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EXHIBIT 4.18
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement, is made as of August 7, 2000,
between Israel Discount Bank Ltd. ("Holder"), and Gilat-To-Home Inc., a
Delaware corporation (the "Company").
Reference is made to (i) that certain Series C Convertible Preferred
Stock Purchase Warrant executed and delivered by the Company in favor of the
Holder and dated as of the date hereof (as amended from time to time, the
"Warrant"), pursuant to which, among other things, the Company will issue and
sell to the Holder, upon the terms set forth therein, shares of Series C
Convertible Preferred Stock, par value $0.05 per share, of the Company (the
"Series C Preferred Stock") and (ii) the "Debt Conversion Letter" dated as of
June 26, 2000, addressed to Bank Leumi USA, as agent for the lenders party to
the Financing Agreement (as defined below), by the Company, pursuant to which,
among other things, the Holder and all lenders may convert up to $10 million of
the principal amount of loans made pursuant to the Financing Agreement (as
defined below) into Series D Convertible Preferred Stock, par value $0.05 per
share, of the Company.
The Company agrees for the benefit of the Holder from time to time of
the Registrable Securities (as defined herein) as follows:
1. Definitions. (a) As used in this Agreement and except as
otherwise defined herein, the following defined terms shall have the following
meanings:
"Affiliate" of any specified Person means any other Person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with such specified Person. For purposes of this definition, control of
a person means the power, direct or indirect, to direct or cause the direction
of the management and policies of such person whether by contract or otherwise.
"Applicable Securities" means, in relation to a Registration
Statement, the Registrable Securities identified in the related Demand Notice
or Piggy-back Notice.
"Business Day" means a day other than a Saturday, Sunday or other day
on which banks located in New York are authorized or required by law to close.
"Closing" means the closing of the transactions contemplated by the
Financing Agreement.
"Closing Date" means the date and the time that the Closing is
effected.
"Commission" means the United States Securities and Exchange
Commission.
"Common Stock" means the common stock, par value $0.05 per share, of
the Company (or such other security of the Company into which common stock may
be reconstituted).
"Debt Conversion Letter" shall have the meaning set forth in the
Recitals.
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"Demand Notice" means a notice given by the Holder pursuant to Section
2(a).
"Effectiveness Period" means, as to a Registration Statement, the
period during which such Registration Statement is effective.
"Effective Time" means the date on which the Commission declares a
Registration Statement effective or on which a Registration Statement otherwise
becomes effective.
"Electing Holder" means, with respect to a Registration, any Person
that has delivered a Demand Notice or a Piggy-back Notice hereunder or under
the Parallel Registration Rights Agreement.
"Exchange Act" means the United States Securities and Exchange Act of
1934, as amended.
"Financing Agreement" means the Financing Agreement dated as of June
26, 2000, by and among the Company, the financial institutions from time to
time party thereto, and Bank Leumi USA, as agent, as amended, supplemented or
otherwise modified from time to time.
"Holder" means Israel Discount Bank Ltd., or its registered assigns.
"Intended Offering Notice" shall have the meaning set forth in Section
3(a).
"Microsoft" means Microsoft G- Holdings, Inc., a Nevada corporation
and a wholly owned subsidiary of Microsoft Corporation, a Washington
corporation.
"NASD Rules" means the Rules of the National Association of Securities
Dealers, Inc., as amended from time to time.
"Notice and Questionnaire" means a Notice of Registration Statement
and Questionnaire substantially in the form of Exhibit A hereto.
"Parallel Registration Rights Agreement" means the Registration Rights
Agreement, dated as of February 15, 2000, by and among Microsoft, the Company,
and Spacenet, as amended and joined pursuant to the Amendment and Joinder to
Registration Rights Agreement, dated as of April 11, 2000, by and among
EchoStar Communications Corporation, a Nevada corporation, Xxxxxx Xxxx
Investors II L.P., FS Employee Investors LLC, Microsoft, the Company and
Spacenet.
"Person" means an individual, partnership, corporation, trust, limited
liability company or unincorporated organization, or other entity or
organization, including a government or agency or political subdivision
thereof.
"Piggy-back Notice" means a Notice given by the Holder pursuant to
Section 3(a) hereof or any other Person pursuant to Section 3(a) of the
Parallel Registration Rights Agreement.
"Preferred Stock" means Series C Preferred Stock and Series D
Preferred Stock issued by the Company pursuant to the Warrant or the Debt
Conversion Letter.
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"Prospectus" means the prospectus (including, without limitation, any
preliminary prospectus, any final prospectus and any prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
Registration Statement in reliance upon Rule 430A under the Securities Act)
included in Registration Statement, as amended or supplemented by any
prospectus supplement with respect to the terms of the offering of any portion
of the Applicable Securities covered by a Registration Statement or by all
other amendments and supplements to such prospectus, including all material
incorporated by reference in such prospectus and all documents filed after the
date of such prospectus by the Company under the Exchange Act and incorporated
by reference therein.
"Public Offering" shall mean, with respect to the Company, the earlier
to occur of (a) the completion of an underwritten sale of common equity
interests of the Company and (b) the time at which the Company becomes subject
to the periodic reporting requirements of Section 13 of the Exchange Act.
"Registrable Securities" means Underlying Stock, other than
Unrestricted Securities.
"Registration" means a registration under the Securities Act effected
pursuant to Section 2 or Section 3 hereof or Section 2 or 3 of the Parallel
Registration Rights Agreement.
"Registration Expenses" means all expenses incident to the Company's
performance of or compliance with any Registration of Registrable Securities,
including, without limitation, all registration, filing and National
Association of Securities Dealers, Inc. fees, fees of any stock exchange upon
which the Registrable Securities are listed, all fees and expenses of complying
with securities or blue sky laws, all word processing, duplicating and printing
expenses, messenger and delivery expenses, the fees and disbursements of
counsel for the Company and of its independent public accountants, including
the expenses of any special audits or "comfort" letters required by or incident
to such performance and compliance, premiums and other costs of policies of
insurance obtained by the Company against liabilities arising out of the public
offering of Registrable Securities being registered and any fees and
disbursements of underwriters customarily paid by issuers, but excluding fees
and disbursements of counsel retained by any Holders, premiums and other costs
of policies of insurance obtained by any Holders or their agents or
underwriters against liabilities arising out of the public offering of the
Registrable Securities being registered, any fees and disbursements of
underwriters customarily paid by sellers of securities who are not the issuers
of such securities and all underwriting discounts and commissions and transfer
taxes, if any, relating to Registrable Securities.
"Registration Statement" means a registration statement filed under
the Securities Act by the Company pursuant to the provisions of Section 2 or
Section 3 hereof, or Section 2 or Section 3 of the Parallel Registration Rights
Agreement, including the Prospectus contained therein, any amendments and
supplements to such registration statement, including post-effective amendments
and all exhibits and all material incorporated by reference in such
registration statement.
"Rules and Regulations" means the published rules and regulations of
the Commission promulgated under the Securities Act or the Exchange Act, as in
effect at any relevant time.
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"Series C Preferred Stock" shall have the meaning set forth in the
Recitals to this Agreement.
"Series D Preferred Stock" shall have the meaning set forth in the
Recitals to this Agreement.
"Spacenet" means Spacenet Inc., a Delaware corporation and a wholly
owned subsidiary of Gilat Satellite Networks Ltd., a company organized under
the laws of Israel.
"Underlying Stock" means the Common Stock of the Holder and shares of
Common Stock issued upon the conversion of any Preferred Stock issued pursuant
to the Warrant or the Debt Conversion Letter.
"Unrestricted Securities" means any Underlying Stock that (i) has been
registered under an effective registration statement under the Securities Act,
(ii) has been transferred in compliance with Rule 144 under the Securities Act
(or any successor provision thereto) under circumstances in which any legend
relating to restrictions on transfer under the Securities Act is removed, (iii)
is transferable pursuant to paragraph (k) of Rule 144 (or any successor
provision thereto) or (iv) has otherwise been transferred and a new security
not subject to transfer restrictions under the Securities Act has been
delivered upon such transfer by or on behalf of the Company.
"Warrant" shall have the meaning set forth in the Recitals.
"$" means United States dollars.
(b) The words "include," "includes" and "including," when used in
this Agreement, shall be deemed to be followed by the words "without
limitation."
(c) The words "hereof," "herein," and "hereunder" and words of
similar import, when used in this Agreement, shall refer to this Agreement as a
whole and not to any particular provision of this Agreement.
(d) The terms defined in the singular shall have a comparable
meaning when used in the plural, and vice versa.
2. Demand Registration. (a) The Holder shall have the right, at
any time after the Public Offering, to require the Company to register for
offer and sale under the Securities Act all or a portion of the Registrable
Securities then held by the Holder; it being understood that the Holder may
exercise its rights under this Section 2(a) on not more than three occasions in
the aggregate. As promptly as practicable after the Company receives a notice
from the Holder (a "Demand Notice") demanding that the Company register for
offer and sale under the Securities Act Registrable Securities consisting, as
to each Registration, of an amount of Registrable Securities held by the Holder
having an estimated market value of $5 million, subject to Section 2(b), the
Company shall (i) prepare and, within 60 days after such request, file with the
Commission a Registration Statement relating to the offer and sale of the
Applicable Securities on such form as the Company may reasonably deem
appropriate (provided that the Company shall not, unless the Company otherwise
consents, be obligated to register any securities on a
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"shelf" registration statement or otherwise to register securities for offer or
sale on a continuous or delayed basis) and, thereafter, (ii) use reasonable
efforts to cause such Registration Statement to be declared effective under the
Securities Act as promptly as practicable after the date of filing of such
Registration Statement. Subject to Section 2(b), the Company shall use
reasonable efforts to keep each Registration Statement continuously effective
in order to permit the Prospectus forming a part thereof to be usable by the
Holder for resales of Applicable Securities for an Effectiveness Period ending
on the earlier of (i) 30 days from the Effective Time of such Registration
Statement or (ii) such time as all of such Applicable Securities have been
disposed of by the Holder.
(b) The Company shall have the right to postpone (or, if
necessary or advisable, withdraw) the filing, or delay the effectiveness, of a
Registration Statement, or fail to keep such Registration Statement
continuously effective or not amend or supplement the Registration Statement or
included Prospectus, if (i) the filing or causing to be declared effective or
keeping continuously effective any such Registration Statement would require an
audit of the Company's financial statements at a time such audit would not
otherwise be required pursuant to the Exchange Act, (ii) the Company determines
in good faith and on the advice of counsel that it would be required to
disclose in such Registration Statement information which the Company has not
otherwise publicly disclosed and is not at the time required to publicly
disclose, (iii) the Company determines in good faith that such Registration
would interfere with any pending financing, acquisition, corporate
reorganization or any other corporate development involving the Company or any
of its subsidiaries or (iv) within the 90 day period preceding the receipt by
the Company of a Demand Notice, the Company has effected any other registration
of its securities; provided that the Company may postpone a Demand Registration
no more than once in any 18 month period and that any such postponement period
shall not exceed 90 days in the aggregate. The Company shall advise the Holder
of any such determination as promptly as practicable.
(c) The Company may include in any registration requested
pursuant to Section 2(a) hereof other securities for sale for its own account
or for the account of another Person, subject to the following sentence. In
connection with an underwritten offering pursuant to Section 2(a) hereof, if
the managing underwriter or underwriters advise the Company that in its or
their opinion the number of securities requested to be registered exceeds the
number which can be sold in such offering, the Company shall include in such
Registration the number of securities that, in the opinion of such managing
underwriter or underwriters, can be sold as follows: (i) first, the Applicable
Securities requested to be registered, (ii) second, any other Registrable
Securities requested to be included in such Registration pursuant to Section
3(a) hereof and (iii) third, any other securities requested to be included in
such Registration.
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(d) The Holder shall have the right to withdraw such request for
Registration under Section 2(a) (i) prior to the time the Registration
Statement in respect of such Registration has been declared effective, (ii)
upon the issuance by a governmental agency or the Commission of a stop order,
injunction or other order which interferes with such Registration, (iii) upon
the Company availing itself of Section 2(b) hereof, or (iv) if the Holder is
prevented pursuant to Section 2(c) hereof from selling any of the Applicable
Securities it requested to be registered; it being understood that such
Registration shall be deemed not to have been requested for purposes of Section
2(a) hereof if the Holder withdraws its request pursuant to clause (i), (ii),
(iii) or (iv) above. If the Holder withdraws a request made pursuant to Section
2(a) but the Company nevertheless determines to complete, within 30 days after
such withdrawal, the Registration so requested as to securities other than the
Applicable Securities, the Holder shall be entitled to participate in such
Registration pursuant to Section 3 hereof, but in such case the Intended
Offering Notice shall be required to be given to the Holder at least 10
business days prior to the anticipated filing date of the Registration
Statement and the Holder shall be required to give the Piggy-back Notice no
later than 5 business day after the Company's delivery of such Intended
Offering Notice.
(e) In the event that any Registration pursuant to this Section 2
shall involve, in whole or in part, an underwritten offering, the managing
underwriter or underwriters shall be selected by the Company in good faith and
shall be reasonably satisfactory to the Holder.
3. Piggy-back Registration. (a) If at any time after a Public
Offering the Company intends to file on its behalf or on behalf of any of its
securityholders a registration statement in connection with a public offering
of any securities of the Company on a form and in a manner that would permit
the registration for offer and sale under the Securities Act of Registrable
Securities of the same class held by the Holder, other than a registration
statement on Form S-8 or Form S-4 (or any successor forms) or in any other
transaction of the type specified in Rule 145 under the Securities Act (or any
successor forms), then the Company shall give written notice (an "Intended
Offering Notice") of such intention to the Holder at least 20 Business Days
prior to the anticipated filing date of such registration statement. Such
Intended Offering Notice shall offer to include in such registration statement
for offer to the public such number of Registrable Securities as the Holder may
request subject to the conditions set forth herein, and shall specify, to the
extent then known, the number and class of securities proposed to be
registered, the proposed date of filing of such registration statement, any
proposed means of distribution of such securities, any proposed managing
underwriter or underwriters of such securities and a good faith estimate by the
Company of the proposed maximum offering price of such securities, as such
price is proposed to appear on the facing page of such registration statement.
If the Holder desires to have Registrable Securities included in such
registration statement and offered to the public it shall so advise the Company
in writing (the written notice of the Holder being a "Piggy-back Notice") not
later than 10 Business Days after the Company's delivery to the Holder of the
Intended Offering Notice, setting forth the number of Registrable Securities
that the Holder desires to have included in the registration statement and
offered to the public. Upon the request of the Company, the Holder shall enter
into such underwriting, custody and other agreements as shall be customary in
connection with registered secondary offerings or necessary or appropriate in
connection with the proposed offering.
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(b) In connection with an underwritten offering, if the managing
underwriter or underwriters advise the Company in writing that in its or their
opinion the number of securities proposed to be registered exceeds the number
that can be sold in such offering, the Company shall include in such
Registration the number of securities that, in the opinion of such managing
underwriter or underwriters, can be sold as follows: (i) first, the securities
that the Company proposes to sell on its own behalf or, if the Registration is
in response to a demand registration right of the Holder pursuant to Section
2(a) hereof, or any other Person pursuant to Section 2(a) of the Parallel
Registration Rights Agreement the Applicable Securities requested to be
registered pursuant to the applicable demand registration request, and (ii)
second, pro rata among the Applicable Securities requested to be included in
such Registration pursuant to the terms of Section 3(a) hereof and Section 3(a)
of the Parallel Registration Rights Agreement (iii) third, if any, securities
held by other shareholders of the Company who have requested that their
securities be included in such Registration Statement.
(c) The rights of the Holders pursuant to Section 2 hereof and
this Section 3 are cumulative, and the exercise of rights under one such Section
shall not exclude the subsequent exercise of rights under the other such Section
(except to the extent expressly provided otherwise herein). Subject to Section 2
hereof, the Company may abandon and/or withdraw any registration as to which
rights under Section 3 may exist at any time and for any reason without
liability hereunder. In such event, the Company shall promptly notify each
Person that has delivered a Piggy back Notice to participate therein.
4. Registration Procedures. In connection with a Registration
Statement, the following provisions shall apply:
(a) The Holder shall in a timely manner (i) deliver to the Company
and its counsel a duly completed Notice and Questionnaire and (ii) provide the
Company and its counsel with such other information as to itself as may be
required by law for inclusion in the Registration Statement.
(b) The Company shall furnish to the Holder, prior to the
Effective Time, a copy of the Registration Statement initially filed with the
Commission, and shall furnish to the Holder copies of each amendment thereto and
each amendment or supplement, if any, to the Prospectus included therein.
(c) Subject to Section 2(b) and in respect of a Registration
Statement under Section 2 (and not Section 3), the Company shall promptly take
such action as may be reasonably necessary so that (i) each of the Registration
Statement and any amendment thereto and the Prospectus forming part thereof and
any amendment or supplement thereto (and each report or other document
incorporated therein by reference in each case), when it becomes effective,
complies in all material respects with the Securities Act and the Exchange Act
and the respective rules and regulations thereunder, (ii) each of the
Registration Statement and any amendment thereto does not, when it becomes
effective, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading and (iii) each of the Prospectus forming part of the
Registration Statement and any amendment or supplement to such Prospectus, does
not at any time during the period during which the Company is required to keep a
Registration Statement continuously effective
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under Section 2(a) include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(d) The Company shall, promptly upon learning thereof, advise the
Holder, and shall confirm such advice in writing if so requested by the Holder:
(i) when the Registration Statement and any amendment
thereto has been filed with the Commission and when the Registration
Statement or any post-effective amendment thereto has become
effective;
(ii) of any request by the Commission for amendments or
supplements to the Registration Statement or the Prospectus included
therein or for additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for such purpose;
(iv) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the securities
included in the Registration Statement for sale in any jurisdiction or
the initiation of any proceeding for such purpose; and
(v) following the effectiveness of any Registration
Statement, of the happening of any event or the existence of any state
of facts that requires the making of any changes in the Registration
Statement or the Prospectus included therein so that, as of such date,
such Registration Statement and Prospectus do not contain an untrue
statement of a material fact and do not omit to state a material fact
required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in light of the circumstances
under which they were made) not misleading (which advice shall be
accompanied by an instruction to the Holder to suspend the use of the
Prospectus until the requisite changes have been made, which
instruction the Holder agrees to follow).
(e) In respect of a Registration Statement under Section 2 (and
not Section 3), the Company agrees to use its reasonable best efforts to
prevent the issuance, and if issued to obtain the withdrawal, of any order
suspending the effectiveness of the Registration Statement at the earliest
possible time.
(f) The Company shall furnish to the Holder, without charge, at
least one copy of the Registration Statement and all post-effective amendments
thereto, including financial statements and schedules, and, if the Holder so
requests in writing, all reports, other documents and exhibits that are filed
with or incorporated by reference in the Registration Statement.
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(g) The Company shall, during the period during which the Company
is required to keep a Registration Statement continuously effective under
Section 2(a) or elects to keep effective under Section 3(a), deliver to the
Holder, without charge, as many copies of the Prospectus (including each
preliminary Prospectus) included in the Registration Statement and any
amendment or supplement thereto as the Holder may reasonably request; and the
Company consents (except during the continuance of any event described in
Section 2(b) or Section 4(d)(v) hereof) to the use of the Prospectus, with any
amendment or supplement thereto, by the Holder in connection with the offering
and sale of the Applicable Securities covered by the Prospectus and any
amendment or supplement thereto during such period.
(h) Prior to any offering of Applicable Securities pursuant to
the Registration Statement, the Company shall (1) use reasonable efforts to
register or qualify or cooperate with the Electing Holders and their respective
counsel in connection with the registration or qualification of such Applicable
Securities for offer and sale under any applicable securities or "blue sky"
laws of such jurisdictions within the United States as any Electing Holder may
reasonably request, (2) use reasonable efforts to keep such registrations or
qualifications in effect and comply with such laws so as to permit the
continuance of offers and sales in such jurisdictions for the period during
which the Company is required to keep a Registration Statement continuously
effective under Section 2(a) or elects to keep effective under Section 3(a) and
(3) take any and all other actions reasonably requested by an Electing Holder
which are necessary or advisable to enable the disposition in such
jurisdictions of such Applicable Securities; provided, however, that nothing
contained in this Section 4(h) shall require the Company to (A) qualify as a
foreign corporation or as a dealer in securities in any jurisdiction where it
would not otherwise be required to qualify but for this Section 4(h) or (B)
take any action which would subject it to general service of process or
taxation in any such jurisdiction if it is not then so subject.
(i) The Company shall, if requested by the Electing Holders, use
reasonable best efforts to cause all such Applicable Securities to be sold
pursuant to the Registration Statement to be listed on any securities exchange
on which securities of the Company are listed.
(j) The Company shall cooperate with the Electing Holders to
facilitate the timely preparation and delivery of certificates representing
Applicable Securities to be sold pursuant to the Registration Statement, which
certificates shall comply with the requirements of any securities exchange upon
which any securities of the Company are listed, and which certificates shall be
free of any restrictive legends and in such permitted denominations and
registered in such names as the Electing Holders may request in connection with
the sale of Applicable Securities pursuant to the Registration Statement.
(k) Subject to Section 2(b) hereof, upon the occurrence of any
fact or event contemplated by Section 4(d)(v) hereof, the Company shall
promptly prepare a post-effective amendment or supplement to the Registration
Statement or the Prospectus, or any document incorporated therein by reference,
or file any other required document so that, as thereafter delivered to
purchasers of the Applicable Securities included therein, the Prospectus will
not include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. In the event that the
Company notifies the Electing Holders of the occurrence of any
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event contemplated by Section 4(d)(v) hereof, the Holder agrees, as a condition
of the inclusion of any of the Holder's Applicable Securities in the
Registration Statement, to suspend the use of the Prospectus until the
requisite changes to the Prospectus have been made.
(l) The Company shall enter into such customary agreements
(including an underwriting agreement in customary form in the event of an
underwritten offering) and take all other appropriate action in order to
expedite and facilitate the registration and disposition of the Registrable
Securities, and in connection therewith, if an underwriting agreement is
entered into, cause the same to contain indemnification provisions and
procedures substantially identical to those set forth in Section 6 hereof with
respect to all parties to be indemnified pursuant to Section 6 hereof.
(m) The Company shall use best efforts to:
(i) (A) make available for inspection by the Electing
Holders, any underwriter participating in any disposition pursuant to
the Registration Statement, and any attorney, accountant or other
agent retained by such Holders or any such underwriter all relevant
financial and other records, pertinent corporate documents and
properties of the Company and its subsidiaries, and (B) cause the
Company's officers, directors and employees to supply all information
reasonably requested by such Electing Holders or any such underwriter,
attorney, accountant or agent in connection with the Registration
Statement, in each case, as is customary for similar due diligence
examinations; provided, however, that all records, information and
documents that are designated in writing by the Company, in good
faith, as confidential shall be kept confidential by such Electing
Holders and any such underwriter, attorney, accountant or agent,
unless such disclosure is made in connection with a court proceeding
or required by law, or such records, information or documents become
available to the public generally or through a third party without an
accompanying obligation of confidentiality; and provided further that,
if the foregoing inspection and information gathering would otherwise
disrupt the Company's conduct of it business, such inspection and
information gathering shall, to the greatest extent possible, be
coordinated on behalf of the Electing Holders and the other parties
entitled thereto by one counsel designated by and on behalf of the
Electing Holders and other parties;
(ii) in connection with any underwritten offering, obtain
opinions of counsel to the Company (which counsel and opinions (in
form, scope and substance) shall be reasonably satisfactory to the
underwriters) addressed to the underwriters, covering such matters
customarily covered in opinions requested in secondary underwritten
offerings of equity securities, to the extent reasonably required by
the applicable underwriting agreement;
(iii) in connection with any underwritten offering, obtain
"cold comfort" letters and updates thereof from the independent public
accountants of the Company (and, if necessary, from the independent
public accountants of any subsidiary of the Company or of any business
acquired by the Company for which financial statements and financial
data are, or are required to be, included in the Registration
Statement), addressed to each Electing Holder participating in such
underwritten offering (if such Electing Holder has
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provided such letter, representations or documentation, if any,
required for such cold comfort letter to be so addressed) and the
underwriters, in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with
secondary underwritten offerings of Company securities; and
(iv) in connection with any underwritten offering,
deliver such documents and certificates as may be reasonably requested
by any Electing Holders participating in such underwritten offering
and the underwriters, if any, including, without limitation,
certificates to evidence compliance with any conditions contained in
the underwriting agreement or other agreements entered into by the
Company.
(n) In respect of a Registration Statement under Section 2 (and
not Section 3), the Company shall use best efforts to take all other steps
necessary to effect the timely registration, offering and sale of the
Applicable Securities covered by the Registration Statement contemplated
hereby.
5. Registration Expenses. The Company shall bear the
Registration Expenses in connection with the performance of its obligations
under Sections 2, 3 and 4 hereof. The Electing Holders shall bear all other
expenses relating to any Registration or sale in which such Electing Holders
participate, including without limitation the fees and expenses of counsel to
such Electing Holders and any applicable underwriting discounts or commissions.
6. Indemnification and Contribution. (a) Upon the Registration
of Applicable Securities pursuant to Section 2 or 3 hereof, the Company shall
indemnify and hold harmless the Holder and each underwriter, selling agent or
other securities professional, if any, which facilitates the disposition of
Applicable Securities, and each of their respective officers and directors and
each person who controls the Holder, underwriter, selling agent or other
securities professional within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act (each such person being sometimes referred to
as an "Indemnified Person") against any losses, claims, damages or liabilities,
joint or several, to which such Indemnified Person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in
any Registration Statement under which such Applicable Securities are to be
registered under the Securities Act, any Prospectus contained therein or
furnished by the Company to any Indemnified Person, or any amendment or
supplement thereto, 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 or otherwise arise out
of or are based upon the Registration Statement, and the Company hereby agrees
to reimburse such Indemnified Person for any legal or other expenses reasonably
incurred by it in connection with investigating or defending any such action or
claim as such expenses are incurred; provided, however, that the Company shall
not be liable to any such Indemnified Person in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon
an untrue statement or alleged untrue statement or omission or alleged omission
made in such Registration Statement or Prospectus, or amendment or supplement,
in reliance upon and in conformity with written information furnished to the
Company by such Indemnified Person or its agent expressly for use therein;
provided, further, however, that the Company shall not be liable to the extent
that any loss,
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claim, damage, liability (or action or proceeding in respect thereof) or
expense arises out of or is based upon (i) the use of any Prospectus after such
time as the obligation of the Company to keep the same effective and current
has expired, or (ii) the use of any Prospectus after such time as the Company
has advised the Holder in writing that a post-effective amendment or supplement
thereto is required, except such Prospectus as so amended or supplemented; and
provided, further, however, that the Company shall not be liable to any Person
who participates as an underwriter in the offering or sale of Registrable
Securities or any other Person, if any, who controls such underwriter within
the meaning of the Securities Act, to the extent that any loss, claim, damage,
liability (or action or proceeding in respect thereof) or expense arises out of
the matters described in the first proviso of this sentence or in (i) or (ii)
above or such Person's failure to send or give a copy of the final Prospectus
or supplement to the Persons asserting an untrue statement or alleged untrue
statement or omission or alleged omission at or prior to the written
confirmation of the sale of Registrable Securities to such Person if such
statement or omission was timely corrected in such final Prospectus or
supplement.
(b) The Holder agrees, as a consequence of the inclusion of any
of the Holder's Applicable Securities in such Registration Statement, and shall
cause each underwriter, selling agent or other securities professional, if any,
which facilitates the disposition of Applicable Securities to agree, as a
consequence of facilitating such disposition of Applicable Securities,
severally and not jointly, to (i) indemnify and hold harmless the Company, its
directors and officers and each Person, if any, who controls the Company within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, against any losses, claims, damages or liabilities to which the
Company or such other Person may become subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in such Registration
Statement or Prospectus, or any amendment or supplement, 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, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information furnished
to the Company by such Holder, underwriter, selling agent or other securities
professional or its agent expressly for use therein, and (ii) reimburse the
Company for any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such action or claim as such
expenses are incurred.
(c) Promptly after receipt by any Person entitled to indemnity
(an "Indemnitee") under Section 6(a) or (b) hereof of notice of the
commencement of any action or claim, such Indemnitee shall, if a claim in
respect thereof is to be made against an Indemnitor (an "Indemnitor") under
this Section 6, notify such Indemnitor in writing of the commencement thereof;
but the omission so to notify the Indemnitor shall not relieve it from any
liability which it may have to any Indemnitee except to the extent of any
actual prejudice. In case any such action shall be brought against any
Indemnitee and it shall notify an Indemnitor of the commencement thereof, such
Indemnitor shall be entitled to participate therein and, to the extent that it
shall wish, jointly with any other Indemnitor similarly notified, to assume the
defense thereof, with counsel satisfactory to such Indemnitee, and, after
notice from the Indemnitor to such Indemnitee of its election so to assume the
defense thereof, such Indemnitor shall not be
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liable to such Indemnitee under this Section 6 for any legal expenses of other
counsel or any other expenses, in each case subsequently incurred by such
Indemnitee, in connection with the defense thereof, unless the Indemnitee
identifies issues which would be reasonably likely to create a conflict of
interest between the Indemnitee and the Indemnitor, in which case the
Indemnitee shall be entitled to retain counsel and participate in the defense
of the claim or demand at the expense of the Indemnitor. No Indemnitor shall,
without the written consent of the Indemnitee, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the Indemnitee is an
actual or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the Indemnitee
from all liability arising out of such action or claim and (ii) does not
include a statement as to, or an admission of, fault, culpability or a failure
to act, by or on behalf of any Indemnitee.
(d) If the indemnification provided for in this Section 6 is
unavailable to or insufficient to hold harmless an Indemnitee under Section
6(a) or (b) hereof in respect of any losses, claims, damages or liabilities (or
actions in respect thereof) referred to therein, then each Indemnitor shall
contribute to the amount paid or payable by such Indemnitee as a result of such
losses, claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative fault of the Indemnitor
and the Indemnitee in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
fault of such Indemnitor and Indemnitee 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 Indemnitor or by such Indemnitee, 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 6(d)
were determined solely by pro rata allocation (even if the Electing Holders or
any underwriters, selling agents or other securities professionals 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 6(d). The amount paid or payable by an Indemnitee as a
result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above shall be deemed to include any legal or other fees
or expenses reasonably incurred by such Indemnitee in connection with
investigating or defending any such action or claim. 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 obligations of the Electing
Holders and any underwriters, selling agents or other securities professionals
in this Section 6(d) to contribute shall be several in proportion to the
percentage of principal amount of Applicable Securities registered or
underwritten, as the case may be, by them and not joint.
(e) Notwithstanding any other provision of this Section 6, in no
event will (i) the Holder be required to undertake liability to any Person
under this Section 6 for any amounts in excess of the dollar amount of the
proceeds to be received by such Holder from the sale of such Holder's
Applicable Securities (after deducting any fees, discounts and commissions
applicable thereto) pursuant to any Registration Statement under which such
Applicable Securities are to be
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registered under the Securities Act and (ii) any Underwriter, selling agent or
other securities professional be required to undertake liability to any Person
hereunder for any amounts in excess of the discount, commission or other
compensation payable to such Underwriter, selling agent or other securities
professional with respect to the Applicable Securities underwritten by it and
distributed to the public. The obligation of the Company under this Section 6
shall be in addition to any liability which the Company may otherwise have to
any Indemnitee and the obligations of any Indemnified Person under this Section
6 shall be in addition to any liability which such Indemnified Person may
otherwise have to the Company. The remedies provided in this Section are not
exclusive and shall not limit any rights or remedies that may otherwise be
available to an Indemnitee at law or in equity.
7. Effectiveness; Termination. (a) This Agreement shall become
effective immediately upon the occurrence of the Closing.
(b) This Agreement shall terminate in the event that the
Financing Agreement is terminated prior to the Closing in accordance with its
terms.
(c) In the event of the termination of this Agreement in
accordance with Section 7(b) hereof, this Agreement shall thereafter become
void and have no effect, and no party hereto shall have any liability to the
other parties hereto or their respective Affiliates, directors, officers or
employees.
8. Miscellaneous. (a) This Agreement, including this Section
8(a), may be amended, and waivers or consents to departures from the provisions
hereof may be given, only by a written instrument duly executed, in the case of
an amendment, by the Company and the Holder, or in the case of a waiver or
consent, by the party against whom the waiver or consent, as the case may be,
is to be effective. The Holder at the time of any such amendment, waiver or
consent or thereafter shall be bound by any amendment, waiver or consent
effected pursuant to this Section 8(a), whether or not any notice, writing or
marking indicating such amendment, waiver or consent appears on the Registrable
Securities.
(b) All notices, requests and other communications to any party
hereunder shall be in writing (including facsimile transmission) and shall be
given as follows:
if to the Company, to:
c/o Spacenet Inc.
0000 Xxx Xxxxxx Xxxx
XxXxxx, Xxxxxxxx 00000
Attention: Zur Xxxxxxx
Fax: (000) 000-0000
if to the Holder, to:
Israel Discount Bank Ltd.
00-00 Xxxxxx Xxxxxx Xxxxxx
Xxx Xxxx
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Attention: Mr. Xxxxxx Xxxx / Xxxxx Xxxxxx
Fax: 00-0000000
with a copy to:
Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
(c) The parties to this Agreement intend that the Holder shall be
entitled to receive the benefits of and shall be bound by the terms and
provisions of this Agreement. The terms and provisions of this Agreement shall
not be assignable or transferable and there shall be no third-party
beneficiaries hereto, except that the rights under this Agreement may be
assigned in whole or in part by the Holder to any transferee of (i) the
Warrant, (ii) rights under the Debt Conversion Letter, or (iii) Preferred
Stock. All the terms and provisions of this Agreement shall be binding upon,
shall inure to the benefit of and shall be enforceable by the respective legal
successors and permitted assigns of the parties hereto and any Holder.
(d) This Agreement may be executed in any number of counterparts
and by the parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement.
(e) The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(f) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS.
(g) The provisions of this Agreement shall be deemed severable
and the invalidity or unenforceablity of any provision shall not affect the
validity or enforceability of the other provisions hereof. If any provisions of
this Agreement, or the application thereof to any Person or entity or any
circumstance, is invalid or unenforceable, (i) a suitable and equitable
provision shall be substituted therefor in order to carry out, so far as may be
valid and enforceable the intent of such provision and (ii) the remainder of
this Agreement and the application of such provision to other Persons, entities
or circumstances shall not be affected by such invalidity or unenforceability,
nor shall such invalidity or unenforceablity affect the validity or
enforceability of such provision, or the application thereof, in any other
jurisdiction.
(h) The respective indemnities, agreements, representations,
warranties and other provisions set forth in this Agreement or made pursuant
hereto shall remain in full force and effect, regardless of any investigation
(or any statement as to the results thereof) made by or on behalf of the
Holder, any director, officer or partner of the Holder, any agent or
underwriter, any director, officer or partner of such agent or underwriter, or
any controlling person of any of the
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foregoing, and shall survive the transfer and registration of the Applicable
Securities of such Holder .
(i) The Holder shall cooperate with respect to any Registration
effected under this Agreement and shall provide such information, documents,
and instruments as may be reasonably requested in connection therewith.
(j) Within thirty (30) days of the date hereof the Company shall
have received consent to the Company's execution, delivery and performance of
this Agreement from each of the parties to the Parallel Registration Rights
Agreement, in which consent such parties shall agree that, to the extent that
this Agreement conflicts with the Parallel Registration Rights Agreement, the
terms of this Agreement shall govern until all of the Holder's Registrable
Securities have been registered pursuant to an effective Registration
Statement. The failure of the Company to obtain such consent within 30 days
shall constitute an "Event of Default" under the Financing Agreement (as such
term is defined therein)
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective authorized officers as of the day
and year first above written.
ISRAEL DISCOUNT BANK LTD.
By: /s/ XXXXXX X. XXXXXX
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: VP
By: /s/ XXXXXXX X. XXXXXXX
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title:
GILAT-TO-HOME INC.
By: /s/ XXXX GAT
---------------------------------
Name:
Title:
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Exhibit A
[Name of Issuer]
Notice of Registration Statement
and
Selling Securityholder Questionnaire
[Date]
Reference is hereby made to the Registration Rights
Agreement, dated as of August 7, 2000 (the "Registration Rights Agreement") by
and among Gilat-To-Home Inc. (the "Company"), and Israel Discount Bank Ltd. The
Company [has filed] with the United States Securities and Exchange Commission
(the "Commission") a registration statement on Form _______ (the "Registration
Statement") for the registration and resale under the Securities Act of 1933,
as amended (the "Securities Act"), of the Company's [Title of Securities] (the
"Securities"). All capitalized terms not otherwise defined herein shall have
the meanings ascribed thereto in the Registration Rights Agreement.
Each Holder of Registrable Securities is entitled to have the
Registrable Securities owned by it included in the Registration Statement. In
order to have Registrable Securities included in the Registration Statement,
this Notice of Registration Statement and Selling Securityholder Questionnaire
("Notice and Questionnaire") must be completed, executed and delivered to the
Company's legal counsel at the address set forth herein. Holders of Registrable
Securities who do not complete, execute and return this Notice and
Questionnaire (i) will not be named as selling securityholders in the
Registration Statement and (ii) may not use the Prospectus forming a part
thereof for resales of Registrable Securities.
Certain legal consequences arise from being named as a
selling securityholder in the Registration Statement and related Prospectus.
Accordingly, Holders of Registrable Securities are advised to consult their own
securities law counsel regarding the consequences of being named or not being
named as a selling securityholder in the Registration Statement and related
Prospectus.
19
ELECTION
The undersigned Holder (the "Electing Holder") of Registrable
Securities hereby elects to request the inclusion in the Registration Statement
of the Registrable Securities beneficially owned by it and listed below in Item
(3). The undersigned, by signing and returning this Notice and Questionnaire,
agrees to be bound with respect to such Registrable Securities by the terms and
conditions of this Notice and Questionnaire and, if not a party thereto, the
Registration Rights Agreement, including, without limitation, Section 6 of the
Registration Rights Agreement, as if the undersigned Electing Holder were an
original party thereto.
The Electing Holder hereby provides the following information
to the Company and represents and warrants that such information is accurate
and complete:
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QUESTIONNAIRE
(1) (a) Full Legal Name of Electing Holder:
(b) Full Legal Name of Registered Holder (if not the same as in
(a) above) of Registrable Securities Listed in (3) below:
(2) Address for Notices to Electing Holder:
Telephone:
Fax:
Contact Person:
(3) Except as set forth below in this Item (3), the undersigned does not
beneficially own any Securities.
(a) Principal amount or number of Securities beneficially owned:
(b) Principal amount or number of Registrable Securities which
the undersigned wishes to be included in the Registration
Statement: _____________
(4) Beneficial Ownership of Other Securities of the Company:
Except as set forth below in this Item (4), the undersigned Electing
Holder is not the beneficial or registered owner of any shares of or
any other securities of the Company, other than Securities listed
above in Item (3).
State any exceptions here:
(5) Relationships with the Company:
Except as set forth below, neither the Electing Holder nor any of its
affiliates, officers, directors or principal equity holders (5% or
more) has held any position or office or has
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had any other material relationship with the Company (or its
predecessors or affiliates) during the past three years.
State any exceptions here:
(6) Plan of Distribution:
Except as set forth below, the undersigned Electing Holder intends to
distribute the Registrable Securities listed above in Item (3) only as
follows (if at all): Such Registrable Securities may be sold from time
to time directly by the undersigned Electing Holder or, alternatively,
through underwriters, broker-dealers or agents. Such Registrable
Securities may be sold in one or more transactions at fixed prices, at
prevailing market prices at the time of sale, at varying prices
determined at the time of sale, or at negotiated prices. Such sales
may be effected in transactions (which may involve crosses or block
transactions) (i) on any national securities exchange or quotation
service on which the Registered Securities may be listed or quoted at
the time of sale, (ii) in the over-the-counter market, (iii) in
transactions otherwise than on such exchanges or services or in the
over-the-counter market, or (iv) through the writing of options. In
connection with sales of the Registrable Securities or otherwise, the
Electing Holder may enter into hedging transactions with
broker-dealers, which may in turn engage in short sales of the
Registrable Securities in the course of hedging the positions they
assume. The Electing Holder may also sell Registrable Securities short
and deliver Registrable Securities to close out such short positions,
or loan or pledge Registrable Securities to broker-dealers that in
turn may sell such securities.
State any exceptions here:
By signing below, the Electing Holder acknowledges that it understands
its obligation to comply, and agrees that it will comply, with the provisions
of the Exchange Act and the rules and regulations thereunder, particularly
Regulation M.
In the event that the Electing Holder transfers all or any portion of
the Registrable Securities listed in Item (3) above after the date on which
such information is provided to the Company, the Electing Holder agrees to
notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Registration Rights
Agreement.
By signing below, the Electing Holder consents to the disclosure of
the information contained herein in its answers to Items (1) through (6) above
and the inclusion of such information in the Registration Statement and related
Prospectus. The Electing Holder understands that such information will be
relied upon by the Company in connection with the preparation of the
Registration Statement and related Prospectus.
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In accordance with the Electing Holder's obligation under Section 4(a)
of the Registration Rights Agreement to provide such information as may be
required by law for inclusion in the Registration Statement, the Electing
Holder agrees to promptly notify the Company of any inaccuracies or changes in
the information provided herein which may occur subsequent to the date hereof
at any time while the Registration Statement remains in effect. All notices
hereunder and pursuant to the Registration Rights Agreement shall be made in
writing, by hand-delivery, first-class mail, or air courier guaranteeing
overnight delivery as follows:
(i) To the Company:
(ii) With a copy to the Company's legal counsel:
Once this Notice and Questionnaire is executed by the Electing Holder
and received by the Company's legal counsel, the terms of this Notice and
Questionnaire, and the representations and warranties contained herein, shall
be binding on, shall inure to the benefit of and shall be enforceable by the
respective successors, heirs, personal representatives, and assigns of the
Company and the Electing Holder (with respect to the Registrable Securities
beneficially owned by such Electing Holder and listed in Item (3) above. THIS
AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS BY THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
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IN WITNESS WHEREOF, the undersigned, by authority duly given, has
caused this Notice and Questionnaire to be executed and delivered either in
person or by its duly authorized agent.
Dated:
----------------------------------
[Electing Holder]
By:
------------------------------------------
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT
ON OR BEFORE [DEADLINE FOR RESPONSE] TO THE COMPANY'S LEGAL COUNSEL AT:
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