Exhibit 99.4
REGISTRATION RIGHTS AGREEMENT
Registration Rights Agreement (this "Agreement") dated as of
September 17, 1999 between VoiceStream Wireless Holding Corporation, a Delaware
Corporation (the "Company"), Sonera Corporation (formerly Sonera Ltd.), a
Finnish limited liability Company corporation ("Sonera")and Sonera Holding B.V.,
a company organized under the laws of the Netherlands.
RECITALS
WHEREAS, pursuant to that certain Stock Subscription Agreement
dated September 17, 1999, by and among Company, and Holder ("Stock Subscription
Agreement"), Holder shall acquire shares of Common Stock of the Company;
WHEREAS, in connection with Holder's investment pursuant to
the Stock Subscription Agreement, the Company agreed to provide certain rights
to Holder to cause the shares so purchased to be registered pursuant to the
Securities Act; and
WHEREAS, the parties hereto hereby desire to set forth
Holder's rights and the Company's obligations to cause the registration of the
Registrable Securities pursuant to the Securities Act;
NOW, THEREFORE, in consideration of the agreement to purchase
Common Stock of the Company by the Holder pursuant to the Stock Subscription
Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Section 1. Definitions and Usage.
As used in this Agreement:
1.1. Definitions.
"Affiliates" shall have the meaning set forth for
such term in the Stock Subscription Agreement.
"Agent" shall mean the principal placement agent on
an agented placement of Registrable Securities.
"Commission" shall mean the Securities and Exchange
Commission.
- 1 -
"Common Stock" shall mean (i) the common stock, no
par value of the Company, and (ii) shares of capital stock of the Company issued
by the Company in respect of or in exchange for shares of such common stock in
connection with any stock dividend or distribution, stock split-up,
recapitalization, recombination or exchange by the Company generally of shares
of such common stock.
"Continuously Effective", with respect to a specified
registration statement, shall mean that it shall not cease to be effective and
available for Transfers of Registrable Securities thereunder for longer than
either (i) any ten (10) consecutive business days, or (ii) an aggregate of
fifteen (15) business days during the period specified in the relevant provision
of this Agreement.
"Demand Registration" shall have the meaning set
forth in Section 2.1(i).
"Demanding Holders" shall have the meaning set forth
in Section 2.1(i).
"Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended.
"Holder" shall mean Sonera and any affiliate thereof
that holds Registrable Securities and any subsequent transferee of Registrable
Securities as permitted by Section 8 and the term "Holders" shall include Holder
and transferees of Registrable Securities with respect to the rights that such
Transferees shall have acquired in accordance with Section 8 hereof, at such
times as such Persons shall own Registrable Securities.
"Initiating Substantial Holder" shall have the
meaning set forth in Section 2.2.
"Investor Agreement" shall mean that certain Investor
Agreement as of September 17, 1999 by and between Holder, VoiceStream Wireless
Corporation, a Washington corporation ("VoiceStream"), and Company.
"Majority Selling Holders" means those Selling
Holders whose Registrable Securities included in such registration represent a
majority of the Registrable Securities of all Selling Holders included therein.
"Person" shall mean an individual, corporation,
partnership, limited liability company, joint venture, association, joint stock
company, unincorporated syndicate, unincorporated organization, trust, trustee,
executor, administrator or other
- 2 -
legal representative, governmental authority or agency, political subdivision,
or any group of Persons acting in concert.
"Piggyback Registration" shall have the meaning set
forth in Section 3.
"Register", "registered", and "registration" shall
refer to a registration effected by preparing and filing a registration
statement or similar document in compliance with the Securities Act, and the
declaration or ordering by the Commission of effectiveness of such registration
statement or document.
"Registrable Securities" shall mean, subject to
Section 8 and Section 10.3: (i) the Shares owned by Holder on the date hereof or
issued by the Company to a Holder thereafter, and owned by a Holder on the date
of determination, including derivative securities with respect to such Shares
(ii) any shares of Common Stock or other securities issued as (or issuable upon
the conversion or exercise of any warrant, right or other security which is
issued as) a dividend or other distribution with respect to, or in exchange by
the Company generally for, or in replacement by the Company generally of, such
Shares; and (iii) any securities issued in exchange for Shares in any subsequent
merger or reorganization of the Company; provided, however, that Registrable
Securities shall not include any Securities which have theretofore been
registered and sold pursuant to the Securities Act or which have been sold to
the public pursuant to Rule 144 or any similar rule promulgated by the
Commission pursuant to the Securities Act, and, provided further, the Company
shall have no obligation under Sections 2 and 3 to register any Registrable
Securities of a Holder if the Company shall deliver to the Holders requesting
such registration an opinion of counsel reasonably satisfactory to such Holders
and its counsel to the effect that the proposed sale or disposition of all of
the Registrable Securities for which registration was requested does not require
registration under the Securities Act for a sale or disposition in a single
public sale, and offers to remove any and all legends restricting transfer from
the certificates evidencing such Registrable Securities. For purposes of this
Agreement, a Person will be deemed to be an owner of Registrable Securities
whenever such Person has the then-existing right to acquire such Registrable
Securities (by conversion, purchase or otherwise, including acquisition pursuant
to the Stock Subscription Agreement and the Reorganization Agreement), whether
or not such acquisition has actually been effected.
"Registrable Securities then outstanding" shall mean,
with respect to a specified determination date, the Registrable Securities owned
by all Holders on such date.
- 3 -
"Registration Expenses" shall have the meaning set
forth in Section 6.1.
"Reorganization Agreement" shall mean that certain
Agreement and Plan of Reorganization, dated as of September 17, 1999 among
VoiceStream, Company, VoiceStream Subsidiary III Corporation, Aerial
Communications, Inc. and Telephone and Data Systems, Inc.
"Securities Act" shall mean the Securities Act of
1933, as amended.
"Selling Holders" shall mean, with respect to a
specified registration pursuant to this Agreement, Holders whose Registrable
Securities are included in such registration.
"Shares" shall mean all shares of Common Stock issued
to Holder or its Affiliates pursuant to the Reorganization Agreement or the
Stock Subscription Agreement.
"Shelf Registration" shall have the meaning set forth
in Section 2.2.
"Stock Subscription Agreement" Shall have the meaning
set forth in the Recitals.
"Substantial Holder" shall mean Holder on the date of
this Agreement and after the date of this Agreement, any Holder of 15% or more
of the Registrable Securities then outstanding.
"Transfer" shall mean and include the act of selling,
giving, transferring, creating a trust (voting or otherwise), assigning or
otherwise disposing of (other than pledging, hypothecating or otherwise
transferring as security) (and correlative words shall have correlative
meanings); provided however, that any transfer or other disposition upon
foreclosure or other exercise of remedies of a secured creditor after an event
of default under or with respect to a pledge, hypothecation or other transfer as
security shall constitute a "Transfer."
"Underwriters' Representative" shall mean the
managing underwriter, or, in the case of a co-managed underwriting, the managing
underwriter designated as the Underwriters' Representative by the co-managers.
"Violation" shall have the meaning set forth in
Section 7.1.
- 4 -
1.2. Usage.
(i) When a reference is made in this Agreement to a
Section, Schedule, Annex or Exhibit, such reference shall be to a Section,
Schedule, Annex or Exhibit of this Agreement unless otherwise indicated or
unless the context otherwise requires.
(ii) The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
(iii) Whenever the words "include," "includes" or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation."
(iv) References to a Person are also references to
its assigns and successors in interest (by means of merger, consolidation or
sale of all or substantially all the assets of such Person or otherwise, as the
case may be).
(v) References to a document are to such document as
amended, waived and otherwise modified from time to time and references to a
statute or other governmental rule are to such statute or rule as amended and
otherwise modified from time to time (and references to any provision thereof
shall include references to any successor provision).
(vi) The definitions set forth herein are equally
applicable both to the singular and plural forms and the feminine, masculine and
neuter forms of the terms defined.
(vii) The term "hereof" and similar terms refer to
this Agreement as a whole.
(viii) References to Registrable Securities "owned"
by a Holder shall include Registrable Securities beneficially owned by such
Person but which are held of record in the name of a nominee, trustee,
custodian, or other agent, but shall exclude shares of Common Stock held by a
Holder in a fiduciary capacity for customers of such Person.
(ix) The "date of" any notice or request given
pursuant to this Agreement shall be determined in accordance with Section 13.2.
- 5 -
Section 2. Demand Registration.
2.1.
(i) At any time on or after the date six months after
the date hereof , if one or more Holders that own an aggregate of 51% or more of
the Registrable Securities then outstanding shall make a written request to the
Company (the "Demanding Holders"), the Company shall cause there to be filed
with the Commission a registration statement meeting the requirements of the
Securities Act (a "Demand Registration"), and each Demanding Holder shall be
entitled to have included therein (subject to Section 2.7) all or such number of
such Demanding Holder's Registered Shares, as the Demanding Holder shall report
in writing; provided, however, that no request may be made pursuant to this
Section 2.1 if within nine (9) months prior to the date of such request a Demand
Registration Statement pursuant to this Section 2.1 shall have been declared
effective by the Commission. Any request made pursuant to this Section 2.1 shall
be addressed to the attention of the Secretary of the Company, and shall specify
the number of Registrable Securities to be registered, the intended methods of
disposition thereof and that the request is for a Demand Registration pursuant
to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up
to ninety (90) days the filing of any Demand Registration statement otherwise
required to be prepared and filed pursuant to this Section 2.1, if the Board
determines, in its good faith reasonable judgment (with the concurrence of the
managing underwriter, if any), that such registration and the Transfer of
Registrable Securities contemplated thereby would materially interfere with, or
require premature disclosure of, any financing, acquisition or reorganization
involving the Company or any of its wholly owned subsidiaries and the Company
promptly gives the Demanding Holders notice of such determination; provided,
however, that the Company shall not have postponed pursuant to this Section
2.1(ii) the filing of any other Demand Registration statement otherwise required
to be prepared and filed pursuant to this Section 2.1 during the twelve (12)
month period ended on the date of the relevant request pursuant to Section
2.1(i).
(iii) Whenever the Company shall have received a
demand pursuant to Section 2.1(i) to effect the registration of any Registrable
Shares, the Company shall promptly give written notice of such proposed
registration to all other Holders. Any such Holder may, within twenty (20) days
after receipt of such notice, request in writing that all of such Holder's
Registrable Shares, or any portion thereof designated by such Holder, be
included in the registration.
- 6 -
2.2. On or after the date of this Agreement each
Substantial Holder that shall make a written request to the Company (the
"Initiating Substantial Holder"), shall be entitled to have all or any number of
such Initiating Substantial Holder's Registrable Securities included in a
registration with the Commission in accordance with the Securities Act for an
offering on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act (a "Shelf Registration"). Any request made pursuant to this
Section 2.2 shall be addressed to the attention of the Secretary of the Company,
and shall specify the number of Registrable Securities to be registered, the
intended methods of disposition thereof and that the request is for a Shelf
Registration pursuant to this Section 2.2.
2.3. Following receipt of a request for a Demand
Registration or a Shelf Registration, the Company shall:
(i) File the registration statement with the
Commission as promptly as practicable, and shall use the Company's best efforts
to have the registration declared effective under the Securities Act as soon as
reasonably practicable, in each instance giving due regard to the need to
prepare current financial statements, conduct due diligence and complete other
actions that are reasonably necessary to effect a registered public offering.
(ii) Use the Company's best efforts to keep the
relevant registration statement Continuously Effective (x) if a Demand
Registration, for up to ninety (90) days or until such earlier date as of which
all the Registrable Securities under the Demand Registration statement shall
have been disposed of in the manner described in the Registration Statement, and
(y) if a Shelf Registration, for three (3) years. Notwithstanding the foregoing,
if for any reason the effectiveness of a registration pursuant to this Section 2
is suspended or, in the case of a Demand Registration, postponed as permitted by
Section 2.1(ii), the foregoing period shall be extended by the aggregate number
of days of such suspension or postponement.
2.4. The Company shall be obligated to effect no more
than four Demand Registrations and such number of Shelf Registrations as may be
necessary to provide each and every Substantial Holder with the right to request
one Shelf Registration. For purposes of the preceding sentence, registration
shall not be deemed to have been effected (i) unless a registration statement
with respect thereto has become effective, (ii) if after such registration
statement has become effective, such registration or the related offer, sale or
distribution of Registrable Securities thereunder is interfered with by any stop
order, injunction or other order or requirement of the Commission or other
- 7 -
governmental agency or court for any reason not attributable to the Selling
Holders and such interference is not thereafter eliminated, or (iii) if the
conditions to closing specified in the underwriting agreement, if any, entered
into in connection with such registration are not satisfied or waived, other
than by reason of a failure on the part of the Selling Holders. If the Company
shall have complied with its obligations under this Agreement, a right to demand
a registration pursuant to this Section 2 shall be deemed to have been satisfied
(i) if a Demand Registration, upon the earlier of (x) the date as of which all
of the Registrable Securities included therein shall have been disposed of
pursuant to the Registration Statement, and (y) the date as of which such Demand
Registration shall have been Continuously Effective for a period of ninety (90)
days, and (ii) if a Shelf Registration, upon the effective date of a Shelf
Registration, provided no stop order or similar order, or proceedings for such
an order, is thereafter entered or initiated.
2.5. A registration pursuant to this Section 2 shall
be on such appropriate registration form of the Commission as shall (i) be
selected by the Company and be reasonably acceptable to the Majority Selling
Holders, or by the Initiating Substantial Holder, as the case may be, and (ii)
permit the disposition of the Registrable Securities in accordance with the
intended method or methods of disposition specified in the request pursuant to
Section 2.1(i) or Section 2.2, respectively.
2.6. If any registration pursuant to Section 2
involves an underwritten offering (whether on a "firm", "best efforts" or "all
reasonable efforts" basis or otherwise), or an agented offering, the Company,
shall have the right to select the underwriter or underwriters and manager or
managers to administer such underwritten offering or the placement agent or
agents for such agented offering; provided, however, that each Person so
selected shall be reasonably acceptable to the Majority Selling Holders, or the
Initiating Substantial Holder, as the case may be.
2.7. Whenever the Company shall effect a registration
pursuant to this Section 2 in connection with an underwritten offering by one or
more Selling Holders of Registrable Securities: (i) if such Selling Holders have
requested the inclusion therein of more than one class of Registrable
Securities, and the Underwriters' Representative or Agent advises each such
Selling Holder in writing that, in its opinion, the inclusion of more than one
class of Registrable Securities would adversely affect such offering, the
Demanding Holders holding at least a majority of the Registrable Securities
(determined by the relative market value as of the date on which a timely demand
is last received from Holder) proposed to be sold therein by them, shall decide
which class of Registrable Securities shall be included
- 8 -
therein in such offering and the related registration, and the other class shall
be excluded; and (ii) if the Underwriters' Representative or Agent advises each
such Selling Holder in writing that, in its opinion, the amount of securities
requested to be included in such offering (whether by Selling Holders or others)
exceeds the amount which can be sold in such offering within a price range
acceptable to the Majority Selling Holders, securities shall be included in such
offering and the related registration, to the extent of the amount which can be
sold within such price range, and on a pro rata basis among all Selling Holders;
first for the account of the Substantial Holders, and second by all other
Selling Holders.
Section 3. Piggyback Registration.
3.1. If at any time during the term of this Agreement
the Company proposes to register (including for this purpose a registration
effected by the Company for shareholders of the Company other than the Holders)
securities under the Securities Act in connection with the public offering
solely for cash on Form X-0, X-0 or S-3 (or any replacement or successor forms),
the Company shall promptly give each Holder written notice of such registration
(a "Piggyback Registration"). Upon the written request of each Holder given
within 20 days following the date of such notice, the Company shall cause to be
included in such registration statement and use its best efforts to be
registered under the Securities Act all the Registrable Securities that each
such Holder shall have requested to be registered. The Company shall have the
absolute right to withdraw or cease to prepare or file any registration
statement for any offering referred to in this Section 3 without any obligation
or liability to any Holder.
3.2. If the Underwriters' Representative or Agent
shall advise the Company in writing (with a copy to each Selling Holder) that,
in its opinion, the amount of Registrable Securities requested to be included in
such registration would materially adversely affect such offering, or the timing
thereof, then the Company will include in such registration, to the extent of
the amount and class which the Company is so advised can be sold without such
material adverse effect in such offering: First, all securities proposed to be
sold by the Company for its own account; second, the Registrable Securities
requested to be included in such registration by Holders pursuant to this
Section 3, and all other securities being registered pursuant to the exercise of
contractual rights comparable to the rights granted in this Section 3, pro rata
based on the estimated gross proceeds from the sale thereof; provided, however,
that the Registrable Securities that have been requested to be registered shall
not be reduced below 20% of the shares included in such registration unless such
action is
- 9 -
necessary to avoid a material adverse effect on the Company taken as a whole.
3.3. Each Holder shall be entitled to have its
Registrable Securities included in an unlimited number of Piggyback
Registrations pursuant to this Section 3.
3.4. If the Corporation has previously filed a
registration statement with respect to Registerable Securities pursuant to
Section 2 or pursuant to this Section 3, and if such previous registration has
not been withdrawn or abandoned, the Corporation will not file or cause to be
effected any other registration of any of its equity securities or securities
convertible or exchangeable into or exercisable for its equity securities under
the Securities Act (except on Form S-8 or any successor form), whether on its
own behalf or at the request of any holder or holders of such securities, until
a period of 180 days has elapsed from the effective date of such a previous
registration.
Section 4. Registration Procedures. Whenever required under
Section 2 or Section 3 to effect the registration of any Registrable Securities,
the Company shall, as expeditiously as practicable:
4.1. Prepare and file with the Commission a
registration statement with respect to such Registrable Securities and use the
Company's best efforts to cause such registration statement to become effective;
provided, however, that before filing a registration statement or prospectus or
any amendments or supplements thereto, including documents incorporated by
reference after the initial filing of the registration statement and prior to
effectiveness thereof, the Company shall furnish to one firm of counsel for the
Selling Holders (selected by Majority Selling Holders or the Initiating
Substantial Holder, as the case may be) copies of all such documents in the form
substantially as proposed to be filed with the Commission at least four (4)
business days prior to filing for review and comment by such counsel, which
opportunity to comment shall include an absolute right to control or contest
disclosure if the applicable Selling Holder reasonably believes that it may be
subject to controlling person liability under applicable securities laws with
respect thereto.
4.2. Prepare and file with the Commission such
amendments and supplements to such registration statement and the prospectus
used in connection with such registration statement as may be necessary to
comply with the provisions of the Securities Act and rules thereunder with
respect to the disposition of all securities covered by such registration
statement. If the registration is for an underwritten offering, the Company
shall
- 10 -
amend the registration statement or supplement the prospectus whenever required
by the terms of the underwriting agreement entered into pursuant to Section 5.2.
Subject to Rule 415 under the Securities Act, if the registration statement is a
Shelf Registration, the Company shall amend the registration statement or
supplement the prospectus so that it will remain current and in compliance with
the requirements of the Securities Act for three years after its effective date,
and if during such period any event or development occurs as a result of which
the registration statement or prospectus contains a misstatement of a material
fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, the Company shall
promptly notify each Selling Holder, amend the registration statement or
supplement the prospectus so that each will thereafter comply with the
Securities Act and furnish to each Selling Holder of Registerable Shares such
amended or supplemented prospectus, which each such Holder shall thereafter use
in the Transfer of Registerable Shares covered by such registration statement.
Pending such amendment or supplement each such Holder shall cease making offers
or Transfers of Registerable Shares pursuant to the prior prospectus. In the
event that any Registrable Securities included in a registration statement
subject to, or required by, this Agreement remain unsold at the end of the
period during which the Company is obligated to use its best efforts to maintain
the effectiveness of such registration statement, the Company may file a
post-effective amendment to the registration statement for the purpose of
removing such Securities from registered status.
4.3. Furnish to each Selling Holder of Registrable
Securities, without charge, such numbers of copies of the registration
statement, any pre-effective or post-effective amendment thereto, the
prospectus, including each preliminary prospectus and any amendments or
supplements thereto, in each case in conformity with the requirements of the
Securities Act and the rules thereunder, and such other related documents as any
such Selling Holder may reasonably request in order to facilitate the
disposition of Registrable Securities owned by such Selling Holder.
4.4. Use the Company's best efforts (i) to register
and qualify the securities covered by such registration statement under such
other securities or Blue Sky laws of such states or domestic jurisdictions as
shall be reasonably requested by the Underwriters' Representative or Agent (as
applicable, or if inapplicable, the Majority Selling Holders), and (ii) to
obtain the withdrawal of any order suspending the effectiveness of a
registration statement, or the lifting of any suspension of the qualification
(or exemption from qualification) of the offer and transfer of any of the
Registrable Securities in any jurisdiction, at the earliest possible moment;
provided, however, that the
- 11 -
Company shall not be required in connection therewith or as a condition thereto
to qualify to do business or to file a general consent to service of process in
any such states or jurisdictions.
4.5. In the event of any underwritten or agented
offering, enter into and perform the Company's obligations under an underwriting
or agency agreement (including indemnification and contribution obligations of
underwriters or agents), in usual and customary form, with the managing
underwriter or underwriters of or agents for such offering. The Company shall
also cooperate with the Majority Selling Holders or Initiating Substantial
Holder, as the case may be, and the Underwriters' Representative or Agent for
such offering in the marketing of the Registerable Shares, including making
available the Company's officers, accountants, counsel, premises, books and
records for such purpose.
4.6. Promptly notify each Selling Holder of any stop
order issued or threatened to be issued by the Commission in connection
therewith (and take all reasonable actions required to prevent the entry of such
stop order or to remove it if entered.
4.7. Make generally available to the Company's
security holders copies of all periodic reports, proxy statements, and other
information referred to in Section 10.1 and an earnings statement satisfying the
provisions of Section 11(a) of the Securities Act no later than 90 days
following the end of the 12-month period beginning with the first month of the
Company's first fiscal quarter commencing after the effective date of each
registration statement filed pursuant to this Agreement.
4.8. Make available for inspection by any Selling
Holder, any underwriter participating in such offering and the representatives
of such Selling Holder and underwriter (but not more than one firm of counsel to
such Selling Holders), all financial and other information as shall be
reasonably requested by them, and provide the Selling Holder, any underwriter
participating in such offering and the representatives of such Selling Holder
and underwriter the opportunity to discuss the business affairs of the Company
with its appropriate officers and independent public accountants who have
certified the audited financial statements included in such registration
statement, in each case all as necessary to enable them to exercise their due
diligence responsibility under the Securities Act; provided, however, that
information that the Company determines, in good faith, to be confidential and
which the Company advises such Person in writing, is confidential shall not be
disclosed unless such Person signs a confidentiality agreement reasonably
satisfactory to the Company or the related Selling Holder of Registrable
Securities agrees to be responsible for such Person's breach of confidentiality
on terms reasonably satisfactory to the Company.
- 12 -
4.9. Use the Company's best efforts to obtain a
so-called "comfort letter" from its independent public accountants, and legal
opinions of counsel to the Company addressed to the Selling Holders, in
customary form and covering such matters of the type customarily covered by such
letters, and in a form that shall be reasonably satisfactory to Majority Selling
Holders or the Initiating Substantial Holder, as the case be. The Company shall
furnish to each Selling Holder a signed counterpart of any such comfort letter
or legal opinion. Delivery of any such opinion or comfort letter shall be
subject to the recipient furnishing such written representations or
acknowledgments as are customarily provided by selling shareholders who receive
such comfort letters or opinions.
4.10. Provide and cause to be maintained a transfer
agent and registrar for all Registrable Securities covered by such registration
statement from and after a date not later than the effective date of such
registration statement.
4.11. Use all reasonable efforts to cause the
Registrable Securities covered by such registration statement (i) if the Common
Stock is then listed on a securities exchange or included for quotation in a
recognized trading market, to continue to be so listed or included for a
reasonable period of time after the offering, and (ii) to be registered with or
approved by such other United States or state governmental agencies or
authorities as may be necessary by virtue of the business and operations of the
Company to enable the Selling Holders of Registrable Securities to consummate
the disposition of such Registrable Securities.
4.12. Use the Company's reasonable efforts to provide
a CUSIP number for the Registrable Securities prior to the effective date of the
first registration statement including Registrable Securities.
4.13. Take such other actions as are reasonably
required in order to expedite or facilitate the disposition of Registrable
Securities included in each such registration.
Section 5. Holders' Obligations. It shall be a condition
precedent to the obligations of the Company to take any action pursuant to this
Agreement with respect to the Registrable Securities of any Selling Holder of
Registrable Securities that such Selling Holder shall:
5.1. Furnish to the Company such information
regarding such Selling Holder, the number of the Registrable Securities owned by
it, and the intended method of disposition of such securities as shall be
required to effect the registration of
- 13 -
such Selling Holder's Registrable Securities, and to cooperate with the Company
in preparing such registration;
5.2. Agree to sell their Registrable Securities to
the underwriters at the same price and on substantially the same terms and
conditions as the Company or the other Persons on whose behalf the registration
statement was being filed have agreed to sell their securities, and to execute
the underwriting agreement agreed to by the Majority Selling Holders (in the
case of a registration under Section 2) or the Company and the Majority Selling
Holders (in the case of a registration under Section 3).
Section 6. Expenses of Registration. Expenses in connection
with registrations pursuant to this Agreement shall be allocated and paid as
follows:
6.1. With respect to each Demand Registration and
Shelf Registration, the Company shall bear and pay all expenses incurred in
connection with any registration, filing, or qualification of Registrable
Securities with respect to such Demand Registrations for each Selling Holder
(which right may be assigned to any Person to whom Registrable Securities are
Transferred as permitted by Section 9), including all registration, filing and
National Association of Securities Dealers, Inc. fees, all fees and expenses of
complying with securities or blue sky laws, all word processing, duplicating and
printing expenses, messenger and delivery expenses, the reasonable fees and
disbursements of counsel for the Company, and of the Company's independent
public accountants, including the expenses of "cold comfort" letters required by
or incident to such performance and compliance (the "Registration Expenses"),
but excluding underwriting discounts and commissions relating to Registrable
Securities and any fees and disbursements of counsel for the Selling Holders
which shall be selected by the Majority Selling Holders (which shall be paid on
a pro rata basis by the Selling Holders) provided, however, that the Company
shall not be required to pay for any expenses of any registration proceeding
begun pursuant to Section 2 if the registration is subsequently withdrawn at the
request of the Majority Selling Holders (in which case all Selling Holders shall
bear such expense), unless Holders whose Registrable Securities constitute a
majority of the Registrable Securities then outstanding agree that such
withdrawn registration shall constitute one of the demand registrations under
Section 2 hereof.
6.2. The Company shall bear and pay all Registration
Expenses incurred in connection with any Piggyback Registrations pursuant to
Section 3 for each Selling Holder (which right may be Transferred to any Person
to whom Registrable Securities are Transferred as permitted by Section 8), but
excluding underwriting discounts and commissions relating to
- 14 -
Registrable Securities and any fees and disbursements of counsel for the Selling
Holders (which shall be paid on a pro rata basis by the Selling Holders of
Registrable Securities).
6.3. Any failure of the Company to pay any
Registration Expenses as required by this Section 6 shall not relieve the
Company of its obligations under this Agreement.
Section 7. Indemnification; Contribution. If any Registrable
Securities are included in a registration statement under this Agreement:
7.1. To the extent permitted by applicable law, the
Company shall indemnify and hold harmless each Selling Holder, each Person, if
any, who controls such Selling Holder within the meaning of the Securities Act,
and each officer, director, partner, and employee of such Selling Holder and
such controlling Person, against any and all losses, claims, damages,
liabilities and reasonable expenses (joint or several), including reasonable
attorneys' fees and disbursements and expenses of investigation, incurred by
such party pursuant to any actual or threatened action, suit, proceeding or
investigation, or to which any of the foregoing Persons may become subject under
the Securities Act, the Exchange Act or other federal or state laws, insofar as
such losses, claims, damages, liabilities and reasonable expenses arise out of
or are based upon any of the following statements, omissions or violations
(collectively a "Violation"):
(i) Any untrue statement or alleged untrue statement
of a material fact contained in such registration statement, including any
preliminary prospectus or final prospectus contained therein, or any amendments
or supplements thereto;
(ii) 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
(iii) Any violation or alleged violation by the
Company of the Securities Act, the Exchange Act, any applicable state securities
law or any rule or regulation promulgated under the Securities Act, the Exchange
Act or any applicable state securities law; provided, however, that the
indemnification required by this Section 7.1 shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or expense if such
settlement is effected without the consent of the Company, nor shall the Company
be liable in any such case for any such loss, claim, damage, liability or
expense to the extent that it arises out of or is based upon a Violation which
occurs in reliance upon and in conformity with written information furnished to
the Company by the indemnified party expressly for use in connection
- 15 -
with such registration; provided, further, that the indemnity agreement
contained in this Section 7 shall not apply to any underwriter to the extent
that any such loss is based on or arises out of an untrue statement or alleged
untrue statement of a material fact, or an omission or alleged omission to state
a material fact, contained in or omitted from any preliminary prospectus if the
final prospectus shall correct such untrue statement or alleged untrue
statement, or such omission or alleged omission, and a copy of the final
prospectus has not been sent or given to such person at or prior to the
confirmation of sale to such person if such underwriter was under an obligation
to deliver such final prospectus and failed to do so. The Company shall also
indemnify the Selling Holders against claims asserted by underwriters, selling
brokers, dealer managers and similar securities industry professionals
participating in the distribution, their officers, directors, agents and
employees and each person who controls such persons (within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same
extent as provided above with respect to the indemnification of the Selling
Holders.
7.2. To the extent permitted by applicable law, each
Selling Holder shall indemnify and hold harmless the Company, each of its
directors, each of its officers who shall have signed the registration
statement, each Person, if any, who controls the Company within the meaning of
the Securities Act, any other Selling Holder, any controlling Person of any such
other Selling Holder and each officer, director, partner, and employee of such
other Selling Holder and such controlling Person, against any and all losses,
claims, damages, liabilities and expenses (joint and several), including
attorneys' fees and disbursements and expenses of investigation, incurred by
such party pursuant to any actual or threatened action, suit, proceeding or
investigation, or to which any of the foregoing Persons may otherwise become
subject under the Securities Act, the Exchange Act or other federal or state
laws, insofar as such losses, claims, damages, liabilities and expenses arise
out of or are based upon any Violation, in each case to the extent (and only to
the extent) that such Violation occurs in reliance upon and in conformity with
written information furnished by such Selling Holder expressly for use in
connection with such registration; provided, however, that (x) the
indemnification required by this Section 7.2 shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or expense if settlement
is effected without the consent of the relevant Selling Holder of Registrable
Securities, and (y) in no event shall the amount of any indemnity under this
Section 7.2 exceed the gross proceeds from the applicable offering received by
such Selling Holder.
- 16 -
7.3. Promptly after receipt by an indemnified party
under this Section 7 of notice of the commencement of any action, suit,
proceeding, investigation or threat thereof made in writing for which such
indemnified party may make a claim under this Section 7, such indemnified party
shall deliver to the indemnifying party a written notice of the commencement
thereof and the indemnifying party shall have the right to participate in, and,
to the extent the indemnifying party so desires, jointly with any other
indemnifying party similarly noticed, to assume the defense thereof with counsel
mutually satisfactory to the parties. The failure to deliver written notice to
the indemnifying party within a reasonable time following the commencement of
any such action, if prejudicial to its ability to defend such action, shall
relieve such indemnifying party of any liability to the indemnified party under
this Section 7 but shall not relieve the indemnifying party of any liability
that it may have to any indemnified party otherwise than pursuant to this
Section 7. Any fees and expenses incurred by the indemnified party (including
any fees and expenses incurred in connection with investigating or preparing to
defend such action or proceeding) shall be paid to the indemnified party, as
incurred, within thirty (30) days of written notice thereof to the indemnifying
party; provided, however, that such notice is accompanied by an appropriate
undertaking of the indemnified party to reimburse the indemnifying party to the
extent it is ultimately determined that such party is not entitled to
indemnification. Any such indemnified party shall have the right to employ
separate counsel in any such action, claim or proceeding and to participate in
the defense thereof, but the fees and expenses of such counsel shall be the
expenses of such indemnified party unless (i) the indemnifying party has agreed
to pay such fees and expenses or (ii) the indemnifying party shall have failed
to promptly assume the defense of such action, claim or proceeding. No
indemnifying party shall be liable to an indemnified party for any settlement of
any action, proceeding or claim without the written consent of the indemnifying
party, which consent shall not be unreasonably withheld.
7.4. If the indemnification required by this Section
7 from the indemnifying party is unavailable to an indemnified party hereunder
in respect of any losses, claims, damages, liabilities or expenses referred to
in this Section 7:
(i) The indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities or
expenses in such proportion as is appropriate to reflect the relative fault of
the indemnifying party and indemnified parties in connection with the actions
which resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations. The
- 17 -
relative fault of such indemnifying party and indemnified parties shall be
determined by reference to, among other things, whether any Violation has been
committed by, or relates to information supplied by, such indemnifying party or
indemnified parties, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such Violation. The amount
paid or payable by a party as a result of the losses, claims, damages,
liabilities and expenses referred to above shall be deemed to include, subject
to the limitations set forth in Section 7.1 and Section 7.2, any legal or other
fees or expenses reasonably incurred by such party in connection with any
investigation or proceeding.
(ii) The parties hereto agree that it would not be
just and equitable if contribution pursuant to this Section 7.4 were determined
by pro rata allocation or by any other method of allocation which does not take
into account the equitable considerations referred to in Section 7.4(i). 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.
7.5. If indemnification is available under this
Section 7, the indemnifying parties shall indemnify each indemnified party to
the full extent provided in this Section 8 without regard to the relative fault
of such indemnifying party or indemnified party or any other equitable
consideration referred to in Section 7.4.
7.6. The obligations of the Company and the Selling
Holders of Registrable Securities under this Section 7 shall survive the
completion of any offering of Registrable Securities pursuant to a registration
statement under this Agreement, and otherwise.
Section 8. Transfer of Registration Rights. Subject to
restrictions in the Investor Agreement on the right to transfer the Shares,
rights with respect to Registrable Securities may be Transferred as follows: (i)
the rights of the Holder and any subsequent Substantial Holder to require a
Shelf Registration pursuant to Section 2.2 may be Transferred to any Person in
connection with the Transfer to such Person by such Substantial Holder of a
number of Registrable Securities equal to 15% or more of the Registrable
Securities outstanding on the date of this Agreement, and (ii) all other rights
of the Holder and any subsequent Holder with respect to Registrable Securities
pursuant to this Agreement may be Transferred by such Holder to any Person in
connection with the Transfer of Registrable Securities to such Person, in all
cases, if (x) any such Transferee that is not a party to this Agreement shall
have executed and delivered to the
- 18 -
Secretary of the Company a properly completed agreement substantially in the
form of Exhibit A, and (y) the Transferor shall have delivered to the Secretary
of the Company, no later than 15 days following the date of the Transfer,
written notification of such Transfer setting forth the name of the Transferor,
name and address of the Transferee, and the number of Registrable Securities
which shall have been so Transferred.
Section 9. Holdback. Each Holder entitled pursuant to this
Agreement to have Registrable Securities included in a registration statement
prepared pursuant to this Agreement, if so requested by the Underwriters'
Representative or Agent in connection with an offering of any Registrable
Securities, shall not effect any public sale or distribution of shares of Common
Stock or any securities convertible into or exchangeable or exercisable for
shares of Common Stock, including a sale pursuant to Rule 144 under the
Securities Act (except as part of such underwritten or agented registration),
during the five (5) day period prior to, and during the ninety (90) day period
beginning on, the date such registration statement is declared effective under
the Securities Act by the Commission, provided that such Holder is timely
notified of such effective date in writing by the Company or such Underwriters'
Representative or Agent. In order to enforce the foregoing covenant, the Company
shall be entitled to impose stop-transfer instructions with respect to the
Registrable Securities of each Holder until the end of such period.
Section 10. Covenants of the Company. The Company hereby
agrees and covenants as follows:
10.1. The Company shall file as and when applicable,
on a timely basis, all reports required to be filed by it under the Exchange
Act. If the Company is not required to file reports pursuant to the Exchange
Act, upon the request of any Holder of Registrable Securities, the Company shall
make publicly available the information specified in subparagraph (c)(2) of Rule
144 of the Securities Act, and take such further action as may be reasonably
required from time to time and as may be within the reasonable control of the
Company, to enable the Holders to Transfer Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by Rule 144 under the Securities Act or any similar rule or regulation
hereafter adopted by the Commission.
10.2. (i) The Company shall not, and shall not permit
its majority owned subsidiaries to, effect any public sale or distribution of
any shares of Common Stock or any securities convertible into or exchangeable or
exercisable for shares of Common Stock, during the five business days prior to,
and during the 90-day period beginning on, the commencement of a public
- 19 -
distribution of the Registrable Securities pursuant to any registration
statement prepared pursuant to this Agreement (other than by the Company
pursuant to such registration if the registration is pursuant to Section 3). The
Company shall not effect any registration of its securities (other than on Form
X-0, Xxxx X-0, or any successor forms to such forms or pursuant to such other
registration rights agreements as may be approved in writing by the Majority
Selling Holders or the Initiating Substantial Holder, as the case may be, or
effect any public or private sale or distribution of any of its securities,
including a sale pursuant to Regulation D under the Securities Act, whether on
its own behalf or at the request of any holder or holders of such securities
from the date of a request for a Demand Registration pursuant to Section 2.1
until the earlier of (x) 90 days following the date as of which all securities
covered by such Demand Registration Statement shall have been Transferred, and
(y) one hundred eighty (180) days following the effective date of such Demand
Registration statement, unless the Company shall have previously notified in
writing all Selling Holders of the Company's desire to do so, and Selling
Holders owning a majority of the Registrable Securities or the Underwriters'
Representative, if any, shall have consented thereto in writing.
(ii) Any agreement entered into after the date of
this Agreement pursuant to which the Company or any of its majority owned
subsidiaries issues or agrees to issue any privately placed securities similar
to any issue of the Registrable Securities (other than (x) shares of Common
Stock pursuant to a stock incentive, stock option, stock bonus, stock purchase
or other employee benefit plan of the Company approved by its Board of
Directors, and (y) securities issued to Persons in exchange for ownership
interests in any Person in connection with a business combination in which the
Company or any of its majority owned subsidiaries is a party) shall contain a
provision whereby holders of such securities agree not to effect any public sale
or distribution of any such securities during the periods described in the first
sentence of Section 10.2(i), in each case including a sale pursuant to Rule 144
under the Securities Act (unless such Person is prevented by applicable statute
or regulation from entering into such an agreement).
10.3. The Company shall not, directly or indirectly,
(x) enter into any merger, consolidation or reorganization in which the Company
shall not be the surviving corporation or (y) Transfer or agree to Transfer all
or substantially all the Company's assets, unless prior to such merger,
consolidation, reorganization or asset Transfer, the surviving corporation or
the Transferee, respectively, shall have agreed in writing to assume the
obligations of the Company under this Agreement, and for that purpose references
hereunder to
- 20 -
"Registrable Securities" shall be deemed to include the securities which the
Holders of Registrable Securities would be entitled to receive in exchange for
Registrable Securities pursuant to any such merger, consolidation or
reorganization.
Section 11. Amendment, Modification and Waivers; Further
Assurances.
(i) This Agreement may be amended with the consent of
the Company and the Company may take any action herein prohibited, or omit to
perform any act herein required to be performed by it, only if the Company shall
have obtained the written consent of Holders owning Registrable Securities
possessing a majority in number of the Registrable Securities then outstanding
to such amendment, action or omission to act.
(ii) No waiver of any terms or conditions of this
Agreement shall operate as a waiver of any other breach of such terms and
conditions or any other term or condition, nor shall any failure to enforce any
provision hereof operate as a waiver of such provision or of any other provision
hereof. No written waiver hereunder, unless it by its own terms explicitly
provides to the contrary, shall be construed to effect a continuing waiver of
the provisions being waived and no such waiver in any instance shall constitute
a waiver in any other instance or for any other purpose or impair the right of
the party against whom such waiver is claimed in all other instances or for all
other purposes to require full compliance with such provision.
(iii) Each of the parties hereto shall execute all
such further instruments and documents and take all such further action as any
other party hereto may reasonably require in order to effectuate the terms and
purposes of this Agreement.
Section 12. Assignment; Benefit. This Agreement and all of the
provisions hereof shall be binding upon and shall inure to the benefit of the
parties hereto and their respective heirs, assigns, successors, transferees,
heirs, executors, administrators or personal representatives; provided, however,
that except as specifically provided herein with respect to certain matters,
neither this Agreement nor any of the rights, interests or obligations hereunder
shall be assigned or delegated by the Company without the prior written consent
of Holders owning Registrable Securities possessing a majority in number of the
Registrable Securities outstanding on the date as of which such delegation or
assignment is to become effective. A Holder may Transfer its rights hereunder to
a successor in interest to the Registrable Securities owned by such assignor
only as permitted by Section 8.
- 21 -
Section 13. Miscellaneous.
13.1. Governing Law. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE,
REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES
OF CONFLICT OF LAWS.
13.2. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed given if delivered personally,
sent by overnight courier (with delivery confirmed) or telecopied (with a
confirmatory copy sent by overnight courier) to the parties at the following
addresses (or at such other address for a party as shall be specified by like
notice):
(a) if to Parent or Sub, to:
VoiceStream Wireless Holding Corporation
0000 000xx Xxxxxx XX, Xxxxx 000
Xxxxxxxx, XX 00000
Attn: General Counsel
Telecopy No.: 000-000-0000
with a copy to:
Xxxxxxx Xxxxx & Xxxxx XXX
0000 Xxxxxxxx Center
000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxx, Esq.
Telecopy No.: 206-623-7022
(b) if to the original Holder, to:
Sonera Ltd.
Xxxxxxxxxxxxxx 00
X.X. Xxx 000, XXX-00000
Xxxxxxxx, Xxxxxxx
Attn: Xxxxx Xxxxxxxx, General Counsel
Telecopy No.: 011-358-2040-3414
With a copy (which shall not constitute notice)to:
Xxxxxx Xxxxx LLP
0000 X Xx., X.X.
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxxxx X. Xxxxxxxx
Telecopy No.: 000-000-0000
- 22 -
In the event of a Transfer of any Registrable
Securities, notices given pursuant to this Agreement to a subsequent Holder
shall be delivered to the relevant address specified in the relevant agreement
in the form of Exhibit A whereby such Holder became bound by the provisions of
this Agreement.
Except as otherwise provided in this Agreement, the
date of each such notice and request shall be deemed to be, and the date on
which each such notice and request shall be deemed given shall be: at the time
delivered, if personally delivered or mailed; when receipt is acknowledged, if
sent by telecopy; and the next business day after timely delivery to the
courier, if sent by overnight air courier guaranteeing next business day
delivery.
13.3. Entire Agreement; Integration. This Agreement
supersedes all prior agreements between or among any of the parties hereto with
respect to the subject matter contained herein and therein, and such agreements
embody the entire understanding among the parties relating to such subject
matter.
13.4. Injunctive Relief. Each of the parties hereto
acknowledges that in the event of a breach by any of them of any material
provision of this Agreement, the aggrieved party may be without an adequate
remedy at law. Each of the parties therefore agrees that in the event of such a
breach hereof the aggrieved party may elect to institute and prosecute
proceedings in any court of competent jurisdiction to enforce specific
performance or to enjoin the continuing breach hereof. By seeking or obtaining
any such relief, the aggrieved party shall not be precluded from seeking or
obtaining any other relief to which it may be entitled.
13.5. Section Headings. Section headings are for
convenience of reference only and shall not affect the meaning of any provision
of this Agreement.
13.6. Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be an original, and all of which
shall together constitute one and the same instrument. All signatures need not
be on the same counterpart.
13.7. Severability. If any provision of this
Agreement shall be invalid or unenforceable, such invalidity or unenforceability
shall not affect the validity and enforceability of the remaining provisions of
this Agreement, unless the result thereof would be unreasonable, in which case
the parties hereto shall negotiate in good faith as to appropriate amendments
hereto.
- 23 -
13.8. Filing. A copy of this Agreement and of all
amendments thereto shall be filed at the principal executive office of the
Company with the corporate recorder of the Company.
13.9. Termination. This Agreement may be terminated
at any time by a written instrument signed by the parties hereto. Unless sooner
terminated in accordance with the preceding sentence, this Agreement (other than
Section 7 hereof) shall terminate in its entirety on such date as there shall be
no Registrable Securities outstanding, provided that any shares of Common Stock
previously subject to this Agreement shall not be Registrable Securities
following the sale of any such shares in an offering registered pursuant to this
Agreement; and provided further, that a Holder shall cease to be a Holder under
this Agreement for all purposes if such Holder (i) is provided with an opinion
of counsel of the Company which is reasonably satisfactory to Holder to the
effect that such Holder may sell all of the Registrable Securities without
registration under the Securities Act and (ii) enters into an agreement with the
Company pursuant to which the Company agrees remove all legends and "stop
transfers" relating to such Registrable Securities.
13.10. Attorneys' Fees. In any action or proceeding
brought to enforce any provision of this Agreement, or where any provision
hereof is validly asserted as a defense, the successful party shall be entitled
to recover reasonable attorneys' fees (including any fees incurred in any
appeal) in addition to its costs and expenses and any other available remedy.
13.11. No Third Party Beneficiaries. Nothing herein
expressed or implied is intended to confer upon any person, other than the
parties hereto or their respective permitted assigns, successors, heirs and
legal representatives, any rights, remedies, obligations or liabilities under or
by reason of this Agreement.
- 24 -
IN WITNESS WHEREOF, this Agreement has been duly executed by
the parties hereto as of the date first written above.
VOICESTREAM WIRELESS HOLDING CORPORATION
By:
------------------------------------
Name:
Title:
SONERA CORPORATION
By:
------------------------------------
Name:
Title:
SONERA HOLDING B.V.
By:
------------------------------------
Name:
Title:
SIGNATURE PAGE TO
REGISTRATION RIGHTS AGREEMENT
- 25 -
EXHIBIT A
to Registration
Rights Agreement
AGREEMENT TO BE BOUND
BY THE REGISTRATION RIGHTS AGREEMENT
The undersigned, being the transferee of ______ shares of the
common stock, no par value (the "Registrable Securities"), of
________________________, a _______ corporation (the "Company"), as a condition
to the receipt of such Registrable Securities, acknowledges that matters
pertaining to the registration of such Registrable Securities is governed by the
Registration Rights Agreement dated as of __________, 19__ initially among the
Company and the Holders referred to therein (the "Agreement"), and the
undersigned hereby (1) acknowledges receipt of a copy of the Agreement, and (2)
agrees to be bound as a Holder by the terms of the Agreement, as the same has
been or may be amended from time to time.
Agreed to this __ day of ______________, ____________.
---------------------------------
*
---------------------------------
*
---------------------------------
*Include address for notices.
A-1
