EXHIBIT 2
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REGISTRATION RIGHTS AGREEMENT
Dated as of March 25, 2003
among
IMPSAT FIBER NETWORKS, INC.,
IMPSAT S.A.
and
THE HOLDERS LISTED ON THE SIGNATURE PAGES HERETO
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and entered
into as of March 25, 2003, among (i) IMPSAT FIBER NETWORKS, INC., a Delaware
corporation (the "Company"); (ii) IMPSAT, S.A., a corporation (sociedad anonima)
organized pursuant to the laws of the Republic of Argentina ("IMPSAT
Argentina"); (iii) the holders of the Company's 6% Senior Guaranteed Convertible
Notes due 2011 - Series A and B guaranteed by IMPSAT Argentina (collectively,
the "Notes"), listed on the Schedule of Holders attached hereto as Exhibit A
(the "Schedule of Holders"); (iv) the holders of shares (the "Common Shares") of
the Company's common stock, par value $.01 per share (the "Common Stock"),
listed on the Schedule of Holders; and (v) the holders of warrants to purchase
shares of Common Stock (the "Warrants" and, collectively with the Notes and the
Common Shares, the "Securities") listed on the Schedule of Holders.
RECITALS:
WHEREAS, on June 11, 2002, the Company filed a petition under Chapter 11 of
title 11 of the United States Code, 11 U.S.C. xx.xx. 101-1330, as amended (the
"Bankruptcy Code"), in the United States Bankruptcy Court for the Southern
District of New York (the "Bankruptcy Court"); and
WHEREAS, by order dated December 16, 2002, entered by the Bankruptcy Court
pursuant to section 1129 of the Bankruptcy Code, the Bankruptcy Court confirmed
the Company's Plan of Reorganization dated October 23, 2002, as amended (the
"Plan"); and
WHEREAS, the Plan provides, among other things, for (i) the issuance by the
Company of the Securities held by each Holder (as defined herein) in discharge
of pre-existing indebtedness of the Company to such Holder, and (ii) the
execution and delivery of this Agreement by the parties hereto.
NOW, THEREFORE, in consideration of the foregoing, the parties hereto agree
as follows:
1. Definitions. As used in this Agreement, the following capitalized
defined terms shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended from time
to time.
"1934 Act" shall mean the Securities Exchange Act of 1934, as amended
from time to time.
"Adverse Effect" shall have the meaning set forth in Section 2(d).
"Common Shares" shall have the meaning set forth in the preamble.
"Common Share Equivalents" shall mean, as to any Holder, all Common
Shares that are issued and outstanding to such Holder and all shares of
Common Stock that are
issuable upon the exchange, exercise or conversion of any other of the
Registrable Securities held by such Holder. The number of Common Share
Equivalents owned by a Holder shall equal the sum of the number of issued
and outstanding Common Shares owned by such Holder plus the number of
shares of Common Stock issuable upon the exchange, exercise or conversion
of any other Registrable Security owned by such Holder.
"Common Stock" shall have the meaning set forth in the preamble.
"Company" shall have the meaning set forth in the preamble and shall
also include the Company's successors; provided that, where this Agreement
pertains in any manner to the Notes (including for purposes of Section 4),
"Company" shall mean IMPSAT Fiber Networks, Inc. and IMPSAT Argentina,
jointly and severally.
"Conversion Shares" shall have the meaning set forth in the definition
of Registrable Securities.
"Holder" shall mean a holder of Registrable Securities.
"Indenture" shall mean the indentures relating to the Notes dated as
of March 25, 2003 among the Company, IMPSAT Argentina and The Bank of New
York.
"Majority Holders" shall mean the Holders of a majority of the total
Common Share Equivalents.
"Notes" shall have the meaning set forth in the Preamble.
"Person" shall mean an individual, partnership, limited liability
company, corporation, trust or unincorporated organization, or a government
or agency or political subdivision thereof, or any other entity.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement (including a
prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Securities covered by a Shelf Registration
Statement), and all other amendments and supplements to such prospectus, in
each case, including all material, if any, incorporated by reference
therein.
"Purchased Shares" shall mean any shares of Common Stock purchased
after the date hereof and held by a Holder to whom Securities were issued
pursuant to the Plan.
"Registrable Securities" shall mean (i) the Securities issued under
the Plan, (ii) the shares of Common Stock issued or issuable upon
conversion of the Notes issued under the Plan (the "Conversion Shares"),
(iii) any Purchased Shares included in a Shelf Registration Statement by a
post-effective amendment pursuant to Rule 462(b) under the 1933 Act in
accordance with Section 2(a), (iv) the shares of Common Stock issued or
issuable upon exercise of the Warrants issued under the Plan (the "Warrant
Shares"),
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(v) any shares of capital stock issued or issuable with respect to any
Securities, Conversion Shares or Warrant Shares referenced in the
immediately preceding clauses (i) through (iv) as a result of any stock
split, stock dividend, recapitalization, exchange or similar event or
otherwise, without regard to any limitations on conversions of the Notes or
the exercise of the Warrants, and (vi) any shares of capital stock of any
entity issued in respect of the capital stock referenced in the immediately
preceding clauses (i) through (v) as a result of a merger, consolidation,
sale of assets, sale or exchange of capital stock or other similar
transaction; provided, however, that any securities described in the
preceding clauses (i) through (vi) shall not be Registrable Securities (A)
when a Registration Statement with respect to such securities shall have
been declared effective under the 1933 Act and such securities shall have
been disposed of pursuant to such Registration Statement, (B) when such
securities have been sold in accordance with Rule 144 (or any successor
provision) promulgated under the 1933 Act, (C) the Company has delivered a
new certificate or other evidence of ownership for such securities not
bearing a legend restricting further transfer and such securities may be
resold under Rule 144(k) under the 1933 Act, or (D) when such securities
shall have ceased to be outstanding.
"Registrable Common Securities" shall mean any shares of Common Stock
(excluding any Purchased Shares), Conversion Shares and Warrant Shares that
are Registrable Securities.
"Registration Expenses" shall mean the following expenses incident to
performance of or compliance by the Company with this Agreement: (i) all
SEC, stock exchange or National Association of Securities Dealers, Inc.
registration, listing and filing fees (including fees of any "qualified
independent underwriter" in connection with an Underwritten Offering); (ii)
all fees and expenses incurred in connection with compliance with state
securities or blue sky laws (including reasonable fees and disbursements of
counsel for any underwriters or Holders in connection with blue sky
qualification of any of the Registrable Securities); (iii) all expenses of
any Persons in preparing or assisting in preparing, word processing,
printing and distributing any Registration Statement, any Prospectus, any
amendments or supplements thereto, any underwriting agreements, securities
sales agreements and other documents relating to the performance of and
compliance with this Agreement; (iv) all fees and disbursements relating to
the qualification of the Indenture under applicable securities laws; (v)
the fees and disbursements of the Trustee and its counsel, the transfer
agent, registrar and/or depositary (including the Depository Trust Company)
for the Common Stock; (vi) the fees and disbursements of counsel for the
Company and, in the case of a Shelf Registration Statement, the fees and
disbursements of one counsel for the Holders (which counsel shall be
selected by the Majority Holders); and (vii) the fees and disbursements of
the independent public accountants of, and any special experts retained by,
the Company, including, the expenses of any special audits or "comfort"
letters required by or incident to such performance and compliance, but
excluding fees and expenses of counsel to the underwriters (other than fees
and expenses set forth in clause (ii) above) or the Holders (other than
such fees and expenses of counsel for the Holders permitted under clause
(vi) above) and underwriting discounts and commissions and transfer taxes,
if any, relating to the sale or disposition of Registrable Securities by a
Holder.
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"Registration Statement" shall mean any registration statement of the
Company (including any Shelf Registration Statement) filed pursuant to this
Agreement under the 1933 Act, and all amendments and supplements to any
such Registration Statement, including post-effective amendments (including
pursuant to Rule 462(b) under the 1933 Act), in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission.
"Securities" shall have the meaning set forth in the preamble.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(a) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 2(a) of this
Agreement that covers all of the Registrable Securities on an appropriate
form under Rule 415 under the 1933 Act (or any similar rule that may be
adopted by the SEC) and all amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"Trustee" shall mean the trustee with respect to the Notes under the
Indenture.
"Underwriter" shall have the meaning set forth in Section 3 hereof.
"Underwritten Offering" shall mean a registration in which Registrable
Securities are sold to an Underwriter for reoffering to the public.
"Warrants" shall have the meaning set forth in the preamble.
"Warrant Shares" shall have the meaning set forth in the definition of
Registrable Securities.
2. Registration Under the 1933 Act.
(a) As soon as practicable, but in no event later than 60 days after the
date hereof, the Company shall file a Shelf Registration Statement providing for
the sale by the Holders of all of the Registrable Securities and shall use its
best efforts to cause such Shelf Registration Statement to be declared effective
by the SEC as soon as thereafter practicable but in any event not later than 90
days following such filing. The Company agrees to use its best efforts to keep
the Shelf Registration Statement continuously effective until the Holders shall
no longer hold any Registrable Securities or such shorter period that will
terminate when all of the Registrable Securities covered by the Shelf
Registration Statement have been sold pursuant to the Shelf Registration
Statement. The Company further agrees (i) to supplement or amend the Shelf
Registration Statement if required by the rules, regulations or instructions
applicable to the registration form used by the Company for such Shelf
Registration Statement or by the 1933 Act
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or by any other rules and regulations thereunder for shelf registration or if
reasonably requested by a Holder with respect to information relating to such
Holder and (ii) if the Company receives written notice from any Holder after the
date on which such Shelf Registration Statement has become effective that such
Holder desires to include some or all of its Purchased Shares in such Shelf
Registration Statement, to use its reasonable best efforts to so include such
Purchased Shares as promptly as practicable by a post-effective amendment to
such Shelf Registration Statement pursuant to Rule 462(b) under the 1933 Act,
and, in each such case, to use its best efforts to cause any such amendment to
become effective and such Shelf Registration Statement to become usable as soon
as thereafter practicable. The Company shall give all Holders written notice of
such proposed post-effective amendment to the Shelf Registration Statement as
soon as practicable (but in any event not less than five business days before
the anticipated filing date of such amendment), and such Holders may thereupon
include some or all of their Purchased Shares in the Shelf Registration
Statement under such post-effective amendment by making a written request
therefor to the Company (which request must be received by the Company not later
than five business days after receipt by such Holder of the Company's notice);
provided, however, that, if the maximum aggregate offering price of all
Purchased Shares requested by all Holders for inclusion in such Shelf
Registration pursuant hereto would exceed the limitations imposed by Rule 462(b)
under the 1933 Act, the total number of such Purchased Shares to be so included
shall be reduced in compliance with such limitations, pro rata based on the
ratio that all shares of Common Stock held by each such Holder bears to the
total number of shares of Common Stock held by all such Holders. The Company
agrees to furnish to the Holders copies of any such supplement or amendment
promptly after its being used or filed with the SEC.
(b) The Company shall pay all Registration Expenses in connection with the
registration pursuant to Section 2(a). Each Holder shall pay all underwriting
discounts and commissions and transfer taxes, if any, relating to the sale or
disposition of such Holder's Registrable Securities in an Underwritten Offering
pursuant to the Shelf Registration Statement.
(c) A Shelf Registration Statement pursuant to Section 2(a) hereof shall
not be deemed to have become effective unless it has been declared effective by
the SEC; provided, however, that, if, after it has been declared effective, the
offering of Registrable Securities pursuant to a Shelf Registration Statement is
interfered with by any stop order, injunction or other order or requirement of
the SEC or any other governmental agency or court, such Registration Statement
will be deemed not to have become effective during the period of such
interference until the offering of Registrable Securities pursuant to such
Registration Statement may legally resume. The Company shall be deemed not to
have used its best efforts to keep the Shelf Registration Statement effective
during the requisite period if it takes any action that would result in Holders
of Registrable Securities covered thereby not being able temporarily to offer
and sell such securities during that period, unless (i) such action is required
by (and is the only course of action available to comply with) applicable law or
is taken by the Company in good faith and for valid business reasons (not
including avoidance of the Company's obligations hereunder), including the
acquisition or divestiture of assets, so long as the Company promptly thereafter
complies with the requirements of Section 3(j) hereof, if applicable, and (ii)
the Company gives written notice thereof to such Holders describing in
reasonable detail the reasons for and nature of such action and the period
during which such Holder's ability to offer and sell Registrable Securities is
suspended.
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(d) If at any time after the date hereof the Company proposes to file a
Registration Statement with respect to an offering of Common Stock for the
account of the Company or any Person other than a Holder of Registrable Common
Securities (except a registration pursuant to Section 2(a) or on Form S-4 or
Form S-8 or any successor form), in each case, that is to be underwritten on a
firm commitment or best efforts basis, then the Company shall give written
notice of such proposed filing to the Holders of Registrable Common Securities
as soon as practicable (but in any event not less than 20 business days before
the anticipated filing date of such registration), describing in reasonable
detail the proposed registration (including, to the extent practicable, the
number of securities proposed to be registered, the proposed date of filing of
such Registration Statement, any proposed means of distribution, any proposed
managing underwriters and a good faith estimate of the proposed range of
offering prices), and shall offer such Holders the opportunity to register such
number of Registrable Common Securities as each such Holder may request. Upon
the written request of any Holder, which must be received by the Company not
later than 10 business days after receipt by such Holder of the Company's
notice, to register any of such Holder's Registrable Common Securities, the
Company will use its reasonable best efforts to cause such Registrable Common
Securities to be included in such Registration Statement proposed to be filed by
the Company on the same terms and conditions as the Common Stock being
registered; provided, however, that if the managing underwriters for the
offering advise the Company in writing that the inclusion of such Registrable
Common Securities would adversely affect the price or success of the offering
(an "Adverse Effect"), and the Company notifies the Holder thereof in writing of
such advice, then (i) the number of Registrable Common Securities to be included
in such Registration Statement shall be reduced to an amount which, in the
judgment of such managing underwriters, would eliminate such Adverse Effect or
(ii) if no such reduction would, in the judgment of such managing underwriters,
eliminate such Adverse Effect, then the Company shall have the right to exclude
all such Registrable Common Securities from such Registration Statement provided
no other securities are included for the account of any Person other than the
Company or the Person that initiated such registration; and provided, further,
that the Company shall not be required to include any Registrable Common
Securities in any such Registration Statement under this Section 2(d) unless the
Holder thereof furnishes to the Company such information about such Holder as
the Company reasonably requests for inclusion in or in connection with such
Registration Statement. Any partial reduction in the number of Registrable
Common Securities to be included in such Registration Statement pursuant hereto
shall be effected pro rata based on the ratio that any Holder's Registrable
Common Securities bears to the total number of Registrable Common Securities
requested to be included in such Registration Statement. Any Holder of
Registrable Common Securities shall have the right to withdraw its request for
inclusion of such securities in any such Registration Statement pursuant to this
Section 2(d) by giving written notice to the Company of its request to withdraw
prior to the earlier of the execution of any underwriting agreement or custody
agreement with respect to such registration, and such withdrawal shall be
irrevocable. The Company shall have the right to postpone, suspend or withdraw
any registration pursuant to this Section 2(d) without obligation to any Holder
of Registrable Common Securities.
3. Registration Procedures. In connection with the obligations of the
Company with respect to the Registration Statement pursuant to Section 2(a)
hereof, the Company shall as expeditiously as possible, as applicable:
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(a) prepare and file with the SEC a Registration Statement (i) on the
appropriate form under the 1933 Act, which (x) shall be selected by the Company,
(y) shall be available for the sale of the Registrable Securities by the selling
Holders thereof and (z) shall comply as to form in all material respects with
the requirements of the applicable form and the rules and regulation of the SEC
(including with respect to containing all financial statements required by the
SEC to be filed therewith, and (ii) not containing any untrue statement of a
material fact or omitting to state a material fact required to be stated therein
or necessary to make the statements therein (in the case of any related
Prospectus, in light of the circumstances under which they were made) not
misleading; and use its best efforts to cause such Registration Statement to
become effective and remain effective in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments, post-effective
amendments and supplements to each Registration Statement as may be necessary to
keep such Registration Statement effective as required under Section 2 and to
comply with the provisions of the 1933 Act with respect to the disposition of
all Registrable Securities covered by such Registration Statement until the
earlier of such time as all of such Registrable Securities have been disposed of
in accordance with the intended methods of disposition by the Holders;
(c) furnish to each Holder and to each Underwriter of an Underwritten
Offering of Registrable Securities, if any, without charge, as many copies of
each Prospectus, including each preliminary prospectus and any summary
prospectus, and any amendment or supplement thereto and such other documents
(including any documents incorporated by reference therein) as such Holder or
Underwriter may reasonably request, in order to facilitate the public sale or
other disposition of the Registrable Securities; and the Company consents to the
use of such Prospectus and any amendment or supplement thereto and any such
document in accordance with applicable law by each of the selling Holders of
Registrable Securities and any such Underwriters in connection with the offering
and sale of the Registrable Securities covered by and in the manner described in
such Prospectus or any amendment or supplement thereto in accordance with
applicable law;
(d) use its best efforts to register or qualify the Registrable Securities
under all applicable state securities or "blue sky" laws of such jurisdictions
as any Underwriter of an Underwritten Offering of Registrable Securities or any
Holder of Registrable Securities covered by a Registration Statement shall
reasonably request in writing, to continue such qualification in effect in such
jurisdiction for as long as permissible pursuant to the laws of such
jurisdiction, or for as long as any Holder requests or until all of such
Registrable Securities are sold, whichever is shortest, to cooperate with such
Holder and Underwriter in connection with any filings required to be made with
the National Association of Securities Dealers, Inc. and do any and all other
acts and things that may be reasonably necessary or advisable to enable such
Holder to consummate the disposition in each such jurisdiction of such
Registrable Securities owned by such Holder; provided, however, that the Company
shall not be required to (i) qualify as a foreign corporation or as a dealer in
securities in any jurisdiction where it would not otherwise be required to
qualify but for this Section 3(d), (ii) file any general consent to service of
process or (iii) subject itself to material taxation in any such jurisdiction if
it is not so subject; and use its reasonable best efforts to obtain all other
approvals, consents, exemptions, or authorizations from
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such securities regulatory authorities or governmental agencies as may be
necessary to enable such Holders to consummate the disposition of such
Registrable Securities;
(e) notify promptly each Holder and, if requested by any such Holder,
confirm such advice in writing (i) of the filing of a Registration Statement,
Prospectus and any amendment or supplement thereto, and with respect to a
Registration Statement or any post-effective amendment thereto, when the same
has become effective, (ii) of any comments by the SEC with respect to such
Registration Statement or any request by the SEC or any state securities
authority for amendments or supplements to a Registration Statement and
Prospectus or for additional information after the Registration Statement has
become effective, (iii) of the issuance by the SEC or any state securities
authority of any stop order suspending the effectiveness of a Registration
Statement or the initiation of any proceedings by any Person for that purpose,
(iv) if, between the effective date of a Registration Statement and the closing
of any sale of Registrable Securities covered thereby, the representations and
warranties of the Company contained in any underwriting agreement, securities
sales agreement or other similar agreement, if any, relating to the offering
cease to be true and correct in all material respects or if the Company receives
any notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation of any
proceeding for such purpose, (v) upon discovery that, or upon the happening of
any event as a result of which, the Prospectus included in such Registration
Statement contains an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading and (vi) of any determination by the Company that a post-effective
amendment to a Registration Statement would be appropriate;
(f) make every reasonable effort 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 any
Registrable Securities for sale in any jurisdiction) at the earliest possible
moment and provide immediate notice to each Holder of the withdrawal of any such
order (or the lifting of any such suspension);
(g) furnish to each Holder, without charge, at least one conformed copy of
each Registration Statement and any post-effective amendment thereto (without
documents incorporated therein by reference or exhibits thereto, unless
requested);
(h) cooperate with the selling Holders of Registrable Securities to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive legends and
enable such Registrable Securities to be in such denominations (in the case of
the Notes, consistent with the provisions of the Indenture) and registered in
such names as the selling Holders may reasonably request at least one business
day prior to the closing of any sale of Registrable Securities;
(i) upon the occurrence of any event contemplated by clause (v) of Section
3(e) hereof, use its best efforts promptly (subject to its obligations under
Section 3(j)) to prepare and file with the SEC (and deliver to each Holder) a
supplement, amendment or post-effective amendment to a Registration Statement or
the related Prospectus or any document incorporated therein by reference or file
any other required document so that, as thereafter delivered to the
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purchasers of the Registrable Securities, such Prospectus will not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading. The Company agrees to notify the Holders to suspend
use of the Prospectus as promptly as practicable after the occurrence of such an
event, and the Holders hereby agree to suspend use of the Prospectus immediately
thereafter until the Company has amended or supplemented the Registration
Statement or related Prospectus or document to correct such misstatement or
omission and delivered to the Holders the Registration Statement, Prospectus or
document, as then amended and supplemented;
(j) a reasonable time prior to the filing of any Registration Statement,
any Prospectus, or any document which is to be incorporated by reference into a
Registration Statement or a Prospectus after the initial filing of a
Registration Statement pursuant to Section 2(a), provide copies of such document
to the Holders, provide the Holders and their counsel with an adequate
opportunity to review and comment on such Registration Statement (and reflect in
the Registration Statement all such comments the Holders may reasonably make)
and make such of the representatives of the Company as shall be reasonably
requested by the Holders or their counsel available for discussion of such
document, and not at any time file or make any amendment to the Registration
Statement, any Prospectus, or any document that is to be incorporated by
reference into a Registration Statement or a Prospectus, of which the Holders
and their counsel shall not have previously been advised and furnished a copy or
to which the Holders or their counsel shall reasonably object;
(k) cause the Indenture to be qualified under the Trust Indenture Act of
1939, as amended (the "TIA"), in connection with the registration of the
Registrable Securities, cooperate with the Trustee and the Holders to effect
such changes to the Indenture as may be required for the Indenture to be so
qualified in accordance with the terms of the TIA and execute, and use their
best efforts to cause the Trustee to execute, all documents as may be required
to effect such changes and all other forms and documents required to be filed
with the SEC to enable the Indenture to be so qualified in a timely manner;
(l) make available for inspection by representatives of the Holders of the
Registrable Securities, any Underwriter participating in any disposition
pursuant to a Shelf Registration Statement, and any attorneys and accountants or
other agents designated by the Holders or Underwriters, at reasonable times and
in a reasonable manner, all financial and other records, pertinent documents and
properties of the Company and its subsidiaries, and cause the officers,
directors and employees of the Company to supply all information reasonably
requested by any such representative, Underwriter, attorney or accountant in
connection with such Shelf Registration Statement;
(m) use its best efforts to cause all Registrable Common Securities to be
listed on any securities exchange or any automated quotation system on which the
Common Stock is then listed;
(n) if reasonably requested by any Holder of Registrable Securities covered
by a Registration Statement, (i) promptly incorporate in a Prospectus supplement
or post-effective amendment such information with respect to such Holder as such
Holder reasonably requests to
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be included therein and (ii) make all required filings of such Prospectus
supplement or such post-effective amendment as soon as the Company has received
notification of the matters to be incorporated in such filing;
(o) enter into such customary agreements (including underwriting agreements
in customary form, in the case of an Underwritten Offering, which may include
such standard "lock-up" obligations as may be reasonably requested by the
managing Underwriters) and take all such other actions in connection therewith
(including those requested by the Holders of a majority in Common Share
Equivalents of the Registrable Securities being sold) in order to expedite or
facilitate the disposition of such Registrable Securities pursuant to a Shelf
Registration Statement, including, an Underwritten Offering, and in such
connection, (i) to the extent possible, make such representations and warranties
to the Holders and any Underwriters of such Registrable Securities with respect
to the business of the Company and its subsidiaries, the Registration Statement,
Prospectus and documents incorporated by reference or deemed incorporated by
reference, if any, in each case, in form, substance and scope as are customarily
made by issuers to underwriters in underwritten offerings and confirm the same
if and when requested, (ii) obtain opinions of counsel to the Company (which
counsel and opinions, in form, scope and substance, shall be reasonably
satisfactory to the Holders and such Underwriters) addressed to each selling
Holder and Underwriter of Registrable Securities, covering the matters
customarily covered in opinions requested in underwritten offerings, (iii)
obtain "comfort" letters from the independent certified public accountants of
the Company (and, if necessary, any other certified public accountant of any
subsidiary of the Company, or of any business acquired by the Company for which
financial statements and financial data are or are required to be included in
the Registration Statement) addressed to each selling Holder and Underwriter of
Registrable Securities, such letters to be in customary form and covering
matters of the type customarily covered in "comfort" letters in connection with
underwritten offerings, (iv) use its reasonable best efforts to make such road
show presentations and otherwise engage in such reasonable marketing support in
connection with any Underwritten Offering, including making its management
available for such purpose if so requested by the Underwriters for such
offering, and (v) deliver such documents and certificates as may be reasonably
requested by the Holders of a majority in Common Share Equivalents of the
Registrable Securities being sold or the Underwriters, and that are customarily
delivered in underwritten offerings, to evidence the continued validity of the
representations and warranties of the Company made pursuant to clause (i) above
and to evidence compliance with any customary conditions contained in an
underwriting agreement;
(p) comply with all applicable rules and regulations of the SEC, and make
available to its security holders, as soon as reasonably practicable but no
later than fifteen (15) months after the effective date of the Registration
Statement, an earnings statement covering a period of twelve (12) months
beginning after the effective date of the Shelf Registration Statement, in a
manner which satisfies the provisions of Section 11(a) of the 1933 Act and Rule
158 thereunder; and
(q) use its best efforts to take all other steps necessary to effect the
registration of such Registrable Securities contemplated hereby.
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The Company may require each Holder of Registrable Securities to furnish to
the Company such information regarding such Holder and the proposed distribution
by such Holder of such Registrable Securities as the Company may from time to
time reasonably request in writing.
Each Holder agrees that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 3(e)(v) hereof, such
Holder will forthwith discontinue disposition of Registrable Securities pursuant
to a Shelf Registration Statement until such Holder's receipt of the copies of
the supplemented or amended Prospectus contemplated by Section 3(i) hereof, and,
if so directed by the Company, such Holder will deliver to the Company (at the
Company's expense) all copies in its possession, other than permanent file
copies then in such Holder's possession, of the Prospectus covering such
Registrable Securities current at the time of receipt of such notice. Each
Holder further agrees that, upon receipt of any notice from the Company of the
happening of any event of the kind described in the last sentence of Section
2(c), such Holder shall forthwith discontinue disposition of Registrable
Securities pursuant to a Registration Statement until expiration of the
suspension period indicated in such notice. The Company may give notice of any
event of the kind described in Section 3(e)(v) and/or in the last sentence of
Section 2(c) not more than three times during any 365-day period and any such
suspensions may not exceed 30 days for each suspension (or 90 days in the
aggregate in any such period).
The Holders of Registrable Securities covered by a Shelf Registration
Statement who desire to do so may sell such Registrable Securities in an
Underwritten Offering. In any such Underwritten Offering, the investment banker
or investment bankers and manager or managers (the "Underwriters") that will
administer the offering will be selected by the Holders of a majority in Common
Share Equivalents of the Registrable Securities included in such offering.
4. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Holder and each
Person, if any, who controls such Holder within the meaning of Section 15 of the
1933 Act and Section 20 of the 1934 Act, or is under common control with, or is
controlled by, such Holder, from and against all losses, claims, damages,
liabilities and expenses (including any legal or other expenses reasonably
incurred by any such Holder or Person in connection with defending or
investigating any such action or claim, as such expenses are incurred) arising
out of or based on any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement pursuant to which
Registrable Securities were registered under the 1933 Act or in any Prospectus,
or in any amendment or supplement thereto, including all documents (if any)
incorporated therein by reference, or arising out of or based on any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein (in the case of any such Prospectus,
in light of the circumstances under which they were made) not misleading;
provided, however, that the foregoing indemnity shall not inure to the benefit
of any of the foregoing parties to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was
made (x) in any Prospectus delivered by any such party (1) if prior to such
delivery by such party, the Company shall have complied with its obligations
under Section 3(e), (c) and (i) of this Agreement, to
11
provide such party with prompt notification of such untrue statement or omission
and to furnish to such party copies of an amended or supplemented Prospectus,
and (2) if delivered by such party (after receipt thereof from the Company)
within the time (if any) required by the 1933 Act, such amended or supplemented
Prospectus would have cured such untrue statement or omission contained in the
Prospectus delivered by such party or (y) in any such Registration Statement or
Prospectus (or amendment or supplement) in reliance upon and in conformity with
written information relating to any such party furnished to the Company by such
party expressly for use therein. For the avoidance of doubt, the parties hereto
acknowledge and agree that, in any suit, action or proceeding in which the
Company asserts that, under the foregoing clauses (x) and (y) of this Section
4(a), the foregoing indemnity does not inure to the benefit of any of such
foregoing parties the Company shall bear the evidentiary burden of establishing
such assertion in accordance with the normal, civil burden of proof by a
preponderance of the evidence. In connection with any Underwritten Offering
permitted by Section 3, the Company will also indemnify the Underwriters, if
any, selling brokers, dealers and similar securities industry professionals
participating in the distribution, their officers and directors and each Person
who controls such Persons (within the meaning of the 1933 Act and the 0000 Xxx)
to the same extent as provided above with respect to the indemnification of the
Holders, if requested in connection with any Registration Statement. This
indemnity shall be in addition to any liability the Company may otherwise have.
(b) Each Holder agrees, severally and not jointly, to indemnify and hold
harmless the Company, the other Holders, and each of their respective directors,
officers who sign the Registration Statement and each Person, if any, who
controls the Company and any other Holder within the meaning of Section 15 of
the 1933 Act and Section 20 of the 1934 Act to the same extent as the foregoing
indemnity from the Company to the Holders, but only with reference to
information relating to such indemnifying Holder furnished to the Company in
writing by such Holder expressly for use in any Registration Statement (or any
amendment thereto) or any Prospectus (or any amendment or supplement thereto).
(c) In case any proceeding (including any governmental investigation) shall
be instituted involving any Person in respect of which indemnity may be sought
pursuant to either paragraph (a) or paragraph (b) above, such Person (the
"indemnified party") shall promptly notify the Person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding;
provided, however, that the failure to notify the indemnifying party shall not
relieve the indemnifying party of any liability that it may have to the
indemnified party hereunder (except to the extent that the indemnifying party is
materially prejudiced or otherwise forfeits substantive rights or defenses by
reason of such failure). In any such proceeding, any indemnified party shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel, (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or
12
potential differing interests between them or (iii) the indemnifying party fails
to assume the defense of such action reasonably promptly with counsel reasonably
satisfactory to the indemnified party. It is understood that the indemnifying
party shall not, in connection with any proceeding or related proceedings in the
same jurisdiction, be liable for (A) the fees and expenses of more than one
separate firm (in addition to any local counsel) for all Holders and all
Persons, if any, who control any Holders within the meaning of Section 15 of the
1933 Act and Section 20 of the 1934 Act, and (B) the fees and expenses of more
than one separate firm (in addition to any local counsel) for the Company, its
directors, its officers who sign the Registration Statement and each Person, if
any, who controls the Company within the meaning of such Sections, and that all
such fees and expenses shall be reimbursed as they are incurred. In such case
involving the Holders and such Persons who control Holders, such firm shall be
designated in writing by the Holders of a majority of the Registrable Securities
(being) sold. In all other cases, such firm shall be designated by the Company.
The indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent (which shall not be unreasonably withheld),
but if settled with such consent or if there be a final judgment adverse to the
indemnified party, the indemnifying party agrees to indemnify the indemnified
party from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel as contemplated by this Section 4(c), the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party for such fees and expenses of counsel in accordance with such
request prior to the date of such settlement. No indemnifying party shall,
without the prior written consent of the indemnified party (which shall not be
unreasonably withheld), effect any settlement of any pending or threatened
proceeding in respect of which such indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
(d) If the indemnification provided for in paragraph (a) or paragraph (b)
of this Section 4 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages, liabilities or expenses incurred by an
indemnified party, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages, liabilities or expenses in such proportion as is appropriate to reflect
the relative fault of the indemnifying party or parties on the one hand and of
the indemnified party or parties on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative fault of the Company and the Holders shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or by the Holders and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Holders' respective
obligations to contribute pursuant to this Section 4(d) are several in
proportion to the respective number of Registrable Securities of such Holder
that were registered pursuant to a Registration Statement. No Person
13
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the 0000 Xxx) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.
The Company and each Holder agree that it would not be just or equitable if
contribution pursuant to this Section 4(d) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in paragraph above. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages,
liabilities and expenses referred to in paragraph above shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim.
(e) Notwithstanding any other provision of this Section 4, no Holder shall
be required to indemnify or contribute with respect to any sale of any of
Registrable Securities any amount in excess of the total amount received by such
Holder from the sale of such Registrable Securities (less underwriting discounts
and sale commissions). The remedies provided for in this Section 4 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this Section 4 shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by or on behalf of any Holder or
any Person controlling any Holder, or by or on behalf of the Company, its
officers or directors or any Person controlling the Company, and (iii) any sale
of Registrable Securities pursuant to Section 2.
5. Rule 144. The Company covenants that so long as any Registrable
Securities remain outstanding it shall (a) file any reports required to be filed
by it under the 1934 Act and (b) take such further action as each Holder may
reasonably request (including providing any information necessary to comply with
Rule 144 under the 1933 Act), all to the extent required from time to time to
enable such Holder to sell Registrable Securities without registration under the
1933 Act within the limitation of the exemptions provided by (i) Rule 144 under
the 1933 Act, as such rule may be amended from time to time, or Regulation S
under the 1933 Act or (ii) any similar rules or regulations hereafter adopted by
the Commission. The Company shall, upon the request of any Holder, deliver to
such Holder a written statement as to whether it has complied with such
requirements. The Company shall not, after the date hereof, grant any
registration rights which conflict with or impair, or have any priority over,
the registration rights granted herein.
6. Miscellaneous.
(a) No Inconsistent Agreements. The Company has not entered into, and on or
after the date of this Agreement shall not enter into, any agreement that is
inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of the Company's other issued and outstanding
securities under any such agreements.
14
(b) Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given
unless the Company has obtained the written consent of Holders of at least a
majority in Common Share Equivalents of the outstanding Registrable Securities
affected by such amendment, modification, supplement, waiver or consent;
provided, however, that no amendment, modification, supplement, waiver or
consents to any departure from the provisions of Section 4 hereof shall be
effective as against any Holder of Registrable Securities unless consented to in
writing by such Holder.
(c) Notices. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivery, registered first-class
mail, telex, telecopier, or any courier guaranteeing overnight delivery (i) if
to a Holder, at the most current address given by such Holder to the Company by
means of a notice given in accordance with the provisions of this Section 6(c),
which address initially is, with respect to the Holders of the Securities, the
address set forth on the Schedule of Holders, and (ii) if to the Company,
initially at the Company's address set forth in the Plan and thereafter at such
other address, notice of which is given in accordance with the provisions of
this Section 6(c).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and on
the second succeeding business day if timely delivered to an air courier
guaranteeing overnight delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
(d) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders; provided that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of any Registrable
Securities that are Notes in violation of the terms of the applicable Indenture.
(e) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof. In
this Agreement, the words "include", "includes", and "including" shall be deemed
to be followed by the phrase "without limitation" and the words "herein",
"hereof", and "hereunder", and words of similar import, shall be construed to
refer to this Agreement in its entirety and not to any particular provision
hereof unless the context otherwise requires.
(g) GOVERNING LAW; CONSENT TO JURISDICTION. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE
15
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE PRINCIPLES OF
CONFLICTS OF LAW THEREOF. The parties hereto irrevocably submit to the exclusive
jurisdiction of any state or federal court sitting in the County of New York, in
the State of New York over any suit, action or proceeding arising out of or
relating to this Agreement or the affairs of the Company. To the fullest extent
they may effectively do so under applicable law, the parties hereto irrevocably
waive and agree not to assert, by way of motion, as a defense or otherwise, any
claim that they are not subject to the jurisdiction of any such court, any
objection that they may now or hereafter have to the laying of the venue of any
such suit, action or proceeding brought in any such court and any claim that any
such suit, action or proceeding brought in any such court has been brought in an
inconvenient forum.
(h) Remedies. Without limiting the remedies available to the Holders, the
Company acknowledges that any failure by the Company to comply with its
obligations under this Agreement may result in material irreparable injury to
the Holders for which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely and that, in the event
of any such failure, any Holder shall be entitled to injunctive relief or the
enforcement of other equitable remedies, without bond or other security, to
compel performance and to prevent breaches of this Agreement by the Company and
specifically to enforce the terms and provisions hereof (including Section 2),
in addition to any other remedy to which they may be entitled, at law or in
equity.
(i) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
[remainder of page blank; signature page follows]
SIGNATURES TO
REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
IMPSAT FIBER NETWORKS, INC.
By: /s/ Xxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxx
Title: Executive Vice President and
Chief Financial Officer
By: /s/ Xxxxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxxxx X. Xxxxx
Title: Senior Vice President,
Corporate Finance and
Treasury, and Secretary
IMPSAT S.A.
By: /s/ illegible
-------------------------------------
Name:
Title:
By: /s/ illegible
-------------------------------------
Name:
Title:
SIGNATURES TO
REGISTRATION RIGHTS AGREEMENT
(Continued)
Confirmed and accepted as of the date first above written:
XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ illegible
-------------------------------------------
Name:
Title:
NORTEL NETWORKS LIMITED
By: /s/ illegible
-------------------------------------------
Name:
Title:
WRH PARTNERS GLOBAL SECURITIES, L.P.
By: WRH Partners Global Securities, Inc.,
its General Partner
By: /s/ illegible
---------------------------------
Name:
Title:
X.X. XXXX ASSET MANAGEMENT CO., L.L.C.
By: /s/ illegible
-------------------------------------------
Name:
Title:
EXHIBIT A
SCHEDULE OF HOLDERS
Date of this Schedule of Holders: March 25, 2003
--------------
Holder Securities Held
--------------------------------------- --------------------------------------
Xxxxxx Xxxxxxx & Co. Incorporated...... 2,884,659 shares of Common Stock
Nortel Networks Limited................ $15,938,000 Series B 6% Senior
Guaranteed Convertible Notes due 2011
Warrants exercisable for up to
2,667,975 shares of Common Stock
WRH Partners Global Securities, L.P.... Series A 6% Senior Guaranteed
Convertible Notes due 2011 in the
X.X. Xxxx Asset Management Co., L.L.C.. aggregate principal amount received
pursuant to the Plan
