EXHIBIT 4.5
WARRANTS REGISTRATION RIGHTS AGREEMENT
WARRANTS REGISTRATION RIGHTS AGREEMENT, dated as of
July 26, 2000, (this "Agreement"), between CFW Communications Company, a
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Virginia corporation (the "Company"), and Xxxxxx Xxxxxxx & Co. Incorporated,
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First Union Securities, Inc. and SunTrust Equitable Securities Corporation (the
"Placement Agents").
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Pursuant to the terms of a Placement Agreement dated July 21, 2000
(the "Placement Agreement"), between the Company and the Placement Agents, the
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Company has agreed to issue and sell to the Placement Agents (the "Offering") an
aggregate of 280,000 warrants (each, a "Warrant"), each Warrant initially
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entitling the holder thereof to purchase 1.8 shares of Common Stock (as defined
below) of the Company at an exercise price of $47.58 per Common Share, as part
of 280,000 units (the "Units"), each Unit consisting of one 13% Senior Note due
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2010 of the Company (each a "Note" and collectively, the "Notes") to be issued
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pursuant to the provisions of an Indenture dated as of the date hereof (the
"Indenture") between the Company, as issuer, and The Bank of New York, as
trustee, and one Warrant. The Note and the Warrant included in each Unit will
become separately transferable at the close of business upon the earliest to
occur of (i) the date that is 180 days after the Closing Date (as defined
below), (ii) the commencement of an exchange offer with respect to the Notes
undertaken pursuant to the Notes Registration Rights Agreement (as defined
below), (iii) the effectiveness of a shelf registration statement with respect
to resales of the Notes, (iv) the commencement of an offer to purchase the Notes
upon a change of control, and (v) such date as determined by Xxxxxx Xxxxxxx &
Co. Incorporated in its sole discretion.
In consideration of the foregoing and of the mutual agreements
contained herein and in the Placement Agreement, the Company and the Warrant
Agent hereby agree as follows:
1. Definitions.
As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"Auditors" means, at any time, the independent auditors of the Company
at such time.
"Board" means the board of directors of the Company from time to
time.
"Closing Date" means the date hereof.
"Comfort Letter" has the meaning specified in Section 2 hereof.
"Commission" means the United States Securities and Exchange
Commission.
"Common Stock" means the common stock, no par value, of the Company.
"Common Shares" means the shares of the Common Stock of the Company.
"Company" has the meaning specified in the preamble to this Agreement.
"Expiration Date" means August 15, 2010.
"Holders" means the record holders of the Warrants and the holders of
Common Shares (or other securities) received upon exercise thereof.
"Indenture" has the meaning specified in the recitals to this
Agreement.
"Opinion" has the meaning specified in Section 2 hereof.
"Placement Agents" has the meaning specified in the recitals to this
Agreement.
"Placement Agreement" has the meaning specified in the recitals to
this Agreement.
"Registration Statement" has the meaning specified in Section 2
hereof.
"Resale Shelf" has the meaning specified in Section 2 hereof.
"Securities Act" means the United States Securities Act of 1933, as
amended.
"Units" has the meaning specified in the recitals to this Agreement.
"Warrant" has the meaning specified in the recitals to this Agreement.
"Warrant Agent" has the meaning specified in the preamble to this
Agreement.
"Warrant Agreement" means the Warrant Agreement dated the date hereof
between the Company and the Warrant Agent.
"Warrant Shares" means the Common Shares or such other Securities
issuable upon the exercise of the Warrants.
2. Shelf Registration.
(a) The Company shall use its best efforts to cause to be filed
pursuant to Rule 415 under the Securities Act a shelf registration statement on
the appropriate form (the "Registration Statement") covering the resale of the
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Warrants and underlying Warrant Shares and shall use its best efforts to cause
the Registration Statement to become effective under the Securities Act within
one year after the closing date of the Offering; provided, however, that in no
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event may the Registration Statement be declared effective prior to the first
anniversary of the Closing Date. The Company shall use reasonable efforts to
keep the Registration Statement continuously effective until such time as all
Warrants and all Warrant Shares have been resold, but not beyond August 15,
2011. Prior to filing the Registration Statement or any amendment thereto, the
Company shall provide a copy thereof to Xxxxxx Xxxxxxx & Co. Incorporated and
its counsel and afford them a reasonable time to comment thereon.
(b) The Company agrees to:
(i) make available for inspection by a representative of the Holders,
any underwriter participating in any disposition pursuant to the
Registration Statement and
attorneys and accountants designated by the Holders, at reasonable times
and in a reasonable manner, financial and other records, documents and
properties of the Company that are pertinent to the conduct of due
diligence customary for an underwritten offering, and cause the officers,
directors and employees of the Company to supply all information reasonably
requested by any such representative, underwriter, attorney or accountant
in connection with the Registration Statement;
(ii) use its best efforts to cause all Warrant Shares sold under the
Registration Statement to be listed on any securities exchange or any
automated quotation system on which similar securities issued by the
Company are then listed if requested by the Holders of Warrant Shares
representing a majority of the Warrants originally issued, to the extent
such Warrant Shares satisfy applicable listing requirements;
(iii) provide a reasonable number of copies of the prospectus
included in the Registration Statement to Holders that are selling Warrants
or Warrant Shares pursuant to the Registration Statement;
(iv) cause to be provided to the Warrant Agent, on behalf of the
Holders and beneficial owners of Warrants or Warrant Shares, upon the
effectiveness of the Registration Statement, a customary "10b-5" opinion of
independent counsel (an "Opinion") and a customary "cold comfort" letter of
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independent auditors (a "Comfort Letter");
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(v) cause to be provided to Holders and beneficial owners of Warrant
Shares an Opinion and Comfort Letter with respect to each Form 10-K and Form 10-
Q, including any amendments thereto, that is incorporated by reference in the
Registration Statement; and
(vi) notify the Warrant Agent, for distribution to the Holders, (A)
when the Registration Statement has become effective and when any post-effective
amendment thereto has been filed and becomes effective, (B) of any request by
the Commission or any state securities authority for amendments and supplements
to the Registration Statement or of any material request by the Commission or
any state securities authority for additional information after the Registration
Statement has become effective, (C) of the issuance by the Commission or any
state securities authority of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that purpose,
(D) if, between the effective date of the Registration Statement and the closing
of any sale of Warrants or Warrant Shares covered thereby, the representations
and warranties of the Company contained in any underwriting agreement,
securities sales agreement or other similar agreement, including this Agreement,
relating to disclosure cease to be true and correct in all material respects or
if the Company receives any notification with respect to the suspension of the
qualification of the Warrants or Warrant Shares for sale in any jurisdiction or
the initiation of any proceeding for such purpose, (E) of the happening of any
event during the period the Registration Statement is effective such that the
Registration Statement or the related prospectus contains an untrue statement of
a material fact or omits to state a material fact required to be stated therein
or necessary to make statements therein not misleading and (F) of any
determination by the Company that a post-effective amendment to a Registration
Statement would be appropriate. The Holders hereby agree to suspend use of the
prospectus contained in a Registration Statement upon receipt of such notice
under clause (E) or (F) above until the Company has amended or supplemented such
prospectus to correct such misstatement or omission.
(c) In the event the Registration Statement has not become effective
on the date that is one year from the Closing Date, the Company shall pay to
each Holder, $.05 per Warrant per week until such time as the Registration
Statement becomes effective.
3. Suspension.
Notwithstanding the foregoing, during any consecutive 365-day period,
the Company shall have the privilege to suspend availability of the Registration
Statement and the related prospectus for up to two 30-consecutive-day periods
per calendar year, except during the 30 days immediately prior to the Expiration
Date, if the Board determines in good faith that there is a valid purpose for
such suspension and provides notice of such determination to the Holders at
their addresses appearing in the register of Warrants maintained by the Warrant
Agent. Notice of such suspension shall be given promptly to the Warrant Agent.
4. Blue Sky.
The Company shall use its reasonable best efforts to register or
qualify the Warrant Shares proposed to be sold or issued pursuant to the
Registration Statement under all applicable securities or "blue sky" laws of all
jurisdictions in the United States in which any Holder of Warrants may or may be
deemed to resell the Warrant Shares, and shall use its reasonable best efforts
to maintain such registration or qualification through the earlier of (A) the
date upon which all Warrants and all Warrant Shares have been resold, under the
Registration Statement and (B) the Expiration Date; provided, however, that the
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Company shall not be required to (i) qualify as a foreign corporation or as a
broker or a dealer in securities in any jurisdiction where it would not
otherwise be required to qualify but for this Section 4, (ii) file any general
consent to service of process or (iii) subject itself to taxation in any
jurisdiction if it is not otherwise so subject.
5. Accuracy of Disclosure.
The Company (and its successors) represents and warrants to each
Holder (and each beneficial owner of a Warrant or Warrant Share) and agrees for
the benefit of each Holder (and each beneficial owner of a Warrant or Warrant
Share) that, except during any period in which the availability of the
Registration Statement has been suspended, (i) the Registration Statement and
the documents incorporated by reference therein will not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein not misleading; and (ii) the prospectus delivered to such
Holder or pursuant to which such Holder sells its Warrants or Warrant Shares, as
the case may be, and the documents incorporated by reference therein will not
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
6. Indemnity.
The Company hereby agrees to indemnify each beneficial owner of a
Warrant and each person, if any, who controls any beneficial owner of a Warrant
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Securities Exchange Act of 1934 (the "Exchange Act"), or is under common
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control with, or is controlled by, any beneficial owner of a Warrant (whether or
not it is, at the time the indemnity provided for in this Section 6 is sought,
such a beneficial owner), from and against all losses, damages or liabilities
which such beneficial owner
or any such controlling or affiliated person suffers as a result of any breach,
on the date of any resale of any Warrant or Warrant Share by such Holder, in
either case pursuant to the Registration Statement, of the representations,
warranties or agreements contained in Section 5. Each beneficial owner of a
Warrant Share sold pursuant to a Registration Statement, by accepting its
beneficial ownership of a Warrant, hereby (i) agrees to provide the Company with
information with respect to it that the Company reasonably requests in
connection with any Registration Statement and (ii) agrees, severally and not
jointly, to indemnify the Company, its directors and officers and each person,
if any, who controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act against any liability incurred
by it or such controlling person as a result of any misstatement of information
provided by such beneficial owner to the Company in writing expressly for
inclusion in the Registration Statement.
7. Expenses.
All expenses incident to the Company's performance of or compliance
with its obligations under this Agreement will be borne by the Company,
regardless of whether a Registration Statement becomes effective, including
without limitation (i) all Commission or National Association of Securities
Dealers, Inc. registration and filing fees, (ii) all reasonable fees and
expenses incurred in connection with compliance with state securities or "blue
sky" laws, (iii) all reasonable expenses of any persons incurred by or on behalf
of the Company in preparing or assisting in preparing, word processing, printing
and distributing any registration statement, any prospectus, any amendments or
supplements thereto and other documents relating to the performance of and
compliance with this Agreement, (iv) the reasonable fees (including legal fees
and expenses) and disbursements of the Warrant Agent, (v) the reasonable fees
and disbursements of counsel for the Company, (vi) the fees and disbursements,
if any, of the Auditors and (vii) the reasonable fees and disbursements of
counsel retained by the participating Holders but excluding the Holders' share
of underwriting discounts and commissions.
8. Miscellaneous.
(a) No Inconsistent Agreements. Each of the Company and the Warrant
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Agent represent to the other that it has not entered into, and agrees that on or
after the date of this Agreement it will not enter into, any agreement which is
inconsistent with the rights granted to the Holders of Warrants or Warrant
Shares in this Agreement or otherwise conflicts with the provisions hereof. The
Company represents that the rights granted to the Holders hereunder do not in
any way conflict with and are not inconsistent with the rights granted to the
holders of the Company's other issued and outstanding securities under any
agreements.
(b) Amendments and Waivers. The provisions of this Agreement,
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including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company and the Warrant Agent have obtained the
written consent of Holders of at least a majority of the outstanding Warrants
affected by such amendment, modification, supplement, waiver or consent;
provided that any amendment, modification or supplement to this Agreement which,
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in the good faith opinion of the Board of Directors of the Company (and
evidenced by a resolution of such board), does not adversely affect any Holder,
shall not be subject to such requirement for written consent.
(c) Notices. All notices and other communications provided for or
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permitted hereunder shall be made in writing by hand-delivery, registered first-
class mail, telex, telecopier, or any courier guaranteeing overnight delivery
(i) if to a Holder, at the most current address given by such Holder to the
Company by means of a notice given in accordance with the provisions of this
Section 8(c); (ii) if to the Company, initially at the Company's address set
forth in the Indenture and thereafter at such other address, notice of which is
given in accordance with the provisions of this Section 8(c); and (iii) if to
the Warrant Agent, initially at the Warrant Agent address set forth in the
Warrant Agreement and thereafter at such other address, notice of which is given
in accordance with the provisions of this Section 8(c).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and on
the next business day if timely delivered to an air courier guaranteeing
overnight delivery.
(d) Successors and Assigns. This Agreement shall inure to the benefit
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of and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation, subsequent Holders; provided that
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nothing herein shall be deemed to permit any assignment, transfer or other
disposition of Warrants in violation of the terms of the Placement Agreement or
the Warrant Agreement. If any transferee of any Holder shall acquire Warrants,
in any manner, whether by operation of law or otherwise, such Warrants shall be
held subject to all of the terms of this Agreement and the Warrant Agreement,
and by taking and holding such Warrants 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 or the Warrant Agreement and such person shall be entitled to
receive the benefits hereof.
(e) Purchases and Sales of Warrants. The Company shall not, and shall
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use its best efforts to cause its affiliates (as defined in Rule 405 under the
Securities Act) not to, purchase and then resell or otherwise transfer any
Warrants other than Warrants acquired and cancelled.
(f) Third Party Beneficiary. The Holders shall be third party
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beneficiaries to the agreements made hereunder between the Company and the
Warrant Agent, and each Holder shall have the right to enforce such agreements
directly to the extent it deems such enforcement necessary or advisable to
protect its rights or the rights of Holders hereunder.
(g) Counterparts. This Agreement may be executed in any number of
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counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
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reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. This Agreement shall be governed by the laws of
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the State of New York.
(j) Severability. In the event that any one or more of the provisions
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contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
CFW COMMUNICATIONS COMPANY
By: ______________________________
Name:
Title:
XXXXXX XXXXXXX & CO. INCORPORATED
FIRST UNION SECURITIES, INC.
SUNTRUST EQUITABLE SECURITIES CORPORATION
By: Xxxxxx Xxxxxxx & Co. Incorporated
By: ____________________________
Name:
Title:
