Exhibit 10.2
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CONTRIBUTION, REGISTRATION RIGHTS AND STANDSTILL
AGREEMENT
dated as of September 19, 1996
by and among
MOBILE TELECOMMUNICATION TECHNOLOGIES CORP.,
NEWBRIDGE LATIN AMERICA, L.P.,
AND
TPG PARTNERS, L.P.
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Page
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS.................................................. 2
1.1 Definitions.................................................. 2
ARTICLE II CONTRIBUTION AND EXCHANGE AGREEMENTS
RELATED...................................................... 2
2.1 Contribution of Mtel Common Stock............................ 2
2.2 Additional Mtel Obligations.................................. 3
ARTICLE III REGISTRATION RIGHTS.......................................... 4
3.1 Shelf Registration........................................... 4
3.2 Registration Procedures...................................... 5
3.3 Limitations on Offerings by the Pur-
chasers...................................................... 6
3.4 Designation of Underwriter................................... 8
3.5 Cooperation by Prospective
Sellers...................................................... 8
3.6 Expenses of Registration..................................... 9
3.7 Indemnification.............................................. 9
3.8 Rights That May Be Granted to Subse-
quent Investors; Rights Granted to Pri-
or Investors................................................. 14
3.9 Delay of Registration........................................ 14
3.10 Rule 144 and Rule 144A....................................... 14
3.11 Specific Performance......................................... 15
ARTICLE IV STANDSTILL AGREEMENT......................................... 15
4.1 Standstill Provisions........................................ 15
ARTICLE V REPRESENTATIONS AND
WARRANTIES................................................... 16
5.1 Organization................................................. 16
5.2 Authority.................................................... 17
5.3 Consents and Approvals....................................... 17
5.4 No Violations................................................ 18
5.5 Additional Mtel Representations.............................. 18
ARTICLE VI MISCELLANEOUS................................................ 19
6.1 Termination.................................................. 19
6.2 Assignability................................................ 19
6.3 Notices...................................................... 19
6.4 Third Party Rights........................................... 21
6.5 Choice of Law................................................ 21
6.6 Severability................................................. 21
6.7 Enforcement of Agreement..................................... 21
6.8 References to Agreement...................................... 21
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Page
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6.9 Entire Agreement.......................................... 22
6.10 Headings, etc............................................. 22
6.11 Counterparts.............................................. 22
6.12 Amendments................................................ 22
6.13 Non-Competition........................................... 22
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CONTRIBUTION, REGISTRATION RIGHTS AND STANDSTILL
AGREEMENT
THIS CONTRIBUTION, REGISTRATION RIGHTS AND STANDSTILL AGREEMENT (the
"Agreement"), dated as of September 19, 1996, by and among Mobile
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Telecommunication Technologies Corp., a Delaware corporation ("Mtel"), Newbridge
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Latin America, L.P., a Cayman Islands limited partnership (the "Purchaser"), and
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TPG Partners, L.P., a Delaware limited partnership ("TPG"), is entered into in
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connection with the Purchaser's investment in Mtel Latin America, Inc., a
Delaware corporation and a wholly-owned subsidiary of Mtel ("Mtel LATAM"),
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pursuant to a Purchase Agreement, dated as of September 19, 1996, by and among
the Purchaser Mtel International, Inc., a Delaware corporation and a wholly-
owned subsidiary of Mtel ("Mtel International"), and Mtel LATAM (the "Purchase
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Agreement") and a Stockholders and Exchange Rights Agreement, dated as of the
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date hereof (the "Stockholders Agreement"), by and among Mtel LATAM, Mtel
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International and the Purchaser, and certain other agreements and documents
(together with this Agreement, the Purchase Agreement and the Stockholders
Agreement, the "Transaction Documents").
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WHEREAS, in order to effectuate the Exchange Rights provisions set
forth in Article VII of the Stockholders Agreement, upon the occurrence of
certain Exchange Events or the Mtel Mandatory Exchange and on or prior to the
Exchange Date, Mtel has agreed to provide, contribute to or otherwise cause Mtel
International to make available, sufficient shares of Mtel Common Stock as may
be required to effect such exchanges;
WHEREAS, pursuant to the Stockholders Agreement, upon the exercise of
any of the Purchaser's Exchange Rights or the Mtel Mandatory Exchange shares of
Mtel Common Stock shall be issued to the Purchaser, and in connection therewith,
Mtel and the Purchaser desire to grant certain registration rights with respect
to such Registrable Securities as set forth herein; and
WHEREAS, in connection with, and contingent upon, the consummation of
the transactions contemplated by the Transaction Documents, the Purchaser and
TPG agree to refrain from undertaking certain activities set forth in this
Agreement as they relate to Mtel.
NOW, THEREFORE, in consideration of the mutual covenants and
obligations set forth in this Agreement, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
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Capitalized terms not otherwise defined herein shall have the
respective meanings ascribed to such terms in the Stockholders Agreement.
Unless the context otherwise requires, the following terms shall have the
meanings ascribed to them below:
"Mtel Shelf Securities" shall mean those securities of Mtel as Mtel
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shall designate to be included in a Shelf Registration Agreement.
"Shelf Registration" shall means a registration effected pursuant to
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Section 3 hereof.
"Shelf Registration Statement" shall mean a shelf registration
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statement of Mtel pursuant to the provisions of Section 3 hereof filed with the
SEC which covers some or all of the Registrable Securities, as applicable, and,
at the option of Mtel, such Mtel Shelf Securities on an appropriate form under
Rule 415 under the Act, or any similar rule that may be adopted by the SEC,
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.
ARTICLE II
CONTRIBUTION AND EXCHANGE RELATED AGREEMENTS
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2.1 Contribution of Mtel Common Stock. If, at any time
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following the Closing Date, upon the occurrence of (x) an Exchange Event and the
subsequent exercise by the Purchaser of its option under Section 7.1 of the
Stockholders Agreement to exchange any or all of its shares of the Securities
into an amount of shares of Mtel Common Stock as determined by the applicable
Ex-
2
change Formula and Mtel's receipt of the written Exchange Notice of the exchange
specifying the number of shares to be exchanged and any such other information
as may be required by the Stockholders Agreement for an exchange, or (y) the
satisfaction of the conditions specified in Section 7.3 of the Stockholders
Agreement and the subsequent exercise by Mtel International of its option to
require the Purchaser to exchange all of its Common Shares into shares of Mtel
Common Stock, Mtel shall thereupon contribute to Mtel International, or
otherwise cause Mtel International to have available, sufficient shares of Mtel
Common Stock to effect such exchange transaction (and the additional exchanges
pursuant to Section 7.2 of the Stockholders Agreement and, if applicable,
pursuant to an agreement(s) with a Purchaser Transferee).
2.2 Additional Mtel Obligations. (a) If required in order to
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satisfy the Prospectus Condition, Mtel, upon such request from Mtel
International, shall use its reasonable best efforts to deliver to the Purchaser
or its designee, together with the certificate for such shares of Mtel Common
Stock and cash in lieu of any fractional shares, a current prospectus (meeting
the requirements of Section 10 of the Securities Act) relating to the Mtel
Common Stock; provided, however, that in the event Mtel is unable during any
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period to deliver a current prospectus, no exchange shall be effected (and no
Exchange Date shall occur) during such period and any exchange that could
otherwise have been effected during such period shall be deemed to have been
effected immediately prior to the close of business (and the Exchange Date shall
be deemed to have occurred) on the first Business Day that Mtel is able to
deliver a current prospectus relating to the Mtel Common Stock. The inability
of Mtel to deliver a current prospectus at any time shall not be deemed a
default under this Agreement or the Stockholders Agreement. Mtel agrees to use
its reasonable best efforts to ensure that it will be able to deliver a current
prospectus, if required, during any period that the holders of the Securities
are entitled to exchange such shares for shares of Mtel Common Stock.
(b) Except as provided in Section 7.4 of the Stockholders Agreement,
upon any exchange of Securities pursuant to Section 7.4 of the Stockholders
Agreement, Mtel shall make no payment or allowance for previ-
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ously declared dividends or distributions on the shares of Mtel Common Stock
issued upon such exchange (or on any other property issued upon such exchange
pursuant to Section 7.4 of the Stockholders Agreement).
(c) If the Securities represented by a certificate surrendered for
exchange are exchanged in part only, Mtel shall cause to be issued and delivered
to the registered holder, without charge therefor, a new certificate or
certificates representing in the aggregate the number of unexchanged shares.
ARTICLE III
REGISTRATION RIGHTS
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3.1 Shelf Registration. (a) The Purchaser shall have the
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right, which right may be exercised only once, to require Mtel to Register the
Purchaser's Registrable Securities pursuant to a Shelf Registration Statement.
In the event Purchaser elects to exercise such right, the Purchaser, following
or in contemplation of an Exchange Event, shall send a written notice to Mtel
informing Mtel that the Purchaser shall exercise or has exercised its Exchange
Right and requesting (the date of such notice being hereinafter referred to as,
the "Request Date") that Mtel Register the Purchaser's Registrable Securities.
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Upon receipt of such notice Mtel shall (i) prepare and file with the SEC a Shelf
Registration Statement relating to the offer and sale of the Registrable
Securities by the Purchaser and, if applicable, Mtel Shelf Securities from time
to time in accordance with the methods of distribution elected by such
Purchaser, or Mtel, as the case may be, and set forth in such Shelf Registration
Statement and thereafter, (ii) use its reasonable best efforts to cause such
Shelf Registration Statement to be declared effective under the Securities Act;
provided, however, that the Purchaser shall not be entitled to have the
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Registrable Securities held by it covered by such Shelf Registration unless such
Purchaser is in compliance with Section 3.5 hereof.
(b) Subject to Section 3.3 hereof, Mtel shall use its reasonable best
efforts (i) to keep the Shelf Registration Statement continuously effective, in
order to permit the prospectus forming part thereof to be
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usable by the Purchaser for a period of three (3) years immediately following
the Request Date or such shorter period that will terminate when all the
Registerable Securities covered by the Shelf Registration Statement have been
sold pursuant to the Shelf Registration Statement or otherwise, and (ii) after
the effectiveness of the Shelf Registration Statement, promptly upon the request
of the Purchaser to take any action reasonably necessary to Register the sale of
any Registrable Stock of the Purchaser and to identify the Purchaser as a
selling security holder.
(c) The Purchaser has agreed that Mtel shall not under any
circumstances prepare and file with the SEC any more than one (1) Shelf
Registration Statement in connection with any of the provisions of any of the
Transaction Documents. The Purchaser also agrees that it shall have no right
to, and shall not request from Mtel, any more than one (1) registration
statement.
3.2 Registration Procedures. In connection with any Shelf
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Registration Statement, Mtel shall:
(a) prepare and file with the SEC a Shelf Registration Statement with
respect to Registrable Securities of the Purchaser and, if applicable, Mtel
Shelf Securities and use its reasonable best efforts to cause such Shelf
Registration statement to be declared and remain effective as provided herein;
(b) prepare and file with the SEC such amendments and supplements to
the Shelf Registration Statement and the prospectus used in connection therewith
as may be necessary to keep such Shelf Registration Statement effective and
current and to comply with the provisions of the Securities Act with respect to
the disposition of all shares covered by such Shelf Registration Statement,
including such amendments and supplements as may be necessary to reflect the
intended method of disposition from time to time of the prospective seller or
sellers of such Registrable Securities;
(c) furnish to the Purchaser such number of copies of a prospectus, in
conformity with the requirements of the Securities Act, and such other documents
as the Purchaser may reasonably request in order to
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facilitate the public sale or other disposition of the Registrable Securities
owned by the Purchaser;
(d) use its reasonable best efforts to register or qualify the shares
of Registrable Securities covered by such Shelf Registration Statement under
such other securities or blue sky or other applicable laws of such jurisdiction
within the United States as the Purchaser shall reasonably request, to enable
the Purchaser to consummate the public sale or other disposition in such
jurisdictions of the shares of Registrable Securities owned by the Purchaser;
provided, however, that in no event shall Mtel be obligated to qualify to do
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business in any jurisdiction where it is not at the time so qualified or to take
any action that would subject it to service of process in suits other than those
arising out of the offer or sale of the Registrable Securities covered by such
Registration Statement in any jurisdiction where it is not at the time so
subject; and
(e) furnish to the Purchaser a signed counterpart, addressed to the
Purchaser, of (i) an opinion of counsel for Mtel, dated the effective date of
the Shelf Registration Statement, and (ii) a comfort letter (or, if the
Purchaser does not satisfy the conditions for receipt of a "comfort" letter
specified in Statement on Auditing Standards No. 72, an "agreed upon procedures"
letter) signed by the independent auditors who have certified the financial
statements of Mtel that are included in the Shelf Registration Statement,
covering substantially the same matters with respect to the Shelf Registration
Statement (and the prospectus included therein) and (in the case of the
"comfort" or "agreed upon procedures" letter) with respect to events subsequent
to the date of the financial statements, as are customarily covered (at the time
of such Registration) in opinions of issuer's counsel and in comfort letters
delivered to the underwriters in underwritten public offerings of securities
(with, in the case of an "agreed upon procedures" letter, such modifications or
deletions as may be required under Statement on Auditing Standards No. 35).
3.3 Limitations on Offerings by the Purchasers. (a) Notwithstanding
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the provisions of Section 3.1, if (i) at any time Mtel desires to effect a
registered offering of securities (pursuant to a Shelf
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Registration Statement, a registration right held by a Prior Investor (as
defined below) or otherwise) and simultaneously therewith the Purchaser desires
to effect an offering pursuant to a Shelf Registration Statement and (ii) the
underwriter, if any, determines that (x) marketing factors require a limitation
of the total number of shares to be underwritten, or (y) the offering price per
share would be reduced by the inclusion of the Registrable Securities of the
Purchaser, then the number of shares to be included in the underwriting shall
first be allocated to Mtel or the Prior Investor, as the case may be, then the
remainder, if any, to the Purchaser.
(b) If at any time Mtel is engaged, or proposes to engage, in a
registered public offering within 30 days of the time of a proposed offering by
the Purchaser pursuant to a Shelf Registration Statement, or is engaged in any
other activity that, in the good faith determination of the Board of Directors
of Mtel (the "Board"), would be adversely affected by the proposed offering by
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the Purchaser or the required disclosure in connection therewith would be to the
material detriment of Mtel (or any affiliate of Mtel) and its stockholders, then
Mtel may at its option direct that such offering and the use of the Shelf
Registration Statement by the Purchaser be delayed, suspended or postponed (a
"suspension") for a period not in excess of 45 days from the effective date of
such registered public offering by Mtel, or the date of commencement of such
other material activity, as the case may be.
(c) Anything in this Agreement to the contrary notwithstanding, the
Purchaser shall not offer any Registrable Securities pursuant to the Shelf
Registration Statement if such offering would require Mtel (i) to furnish any
financial statements other than as of the end of a fiscal quarter or (ii) to
furnish any audited financial statements other than as of the end of a fiscal
year unless the Purchaser agrees to bear the expenses of furnishing such
financial statements. In addition to the foregoing, in the event of a proposed
offering by the Purchaser pursuant to a Shelf Registration Statement at such
time as any registration statement would be required to include audited
financial statements as of a fiscal year end, then Mtel shall have the right to
delay the dissemination of the required notice and the taking of any action to
effect a supplement to the Shelf
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Registration Statement until such time as such audited financial statements are
available in the ordinary course of business.
(d) The Purchaser shall not offer any Registrable Securities pursuant
to the Shelf Registration Statement within 45 days after the effectiveness of
any other registration of Mtel's capital stock.
(e) The Purchaser shall not effect any take-down under a Shelf
Registration Statement unless the value of the Registrable Securities proposed
to be offered under such take-down exceeds $5 million.
3.4 Designation of Underwriter. (a) In the case of any
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Registration effected pursuant to Section 3.1, the Purchaser shall have the
right to designate the managing underwriter in any underwritten offering, which
underwriter shall be reasonably acceptable to Mtel.
(b) In the case of any registration initiated by Mtel or any other
investor, Mtel or such other investor, as the case may be, shall have the right
to designate the managing underwriter in any underwritten offering.
3.5 Cooperation by Prospective Sellers. (a) The Purchaser,
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and each underwriter designated by the Purchaser, will furnish to Mtel such
information as Mtel may reasonably require from the Purchaser or underwriter in
connection with the Shelf Registration Statement (and the prospectus included
therein). The Purchaser may not participate in any offering unless the
Purchaser (i) agrees to sell its Registrable Securities to be sold on the basis
provided in any agreement governing the offering and (ii) completes and executes
all questionnaires, indemnities, underwriting agreements and other documents
required in connection with the offering.
(b) The Purchaser will not (until further notice by Mtel) effect sales
thereof (or deliver a prospectus to any purchaser) after receipt of telegraphic
or written notice from Mtel to suspend sales to permit Mtel to correct or update
the Shelf Registration Statement or prospectus. At the end of the period during
which Mtel is obligated to keep the Shelf Registration Statement current and
effective as provided in Section 3.1(b)(i),
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the Purchaser shall discontinue sales of shares pursuant to such registration
statement upon receipt of notice from Mtel of its intention to remove from
registration the shares of Registrable Securities covered by the Shelf
Registration Statement that remain unsold, and the Purchaser shall notify Mtel
of the number of such shares registered that remain unsold immediately upon
receipt of such notice from Mtel.
(c) In connection with any offering, the Purchaser will not use any
offering document, offering circular or other offering materials with respect to
the offer or sale of Registrable Stock, other than the prospectuses provided by
Mtel and any documents incorporated by reference therein.
3.6 Expenses of Registration. All expenses incurred in
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effecting any registration pursuant to this Agreement, including, without
limitation, all registration and filing fees, printing expenses, expenses of
compliance with blue sky laws, fees and disbursements of counsel for Mtel and
expenses of any audits incidental to or required by any such registration, shall
be borne by Mtel, except (a) that all additional expenses, fees and
disbursements of any counsel retained by the Purchaser, and all underwriting
discounts, fees and commissions shall be borne by the Purchaser, and (b) Mtel
shall not be required to pay for any expenses of any take-down pursuant to a
Shelf Registration Statement begun pursuant to Section 3.1 if the registration
request is subsequently withdrawn at the request of the Purchaser; provided,
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however, that if immediately prior to the time of such withdrawal, a materially
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adverse change in the business, operations or financial condition of Mtel has
occurred from the time of the Purchaser's request, then the Purchaser shall not
be required to pay any of such expenses and shall retain its rights pursuant to
Section 3.1.
3.7 Indemnification. (a) To the extent permitted by law,
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Mtel will indemnify the Purchaser upon requesting or joining in a Registration,
each agent, officer and director of such Purchaser, each person controlling such
Purchaser and each underwriter and selling broker of the securities so
registered (collectively, "Indemnitees") against all claims, losses, damages and
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liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged
9
untrue statement) of a material fact contained in any prospectus, offering
circular or other document incident to any registration, qualification or
compliance (or in any related registration statement, notification or the like)
or 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
in the light of the circumstances in which they were made, or any violation by
Mtel of any rule or resolution promulgated under the Securities Act applicable
to Mtel and relating to an action or inaction required of Mtel in connection
with any such registration, qualification or compliance, and will reimburse each
such Indemnitee for any legal and any other expenses reasonably incurred in
connection with investigating or defending any such claim, loss, damage,
liability or action; provided, however, that Mtel will not be liable in any such
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case to the extent that any such claim, loss, damage or liability is caused by
any untrue statement or omission so made in conformity with written information
relating to such Indemnitees furnished to Mtel by such Indemnitees and except
that the foregoing indemnity agreement is subject to the condition that, insofar
as it relates to any such untrue statement (or alleged untrue statement) or
omission (or alleged omission) made in the preliminary prospectus but eliminated
or remedied in the amended prospectus on file with the SEC at the time the Shelf
Registration Statement becomes effective or in the amended prospectus filed with
the SEC pursuant to Rule 424(b) (the "Final Prospectus"), such indemnity
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agreement shall not inure to the benefit of any underwriter, or any Indemnitee
if there is no underwriter, if a copy of the Final Prospectus was not furnished
to the person or entity asserting the loss, liability, claim or damage at or
prior to the time such furnishing is required by the Securities Act; provided,
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further, that this indemnity shall not be deemed to relieve any underwriter of
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any of its due diligence obligations; provided, further, that the indemnity
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agreement contained in this Section 3.7(a) shall not apply to amounts paid in
settlement of any such claim, loss, damage, liability or action if such
settlement is effected without the consent of Mtel, which consent shall not be
unreasonably withheld.
(b) To the extent permitted by law, the Purchaser upon requesting or
joining in a registration and each underwriter of the securities so registered
will
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indemnify Mtel and its officers and directors and Affiliates and their
respective successors against all claims, losses, damages and liabilities (or
actions in respect thereof) arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in any prospectus,
offering circular or other document incident to any registration, qualification
or compliance (or in any related registration statement, notification or the
like) or 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 in the light of the circumstances in which they were made and will
reimburse Mtel and each other person indemnified pursuant to this paragraph (b)
for any legal and any other expenses reasonably incurred in connection with
investigating or defending any such claim, loss, damage, liability or action;
provided, however, that the indemnification pursuant to this Section 3.7(b)
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shall apply only if (and only to the extent that) such statement or omission was
made in reliance upon and in conformity with written information relating to the
Purchaser (including, without limitation, written negative responses to
inquiries) furnished to Mtel by the Purchaser and except that the foregoing
indemnity agreement is subject to the condition that, insofar as it relates to
any such untrue statement (or alleged untrue statement) or omission (or alleged
omission) made in the preliminary prospectus but eliminated or remedied in the
amended prospectus on file with the SEC at the time the registration statement
becomes effective or in the Final Prospectus, such indemnity agreement shall not
inure to the benefit of Mtel and any underwriter if a copy of the Final
Prospectus was not furnished to the person or entity asserting the loss,
liability, claim or damage at or prior to the time such furnishing is required
by the Securities Act; provided, further, that this indemnity shall not be
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deemed to relieve any underwriter of any of its due diligence obligations;
provided, further, that the indemnity agreement contained in this Section 3.7(b)
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shall not apply to amounts paid in settlement of any such claim, loss, damage,
liability or action if such settlement is effected without the consent of the
Purchaser or underwriter, as the case may be, which consent shall not be
unreasonably withheld; and provided, further, that the obligations of the
Purchaser shall be limited to an amount equal to the proceeds to the Purchaser
received by the Purchaser from the sale of its Registrable Securities
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in such Registration, unless such claim, loss, damage, liability or action
resulted from the Purchaser's fraudulent misconduct.
(c) Each party entitled to indemnification hereunder (the "Indemnified
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Party") shall give notice to the party required to provide indemnification
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(each, an "Indemnifying Party") promptly after such Indemnified Party has actual
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knowledge of any claim as to which indemnity may be sought, and shall permit the
Indemnifying Party (at its expense) to assume the defense of any claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
satisfactory to the Indemnified Party, and the Indemnified Party may participate
in such defense at such party's expense, and provided, further, that the
omission by any Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party of its obligations under this Section 3.7 except
to the extent that the omission results in a failure of actual notice to the
Indemnifying Party and such Indemnifying Party is damaged solely as a result of
the failure to give notice. No Indemnifying Party, in the defense of any such
claim or litigation, shall, except with the consent of each Indemnified Party,
consent to entry of any judgment or enter into any settlement that either (i)
does not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in respect
to such claim or litigation or (ii) contains any finding of a violation of law
by an Indemnified Party.
(d) The reimbursement required by this Section 3.7 shall be made by
periodic payments during the course of the investigation or defense, as and when
bills are received or expenses are incurred.
(e) If the indemnification provided for in this Section 3.7 is
unavailable to an Indemnified Party in respect of any losses, claims, damages or
liabilities referred to therein, then each 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 or
liabilities in such proportion as is appropriate to reflect the relative fault
of Mtel on the one
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hand, and of the Purchaser 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 including the relative
benefits received by Mtel, on the one hand, and by the Purchaser on the other
hand. The relative benefits received by Mtel on the one hand, and the Purchaser
on the other hand, shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) to Mtel bear to the total
net proceeds from the offering (before deducting expenses) to the Purchaser.
The relative fault of Mtel on the one hand, and of the Purchaser on the other
hand, 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 Mtel or by
the Purchaser and the parties, relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
(f) Mtel and the Purchaser agree that it would not be just and
equitable if contribution pursuant to this Section 3.7 were determined by pro
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rata allocation or by any other method of allocation that does not take account
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of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Party as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph 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 3.7, the Purchaser shall not be
required to contribute any amount in excess of the proceeds received by the
Purchaser from the sale of Registrable Securities covered by any registration
statement filed pursuant hereto. 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.
(g) The obligations under this Section 3.7 shall survive the
completion of any offering of
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Registrable Securities in the Shelf Registration Statement under this Agreement
or otherwise.
3.8 Rights That May Be Granted to Subsequent Investors; Rights
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Granted to Prior Investors. Within the limitations prescribed by this Section
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3.8, but not otherwise, Mtel may grant to subsequent investors in Mtel rights of
registration upon request and rights of incidental registration, including on
any Shelf Registration Statement; provided, however, if an underwriter, if any,
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determines that (i) marketing factors require a limitation on the total number
of shares to be underwritten, or (ii) the offering price per share would be
reduced by the inclusion of securities of a third party, then the number of
shares to be included in the underwriting shall be allocated first to the
Purchaser and then the remainder, if any, to such other third parties.
Notwithstanding anything else contained in this Agreement, the Purchaser
acknowledges that Mtel has granted prior investors ("Prior Investors") rights of
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registration under the agreements set forth on Schedule 3.8 hereto upon request
and rights of incidental registrations, including on any Shelf Registration
Statement, and the Purchaser acknowledges and agrees that such rights (as they
exist on the date hereof) may take precedence over and have priority with
respect to the rights granted pursuant hereto. In the event that, it is
impractical for Mtel, or adverse to Mtel or the Prior Investors, to have the
rights contemplated hereby afforded to the Purchaser realized at such time, Mtel
shall have no obligation to the Purchaser until such time as its obligations to
the Prior Investors have been satisfied.
3.9 Delay of Registration. The Purchaser shall have no right
---------------------
to take any action to restrain, enjoin, or otherwise delay any registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Agreement.
3.10 Rule 144 and Rule 144A. (a) Mtel will file the reports required
----------------------
to be filed by it under the Securities Act and the Exchange Act and the rules
and regulations adopted by the SEC thereunder and will take such further action
as the Purchaser may reasonably request, all to the extent required from time to
time to enable the Purchaser to sell Registrable Securities without registration
under the Securities Act within the
14
limitation of the exemptions provided by (i) Rule 144, (ii) Rule 144A or (iii)
any similar rule or regulation hereafter adopted by the SEC.
(b) If at any time Mtel is not required to file reports in compliance
with either Section 13 or Section 15(d) of the Exchange Act, Mtel at its expense
will, forthwith upon the request of the Purchaser, (i) make available adequate
current public information with respect to Mtel within the meaning of paragraph
(c)(2) of Rule 144 and (ii) deliver the information required by Section (d) of
Rule 144A (such information to be "reasonably current" within the meaning of
Section (d)(4)(ii) of Rule 144A).
3.11 Specific Performance. Without limiting the remedies available
--------------------
to the parties hereto, Mtel and the Purchaser each acknowledge that any failure
by it to comply with its respective obligations under this Article III and
Article IV may result in material irreparable injury to Mtel or the Purchaser,
as the case may be, 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, Mtel or the Purchaser, as the case may be, may obtain
such relief as may be required to specifically enforce such party's obligations
under this Article III and Article IV.
ARTICLE IV
STANDSTILL AGREEMENT
--------------------
4.1 Standstill Provisions. Each of the Purchaser and TPG
---------------------
agrees that it shall not, and it shall use its best efforts to cause the
Purchaser Affiliates or any Person controlling the Purchaser or TPG not to, for
a period of five years following the Closing Date, directly or indirectly, alone
or in concert with others, unless specifically consented to in writing by the
Board: (i) acquire, offer to acquire, or agree to acquire, directly or
indirectly, by purchase or otherwise, any voting securities or direct or
indirect rights to acquire any voting securities of Mtel or any Subsidiary
thereof (other than (A) securities issued in connection with the exercise of an
Exchange Right or (B) indirectly through
15
the ownership of shares or interests in any publicly traded mutual fund not
Controlled by a Purchaser Affiliate registered with the SEC under the Investment
Company Act of 1940, as amended) or (other than in the ordinary course of
business) any assets of Mtel or any Subsidiary of Mtel; (ii) make, or in any way
participate in, any "solicitation" of "proxies" (as such terms are used in the
rules of the SEC) or consent to vote, or seek to advise or influence any person
or entity with respect to the voting of, any voting securities of Mtel; (iii)
make any announcement with respect to, or submit a proposal for, or offer for
(with or without conditions) any acquisition, merger, consolidation, business
combination, tender or exchange offer, restructuring, recapitalization or other
extraordinary transaction of or involving Mtel or any of its Subsidiaries or
their voting securities or assets; (iv) form, join or in any way participate in
a "group" (as defined in Section 13(d)(3) of the Exchange Act) in connection
with any voting securities of Mtel; (v) otherwise act to seek to control or
influence the management, Board or policies of Mtel; (vi) have any discussions
or enter into any arrangements, understandings or agreements (whether written or
oral) with, or advise, assist or encourage, any other persons in connection with
any of the foregoing; or (vii) make any proposal, statement or inquiry, or
disclose any intention, plan or arrangement, whether written or oral,
inconsistent with the foregoing, or request Mtel, directly or indirectly, to
amend, waive or terminate any provision of this paragraph. Each of the parties
subject to the provisions of this Section 4.1 will promptly advise Mtel of any
inquiry or proposal made to such party with respect to any of the foregoing,
including the details thereof.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
------------------------------
The parties hereby represent and warrant with respect to themselves
as follows:
5.1 Organization. Mtel, the Purchaser and TPG are
------------
corporations or limited partnerships, as the case may be, duly formed, validly
existing and in good standing under the laws of their respective jurisdictions
16
of incorporation or formation, as the case may be, and have full power
(corporate, partnership or otherwise) and authority to own and operate their
assets and properties, and, if applicable, carry on their businesses as
presently conducted and, if applicable, are duly qualified to do business and
are in good standing in all jurisdictions in which the ownership or occupancy of
their properties or their activities presently makes such qualification
necessary, except where the failure to so qualify would not have a material
adverse effect upon their, and their subsidiaries', businesses, properties or
assets.
5.2 Authority. Mtel, the Purchaser and TPG have all requisite power
---------
and authority (corporate, partnership or otherwise) to enter into this
Agreement and to consummate the transactions contemplated hereby. The execution
and delivery by Mtel, the Purchaser and TPG of this Agreement and the
consummation by Mtel, the Purchaser and TPG of the transactions contemplated
hereby, have been duly authorized by all necessary action of Mtel, the Purchaser
or TPG, as the case may be. Each of Mtel, the Purchaser and TPG have reviewed
the terms of this Agreement, understand the intention of the parties in entering
into this Agreement and the scope and nature of their obligations hereunder and
have had the opportunity to review the terms of this Agreement and any other
Transaction Documents and instruments to be executed and delivered in connection
herewith and therewith. This Agreement constitutes a valid and binding
obligation of the parties hereto, enforceable against them in accordance with
its terms, except as the enforceability thereof may be limited by bankruptcy or
other laws affecting the enforcement of creditor's rights generally and the
availability of equitable remedies, including specific performance, is subject
to the discretion of the court before which any proceeding therefor may be
brought.
5.3 Consents and Approvals. All authorizations, approvals
----------------------
and consents, if any, required to be obtained from, and all registrations,
declarations and filings, if any, required to be made with, all governmental
authorities and regulatory bodies to permit Mtel, the Purchaser and TPG to
execute and deliver and to perform its respective obligations under this
Agreement have been obtained or made, as the case may be, and all such
authorizations, approvals, consents, registrations, declarations and filings
(collectively "consents and filings")
--------------------
17
are in full force and effect, except where failure to obtain and/or maintain in
full force and effect such consents and flings would not have a material adverse
effect upon the execution and delivery of, and upon the performance of the
parties' obligations under, this Agreement.
5.4 No Violations. Neither the execution or delivery of this
-------------
Agreement by the parties hereto nor the consummation by the parties hereto of
the transactions herein contemplated, nor the fulfillment by the Purchaser, TPG
and Mtel of the terms and provisions hereof (i) will conflict with, violate or
result in a breach of, any of the terms, conditions or provisions of any law,
regulation, order, writ, injunction, decree, determination or award of any
court, governmental department, board, agency or instrumentality or any
arbitrator, applicable to the Purchaser, TPG or Mtel, (ii) will conflict with,
violate or result in a breach of, or constitute a default under, any of the
terms, conditions or provisions of the articles of incorporation or by-laws of
Mtel or other organizational documents of Mtel, the Purchaser or TPG, as the
case may be, (iii) will conflict with, violate or result in a breach of, or
constitute a default under, any of the terms, conditions or provisions of any
loan agreement, indenture, trust, deed or other agreement or instrument to which
Mtel, the Purchaser or TPG is a party or by which it is bound or (iv) result in
the creation or imposition of any Lien, upon any of TPG'S, the Purchaser's, or
Mtel's property or assets. Each of TPG, the Purchaser and Mtel is not in
default under any agreement to which it is a party which default could impair
its ability to perform its obligations under this Agreement, except where such
default would not have a material adverse effect on the parties' ability to
perform its obligations under this Agreement.
5.5 Additional Mtel Representations. In addition to the
-------------------------------
foregoing, Mtel represents and warrants to the Purchaser that it is the
beneficial and record owner of 100% of the issued and outstanding shares of
capital stock of Mtel International on a fully diluted basis.
18
ARTICLE VI
MISCELLANEOUS
-------------
6.1 Termination. The registration rights and obligations
-----------
created hereunder shall terminate upon the earlier to occur of the third
anniversary of the Request Date or the date on which the Purchaser ceases to own
any Registrable Securities.
6.2 Assignability. This Agreement or any right or obligation
-------------
hereunder shall not be assigned or delegated in whole or in part to any other
Person; provided, however, that the Purchaser's rights to participate in the
-------- -------
Shelf Registration (but not any other rights) under Article III may be assigned
to any Purchaser Transferee of the Purchaser's shares of Mtel LATAM Securities;
provided, that, (i) prior to any such transfer, the Purchaser Transferee agrees
-------- ----
in writing to be bound by the provisions of Section 3.3, Sections 3.5 through
3.9, Section 3.11, Article IV and Article VI of this Agreement, (ii) the
Purchaser Transferee designates the Purchaser as its agent for all actions,
notices or the like required pursuant to this Agreement or in connection with
the Shelf Registration and (iii) the Purchaser agrees to indemnify Mtel (and its
officers, directors, agents and affiliates) for any and all liabilities arising
from or related to the transfer of such rights or such shares to any such
Purchaser Affiliate or any action or omission by such Purchaser Affiliate in
connection with the matters contemplated by this Agreement and the Shelf
Registration.
6.3 Notices. In any case where any notice or other
-------
communication is required or permitted to be given hereunder (including, without
limitation, any change in the information set forth in this Section 6.3) such
notice or communication shall be in writing and (a) personally delivered, (b)
sent by registered United States mail, postage prepaid, return receipt
requested, (c) transmitted by telecopy or (d) sent by way of a recognized
overnight courier service, postage prepaid, return receipt requested with
instructions to deliver on the next business day, in each case as follows:
19
(a) If to Mtel, to:
Mobile Telecommunication
Technologies Corp.
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxx, III
Telecopy: (000) 000-0000
with a copy to:
Mobile Telecommunication
Technologies Corp.
000 Xxxxx Xxxxx Xxxxxx
Security Centre, South Building
Jackson, Mississippi 39201
Attention: Xxxxxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
(b) If to the Purchaser, to:
Newbridge Latin America, L.P.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxxxxxx/
Xxxxx X. X'Xxxxx
Telecopy: (000) 000-0000
(c) If to TPG, to:
TPG Partners, L.P.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxxxxxx/
Xxxxx X. X'Xxxxx
Telecopy: (000) 000-0000
All such notices or other communications shall be deemed to have
been given or received (i) upon receipt if personally delivered, (ii) on the
fifth day following posting if by registered United States mail, (iii) when sent
by confirmed telecopy or (iv) on the next business day following deposit with an
overnight courier.
20
6.4 Third Party Rights. Nothing in this Agreement, whether express
------------------
or implied, is intended or shall be construed to confer, directly or indirectly,
upon or give to any other than Mtel, the Purchaser and their respective
affiliates, any legal or equitable right, remedy or claim under or in respect of
this Agreement or any covenant, condition or other provision contained herein.
6.5 Choice of Law. This Agreement shall be construed and enforced in
-------------
accordance with and governed by the laws of the State of Delaware without giving
effect to the principles of conflict of laws thereof.
6.6 Severability. Should any provision of this Agreement be deemed
------------
in contradiction with the laws of any jurisdiction in which it is to be
performed or unenforceable for any reason, such provision shall be deemed null
and void, but this Agreement shall remain in force in all other respects. Should
any provision of this Agreement be or become ineffective because of changes in
applicable laws or interpretations thereof or should this Agreement fail to
include a provision that is required as a matter of law, the validity of the
other provisions of this Agreement shall not be affected thereby. If such
circumstances arise, the parties hereto shall negotiate in good faith
appropriate modifications to this Agreement to reflect those changes that are
required by law.
6.7 Enforcement of Agreement. Any action or proceeding brought by
------------------------
any party to this Agreement in connection with or relating to this Agreement
shall be brought exclusively in a federal or state court sitting in Delaware or
in the City of New York, State of New York. Each of the parties hereto, solely
in connection with any such action or proceeding, does hereby submit to the
jurisdiction of any such court and waive any defense of or relating to lack of
personal jurisdiction with respect to any such action or proceeding in any such
court.
6.8 References to Agreement. Any reference herein to this Agreement
-----------------------
shall be deemed to be a reference to such Agreement as the same may be modified,
varied, amended or supplemented from time to time by the parties hereto in
accordance with the provisions hereof.
21
Unless the context otherwise expressly requires, the words "herein," "hereof"
and "hereunder" and other words of similar import refer to this Agreement as a
whole and not to any particular Article, Section or other subdivision.
6.9 Entire Agreement. This Agreement, the Stockholders Agreement
----------------
and the Transaction Documents constitute the entire agreement between the
parties hereto and supersede any prior agreement or understanding between the
parties hereto whether oral or written, with respect to the matters contemplated
hereby and thereby.
6.10 Headings, etc. The Article and Section headings in this
-------------
Agreement are inserted for convenience of reference only and shall not affect
the interpretation of this Agreement. Whenever the context shall require, each
term stated in either the singular or plural shall include the singular and the
plural. References herein to masculine, feminine or neuter pronouns shall be
construed to refer to another gender when the context may require.
6.11 Counterparts. This Agreement maybe executed in one or more
------------
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
6.12 Amendments. This Agreement may be amended or modified only by a
----------
written instrument executed by each of the parties hereto or by their respective
successors and assigns.
6.13 Non-Competition. Each of Mtel and TPG hereby agrees that it
---------------
will comply with Section 9.1 of the Stockholders Agreement, the terms of which
are incorporated herein by reference in its entirety.
22
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered as of the day and year first written above.
MOBILE TELECOMMUNICATION
TECHNOLOGIES CORP.
By: /s/ Xxxx X. Xxxxx III
-------------------------
Name: Xxxx X. Xxxxx III
Title: Vice Chairman
NEWBRIDGE LATIN AMERICA, L.P.
By: LATAM GP, L.P.
By: LAF Advisors, L.L.C.
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title:
TPG PARTNERS, L.P.
By: TPG GenPar, L.P.
By: TPG Advisors, Inc.
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title:
23
