EXHIBIT 4.6
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is dated as of
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November ___, 1996, and is being made and entered into by and among XXXXX
COMMUNICATIONS INC., a Delaware corporation ("ACI"), and the individuals
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executing this Agreement (each, a "Holder," and collectively, the "Holders"),
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with reference to the following RECITALS:
R E C I T A L S
A. Pursuant to that certain Partnership Interest Purchase Agreement,
dated as of May 3, 1996, by and among ACI, Xxxxx Acquisition Sub, Inc., a Texas
corporation and a wholly owned subsidiary of ACI ("Merger Sub"), Hold Billing
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Services, Ltd., a Texas limited partnership ("Billing"), Hold Billing &
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Collection, L.C., a Texas limited liability company, and the Holders, as amended
by that certain First Amendment to Partnership Interest Purchase Agreement dated
as of November 7, 1996 by and among the same (the "Purchase Agreement") and
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pursuant to that certain Partnership Interest Option Agreement dated as of May
3, 1996 by and among ACI, Merger Sub, Xxxxxx X. Box and Xxxxx X. Xxxxxxx, Xx.,
as amended by that certain First Amendment to Partnership Interest Option
Agreement dated as of November 7, 1996 by and among the same (the "Option
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Agreement"), the Holders have been, or will be, issued shares (collectively, the
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"ACI Shares") of the common stock, par value $.01 per share (the "ACI Common
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Stock"), of ACI.
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B. To insure that the Holders will have liquidity in the future with
respect to their Registrable Stock (as defined below) the Holders wish to have
certain registration rights and ACI wishes to grant such rights to the Holders.
C. Unless the context otherwise requires, each capitalized term used
herein that is not defined herein shall have the same meaning as set forth in
the Purchase Agreement.
NOW, THEREFORE, in consideration of the recitals and of the respective
covenants, representations, warranties and agreements herein contained, and
intending to be legally bound hereby, the parties hereto hereby agree as
follows:
ARTICLE 1
REGISTRATION RIGHTS
SECTION 1.1 INCIDENTAL REGISTRATION.
1.1.1 PIGGYBACK RIGHTS OF HOLDERS. If at any time or times
from and after the first anniversary of the Closing Date, ACI intends
to file prior to the Expiration Date a Registration Statement on Form
X-0, X-0 or S-3 (or other appropriate form) for the
registration of equity securities of ACI with the Commission (other
than a (i) Registration Statement on Form S-4 (or any successor form)
or relating to a corporate reorganization or other transaction under
Rule 145, (ii) Registration Statement relating to securities issued
pursuant to, or interests in, an employee benefit plan for the
employees of ACI or its affiliates or (iii) Registration Statement on a
form which does not permit the inclusion of securities sold in a
secondary offering), then ACI shall notify each Holder at least 30 days
prior to each such filing of ACI's intention to file such a
Registration Statement. Such notice shall state the amount and type of
securities proposed to be registered thereby. Upon the written request
of a Holder or Holders (each, a "Holder Request," and collectively, the
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"Holder Requests") given within 20 days after receipt of any such
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notice stating the number of shares of Registrable Stock to be disposed
of by such Holder or Holders and the intended method of disposition,
ACI will use reasonable efforts to cause the aggregate of the
Registrable Stock designated in the Holder Requests to be included in
such registration so as to permit the disposition (in accordance with
the methods specified in the Holder Request(s)) by such Holder or
Holders of the Registrable Stock so registered, subject to the
reductions specified in Sections 1.1.2 and 1.1.3, as applicable. The
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Holders shall be entitled, subject to such reductions, to participate
in an unlimited number of such registrations.
1.1.2 REDUCTIONS REGISTRABLE STOCK TO BE INCLUDED. If the
registration proposed by ACI involves an underwritten offering of the
ACI Securities, whether or not for sale for the account of ACI, to be
distributed (on a best efforts or firm commitment basis) by or through
one or more underwriters, and the managing underwriter of such
underwritten offering shall advise ACI in writing that, in its opinion,
the registration of all or a specified portion of Registrable Stock
concurrently with the ACI Securities will adversely affect the
distribution of such ACI Securities by such underwriters, then ACI may
require, by written notice to each such Holder, that the distribution
of all or a specified portion of such Registrable Stock be excluded
from such registration in accordance with Section 1.6.
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1.1.3 WITHDRAWALS. ACI may in its discretion withdraw any
Registration Statement filed pursuant to this Section 1.1 subsequent to
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its filing and prior to its effective date without liability to the
Holders, other than to pay expenses pursuant to Section 1.4.
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SECTION 1.2 INDEMNITY.
(a) ACI will, and hereby does, indemnify, to the extent
permitted by law, each Holder, its officers and directors, if any, and
each Person, if any, who controls such Holder within the meaning of
Section 15 of the Securities Act, against all losses, claims, damages,
liabilities (or proceedings in respect thereof) and expenses (under the
Securities Act or common law or otherwise), joint or several, caused by
any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement (as declared effective) or
prospectus filed under Rule 424(b) under the Securities Act (and
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as amended or supplemented if ACI shall have furnished any amendments
or supplements thereto) or any preliminary prospectus or caused by 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, except insofar as:
(i) such losses, claims, damages, liabilities (or
proceedings in respect thereof) or expenses are caused by any
untrue statement or alleged untrue statement made in reliance
on or in conformity with any information furnished in writing
to ACI by such Holder expressly for use therein; or
(ii) in the case of any registration that is not an
underwritten offering, such losses, claims, damages,
liabilities (or proceedings in respect thereof) or expenses
result from such Holder selling Registrable Stock to a Person
asserting the existence of an untrue statement or alleged
untrue statement or omission or alleged omission in a
preliminary prospectus and to whom there was not given or
sent, at or prior to the written confirmation of the sale of
such Registrable Stock, a copy of the final prospectus or the
final prospectus as then amended or supplemented but only if
such statement or omission was corrected in such final
prospectus or amended or supplemented final prospectus prior
to such written confirmation and such Holder was given notice,
prior to such written confirmation, of the availability of, or
that ACI was preparing, such final prospectus or amended or
supplemented final prospectus.
If the offering pursuant to any Registration Statement provided for
under this Agreement is made through underwriters, no action or failure
to act on the part of such underwriters (whether or not such
underwriter is an Affiliate of any Holder) shall affect ACI's
obligations to indemnify any Holder or any other Person pursuant to the
preceding sentence. It is agreed that the indemnity agreement contained
in this Section 1.2(a) shall not apply to amounts paid in settlement of
any such loss, claim, damage, liability, or action if such settlement
is effected without the consent of ACI (which consent has not been
unreasonably withheld).
(b) In connection with any Registration Statement in which a
Holder is participating, each such Holder will indemnify, to the extent
permitted by law, ACI, its officers, directors, partners, legal
counsel, and accountants, and each underwriter, if any, of ACI
Securities covered by such Registration Statement, and each Person, if
any, who controls ACI or such underwriter within the meaning of Section
15 of the Securities Act, each other Holder and Other Stockholder, and
each of their officers, directors, and partners, and each Person
controlling such other Holder or Other Stockholder against any losses,
claims, damages, liabilities (or proceedings in respect thereof) and
expenses (under the Securities Act or common law or otherwise)
resulting from any untrue statement or alleged untrue statement of a
material fact or any omission or alleged omission of a material fact
required to be stated in the Registration Statement (as declared
effective) or prospectus filed under Rule 424(b) under the Securities
Act or preliminary prospectus or
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any amendment thereof or supplement thereto, or necessary to make the
statements therein not misleading, but only to the extent that:
(i) such untrue statement is made in reliance on or
in conformity with any information furnished in writing by
such Holder expressly for use therein; or
(ii) in the case of any registration that is not an
underwritten offering, such losses, claims, damages,
liabilities (or proceedings in respect thereof) or expenses
resulting from such Holder selling Registrable Stock to a
Person asserting the existence of an untrue statement or
alleged untrue statement or omission or alleged omission in a
preliminary prospectus and to whom there was not given or
sent, at or prior to the written confirmation of the sale of
such Registrable Stock, a copy of the final prospectus or of
the final prospectus as then amended or supplemented but only
if such statement or omission was corrected in such final
prospectus or amended or supplemented final prospectus prior
to such written confirmation and such Holder was given notice,
prior to such written confirmation, of the availability of, or
that ACI was preparing, such final prospectus or amended or
supplemented final prospectus;
provided, however, that the obligations of such Holder hereunder shall
not apply to amounts paid in settlement of any such claims, losses,
damages, or liabilities (or actions in respect thereof) if such
settlement is effected without the consent of such Holder (which
consent has not been unreasonably withheld); and provided further that
such Holder's obligations under this Section 1.2.(b) shall be limited
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to an amount equal to the gross proceeds to such Holder of the
Registrable Stock sold pursuant to such Registration Statement.
(c) Any Person entitled to indemnification under the
provisions of Section 1.2.(a) or (b) shall (i) give prompt notice to
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the indemnifying party of any claim with respect to which it seeks
indemnification, and (ii) unless in the opinion of counsel reasonably
satisfactory to the indemnifying party a conflict of interest between
such indemnified and indemnifying parties may exist in respect of such
claim, permit such indemnifying party to assume the defense of such
claim, with counsel reasonably satisfactory to the indemnified party
(who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party); and if such defense is so assumed,
such indemnifying party shall not enter into any settlement without the
consent of the indemnified party if such settlement attributes
liability to the indemnified party and such indemnifying party shall
not be subject to any liability for any settlement made without its
consent (which shall not be unreasonably withheld); and any
underwriting agreement entered into with respect to any Registration
Statement provided for under this Agreement shall so provide. In the
event an indemnifying party shall not be entitled, or elects not, to
assume the defense of a claim, such indemnifying party shall not be
obligated to pay the fees and expenses of more than one counsel or firm
of counsel for all parties indemnified by such indemnifying party in
respect of such claim. Such
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indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of a participating Holder, its
officers, directors or any Person, if any, who controls such Holder as
aforesaid, and shall survive the transfer of such securities by such
Holder.
(d) If for any reason the foregoing indemnity is unavailable,
then the indemnifying party shall contribute to the amount paid or
payable by the indemnified party as a result of such losses, claims,
damages, liabilities or expenses (i) 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 or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law or provides a lesser sum to the indemnified
party than the amount hereinafter calculated, in such proportion as is
appropriate to reflect not only the relative benefits received by the
indemnifying party on the one hand and the indemnified party on the
other but also the relative fault of the indemnifying party and the
indemnified party as well as any other relevant equitable
considerations. Notwithstanding the foregoing, no Holder shall be
required to contribute any amount in excess of the amount such Holder
would have been required to pay to an indemnified party if the
indemnity under Section 1.2.(a) or (b), as applicable, was available.
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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 relative fault of the indemnifying party and of
the Indemnified Party shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material
fact or the 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.
(e) An indemnifying party shall make payments of all amounts
required to be made pursuant to the foregoing provisions of this
Section 1.2 to or for the account of the indemnified party from time to
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time promptly upon receipt of bills or invoices relating thereto or
when otherwise due and payable.
(f) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the
underwriting agreement entered into in connection with the underwritten
public offering are in conflict with the foregoing provisions, the
provisions in the underwriting agreement shall control.
SECTION 1.3 REGISTRATION PROCEDURES.
(a) Whenever the Holders have properly requested that any
Registrable Stock be registered pursuant to Section 1.1, ACI will use
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reasonable efforts to effect the registration in furtherance of the
sale of such Registrable Stock in accordance with the intended method
of disposition thereof, and in connection with any such request ACI
will:
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(i) prepare and file with the Commission 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
such period (not to exceed 90 days) as will terminate when all
Registrable Stock covered by such Registration Statement have
been sold 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;
(ii) furnish to each seller of Registrable Stock 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), each amendment and supplement thereto and such
other documents as such seller may reasonably request in order
to facilitate the disposition of the Registrable Stock owned
by such seller;
(iii) use reasonable efforts to register or qualify
such Registrable Stock under such other securities or blue sky
laws of such jurisdictions as any seller reasonably requests
and do any and all other acts and things which may be
reasonably necessary or advisable to enable such seller to
consummate the disposition in such jurisdictions of the
Registrable Stock owned by such seller; provided, however,
that ACI will not be required to (A) qualify generally to do
business or subject itself to taxation in any jurisdiction
where it would not otherwise be required to qualify or be
subject but for this subparagraph (iii), or (B) consent to
general service of process in any such jurisdiction;
(iv) use reasonable efforts to cause the Registrable
Stock covered by such Registration Statement to be registered
with or approved by such other Governmental Authorities as may
be reasonably necessary by virtue of the business and
operations of ACI to enable the seller or sellers thereof to
consummate the disposition of such Registrable Stock;
(v) (A) notify each seller of such Registrable
Stock, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, of the
happening of any event as a result of which the prospectus
included in such Registration Statement contains an untrue
statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading, and (B) prepare a
supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of such Registrable
Stock, such prospectus will not contain an untrue statement of
a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein
not misleading;
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(vi) (A) use reasonable efforts to cause all
Registrable Stock to be listed on each securities exchange or
stock market on which the Common Stock is then listed or
quoted, and (B) unless the same already exists, provide a
transfer agent, registrar and CUSIP number for all Registrable
Stock not later than the effective date of the Registration
Statement;
(vii) make available for inspection at the offices of
ACI during regular business hours by any seller of Registrable
Stock, any underwriter participating in any disposition
pursuant to such Registration Statement and any attorney,
accountant or other agent retained by any such seller or
underwriter, such financial and other records, pertinent
corporate documents and properties of ACI as shall be
reasonably requested by them and be necessary to enable them
to exercise their due diligence responsibility; and
(viii) use its reasonable efforts to otherwise comply
with all applicable rules and regulations of the Commission.
(b) In connection with any registration effected pursuant to
this Section 1.1, the Holders who have requested that their securities
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be registered pursuant to such Registration Statement shall provide to
ACI such information as may be reasonably requested by ACI to be
required for inclusion in such Registration Statement pursuant to the
Securities Act and the rules and regulations thereunder.
(c) Each Holder agrees by acquisition of such Registrable
Stock and the registration rights thereunder that, upon receipt of any
notice from ACI of the happening of any event of the kind described in
Section 1.3(a)(v), such Holder will forthwith discontinue disposition
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of Registrable Stock pursuant to the Registration Statement covering
such Registrable Stock until such Holder's receipt of the copies of the
supplemented or amended prospectus contemplated by such Section
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1.3(a)(v), and, if so directed by ACI, such Holder will deliver to ACI
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(at ACI's expense) all copies, other than permanent file copies then in
such Holder's possession, of the prospectus covering such Registrable
Stock current at the time of receipt of such notice. In the event ACI
shall give any such notice, the period mentioned in Section 1.3(a)(i)
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shall be extended by the number of days during the period from and
including the date of the giving of such notice pursuant to Section
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1.3(a)(v) to and including the date when each seller of Registrable
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Stock covered by such Registration Statement shall have received the
copies of the supplemented or amended prospectus contemplated by such
Section 1.3(a)(v).
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SECTION 1.4 EXPENSES. All Registration Expenses incurred in effecting
any registration, qualifications or compliance pursuant to this Agreement, shall
be borne by ACI. All Selling Expenses relating to Registrable Stock so
registered shall be borne by such Holders, pro rata according to the quantity of
Registrable Stock included in such registration along with any other expenses in
connection with the registration required to be borne by the Holders of such
Registrable Stock.
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SECTION 1.5 LIMITATION ON REGISTRATION. Notwithstanding the foregoing,
under no circumstances will ACI be obligated to cause any registration effected
pursuant to this Agreement to remain effective after the Expiration Date or to
include any Registrable Stock in a Registration Statement which becomes
effective after the Expiration Date.
SECTION 1.6 ALLOCATION OF REGISTRATION OPPORTUNITIES. In any
circumstance in which the Registrable Stock and other shares of ACI Common Stock
(including shares of common stock issued or issuable upon conversion of shares
of any currently unissued series of preferred stock of ACI) with registration
rights (the "Other Shares") requested to be included in a registration on behalf
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of the Holders or other selling stockholders ("Other Stockholders") cannot be so
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included as a result of limitations of the aggregate number of shares of
Registrable Stock and Other Shares that may be so included, the number of shares
of Registrable Stock and Other Shares that may be so included shall be allocated
among the Holders and Other Stockholders requesting inclusion of shares pro rata
on the basis of the number of shares of Registrable Stock and Other Shares that
would be held by such Holders and Other Stockholders, assuming conversion;
provided, however that such allocation shall not operate to reduce the aggregate
number of Registrable Stock and Other Shares to be included in such
registration, if any Holder or Other Stockholder does not request inclusion of
the maximum number of shares of Registrable Stock and Other Shares allocated to
him pursuant to the above-described procedure, the remaining portion of his
allocation shall be reallocated among those requesting Holders and Other
Stockholders whose allocations did not satisfy their requests pro rata on the
basis of the number of shares of Registrable Stock and Other Shares which would
be held by such Holders and Other Stockholders, assuming conversion, and this
procedure shall be repeated until all of the shares of Registrable Stock and
Other Shares which may be included in the registration on behalf of the Holders
and Other Stockholders have been so allocated.
SECTION 1.7 DELAY OF REGISTRATION. No Holder shall have any right to
take any action to restrain, enjoin, or otherwise delay any registration as the
result of any controversy that might arise with respect to the interpretation or
implementation of this Section 1.
ARTICLE 2
UNDERWRITTEN OFFERINGS
SECTION 2.1 UNDERWRITING ARRANGEMENTS. If ACI or holders of securities
initially requesting or demanding such registration have determined to enter
into an underwriting agreement in connection therewith, all shares constituting
Registrable Stock to be included in such registration shall be subject to such
underwriting agreement and no Person may participate in such registration unless
such Person agrees to sell such Person's securities on the basis provided in the
underwriting arrangements approved by such Persons so determining to enter
therein and completes and executes all questionnaires, indemnities, underwriting
agreements and other reasonable documents which must be executed under the terms
of such underwriting arrangements.
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If requested by the underwriters for any underwritten offering of
Registrable Stock, ACI will enter into an underwriting agreement that shall
contain such representations and warranties by ACI and such other terms and
provisions as are customarily contained in underwriting agreements with respect
to secondary distributions.
SECTION 2.2 SELECTION OF UNDERWRITERS. If ACI at any time proposes to
register any ACI Securities for sale for its own account and such securities are
to be distributed by or through one or more underwriters, the selection of the
underwriter(s), including, without limitation, the managing underwriter(s),
shall be made by ACI.
SECTION 2.3 HOLDBACK AGREEMENTS. If any registration pursuant to this
Agreement shall be in connection with an underwritten public offering, each
Holder agrees, if so required by the managing underwriter, not to effect any
public sale or distribution of Registrable Stock (other than as part of such
underwritten public offering) within 30 days prior to the effective date of such
Registration Statement or 18 months after the effective date of such
Registration Statement.
ARTICLE 3
DEFINITION AND CONSTRUCTION
SECTION 3.1 DEFINITION OF CERTAIN TERMS.
Except as otherwise expressly provided or unless the context otherwise
requires, the terms defined in this Section 3.1, whenever used in this
Agreement, shall have the respective meanings assigned to them in this Section
for all purposes of this Agreement, and include the plural as well as the
singular.
As used herein, the following terms have the following meanings:
ACI: as defined in the first paragraph of this agreement.
ACI COMMON STOCK: as defined in the Recitals to this Agreement.
ACI SECURITIES: securities issued by ACI.
ACI SHARES: as defined in the Recitals to this Agreement.
AGREEMENT: this instrument as originally executed, or as it may be from
time to time supplemented or amended by one or more supplements or
amendments hereto entered pursuant to the applicable provisions hereof.
ACQUISITION: the acquisition by ACI of Billing pursuant to the Purchase
Agreement and Option Agreement.
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COMMISSION: the United States Securities and Exchange Commission and
any successor federal agency having similar powers.
EXPIRATION DATE: the earlier of (i) three years from the date hereof,
or (ii) the earliest date on which any Holder may sell shares of
Registrable Stock under Section (k) of Rule 144 (or any successor
provision).
GOVERNMENTAL AUTHORITY: the United States of America, any state or
other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government within any such jurisdiction.
HOLD: as defined in the Recitals to this Agreement.
HOLDER: as defined in the first paragraph of this Agreement.
HOLDERS: as defined in the first paragraph of this Agreement.
HOLDER REQUEST: as defined in Section 1.1.1.
HOLDER REQUESTS: as defined in Section 1.1.1.
MERGER SUB: as defined in the Recitals to this Agreement.
NASDAQ: The Nasdaq Stock Market, including both the National Market
System and the Small Cap System.
OPTION AGREEMENT: as defined in the Recitals to this Agreement.
OTHER SHARES: as defined in Section 1.6.
OTHER STOCKHOLDERS: as defined in Section 1.6.
PERSON: any individual, corporation (including a business trust) joint
stock company, partnership, joint venture, trust, estate, limited
liability company, unincorporated association, unincorporated
organization, Governmental Authority or any other entity.
PURCHASE AGREEMENT: as defined in the Recitals to this Agreement.
REGISTER, REGISTERED AND REGISTRATION: refer to a registration effected
by filing a Registration Statement in compliance with the Securities
Act, and the declaration or ordering by the Commission of the
effectiveness of such Registration Statement.
REGISTRABLE STOCK: the ACI Shares held by the Holders from time to time
and all shares of Common Stock issued by ACI in respect of such ACI
Shares.
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REGISTRATION EXPENSES: all expenses incurred in effecting any
registration pursuant to this Agreement, including, without limitation,
all registration, qualification, and filing fees, printing expenses,
escrow fees, fees and disbursements of counsel for ACI, blue sky fees
and expenses, and expenses of any regular or special audits incident to
or required by any such registration, but shall not include Selling
Expenses, fees and disbursements of counsel for the Holders and the
compensation of regular employees of ACI, which shall be paid in any
event by ACI.
REGISTRATION STATEMENT: a registration statement prepared on an
appropriate form promulgated under the Securities Act.
RULE 144: Rule 144 (or any successor provision) under the Securities
Act.
RULE 145: Rule 145 (or any successor provision) under the Securities
Act.
SECURITIES ACT: the Securities Act of 1933.
SELLING EXPENSES: all underwriting discounts, selling commissions and
stock transfer taxes applicable to the sale of Registrable Stock and
fees and disbursements of counsel for any Holder (other than the fees
and disbursements of counsel included in Registration Expenses).
SECTION 3.2 RULES OF CONSTRUCTION
(a) "This Agreement" means this instrument as originally
executed or as it may be from time to time supplemented or amended by
one or more supplements or amendments hereto entered pursuant to the
applicable provisions hereof;
(b) "includes" and "including" are not limiting, and, in each
case, shall be construed as if followed by the words "without
limitation," "but not limited to" or words of similar import;
(c) "may not" is prohibitive, and not permissive;
(d) "shall" is mandatory, and not permissive;
(e) "or" is not exclusive [i.e., if a party "may do (a), (b)
or (c)," then the party may do all of, any one of, or any combination
of, (a), (b) or (c)] unless the context expressly provides otherwise;
(f) all references in this instrument to designated Articles,
Sections, Exhibits, and Schedules are to the designated Articles,
Sections, Exhibits, and Schedules of this instrument as originally
executed;
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(g) all references herein to constitutions, treaties,
statutes, laws, rules, regulations, ordinances, codes or orders include
any successor thereto or replacement thereof, include any amendment,
modification or supplements thereof or thereto from time to time, and,
include all rules and regulations promulgated thereunder or pursuant
thereto;
(h) the words "herein," "hereof," "hereto" and "hereunder" and
other words of similar import refer to this Agreement as a whole and
not to any particular Article, Section or other subdivision; and
(i) all terms used herein which are defined in the Securities
Act, the Exchange Act or the rules and regulations promulgated
thereunder have the meanings assigned to them therein unless otherwise
defined herein.
ARTICLE 4
GENERAL PROVISIONS
SECTION 4.1 SEVERABILITY. If any provision of this Agreement, including
any phrase, sentence, clause, Section or subsection is inoperative or
unenforceable for any reason, such circumstances shall not have the effect of
rendering the provision in question inoperative or unenforceable in any other
case or circumstance, or of rendering any other provision or provisions herein
contained invalid, inoperative, or unenforceable to any extent whatsoever.
SECTION 4.2 NOTICES. All notices, requests, demands, waivers and other
communications required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been duly given if (a) delivered
personally, (b) mailed by first-class, registered or certified mail, return
receipt requested, postage prepaid, or (c) sent by next-day or overnight mail or
delivery or (d) sent by telecopy or telegram.
(a) if to ACI, to,
Xxxxx Communications, Inc.
000 X. XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, III
(b) if to the Holders, to their respective addresses listed on
the signature pages,
or, in each case, at such other address as may be specified in writing to the
other parties hereto.
All such notices, requests, demands, waivers and other communications
shall be deemed to have been received (w) if by personal delivery on the day
after such delivery, (x) if by certified or registered mail, on the seventh
business day after the mailing thereof, (y) if by
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next-day or overnight mail or delivery, on the day delivered, (z) if by telecopy
or telegram, on the next day following the day on which such telecopy or
telegram was sent, provided that a copy is also sent by certified or registered
mail.
SECTION 4.3 HEADINGS. The headings contained in this Agreement are for
purposes of convenience only and shall not affect the meaning or interpretation
of this Agreement.
SECTION 4.4 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement and supersede all prior agreements and understandings, both written
and oral, between the parties with respect to the subject matter hereof.
SECTION 4.5 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original and all of which shall
together constitute one and the same instrument.
SECTION 4.6 GOVERNING LAW, ETC. This Agreement shall be governed in all
respects, including as to validity, interpretation and effect, by the internal
laws of the State of Texas, without giving effect to the conflict of laws rules
thereof. ACI and each Holder hereby irrevocably submit to the jurisdiction of
the courts of the State of Texas and the Federal courts of the United States of
America located in the State of Texas, City and County of Dallas, solely in
respect of the interpretation and enforcement of the provisions of this
Agreement and of the documents referred to in this Agreement, and hereby waive,
and agree not to assert, as a defense in any action, suit or proceeding for the
interpretation or enforcement hereof or of any such document, that it is not
subject thereto or that such action, suit or proceeding may not be brought or is
not maintainable in said courts or that the venue thereof may not be appropriate
or that this Agreement or any of such document may not be enforced in or by said
courts, and the parties hereto irrevocably agree that all claims with respect to
such action or proceeding shall be heard and determined in such a Texas State or
Federal court. ACI and each Holder hereby consent to and grant any such court
jurisdiction over the person of such parties and over the subject matter of any
such dispute and agree that mailing of process or other papers in connection
with any such action or proceeding in the manner provided in Section 4.2, or in
such other manner as may be permitted by law, shall be valid and sufficient
service thereof.
SECTION 4.7 BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
successors and permitted assigns.
SECTION 4.8 ASSIGNMENT. This Agreement shall not be assignable or
otherwise transferable by any party hereto without the prior written consent of
the other parties hereto.
SECTION 4.9 NO THIRD PARTY BENEFICIARIES. Nothing in this Agreement
shall confer any rights upon any person or entity other than the parties hereto
and their respective heirs, successors and permitted assigns.
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SECTION 4.10 AMENDMENT; WAIVERS, ETC. No amendment, modification or
discharge of this Agreement, and no waiver hereunder, shall be valid or binding
unless set forth in writing and duly executed by the party against whom
enforcement of the amendment, modification, discharge or waiver is sought. Any
such waiver shall constitute a waiver only with respect to the specific matter
described in such writing and shall in no way impair the rights of the party
granting such waiver in any other respect or at any other time. Neither the
waiver by any of the parties hereto of a breach of or a default under any of the
provisions of this Agreement, nor the failure by any of the parties, on one or
more occasions, to enforce any of the provisions of this Agreement or to
exercise any right or privilege hereunder, shall be construed as a waiver of any
other breach or default of a similar nature, or as a waiver of any of such
provisions, rights or privileges hereunder. The rights and remedies herein
provided are cumulative and are not exclusive of any rights or remedies that any
party may otherwise have at law or in equity. The rights and remedies of any
party based upon, arising out of or otherwise in respect of any inaccuracy or
breach of any representation, warranty, covenant or agreement or failure to
fulfill any condition shall in no way be limited by the fact that the act,
omission, occurrence or other state of facts upon which any claim of any such
inaccuracy or breach is based may also be the subject matter of any other
representation, warranty, covenant or agreement as to which there is no
inaccuracy or breach.
[Balance of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
XXXXX COMMUNICATIONS, INC. HOLDERS
By:______________________________ __________________________
Xxxxxxx X. Xxxxxx, III Xxxxxx X. Xxxx
Chairman of the Board Address:__________________
__________________________
__________________________
Xxxxx X. Xxxxx
Address:__________________
__________________________
__________________________
Xxxxxx X. Xxxx
Address:__________________
__________________________
__________________________
Xxxxxx X. Xxxx
Address:__________________
__________________________
__________________________
Xxxxxx X. Box
Address:__________________
__________________________
__________________________
Xxxxx X. Xxxxxxx, Xx.
Address:__________________
__________________________
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