REGISTRATION RIGHTS AGREEMENT Dated December 20, 2006 between MAXCOM TELECOMUNICACIONES, S.A. DE C.V., THE GUARANTORS NAMED HEREIN and MORGAN STANLEY & CO. INCORPORATED
EXHIBIT 4.4
Dated December 20, 2006
between
MAXCOM TELECOMUNICACIONES, S.A. DE C.V.,
THE GUARANTORS NAMED HEREIN
and
XXXXXX XXXXXXX & CO. INCORPORATED
THIS REGISTRATION RIGHTS AGREEMENT (the “Agreement”) dated as of December 20, 2006 among
Maxcom Telecomunicaciones, S.A. de C.V., a sociedad anónima organized under the laws of Mexico (the
“Company”), the Guarantors (as defined herein) and Xxxxxx Xxxxxxx & Co. Incorporated, as
representative of the Initial Purchasers (as defined herein).
This Agreement is made pursuant to the Purchase Agreement dated December 13, 2006, between the
Company, the Guarantors and the Initial Purchasers (the “Purchase Agreement”), which provides for
the sale by the Company to the Initial Purchasers of an aggregate of $150,000,000 principal amount
of the Company’s 11% Notes Due 2014 (together with the Guarantees, the “Securities”). In order to
induce the Initial Purchasers to enter into the Purchase Agreement, the Company and the Guarantors
have agreed to provide to the Initial Purchasers and their direct and indirect transferees the
registration rights set forth in this Agreement. The execution of this Agreement is a condition to
the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
| 1. | Definitions. |
As used in this Agreement, the following capitalized defined terms shall have the following
meanings:
“1933 Act” shall mean the Securities Act of 1933, as amended from time to time.
“1934 Act” shall mean the Securities Exchange Act of 1934, as amended from time to time.
“Closing Date” shall mean the Closing Date as defined in the Purchase Agreement.
“Company” shall have the meaning set forth in the preamble and shall also include the
Company’s successors.
“Exchange Offer” shall mean the exchange offer by the Company of Exchange Securities for
Registrable Securities pursuant to Section 2(a) hereof.
“Exchange Offer Registration” shall mean a registration under the 1933 Act effected pursuant
to Section 2(a) hereof.
“Exchange Offer Registration Statement” shall mean an exchange offer registration statement on
Form F-4 (or, if applicable, on another appropriate form) and all amendments and supplements to
such registration statement, in each case including the Prospectus contained therein, all exhibits
thereto and all material incorporated by reference therein.
“Exchange Securities” shall mean securities issued by the Company and guaranteed by the
Guarantors under the Indenture containing terms identical to the Securities (except that (i)
interest thereon shall accrue from the last date on which interest was paid on the Securities or,
if no such interest has been paid, from December 20, 2006 and (ii) the Exchange Securities will not
contain restrictions on transfer) and to be offered to Holders of Securities in exchange for
Securities pursuant to the Exchange Offer.
“Guarantee” means the guarantee by each Guarantor of the Company’s obligations under the
Indenture and the Notes issued thereunder, executed pursuant to the provisions of the Indenture.
“Guarantors” means each of: (1) Maxcom Servicios Administrativos, S.A. de C.V., (2)
Outsourcing Operadora de Personal, S.A. de C.V., (3) Técnicos Especializados en Telecomunicaciones,
S.A. de C.V., (4) Corporativo en Telecomunicaciones, S.A. de C.V., (5) Maxcom SF, S.A. de C.V., (6)
Maxcom TV, S.A. de C.V., (7) Maxcom USA, Inc., and (8) their respective successors.
“Holders” shall mean the Initial Purchasers, for so long as they own any Registrable
Securities, and each of their successors, assigns and direct and indirect transferees who become
registered owners of Registrable Securities under the Indenture; provided that for purposes of
Sections 4 and 5 of this Agreement, the term “Holder” shall include Participating Broker-Dealers
(as defined in Section 4(a)).
“Indenture” shall mean the Indenture relating to the Securities dated as of December 20, 2006
between the Company, the Guarantors and Deutsche Bank Trust Company Americas, as trustee, and as
the same may be amended from time to time in accordance with the terms thereof.
“Initial Purchasers” shall mean Xxxxxx Xxxxxxx & Co. Incorporated and Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated.
“Majority Holders” shall mean the Holders of a majority of the aggregate principal amount of
outstanding Registrable Securities; provided that whenever the consent or approval of Holders of a
specified percentage of Registrable Securities is required hereunder, Registrable Securities held
by the Company, the Guarantors or any of their respective affiliates (as such term is defined in
Rule 405 under the 0000 Xxx) (other than the Initial Purchasers or subsequent Holders of
Registrable Securities if such subsequent holders are deemed to be such affiliates solely by reason
of their holding of such Registrable Securities) shall not
2
be considered outstanding or counted in determining whether such consent or approval was given
by the Holders of such required percentage or amount.
“Person” shall mean an individual, partnership, limited liability company, corporation, trust
or unincorporated organization, or a government or agency or political subdivision thereof.
“Prospectus” shall mean the prospectus included in a Registration Statement, including any
preliminary prospectus, and any such prospectus as amended or supplemented by any prospectus
supplement, including a prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Securities covered by a Shelf Registration Statement, and by all other
amendments and supplements to such prospectus, and in each case including all material incorporated
by reference therein.
“Purchase Agreement” shall have the meaning set forth in the preamble.
“Registrable Securities” shall mean the Securities; provided, however, that the Securities
shall cease to be Registrable Securities (i) when a Registration Statement with respect to such
Securities shall have been declared effective under the 1933 Act and such Securities shall have
been disposed of pursuant to such Registration Statement, (ii) when such Securities have been sold
to the public pursuant to Rule 144 (or any similar provision then in force, but not Rule 144A)
under the 1933 Act or (iii) when such Securities shall have ceased to be outstanding.
“Registration Expenses” shall mean any and all expenses incident to performance of or
compliance by the Company and the Guarantors with this Agreement, including without limitation:
(i) all SEC, stock exchange or National Association of Securities Dealers, Inc. registration and
filing fees, (ii) all fees and expenses incurred in connection with compliance with state
securities or blue sky laws (including reasonable fees and disbursements of counsel for any
underwriters or Holders in connection with blue sky qualification of any of the Exchange Securities
or Registrable Securities), (iii) all expenses of any Persons in preparing or assisting in
preparing, word processing, printing and distributing any Registration Statement, any Prospectus,
any amendments or supplements thereto, any underwriting agreements, securities sales agreements and
other documents relating to the performance of and compliance with this Agreement, (iv) all rating
agency fees, (v) all fees and disbursements relating to the qualification of the Indenture under
applicable securities laws, (vi) the fees and disbursements of the Trustee and its counsel, (vii)
the fees and disbursements of counsel for the Company and the Guarantors and, in the case of a
Shelf Registration Statement, the fees and disbursements of one counsel for the Holders (which
counsel shall be selected by the Majority Holders and which counsel may also be counsel for the
Initial Purchasers) and (viii) the fees and disbursements of the independent public accountants of
the Company and the Guarantors, including the expenses of any special audits or “cold comfort”
letters required by or incident to such
3
performance and compliance, but excluding fees and expenses of counsel to the underwriters
(other than fees and expenses set forth in clause (ii) above) or the Holders and underwriting
discounts and commissions and transfer taxes, if any, relating to the sale or disposition of
Registrable Securities by a Holder.
“Registration Statement” shall mean any registration statement of the Company and the
Guarantors that covers any of the Exchange Securities or Registrable Securities pursuant to the
provisions of this Agreement and all amendments and supplements to any such Registration Statement,
including post-effective amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
“SEC” shall mean the Securities and Exchange Commission.
“Shelf Registration” shall mean a registration effected pursuant to Section 2(b) hereof.
“Shelf Registration Statement” shall mean a “shelf” registration statement of the Company and
the Guarantors pursuant to the provisions of Section 2(b) of this Agreement which covers all of the
Registrable Securities on an appropriate form under Rule 415 under the 1933 Act, or any similar
rule that may be adopted by the SEC, and all amendments and supplements to such registration
statement, including post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference therein.
“Trustee” shall mean the trustee with respect to the Securities under the Indenture.
“Underwriter” shall have the meaning set forth in Section 3 hereof.
“Underwritten Registration” or “Underwritten Offering” shall mean a registration in which
Registrable Securities are sold to an Underwriter for reoffering to the public.
| 2. | Registration Under the 1933 Act. |
(a) To the extent not prohibited by any applicable law or applicable interpretation
of the Staff of the SEC, each of the Company and the Guarantors shall use its reasonable
best efforts to cause to be filed an Exchange Offer Registration Statement covering the
offer by the Company and the Guarantors to the Holders to exchange all of the Registrable
Securities for Exchange Securities and to have such Registration Statement remain
effective until the closing of the Exchange Offer. The Company and the Guarantors shall
commence the Exchange Offer promptly after the Exchange Offer Registration Statement has
been declared effective by the SEC and each of the Company and the Guarantors shall use
its reasonable best efforts to have the Exchange Offer
4
consummated not later than 60 days after such effective date. The Company and the
Guarantors shall commence the Exchange Offer by mailing the related exchange offer
Prospectus and accompanying documents to each Holder stating, in addition to such other
disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration
Rights Agreement and that all Registrable Securities validly tendered will be
accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at
least 20 business days from the date such notice is mailed) (the “Exchange
Dates”);
(iii) that any Registrable Security not tendered will remain outstanding
and continue to accrue interest, but will not retain any rights under this
Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged
pursuant to the Exchange Offer will be required to surrender such Registrable
Security, together with the enclosed letters of transmittal, to the institution
and at the address (located in the Borough of Manhattan, The City of New York)
specified in the notice prior to the close of business on the last Exchange
Date; and
(v) that Holders will be entitled to withdraw their election, not later
than the close of business on the last Exchange Date, by sending to the
institution and at the address (located in the Borough of Manhattan, The City of
New York) specified in the notice a telegram, telex, facsimile transmission or
letter setting forth the name of such Holder, the principal amount of
Registrable Securities delivered for exchange and a statement that such Holder
is withdrawing his election to have such Securities exchanged.
As soon as reasonably practicable after the last Exchange Date, the Company
and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof tendered
and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all
Registrable Securities or portions thereof so accepted for exchange by the
Company and issue, and cause the Trustee to promptly authenticate and mail to
each Holder, an Exchange Security equal in principal amount to the principal
amount of the Registrable Securities surrendered by such Holder.
5
Each of the Company and the Guarantors shall use its reasonable best efforts to complete
the Exchange Offer as provided above and shall comply with the applicable requirements of
the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with
the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than
that the Exchange Offer does not violate applicable law or any applicable interpretation
of the Staff of the SEC. The Company and the Guarantors shall inform the Initial
Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made,
and the Initial Purchasers shall have the right, subject to applicable law, to contact
such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange
Offer.
If the Company and the Guarantors effect the Exchange Offer, the Company and the
Guarantors will be entitled to close the Exchange Offer 20 business days after such
commencement (provided that the Company and the Guarantors have accepted all the
Securities theretofore validly tendered in accordance with the terms of the Exchange
Offer).
Each Holder participating in the Exchange Offer shall be required to represent to the
Company and the Guarantors that at the time of the consummation of the Exchange Offer (i)
any Exchange Securities received by such Holder will be acquired in the ordinary course of
its business, (ii) such Holder will have no arrangements or understanding with any person
to participate in the distribution (within the meaning of the 0000 Xxx) of the Exchange
Securities, (iii) such Holder is not an “affiliate,” as defined in Rule 405 of the 1933
Act, of the Company or the Guarantors or if it is an affiliate, such Holder will comply
with the registration and prospectus delivery requirements of the 1933 Act to the extent
applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and
does not intend to engage in, the distribution of the Exchange Securities and (v) if such
Holder is a broker-dealer, that it will receive Exchange Securities for its own account in
exchange for Securities that were acquired as a result of market-making activities or
other trading activities and that it will be required to acknowledge that it will deliver
a prospectus in connection with any resale of such Exchange Securities.
(b) In the event that (i) the Company and the Guarantors jointly determine that the
Exchange Offer Registration provided for in Section 2(a) above is not available or may not
be consummated as soon as practicable after the last Exchange Date because it would
violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the
Exchange Offer is not for any other reason consummated by September 30, 2007 or (iii) the
Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers
a Registration Statement must be filed and a Prospectus must be delivered by the Initial
Purchasers in connection with any offering or sale of Registrable Securities due to the
6
need for compliance with the provisions of the SEC No-Action Letter for Exxon Capital
Holding Corp. (available May 13, 1988); each of the Company and the Guarantors shall use
its reasonable best efforts to cause to be filed as soon as practicable after such
determination, date or notice of such opinion of counsel is given to the Company and the
Guarantors, as the case may be, a Shelf Registration Statement providing for the sale by
the Holders of all of the Registrable Securities and to have such Shelf Registration
Statement declared effective by the SEC. In the event the Company or the Guarantors is
required to file a Shelf Registration Statement solely as a result of the matters referred
to in clause (iii) of the preceding sentence, each of the Company and the Guarantors shall
use its best efforts to file and have declared effective by the SEC both an Exchange Offer
Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities
and a Shelf Registration Statement (which may be a combined Registration Statement with
the Exchange Offer Registration Statement) with respect to offers and sales of Registrable
Securities held by the Initial Purchasers after completion of the Exchange Offer. Each of
the Company and the Guarantors agrees to use its reasonable best efforts to keep the Shelf
Registration Statement continuously effective until the expiration of the period referred
to in Rule 144(k) with respect to the Registrable Securities or such shorter period that
will terminate when all of the Registrable Securities covered by the Shelf Registration
Statement have been sold pursuant to the Shelf Registration Statement. Each of the
Company and the Guarantors further agrees to supplement or amend the Shelf Registration
Statement if required by the rules, regulations or instructions applicable to the
registration form used by the Company and the Guarantors for such Shelf Registration
Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf
registration or if reasonably requested by a Holder with respect to information relating
to such Holder, and to use its reasonable best efforts to cause any such amendment to
become effective and such Shelf Registration Statement to become usable as soon as
thereafter practicable. Each of the Company and the Guarantors agrees to furnish to the
Holders of Registrable Securities copies of any such supplement or amendment promptly
after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection
with the registration pursuant to Section 2(a) and Section 2(b). Each Holder shall pay
all underwriting discounts and commissions and transfer taxes, if any, relating to the
sale or disposition of such Holder’s Registrable Securities pursuant to the Shelf
Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a
Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have
become effective unless it has been
7
declared effective by the SEC; provided, however, that, if, after it has been
declared effective, the offering of Registrable Securities pursuant to a Shelf
Registration Statement is interfered with by any stop order, injunction or other order or
requirement of the SEC or any other governmental agency or court, such Registration
Statement will be deemed not to have become effective during the period of such
interference until the offering of Registrable Securities pursuant to such Registration
Statement may legally resume. In the event the Exchange Offer is not consummated and the
Shelf Registration Statement is not declared effective on or prior to September 30, 2007,
the interest rate on the Securities will be increased by 0.50% per annum until the earlier
of (i) completion of the Exchange Offer; (ii) the effectiveness of the Shelf Registration
Statement or (iii) the notes being freely tradable under the 1933 Act.
(e) Without limiting the remedies available to the Initial Purchasers and the
Holders, each of the Company and the Guarantors acknowledges that any failure by the
Company or any Guarantor to comply with its obligations under Section 2(a) and Section
2(b) hereof may result in material irreparable injury to the Initial Purchasers or the
Holders for which there is no adequate remedy at law, that it will not be possible to
measure damages for such injuries precisely and that, in the event of any such failure,
the Initial Purchasers or any Holder may obtain such relief as may be required to
specifically enforce the Company’s and the Guarantors’ obligations under Section 2(a) and
Section 2(b) hereof.
| 3. | Registration Procedures. |
In connection with the obligations of the Company and the Guarantors with respect to the
Registration Statements pursuant to Section 2(a) and Section 2(b) hereof, the Company and the
Guarantors shall as expeditiously as possible:
(a) prepare and file with the SEC a Registration Statement on the appropriate form
under the 1933 Act, which form (x) shall be jointly selected by the Company and the
Guarantors and (y) shall, in the case of a Shelf Registration, be available for the sale
of the Registrable Securities by the selling Holders thereof and (z) shall comply as to
form in all material respects with the requirements of the applicable form and include all
financial statements required by the SEC to be filed therewith, and use its best efforts
to cause such Registration Statement to become effective and remain effective in
accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and post-effective amendments to
each Registration Statement as may be necessary to keep such Registration Statement
effective for the applicable period and cause each Prospectus to be supplemented by any
required prospectus supplement and, as so supplemented, to be filed pursuant to Rule 424
8
under the 1933 Act; to keep each Prospectus current during the period described under
Section 4(3) and Rule 174 under the 1933 Act that is applicable to transactions by brokers
or dealers with respect to the Registrable Securities or Exchange Securities;
(c) in the case of a Shelf Registration, furnish to each Holder of Registrable
Securities, to counsel for the Initial Purchasers, to counsel for the Holders and to each
Underwriter of an Underwritten Offering of Registrable Securities, if any, without charge,
as many copies of each Prospectus, including each preliminary Prospectus, and any
amendment or supplement thereto and such other documents as such Holder or Underwriter may
reasonably request other than exhibits to documents incorporated by reference or exhibits
thereto or documents available on the SEC’s Electronic Data Gathering, Analysis and
Retrieval system (“XXXXX”), in order to facilitate the public sale or other disposition of
the Registrable Securities; and the Company and the Guarantors consent to the use of such
Prospectus and any amendment or supplement thereto in accordance with applicable law by
each of the selling Holders of Registrable Securities and any such Underwriters in
connection with the offering and sale of the Registrable Securities covered by and in the
manner described in such Prospectus or any amendment or supplement thereto in accordance
with applicable law;
(d) use its reasonable best efforts to register or qualify the Registrable Securities
under all applicable state securities or “blue sky” laws of such jurisdictions as any
Holder of Registrable Securities covered by a Registration Statement shall reasonably
request in writing by the time the applicable Registration Statement is declared effective
by the SEC, to cooperate with such Holders in connection with any filings required to be
made with the National Association of Securities Dealers, Inc. and do any and all other
acts and things which may be reasonably necessary or advisable to enable such Holder to
consummate the disposition in each such jurisdiction of such Registrable Securities owned
by such Holder; provided, however, that the neither the Company nor the Guarantors shall
be required to (i) 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
3(d), (ii) file any general consent to service of process or (iii) subject itself to
taxation in any such jurisdiction if it is not so subject;
(e) in the case of a Shelf Registration, notify each Holder of Registrable
Securities, counsel for the Holders and counsel for the Initial Purchasers promptly and,
if requested by any such Holder or counsel, confirm such advice in writing (i) when a
Registration Statement has become effective and when any post-effective amendment thereto
has been filed and becomes effective, (ii) of any request by the SEC or any state
securities authority for amendments and supplements to a
9
Registration Statement and Prospectus or for additional information after the
Registration Statement has become effective, (iii) of the issuance by the SEC or any state
securities authority of any stop order suspending the effectiveness of a Registration
Statement or the initiation of any proceedings for that purpose, (iv) if, between the
effective date of a Registration Statement and the closing of any sale of Registrable
Securities covered thereby, the representations and warranties of the Company and the
Guarantors contained in any underwriting agreement, securities sales agreement or other
similar agreement, if any, relating to the offering cease to be true and correct in all
material respects or if the Company or any Guarantor receives any notification with
respect to the suspension of the qualification of the Registrable Securities for sale in
any jurisdiction or the initiation of any proceeding for such purpose, (v) of the
happening of any event during the period a Shelf Registration Statement is effective which
makes any statement made in such Registration Statement or the related Prospectus untrue
in any material respect or which requires the making of any changes in such Registration
Statement or Prospectus in order to make the statements therein not misleading and (vi) of
any determination by the Company or any Guarantor that a post-effective amendment to a
Registration Statement would be appropriate;
(f) use reasonable best effort to obtain the withdrawal of any order suspending the
effectiveness of a Registration Statement at the earliest possible moment and provide
immediate notice to each Holder of the withdrawal of any such order;
(g) in the case of a Shelf Registration, furnish to each Holder of Registrable
Securities, without charge, at least one conformed copy of each Registration Statement and
any post-effective amendment thereto (without documents incorporated therein by reference
or exhibits thereto, unless requested);
(h) in the case of a Shelf Registration, cooperate with the selling Holders of
Registrable Securities to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold and not bearing any restrictive legends and
enable such Registrable Securities to be in such denominations (consistent with the
provisions of the Indenture) and registered in such names as the selling Holders may
reasonably request at least one business day prior to the closing of any sale of
Registrable Securities;
(i) in the case of a Shelf Registration, upon the occurrence of any event
contemplated by Section 3(e)(v) hereof, use its reasonable best efforts to prepare and
file with the SEC a supplement or post-effective amendment to a Registration Statement or
the related Prospectus or any document incorporated therein by reference or file any other
required document so that, as thereafter delivered to the purchasers of the
10
Registrable Securities, such Prospectus will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading. The Company and
the Guarantors agree to notify the Holders to suspend use of the Prospectus as promptly as
practicable after the occurrence of such an event, and the Holders hereby agree to suspend
use of the Prospectus until the Company or the Guarantors have amended or supplemented the
Prospectus to correct such misstatement or omission;
(j) a reasonable time prior to the filing of any Registration Statement, any
Prospectus, any amendment to a Registration Statement or amendment or supplement to a
Prospectus or any document which is to be incorporated by reference into a Registration
Statement or a Prospectus after initial filing of a Registration Statement, provide copies
of such document to the Initial Purchasers and their counsel (and, in the case of a Shelf
Registration Statement, the Holders and their counsel) and make such of the
representatives of the Company and the Guarantors as shall be reasonably requested by the
Initial Purchasers or their counsel (and, in the case of a Shelf Registration Statement,
the Holders or their counsel) available for discussion of such document, and shall not at
any time file or make any amendment to the Registration Statement, any Prospectus or any
amendment of or supplement to a Registration Statement or a Prospectus or any document
which is to be incorporated by reference into a Registration Statement or a Prospectus, of
which the Initial Purchasers and their counsel (and, in the case of a Shelf Registration
Statement, the Holders and their counsel) shall not have previously been advised and
furnished a copy or to which the Initial Purchasers or their counsel (and, in the case of
a Shelf Registration Statement, the Holders or their counsel) shall reasonably object
except for any amendment or supplement or document (a copy of which has previously been
furnished to the Placement Agents and their counsel (and, in the case of a Shelf
Registration Statement, counsel to the Holders)) which counsel to the Company shall advise
the Company in writing is required in order to comply with applicable law;
(k) obtain a CUSIP number for all Exchange Securities or Registrable Securities, as
the case may be, not later than the effective date of a Registration Statement;
(l) cause the Indenture to be qualified under the Trust Indenture Act of 1939, as
amended (the “TIA”), in connection with the registration of the Exchange Securities or
Registrable Securities, as the case may be, cooperate with the Trustee and the Holders to
effect such changes to the Indenture as may be required for the Indenture to be so
qualified in accordance with the terms of the TIA and execute, and use its best efforts to
cause the Trustee to execute, all documents as may be
11
required to effect such changes and all other forms and documents required to be
filed with the SEC to enable the Indenture to be so qualified in a timely manner;
(m) in the case of a Shelf Registration, make available for inspection by a
representative of the Holders of the Registrable Securities, any Underwriter participating
in any disposition pursuant to such Shelf Registration Statement, and attorneys and
accountants designated by the Holders, at reasonable times and in a reasonable manner, all
financial and other records, pertinent documents and properties of the Company and each
Guarantor, and cause the respective officers, directors and employees of the Company and
the Guarantors to supply all information reasonably requested by any such representative,
Underwriter, attorney or accountant in connection with a Shelf Registration Statement;
provided that (1) the foregoing inspection and information gathering shall be coordinated
on behalf of the selling Holders, underwriters and representatives thereof by one counsel
for the Holders and one counsel for the underwriters, who shall be such counsel as may be
chosen by the Holders of a majority in principal amount of the Securities or by the
underwriters, as the case may be, and (2) if any such information is identified by the
Company or any Guarantor as being confidential or proprietary, each person receiving such
information shall take such actions as are reasonably necessary to protect the
confidentiality of such information, including, with respect to Holders, entering into
customary confidentiality agreements;
(n) use its best efforts to cause the Exchange Securities or Registrable Securities,
as the case may be, to be rated by two nationally recognized statistical rating
organizations (as such term is defined in Rule 436(g)(2) under the 0000 Xxx);
(o) if reasonably requested by any Holder of Registrable Securities covered by a
Registration Statement, (i) promptly incorporate in a Prospectus supplement or
post-effective amendment such information with respect to such Holder as such Holder
reasonably requests to be included therein and (ii) make all required filings of such
Prospectus supplement or such post-effective amendment as soon as the Company or any
Guarantor has received notification of the matters to be incorporated in such filing; and
(p) in the case of a Shelf Registration, enter into such customary agreements and
take all such other actions in connection therewith (including those requested by the
Holders of a majority of the Registrable Securities being sold) in order to expedite or
facilitate the disposition of such Registrable Securities including, but not limited to,
an Underwritten Offering and in such connection, (i) to the extent possible, make such
representations and warranties to the Holders and any Underwriters of such Registrable
Securities with respect to the business of
12
the Company, the Guarantors and their subsidiaries, the Registration Statement,
Prospectus and documents incorporated by reference or deemed incorporated by reference, if
any, in each case, in form, substance and scope as are customarily made by issuers to
underwriters in underwritten offerings and confirm the same if and when requested, (ii)
obtain opinions of counsel to the Company and the Guarantors (which counsel and opinions,
in form, scope and substance, shall be reasonably satisfactory to the Holders and such
Underwriters and their respective counsel) addressed to each selling Holder and
Underwriter of Registrable Securities, covering the matters customarily covered in
opinions requested in underwritten offerings, (iii) obtain “cold comfort” letters from the
independent certified public accountants of the Company and the Guarantors (and, if
necessary, any other certified public accountant of any subsidiary of the Company or any
Guarantor, or of any business acquired by the Company or any Guarantor for which financial
statements and financial data are or are required to be included in the Registration
Statement) addressed to each selling Holder and Underwriter of Registrable Securities,
such letters to be in customary form and covering matters of the type customarily covered
in “cold comfort” letters in connection with underwritten offerings, and (iv) deliver such
documents and certificates as may be reasonably requested by the Holders of a majority in
principal amount of the Registrable Securities being sold or the Underwriters, and which
are customarily delivered in underwritten offerings, to evidence the continued validity of
the representations and warranties of the Company and the Guarantors made pursuant to
clause (i) above and to evidence compliance with any customary conditions contained in an
underwriting agreement.
In the case of a Shelf Registration Statement, the Company and the Guarantors may require each
Holder of Registrable Securities to furnish to the Company and the Guarantors such information
regarding the Holder and the proposed distribution by such Holder of such Registrable Securities as
the Company and the Guarantors may from time to time reasonably request in writing. In addition,
each selling Holder agrees to promptly furnish additional information required under Item 507 of
Regulation S-K. So long as any Holder fails to furnish such information in a reasonably timely
manner after receiving the request, the Company and the Guarantors shall (i) have no obligation
under this Agreement to provide for the disposition of such Holder’s Registrable Securities in the
Shelf Registration Statement in respect to which such information was requested, (ii) not be
required to provide for the disposition of such Holder’s Registrable Securities in any
post-effective amendment to such Shelf Registration Statement or any future Shelf Registration
Statement that is not otherwise required to be filed and (iii) not be required to pay any
Additional Amounts as provided in Section 2(d) hereof. Each Holder including Registrable
Securities in a Shelf Registration Statement shall agree to furnish promptly to the Company all
information regarding such Holder and the proposed distribution by the Holder of such Registrable
Securities required under Regulation S-K.
13
In the case of a Shelf Registration Statement, each Holder agrees that, upon receipt of any
notice from the Company or the Guarantors of the happening of any event of the kind described in
Section 3(e)(v) hereof, such Holder will forthwith discontinue disposition of Registrable
Securities pursuant to a Registration Statement until such Holder’s receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 3(i) hereof, and, if so directed by the
Company and the Guarantors, such Holder will deliver to the Company and the Guarantors (at the
Company’s and the Guarantors’ expense) all copies in its possession, other than permanent file
copies then in such Holder’s possession, of the Prospectus covering such Registrable Securities
current at the time of receipt of such notice. If the Company or any Guarantor shall give any such
notice to suspend the disposition of Registrable Securities pursuant to a Registration Statement,
the Company and the Guarantors shall extend the period during which the Registration Statement
shall be maintained effective pursuant to this Agreement by the number of days during the period
from and including the date of the giving of such notice to and including the date when the Holders
shall have received copies of the supplemented or amended Prospectus necessary to resume such
dispositions. The Company and the Guarantors may give any such notice only twice during any 365
day period and any such suspensions may not exceed 45 days for each suspension and there may not be
more than two suspensions in effect during any 365 day period.
The Holders of Registrable Securities covered by a Shelf Registration Statement who desire to
do so may sell such Registrable Securities in an Underwritten Offering. In any such Underwritten
Offering, the investment banker or investment bankers and manager or managers (the “Underwriters”)
that will administer the offering will be selected by the Majority Holders of the Registrable
Securities included in such offering.
| 4. | Participation of Broker-Dealers in Exchange Offer. |
(a) The Staff of the SEC has taken the position that any broker-dealer that receives
Exchange Securities for its own account in the Exchange Offer in exchange for Securities
that were acquired by such broker-dealer as a result of market-making or other trading
activities (a “Participating Broker-Dealer”), may be deemed to be an “underwriter” within
the meaning of the 1933 Act and must deliver a prospectus meeting the requirements of the
1933 Act in connection with any resale of such Exchange Securities.
Each of the Company and the Guarantors understands that it is the Staff’s position that if
the Prospectus contained in the Exchange Offer Registration Statement includes a plan of
distribution containing a statement to the above effect and the means by which
Participating Broker-Dealers may resell the Exchange Securities, without naming the
Participating Broker-Dealers or specifying the amount of Exchange Securities owned by
them, such Prospectus may be delivered by
14
Participating Broker-Dealers to satisfy their prospectus delivery obligation under the
1933 Act in connection with resales of Exchange Securities for their own accounts, so long
as the Prospectus otherwise meets the requirements of the 1933 Act.
(b) In light of the above, notwithstanding the other provisions of this Agreement,
each of the Company and the Guarantors agrees that the provisions of this Agreement as
they relate to a Shelf Registration shall also apply to an Exchange Offer Registration to
the extent, and with such reasonable modifications thereto as may be, reasonably requested
by the Initial Purchasers or by one or more Participating Broker-Dealers, in each case as
provided in clause (ii) below, in order to expedite or facilitate the disposition of any
Exchange Securities by Participating Broker-Dealers consistent with the positions of the
Staff recited in Section 4(a) above; provided that:
(i) neither the Company nor the Guarantors shall be required to amend or
supplement the Prospectus contained in the Exchange Offer Registration
Statement, as would otherwise be contemplated by Section 3(i), for a period
exceeding 180 days after the last Exchange Date (as such period may be extended
pursuant to the penultimate paragraph of Section 3 of this Agreement) and
Participating Broker-Dealers shall not be authorized by the Company or any
Guarantor to deliver and shall not deliver such Prospectus after such period in
connection with the resales contemplated by this Section 4; and
(ii) the application of the Shelf Registration procedures set forth in
Section 3 of this Agreement to an Exchange Offer Registration, to the extent not
required by the positions of the Staff of the SEC or the 1933 Act and the rules
and regulations thereunder, will be in conformity with the reasonable request to
the Company and the Guarantors by the Initial Purchasers or with the reasonable
request in writing to the Company and the Guarantors by one or more
broker-dealers who certify to the Initial Purchasers and the Company and the
Guarantors in writing that they anticipate that they will be Participating
Broker-Dealers; and provided further that, in connection with such application
of the Shelf Registration procedures set forth in Section 3 to an Exchange Offer
Registration, each of the Company and the Guarantors shall be obligated (x) to
deal only with one entity representing the Participating Broker-Dealers, which
shall be Xxxxxx Xxxxxxx & Co. Incorporated unless it elects not to act as such
representative, (y) to pay the fees and expenses of only one counsel
representing the Participating Broker-Dealers, which shall be counsel to the
Initial Purchasers unless such counsel elects not to so act and (z)
15
to cause to be delivered only one, if any, “cold comfort” letter with
respect to the Prospectus in the form existing on the last Exchange Date and
with respect to each subsequent amendment or supplement, if any, effected during
the period specified in clause (i) above.
(c) The Initial Purchasers shall have no liability to the Company, the Guarantors or
any Holder with respect to any request that it may make pursuant to Section 4(b) above.
| 5. | Indemnification and Contribution. |
(a) Each of the Company and the Guarantors agrees to indemnify and hold harmless the
Initial Purchasers, each Holder and each Person, if any, who controls any Initial
Purchaser or any Holder within the meaning of either Section 15 of the 1933 Act or Section
20 of the 1934 Act, or is under common control with, or is controlled by, any Initial
Purchaser or any Holder, from and against all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably incurred by the
Initial Purchasers, any Holder or any such controlling or affiliated Person in connection
with defending or investigating any such action or claim) caused by any untrue statement
or alleged untrue statement of a material fact contained in any Registration Statement (or
any amendment thereto) pursuant to which Exchange Securities or Registrable Securities
were registered under the 1933 Act, including all documents incorporated therein by
reference, or caused by 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 caused by any untrue statement or alleged untrue statement of a material fact contained
in any Prospectus (as amended or supplemented if the Company and the Guarantors shall have
furnished any amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact necessary to make the statements therein in
light of the circumstances under which they were made not misleading, except insofar as
such losses, claims, damages or liabilities are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information relating to the
Initial Purchasers or any Holder furnished to the Company and the Guarantors in writing
through Xxxxxx Xxxxxxx & Co. Incorporated or any selling Holder expressly for use therein.
In connection with any Underwritten Offering permitted by Section 3, the Company and the
Guarantors will also indemnify the Underwriters, if any, selling brokers, dealers and
similar securities industry professionals participating in the distribution, their
officers and directors and each Person who controls such Persons (within the meaning of
the 1933 Act and the 0000 Xxx) to the same extent as provided above with respect to the
indemnification of the Holders, if requested in connection with any Registration
Statement.
16
(b) Each Holder agrees, severally and not jointly, to indemnify and hold harmless the
Company, the Guarantors, the Initial Purchasers, the other selling Holders, and each of
their respective directors, officers who sign the Registration Statement and each Person,
if any, who controls the Company, the Guarantors, the Initial Purchasers and any other
selling Holder within the meaning of either Section 15 of the 1933 Act or Section 20 of
the 1934 Act to the same extent as the foregoing indemnity from the Company and the
Guarantors to the Initial Purchasers and the Holders, but only with reference to
information relating to such Holder furnished to the Company and the Guarantors in writing
by such Holder expressly for use in any Registration Statement (or any amendment thereto)
or any Prospectus (or any amendment or supplement thereto).
(c) In case any proceeding (including any governmental investigation) shall be
instituted involving any Person in respect of which indemnity may be sought pursuant to
either paragraph (a) or paragraph (b) above, such Person (the “indemnified party”) shall
promptly notify the Person against whom such indemnity may be sought (the “indemnifying
party”) in writing and the indemnifying party, upon request of the indemnified party,
shall retain counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such proceeding
and shall pay the fees and disbursements of such counsel related to such proceeding. In
any such proceeding, any indemnified party shall have the right to retain its own counsel,
but the fees and expenses of such counsel shall be at the expense of such indemnified
party unless (i) the indemnifying party and the indemnified party shall have mutually
agreed to the retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be inappropriate due to
actual or potential differing interests between them. It is understood that the
indemnifying party shall not, in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for (A) the fees and expenses of more than one separate
firm (in addition to any local counsel) for the Initial Purchasers and all Persons, if
any, who control any Initial Purchaser within the meaning of either Section 15 of the 1933
Act or Xxxxxxx 00 xx xxx 0000 Xxx, (X) the fees and expenses of more than one separate
firm (in addition to any local counsel) for the Company and the Guarantors and their
respective directors and officers who sign the Registration Statement and each Person, if
any, who controls the Company or any Guarantor within the meaning of either such Section
and (c) the fees and expenses of more than one separate firm (in addition to any local
counsel) for all Holders and all Persons, if any, who control any Holders within the
meaning of either such Section, and that all such fees and expenses shall be reimbursed as
they are incurred. In such case involving the Initial Purchasers and Persons who control
the Initial Purchasers, such firm shall
17
be designated in writing by Xxxxxx Xxxxxxx & Co. Incorporated. In such case
involving the Holders and such Persons who control Holders, such firm shall be designated
in writing by the Majority Holders. In all other cases, such firm shall be designated
jointly by the Company and the Guarantors. The indemnifying party shall not be liable for
any settlement of any proceeding effected without its written consent but, if settled with
such consent or if there be a final judgment for the plaintiff, the indemnifying party
agrees to indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel as contemplated by the second and third sentences
of this paragraph, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such settlement
is entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party for such fees and expenses of counsel in accordance with such request
prior to the date of such settlement. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which such indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in paragraph (a) or paragraph (b) of this
Section 5 is unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages or liabilities, then each indemnifying party under such paragraph, in lieu
of indemnifying such indemnified party thereunder, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities in such proportion as is appropriate to reflect the relative fault of the
indemnifying party or parties on the one hand and of the indemnified party or parties on
the other hand in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company and the Guarantors, on the one hand,
and the Holders, on the other, 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 Company
or any Guarantor, on the one hand, or by the Holders, on the other, and the parties’
relative intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Holders’ respective obligations to contribute pursuant to
this Section 5(d) are several in proportion to the respective principal
18
amount of Registrable Securities of such Holder that were registered pursuant to a
Registration Statement.
(e) The Company, the Guarantors and each Holder agree that it would not be just or
equitable if contribution pursuant to this Section 5 were determined by pro rata
allocation or by any other method of allocation that does not take account of the
equitable considerations referred to in paragraph (d) above. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and liabilities
referred to in paragraph (d) above shall be deemed to include, subject to the limitations
set forth above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim. Notwithstanding
the provisions of this Section 5, no Holder shall be required to indemnify or contribute
any amount in excess of the amount by which the total price at which Registrable
Securities were sold by such Holder exceeds the amount of any damages that such Holder has
otherwise been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No Person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation. The remedies provided for
in this Section 5 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this Section 5 shall remain operative
and in full force and effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of the Initial Purchasers, any Holder or any Person controlling
the Initial Purchasers or any Holder, or by or on behalf of the Company and the Guarantors and
their respective officers or directors or any Person controlling the Company or any Guarantor,
(iii) acceptance of any of the Exchange Securities and (iv) any sale of Registrable Securities
pursuant to a Shelf Registration Statement.
| 6. | Miscellaneous. |
(a) No Inconsistent Agreements. Neither the Company nor any Guarantor has entered
into, and on or after the date of this Agreement will enter into, any agreement which is
inconsistent with the rights granted to the Holders of Registrable Securities in this
Agreement or otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent with the rights
granted to the holders of the Company’s or any Guarantor’s other issued and outstanding
securities under any such agreements.
(b) Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be
19
amended, modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given unless the Company and the Guarantors has obtained the
written consent of Holders of at least a majority in aggregate principal amount of the
outstanding Registrable Securities affected by such amendment, modification, supplement,
waiver or consent; provided, however, that no amendment, modification, supplement, waiver
or consent to any departure from the provisions of Section 5 hereof shall be effective as
against any Holder of Registrable Securities unless consented to in writing by such
Holder.
(c) Notices. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivery, registered first-class mail, telex,
telecopier, or any courier guaranteeing overnight delivery (i) if to a Holder, at the most
current address given by such Holder to the Company by means of a notice given in
accordance with the provisions of this Section 6(c), which address initially is, with
respect to the Initial Purchasers, the address set forth in the Purchase Agreement; and
(ii) if to the Company or any Guarantor, initially at the Company’s address set forth in
the Purchase Agreement and thereafter at such other address, notice of which is given in
accordance with the provisions of this Section 6(c).
All such notices and communications shall be deemed to have been duly given: at the
time delivered by hand, if personally delivered; five business days after being deposited
in the mail, postage prepaid, if mailed; when answered back, if telexed; when receipt is
acknowledged, if telecopied; and on the next business day if timely delivered to an air
courier guaranteeing overnight delivery.
Copies of all such notices, demands, or other communications shall be concurrently
delivered by the Person giving the same to the Trustee, at the address specified in the
Indenture.
(d) Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors, assigns and transferees of each of the parties, including,
without limitation and without the need for an express assignment, subsequent Holders;
provided that nothing herein shall be deemed to permit any assignment, transfer or other
disposition of Registrable Securities in violation of the terms of the Purchase Agreement.
If any transferee of any Holder shall acquire Registrable Securities, in any manner,
whether by operation of law or otherwise, such Registrable Securities shall be held
subject to all of the terms of this Agreement, and by taking and holding such Registrable
Securities such Person shall be conclusively deemed to have agreed to be bound by and to
perform all of the terms and provisions of this Agreement and such Person shall be
entitled to receive the benefits hereof. The Initial Purchasers (in their capacity as
Initial Purchasers) shall have no liability or obligation to the
20
Company or any Guarantor with respect to any failure by a Holder to comply with, or
any breach by any Holder of, any of the obligations of such Holder under this Agreement.
(e) During the period of two years after the Closing Date, the Company and the
Guarantors will not, and will use its reasonable best efforts to cause its affiliates (as
defined in Rule 144 under the Securities Act) to not resell any of the Securities which
constitute “restricted securities” under Rule 144 that have been reacquired by any of
them, provided, however, that the Company, the Guarantors and any of their affiliates
shall be permitted to resell any Securities which are not “restricted securities” as
defined in Rule 144 under the Securities Act, in compliance with Regulation S.
(f) Third Party Beneficiary. The Holders shall be third party beneficiaries to the
agreements made hereunder between the Company and the Guarantors, on the one hand, and the
Initial Purchasers, on the other hand, and shall have the right to enforce such agreements
directly to the extent it deems such enforcement necessary or advisable to protect its
rights or the rights of Holders hereunder.
(g) Counterparts. This Agreement may be executed in any number of counterparts and
by the parties hereto in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one and the same
agreement.
(h) Headings. The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.
(i) Severability. In the event that any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal or
unenforceable, the validity, legality and enforceability of any such provision in every
other respect and of the remaining provisions contained herein shall not be affected or
impaired thereby.
(j) Obligations of the Company and the Guarantors. Each of the Company and the
Guarantors acknowledges and agrees that their obligations under this Agreement are joint
and several amongst themselves.
(k) Governing Law. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED
TO CONSTRUE THIS AGREEMENT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF
LAW TO THE EXTENT THAT THE
21
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
(l) Consent to Jurisdiction and Service. The Company and each Guarantor has
appointed CT Corporation System, 000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000,
XXX as its agent (the “Authorized Agent”) upon whom process may be served in any actions
arising out of, based on, or relating to this Agreement or the transactions contemplated
hereby or brought under U.S. Federal or state securities laws brought in any U.S. Federal
or state court located in the Borough of Manhattan in The City of New York, expressly
consent to the jurisdiction of any such court in respect of any such action, and waive any
other requirements of or objections to personal jurisdiction with respect thereto. Such
appointment shall be irrevocable. The Company and each Guarantor represents and warrants
that the Authorized Agent has agreed to act as such agent for service of process and
agrees to take any and all action, including the filing of any and all documents and
instruments, that may be necessary to continue such appointment in full force and effect
as aforesaid. Service of process upon the Authorized Agent and written notice of such
service to the Company and each of the Guarantors shall be deemed, in every respect,
effective service of process upon the Company and each of the Guarantors.
The Company and each Guarantor irrevocably (i) agrees that any legal suit, action or
proceeding against the Company or any Guarantor arising out of, based on, or relating to
this Agreement or the transactions contemplated hereby may be instituted in any U.S.
Federal or state court in the Borough of Manhattan in The City of New York and (ii)
waives, to the fullest extent they may effectively do so, any objection which they may
have now or hereafter have to the laying of venue of any such proceeding.
22
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.
| MAXCOM TELECOMUNICACIONES, S.A. de C.V. |
||||
| By: | /s/ Xxxx Xxxxxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxxx Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| MAXCOM SERVICIOS ADMINISTRATIVOS, S.A. de C.V. |
||||
| By: | /s/ Xxxx Xxxxxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxxx Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| OUTSOURCING OPERADORA de PERSONAL, S.A. de C.V |
||||
| By: | /s/ Xxxx Xxxxxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxxx Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| TÉCNICOS ESPECIALIZADOS en TELECOMUNICACIONES, S.A. de C.V. |
||||
| By: | /s/ Xxxx Xxxxxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxxx Xxxxxx | |||
| Title: | Chief Financial Officer | |||
23
| CORPORATIVO en TELECOMUNICACIONES, S.A. de C.V. |
||||
| By: | /s/ Xxxx Xxxxxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxxx Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| MAXCOM SF, S.A. de C.V., |
||||
| By: | /s/ Xxxx Xxxxxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxxx Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| MAXCOM TV, S.A. de C.V. |
||||
| By: | /s/ Xxxx Xxxxxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxxx Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| MAXCOM USA, Inc. |
||||
| By: | /s/ Xxxx Xxxxxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxxx Xxxxxx | |||
| Title: | Chief Financial Officer | |||
24
Confirmed and accepted as of
the date first above written:
the date first above written:
Accepted as of the date hereof
Xxxxxx Xxxxxxx & Co. Incorporated
Acting severally on behalf of themselves and the
several Initial Purchasers named in Schedule I of
the Purchase Agreement.
several Initial Purchasers named in Schedule I of
the Purchase Agreement.
| By: Xxxxxx Xxxxxxx & Co. Incorporated | ||||
| By: | /s/ Xxxx Xxxxxxx | |||
| Name: | Xxxx Xxxxxxx | |||
| Title: | Vice President | |||
25
