EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
Registration Rights Agreement, dated as of July 20, 2004 (this
"AGREEMENT"), by and among the following:
(i) iPCS, Inc., a Delaware corporation (the "COMPANY");
(ii) AIG Annuity Insurance Company; AIG Life Insurance Company; AIG
Retirement Services, Inc (f/k/a AIG Sun America, Inc.); SunAmerica Life
Insurance Company; The Variable Annuity Life Insurance Company; VALIC Company II
Strategic Bond Fund; SunAmerica Income Funds - SunAmerica High Yield Bond Fund;
SunAmerica Series Trust - High Yield Bond Portfolio (Polaris); SunAmerica Income
Funds - Sun America Strategic Bond Fund; and VALIC Company II High Yield Bond
Fund (collectively and including Transferees, "AIG");
(iii) SPCP Group, LLC; Silver Point Capital Fund, L.P.; and Silver
Point Capital Offshore Fund, Ltd. (collectively and including Transferees,
"SILVER POINT"); and
(iv) Xxxxxxx X. Xxxxx 2001 Trust, dated September 24, 2001
(including Transferees, "XXXXX").
WHEREAS, on February 23, 2003, the Company and its wholly owned
subsidiaries, iPCS Wireless, Inc. and iPCS Equipment, Inc., filed a Chapter 11
bankruptcy petition in the United States Bankruptcy Court for the Northern
District of Georgia (the "BANKRUPTCY COURT") for the purpose of effecting a
court-administered reorganization;
WHEREAS, on March 31, 2004, the Company filed its plan of
reorganization with the Bankruptcy Court, which plan was amended on April 16,
2004 and on May 26, 2004 (as amended, the "PLAN OF REORGANIZATION");
WHEREAS, the Plan of Reorganization provides, among other things, that
upon confirmation thereof by the Bankruptcy Court, certain existing senior
discount notes of the Company will be cancelled and the holders of such senior
discount notes, including AIG, Silver Point and Xxxxx (collectively, the
"INITIAL INVESTORS"), will receive shares of common stock, par value $.01 per
share, of the Company (the "COMMON STOCK") on a pro rata basis;
WHEREAS, on July 8, 2004, the Bankruptcy Court confirmed the Plan of
Reorganization;
WHEREAS, simultaneously with the execution of this Agreement, the
order of the Bankruptcy Court confirming the Plan of Reorganization and the
transactions contemplated thereby becomes effective;
WHEREAS, as a result of the confirmation of the Plan of
Reorganization, the Initial Investors are receiving newly issued shares of
Common Stock; and
WHEREAS, the Company has agreed to provide the Investors (as defined
below) with certain registration rights with respect to their Registrable
Securities (as defined below), upon the terms and subject to the conditions set
forth herein.
NOW THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt, adequacy and
sufficiency of which are hereby acknowledged by the parties, the Company and
each Investor intending to be legally bound, hereby agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms
shall have the following respective meanings:
"BANKRUPTCY CODE" shall mean Title 11 of the United States Code.
"COMMON STOCK EQUIVALENTS" shall mean any shares of stock, warrants,
rights, calls, options, debt or other securities exchangeable or
exercisable for or convertible into shares of Common Stock.
"EFFECTIVE DATE" shall have the meaning set forth in the Plan of
Reorganization.
"INVESTORS" shall mean the Initial Investors and the Transferees, in
each case, so long as each such person holds Registrable Securities.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended, or any similar federal statute then in effect, and a reference to
a particular section thereof shall be deemed to include a reference to the
comparable section, if any, of any such similar federal statute.
"REGISTRABLE SECURITIES" shall mean any shares of Common Stock owned
by any stockholder of the Company, any shares of Common Stock which may be
issued or distributed in respect thereof by way of stock dividend or stock
split or other distribution, recapitalization or reclassification and any
shares of Common Stock owned or to be acquired upon conversion, exercise or
exchange of Common Stock Equivalents. As to any particular shares of Common
Stock, such shares of Common Stock shall cease to be Registrable Securities
when (a) they have been distributed to the public pursuant to an offering
registered under the Securities Act, (b) they have been sold to the public
through a broker, dealer or market-maker in compliance with Rule 144 under
the Securities Act (or any successor or similar provision then in force),
(c) they may be sold or transferred pursuant to Rule 144(k) under the
Securities Act (or any successor or similar provision then in force)
without restrictions or (d) such security has ceased to be outstanding.
"REGISTRATION EXPENSES" shall mean all expenses incident to the
Company's performance of or compliance with this Agreement, including,
without limitation, all SEC, Nasdaq Stock Market and other stock exchange,
automated quotation system or National Association of Securities Dealers,
Inc. registration and filing fees and expenses, fees and expenses of
compliance with securities or blue sky laws (including, without limitation,
reasonable fees and disbursements of counsel for the underwriters in
connection with blue sky qualifications of the Registrable Securities),
rating agency fees,
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printing expenses, messenger, telephone and delivery expenses, the fees and
expenses incurred in connection with the listing of the securities to be
registered on each securities exchange or market system on which similar
securities issued by the Company are then listed, fees and expenses of
counsel for the Company and all independent certified public accountants
(including the expenses of any annual audit, special audit and "cold
comfort" letters required by or incident to such performance and
compliance), securities laws liability insurance (if the Company so
desires), the fees and disbursements of underwriters (including, without
limitation, all fees and expenses of any "qualified independent
underwriter" required by the rules of the NASD) customarily paid by
issuers, the expenses customarily borne by the issuers of securities in a
"road show" presentation to potential investors, the reasonable fees and
expenses of any special experts retained by the Company in connection with
such registration, the fees and disbursements of one counsel for the
Selling Investors (which counsel shall be selected by a majority of
aggregate amount of outstanding Registrable Securities included in any
registration) (the "PARTICIPATING INVESTORS' COUNSEL") and fees and
expenses of other persons retained by the Company (but not including any
Selling Expenses).
"SEC" shall mean the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act or the Exchange
Act.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended, or
any similar federal statute then in effect, and a reference to a particular
section thereof shall be deemed to include a reference to the comparable
section, if any, of any such similar federal statute.
"SELLING EXPENSES" shall mean any underwriting discounts or
commissions or transfer taxes, if any, attributable to the sale of
Registrable Securities by any Selling Investor, all fees and disbursements
of any Selling Investor's counsel (other than the Participating Investors'
Counsel) and all other out-of-pocket expenses of any Selling Investor
(other than Registration Expenses).
"SELLING INVESTOR" shall mean any Investor whose Registrable
Securities are to be sold and distributed to the public pursuant to a
registration of such Registrable Securities under the Securities Act as
provided in this Agreement.
"SHELF REGISTRATION STATEMENT" shall mean a "shelf" registration
statement of the Company filed pursuant to the provisions of SECTION 2
hereof for an offering to be made on a delayed or continuous basis pursuant
to Rule 415 under the Securities 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 documents
incorporated or deemed to be incorporated by reference therein.
"TRANSFEREE" shall mean any person holding Registrable Securities as a
result of a transfer or assignment of Registrable Securities to that person
by an Investor in accordance with SECTION 8(f) below.
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2. SHELF REGISTRATION.
(a) FILING OF SHELF REGISTRATION. The Company shall prepare and,
prior to the date that is twenty (20) days after the Effective Date (the "SHELF
DATE"), file a Shelf Registration Statement covering all of the Registrable
Securities owned by the Investors.
(b) EFFECTIVENESS. The Company will use its commercially
reasonable efforts to cause the Shelf Registration Statement to be effective not
later than ninety (90) days after the Shelf Date. The Company shall use its
commercially reasonable efforts to keep the Shelf Registration Statement
continuously effective, supplemented and amended as required under the
Securities Act in order to permit the prospectus forming a part thereof to be
usable for the period beginning on the date on which the Shelf Registration
Statement is declared effective and ending the earliest to occur of: (i) the
second anniversary of the date the Shelf Registration Statement is declared
effective and (ii) such date as all of the shares of Common Stock included in
the Shelf Registration Statement cease to be Registrable Securities.
(c) SUSPENSION. The Company shall have the right, exercisable on
not more than one occasion in any twelve (12) month period, from time to time to
postpone or suspend (but not for a period exceeding 30 days in the aggregate in
any twelve (12) month period) the filing or effectiveness of a Shelf
Registration Statement if the Company's Chief Executive Officer or Chief
Financial Officer determines, in his or her good faith judgment (evidenced by an
officer's certificate), that such registration and offering or continued
effectiveness would reasonably be expected to (i) interfere with any material
financing, acquisition, disposition, corporate reorganization or other material
transaction involving the Company or any of its subsidiaries, including, without
limitation, the negotiation of modifications to the Company's affiliation
agreements with Sprint PCS (collectively, a "MATERIAL EVENT") or (ii) require
public disclosure of a Material Event prior to the time such disclosure might
otherwise be required. As promptly as reasonably practicable, the Company shall
advise each Selling Investor of the exercise of its right to postpone or suspend
the Shelf Registration Statement (but not the nature of or details concerning
such exercise) pursuant to this SECTION 2(c). Promptly upon the abandonment,
consummation, or termination of the Material Event or the public disclosure of
the Material Event, the suspension of the use of the Shelf Registration
Statement pursuant to this SECTION 2(c) shall cease and the Company shall
promptly comply with SECTION 6 hereof and notify the Investors that disposition
of the Registrable Securities may be resumed under the Shelf Registration
Statement. Each Investor hereby covenants and agrees that it will not dispose of
any Registrable Securities pursuant to the Shelf Registration Statement during
the periods for which sales under the Shelf Registration Statement have been
suspended as set forth above or until such earlier time as the Company shall
have notified the Investors in writing that sales may resume under the Shelf
Registration Statement.
3. DEMAND REGISTRATION.
(a) REQUEST BY AN INVESTOR. At any time following the expiration
of the effectiveness of the Shelf Registration Statement, any Investor (other
than Xxxxx) may make a written request for registration under the Securities Act
of all or any part of such Investor's Registrable Securities having a minimum
value of $15 million at the time of the written request (a "DEMAND
REGISTRATION"). Such request shall specify the amount of Registrable Securities
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requested to be registered by such Investor and the intended method of
disposition thereof. Promptly after receipt of such request, the Company shall
(i) notify all of the Investors that such a written request has been received
and that they have the right to include their Registrable Securities in such
registration and (ii) use commercially reasonable efforts to effect the
registration under the Securities Act of all or part of such Registrable
Securities as are specified in such request, together with all or part of such
Registrable Securities joining in such request as are specified in a written
request received by the Company within fifteen (15) days after the receipt of
the Company's notice by the Investors. The Selling Investors and the Company
shall consult with one another at the beginning of, and throughout, the
registration process to coordinate the timing of the proposed offering, among
other things, with respect to the existence of any material business combination
discussions that may be ongoing.
(b) PRIORITY IN DEMAND REGISTRATIONS. If a Demand Registration
involves an underwritten offering and the managing underwriter advises the
Company and the Selling Investors in writing that, in its opinion, the number of
securities requested to be included in such registration by all other Selling
Investors who have the right to include Registrable Securities in any such
registration and any securities to be issued by the Company exceeds the largest
number of securities which can be sold without reasonably expecting to have an
adverse effect on such offering, including the price at which such securities
can be sold, the number of such securities to be included in such registration
shall be reduced to such extent, and the Company shall include in such
registration such maximum number of securities as follows:
(1) FIRST, up to the full number of the Registrable
Securities requested to be included in such registration by the Investor that
initiated such Demand Registration (the "INITIATING INVESTOR");
(2) SECOND, to the extent that the number of Registrable
Securities which the Initiating Investor requested to be included in such
registration is less than the number of equity securities which the Company has
been advised can be sold in such offering without having the adverse effect
referred to above, up to the full number of the Registrable Securities requested
to be included in such registration by Investors (other than Xxxxx) (the
"NON-INITIATING INVESTORS"), PROVIDED that if such number is less than the full
number of such Registrable Securities that are so requested to be included in
such registration by the Non-Initiating Investors, such number shall be
allocated pro rata among the Non-Initiating Investors on the basis of the
relative number of Registrable Securities each Non-Initiating Investor has
requested to be included in such registration (with any number in excess of such
Non-Initiating Investor's request being reallocated among the Non-Initiating
Investors in a like manner);
(3) THIRD, to the extent that the number of Registrable
Securities which the Initiating Investor and the Non-Initiating Investors have
requested to be included in such registration is less than the number of equity
securities which the Company has been advised can be sold in such offering
without having the adverse effect referred to above, up to the full number of
the Registrable Securities requested to be included in such registration by
Xxxxx; and
(4) FOURTH, up to the full amount of the securities which
the Company proposes to sell for its own account.
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Each Selling Investor shall have the right to exclude its Registrable Securities
from any underwritten Demand Registration if such Registrable Securities cannot
be sold in such offering within a price range acceptable to such Selling
Investor.
(c) NUMBER AND TIMING OF DEMAND REGISTRATIONS. AIG and its
Transferees shall be entitled to request, in the aggregate, two (2) Demand
Registrations. Silver Point and its Transferees shall be entitled to request, in
the aggregate, two (2) Demand Registrations. In any event, no more than two (2)
requests for a Demand Registration shall be permitted in any twelve (12) month
period and the Company shall not be required to effect a Demand Registration
until a period of 180 days shall have elapsed from the date on which the
distribution of Registrable Securities under any previous Demand Registration
has been completed. A Demand Registration shall not be deemed to have been
requested by the Initiating Holder for purposes of this SECTION 3(c) if such
request has been withdrawn by the Initiating Holder and the Initiating Holder
shall have elected to pay all Registration Expenses of the Company in connection
with such withdrawn request.
(d) POSTPONEMENTS IN DEMAND REGISTRATIONS.
(1) If, upon receipt of a request for a Demand Registration,
the Company is advised in writing by a nationally recognized investment banking
firm selected by the Company that, in such firm's opinion, a registration by the
Company at the time and on the terms requested would adversely affect any public
offering of securities of the Company (other than in connection with employee
benefit and similar plans) (a "COMPANY OFFERING") with respect to which the
Company has commenced preparations for a registration prior to the receipt of
the request for a Demand Registration and the Company furnishes Selling
Investors with a certificate signed by the Chief Executive Officer or Chief
Financial Officer of the Company to such effect (the "OFFER DELAY NOTICE")
promptly after receipt of such request, the Company shall not be required to
effect a Demand Registration until the earliest of (A) ninety (90) days after
the completion of such Company Offering, (B) promptly after the abandonment of
such Company Offering or (C) ninety (90) days after the date of the Offer Delay
Notice.
(2) If, upon receipt of a request for a Demand Registration
or while a request for a Demand Registration is pending, the Company's Chief
Executive Officer or Chief Financial Officer determines, in his or her good
faith judgment (evidenced by an officer's certificate), that such registration
and offering or continued effectiveness would reasonably be expected to (i)
interfere with a Material Event or (ii) require public disclosure of a Material
Event prior to the time such disclosure might otherwise be required, and the
Company provides Selling Investors written notice (the "TRANSACTION DELAY
NOTICE") thereof (but not the nature of or details concerning such
determination) promptly after the Company makes such determination, which shall
be made promptly after the receipt of any request, the Company shall not be
required to effect a Demand Registration until the earlier of (A) the date upon
which such Material Event is disclosed to the public or ceases to be material or
(B) thirty (30) days after Selling Investors' receipt of such Transaction Delay
Notice.
(e) SELECTION OF UNDERWRITERS. If in any Demand Registration
Selling Investors request that such registration shall be in the form of an
underwritten offering, such offering shall be an underwritten offering and the
Company, in consultation with the Selling
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Investors, shall have the right to select any investment banker and manager or
co-managers to administer the offering (subject to the approval of the Selling
Investors (such approval not to be unreasonably withheld)). The Company shall
(together with Selling Investors) enter into an underwriting agreement in
customary form with the underwriter or underwriters selected for such
underwriting, as well as all other documents customary in similar offerings,
including, without limitation, underwriting agreements, custody agreements,
powers of attorney, and indemnification agreements.
4. PIGGYBACK REGISTRATION.
(a) RIGHTS TO INCLUDE REGISTRABLE SECURITIES. If the Company
proposes to register (other than pursuant to SECTIONS 2 or 3 hereof) any of its
equity securities under the Securities Act in a primary or secondary public
offering (other than a Form S-8 or Form S-4), then the Company will each such
time, subject to the provisions of SECTION 4(b) hereof, give prompt written
notice to each Investor of its intention to do so and of such Investor's rights
under this SECTION 4, at least twenty (20) business days prior to the
anticipated filing date of the registration statement relating to such
registration. Such notice shall offer each Investor the opportunity to include
in such registration statement such number of Registrable Securities as such
Investor may request, subject to the provisions of SECTION 4(b) hereof. Upon the
written request of such Investor (each such Investor, a "REQUESTING INVESTOR")
made within ten (10) days after the receipt of the Company's notice (which
request shall specify the number of Registrable Securities to be disposed of by
such Requesting Investor), subject to the provisions of SECTION 4(b) hereof, the
Company shall use its commercially reasonable efforts to effect the registration
under the Securities Act of all Registrable Securities which the Company has
been so requested to register by such Requesting Investor to the extent required
to permit the disposition of the Registrable Securities so to be registered;
PROVIDED that (i) if the public offering is underwritten, such Requesting
Investor must sell the number of its Registrable Securities to the underwriters
selected by the Company at the same price and subject to the terms of a
customary underwriting agreement (except that indemnification obligations of
such Requesting Investor shall be limited to those obligations set forth in
SECTION 7 hereof); and (ii) if, at any time after giving written notice of its
intention to register any securities pursuant to this SECTION 4(a) and prior to
the effective date of the registration statement filed in connection with such
registration, the Company shall determine for any reason not to register such
securities, the Company shall give written notice to such Requesting Investor
and, thereupon, shall be relieved of its obligation to register any Registrable
Securities in connection with such registration. The Company shall pay all
Registration Expenses in connection with each registration of Registrable
Securities requested pursuant to this SECTION 4, and each Selling Investor shall
severally and not jointly pay its own Selling Expenses in connection with the
registration and sale of the Registrable Securities by such Selling Investor.
(b) PRIORITY IN UNDERWRITTEN PIGGYBACK REGISTRATIONS.
Notwithstanding anything else contained herein to the contrary, if the managing
underwriter advises the Company in writing that, in its opinion, the number of
equity securities (including all Registrable Securities) which the Company, each
Requesting Investor and any other persons intend to include in such registration
exceeds the largest number of securities which can be sold without having an
adverse effect on such offering, including the price at which such securities
can be sold, the Company will include in such registration up to such maximum
number of securities:
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(1) FIRST, all the securities the Company proposes to sell
for its own account (the "COMPANY SECURITIES");
(2) SECOND, up to the full number of the Registrable
Securities held by each Requesting Investor (other than Xxxxx) that are
requested to be included in such registration in excess of the number of Company
Securities to be sold in such offering which, in the good faith view of such
managing underwriter, can be so sold without so adversely affecting such
offering as described above (the "OTHER SECURITIES"); PROVIDED that if such
number is less than the full number of such Registrable Securities that are so
requested to be included in such registration by the Requesting Investors (other
than Xxxxx), such number shall be allocated pro rata among the Requesting
Investors (other than Xxxxx) on the basis of the relative number of Registrable
Securities each Requesting Investor (other than Xxxxx) has requested to be
included in such registration (with any number in excess of such Investor's
request being reallocated among the Requesting Investors (other than Xxxxx) in a
like manner);
(3) THIRD, up to the full number of the Registrable
Securities held by Xxxxx that are requested to be included in such registration
in excess of the number of Company Securities and Other Securities to be sold in
such offering which, in the good faith view of such managing underwriter, can be
so sold without so adversely affecting such offering as described above (the
"ADDITIONAL SECURITIES"); PROVIDED that if such number is less than the full
number of such equity securities that are so requested to be included in such
registration by Xxxxx, such number shall be allocated pro rata among such
persons on the basis of the relative number of equity securities each person has
requested to be included in such registration (with any number in excess of such
person's request being reallocated among the other persons in a like manner);
and
(4) FOURTH, up to the full number of equity securities held
by each person other than the Requesting Investors (if any) that are requested
to be included in such registration in excess of the number of Company
Securities, Other Securities and Additional Securities to be sold in such
offering which, in the good faith view of such managing underwriter, can be so
sold without so adversely affecting such offering; PROVIDED that if such number
is less than the full number of such equity securities that are so requested to
be included in such registration by persons other than the Requesting Investors,
such number shall be allocated pro rata among such persons on the basis of the
relative number of equity securities each person has requested to be included in
such registration (with any number in excess of such person's request being
reallocated among the other persons in a like manner).
5. HOLDBACK AGREEMENTS.
(a) RESTRICTIONS ON PUBLIC SALE BY THE INVESTORS. In connection
with any underwritten registration of Registrable Securities pursuant to this
Agreement, each Investor who participates in such underwritten registration will
agree with the managing underwriter not to effect any public sale or
distribution, including any sale pursuant to Rule 144 under the Securities Act,
of any Registrable Securities, and not to effect any public sale or distribution
of any other equity security of the Company, or of any security convertible into
or exchangeable or exercisable for any equity security of the Company, (in each
case, other than as part of the underwritten public offering pursuant to this
Agreement) during the ten (10) business day period
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prior to the effective date of the applicable registration statement, if such
date is known, and during such period as the managing underwriter may request
(not to exceed ninety (90) days) following the date of the final prospectus;
provided that each officer, director and other selling shareholder under the
proposed registration shall also agree to the restrictions contained in this
SECTION 5(a).
(b) RESTRICTIONS ON PUBLIC SALE BY THE COMPANY AND OTHERS. In
connection with any underwritten registration of Registrable Securities pursuant
to this Agreement, the Company agrees (i) not to effect any public sale or
distribution of any of its equity securities or of any security convertible into
or exchangeable or exercisable for any equity security of the Company (in each
case, other than as part of the underwritten public offering pursuant to this
Agreement or in connection with an employee stock option or other benefit plan)
during the ten-day (10) period prior to the effective date of the applicable
registration statement, if such date is known, and during such period as the
managing underwriter may request (not to exceed ninety (90) days) following the
date of the final prospectus and (ii) that any agreement entered into after the
date of this Agreement pursuant to which the Company issues or agrees to issue
any privately placed equity securities shall contain a provision under which
holders of such securities agree not to effect any public sale or distribution
of any such securities during the period referred to in the foregoing clause
(i), including any sale pursuant to Rule 144 under the Securities Act (except as
part of such registration, if permitted).
6. REGISTRATION PROCEDURES. If and whenever the Company is
required to use its commercially reasonable efforts to effect or cause the
registration of any Registrable Securities under the Securities Act as provided
in this Agreement, the Company will:
(a) use its commercially reasonable efforts to prepare and file
with the SEC a registration statement on any form for which the Company then
qualifies or which counsel for the Company shall deem appropriate, and which
form shall be available for the sale of the Registrable Securities in accordance
with the intended methods of distribution thereof, and use its commercially
reasonable efforts to cause such registration statement to become and remain
effective as promptly as practicable; provided that before filing with the SEC a
registration statement or prospectus or any amendments or supplements thereto,
the Company will furnish to each Selling Investor copies of the form of
preliminary prospectus proposed to be filed and furnish to such Selling
Investor's counsel copies of all such documents proposed to be filed, which
documents will be subject to the review of such counsel at least five (5)
business days prior to the filing thereof with the SEC;
(b) use its commercially reasonable efforts to obtain (i) the
prompt withdrawal of any stop order or (ii) the prompt lifting of any suspension
of the qualification (or exemption from qualification) of any of the Registrable
Securities for sale in any jurisdiction in which they have been qualified for
sale, in either case as promptly as reasonably practicable, and provide prompt
notice to the Selling Investors of the withdrawal of any such orders and shall
in any event within twenty (20) days of the cessation of the effectiveness (i)
amend the registration statement in a manner reasonably expected to obtain the
withdrawal of an order suspending the effectiveness thereof, or (ii) file an
additional registration statement covering all the securities that as of the
date of such filing are Registrable Securities, PROVIDED, HOWEVER that in
connection
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with a Shelf Registration Statement, such requirement shall only be
in effect until the second anniversary that the Shelf Registration Statement was
declared effective;
(c) prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection therewith
as may be necessary to keep such registration statement effective for a period
of not less than one hundred eighty (180) days or such shorter period which will
terminate when all Registrable Securities covered by such registration statement
have been sold (except with respect to the Shelf Registration Statement, which
shall remain effective for the period set forth in SECTION 2(b) above), and
comply with the provisions of the Securities Act with respect to the disposition
of all securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the sellers thereof set
forth in such registration statement;
(d) furnish without charge to each Selling Investor and each
underwriter, if any, of Registrable Securities covered by such registration
statement such number of copies of such registration statement, each amendment
and supplement thereto (in each case including all exhibits thereto), the
prospectus included in such registration statement (including each preliminary
prospectus), in conformity with the requirements of the Securities Act, and such
other documents as such Selling Investor or underwriter may reasonably request
in order to facilitate the disposition of the Registrable Securities by such
Selling Investor, and the Company consents to the use of the prospectus or any
amendment or supplement thereto by the Selling Investors in connection with the
offering and sale of the Registrable Securities covered by the prospectus or any
amendment or supplement thereto;
(e) use its commercially reasonable efforts to register or qualify
such Registrable Securities under such other securities or blue sky laws of such
jurisdictions as each Selling Investor or underwriter, if any, reasonably
requests and do any and all other acts and things which may be reasonably
necessary or advisable to enable such Selling Investor and each underwriter, if
any, to consummate the disposition in such jurisdictions of the Registrable
Securities owned by such Selling Investor; PROVIDED that the Company will not be
required to (i) qualify generally to do business in any jurisdiction where it
would not otherwise be required to qualify but for this PARAGRAPH (d), (ii)
subject itself to taxation in any such jurisdiction or (iii) consent to general
service of process in any such jurisdiction;
(f) use its commercially reasonable efforts to cause the
Registrable Securities covered by such registration statement to be registered
with or approved by such other governmental agencies or authorities as may be
necessary by virtue of the business and operations of the Company to enable each
Selling Investor to consummate the disposition of such Registrable Securities;
(g) as promptly as reasonably practicable, advise each Selling
Investor (i) when a registration statement relating to the Registrable
Securities and any amendment thereto has been filed with the SEC and when the
registration statement relating to the Registrable Securities or any
post-effective amendment thereto has become effective; (ii) of the issuance by
the SEC or any other federal or state governmental authority of any stop order
suspending the effectiveness of the registration statement relating to the
Registrable Securities or the initiation or threatening of any proceedings for
that purpose; (iii) the happening of (but not the nature of or
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details concerning) any request, following the effectiveness of the registration
statement relating to the Registrable Securities under the Securities Act, by
the SEC or any other federal or state governmental authority for amendments or
supplements to any registration statement relating to the Registrable Securities
or related prospectus or for additional information relating to the registration
statement relating to the Registrable Securities; (iv) the receipt by the
Company of any notification with respect to the suspension of the qualification
or exemption from qualification of any of the Registrable Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for such
purpose; and (v) of the happening of (but not the nature of or details
concerning) any event that requires the making of any changes in the
registration statement relating to the Registrable Securities or the prospectus
so that, as of such date, the statements therein are not misleading and the
registration statement relating to the Registrable Securities or the prospectus,
as the case may be, does not include an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein (in the case of a prospectus, in light of the
circumstances under which they were made) not misleading;
(h) upon the occurrence of any event described in
SECTION 6(g)(iii) and 6(g)(v) hereof, as soon as reasonably practicable prepare
and file with the SEC a post-effective amendment to such registration statement
relating to the Registrable Securities or a supplement to the related prospectus
or any document which is incorporated or deemed to be incorporated by reference
in the registration statement relating to the Registrable Securities or
prospectus, as the case may be, so that, as thereafter delivered to purchasers
of the applicable Registrable Securities included therein, the registration
statement relating to the Registrable Securities and the prospectus, in each
case as then amended or supplemented, will not include an untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein (in the case of a
prospectus in light of the circumstances under which they were made) not
misleading and in the case of a post-effective amendment to the registration
statement relating to the Registrable Securities, use its commercially
reasonable efforts to cause it to be declared effective as promptly as is
reasonable practicable;
(i) if requested by the managing underwriter or underwriters or
any Selling Investor, immediately incorporate in a prospectus supplement or
post-effective amendment such information as the managing underwriters and the
Selling Investors agree should be included therein relating to the plan of
distribution with respect to such Registrable Securities, including, without
limitation, information with respect to the amount of Registrable Securities
being sold to such underwriters, the purchase price being paid therefor by such
underwriters and with respect to any other terms of the underwritten (or
commercially reasonable efforts underwritten) offering of the Registrable
Securities to be sold in such offering; and make all required filings of such
prospectus supplement or post-effective amendment as soon as notified of the
matters to be incorporated in such prospectus supplement or post-effective
amendment;
(j) cooperate with each Selling Investor and the managing
underwriters, if any, 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 and registered in such names as the managing underwriters or each
Investor, as the case may be, may request at least three (3) business days prior
to any sale of the Registrable Securities;
11
(k) use its commercially reasonable efforts to cause all such
Registrable Securities to be listed on each securities market or automated
quotation system on which similar securities issued by the Company are then
listed or quoted, and enter into such customary agreements including a listing
application and indemnification agreement in customary form, PROVIDED that the
applicable listing requirements are satisfied, and to provide a transfer agent
and registrar for such Registrable Securities covered by such registration
statement no later than the effective date of such registration statement;
(l) cooperate and assist in any filings required to be made with
each securities market or automated quotation system on which similar securities
then listed or quoted;
(m) enter into such customary agreements (including an
underwriting agreement in customary form) and take all such other actions as
each Selling Investor or the underwriters, if any, reasonably request in order
to expedite or facilitate the disposition of such Registrable Securities,
including customary indemnification and making appropriate members of senior
management of the Company available for customary participation in "road show"
presentations to potential investors;
(n) make available for inspection by each Selling Investor, the
Participating Investors' Counsel, any underwriter participating in any
disposition pursuant to such registration statement, and any attorney,
broker-dealer, accountant or other agent retained by such Selling Investor or
underwriter (collectively, the "INSPECTORS"), all financial and other records,
pertinent corporate documents and properties of the Company and its
subsidiaries, if any, as shall be reasonably necessary to enable them to
exercise their due diligence responsibility, and cause the Company's and its
subsidiaries' officers, directors and employees to supply all information and
respond to all inquiries reasonably requested by any such Inspector in
connection with such registration statement;
(o) use its commercially reasonable efforts to obtain (i) an
opinion or opinions of counsel to the Company and (ii) a "cold comfort" letter
or letters from the Company's independent public accountants in customary form
and covering such matters of the type customarily covered by opinions and "cold
comfort" letters as the Selling Investors reasonably request;
(p) otherwise use its commercially reasonable efforts to comply
with all applicable rules and regulations of the SEC, and make available to its
security holders, as soon as reasonably practicable, an earnings statement
covering a period of at least twelve months, beginning with the first fiscal
quarter after the effective date of the registration statement (as the term
"effective date" is defined in Rule 158(c) under the Securities Act), which
earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder or any successor provisions thereto; and
(q) promptly prior to the filing of any document which is to be
incorporated by reference into the registration statement or the prospectus
(after initial filing of the registration statement), provide copies of such
document to counsel to the Selling Investors and to the managing underwriters,
if any, make the Company's representatives available for discussion of
12
such document and make such changes in such document prior to the filing thereof
as counsel for any Selling Investor may reasonably request.
Each Selling Investor shall severally and not jointly (i) furnish to
the Company such information regarding the securities held by such Selling
Investor and the intended method of disposition thereof as the Company shall
reasonably request in connection with such registration and (ii) pay its own
Selling Expenses in connection with the registration and sale of the Registrable
Securities by such Selling Investor.
Each Selling Investor severally and not jointly agrees that, upon
receipt of any notice from the Company of the happening of any event of the kind
described in SECTION 6(g) (iii) AND (v) hereof, such Selling Investor will
forthwith discontinue disposition of Registrable Securities pursuant to the
registration statement covering such Registrable Securities until such Selling
Investor receives the copies of the prospectus supplement or amendment
contemplated by SECTION 6(h) hereof, and, if so directed by the Company, such
Selling Investor will deliver to the Company (at the Company's expense) all
copies, other than permanent file copies, then in such Selling Investor's
possession, of the prospectus covering such Registrable Securities.
7. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. In the event of any
registration of any securities of the Company under the Securities Act pursuant
to SECTION 2, SECTION 3 or SECTION 4 hereof, the Company will, and it hereby
does, indemnify and hold harmless, to the full extent permitted by law, each
Selling Investor, its directors and officers, employees, general partners,
limited partners, advisory directors and managing directors (and directors,
officers, partners, advisory directors and managing directors thereof), each
other person who participates as an underwriter in the offering or sale of such
securities and each other person, if any, who controls, is controlled by or is
under common control with such Selling Investor or any such underwriter within
the meaning of the Securities Act, against any and all losses, claims, damages
or liabilities, joint or several, and expenses (including any amounts paid in
any settlement effected with the Company's consent) to which such Selling
Investor, any such director, officer, employee, general partner, limited
partner, advisory director or managing director or any such underwriter or
controlling person may become subject under the Securities Act, state securities
or blue sky laws, common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) or
expenses arise out of or are based upon (a) any untrue statement or alleged
untrue statement of any material fact contained, in any registration statement
under which such securities were registered under the Securities Act, any
preliminary, final or summary prospectus contained therein, or any amendment or
supplement thereto, (b) any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or (c) any violation by the Company of any federal or
state rule or regulation applicable to the Company and relating to action
required of or inaction by the Company in connection with any such registration,
and the Company will reimburse such Selling Investor and each such director,
officer, employee, general partner, limited partner, advisory director, managing
director or each such underwriter and controlling person for any legal or any
other expenses reasonably incurred by them as such expenses are incurred in
connection with investigating or defending such loss, claim, liability, action
or proceeding; PROVIDED that the Company shall not be liable in any such case to
the extent that any
13
such loss, claim, damage, liability (or action or proceeding in respect thereof)
or expense arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in such registration statement or
amendment or supplement thereto or in any such preliminary, final or summary
prospectus in reliance upon and in conformity with written information furnished
to the Company through an instrument duly executed by such Selling Investor or
any such director, officer, employee, general or limited partner, managing
director or underwriter specifically stating that it is for use in the
preparation thereof. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of such Selling Investor or
any such director, officer, employee, general partner, limited partner, advisory
director, managing director, underwriter or controlling person and shall survive
the transfer of such securities by such Selling Investor.
(b) INDEMNIFICATION BY THE SELLING INVESTORS AND UNDERWRITERS. The
Company may require, as a condition to including any Registrable Securities in
any registration statement filed in accordance with SECTION 2, SECTION 3 or
SECTION 4 hereof, that the Company shall have received an undertaking reasonably
satisfactory to it from each Selling Investor or any underwriter, to severally
and not jointly indemnify and hold harmless (in the same manner and to the same
extent as set forth in PARAGRAPH (a) of this SECTION 7) the Company and its
directors, officers, employees, controlling persons and all other prospective
sellers and their respective directors, officers, general and limited partners,
managing directors, and their respective controlling persons with respect to any
statement or alleged statement in or omission or alleged omission from such
registration statement, any preliminary, final or summary prospectus contained
therein, or any amendment or supplement, if such statement or alleged statement
or omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company or its representatives through an
instrument duly executed by or on behalf of such Selling Investor or underwriter
specifically stating that it is for use in the preparation of such registration
statement, preliminary, final or summary prospectus or amendment or supplement.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of the Company or such Selling Investor,
underwriters or any of their respective directors, officers, employees, general
or limited partners, managing directors or controlling persons and shall survive
the transfer of such securities by such Selling Investor; PROVIDED, HOWEVER,
that such Selling Investor shall not be liable under this SECTION 7 for any
amounts exceeding the net proceeds actually received by such Selling Investor
from the sale of such Registrable Securities.
(c) NOTICES OF CLAIMS, ETC. Promptly after receipt by an
indemnified party hereunder of written notice of the commencement of any action
or proceeding with respect to which a claim for indemnification may be made
pursuant to this SECTION 7, such indemnified party shall, if a claim in respect
thereof is to be made against an indemnifying party, promptly give written
notice to the latter of the commencement of such action; PROVIDED that the
failure of any indemnified party to give notice as provided herein shall not
relieve the indemnifying party of its obligations under the preceding paragraphs
of this SECTION 7, except to the extent that the indemnifying party is actually
materially prejudiced by such failure to give notice. In case any such action is
brought against an indemnified party, unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim, the indemnifying party
will be entitled to participate in and, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, to the
14
extent that it may wish, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party for any legal or
other expenses subsequently incurred by the latter in connection with the
defense thereof, unless in such indemnified party's reasonable judgment a
conflict of interest between such indemnified and indemnifying parties arises in
respect of such claim after the assumption of the defense thereof, and the
indemnifying party will not be subject to any liability for any settlement made
without its consent (which consent shall not be unreasonably withheld). No
indemnifying party will consent to entry of any judgment or enter into any
settlement of any pending or threatened proceeding which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to all
indemnified parties of a release from all liability in respect to such claim or
litigation. Notwithstanding anything to the contrary contained herein, an
indemnifying party will not be obligated to pay the fees and expenses of more
than one counsel (together with appropriate local counsel) for all parties
indemnified by such indemnifying party with respect to such claim, unless in the
reasonable judgment of any indemnified party a conflict of interest may exist
between such indemnified party and any other of such indemnified parties with
respect to such claim, in which event the indemnifying party shall be obligated
to pay the fees and expenses of such additional counsel or counsels (together
with the fees of appropriate local counsel).
(d) CONTRIBUTION. If the indemnification provided for in this
SECTION 7 is unavailable to an indemnified party under SECTION 7(a) or SECTION
7(b) hereof in respect of any losses, claims, damages, liabilities or expenses
referred to therein, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages,
liabilities or expenses in such proportion as is appropriate to reflect the
relative benefits received by the indemnifying party on the one hand and the
indemnified party on the other, and the relative fault of the indemnifying party
on the one hand and of the indemnified party on the other in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative fault of the indemnifying party on the one hand and of the
indemnified party on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the indemnifying party or by the indemnified party and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The amount paid or payable by a party as a
result of the losses, claims, damages, liabilities and expenses referred to
above shall be deemed to include, subject to the limitations set forth in
SECTION 7(c), any legal or other fees or expenses reasonably incurred by such
party in connection with investigating or defending any action or claim.
The Company and each Selling Investor agree that it would not be just
and equitable if contribution pursuant to this SECTION 7(d) were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this SECTION 7(d), no Selling
Investor shall be required to contribute any amount in excess of the amount by
which the net proceeds actually received by such Selling Investor from the sale
of such Registrable Securities exceeds the amount of any damages which such
Selling Investor has
15
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 Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
8. MISCELLANEOUS.
(a) REMEDIES. The Company and each Investor acknowledge and agree
that in the event of any breach of this Agreement by any of them, such Investor
and the Company would be irreparably harmed and could not be made whole by
monetary damages. Each party accordingly agrees to waive the defense in any
action for specific performance that a remedy at law would be adequate and that
the parties, in addition to any other remedy to which they may be entitled at
law or in equity, shall be entitled to compel specific performance of this
Agreement.
(b) ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement and understanding of the parties hereto in respect of the subject
matter contained herein, and there are no restrictions, promises,
representations, warranties, covenants, or undertakings with respect to the
subject matter hereof, other than those expressly set forth or referred to
herein. This Agreement supersedes all prior agreements and understanding among
the parties hereto with respect to the subject matter hereof.
(c) NOTICES. All notices, demands, requests, consents, approvals
or other communications (each of the foregoing, a "NOTICE") required or
permitted to be given hereunder or pursuant hereto or that are given with
respect to this Agreement to any party hereto shall be in writing and shall be
(i) personally delivered, (ii) sent by both registered or certified mail,
postage prepaid and return receipt requested, and regular first class mail,
(iii) sent both by facsimile transmission with receipt of transmission confirmed
electronically or by telephone and by regular first class mail or (iv) sent by
reputable overnight courier service with charges prepaid and delivery confirmed,
to the intended recipient at its respective address as set forth below;
PROVIDED, that, if a party sending any Notice has received written notice in
accordance with this SECTION 8(c) of a more recent address for any intended
recipient referred to below, any Notice to such intended recipient shall be
delivered or sent to it at the most recent address of which such party has
received such a notice:
(i) if to the Company:
iPCS, Inc.
0000 Xxxxx Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
16
with a copy to:
Mayer, Brown, Xxxx & Maw LLP
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxx X. Xxxxxx, Esq.
Xxxxxx X. Wild, Esq.
(ii) if to any of the Investors, to the address listed below
such Investor's name on the signature pages or the joinders hereto.
Any Notice delivered or sent as provided above shall be deemed given when
so delivered or sent and shall be deemed received (i) when personally delivered,
(ii) three (3) business days after being mailed as above provided, (iii) when
sent by facsimile transmission as above provided, or (iv) one (1) business day
after being sent by courier as above provided; PROVIDED, however, that any
Notice specifying a new address to which any Notice shall be sent shall be
deemed received only when actually received.
(d) APPLICABLE LAW. The laws of the State of Delaware shall govern
the interpretation, validity and performance of the terms of this Agreement,
regardless of the law that might be applied under applicable principles of
conflicts of laws.
(e) SEVERABILITY. The invalidity, illegality or unenforceability
of one or more of the provisions of this Agreement in any jurisdiction shall not
affect the validity, legality or enforceability of the remainder of this
Agreement in such jurisdiction or the validity, legality or enforceability of
this Agreement, including any such provision, in any other jurisdiction, it
being intended that all rights and obligations of the parties hereunder shall be
enforceable to the fullest extent permitted by law.
(f) ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other parties hereto, which in the case of a proposed assignment
by the Company, shall require the prior written consent of the Investors holding
a majority of the Registrable Securities outstanding at the time such consent is
required. Subject to the preceding sentence, this Agreement shall be binding
upon and inure to the benefit of and be enforceable by the parties hereto and
their respective successors and permitted assigns. The parties agree that the
registration rights granted to the Investors under this Agreement may be
transferred or assigned by the Investors only to a transferee or assignee of
Registrable Securities, and provided that the Company is given prompt written
notice of such transfer or assignment (which notice shall state the name and
address of the transferee or assignee, identify the Registrable Securities with
respect to which such registration rights are being transferred or assigned, and
state whether the Investor has transferred its right to request a Demand
Registration (if such a right is then available to the Investor) to the
transferee or assignee) and the transferee or assignee of such rights agrees to
be bound by the terms of this Agreement by
17
executing and delivering to the Company a joinder in the form of EXHIBIT A
attached hereto no later than ten (10) days after such transfer or assignment.
(g) AMENDMENTS, WAIVERS. This Agreement may not be amended,
modified or supplemented and no waivers of or consents to departures from the
provisions hereof may be given unless consented to in writing by the Company and
Investors holding a majority of the Registrable Securities affected by such
amendment, modification, supplement or waiver of or consents to departures from
the provisions hereof, provided, however, that (i) no amendment, modification,
supplement, waiver or consent to any departure from the provisions of SECTION 6
hereof shall be effective as against any Investor unless consented to in writing
by such Investor and (ii) no amendment, modification, supplement, waiver or
consent which has a disproportionate adverse affect on any right or obligation
of an Initial Investor under this Agreement shall be effective against such
Initial Investor unless consented to in writing by such Initial Investor. Each
Investor shall be bound by any consent authorized by this SECTION 8(g). No delay
on the part of any party in the exercise of any right, power or remedy shall
operate as a waiver thereof, nor shall any single or partial exercise by any
party of any right, power or remedy preclude other or further exercise thereof,
or the exercise of any other right, power or remedy.
(h) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same Agreement.
(i) LIMITED LIABILITY. Notwithstanding any other provision of this
Agreement, neither the general partners, limited partners or managing directors,
or any directors or officers of any general or limited partner, advisory
director, nor any future general partners, limited partners, advisory director,
or managing directors, if any, of any Investor shall have any personal liability
for performance of any obligation of such Investor under this Agreement in
excess of the respective capital contributions of such general partners, limited
partners or managing directors to such Investor.
(j) RULE 144. Whether or not the Company is subject to the
requirements of Section 13, 14 or 15(d) of the Exchange Act, the Company
covenants that it will file any reports required to be filed by it under the
Securities Act and the Exchange Act so as to enable each Investor (subject to
the limitations set forth in this Agreement) to sell Registrable Securities
without registration under the Securities Act within the limitation of the
exemptions provided by (a) Rule 144 under the Securities Act, as such Rule may
be amended from time to time, or (b) any similar rule or regulation hereafter
adopted by the SEC. Upon the request of any Investor, the Company will deliver
to such Investor a written statement as to whether it has complied with such
requirements.
(k) HEADINGS. The headings and captions contained herein are for
convenience of reference only and shall not control or affect the meaning or
construction of any provision hereof.
[SIGNATURE PAGES FOLLOW]
18
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the date first written above.
IPCS, INC.
By: /s/ Xxxxxxx X. Xxxxx
--------------------
Name: Xxxxxxx X. Xxxxx
Title: President, Chief Executive Officer and
Secretary
[SIGNATURES CONTINUED ON NEXT PAGE]
19
AIG ANNUITY INSURANCE COMPANY
AIG LIFE INSURANCE COMPANY
AIG RETIREMENT SERVICES, INC.
(formerly AIG SunAmerica, Inc.)
SUNAMERICA LIFE INSURANCE
COMPANY
THE VARIABLE ANNUITY LIFE
` INSURANCE COMPANY
By: AIG Global Investment Corp. as Investment
Adviser
By: /s/ Xxxx Xxxxxxx
----------------
Name: Xxxx Xxxxxxx
Title: Vice President
Address:
c/o AIG Global Investment Corp.
0000 Xxxxx Xxxxxxx, Xxxxx X00-00
Xxxxxxx, Xxxxx 00000
Facsimile Number (000) 000-0000
[SIGNATURES CONTINUED ON NEXT PAGE]
20
VALIC COMPANY II STRATEGIC BOND
FUND
SUNAMERICA INCOME FUNDS -
SUNAMERICA HIGH YIELD BOND FUND
SUNAMERICA SERIES TRUST - HIGH
YIELD BOND PORTFOLIO (POLARIS)
SUNAMERICA INCOME FUNDS -
SUNAMERICA STRATEGIC BOND FUND
VALIC COMPANY II HIGH YIELD BOND FUND
By: AIG Global Investment Corp. as Investment
Sub-Adviser
By: /s/ Xxxx Xxxxxxx
----------------
Name: Xxxx Xxxxxxx
Title: Vice President
Address:
c/o AIG Global Investment Corp.
0000 Xxxxx Xxxxxxx, Xxxxx X00-00
Xxxxxxx, Xxxxx 00000
Facsimile Number (000) 000-0000
[SIGNATURES CONTINUED ON NEXT PAGE]
21
SPCP GROUP, LLC
By: Silver Point Capital, L.P.
its managing member
By: Silver Point Capital Management, LLC
its general partner
By: /s/ Xxxxxx X. Mule
------------------
Name: Xxxxxx X. Mule
Title: Managing Member
SILVER POINT CAPITAL FUND, L.P.
By: Silver Point Capital General Partner, LLC
its general partner
By: /s/ Xxxxxx X. Mule
------------------
Name: Xxxxxx X. Mule
Title: Managing Member
SILVER POINT CAPITAL OFFSHORE FUND,
LTD.
By: /s/ Xxxxxx X. Mule
------------------
Name: Xxxxxx X. Mule
Title: Director
Address for all Silver Point entities:
c/o Silver Point Capital
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Facsimile Number: (000) 000-0000
[SIGNATURES CONTINUED ON NEXT PAGE]
22
XXXXXXX X. XXXXX 2001 TRUST, DATED
SEPTEMBER 24, 2001
By: /s/ Xxxxxxx X. Xxxxx
--------------------
Name: Xxxxxxx X. Xxxxx
Its: Trustee
23
EXHIBIT A
JOINDER AGREEMENT
Reference is made to the Registration Rights Agreement, dated as of July
20, 2004 (the "Registration Rights Agreement"), by and among iPCS, Inc. and the
Investors, a copy of which is attached hereto as EXHIBIT 1. Capitalized terms
which are not otherwise defined herein are used with the meanings ascribed to
such terms in the Registration Rights Agreement.
Effective upon execution hereof, the undersigned hereby joins the
Registration Rights Agreement as an Investor, with all rights, duties and
obligations of an Investor arising pursuant to the Registration Rights
Agreement, and is hereby made a party to the Registration Rights Agreement as an
Investor.
IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the
___ day of __________, 200__.
---------------------------
By:
------------------------
Name:
----------------------
Its:
----------------------
Address for Notice:
---------------------------
---------------------------
---------------------------
24
