1
EXHIBIT 4.4
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is
made and entered into as of July 30, 1998 by and among TeleHub Communications
Corporation, a Nevada corporation (the "Company"), and TeleHub Technologies
Corporation, a Nevada corporation, TeleHub Leasing Corporation, a Nevada
corporation, and TeleHub Network Services Corporation, an Illinois corporation
(collectively, the "Guarantors"), and BancBoston Securities Inc. (the "Initial
Purchaser").
This Agreement is made pursuant to the Purchase Agreement
dated as of July 27, 1998 by and among the Company, the Guarantors and the
Initial Purchaser (the "Purchase Agreement"), which provides for the sale by the
Company to the Initial Purchaser of an aggregate of 125,000 Units consisting of
an aggregate principal amount at maturity of $125,000,000 of the Company's
13 7/8% Senior Discount Notes due 2005 (the "Notes") and the guarantees thereof
by the Guarantors and Warrants to purchase an aggregate of 2,082,732 shares of
the Company's common stock. The Company and the Guarantors are collectively
referred to herein as the "Issuers." In order to induce the Initial Purchaser to
enter into the Purchase Agreement and to purchase the Notes, each of the Issuers
has agreed to provide to the Initial Purchaser and its direct and indirect
transferees the registration rights for the Notes set forth in this Agreement.
The execution and delivery of this Agreement is a condition precedent to the
obligations of the Initial Purchaser under the Purchase Agreement.
In consideration of the foregoing, the parties hereto
agree as follows:
1. Definitions. As used in this Agreement, the following
capitalized defined terms shall have the following meanings (and, unless
otherwise indicated, capitalized terms used herein without definition shall have
the meanings ascribed to them in the Purchase Agreement):
"Act" shall mean the Securities Act of 1933, as amended.
"Agreement" shall have the meaning set forth in the
preamble to this Agreement.
"Applicable Period" shall have the meaning set forth in
Section 3(t) hereof.
"Closing Date" shall mean the Closing Date as defined in
the Purchase Agreement.
2
"Commission" shall mean the Securities and Exchange
Commission, or such other federal agency administering the Act or
the Exchange Act.
"Company" shall have the meaning set forth in the preamble
to this Agreement, and shall also include the Company's
successors.
"Depository" shall mean The Depository Trust Company, or
any successor depositary appointed by the Company; provided,
however, that such depositary must have an address in the Borough
of Manhattan, The City of New York.
"Effectiveness Period" shall have the meaning set forth in
Section 2(b) hereof.
"Event Date" shall have the meaning set forth in Section
2(e) hereof.
"Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
"Exchange Offer" shall mean the exchange offer by the
Company of Exchange Notes for Notes pursuant to Section 2(a)
hereof.
"Exchange Offer Registration" shall mean a registration
under the Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean the
registration statement (on Form S-4 or, if applicable, on any
other appropriate form) relating to the Exchange Offer, 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.
"Exchange Period" shall have the meaning set forth in
Section 2(a) hereof.
"Exchange Notes" shall mean the 13 7/8% Series B Senior
Discount Notes due 2005 to be issued by the Company and guaranteed
by the Guarantors under the Indenture and containing terms
identical to the Notes (except that (i) interest thereon shall
accrue from the last date on which interest was paid on the Notes
or, if no such interest has been paid, from July 31, 2001, and
(ii) the transfer restrictions thereon shall be eliminated) to be
offered to Holders of Notes in exchange for Notes pursuant to the
Exchange Offer.
"Guarantors" shall have the meaning set forth in the
preamble to this Agreement, and shall also include successors to
any of the Guarantors.
-2-
3
"Holder" shall mean the Initial Purchaser, for so long as
it owns any Registrable Securities, and each of its respective
successors, assigns and direct and indirect transferees who become
registered owners of Registrable Securities under the Indenture.
"Indenture" shall mean the Indenture dated as of July 30,
1998 by and among the Company, the Guarantors and State Street
Bank and Trust Company, as trustee, as the same may be amended or
supplemented from time to time in accordance with the terms
thereof.
"Initial Purchaser" shall have the meaning set forth in
the preamble to this Agreement.
"Inspectors" shall have the meaning set forth in Section
3(n) hereof.
"Liquidated Damages" shall have the meaning set forth in
Section 2(e) hereof.
"Majority Holders" shall mean the Holders of a majority of
the aggregate principal amount at maturity of outstanding (as
determined under the Indenture) Registrable Securities.
"NASD" shall mean the National Association of Securities
Dealers, Inc.
"Notes" shall have the meaning set forth in the preamble
to this Agreement.
"Participating Broker-Dealer" shall have the meaning set
forth in Section 3(t) hereof.
"Person" shall mean any individual, corporation, limited
liability company, general or limited partnership, limited
liability partnership, joint venture, association, joint-stock
company, trust, charitable foundation, unincorporated
organization, government or agency or political subdivision
thereof or any other entity.
"Private Exchange" shall have the meaning set forth in
Section 2(a) hereof.
"Private Exchange Notes" shall have the meaning set forth
in Section 2(a) hereof.
"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
-3-
4
supplement with respect to the terms of the offering of any
portion of the Registrable Securities covered by a Shelf
Registration Statement, including post-effective amendments, and
in each case including all material incorporated by reference
therein.
"Purchase Agreement" shall have the meaning set forth in
the preamble to this Agreement.
"Records" shall have the meaning set forth in Section 3(n)
hereof.
"Registrable Securities" shall mean the Notes and, if
issued, the Private Exchange Notes; provided, however, that Notes
or Private Exchange Notes, as the case may be, shall cease to be
Registrable Securities when (i) a Registration Statement with
respect to such Notes or Private Exchange Notes or the resale
thereof shall have been declared effective under the Act and such
Notes or Private Exchange Notes, as the case may be, shall have
been disposed of pursuant to such Registration Statement, (ii)
such Notes or Private Exchange Notes, as the case may be, shall
have become eligible to be sold to the public pursuant to Rule
144(k) (or any similar provision then in force, but not Rule 144A)
under the Act, (iii) such Notes or Private Exchange Notes, as the
case may be, shall have ceased to be outstanding or (iv) with
respect to the Notes, such Notes have been exchanged for Exchange
Notes upon consummation of the Exchange Offer.
"Registration Expenses" shall mean any and all expenses
incident to performance of or compliance by the Issuers with this
Agreement, including, without limitation: (i) Commission, stock
exchange or NASD registration and filing fees, including, if
applicable, the fees and expenses of any "qualified independent
underwriter" and its counsel that is required to be retained by
any Holder of Registrable Securities in accordance with the rules
and regulations of the NASD, (ii) 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 the blue sky
qualification of any of the Exchange Notes or Registrable
Securities) and compliance with the rules of the NASD, (iii)
expenses of any Persons in preparing or assisting in preparing,
printing and distributing any Registration Statement, any
Prospectus and any amendments or supplements thereto, and in
preparing or assisting in preparing, printing and distributing any
underwriting agreements, securities sales agreements and other
documents relating to the performance of and compliance with the
obligations under this Agreement, (iv) rating agency fees, (v)
fees and disbursements of counsel for and independent certified
public accountants of the Issuers, including the expenses of any
"cold comfort" letters required by or incident to such performance
and compliance, (vi) fees and expenses of the Trustee, and any
exchange agent or custodian, (vii) fees and expenses incurred in
-4-
5
connection with the listing, if any, of any of the Registrable
Securities on any securities exchange or exchanges, and (viii) the
reasonable fees and expenses of any special experts retained by
the Issuers in connection with any Registration Statement. The
term "Registration Expenses" shall not include fees of counsel to
any underwriters or the Holders (other than the fees described in
clauses (i) and (ii) above), underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or
disposition of Registrable Securities by a Holder pursuant to a
Shelf Registration Statement.
"Registration Statement" shall mean any registration
statement of the Issuers relating to the Exchange Notes or
Registrable Securities pursuant to the provisions of this
Agreement, and all amendments and supplements to any such
registration statement, including post-effective amendments, in
each case including the Prospectus contained therein, all exhibits
thereto and all material incorporated by reference therein.
"Shelf Registration" shall mean a registration effected
pursuant to Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf"
registration statement of the Issuers pursuant to the provisions
of Section 2(b) of this Agreement which covers all of the
Registrable Securities, on an appropriate form under Rule 415
under the Act, or any similar rule that may be adopted by the
Commission, 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.
"TIA" shall mean the Trust Indenture Act of 1939, as
amended.
"Trustee" shall mean the trustee under the Indenture.
2. Registration Under the Act.
(a) Exchange Offer. To the extent not prohibited by any
applicable law or applicable interpretation of the staff of the Commission, each
of the Issuers shall, for the benefit of the Holders, at the Issuers' cost, use
its best efforts to cause to be filed with the Commission an Exchange Offer
Registration Statement on or prior to 60 days after the Closing Date on an
appropriate form under the Act covering the offer by the Issuers to the Holders
to exchange all of the Registrable Securities (other than Private Exchange
Notes) for a like aggregate principal amount of Exchange Notes, to cause such
Exchange Offer Registration Statement to be declared effective under the Act by
the Commission on or prior to 135 days after the Closing Date, to cause such
Registration Statement to remain effective until the closing of the Exchange
Offer and to cause the Exchange Offer to be
-5-
6
consummated on or prior to 30 days after the date on which the Exchange Offer
Registration Statement was declared effective under the Act by the Commission.
The Exchange Notes will be issued under the Indenture. Upon the effectiveness of
the Exchange Offer Registration Statement, the Issuers shall promptly commence
the Exchange Offer, it being the objective of such Exchange Offer to enable each
Holder (other than Participating Broker-Dealers) eligible and electing to
exchange Registrable Securities for Exchange Notes (assuming that such Holder is
not an affiliate of any of the Issuers within the meaning of Rule 405 under the
Act, acquires the Exchange Notes in the ordinary course of such Holder's
business and has no arrangements or understandings with any Person to
participate in the Exchange Offer for the purpose of distributing the Exchange
Notes) to transfer such Exchange Notes from and after their receipt without any
limitations or restrictions under the Act or under state securities or blue sky
laws.
In connection with the Exchange Offer, the Issuers shall:
(i) mail to each Holder a copy of the Prospectus forming
part of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period
of not less than 30 days after the date notice thereof is mailed to the
Holders, or longer if required by applicable law (such period being
referred to herein as the "Exchange Period");
(iii) utilize the services of the Depository for the Exchange
Offer;
(iv) permit Holders to withdraw tendered Notes at any time
prior to the close of business, New York City time, on the last
business day of the Exchange Period, by sending to the institution
specified in the notice a telegram, telex, facsimile transmission or
letter setting forth the name of such Holder, the principal amount at
maturity of Notes delivered for exchange, and a statement that such
Holder is withdrawing its election to have such Notes exchanged;
(v) notify each Holder that any Note not tendered will
remain outstanding and continue to accrue interest, but will not retain
any rights under this Agreement (except in the case of the Initial
Purchaser and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable
laws relating to the Exchange Offer.
If, prior to consummation of the Exchange Offer, the Initial
Purchaser holds any Notes acquired by it and having the status of an unsold
allotment in the initial
-6-
7
distribution, the Company upon the request of the Initial Purchaser shall,
simultaneously with the delivery of the Exchange Notes in the Exchange Offer,
issue and deliver to the Initial Purchaser in exchange (the "Private Exchange")
for Notes held by the Initial Purchaser a like principal amount at maturity of
debt securities of the Company, guaranteed by the Guarantors, that are identical
(except that such securities shall bear appropriate transfer restrictions) to
the Exchange Notes (the "Private Exchange Notes") and which are issued pursuant
to the Indenture (which will provide that the Exchange Notes will not be subject
to the transfer restrictions set forth in the Indenture and that the Exchange
Notes, the Private Exchange Notes and the Notes will vote and consent together
on all matters as one class and that none of the Exchange Notes, the Private
Exchange Notes or the Notes will have the right to vote or consent as a separate
class on any matter). The Private Exchange Notes shall be of the same series as
and shall bear the same CUSIP number as the Exchange Notes.
As soon as practicable after the close of the Exchange Offer
or the Private Exchange, as the case may be, the Company shall:
(i) accept for exchange all Notes or portions thereof duly
tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Notes or portions thereof duly
tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for
cancellation all Notes or portions thereof so accepted for exchange by
the Company, and issue, and cause the Trustee to promptly authenticate
and deliver to each Holder, a new Exchange Note or Private Exchange
Note, as the case may be, equal in principal amount to the principal
amount of the Notes surrendered by such Holder.
To the extent not prohibited by applicable law or any
applicable interpre tation of the staff of the Commission, each of the Issuers
shall use its best efforts to complete the Exchange Offer as provided above, and
shall comply with all applicable requirements of the Act, the Exchange Act and
other applicable laws in connection with the Exchange Offer. The Exchange Offer
shall not be subject to any condition, other than that (i) the Exchange Offer
does not violate any applicable law or interpretation of the staff of the
Commission, (ii) no action or proceeding has been instituted or threatened in
any court or by or before any governmental agency with respect to the Exchange
Offer which, in the reasonable judgment of the Issuers, might impair the ability
of the Issuers to proceed with the Exchange Offer, (iii) there has not been
proposed, adopted, or enacted any law, statute, rule or regulation which, in the
reasonable judgment of the Issuers, might materially impair the ability of the
Issuers to proceed with the Exchange Offer or have a material adverse effect on
the Company if the Exchange Offer is consummated or (iv) all governmental
approvals which the Issuers shall reasonably deem necessary for the
-7-
8
consummation of the Exchange Offer as contemplated shall have been obtained.
Each Holder of Registrable Securities who wishes to exchange such Registrable
Securities for Exchange Notes in the Exchange Offer will be required to make
certain customary representations in connection therewith, including
representations that such Holder is not an affiliate of any of the Issuers
within the meaning of Rule 405 under the Act, that any Exchange Notes to be
received by it will be acquired in the ordinary course of business and that at
the time of the commencement of the Exchange Offer it had no arrangement with
any Person to participate in the distribution (within the meaning of the Act) of
the Exchange Notes and will be required to make such other representations as
may be necessary under applicable Commission rules, regulations or
interpretations to render available the use of Form S-4 or any other appropriate
form under the Act. The Company shall inform the Initial Purchaser, after
consultation with the Trustee and the Initial Purchaser, of the names and
addresses of the Holders to whom the Exchange Offer is made, and the Initial
Purchaser shall have the right to contact such Holders and otherwise facilitate
the tender of Registrable Securities in the Exchange Offer.
In the event that the Issuers are unable to consummate the
Exchange Offer due to any event listed in clauses (i) through (iv) in the
paragraph immediately above, the Issuers shall not be deemed to have breached
any covenant under this Section 2(a).
Upon consummation of the Exchange Offer in accordance with
this Section 2(a), the provisions of this Agreement shall continue to apply,
mutatis mutandis, solely with respect to Registrable Securities that are Private
Exchange Notes and Exchange Notes held by Participating Broker-Dealers, and the
Company shall have no further obligation to register Registrable Securities
(other than Private Exchange Notes and Exchange Notes held by Participating
Broker-Dealers) pursuant to Section 2(b) of this Agreement.
(b) Shelf Registration. In the event that (i) the Exchange
Offer Registration provided in Section 2(a) above is not available to any Holder
or may not be consummated as soon as practicable after the last day of the
Exchange Period because, in either case, it would violate applicable securities
laws or because the applicable interpretations of the staff of the Commission
would not permit the Company to effect the Exchange Offer, or (ii) the Exchange
Offer is not for any other reason consummated within 120 days of the Closing
Date, each of the Issuers shall, at its cost, cause to be filed with the
Commission as promptly as practicable after such determination or date, as the
case may be, and, in any event, on or prior to the earlier of (A) 120 days from
the Closing Date or (B) 60 days thereafter, 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 declared
effective by the Commission on or prior to 90 days after such determination or
date. No Holder of Registrable Securities may include any of its Registrable
Securities in any Shelf Registration pursuant to this Agreement unless and until
such Holder furnishes to the Company in writing, within 15 days after receipt of
a
-8-
9
request therefor, such information as the Company may, after conferring with
counsel with regard to information relating to Holders that would be required by
the Commission to be included in such Shelf Registration Statement or Prospectus
included therein, reasonably request for inclusion in any Shelf Registration
Statement or Prospectus included therein. Each Holder as to which any Shelf
Registration is being effected agrees to furnish promptly to the Company all
information required to be disclosed in the applicable Shelf Registration
Statement or Prospectus included therein by the rules and regulations of the
Commission applicable to the Shelf Registration Statement in order to make the
information previously furnished to the Company by such Holder not materially
misleading.
Each of the Issuers agrees, subject to applicable law or
applicable interpretation of the staff of the Commission, to use its reasonable
best efforts to keep the Shelf Registration Statement continuously effective,
supplemented and amended under the Act for a period ending on the earlier of the
date two years from the Closing Date (subject to extension pursuant to the last
paragraph of Section 3) or when all of the Registrable Securities covered by the
Shelf Registration Statement have been sold pursuant to the Shelf Registration
Statement or cease to be outstanding (the "Effectiveness Period"). Each of the
Issuers shall not permit any securities other than Registrable Securities to be
included in the Shelf Registration. The Company will, in the event a Shelf
Registration Statement is declared effective, provide to each Holder copies of
the prospectus which is a part of the Shelf Registration Statement, notify each
such Holder when the Shelf Registration Statement has become effective and take
certain other actions as are customary to permit resales of the Registrable
Securities covered by the Shelf Registration Statement. Each of the Issuers
further agrees, if necessary, to use its reasonable best efforts to supplement
or amend the Shelf Registration Statement, if required by the Act or the rules,
regulations or instructions applicable to the registration form used by the
Issuers for such Shelf Registration Statement or by any other rules and
regulations thereunder for shelf registrations, or if reasonably requested by
the Majority Holders, and the Company agrees to furnish to the Holders copies of
any such supplement or amendment promptly after its being used or filed with the
Commission.
(c) Expenses. The Issuers, jointly and severally, shall pay
all Registra tion Expenses in connection with registrations pursuant to Section
2(a) or 2(b), whether or not the Exchange Offer or a Shelf Registration is filed
or becomes effective. Each Holder shall pay all expenses of its counsel (other
than the fees described in clauses (i) and (ii) of the definition of
"Registration Expenses"), underwriting discounts and commissions and transfer
taxes, if any, relating to the sale or disposition of such Holder's Registrable
Securities pursuant to the Shelf Registration Statement.
(d) Effective Registration Statement. An Exchange Offer
Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration
Statement pursuant to Section 2(b) hereof will not be deemed to have become
effective unless it has been
-9-
10
declared effective by the Commission; 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 Commission or any other governmental agency or
court, such Registration Statement will be deemed not to have been effective
during the period of such interference, until the offering of Registrable
Securities pursuant to such Registration Statement may legally resume.
(e) Liquidated Damages. In the event that an Exchange Offer
Registration Statement has not been filed with the Commission on or prior to 60
days after the Closing Date, additional interest payable by the Issuers, jointly
and severally, as liquidated damages ("Liquidated Damages") will accrue on the
Notes from and including the 61st day after the Closing Date until but excluding
the date such Exchange Offer Registration Statement is filed. In addition, if on
or prior to 135 days after the Closing Date, such Exchange Offer Registration
Statement is not declared effective under the Act by the Commission, Liquidated
Damages will accrue on the Notes from and including the 136th day after the
Closing Date until but excluding the date such Exchange Offer Registration
Statement is declared effective. Further, if on or prior to 30 days after the
date specified for effectiveness of the Exchange Offer Registration Statement
the Exchange Offer is not consummated, Liquidated Damages will accrue on the
Notes from and including the 31st day after the date specified for effectiveness
of the Exchange Offer Registration Statement, but excluding, the consummation of
the Exchange Offer. If applicable law or interpretations of the staff of the
Commission prohibit a Holder from participating in the Exchange Offer or if for
any reason the Exchange Offer is not consummated within 135 days of the Closing
Date and if a Shelf Registration Statement is not filed or declared effective
within the time periods provided by Section 2(b) hereof for such filing or
declaration, Liquidated Damages will accrue on the Notes (other than those
exchanged in the Exchange Offer) or the Private Exchange Notes, as the case may
be, from and including the day immediately following such default until but
excluding the effective date of the Shelf Registration Statement. Further, if
the Shelf Registration Statement or the Exchange Offer Registration Statement is
declared effective but thereafter ceases to be effective or usable during the
time periods specified in this Agreement, Liquidated Damages will accrue on the
Notes (other than those exchanged in the Exchange Offer) or the Private Exchange
Notes, as the case may be, from and including the day immediately following such
default until but excluding the date such Registration Statement is declared
effective. In each case, such Liquidated Damages will be payable in cash
semiannually in arrears, with the first semiannual payment due on the first
interest payment date in respect of the Notes (or the Private Exchange Notes)
fol lowing the date from which Liquidated Damages begin to accrue, and will
accrue, under each circumstance set forth above at a rate per annum equal to an
additional one half of one percent (0.50%) of the principal amount at maturity
of the Notes (or the Private Exchange Notes) upon the occurrence of each such
circumstance, which rate will increase by one half of one percent (0.50%) for
each 90-day period that such Liquidated Damages
-10-
11
continues to accrue under any circumstance, with an aggregate maximum increase
in the interest rate per annum equal to two percent (2.00%).
Upon the filing of the Exchange Offer Registration Statement,
the effectiveness of the Exchange Offer Registration Statement, or the
consummation of the Exchange Offer, as the case may be, the interest rate borne
by the Notes will be reduced by the full amount of any such increase to the
extent that such increase related to the failure of any such event to have
occurred. Upon the effectiveness of a Shelf Registration Statement, the interest
rate borne by the Notes (and the Private Exchange Notes) shall be reduced, from
and as of the date of such effectiveness, to the original interest rate of the
Notes unless and until increased as described above. Notwithstanding the
foregoing, the Issuers (i) shall not be required to amend or supplement the
Shelf Registration Statement, any related prospectus or any document
incorporated therein by reference and (ii) may suspend the effectiveness of any
such Shelf Registration Statement in the event that, and for a period not to
exceed, for so long as this Agreement is in effect, an aggregate of 90 days in
any one calendar year if (A) an event occurs and is continuing as a result of
which the Shelf Registration Statement, any related prospectus or any document
incorporated therein by reference as then amended or supplemented would, in the
Issuer's good faith judgment, contain an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein
not misleading, and (B) the Issuers determine in their good faith judgment that
the disclosure of such event at such time would have a material adverse effect
on the business, operations or prospects of the Issuers; provided that any such
suspension shall not relieve any of the Issuers from its obligation to pay
Liquidated Damages.
The Company shall notify the Trustee within three business
days after each and every date on which an event occurs in respect of which
Liquidated Damages is required to be paid (an "Event Date"). Liquidated Damages
shall be paid by depositing with the Trustee, in trust, for the benefit of the
Holders of Notes, Exchange Notes or Private Exchange Notes, as the case may be,
on or before the applicable semiannual interest payment date, immediately
available funds in sums sufficient to pay the Liquidated Damages then due. The
Liquidated Damages due shall be payable on each interest payment date to the
record Holder of Notes entitled to receive the interest payment to be paid on
such date as set forth in the Indenture. Each obligation to pay Liquidated
Damages shall be deemed to accrue from and including the day following the
applicable Event Date.
(f) Specific Enforcement. Without limiting the remedies
available to the Initial Purchaser and the Holders, each of the Issuers
acknowledges that any failure by any of the Issuers to comply with its
obligations under Section 2(a) and Section 2(b) hereof would result in material
irreparable injury to the Initial Purchaser or the Holders for which there is no
adequate remedy at law, that it would not be possible to measure damages for
such injuries precisely and that, in the event of any such failure, the Initial
-11-
12
Purchaser or any Holder may obtain such relief as may be required to
specifically enforce each of the Issuer's obligations under Section 2(a) and
Section 2(b) hereof.
3. Registration Procedures. In connection with the obligations
of each of the Issuers with respect to the Registration Statements pursuant to
Sections 2(a) and 2(b) hereof, each of the Issuers shall:
(a) prepare and file with the Commission a Registration
Statement or Registration Statements as prescribed by Sections 2(a) and
2(b) within the relevant time periods specified in Section 2 hereof on
the appropriate form under the Act, which form (i) shall be selected by
the Issuers, (ii) shall, in the case of a Shelf Registration, be
available for the sale of the Registrable Securities by the selling
Holders and (iii) shall comply as to form in all material respects with
the requirements of the applicable form and include or incorporate by
reference all financial statements required by the Commission to be
filed therewith, and each of the Issuers shall use its best efforts to
cause such Registration Statement to become effective and remain
effective in accordance with Section 2; provided, however, that if (1)
such filing is pursuant to Section 2(b), or (2) a Prospectus contained
in an Exchange Offer Registration Statement filed pursuant to Section
2(a) is required to be delivered under the Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes, before filing any
Registration Statement or Prospectus or any amendments or supplements
thereto, the Issuers, if requested, shall furnish to and afford the
Holders and each such Participating Broker-Dealer, as the case may be,
covered by such Registration Statement, their counsel and the managing
underwriters, if any, a reasonable opportunity to review copies of all
such documents (including copies of any documents to be incorporated by
reference therein and all exhibits thereto) proposed to be filed at
least five business days prior to such filing. The Issuers shall not
file any Registration Statement or Prospectus or any amendments or
supplements thereto in respect of which pursuant to this Agreement the
Holders must be afforded an opportunity to review prior to the filing
of such document, if the Majority Holders or such Participating
Broker-Dealer, as the case may be, their counsel or the managing
underwriters, if any, shall reasonably object;
(b) subject to Section 3(a) hereof, prepare and file with the
Commission such amendments and post-effective amendments to each
Registration Statement as may be necessary to keep such Registration
Statement effective for the Effectiveness Period or the Applicable
Period, as the case may be, and cause each Prospectus to be
supplemented by any required prospectus supplement and as so
supplemented to be filed pursuant to Rule 424 (or any similar provision
then in force) under the Act, and comply with the provisions of the
Act, the Exchange Act and the rules and regulations promulgated
thereunder applicable to it with respect to the disposition of all
securities covered by each Registration Statement during
-12-
13
the Effectiveness Period or the Applicable Period, as the case may be,
in accordance with the intended method or methods of distribution by
the selling Holders thereof described in this Agreement (including
sales by any Participating Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each
Holder, at least five business days prior to filing, that a Shelf
Registration Statement with respect to the Registrable Securities is
being filed and advising such Holder that the distribution of
Registrable Securities will be made in accordance with the method
selected by the Majority Holders, (ii) 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 amendment or supplement thereto
and such other documents as such Holder or underwriter may reasonably
request, in order to facilitate the public sale or other disposition of
the Registrable Securities, and (iii) subject to the last paragraph of
this Section 3, consent to the use of the Prospectus or any amendment
or supplement thereto by each of the selling Holders in connection with
the offering and sale of the Registrable Securities covered by the
Prospectus or any amendment or supplement thereto, provided that such
use complies with all applicable laws and regulations;
(d) use its best efforts to register or qualify the
Registrable Securities under all applicable United States state
securities or "blue sky" laws of such jurisdictions as any Holder of
Registrable Securities covered by a Registration Statement and each
underwriter of an underwritten offering of Registrable Securities shall
reasonably request by the time the applicable Registration Statement is
declared effective by the Commission, and do any and all other acts and
things which may be reasonably necessary or advisable to enable such
Holder and underwriter to consummate the disposition in each such
jurisdiction of such Registrable Securities owned by such Holder;
provided, however, that the none of the Issuers shall be required to
(i) qualify as a foreign partnership or 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 in any jurisdiction where it would not
otherwise be subject to such service of process or (iii) subject itself
to taxation in any such jurisdiction if it is not then so subject;
(e) in the case of (A) a Shelf Registration or (B)
Participating Broker-Dealers who have notified the Company that they
will be utilizing the Prospectus contained in the Exchange Offer
Registration Statement as provided in Section 3(t) hereof are seeking
to sell Exchange Notes and are required to deliver Prospectuses, notify
each Holder, or such Participating Broker-Dealers, as the case may be,
their counsel and the managing underwriters, if any, promptly and, if
-13-
14
requested by such Holder or Participating Broker-Dealer, confirm such
notice in writing (i) when a Registration Statement has become
effective and when any post-effective amendments and supplements
thereto become effective, (ii) of any request by the Commission or any
state securities authority for amendments and supplements to a
Registration Statement or Prospectus or for additional information
after the Registration Statement has become effective, (iii) of the
issuance by the Commission or any state securities authority of any
stop order suspending the effectiveness of a Registration Statement or
the initiation of any proceedings for that purpose, (iv) in the case of
a Shelf Registration, 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 any of the Issuers
contained in any underwriting agreement, securities sales agreement or
other similar agreement, if any, relating to such offering cease to be
true and correct in all material respects, (v) if any of the Issuers
receives any notification with respect to the suspension of the
qualification of the Registrable Securities or the Exchange Notes to be
sold by any Holder or Participating Broker-Dealer for offer or sale in
any jurisdiction or the initiation of any proceeding for such purpose,
(vi) of the happening of any event or the failure of any event to occur
or the discovery of any facts or otherwise, during the period a Shelf
Registration State ment is effective or the Applicable Period, as the
case may be, which makes any statement made in the Shelf Registration
Statement, the Exchange Offer Registration Statement or any related
Prospectus untrue in any material respect or which causes such
Registration Statement or Prospectus, as the case may be, to omit to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading
and (vii) the Issuers' reasonable determination that a post-effective
amendment to the Registration Statement would be appropriate;
(f) make every effort to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement at the
earliest possible moment;
(g) in the case of a Shelf Registration, furnish to each
Holder, upon request and without charge, at least one conformed copy of
each Registration Statement and any post-effective amendment thereto
(without documents incorporated therein by reference or exhibits
thereto, unless requested);
(h) in the case of a Shelf Registration, cooperate with the
selling Holders to facilitate the timely preparation and delivery of
certificates, if any, representing Registrable Securities to be sold,
which certificates shall not bear any restrictive legends and shall be
in a form eligible for deposit with the Depository; and cause such
Registrable Securities to be in such denominations (consistent with the
provisions of the Indenture) and registered in such names as the
selling Holders
-14-
15
or the managing underwriters may reasonably request at least two
business days prior to the closing of any sale of Registrable
Securities;
(i) subject to Section 3(a) hereof and the second paragraph of
Section 2(e) hereof, in the case of a Shelf Registration or an Exchange
Offer Registration, upon the occurrence of any circumstance
contemplated by Section 3(e)(ii), 3(e)(iii), 3(e)(iv), 3(e)(v),
3(e)(vi) or 3(e)(vii) hereof, use its best efforts to prepare a
supplement or post-effective amendment to the Registration Statement
and the related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter
delivered to the purchasers of the 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 the light of the circumstances under which they were made, not
misleading. The Issuers agree to notify each Holder to suspend use of
the Prospectus as promptly as practicable after the occurrence of any
such circumstance, and each Holder hereby agrees to suspend use of the
Prospectus until the Issuers have amended or supplemented the
Prospectus to correct such misstatement or omission;
(j) in the case of a Shelf Registration, furnish to each
Holder of Registrable Securities, upon request and without charge, a
reasonable number of copies of any document which is incorporated by
reference into or is an exhibit to a Registration Statement or a
Prospectus after the initial filing of a Registration Statement;
(k) obtain a CUSIP number for all Exchange Notes or
Registrable Securities, as the case may be, not later than the
effective date of a Registration Statement, and provide the Trustee
with printed certificates for the Exchange Notes or the Registrable
Securities, as the case may be, in a form eligible for deposit with the
Depository;
(l) cause the Indenture to be qualified under the TIA in
connection with the registration of the Exchange Notes or Registrable
Securities, as the case may be, cooperate with the Trustee and the
Holders to effect such changes to the Indenture as may be required for
the Indenture to be so qualified in accordance with the terms of the
TIA and execute, and use its best efforts to cause the Trustee to
execute, all documents as may be required to effect such changes, and
all other forms and documents required to be filed with the Commission
to enable the Indenture to be so qualified in a timely manner;
(m) in the case of a Shelf Registration, enter into such
agreements (including underwriting agreements) as are customary in
underwritten public offerings and take all such other appropriate
actions as are reasonably requested in
-15-
16
order to expedite or facilitate the registration or the disposition of
such Registrable Securities, and in such connection, whether or not an
underwriting agreement is entered into and whether or not the
registration is an underwritten registration: (i) make such
representations and warranties to Holders of such Registrable
Securities and the underwriters (if any), with respect to the business
of the Issuers and their respective subsidiaries and the Registration
Statement, the Prospectus and all documents, if any, incorporated or
deemed to be incorporated by reference therein, in each case, as are
customarily made by issuers to underwriters in underwritten public
offerings, and confirm the same if and when reasonably requested; (ii)
obtain customary opinions of counsel to the Issuers and updates thereof
in form and substance reasonably satisfactory to the managing
underwriters (if any) and the Holders of a majority in principal amount
at maturity of the Registrable Securities being sold, addressed to each
selling Holder and the underwriters (if any) covering the matters
customarily covered in opinions requested in underwritten public
offerings and such other matters as may be reasonably requested by such
Holders and underwriters; (iii) obtain "cold comfort" letters and
updates thereof in form and substance reasonably satisfactory to the
managing underwriters from the independent certified public accountants
of the Issuers (and, if necessary, any other independent certified
public accountants of any subsidiary of the Issuers or of any business
acquired or to be acquired by the any of the Issuers for which
financial statements and financial data are, or are required to be,
included in the Registration Statement), addressed to the selling
Holders of Registrable Securities and to each of the underwriters, such
letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with
underwritten public offerings; and (iv) if an underwriting agreement is
entered into, cause the same to contain indemnification provisions and
procedures no less favorable than those set forth in Section 4 hereof
(or such other provisions and procedures acceptable to Holders of a
majority in aggregate principal amount of Registrable Securities
covered by such Registration Statement and the managing underwriters or
agents) with respect to all parties to be indemnified pursuant to said
Section. The above shall be done at each closing under such
underwriting agreement, or as and to the extent required thereunder;
(n) if (A) a Shelf Registration is filed pursuant to Section
2(b) or (B) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2(a) is required to be delivered
under the Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, make available for
inspection by any selling Holder of such Registrable Securities being
sold, or each such Participating Broker-Dealer, as the case may be, any
underwriter participating in any such disposition of Registrable
Securities, if any, and any attorney, accountant or other agent
retained by any such selling Holder or each such Participating
Broker-Dealer, as the case may be, or underwriter (collectively, the
"Inspectors"), at the offices where normally kept, during
-16-
17
reasonable business hours, all financial and other records, pertinent
corporate documents and properties of the Issuers and their respective
subsidiaries (collectively, the "Records") as shall be reasonably
necessary to enable them to exercise any applicable due diligence
responsibilities, and cause the officers, directors and employees of
the Issuers and their respective subsidiaries to supply all information
in each case reasonably requested by any such Inspector in connection
with such Registration Statement. Records which the Issuers determine,
in good faith, to be confidential and as to which they notify the
Inspectors are confidential shall not be disclosed by the Inspectors
unless, after prior consultation with the Issuers, (i) the disclosure
of such Records is necessary to avoid or correct a material
misstatement or omission in such Registration Statement, (ii) the
release of such Records is ordered pursuant to an effective subpoena or
other order from a court of competent jurisdiction or (iii) the infor
mation in such Records has been made generally available to the public,
other than as a result of a breach of confidentiality or secrecy to the
Issuers. Each selling Holder of such Registrable Securities and each
such Participating Broker-Dealer will be required to agree that
information obtained by it as a result of such inspections shall be
deemed confidential and shall not be used by it as the basis for any
market transactions in the securities of the Issuers unless and until
such is made generally available to the public, other than as a result
of a breach of confidentiality or secrecy to the Issuers. Each selling
Holder of such Registrable Securities and each such Participating
Broker-Dealer will be required to further agree that it will, upon
learning that disclosure of such Records is sought in a court of
competent jurisdiction or is otherwise required in the opinion of such
Par ticipating Broker-Dealer, give notice to the Issuers and allow the
Issuer at their expense to undertake appropriate action to prevent
disclosure of the Records deemed confidential;
(o) comply with all applicable rules and regulations of the
Commission and, as soon as reasonably practicable, make generally
available to the Holders earnings statements of the Company covering at
least 12 months satisfying the provisions of Section 11(a) of the Act
and Rule 158 thereunder (or any similar rule promulgated under the
Act);
(p) upon consummation of an Exchange Offer or a Private
Exchange, obtain an opinion of counsel to the Issuers addressed to the
Trustee for the benefit of all Holders of Registrable Securities
participating in the Exchange Offer or the Private Exchange, as the
case may be, and which includes an opinion that (i) the Company has
duly authorized, executed and delivered the Exchange Notes and Private
Exchange Notes and the Indenture, as the case may be, (ii) each of the
Guarantors has duly authorized, executed and delivered the guarantees
of the Exchange Note and Private Exchange Notes and the Indenture, as
the case may be, and (iii) each of the Exchange Notes or the Private
Exchange Notes and the
-17-
18
Indenture, as the case may be, constitute a legal, valid and binding
obligation of each of the Issuers, enforceable against each of them in
accordance with its respective terms (in each case, with customary
exceptions);
(q) if an Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Registrable Securities by Holders to
the Company (or to such other Person as directed by the Company) in
exchange for the Exchange Notes or the Private Exchange Notes, as the
case may be, the Company shall xxxx, or cause to be marked, on such
Registrable Securities delivered by such Holders that such Registrable
Securities are being cancelled in exchange for the Exchange Notes or
the Private Exchange Notes, as the case may be; in no event shall such
Registrable Securities be marked as paid or otherwise satisfied;
(r) cooperate with each seller of Registrable Securities
covered by any Registration Statement and each underwriter, if any,
participating in the disposition of such Registrable Securities and
their respective counsel in connection with any filings required to be
made with the NASD;
(s) use its best efforts to take all other steps necessary to
effect the registration of the Registrable Securities covered by a
Registration Statement contemplated hereby;
(t) (A) in the case of the Exchange Offer Registration
Statement (i) include in the Exchange Offer Registration Statement a
section entitled "Plan of Distribution," which section shall be
reasonably acceptable to the Initial Purchaser or another
representative of the Participating Broker-Dealers, and which shall
contain a summary statement of the positions taken or policies made by
the staff of the Commission with respect to the potential "underwriter"
status of any broker-dealer (a "Participating Broker-Dealer") that
holds Registrable Securities acquired for its own account as a result
of market-making activities or other trading activities and that will
be the beneficial owner (as defined in Rule 13d-3 under the Exchange
Act) of Exchange Notes to be received by such broker-dealer in the
Exchange Offer, whether such positions or policies have been publicly
disseminated by the staff of the Commission or such positions or
policies, in the reasonable judgment of the Initial Purchaser or such
other representative, represent the prevailing views of the staff of
the Commission, including a statement that any such broker-dealer who
receives Exchange Notes for Registrable Securities pursuant to the
Exchange Offer may be deemed a statutory underwriter and must deliver a
prospectus meeting the requirements of the Act in connection with any
resale of such Exchange Notes, (ii) furnish to each Participating
Broker-Dealer who has delivered to the Company the notice referred to
in Section 3(e), without charge, as many copies of each Prospectus
included in the Exchange Offer Registration Statement, including any
preliminary prospectus, and any amendment
-18-
19
or supplement thereto, as such Participating Broker-Dealer may
reasonably request, (iii) subject to the last paragraph of this Section
3, hereby consent to the use of the Prospectus forming part of the
Exchange Offer Registration Statement or any amendment or supplement
thereto, by any Person subject to the prospectus delivery requirements
of the Commission, including all Participating Broker-Dealers, in
connection with the sale or transfer of the Exchange Notes covered by
the Prospectus or any amendment or supplement thereto, (iv) use its
best efforts to keep the Exchange Offer Registration Statement
effective and to amend and supplement the Prospectus contained therein,
in order to permit such Prospectus to be lawfully delivered by all
Persons subject to the prospectus delivery requirements of the Act for
such period of time as such Persons must comply with such requirements
in order to resell the Exchange Notes (provided, however, that such
period shall not be required to exceed 180 days, or such longer period
if extended pursuant to the last sentence of this Section 3 (the
"Applicable Period")), and (v) include in the transmittal letter or
similar documentation to be executed by an exchange offeree all
necessary information for such offeree to participate in the Exchange
Offer;
(B) in the case of any Exchange Offer Registration Statement,
each of the Issuers agrees to deliver to the Initial Purchaser or to
another representative of the Participating Broker-Dealers on behalf of
the Participating Broker-Dealers upon consummation of the Exchange
Offer (i) an opinion of counsel substantially in the form attached
hereto as Exhibit A, (ii) Officer's Certificates containing
certifications substantially similar to those set forth in Section 8.5
of the Purchase Agreement and such additional certifications as are
customarily delivered in a public offering of debt securities, and
(iii) comfort letters in customary form permitted by Statement of
Auditing Standards No. 72 of the American Institute of Certified Public
Accountants (or any successor statement).
The Company may require each seller of Registrable Securities
as to which any registration is being effected to furnish to the Company such
information regarding such seller and the proposed distribution of such
Registrable Securities as the Company may from time to time reasonably request
in writing. The Issuers may exclude from such registration the Registrable
Securities of any seller who unreasonably fails to furnish such information
within a reasonable time after receiving such request.
In the case of (i) a Shelf Registration Statement or (ii)
Participating Broker-Dealers who have notified the Company that they will be
utilizing the Prospectus contained in the Exchange Offer Registration Statement
as provided in Section 3(t) hereof and are seeking to sell Exchange Notes and
are required to deliver copies of such Prospectus, 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)(ii), 3(e)(iii), 3(e)(iv), 3(e)(v), 3(e)(vi) or
3(e)(vii) hereof, such Holder will forthwith discontinue disposition of
-19-
20
Registrable Securities pursuant to a Registration Statement until such Holder's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 3(i) hereof or until it is advised in writing by the Company that the
use of the applicable Prospectus may be resumed, and, if so directed by the
Company, such Holder will deliver to the Company (at the Company's expense) all
copies in such Holder's possession, other than permanent file copies then in
such Holder's possession, of the Prospectus covering such Registrable Securities
or Exchange Notes, as the case may be, current at the time of receipt of such
notice. If the Company shall give any such notice to suspend the disposition of
Registrable Securities or Exchange Notes, as the case may be, pursuant to a
Registration Statement as a result of the happening of any event of the kind
described in Section 3(e)(ii), 3(e)(iii), 3(e)(iv), 3(e)(v), 3(e)(vi) or
3(e)(vii) hereof, each of the Issuers shall use its best efforts to file and
have declared effective (if an amendment) as soon as practicable an amendment or
supplement to the Registration Statement and shall extend the period during
which such Registration Statement shall be maintained effective pursuant to this
Agreement by the number of days in the period from and including the date of the
giving of such notice to and including the date when the Issuers shall have made
available to the Holders copies of the supplemented or amended Prospectus
necessary to resume such dispositions or shall have advised the Holders in
writing that the use of the applicable Prospectus may be resumed.
4. Indemnification and Contribution. (a) Each of the Issuers,
jointly and severally, shall indemnify and hold harmless the Initial Purchaser,
each Holder, each Participating Broker-Dealer, each underwriter who participates
in an offering of Registrable Securities, each of their respective affiliates,
each Person, if any, who controls any of such parties within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, and each of their
respective directors, officers, partners, employees, representatives and agents,
to the fullest extent lawful as follows:
(i) from and against any and all loss, liability, claim,
damage and expense whatsoever, joint or several, as incurred, arising
out of any untrue statement or alleged untrue statement of a material
fact contained in any Reg istration Statement or any amendment thereto
pursuant to which the offer and sale of the Registrable Securities or
Exchange Notes were registered under the Act including all documents
incorporated therein by reference, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary
to make the statements therein not misleading, or arising out of any
untrue statement or alleged untrue statement of a material fact
contained in any Prospectus or any amendment or supplement thereto, or
the omission or alleged omission therefrom of a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
-20-
21
(ii) from and against any and all loss, liability, claim,
damage and expense whatsoever, joint or several, as incurred, to the
extent of the aggregate amount paid in settlement of any litigation, or
any investigation or proceeding by any court or governmental agency or
body, whether commenced or threatened, or of any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, if and only if such settlement is effected with
the prior written consent of the Company; and
(iii) from and against any and all expenses whatsoever
(including reasonable fees and disbursements of counsel chosen by such
Initial Purchaser, Holder, Participating Broker-Dealer or underwriter
(except to the extent otherwise expressly provided in Section 4(c)
hereof)), as incurred, reasonably incurred in investigating, preparing
for or defending against any litigation, or any investigation or
proceeding by any court or governmental agency or body, whether
commenced or threatened, and any amount paid in settlement thereof, or
any other claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under subparagraph (i) or (ii)
of this Section 4(a);
provided, however, that this indemnity does not apply to any loss, liability,
claim, damage or expense to the extent arising out of an untrue statement or
omission or alleged untrue statement or omission (i) made solely in reliance
upon and in conformity with written information furnished to the Company by the
Initial Purchaser, such Holder, such Partici pating Broker-Dealer or any
underwriter relating specifically to such Person in writing expressly for use in
the Registration Statement (or any amendment thereto) or any Prospectus (or any
amendment or supplement thereto) or (ii) contained in any preliminary prospectus
or any Prospectus if the Initial Purchaser, such Holder, such Participating
Broker-Dealer or such underwriter failed to send or deliver a copy of the
Prospectus (as then amended or supplemented if the Issuers shall have timely
furnished any amendments or supplements thereto) to the Person asserting such
losses, liabilities, claims or damages on or prior to the delivery of written
confirmation of any sale of securities covered thereby to such Person in any
case where such delivery is required by the Act and a court of competent
jurisdiction in a judgment not subject to appeal or final review shall have
deter mined that such Prospectus (as so amended or supplemented) would have
corrected such untrue statement or omission and the delivery thereof would have
eliminated such losses, claims, damages or liabilities.
(b) Each Holder agrees, severally and not jointly, to
indemnify and hold harmless each of the Issuers, the Initial Purchaser, each
underwriter who participates in an offering of Registrable Securities and the
other selling Holders and each of their respective directors, officers
(including each officer of the Company who signed the Registration Statement),
employees, representatives and agents, and each Person, if any, who controls any
of the Issuers, the Initial Purchaser, any underwriter or any other selling
Holder within
-21-
22
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, from and
against any and all loss, liability, claim, damage and expense whatsoever
described in the indemnity contained in Section 4(a) hereof, as reasonably
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto) or any Prospectus (or any amendment or supplement thereto)
solely in reliance upon and in conformity with written information furnished to
the Company by such selling Holder relating to such Holder expressly for use in
the Registration Statement (or any amendment thereto) or any such Prospectus (or
any amendment or supplement thereto); provided, however, that, in the case of a
Shelf Registration Statement, no such Holder shall be liable for any claims
hereunder in excess of the amount of net proceeds received by such Holder from
the sale of Registrable Securities pursuant to such Shelf Registration
Statement.
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, enclosing a copy of all papers properly
served on such indemnified party (but failure to notify an indemnifying party
shall not relieve such indemnifying party from any liability hereunder to the
extent it is not materially prejudiced as a result thereof and in any event
shall not relieve it from any liability which it may have other than on account
of this indemnity agreement). An indemnifying party may participate, at its own
expense, in the defense of any such action. If an indemnifying party so elects
within a reasonable time after receipt of such notice, such indemnifying party,
jointly with any other indemnifying party, may assume the defense of such action
with counsel chosen by it and reasonably satisfactory to the indemnified parties
defendant in such action; provided, however, that if any such indemnified party
reasonably determines, upon written advice of counsel, that there may be legal
defenses available to such indemnified party which are different from or in
addition to those available to such indemnifying party or that representation of
such indemnifying party and any indemnified party by the same counsel would
present a conflict of interest, then such indemnifying party or parties shall
not so be entitled to assume such defense. If an indemnifying party is not so
entitled to assume the defense of such action or fails to timely assume such
defense with counsel reasonably satisfactory to the indemnified parties, counsel
for such indemnifying party shall be entitled to conduct the defense of such
indemnifying party and counsel for each indemnified party or parties shall be
entitled to conduct the defense of such indemnified party or parties. If an
indemnifying party assumes the defense of an action in accordance with and as
permitted by the provisions of this Section 4(c), such indemnifying party shall
not be liable for any fees and expenses of counsel for the indemnified parties
incurred thereafter in connection with such action unless otherwise agreed to by
the indemnifying party. In no event shall the indemnifying party or parties be
liable for the fees and expenses of more than one counsel for all indemnified
parties in connection with any one action, or separate but similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written consent of
the indemnified parties, which consent shall not be unreasonably withheld,
-22-
23
settle or compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 4, unless
such settlement, compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and does not include a statement as to or an
admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) Notwithstanding any payment or payments made by any of the
Issuers hereunder, each of the Issuers hereby expressly waives subrogation to,
and agrees that it shall not be entitled to be subrogated to, any of the rights
of any indemnified party against each of the Issuers or any other right of
offset held by any indemnified party for the payment of any amounts owed to any
indemnified party pursuant to this Section 4; provided, however, that if any of
the foregoing provisions of this paragraph are held to be contrary to applicable
law or unenforceable by a court of competent jurisdiction, each of the Issuers
hereby expressly agrees that any right of subrogation or contribution that the
any of the Issuers may have as a result of such applicable law or
unenforceability, as the case may be, shall be subordinate in right of payment
to the payment in full in cash of all amounts owed to any indemnified party
pursuant to this Section 4.
(e) If the indemnification provided for in this Section 4 is
for any reason unavailable to or insufficient to hold harmless an indemnified
party in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the indemnifying party
or parties on the one hand and the indemnified party or parties on the other
hand from the offering of the Notes pursuant to the Purchase Agreement, or (ii)
if the allocation provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also 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 which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Issuers on the one hand
and the Initial Purchaser on the other hand in connection with the offering of
the Notes pursuant to the Purchase Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the Notes
pursuant to the Purchase Agreement (before deducting expenses) received by the
Company and the total discount received by the Initial Purchaser bear to the
aggregate initial offering price of the Notes.
-23-
24
The relative fault of the Issuers on the one hand and the
Holders on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Issuers or by the Holders, and the respective parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Issuers and the Holders agree that it would not be just
and equitable if contribution pursuant to this Section 4 were determined by pro
rata allocation (even if the Holders were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 4(e). The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 4(e) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing for or defending against any litigation, or
any investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 4(e), the
Initial Purchaser shall not be required to contribute any amount in excess of
the amount by which the total discount received by the Initial Purchaser in
respect of the purchase price of the Notes purchased by it from the Issuers
exceeds the amount of any damages which the Initial Purchaser has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 4(e), each person, if any, who
controls the Initial Purchaser within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act shall have the same rights to contribution as the
Initial Purchaser, and each director of each of the Issuers and each officer of
each of the Issuers who signed the Registration Statement and each person, if
any, who controls any of the Issuers within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act shall have the same rights to contribution as
the Issuers.
5. Participation in Underwritten Registrations. No Holder may
participate in any underwritten registration hereunder unless such Holder (a)
agrees to sell such Holder's Registrable Securities on the basis provided in any
customary underwriting arrangements approved by the Persons entitled hereunder
to approve such arrangements and (b) completes and executes all reasonable
questionnaires, powers of attorney,
-24-
25
indemnities, underwriting agreements, lock-up letters and other documents
reasonably required in connection with such underwriting arrangements.
6. Selection of Underwriters. In any underwritten offering,
the underwriter or underwriters and manager or managers that will administer the
offering will be selected by the Holders of a majority in aggregate principal
amount of the Registrable Securities included in such offering; provided,
however, that such underwriters and managers must be reasonably satisfactory to
the Company.
7. Miscellaneous.
(a) No Inconsistent Agreements. None of the Issuers shall have
entered into nor will any of the Issuers on or after the date of this Agreement
enter into any agreement that is inconsistent with the rights granted to the
Holders of Registrable Securities in this Agreement or otherwise conflicts with
the provisions hereof. Except as disclosed on the Offering relating to the
issuance of the Notes, none of the Issuers has previously entered into any
agreement granting any registration or similar rights with respect to its
securities to any person. 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 any of the Issuer's other issued and outstanding securities, if any,
under any agreement in effect on the date hereof.
(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 Issuers have obtained the written consent of
Holders of at least a majority of the then outstanding aggregate principal
amount of the Registrable Securities; provided, however, that no amendment,
modification or supplement or waiver or consent to the departure with respect to
the provisions of Section 4 hereof shall be effective as against any Holder of
Registrable Securities unless consented to in writing by such Holder of
Registrable Securities. Each of the Issuers agrees that it shall not pay any fee
to any Holder of Registrable Securities in connection with any solicitation for
the modification, amendment, supplement or waiver or consent of this Agreement,
unless such fee is offered to be paid on a pro rata basis to all the Holders of
Registrable Securities in connection with such solicitation.
(c) Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if sent by
registered or certified mail, postage prepaid, sent by any national courier
service guaranteeing overnight delivery or transmitted by any standard form of
facsimile telecommunication, as follows: (i) if to a Holder, at the most current
address given by such Holder to the Company in accordance with the provisions of
this Section 7(c), which address, with respect to the Initial Purchaser, shall
initially be the address provided for the Initial Purchaser in the Purchase
-25-
26
Agreement; and (ii) if to any of the Issuers, at its address as set forth in the
Purchase Agreement, or at such other address provided in accordance with the
provisions of this Section 7(c).
All such notices and communications shall be deemed to have
been duly given at the earlier of: (i) the time of actual receipt by the
addressee; or (ii) the time delivered, if personally delivered, or five business
days after being sent by registered or certified mail, postage prepaid, if
mailed, or when answered back, if telexed, or when transmission is confirmed, if
telecopied, or on the next business day, if timely delivered to a national
courier service guaranteeing overnight delivery.
Copies of all notices, demands, or other communications shall
be concurrently delivered by the Person giving the same to the Trustee at its
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 the
Initial Purchaser, including, without limitation and without the need for an
express assignment, subsequent Holders; provided, however, that nothing herein
shall be deemed to permit any assignment, transfer or other disposition of
Registrable Securities in violation of the terms of the Purchase Agreement or
the Indenture. If any transferee of any Holder shall acquire Registrable
Securities, in any manner, whether by operation of law or otherwise, such
Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities, such Person
shall be conclusively deemed to have agreed to be bound by and to perform all of
the terms and provisions of this Agreement and such Person shall be entitled to
receive the benefits hereof.
(e) Third Party Beneficiary. The Holders shall be third party
beneficiaries of the agreements made hereunder between the Issuers, on the one
hand, and the Initial Purchaser, on the other hand, and the Holders shall have
the right to enforce such agreements directly to the extent they deem such
enforcement necessary or advisable to protect their rights or the rights of any
of the other Holders.
(f) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(g) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAWS.
(h) 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
-26-
27
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.
(i) Notes Held by the Company or its Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities held by any of the
Issuers or any affiliate of any of the Issuers (as such term is defined in Rule
405 under the Act) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
(j) Counterparts. This Agreement may be executed in one or
more counterparts and, when so executed, all such counterparts taken together
shall constitute one and the same agreement.
-27-
28
IN WITNESS WHEREOF, the parties hereto have executed this
Registration Rights Agreement as of the date first written above.
TELEHUB COMMUNICATIONS CORPORATION
By:
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President & Chief
Executive Officer
TELEHUB TECHNOLOGIES CORPORATION
By:
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Executive Officer
TELEHUB NETWORK SERVICES CORPORATION
By:
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Executive Officer
TELEHUB LEASING CORPORATION
By:
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
Accepted as of the date first above written:
BANCBOSTON SECURITIES INC.
By:
----------------------------------
Name: Xxxx Xxxxxxx
Title: Director
-28-
29
Exhibit A
Form of Opinion of Counsel
1. Each of the Exchange Offer Registration Statement and the
Prospectus (other than the financial statements, notes or schedules thereto and
other financial and statistical data and supplemental schedules included or
referred to therein or omitted therefrom and the Form T-l, as to which such
counsel need express no opinion), complies as to form in all material respects
with the applicable requirements of the Act and the applicable rules and
regulations promulgated under the Act.
2. In the course of such counsel's review and discussion of
the contents of the Exchange Offer Registration Statement and the Prospectus
with certain officers and other representatives of the Issuers and
representatives of the independent certified public accountants of the Issuers,
but without independent check or verification or responsibility for the
accuracy, completeness or fairness of the statements contained therein, on the
basis of the foregoing (relying as to materiality to a large extent upon
representations and opinions of officers and other representatives of the
Issuers), no facts have come to such counsel's attention which cause such
counsel to believe that the Exchange Offer Registration Statement (other than
the financial statements, notes and schedules thereto and other financial and
statistical information contained or referred to therein and the Form T-1, as to
which such counsel need express no belief), at the time the Exchange Offer
Registration Statement became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements contained therein not misleading, or that
the Prospectus (other than the financial statements, notes and schedules thereto
and other financial and statistical information contained or referred to
therein, as to which such counsel need express no belief) at the time the
Registration Statement became effective or as of the date of the opinion,
contains any untrue statement of a material fact or omits to state a material
fact necessary to make the statements contained therein, in the light of the
circumstances under which they were made, not misleading.
-29-
