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EXHIBIT 4.21
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement, is made as of August 7, 2000, between
The First International Bank of Israel Ltd. ("Holder"), and Gilat-To-Home Inc.,
a Delaware corporation (the "Company").
Reference is made to (i) that certain Series C Convertible Preferred
Stock Purchase Warrant executed and delivered by the Company in favor of the
Holder and dated as of the date hereof (as amended from time to time, the
"Warrant"), pursuant to which, among other things, the Company will issue and
sell to the Holder, upon the terms set forth therein, shares of Series C
Convertible Preferred Stock, par value $0.05 per share, of the Company (the
"Series C Preferred Stock") and (ii) the "Debt Conversion Letter" dated as of
June 26, 2000, addressed to Bank Leumi USA, as agent for the lenders party to
the Financing Agreement (as defined below), by the Company, pursuant to which,
among other things, the Holder and all lenders may convert up to $10 million of
the principal amount of loans made pursuant to the Financing Agreement (as
defined below) into Series D Convertible Preferred Stock, par value $0.05 per
share, of the Company.
The Company agrees for the benefit of the Holder from time to time of the
Registrable Securities (as defined herein) as follows:
1. Definitions. (a) As used in this Agreement and except as otherwise
defined herein, the following defined terms shall have the following meanings:
"Affiliate" of any specified Person means any other Person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with such specified Person. For purposes of this definition, control of
a person means the power, direct or indirect, to direct or cause the direction
of the management and policies of such person whether by contract or otherwise.
"Applicable Securities" means, in relation to a Registration Statement,
the Registrable Securities identified in the related Demand Notice or Piggy-back
Notice.
"Business Day" means a day other than a Saturday, Sunday or other day on
which banks located in New York are authorized or required by law to close.
"Closing" means the closing of the transactions contemplated by the
Financing Agreement.
"Closing Date" means the date and the time that the Closing is effected.
"Commission" means the United States Securities and Exchange Commission.
"Common Stock" means the common stock, par value $0.05 per share, of the
Company (or such other security of the Company into which common stock may be
reconstituted).
"Debt Conversion Letter" shall have the meaning set forth in the
Recitals.
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"Demand Notice" means a notice given by the Holder pursuant to Section
2(a).
"Effectiveness Period" means, as to a Registration Statement, the period
during which such Registration Statement is effective.
"Effective Time" means the date on which the Commission declares a
Registration Statement effective or on which a Registration Statement otherwise
becomes effective.
"Electing Holder" means, with respect to a Registration, any Person that
has delivered a Demand Notice or a Piggy-back Notice hereunder or under the
Parallel Registration Rights Agreement.
"Exchange Act" means the United States Securities and Exchange Act of
1934, as amended.
"Financing Agreement" means the Financing Agreement dated as of June 26,
2000, by and among the Company, the financial institutions from time to time
party thereto, and Bank Leumi USA, as agent, as amended, supplemented or
otherwise modified from time to time.
"Holder" means The First International Bank of Israel Ltd., or its
registered assigns.
"Intended Offering Notice" shall have the meaning set forth in Section
3(a).
"Microsoft" means Microsoft G- Holdings, Inc., a Nevada corporation and a
wholly owned subsidiary of Microsoft Corporation, a Washington corporation.
"NASD Rules" means the Rules of the National Association of Securities
Dealers, Inc., as amended from time to time.
"Notice and Questionnaire" means a Notice of Registration Statement and
Questionnaire substantially in the form of Exhibit A hereto.
"Parallel Registration Rights Agreement" means the Registration Rights
Agreement, dated as of February 15, 2000, by and among Microsoft, the Company,
and Spacenet, as amended and joined pursuant to the Amendment and Joinder to
Registration Rights Agreement, dated as of April 11, 2000, by and among EchoStar
Communications Corporation, a Nevada corporation, Xxxxxx Xxxx Investors II L.P.,
FS Employee Investors LLC, Microsoft, the Company and Spacenet.
"Person" means an individual, partnership, corporation, trust, limited
liability company or unincorporated organization, or other entity or
organization, including a government or agency or political subdivision thereof.
"Piggy-back Notice" means a Notice given by the Holder pursuant to
Section 3(a) hereof or any other Person pursuant to Section 3(a) of the Parallel
Registration Rights Agreement.
"Preferred Stock" means Series C Preferred Stock and Series D Preferred
Stock issued by the Company pursuant to the Warrant or the Debt Conversion
Letter.
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"Prospectus" means the prospectus (including, without limitation, any
preliminary prospectus, any final prospectus and any prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
Registration Statement in reliance upon Rule 430A under the Securities Act)
included in Registration Statement, as amended or supplemented by any prospectus
supplement with respect to the terms of the offering of any portion of the
Applicable Securities covered by a Registration Statement or by all other
amendments and supplements to such prospectus, including all material
incorporated by reference in such prospectus and all documents filed after the
date of such prospectus by the Company under the Exchange Act and incorporated
by reference therein.
"Public Offering" shall mean, with respect to the Company, the earlier to
occur of (a) the completion of an underwritten sale of common equity interests
of the Company and (b) the time at which the Company becomes subject to the
periodic reporting requirements of Section 13 of the Exchange Act.
"Registrable Securities" means Underlying Stock, other than Unrestricted
Securities.
"Registration" means a registration under the Securities Act effected
pursuant to Section 2 or Section 3 hereof or Section 2 or 3 of the Parallel
Registration Rights Agreement.
"Registration Expenses" means all expenses incident to the Company's
performance of or compliance with any Registration of Registrable Securities,
including, without limitation, all registration, filing and National Association
of Securities Dealers, Inc. fees, fees of any stock exchange upon which the
Registrable Securities are listed, all fees and expenses of complying with
securities or blue sky laws, all word processing, duplicating and printing
expenses, messenger and delivery expenses, the fees and disbursements of counsel
for the Company and of its independent public accountants, including the
expenses of any special audits or "comfort" letters required by or incident to
such performance and compliance, premiums and other costs of policies of
insurance obtained by the Company against liabilities arising out of the public
offering of Registrable Securities being registered and any fees and
disbursements of underwriters customarily paid by issuers, but excluding fees
and disbursements of counsel retained by any Holders, premiums and other costs
of policies of insurance obtained by any Holders or their agents or underwriters
against liabilities arising out of the public offering of the Registrable
Securities being registered, any fees and disbursements of underwriters
customarily paid by sellers of securities who are not the issuers of such
securities and all underwriting discounts and commissions and transfer taxes, if
any, relating to Registrable Securities.
"Registration Statement" means a registration statement filed under the
Securities Act by the Company pursuant to the provisions of Section 2 or Section
3 hereof, or Section 2 or Section 3 of the Parallel Registration Rights
Agreement, including the Prospectus contained therein, any amendments and
supplements to such registration statement, including post-effective amendments
and all exhibits and all material incorporated by reference in such registration
statement.
"Rules and Regulations" means the published rules and regulations of the
Commission promulgated under the Securities Act or the Exchange Act, as in
effect at any relevant time.
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"Series C Preferred Stock" shall have the meaning set forth in the
Recitals to this Agreement.
"Series D Preferred Stock" shall have the meaning set forth in the
Recitals to this Agreement.
"Spacenet" means Spacenet Inc., a Delaware corporation and a wholly owned
subsidiary of Gilat Satellite Networks Ltd., a company organized under the laws
of Israel.
"Underlying Stock" means the Common Stock of the Holder and shares of
Common Stock issued upon the conversion of any Preferred Stock issued pursuant
to the Warrant or the Debt Conversion Letter.
"Unrestricted Securities" means any Underlying Stock that (i) has been
registered under an effective registration statement under the Securities Act,
(ii) has been transferred in compliance with Rule 144 under the Securities Act
(or any successor provision thereto) under circumstances in which any legend
relating to restrictions on transfer under the Securities Act is removed, (iii)
is transferable pursuant to paragraph (k) of Rule 144 (or any successor
provision thereto) or (iv) has otherwise been transferred and a new security not
subject to transfer restrictions under the Securities Act has been delivered
upon such transfer by or on behalf of the Company.
"Warrant" shall have the meaning set forth in the Recitals.
"$" means United States dollars.
(b) The words "include," "includes" and "including," when used in this
Agreement, shall be deemed to be followed by the words "without limitation."
(c) The words "hereof," "herein," and "hereunder" and words of similar
import, when used in this Agreement, shall refer to this Agreement as a whole
and not to any particular provision of this Agreement.
(d) The terms defined in the singular shall have a comparable meaning
when used in the plural, and vice versa.
2. Demand Registration. (a) The Holder shall have the right, at any
time after the Public Offering, to require the Company to register for offer and
sale under the Securities Act all or a portion of the Registrable Securities
then held by the Holder; it being understood that the Holder may exercise its
rights under this Section 2(a) on not more than three occasions in the
aggregate. As promptly as practicable after the Company receives a notice from
the Holder (a "Demand Notice") demanding that the Company register for offer and
sale under the Securities Act Registrable Securities consisting, as to each
Registration, of an amount of Registrable Securities held by the Holder having
an estimated market value of $5 million, subject to Section 2(b), the Company
shall (i) prepare and, within 60 days after such request, file with the
Commission a Registration Statement relating to the offer and sale of the
Applicable Securities on such form as the Company may reasonably deem
appropriate (provided that the Company shall not, unless the Company otherwise
consents, be obligated to register any securities on a
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"shelf" registration statement or otherwise to register securities for offer or
sale on a continuous or delayed basis) and, thereafter, (ii) use reasonable
efforts to cause such Registration Statement to be declared effective under the
Securities Act as promptly as practicable after the date of filing of such
Registration Statement. Subject to Section 2(b), the Company shall use
reasonable efforts to keep each Registration Statement continuously effective in
order to permit the Prospectus forming a part thereof to be usable by the Holder
for resales of Applicable Securities for an Effectiveness Period ending on the
earlier of (i) 30 days from the Effective Time of such Registration Statement or
(ii) such time as all of such Applicable Securities have been disposed of by the
Holder.
(b) The Company shall have the right to postpone (or, if necessary or
advisable, withdraw) the filing, or delay the effectiveness, of a Registration
Statement, or fail to keep such Registration Statement continuously effective or
not amend or supplement the Registration Statement or included Prospectus, if
(i) the filing or causing to be declared effective or keeping continuously
effective any such Registration Statement would require an audit of the
Company's financial statements at a time such audit would not otherwise be
required pursuant to the Exchange Act, (ii) the Company determines in good faith
and on the advice of counsel that it would be required to disclose in such
Registration Statement information which the Company has not otherwise publicly
disclosed and is not at the time required to publicly disclose, (iii) the
Company determines in good faith that such Registration would interfere with any
pending financing, acquisition, corporate reorganization or any other corporate
development involving the Company or any of its subsidiaries or (iv) within the
90 day period preceding the receipt by the Company of a Demand Notice, the
Company has effected any other registration of its securities; provided that the
Company may postpone a Demand Registration no more than once in any 18 month
period and that any such postponement period shall not exceed 90 days in the
aggregate. The Company shall advise the Holder of any such determination as
promptly as practicable.
(c) The Company may include in any registration requested pursuant to
Section 2(a) hereof other securities for sale for its own account or for the
account of another Person, subject to the following sentence. In connection with
an underwritten offering pursuant to Section 2(a) hereof, if the managing
underwriter or underwriters advise the Company that in its or their opinion the
number of securities requested to be registered exceeds the number which can be
sold in such offering, the Company shall include in such Registration the number
of securities that, in the opinion of such managing underwriter or underwriters,
can be sold as follows: (i) first, the Applicable Securities requested to be
registered, (ii) second, any other Registrable Securities requested to be
included in such Registration pursuant to Section 3(a) hereof and (iii) third,
any other securities requested to be included in such Registration.
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(d) The Holder shall have the right to withdraw such request for
Registration under Section 2(a) (i) prior to the time the Registration Statement
in respect of such Registration has been declared effective, (ii) upon the
issuance by a governmental agency or the Commission of a stop order, injunction
or other order which interferes with such Registration, (iii) upon the Company
availing itself of Section 2(b) hereof, or (iv) if the Holder is prevented
pursuant to Section 2(c) hereof from selling any of the Applicable Securities it
requested to be registered; it being understood that such Registration shall be
deemed not to have been requested for purposes of Section 2(a) hereof if the
Holder withdraws its request pursuant to clause (i), (ii), (iii) or (iv) above.
If the Holder withdraws a request made pursuant to Section 2(a) but the Company
nevertheless determines to complete, within 30 days after such withdrawal, the
Registration so requested as to securities other than the Applicable Securities,
the Holder shall be entitled to participate in such Registration pursuant to
Section 3 hereof, but in such case the Intended Offering Notice shall be
required to be given to the Holder at least 10 business days prior to the
anticipated filing date of the Registration Statement and the Holder shall be
required to give the Piggy-back Notice no later than 5 business day after the
Company's delivery of such Intended Offering Notice.
(e) In the event that any Registration pursuant to this Section 2
shall involve, in whole or in part, an underwritten offering, the managing
underwriter or underwriters shall be selected by the Company in good faith and
shall be reasonably satisfactory to the Holder.
3. Piggy-back Registration. (a) If at any time after a Public
Offering the Company intends to file on its behalf or on behalf of any of its
securityholders a registration statement in connection with a public offering of
any securities of the Company on a form and in a manner that would permit the
registration for offer and sale under the Securities Act of Registrable
Securities of the same class held by the Holder, other than a registration
statement on Form S-8 or Form S-4 (or any successor forms) or in any other
transaction of the type specified in Rule 145 under the Securities Act (or any
successor forms), then the Company shall give written notice (an "Intended
Offering Notice") of such intention to the Holder at least 20 Business Days
prior to the anticipated filing date of such registration statement. Such
Intended Offering Notice shall offer to include in such registration statement
for offer to the public such number of Registrable Securities as the Holder may
request subject to the conditions set forth herein, and shall specify, to the
extent then known, the number and class of securities proposed to be registered,
the proposed date of filing of such registration statement, any proposed means
of distribution of such securities, any proposed managing underwriter or
underwriters of such securities and a good faith estimate by the Company of the
proposed maximum offering price of such securities, as such price is proposed to
appear on the facing page of such registration statement. If the Holder desires
to have Registrable Securities included in such registration statement and
offered to the public it shall so advise the Company in writing (the written
notice of the Holder being a "Piggy-back Notice") not later than 10 Business
Days after the Company's delivery to the Holder of the Intended Offering Notice,
setting forth the number of Registrable Securities that the Holder desires to
have included in the registration statement and offered to the public. Upon the
request of the Company, the Holder shall enter into such underwriting, custody
and other agreements as shall be customary in connection with registered
secondary offerings or necessary or appropriate in connection with the proposed
offering.
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(b) In connection with an underwritten offering, if the managing
underwriter or underwriters advise the Company in writing that in its or their
opinion the number of securities proposed to be registered exceeds the number
that can be sold in such offering, the Company shall include in such
Registration the number of securities that, in the opinion of such managing
underwriter or underwriters, can be sold as follows: (i) first, the securities
that the Company proposes to sell on its own behalf or, if the Registration is
in response to a demand registration right of the Holder pursuant to Section
2(a) hereof, or any other Person pursuant to Section 2(a) of the Parallel
Registration Rights Agreement the Applicable Securities requested to be
registered pursuant to the applicable demand registration request, and (ii)
second, pro rata among the Applicable Securities requested to be included in
such Registration pursuant to the terms of Section 3(a) hereof and Section 3(a)
of the Parallel Registration Rights Agreement (iii) third, if any, securities
held by other shareholders of the Company who have requested that their
securities be included in such Registration Statement.
(c) The rights of the Holders pursuant to Section 2 hereof and this
Section 3 are cumulative, and the exercise of rights under one such Section
shall not exclude the subsequent exercise of rights under the other such Section
(except to the extent expressly provided otherwise herein). Subject to Section 2
hereof, the Company may abandon and/or withdraw any registration as to which
rights under Section 3 may exist at any time and for any reason without
liability hereunder. In such event, the Company shall promptly notify each
Person that has delivered a Piggy back Notice to participate therein.
4. Registration Procedures. In connection with a Registration
Statement, the following provisions shall apply:
(a) The Holder shall in a timely manner (i) deliver to the Company
and its counsel a duly completed Notice and Questionnaire and (ii) provide the
Company and its counsel with such other information as to itself as may be
required by law for inclusion in the Registration Statement.
(b) The Company shall furnish to the Holder, prior to the Effective
Time, a copy of the Registration Statement initially filed with the Commission,
and shall furnish to the Holder copies of each amendment thereto and each
amendment or supplement, if any, to the Prospectus included therein.
(c) Subject to Section 2(b) and in respect of a Registration
Statement under Section 2 (and not Section 3), the Company shall promptly take
such action as may be reasonably necessary so that (i) each of the Registration
Statement and any amendment thereto and the Prospectus forming part thereof and
any amendment or supplement thereto (and each report or other document
incorporated therein by reference in each case), when it becomes effective,
complies in all material respects with the Securities Act and the Exchange Act
and the respective rules and regulations thereunder, (ii) each of the
Registration Statement and any amendment thereto does not, when it becomes
effective, contain 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 not misleading and (iii) each of the Prospectus forming part of the
Registration Statement and any amendment or supplement to such Prospectus, does
not at any time during the period during which the Company is required to keep a
Registration Statement continuously effective
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under Section 2(a) include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(d) The Company shall, promptly upon learning thereof, advise the
Holder, and shall confirm such advice in writing if so requested by the Holder:
(i) when the Registration Statement and any amendment thereto
has been filed with the Commission and when the Registration Statement or
any post-effective amendment thereto has become effective;
(ii) of any request by the Commission for amendments or
supplements to the Registration Statement or the Prospectus included
therein or for additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for such purpose;
(iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the securities included
in the Registration Statement for sale in any jurisdiction or the
initiation of any proceeding for such purpose; and
(v) following the effectiveness of any Registration Statement,
of the happening of any event or the existence of any state of facts that
requires the making of any changes in the Registration Statement or the
Prospectus included therein so that, as of such date, such Registration
Statement and Prospectus do not contain an untrue statement of a material
fact and do not omit to state a material fact required to be stated
therein or necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they were made) not
misleading (which advice shall be accompanied by an instruction to the
Holder to suspend the use of the Prospectus until the requisite changes
have been made, which instruction the Holder agrees to follow).
(e) In respect of a Registration Statement under Section 2 (and not
Section 3), the Company agrees to use its reasonable best efforts to prevent the
issuance, and if issued to obtain the withdrawal, of any order suspending the
effectiveness of the Registration Statement at the earliest possible time.
(f) The Company shall furnish to the Holder, without charge, at least
one copy of the Registration Statement and all post-effective amendments
thereto, including financial statements and schedules, and, if the Holder so
requests in writing, all reports, other documents and exhibits that are filed
with or incorporated by reference in the Registration Statement.
(g) The Company shall, during the period during which the Company is
required to keep a Registration Statement continuously effective under Section
2(a) or elects to keep effective under Section 3(a), deliver to the Holder,
without charge, as many copies of the Prospectus (including each preliminary
Prospectus) included in the Registration Statement and any amendment or
supplement thereto as the Holder may reasonably request; and the Company
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consents (except during the continuance of any event described in Section 2(b)
or Section 4(d)(v) hereof) to the use of the Prospectus, with any amendment or
supplement thereto, by the Holder in connection with the offering and sale of
the Applicable Securities covered by the Prospectus and any amendment or
supplement thereto during such period.
(h) Prior to any offering of Applicable Securities pursuant to the
Registration Statement, the Company shall (1) use reasonable efforts to register
or qualify or cooperate with the Electing Holders and their respective counsel
in connection with the registration or qualification of such Applicable
Securities for offer and sale under any applicable securities or "blue sky" laws
of such jurisdictions within the United States as any Electing Holder may
reasonably request, (2) use reasonable efforts to keep such registrations or
qualifications in effect and comply with such laws so as to permit the
continuance of offers and sales in such jurisdictions for the period during
which the Company is required to keep a Registration Statement continuously
effective under Section 2(a) or elects to keep effective under Section 3(a) and
(3) take any and all other actions reasonably requested by an Electing Holder
which are necessary or advisable to enable the disposition in such jurisdictions
of such Applicable Securities; provided, however, that nothing contained in this
Section 4(h) shall require the Company to (A) qualify as a foreign corporation
or as a dealer in securities in any jurisdiction where it would not otherwise be
required to qualify but for this Section 4(h) or (B) take any action which would
subject it to general service of process or taxation in any such jurisdiction if
it is not then so subject.
(i) The Company shall, if requested by the Electing Holders, use
reasonable best efforts to cause all such Applicable Securities to be sold
pursuant to the Registration Statement to be listed on any securities exchange
on which securities of the Company are listed.
(j) The Company shall cooperate with the Electing Holders to
facilitate the timely preparation and delivery of certificates representing
Applicable Securities to be sold pursuant to the Registration Statement, which
certificates shall comply with the requirements of any securities exchange upon
which any securities of the Company are listed, and which certificates shall be
free of any restrictive legends and in such permitted denominations and
registered in such names as the Electing Holders may request in connection with
the sale of Applicable Securities pursuant to the Registration Statement.
(k) Subject to Section 2(b) hereof, upon the occurrence of any fact
or event contemplated by Section 4(d)(v) hereof, the Company shall promptly
prepare a post-effective amendment or supplement to the Registration Statement
or the Prospectus, or any document incorporated therein by reference, or file
any other required document so that, as thereafter delivered to purchasers of
the Applicable Securities included therein, the Prospectus will not include an
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading. In the event that the Company notifies the
Electing Holders of the occurrence of any event contemplated by Section 4(d)(v)
hereof, the Holder agrees, as a condition of the inclusion of any of the
Holder's Applicable Securities in the Registration Statement, to suspend the use
of the Prospectus until the requisite changes to the Prospectus have been made.
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(l) The Company shall enter into such customary agreements (including
an underwriting agreement in customary form in the event of an underwritten
offering) and take all other appropriate action in order to expedite and
facilitate the registration and disposition of the Registrable Securities, and
in connection therewith, if an underwriting agreement is entered into, cause the
same to contain indemnification provisions and procedures substantially
identical to those set forth in Section 6 hereof with respect to all parties to
be indemnified pursuant to Section 6 hereof.
(m) The Company shall use best efforts to:
(i) (A) make available for inspection by the Electing Holders,
any underwriter participating in any disposition pursuant to the
Registration Statement, and any attorney, accountant or other agent
retained by such Holders or any such underwriter all relevant financial
and other records, pertinent corporate documents and properties of the
Company and its subsidiaries, and (B) cause the Company's officers,
directors and employees to supply all information reasonably requested by
such Electing Holders or any such underwriter, attorney, accountant or
agent in connection with the Registration Statement, in each case, as is
customary for similar due diligence examinations; provided, however, that
all records, information and documents that are designated in writing by
the Company, in good faith, as confidential shall be kept confidential by
such Electing Holders and any such underwriter, attorney, accountant or
agent, unless such disclosure is made in connection with a court
proceeding or required by law, or such records, information or documents
become available to the public generally or through a third party without
an accompanying obligation of confidentiality; and provided further that,
if the foregoing inspection and information gathering would otherwise
disrupt the Company's conduct of it business, such inspection and
information gathering shall, to the greatest extent possible, be
coordinated on behalf of the Electing Holders and the other parties
entitled thereto by one counsel designated by and on behalf of the
Electing Holders and other parties;
(ii) in connection with any underwritten offering, obtain
opinions of counsel to the Company (which counsel and opinions (in form,
scope and substance) shall be reasonably satisfactory to the
underwriters) addressed to the underwriters, covering such matters
customarily covered in opinions requested in secondary underwritten
offerings of equity securities, to the extent reasonably required by the
applicable underwriting agreement;
(iii) in connection with any underwritten offering, obtain "cold
comfort" letters and updates thereof from the independent public
accountants of the Company (and, if necessary, from the independent
public accountants of any subsidiary of the Company or of any business
acquired by the Company for which financial statements and financial data
are, or are required to be, included in the Registration Statement),
addressed to each Electing Holder participating in such underwritten
offering (if such Electing Holder has provided such letter,
representations or documentation, if any, required for such cold comfort
letter to be so addressed) and the underwriters, in customary form and
covering matters of the type customarily covered in "cold comfort"
letters in connection with secondary underwritten offerings of Company
securities; and
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(iv) in connection with any underwritten offering, deliver such
documents and certificates as may be reasonably requested by any Electing
Holders participating in such underwritten offering and the underwriters,
if any, including, without limitation, certificates to evidence
compliance with any conditions contained in the underwriting agreement or
other agreements entered into by the Company.
(n) In respect of a Registration Statement under Section 2 (and not
Section 3), the Company shall use best efforts to take all other steps necessary
to effect the timely registration, offering and sale of the Applicable
Securities covered by the Registration Statement contemplated hereby.
5. Registration Expenses. The Company shall bear the Registration
Expenses in connection with the performance of its obligations under Sections 2,
3 and 4 hereof. The Electing Holders shall bear all other expenses relating to
any Registration or sale in which such Electing Holders participate, including
without limitation the fees and expenses of counsel to such Electing Holders and
any applicable underwriting discounts or commissions.
6. Indemnification and Contribution. (a) Upon the Registration of
Applicable Securities pursuant to Section 2 or 3 hereof, the Company shall
indemnify and hold harmless the Holder and each underwriter, selling agent or
other securities professional, if any, which facilitates the disposition of
Applicable Securities, and each of their respective officers and directors and
each person who controls the Holder, underwriter, selling agent or other
securities professional within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act (each such person being sometimes referred to
as an "Indemnified Person") against any losses, claims, damages or liabilities,
joint or several, to which such Indemnified Person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Registration Statement under which such Applicable Securities are to be
registered under the Securities Act, any Prospectus contained therein or
furnished by the Company to any Indemnified Person, or any amendment or
supplement thereto, or arise out of or are based upon the 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 otherwise arise out
of or are based upon the Registration Statement, and the Company hereby agrees
to reimburse such Indemnified Person for any legal or other expenses reasonably
incurred by it in connection with investigating or defending any such action or
claim as such expenses are incurred; provided, however, that the Company shall
not be liable to any such Indemnified Person in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in such Registration Statement or Prospectus, or amendment or supplement,
in reliance upon and in conformity with written information furnished to the
Company by such Indemnified Person or its agent expressly for use therein;
provided, further, however, that the Company shall not be liable to the extent
that any loss, claim, damage, liability (or action or proceeding in respect
thereof) or expense arises out of or is based upon (i) the use of any Prospectus
after such time as the obligation of the Company to keep the same effective and
current has expired, or (ii) the use of any Prospectus after such time as the
Company has advised the Holder in writing that a post-effective amendment or
supplement thereto is required, except such Prospectus as so amended or
supplemented; and
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provided, further, however, that the Company shall not be liable to any Person
who participates as an underwriter in the offering or sale of Registrable
Securities or any other Person, if any, who controls such underwriter within the
meaning of the Securities Act, to the extent that any loss, claim, damage,
liability (or action or proceeding in respect thereof) or expense arises out of
the matters described in the first proviso of this sentence or in (i) or (ii)
above or such Person's failure to send or give a copy of the final Prospectus or
supplement to the Persons asserting an untrue statement or alleged untrue
statement or omission or alleged omission at or prior to the written
confirmation of the sale of Registrable Securities to such Person if such
statement or omission was timely corrected in such final Prospectus or
supplement.
(b) The Holder agrees, as a consequence of the inclusion of any of the
Holder's Applicable Securities in such Registration Statement, and shall cause
each underwriter, selling agent or other securities professional, if any, which
facilitates the disposition of Applicable Securities to agree, as a consequence
of facilitating such disposition of Applicable Securities, severally and not
jointly, to (i) indemnify and hold harmless 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 losses, claims, damages or liabilities to which the Company or such
other Person may become subject, under the Securities Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in such Registration Statement or Prospectus, or
any amendment or supplement, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such Holder,
underwriter, selling agent or other securities professional or its agent
expressly for use therein, and (ii) reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with investigating or
defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by any Person entitled to indemnity (an
"Indemnitee") under Section 6(a) or (b) hereof of notice of the commencement of
any action or claim, such Indemnitee shall, if a claim in respect thereof is to
be made against an Indemnitor (an "Indemnitor") under this Section 6, notify
such Indemnitor in writing of the commencement thereof; but the omission so to
notify the Indemnitor shall not relieve it from any liability which it may have
to any Indemnitee except to the extent of any actual prejudice. In case any such
action shall be brought against any Indemnitee and it shall notify an Indemnitor
of the commencement thereof, such Indemnitor shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other Indemnitor
similarly notified, to assume the defense thereof, with counsel satisfactory to
such Indemnitee, and, after notice from the Indemnitor to such Indemnitee of its
election so to assume the defense thereof, such Indemnitor shall not be liable
to such Indemnitee under this Section 6 for any legal expenses of other counsel
or any other expenses, in each case subsequently incurred by such Indemnitee, in
connection with the defense thereof, unless the Indemnitee identifies issues
which would be reasonably likely to create a conflict of interest between the
Indemnitee and the Indemnitor, in which case the Indemnitee shall be entitled to
retain counsel and participate in the defense of the claim or
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demand at the expense of the Indemnitor. No Indemnitor shall, without the
written consent of the Indemnitee, effect the settlement or compromise of, or
consent to the entry of any judgment with respect to, any pending or threatened
action or claim in respect of which indemnification or contribution may be
sought hereunder (whether or not the Indemnitee is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the Indemnitee from all liability arising
out of such action or claim and (ii) does not include a statement as to, or an
admission of, fault, culpability or a failure to act, by or on behalf of any
Indemnitee.
(d) If the indemnification provided for in this Section 6 is
unavailable to or insufficient to hold harmless an Indemnitee under Section 6(a)
or (b) hereof in respect of any losses, claims, damages or liabilities (or
actions in respect thereof) referred to therein, then each Indemnitor shall
contribute to the amount paid or payable by such Indemnitee as a result of such
losses, claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative fault of the Indemnitor and
the Indemnitee in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities (or actions in respect thereof), as
well as any other relevant equitable considerations. The relative fault of such
Indemnitor and Indemnitee shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by such Indemnitor or by such Indemnitee, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be just
and equitable if contribution pursuant to this Section 6(d) were determined
solely by pro rata allocation (even if the Electing Holders or any underwriters,
selling agents or other securities professionals or all of them 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 in this Section 6(d).
The amount paid or payable by an Indemnitee as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above shall
be deemed to include any legal or other fees or expenses reasonably incurred by
such Indemnitee in connection with investigating or defending any such action or
claim. 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. The obligations
of the Electing Holders and any underwriters, selling agents or other securities
professionals in this Section 6(d) to contribute shall be several in proportion
to the percentage of principal amount of Applicable Securities registered or
underwritten, as the case may be, by them and not joint.
(e) Notwithstanding any other provision of this Section 6, in no event
will (i) the Holder be required to undertake liability to any Person under this
Section 6 for any amounts in excess of the dollar amount of the proceeds to be
received by such Holder from the sale of such Holder's Applicable Securities
(after deducting any fees, discounts and commissions applicable thereto)
pursuant to any Registration Statement under which such Applicable Securities
are to be registered under the Securities Act and (ii) any Underwriter, selling
agent or other securities professional be required to undertake liability to any
Person hereunder for any amounts in excess of the discount, commission or other
compensation payable to such Underwriter, selling agent or other securities
professional with respect to the Applicable Securities underwritten by it and
distributed to the public. The obligation of the Company under this Section 6
shall be in addition
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to any liability which the Company may otherwise have to any Indemnitee and the
obligations of any Indemnified Person under this Section 6 shall be in addition
to any liability which such Indemnified Person may otherwise have to the
Company. The remedies provided in this Section are not exclusive and shall not
limit any rights or remedies that may otherwise be available to an Indemnitee at
law or in equity.
7. Effectiveness; Termination. (a) This Agreement shall become
effective immediately upon the occurrence of the Closing.
(b) This Agreement shall terminate in the event that the Financing
Agreement is terminated prior to the Closing in accordance with its terms.
(c) In the event of the termination of this Agreement in accordance
with Section 7(b) hereof, this Agreement shall thereafter become void and have
no effect, and no party hereto shall have any liability to the other parties
hereto or their respective Affiliates, directors, officers or employees.
8. Miscellaneous. (a) This Agreement, including this Section 8(a),
may be amended, and waivers or consents to departures from the provisions hereof
may be given, only by a written instrument duly executed, in the case of an
amendment, by the Company and the Holder, or in the case of a waiver or consent,
by the party against whom the waiver or consent, as the case may be, is to be
effective. The Holder at the time of any such amendment, waiver or consent or
thereafter shall be bound by any amendment, waiver or consent effected pursuant
to this Section 8(a), whether or not any notice, writing or marking indicating
such amendment, waiver or consent appears on the Registrable Securities.
(b) All notices, requests and other communications to any party
hereunder shall be in writing (including facsimile transmission) and shall be
given as follows:
if to the Company, to:
c/o Spacenet Inc.
0000 Xxx Xxxxxx Xxxx
XxXxxx, Xxxxxxxx 00000
Attention: Zur Xxxxxxx
Fax: (000) 000-0000
if to the Holder, to:
The First International Bank of Israel Ltd.
Credit Department
------------------------
9 Ahad Ha'am
------------------------
Tel Aviv, Israel
------------------------
Attention:
-------------
Fax: 000-000-0-000-0000
-------------------
with a copy to:
Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx X. Xxxxxxx, Esq.
Fax:(000) 000-0000
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with a copy to:
Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
(c) The parties to this Agreement intend that the Holder shall be
entitled to receive the benefits of and shall be bound by the terms and
provisions of this Agreement. The terms and provisions of this Agreement shall
not be assignable or transferable and there shall be no third-party
beneficiaries hereto, except that the rights under this Agreement may be
assigned in whole or in part by the Holder to any transferee of (i) the Warrant,
(ii) rights under the Debt Conversion Letter, or (iii) Preferred Stock. All the
terms and provisions of this Agreement shall be binding upon, shall inure to the
benefit of and shall be enforceable by the respective legal successors and
permitted assigns of the parties hereto and any Holder.
(d) This Agreement may be executed in any number of counterparts and
by the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
(e) The headings in this Agreement are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof.
(f) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAWS.
(g) The provisions of this Agreement shall be deemed severable and the
invalidity or unenforceablity of any provision shall not affect the validity or
enforceability of the other provisions hereof. If any provisions of this
Agreement, or the application thereof to any Person or entity or any
circumstance, is invalid or unenforceable, (i) a suitable and equitable
provision shall be substituted therefor in order to carry out, so far as may be
valid and enforceable the intent of such provision and (ii) the remainder of
this Agreement and the application of such provision to other Persons, entities
or circumstances shall not be affected by such invalidity or unenforceability,
nor shall such invalidity or unenforceablity affect the validity or
enforceability of such provision, or the application thereof, in any other
jurisdiction.
(h) The respective indemnities, agreements, representations,
warranties and other provisions set forth in this Agreement or made pursuant
hereto shall remain in full force and effect, regardless of any investigation
(or any statement as to the results thereof) made by or on behalf of the Holder,
any director, officer or partner of the Holder, any agent or underwriter, any
director, officer or partner of such agent or underwriter, or any controlling
person of any of the foregoing, and shall survive the transfer and registration
of the Applicable Securities of such Holder.
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(i) The Holder shall cooperate with respect to any Registration
effected under this Agreement and shall provide such information, documents, and
instruments as may be reasonably requested in connection therewith.
(j) Within thirty (30) days of the date hereof the Company shall have
received consent to the Company's execution, delivery and performance of this
Agreement from each of the parties to the Parallel Registration Rights
Agreement, in which consent such parties shall agree that, to the extent that
this Agreement conflicts with the Parallel Registration Rights Agreement, the
terms of this Agreement shall govern until all of the Holder's Registrable
Securities have been registered pursuant to an effective Registration Statement.
The failure of the Company to obtain such consent within 30 days shall
constitute an "Event of Default" under the Financing Agreement (as such term is
defined therein)
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their respective authorized officers as of the day and year
first above written.
THE FIRST INTERNATIONAL BANK
OF ISRAEL LTD.
By: /s/ X. XXXXXXX /s/ X. XXXXXX
--------------------------------
Name:
Title:
GILAT-TO-HOME INC.
By: /s/ XXXX GAT
--------------------------------
Name:
Title:
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Exhibit A
[Name of Issuer]
Notice of Registration Statement
and
Selling Securityholder Questionnaire
[Date]
Reference is hereby made to the Registration Rights Agreement,
dated as of August 7, 2000 (the "Registration Rights Agreement") by and among
Gilat-To-Home Inc. (the "Company"), and The First International Bank of Israel
Ltd. The Company [has filed] with the United States Securities and Exchange
Commission (the "Commission") a registration statement on Form _______ (the
"Registration Statement") for the registration and resale under the Securities
Act of 1933, as amended (the "Securities Act"), of the Company's [Title of
Securities] (the "Securities"). All capitalized terms not otherwise defined
herein shall have the meanings ascribed thereto in the Registration Rights
Agreement.
Each Holder of Registrable Securities is entitled to have the
Registrable Securities owned by it included in the Registration Statement. In
order to have Registrable Securities included in the Registration Statement,
this Notice of Registration Statement and Selling Securityholder Questionnaire
("Notice and Questionnaire") must be completed, executed and delivered to the
Company's legal counsel at the address set forth herein. Holders of Registrable
Securities who do not complete, execute and return this Notice and Questionnaire
(i) will not be named as selling securityholders in the Registration Statement
and (ii) may not use the Prospectus forming a part thereof for resales of
Registrable Securities.
Certain legal consequences arise from being named as a selling
securityholder in the Registration Statement and related Prospectus.
Accordingly, Holders of Registrable Securities are advised to consult their own
securities law counsel regarding the consequences of being named or not being
named as a selling securityholder in the Registration Statement and related
Prospectus.
19
ELECTION
The undersigned Holder (the "Electing Holder") of Registrable
Securities hereby elects to request the inclusion in the Registration Statement
of the Registrable Securities beneficially owned by it and listed below in Item
(3). The undersigned, by signing and returning this Notice and Questionnaire,
agrees to be bound with respect to such Registrable Securities by the terms and
conditions of this Notice and Questionnaire and, if not a party thereto, the
Registration Rights Agreement, including, without limitation, Section 6 of the
Registration Rights Agreement, as if the undersigned Electing Holder were an
original party thereto.
The Electing Holder hereby provides the following information to
the Company and represents and warrants that such information is accurate and
complete:
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QUESTIONNAIRE
(1) (a) Full Legal Name of Electing Holder:
(b) Full Legal Name of Registered Holder (if not the same as in (a)
above) of Registrable Securities Listed in (3) below:
(2) Address for Notices to Electing Holder:
Telephone:
Fax:
Contact Person:
(3) Except as set forth below in this Item (3), the undersigned does not
beneficially own any Securities.
(a) Principal amount or number of Securities beneficially
owned:
(b) Principal amount or number of Registrable Securities which
the undersigned wishes to be included in the Registration
Statement:
---------
(4) Beneficial Ownership of Other Securities of the Company:
Except as set forth below in this Item (4), the undersigned Electing
Holder is not the beneficial or registered owner of any shares of or any
other securities of the Company, other than Securities listed above in
Item (3).
State any exceptions here:
(5) Relationships with the Company:
Except as set forth below, neither the Electing Holder nor any of its
affiliates, officers, directors or principal equity holders (5% or more)
has held any position or office or has
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had any other material relationship with the Company (or its predecessors
or affiliates) during the past three years.
State any exceptions here:
(6) Plan of Distribution:
Except as set forth below, the undersigned Electing Holder intends to
distribute the Registrable Securities listed above in Item (3) only as
follows (if at all): Such Registrable Securities may be sold from time to
time directly by the undersigned Electing Holder or, alternatively,
through underwriters, broker-dealers or agents. Such Registrable
Securities may be sold in one or more transactions at fixed prices, at
prevailing market prices at the time of sale, at varying prices
determined at the time of sale, or at negotiated prices. Such sales may
be effected in transactions (which may involve crosses or block
transactions) (i) on any national securities exchange or quotation
service on which the Registered Securities may be listed or quoted at the
time of sale, (ii) in the over-the-counter market, (iii) in transactions
otherwise than on such exchanges or services or in the over-the-counter
market, or (iv) through the writing of options. In connection with sales
of the Registrable Securities or otherwise, the Electing Holder may enter
into hedging transactions with broker-dealers, which may in turn engage
in short sales of the Registrable Securities in the course of hedging the
positions they assume. The Electing Holder may also sell Registrable
Securities short and deliver Registrable Securities to close out such
short positions, or loan or pledge Registrable Securities to
broker-dealers that in turn may sell such securities.
State any exceptions here:
By signing below, the Electing Holder acknowledges that it understands
its obligation to comply, and agrees that it will comply, with the provisions of
the Exchange Act and the rules and regulations thereunder, particularly
Regulation M.
In the event that the Electing Holder transfers all or any portion of the
Registrable Securities listed in Item (3) above after the date on which such
information is provided to the Company, the Electing Holder agrees to notify the
transferee(s) at the time of the transfer of its rights and obligations under
this Notice and Questionnaire and the Registration Rights Agreement.
By signing below, the Electing Holder consents to the disclosure of the
information contained herein in its answers to Items (1) through (6) above and
the inclusion of such information in the Registration Statement and related
Prospectus. The Electing Holder understands that such information will be relied
upon by the Company in connection with the preparation of the Registration
Statement and related Prospectus.
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In accordance with the Electing Holder's obligation under Section 4(a) of
the Registration Rights Agreement to provide such information as may be required
by law for inclusion in the Registration Statement, the Electing Holder agrees
to promptly notify the Company of any inaccuracies or changes in the information
provided herein which may occur subsequent to the date hereof at any time while
the Registration Statement remains in effect. All notices hereunder and pursuant
to the Registration Rights Agreement shall be made in writing, by hand-delivery,
first-class mail, or air courier guaranteeing overnight delivery as follows:
(i) To the Company:
(ii) With a copy to the Company's legal counsel:
Once this Notice and Questionnaire is executed by the Electing Holder and
received by the Company's legal counsel, the terms of this Notice and
Questionnaire, and the representations and warranties contained herein, shall be
binding on, shall inure to the benefit of and shall be enforceable by the
respective successors, heirs, personal representatives, and assigns of the
Company and the Electing Holder (with respect to the Registrable Securities
beneficially owned by such Electing Holder and listed in Item (3) above. THIS
AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS BY THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
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IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused
this Notice and Questionnaire to be executed and delivered either in person or
by its duly authorized agent.
Dated:
----------------------
[Electing Holder]
By:
-----------------------------------
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE [DEADLINE FOR RESPONSE] TO THE COMPANY'S LEGAL COUNSEL AT:
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