Exhibit 6
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of March 6, 1998, by and
between Teligent, Inc., a Delaware corporation (the "Company"), and
Microwave Services, Inc., a Delaware corporation ("MSI").
MSI owns of record 17,206,210 shares of the Company's Common
Stock, par value $.01 per share, designated as Class B-Series 1 (such
17,206,210 shares being referred to as the "Series B-1 Shares"), which
Series B-1 Shares are convertible on a share-for-share basis into shares of
the Company's Common Stock, par value $.01 per share, designated as Class A
(the "Class A Common Stock").
MSI has requested that the Company grant to MSI, and the
Company has agreed to grant to MSI, the registration rights provided for
herein.
In consideration of the foregoing, and the agreements set forth
herein, and for other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Registration Rights. The Company agrees that MSI will have the
registration rights set forth in this Section 1 with respect to shares of
Class A Common Stock into which the Series B-1 Shares have been converted
or are convertible ("Registrable Securities").
(a) "Piggyback" Registration Rights. (i) If the Company
at any time proposes to register under the Securities Act of 1933, as
amended (the "Securities Act") (other than a registration on Form S-4 or
S-8 or any successor or similar forms thereto and other than a registration
pursuant to paragraph 1(b) below), whether or not for sale for its own
account (including, without limitation, pursuant to the exercise by any
other person or entity of any registration rights granted by the Company),
on a form and in a manner that would permit registration of Registrable
Securities for sale to the public under the Securities Act, it will give
written notice to MSI of its intention to do so, describing such securities
and specifying the form and manner and the other relevant facts involved in
such proposed registration (including, without limitation, (x) whether or
not such registration will be in connection with an underwritten offering
of equity securities and, if so, the identity of the managing underwriter
and whether such offering will be pursuant to a "best efforts" or "firm
commitment" underwriting and (y) the anticipated price range at which such
equity securities are reasonably expected to be sold to the public). Upon
the written request of MSI delivered to the Company within 15 calendar days
after the receipt of any such notice (which request shall specify the
Registrable Securities intended to be disposed of by MSI and the intended
method of disposition thereof), the Company will use reasonable best
efforts to effect the registration under the Securities Act of the
Registrable Securities that the Company has been so requested to register,
subject to the further provisions of this agreement;
(ii) If a registration pursuant to this Section 1
involves an underwritten offering and the managing underwriter advises the
Company that, in its opinion, the number of Registrable Securities proposed
to be included in such registration should be limited due to market
conditions, then the Company may exclude Registrable Securities requested
to be included pursuant to Section 1(a) pro rata, based on the respective
numbers of Registrable Securities as to which registration has been so
requested by each holder of Registrable Securities.
(iii) In connection with any underwritten offering with
respect to which holders of Registrable Securities shall have requested
registration pursuant to this Section 1, the Company shall have the right
to select the managing underwriter with respect to the offering.
(b) Demand Registration Rights. (i) In addition to the
registration rights afforded by Section 1(a) above, at any time commencing
six months after November 26, 1997 (the "Demand Date"), MSI shall be
entitled to demand in writing that the Company effect a registration under
the Securities Act and under such state securities laws as MSI may
reasonably request (provided that the Company shall not be required to
consent to general service of process in any jurisdiction where it is not
then so subject) in respect of all or part of the Registrable Securities
held by MSI, provided that (A) such demand registration right shall apply
only if the amount of Registrable Securities to be registered (1)
constitutes at least 20% of the amount of Registrable Securities owned by
MSI or (2) has an anticipated aggregate offering price (before
underwriters' fees, commissions and discounts) of at least $20,000,000, (B)
the Company shall not be obligated to use its reasonable best efforts to
cause to become effective a registration statement pursuant to this Section
1(b) until a period shall have elapsed from the effective date of the most
recent previous registration statement under the Securities Act with
respect to a public offering of equity securities of the Company (a "Prior
Public Offering") equal to the greater of (1) 120 days and (2) the shortest
period of any lockup of shareholders of the Company required by the lead
managing underwriter of such Prior Public Offering (the "Holdback Period")
and (C) if, while a registration request is pending pursuant to this
Section 1(b), the Board of Directors of the Company makes a good faith
determination that the filing or effectiveness of a registration statement
would require the public disclosure of material information, the disclosure
of which would adversely affect the Company, the Company shall not be
required to effect a registration pursuant to this Section 1(b) until such
material information is disclosed to the public or ceases to be material;
provided, further, however, that the foregoing delay shall in no event
exceed 120 days. Notwithstanding the foregoing provisions of Section 1(b),
the Company shall not be obligated to effect more than three registrations
pursuant to this Section 1(b)(i).
(ii) At any time after the Demand Date, MSI shall be
entitled to demand in writing that the Company effect a registration under
the Securities Act of all or part of its Registrable Securities on Form S-3
or any similar short-form ("Short-Form") registration statement
("Short-Form Registrations"), if available, specifying in the request the
number of Registrable Securities to be registered by MSI and the intended
method of distribution thereof (such notice is hereinafter referred to as
an "S-3 Holder Request"); provided, that the Company shall be obligated to
effect a registration of Registrable Securities pursuant to this Section
1(b)(ii) only if the anticipated aggregated offering price for such
Registrable Securities is in excess of $10,000,000, provided, further, that
the Company shall not be obligated to file and use its reasonable best
efforts to cause to become effective a registration statement pursuant to
this Section 1(b) until a period equal to the Holdback Period shall have
elapsed from the effective date of the Prior Public Offering. The holders
of Registrable Securities will be entitled to request an unlimited number
of Short-Form Registrations. After the Company has become subject to the
reporting requirements of the Securities Exchange Act of 1934, the Company
will use its reasonable best efforts to make Short-Form Registrations on
Form S-3 available for the sale of Registrable Securities.
(iii) If, in connection with any underwritten offering
pursuant to this Section 1(b), the managing underwriter thereof advises the
Company in writing that in its opinion the number of securities (including,
for purposes of this Section 1(b), securities of the Company which the
Company has proposed to include in such offering) proposed to be included
in such offering should be limited due to market conditions, the Company
will promptly so advise all holders seeking to participate in such
offering, and securities shall be excluded from such offering in the
following order until such limitation has been met: (A) securities
requested to be included in such offering by holders other than MSI, if
any, shall be excluded until all such other securities shall be so
excluded, (B) securities that the Company has elected to include in such
offering, if any, shall be excluded until all such securities have been
excluded, and, (C) thereafter, any Registrable Securities requested to be
included in such offering shall be excluded pro rata, based on the
respective number of Registrable Securities as to which registration has
been so requested by each holder thereof.
(iv) If a requested registration pursuant to this Section
1(b) involves an underwritten offering, the holders of a majority of
Registrable Securities included in such registration shall have the right,
with the approval of the Company (which approval shall not be unreasonably
withheld), to select the managing underwriter for such offering.
(c) [Intentionally Omitted]
(d) Registration Procedures.
(i) If and whenever the Company is required to use its
reasonable best efforts to effect or cause the registration of any
Registrable Securities under the Securities Act as provided in Section 1(a)
or 1(b), the Company will, as expeditiously as possible:
(A) Prepare and promptly file with the Securities
and Exchange Commission (the "Commission") a registration statement with
respect to such Registrable Securities and use its reasonable best efforts
to cause such registration statement to become and remain effective;
(B) Prepare and file with the Commission such
amendments (including post-effective amendments) and supplements to such
registration statement and the prospectus used in connection therewith as
may be necessary to keep such registration statement effective for a period
as may be requested by holders desiring to register their Registrable
Securities for sale not exceeding 90 days and to comply with the provisions
of the Securities Act with respect to the disposition of all Registrable
Securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the Holder or
Holders thereof set forth in such registration statement.
(C) Furnish to each holder of Registrable Securities
covered by the registration statement and to each underwriter, if any, of
such Registrable Securities, such number of copies of a prospectus and
preliminary prospectus for delivery in conformity with the requirements of
the Securities Act, and such other documents, as such Person may reasonably
request, in order to facilitate the public sale or other disposition of the
Registrable Securities.
(D) Use its reasonable best efforts to register or
qualify such Registrable Securities covered by such registration Statement
under such other securities or blue sky laws of such jurisdictions as each
holder thereof shall reasonably request, and do any and all other acts and
things which may be reasonably necessary or advisable to enable such holder
to consummate the disposition of the Registrable Securities owned by such
holder in such jurisdictions, except that the Company shall not for any
such purpose be required (A) to qualify to do business as a foreign
corporation in any jurisdiction where, but for the requirements of this
Section 1(d)(i)(D)), it is not then so qualified, or (B) to subject itself
to taxation in any such jurisdiction, or (C) to take any action which would
subject it to general or unlimited service of process in any such
jurisdiction where it is not then so subject.
(E) Use its reasonable best efforts to cause such
Registrable Securities covered by such registration statement to be
registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the holder or holders thereof to
consummate the disposition of such Registrable Securities.
(F) Immediately notify each holder of Registrable
Securities covered by such registration statement, at any time when a
prospectus thereto is required to be delivered under the Securities Act
within the appropriate period mentioned in Section 1(d)(i)(B), if the
Company becomes aware that the prospectus included in such registration
statement, as ten in effect, includes 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 in the light of the
circumstances then existing, and, at the request of any such holder,
deliver reasonable number of copies of an amended or supplemental
prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus shall not
include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing.
(G) Otherwise use its reasonable best efforts to
comply with all applicable rules and regulations of the Commission and make
generally available to its securityholders, in each case as soon as
practicable, but not later than 45 calendar days after the close of the
period covered thereby (90 calendar days in case the period covered
corresponds to a fiscal year of the Company), an earnings statement of the
Company which will satisfy the provisions of Section 11(a) of the
Securities Act.
(H) Use its reasonable best efforts in connection
with the underwriters of list such Registrable Securities on each
securities exchange as they may reasonably designate.
(I) In the event the offering is an underwritten
offering, use its reasonable best efforts to obtain a "cold comfort" letter
from the independent public accountants for the Company in customary form
and covering such matters of the type customarily covered by such letters.
(J) Execute and deliver all instruments and
documents (including in an underwritten offering an underwriting agreement
in customary form) and taken such other actions and obtain such
certificates and opinions as are customary in an underwritten public
offering.
(ii) Each holder of Registrable Securities will, upon
receipt of any notice from the Company of the happening of any event of the
kind described in Section 1(d)(i)(F), forthwith discontinue disposition of
the Registrable Securities pursuant to the registration statement covering
such Registrable Securities until such holder's receipt of the copies of
the supplemented or amended prospectus contemplated by Section 1(d)(i)(F).
(iii) If a registration pursuant hereto involves an
underwritten offering, the Company agrees, if so required by the managing
underwriter of such offering, not to effect any public sale or distribution
of any of its equity securities or securities convertible into or
exchangeable or exercisable for any of such equity securities during a
period of up to 180 calendar days after the effective date of such
registration, except for securities sold in such underwritten offering or
except in connection with an option plan, purchase plan, savings or similar
plan, or an acquisition, merger or exchange offer.
(iv) If a registration pursuant hereto involves an
underwritten offering, each holder of Registrable Securities, whether or
not such holder's Registrable Securities are included in such registration,
will, if and to the extent request by the managing underwriter in such
offering, enter into an agreement not to effect any public sale or
distribution, including any sale pursuant to Rule 144 under the Securities
Act (but excluding those Registrable Securities sold n such offering), of
any of the Company's excluding those Registrable Securities sold in such
offering), of any of the Company's equity securities owned by such holder
or securities, without the consent of such managing underwriter, during a
period commencing on the effective date of such registration and ending a
number of calendar days thereafter not exceeding 180 days as such managing
underwriter shall reasonably determine is required to effect a successful
offering; provided such agreement is substantially identical in form and
substance to other "lock-up" agreements of the Company's other stockholders
who execute such agreements in connection with such offering.
(e) Indemnification.
(i) In the event of any registration of any securities of
the Company under the Securities Act pursuant hereto, the Company will, and
it hereby agreed to, indemnify and hold harmless, to the extent permitted
by law, each holder of any Registrable Securities covered by such
registration statement, its directors and officers or general and limited
partners, each other Person who participates as an underwriter in the
offering or sale of such securities and each other person, if any, who
controls such holder or any such underwriter within the meaning of the
Securities Act, as follows:
(A) against any and all loss, liability, claim,
damage and expense whatsoever arising out of or based upon an untrue
statement or alleged untrue statement of a material fact contained in any
registration statement (or any amendment or supplement thereto), including
all documents incorporated therein by reference, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading, or arising o ut of
an untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus or prospectus (or any amendment or
supplement thereto) or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein not
misleading;
(B) against any and all loss, liability, claim,
damage and expense whatsoever to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company; and
(C) against any and all expense reasonably incurred
by them in connection with investigating, preparing or defending against
any litigation, or investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, to the extent that any such expense is
not paid under subparagraph (A) or (B) above;
provided, however, that this indemnity does not apply to any loss,
liability, claim, damage or expense to the extent arising out of an untrue
statement or alleged untrue statement or omission made in reliance upon and
in conformity with written information furnished to the Company by or on
behalf of such holder, underwriter or control person expressly for use in
the preparation of any registration statement (or any amendment or
supplement thereto) and provided, further, that the Company shall not be
liable to any Person who participates as an underwriter in the offering or
sale of Registrable Securities or to any other Person, if any , who
controls such underwriter with the meaning of the Securities or to any
other Person, if any, who controls such underwriter with the meaning of the
Securities Act, in any such case to the extent that such loss, liability,
claim, damage or expense arises out of such Person's failure to send or
give a copy of the final prospectus, as the same may be then supplemented
or amended, to the Person 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 corrected in the final prospectus.
(ii) The Company may require, as a condition to including
any Registrable Securities in any registration statement filed in
accordance herewith that the Company shall have received an undertaking
reasonably satisfactory to it from the prospective seller of such
Registrable Securities to indemnify and hold harmless (in the same manner
and to the same extent as set forth in Section 1(e)(i) the Company, each
director of the Company, each officer of the Company and each other Person,
if any, who controls the Company within the meaning of the Securities Act
with respect to any statement or alleged statement in or omission or
alleged omission from such registration statement, any preliminary, final
or summary prospectus contained therein, or any amendment or supplement, if
such statement or alleged statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished
to the Company by or on behalf of such holder specifically stating that it
is for use in the preparation of such registration statement, preliminary,
final or summary prospectus or amendment or supplement. Such indemnity
shall remain in full force and effect regardless of any investigation made
by or on behalf of the Company or such director, officer or controlling
Person and shall survive the transfer of such securities by such holder. In
that event, the obligations of the Company and such holders pursuant to
this Section 1(e) are to be several and not joint; provided, however, that
with respect to each claim pursuant to this Section 1(e)(ii), each such
holder's liability under this Section 1(e)(ii) shall be limited to an
amount equal to the net proceeds (after deducting the underwriting discount
and expenses) received by such holder from the sale of such Registrable
Securities by such holder.
(iii) Promptly after receipt by an indemnified party
hereunder of written notice of the commencement of any action or proceeding
involving a claim referred to in this Section 1(e), such indemnified party
will, if a claim in respect thereof is to be made against an indemnifying
party, give written notice to such indemnifying party of the commencement
of such action; provided, however, that the failure of any indemnified
party to give notice as provided herein shall not relieve the indemnifying
party of its obligations under this Section 1(e), except to the extent (not
including any such notice of an underwriter) that the indemnifying party is
actually prejudiced by such failure to give notice. In case any such action
is brought against an indemnified party, unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim (in which case the
indemnifying party shall not be liable for the fees and expenses of more
than one firm of counsel for a majority of the sellers of Registrable
Securities or more than one firm of counsel for the underwriters in
connection with any one action or separate but similar or related actions),
the indemnifying party will be entitled to participate in and to assume the
defense thereof, jointly with any other indemnifying party similarly
notified, to the extent that it may wish with counsel reasonably
satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party will not be liable to such
indemnified party for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof. No
indemnified party shall consent to the entry of any judgment or enter into
any settlement of any such action, the defense of which has been assumed by
an indemnifying party and for which an indemnifying party may have
indemnification liability hereunder with the consent of such indemnifying
party.
(iv) The Company and each seller of Registrable
Securities shall provide for the foregoing indemnity (with appropriate
modifications) in any underwriting agreement with respect to any required
registration or other qualification of securities under any federal or
state law or regulation of any governmental authority.
(f) Contribution. In order to provide for just and equitable
contribution in circumstances under which the indemnity contemplated by
Section 1(e) is for any reason not available, the parties required to
indemnify by the terms thereof shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by
such indemnity agreement incurred by the Company, any seller of Registrable
Securities and one or more of the underwriters, except to the extent that
contribution is not permitted under Section 11(f) of the Securities Act. In
determining the amounts which the respective parties shall contribute,
there shall be considered the relative benefits received by each party from
the offering of the Registrable Securities (taking into account the portion
of the proceeds of the offering realized by each), the parties relative
knowledge and access to information concerning the matter with respect to
which the claim was asserted, the opportunity to correct and prevent any
statement of omission and any other equitable considerations appropriate
under the circumstances. The Company and each Seller of Registrable
Securities agree with each other that no seller of Registrable Securities
shall be required to contribute any amount in excess of the amount such
seller would have been required to pay to an indemnified party if the
indemnity under Section 1(e)(ii) were available. The Company and each such
seller agree with each other and the underwriters of the Registrable
Securities, if requested by such underwriters, that it would not be
equitable if the amount of such contribution were determined by pro rata or
per capita allocation (even if the underwriters were treated as one entity
for such purpose) or for the underwriters' portion of such contribution to
exceed the percentage that the underwriting discount bears to the initial
public offering price of the Registrable Securities. For purposes of this
Section 1(f), each Person, if any, who controls an underwriter within the
meaning of Section 15 of the Securities Act shall have the same rights to
contribution as such underwriter, and each director and officer of the
Company who signed the registration statement, and each Person, if any, who
controls the Company or a seller of Registrable Securities within the
meaning of Section 15 of the Securities Act shall have the same rights to
contribution as the Company or a seller of Registrable Securities, as the
case may be.
(g) Expenses. The Company shall bear all registration expenses
(exclusive of underwriting fees, discounts and commissions) in connection
with the registrations effected by it pursuant to Section 1(b) and such
registration expenses incurred in connection with up to three fully
completed registrations of Registrable Securities pursuant to Section 1(a).
(h) Transfer of Registration Rights. MSI may assign its rights
under this Section 1 to any person or entity to whom or which MSI sells,
transfers or assigns not less than 20% of the Registrable Securities;
provided that such person or entity agrees in writing with the Company to
be bound by this Agreement to the same extent as MSI was bound at the time
of such sale, transfer or assignment.
(i) Cessation of Registrable Security Status. As to any
particular Registrable Securities, such securities shall cease to be
Registrable Securities when (i) a registration statement with respect to
the sale of such securities shall have become effective under the
Securities Act and such securities shall have been disposed of under such
registration statement, (ii) such securities shall have been transferred
pursuant to Rule 144 under the Securities Act, (iii) such securities shall
have been otherwise transferred or disposed of, and new certificates
therefor not bearing a legend restricting further transfer shall have been
delivered by the Company, and subsequent transfer or disposition of such
securities shall not require their registration or qualification under the
Securities Act or any similar state law then in force, or (iv) such
securities shall have ceased to be outstanding.
2. Miscellaneous.
(a) Effectiveness. This Agreement shall be effective
immediately upon the execution and delivery hereof.
(b) Definition of "Person". As used herein, the term
"Person" means any individual, corporation, association, partnership
(general or limited), joint venture, trust, joint-stock company, estate,
limited liability company, unincorporated organization or other legal
entity or organization.
(c) Successors and Assigns. Except as otherwise provided
herein, all of the terms and provisions of this Agreement shall be binding
upon, shall inure to the benefit of and shall be enforceable by and against
the respective successors and assigns of the parties hereto.
(d) Amendment, Waiver. This Agreement may be amended only
by a written instrument duly executed by the parties hereto. Any failure of
any of the parties to comply with any obligation, covenant, agreement or
condition herein may be waived by the party entitled to the benefits
thereof only by a written instrument signed by the party granting such
waiver, but such waiver or failure to insist upon strict compliance with
such obligation, covenant, agreement or condition shall not operate as a
waiver of, or estoppel with respect to, any subsequent or other failure.
(e) Notices. Any notice, request, claim, demand, document
or other communication hereunder to any party shall be effective upon
receipt (or refusal of receipt) and shall be in writing and delivered
personally or sent by telex or telecopy (with such telex or telecopy
confirmed promptly in writing sent by first class mail), or by reputable
overnight courier or other similar means of communication, as follows:
i) If to the Company, addressed to the Company at
0000 Xxxxxxxx Xxxx, Xxxxxx, XX 00000, to the attention of
the Company's General Counsel (Facsimile No.
703-762-5227);
ii) If to MSI, addressed to it at 0 Xxxx Xxxxx
Xxxx, Xxxxx 000, Xxxx Xxxxxx, XX 00000, to the attention
of MSI's General Counsel;
or, in each case, to such other address or telex or telecopy
number as such party may designate in writing to the other by
written notice given in the manner specified in this Section
2(e).
(f) Entire Agreement. This Agreement contains the entire
agreement between the parties hereto with respect to the subject matter
hereof, and supersedes all prior oral and written agreements and memoranda
and undertakings between the parties hereto with regard to such subject
matter.
(g) Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York, without
giving effect to its conflicts of laws principles.
(h) Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but which together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, this Agreement has been executed and
delivered by the parties as of the day and year first written above.
TELIGENT, INC.
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Chairman and Chief
Executive Officer
MICROWAVE SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
