instituted in
any court having subject matter jurisdiction, in addition to any other remedy
to which such Party may be entitled, at law or in equity.
Section 15.10. COUNTERPARTS. This Agreement may be executed in one
or more counterparts each of which when so executed and delivered shall for
all purposes be deemed to be an original but all of which, when taken
together, shall constitute one and the same Agreement.
Section 15.11. NO THIRD-PARTY BENEFICIARIES. Nothing in this
Agreement, express or implied, shall create or confer upon any Person
(including but not limited to any employees), other than the Parties or their
respective successors and permitted assigns, any legal or equitable rights,
remedies, obligations, liabilities or claims under or with respect to this
Agreement, except as expressly provided herein.
Section 15.12. INTERPRETATION. Each Party is a sophisticated legal
entity that was advised by experienced counsel and, to the extent it deemed
necessary, other advisors in connection with this Agreement. Accordingly,
each Party hereby acknowledges that no Party has relied or will rely in
respect of this Agreement or the transactions contemplated hereby upon any
document or written or oral information previously furnished to or discovered
by it or its representatives, other than this Agreement.
(a) No provision of this Agreement shall be interpreted in favor of
or against either of the Parties by reason of the extent to which either such
Party or its counsel participated in the drafting thereof or by reason of the
extent to which any such provision is inconsistent with any prior draft
hereof or thereof.
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Section 15.13. EXCLUSIVE JURISDICTION AND CONSENT TO SERVICE OF
PROCESS. The Parties agree that any Action arising out of or relating to this
Agreement, shall be brought by the Parties and held and determined only in a
Delaware state court or a federal court sitting in that State which shall be
the exclusive venue of any such Action. Each Party waives any objection which
such Party may now or hereafter have to the laying of venue of any such
Action, and irrevocably consents and submits to the jurisdiction of any such
court (and the appropriate appellate courts) in any such Action. Any and all
service of process and any other notice in any such Action shall be effective
against such Party when transmitted in accordance with Section 15.02. Nothing
contained herein shall be deemed to affect the right of any Party to serve
process in any manner permitted by Law. "Action," for purposes hereof, shall
mean any action, suit, arbitration, inquiry, proceeding or investigation by
or before any federal, state, foreign or local government, any of its
subdivisions, administrative agencies, authorities, commissions, boards or
bureaus, or any federal, state, foreign or local court or tribunal, or any
arbitrator.
Section 15.14. WAIVER OF JURY TRIAL. EACH OF THE PARTIES TO THIS
AGREEMENT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT THAT THEY
MAY HAVE TO A TRIAL BY JURY IN ANY ACTION INVOLVING, DIRECTLY OR INDIRECTLY,
ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY
ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT OR ANY OTHER
ANCILLARY AGREEMENT OR THE RELATIONSHIP ESTABLISHED HEREUNDER OR THEREUNDER.
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IN WITNESS WHEREOF, the parties have caused their respective duly
authorized officers to execute this Agreement as of the day and year first
above written.
EARTHLINK, INC.
By: /s/
-------------------------------
Name:
-------------------------
Title:
-------------------------
SPRINT CORPORATION
By: /s/
-------------------------------
Name:
-------------------------
Title:
-------------------------
SPRINT COMMUNICATIONS COMPANY L.P.
By: U. S. Telecom, Inc., General Partner
By: /s/
-------------------------------
Name:
-------------------------
Title:
-------------------------
[SIGNATURE PAGE FOR AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT]
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