REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is dated and deemed
effective as of February 22, 2000 by and among Nextel Partners, Inc. (the
"Company") and the shareholders listed on the signature pages hereto. Terms that
are not defined in context are used as defined in Section 24.
W I T N E S S E T H
WHEREAS, the parties hereto were parties to that certain Shareholders'
Agreement dated January 29, 1999 which was amended and restated on February 18,
2000 and was further amended as of February 22, 2000 (collectively, the
"Shareholders' Agreement");
WHEREAS, in connection with the initial public offering by the Company of
shares of its Class A Common Stock (the "Common Stock"), certain shareholders
who were parties to the Shareholders' Agreement agreed to be removed from the
Shareholders' Agreement and agreed to be parties to this Registration Rights
Agreement (hereinafter the shareholders who have been removed from the
Shareholders' Agreement and who are parties to this Registration Rights
Agreement shall be referred to herein individually as a "Shareholder Party" and
collectively as "Shareholder Parties");
The parties hereto agree as follows:
1. PIGGYBACK REGISTRATION RIGHTS, COMPANY REGISTRATION.
(a) If the Company proposes to register any of its Company Common Stock
under the Securities Act (other than a registration (x) on Form S-8 or S-4 or
any successor or similar forms, (y) relating to securities issuable upon
exercise of employee stock options or in connection with any employee benefit or
similar plan of the Company or (z) in connection with a direct or indirect
merger, acquisition or other similar transaction), whether or not for sale for
its own account, it will each such time, subject to the provisions of Section
1(b), give prompt written notice to each Shareholder Party at least 20 days
prior to the anticipated filing date of the registration statement relating to
such registration, which notice shall set forth such Shareholder Party's rights
under this Section 1 and shall offer all Shareholder Parties the opportunity to
include in such registration statement such number of Registrable Securities as
each such Shareholder Party may request. Upon the written request of any such
Shareholder Party made within 10 days after the receipt of notice from the
Company (which request shall specify the number of Registrable Securities
intended to be disposed of by such Shareholder Party), the Company will use all
reasonable efforts to effect the registration under the Securities Act of all
Registrable Securities which the Company has been so requested to register by
such Shareholder Parties, to the extent requisite to permit the disposition of
the Registrable Securities so to be registered; PROVIDED that (i) if such
registration involves an
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Underwritten Public Offering, all such Shareholder Parties requesting to be
included in the Company's registration must sell their Registrable Securities to
the underwriters on the same terms and conditions as apply to the Company or the
Demanding Shareholder, as applicable, and (ii) if, at any time after giving
written notice of its intention to register any Company Common Stock pursuant to
this Section 1(a) and prior to the effective date of the registration statement
filed in connection with such registration, the Company shall determine for any
reason not to register such Company Common Stock, the Company shall give written
notice to all Shareholder Parties and, thereupon, shall be relieved of its
obligation to register any Registrable Securities in connection with such
registration. The Company will pay all Registration Expenses in connection with
each registration of Registrable Securities requested pursuant to this Section
1.
(b) If a registration described in this Section 1 involves an Underwritten
Public Offering (other than in the case of an Underwritten Public Offering
requested by any Demanding Shareholder in a Demand Registration in which case
the provisions with respect to priority of inclusion in such offering set forth
in Section 2(b) below shall apply) and the managing underwriter advises the
Company in writing that, in its view, the number of shares of Company Common
Stock which the Company and any Shareholder Parties intend to include in such
registration exceeds the Maximum Offering Size, the Company will include in such
registration, in the following priority, up to the Maximum Offering Size:
(i) first, so much of the Company Common Stock proposed to be
registered for the account of the Company as would not cause the
offering to exceed the Maximum Offering Size; and
(ii) second, all Registrable Securities requested to be included in
such registration by a Shareholder Party and by a party to the
Shareholders' Agreement, (allocated, if necessary for the
offering not to exceed the Maximum Offering Size, pro rata among
such Shareholder Parties and the parties to the Shareholders'
Agreement on the basis of the relative number of shares of
Registrable Securities so requested to be included in such
registration).
2. PIGGYBACK REGISTRATION RIGHTS, DEMAND REGISTRATION
(a) Should a Demanding Shareholder make a Demand Registration of the
Company, then the Company shall promptly give written notice of the Demand
Registration at least 30 days prior to the anticipated filing date of the
registration statement relating to such Demand Registration to the Shareholder
Parties and thereupon will use its reasonable best efforts to effect, as
expeditiously as possible, the registration under the Securities Act of:
(i) The Registrable Securities which the Company has been so
requested to register by the Demanding Shareholder, then held by
the Demanding Shareholder; and
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(ii) Subject to the restrictions set forth in Section 1 (a) above, all
other Registrable Securities which any Shareholder Party and any
party to the Shareholders' Agreement has requested the Company to
register by written request received by the Company within 15
days after the receipt by such Shareholder Party and party to the
Shareholders' Agreement of such written notice given by the
Company,
all to the extent necessary to permit the disposition (in accordance with the
intended methods thereof as aforesaid) of the Registrable Securities so to be
registered.
(b) If a Demand Registration involves an Underwritten Public Offering and
the managing underwriter advises the Company that, in its view, (x) the number
of shares of Company Common Stock requested to be included in such registration
(including Company Common Stock which the Company proposes to be included which
are not Registrable Securities) or (y) the inclusion of some or all of the
shares of Company Common Stock owned by the Demanding Shareholders or the
Shareholder Parties, in any such case, exceeds the Maximum Offering Size, the
Company will include in such registration in the priority listed below, up to
the Maximum Offering Size:
(i) first, all Registrable Securities requested to be registered by
the Demanding Shareholders (including any Registered Securities
requested to be registered by the High Yield Investors)
(allocated, if necessary for the offering not to exceed the
Maximum Offering Size pro rata among the Demanding Shareholders
and the High Yield Investors on the basis of the relative number
of Registrable Securities so requested to be included in such
registration);
(ii) second, all Registrable Securities requested to be included in
such registration by Shareholder Parties and parties to the
Shareholders' Agreement other than the Demanding Shareholders and
the High Yield Investors (allocated, if necessary for the
offering not to exceed the Maximum Offering Size, pro rata among
such Shareholder Parties and such parties to the Shareholders'
Agreement on the basis of the relative number of Registrable
Securities so requested to be included in such registration); and
(iii) third, any Company Common Stock proposed to be registered by the
Company.
3. HOLDBACK AGREEMENTS. With respect to each and every Underwritten
Public Offering:
(a) each Shareholder Party agrees not to effect any public sale or
distribution, including any sale pursuant to Rule 144, or any successor
provision, under the Securities Act, of any Registrable Securities, and not
to effect any such public sale or distribution of any other security of the
Company (in each case, other than as part of such Underwritten Public
Offering) during the 14 days prior to the effective date of the applicable
registration statement (except as part of such registration) or during the
period after such effective date that such managing underwriter and the
Company shall agree (but not to exceed 180 days or any such shorter period
(but not less than 90 days) as the managing underwriter may suggest).
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(b) Each Shareholder Party agrees that, so long as a Demanding Shareholder
has the right to request one or more Demand Registrations, each Shareholder
Party will not effect any public sale or distribution, including any sale
pursuant to Rule 144, or any successor provision, under the Securities Act, of
any Registrable Securities, or any such public sale or distribution of any other
security of the Company, from the date that the Shareholder Party is first
notified of the Company's intention to make a Public Offering through the date
that is 90 days following completion of such Public Offering, unless the
underwriting group, not including Xxxxxxxxx, Xxxxxx and Xxxxxxxx, Inc. or any of
its controlled affiliates, permits such sales or distributions to be made by a
Shareholder Party during such 90 day period.
4. REGISTRATION PROCEDURES. Whenever Shareholder Parties request that any
Registrable Securities be registered pursuant to Section 1 or 2 hereof, the
Company will, subject to the provisions of such Sections, use all reasonable
efforts to effect the registration and the sale of such Registrable Securities
in accordance with the intended method of disposition thereof as quickly as
practicable, and in connection with any such request:
(a) The Company will as expeditiously as possible prepare and file with
the SEC a registration statement on any form selected by counsel for the Company
and which form shall be available for the sale of the Registrable Securities to
be registered thereunder in accordance with the intended method of distribution
thereof, and use all reasonable efforts to cause such filed registration
statement to become and remain effective for a period of not less than 90 days
(or such shorter period in which all of the Registrable Securities of the
Shareholder Parties included in such registration statement shall have actually
been sold thereunder).
(b) The Company will, if requested, prior to filing a registration
statement or prospectus or any amendment or supplement thereto, furnish to each
Shareholder Party and each underwriter, if any, of the Registrable Securities
covered by such registration statement copies of such registration statement as
proposed to be filed, and thereafter the Company will furnish to such
Shareholder Party and underwriter, if any, such number of copies of such
registration statement, each amendment and supplement thereto (in each case
including all exhibits thereto and documents incorporated by reference therein),
the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such Shareholder Party or
underwriter may reasonably request in order to facilitate the disposition of the
Registrable Securities owned by such party. Each Shareholder Party shall have
the right to request that the Company modify any information contained in such
registration statement, amendment and supplement thereto pertaining to such
party and the Company shall use all reasonable efforts to comply with such
request, PROVIDED, HOWEVER, that the Company shall not have any obligation to so
modify any information if so doing would cause the prospectus to 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 (in light of
the circumstances under which they were made) not misleading.
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(c) After the filing of the registration statement, the Company will
promptly notify each Shareholder Party holding Registrable Securities covered by
such registration statement of any stop order issued or threatened by the SEC or
any state securities commission under state blue sky laws and take all
reasonable actions required to prevent the entry of such stop order or to remove
it if entered.
(d) The Company will use all reasonable efforts to (i) register or qualify
the Registrable Securities covered by such registration statement under such
other securities or blue sky laws of such jurisdictions in the United States as
any Shareholder Party holding such Registrable Securities reasonably (in light
of such party's intended plan of distribution) requests and (ii) cause such
Registrable Securities to be registered with or approved by such other
governmental agencies or authorities as may be necessary by virtue of the
business and operations of the Company and do any and all other acts and things
that may be reasonably necessary or advisable to enable such Shareholder Party
to consummate the disposition of the Registrable Securities owned by such party;
PROVIDED that the Company will not be required to (A) qualify generally to do
business in any jurisdiction where it would not otherwise be required to qualify
but for this paragraph (d), (B) subject itself to taxation in any such
jurisdiction or (C) consent to general service of process in any such
jurisdiction.
(e) The Company will immediately notify each Shareholder Party holding
such Registrable Securities covered by such registration statement, at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act, of the occurrence of an event requiring the preparation of a
supplement or amendment to such prospectus so that, as thereafter delivered to
the purchasers of such Registrable Securities, 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 (in
light of the circumstances under which they were made) not misleading and
promptly prepare and make available to each such Shareholder Party and file with
the SEC any such supplement or amendment.
(f) The Company will enter into customary agreements (including an
underwriting agreement in customary form) and take such other actions as are
reasonably required in order to expedite or facilitate the disposition of such
Registrable Securities, including the engagement of a "qualified independent
underwriter" in connection with the qualification of the underwriting
arrangements with the NASD.
(g) Upon execution of confidentiality agreements in form and substance
reasonably satisfactory to the Company, the Company will make available for
inspection by any party and any underwriter participating in any offering
pursuant to a registration statement being filed by the Company pursuant to this
Section 4 and any attorney, accountant or other professional retained by any
Shareholder Party or underwriter (collectively, the "INSPECTORS"), all financial
and other records, pertinent corporate documents and properties of the Company
(collectively, the "RECORDS") as shall be reasonably requested by any such
Person, and cause the Company's officers, directors and employees to supply all
information reasonably requested by any Inspectors in connection with such
registration statement.
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(h) The Company will furnish to each Shareholder Party and to each such
underwriter, if any, a signed counterpart, addressed to such underwriter and the
participating Shareholder Party , of (i) an opinion or opinions of counsel to
the Company and (ii) a comfort letter or comfort letters from the Company's
independent public accountants, each in customary form and covering such matters
of the type customarily covered by opinions or comfort letters, as the case may
be, as a majority in interest of such Shareholder Party or the managing
underwriter therefor reasonably requests.
(i) The Company will otherwise use all reasonable efforts to comply with
all applicable rules and regulations of the SEC, and make available to its
security holders, as soon as reasonably practicable, an earnings statement
covering a period of 12 months, beginning within three months after the
effective date of the registration statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Securities Act.
(j) The Company may require each Shareholder Party (i) to promptly furnish
in writing to the Company information regarding the distribution of the
Registrable Securities as the Company may from time to time reasonably request,
(ii) to provide such other information as may be legally required in connection
with such registration and (iii) to take such other acts as are reasonably
necessary under the circumstances.
(k) Each Shareholder Party agrees that, upon receipt of any notice from
the Company of the happening of any event of the kind described in Section 4(e),
such Shareholder Party will forthwith discontinue disposition of Registrable
Securities pursuant to the registration statement covering such Registrable
Securities until such Shareholder Party's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 4(e), and, if so
directed by the Company, such Shareholder Party will deliver to the Company all
copies, other than any permanent file copies then in such Shareholder Party's
possession, of the most recent prospectus covering such Registrable Securities
at the time of receipt of such notice. In the event that the Company shall give
such notice, the Company shall extend the period during which such registration
statement shall be maintained effective (including the period referred to in
Section 4(a)), by the number of days during the period from and including the
date of the giving of notice pursuant to Section 4(e) to the date when the
Company shall make available to such Shareholder Party a prospectus supplemented
or amended to conform with the requirements of Section 4(e).
5. INDEMNIFICATION BY THE COMPANY. The Company agrees to indemnify and
hold harmless each Shareholder Party hereto holding Registrable Securities
covered by a registration statement, its officers, directors, employees,
partners and agents, and each Person, if any, who controls such Shareholder
Party within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act from and against any and all losses, claims, damages,
liabilities and expenses caused by (i) any untrue statement or alleged untrue
statement of a material fact contained in any registration statement,
prospectus, offering circular or other offering document relating to the
Registrable Securities (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) or any preliminary prospectus,
or (ii) any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make
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the statements therein not misleading (in the case of any prospectus, in light
of the circumstances under which they were made), except insofar as such losses,
claims, damages or liabilities are caused by any such untrue statement or
omission or alleged untrue statement or omission so made in strict conformity
with information furnished in writing to the Company by such Shareholder Party
or on such Shareholder Party's behalf expressly for use therein or (iii) any
violation by the Company of the Securities Act or any rule or regulation
promulgated thereunder applicable to the Company, or any blue sky or state
securities laws or any rule or regulation thereunder applicable to the Company;
PROVIDED that with respect to any untrue statement or omission or alleged untrue
statement or omission made in any preliminary prospectus, or in any prospectus,
as the case may be, the indemnity agreement contained in this paragraph shall
not apply to the extent that any such loss, claim, damage, liability or expense
results from the fact that a current copy of the prospectus (or, in the case of
a prospectus, the prospectus as amended or supplemented) was not sent or given
to the Person asserting any such loss, claim, damage, liability or expense at or
prior to the written confirmation of the sale of the Registrable Securities
concerned to such Person if it is determined that the Company has provided such
prospectus to such Shareholder Party in a timely manner prior to such sale and
it was the responsibility of such Shareholder Party under the Securities Act to
provide such Person with a current copy of the prospectus (or such amended or
supplemented prospectus, as the case may be) and such current copy of the
prospectus (or such amended or supplemented prospectus, as the case may be)
would have cured the defect giving rise to such loss, claim, damage, liability
or expense. The Company also agrees to indemnify any underwriters of the
Registrable Securities and each accountant, attorney and other Person who
participates in the offering of the Registrable Securities on behalf of the
Company or any selling shareholder, their officers and directors and each person
who controls such underwriters and other Persons on substantially the same basis
as that of the indemnification of the parties provided in this Section 5.
6. INDEMNIFICATION BY PARTICIPATING PARTIES. Each Shareholder Party
holding Registrable Securities included in any registration statement agrees,
severally but not jointly, to indemnify and hold harmless the Company, its
officers, directors and agents 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 to the same extent as the foregoing indemnity from the Company
to such Shareholder Party, but only (i) with respect to information furnished in
writing by such Shareholder Party or on such party's behalf expressly for use in
any registration statement, prospectus, offering circular or other document
relating to the Registrable Securities, or any amendment or supplement thereto,
or any preliminary prospectus or (ii) to the extent that any loss, claim,
damage, liability or expense described in Section 5 results from the fact that a
current copy of the prospectus (or, in the case of a prospectus, the prospectus
as amended or supplemented) was not sent or given to the Person asserting any
such loss, claim, damage, liability or expense at or prior to the written
confirmation of the sale of the Registrable Securities concerned to such Person
if it is determined that it was the responsibility of such Shareholder Party to
provide such Person with a current copy of the prospectus (or such amended or
supplemented prospectus, as the case may be) and such current copy of the
prospectus (or such amended or supplemented prospectus, as the case may be)
would
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have cured the defect giving rise to such loss, claim, damage, liability or
expense. Each Shareholder Party shall be prepared, if required by the
underwriting agreement, to indemnify and hold harmless any underwriters of the
Registrable Securities and each accountant, attorney and other Person who
participates in the offering of the Registrable Securities on behalf of the
Company or any selling parties, their officers and directors and each person who
controls such underwriters and other Persons on substantially the same basis as
that of the indemnification of the Company provided in Section 5. As a condition
to including Registrable Securities in any registration statement filed in
accordance with this Agreement, the Company may require that it shall have
received an undertaking reasonably satisfactory to it from any underwriter to
indemnify and hold it harmless to the extent customarily provided by
underwriters with respect to similar securities.
7. CONDUCT OF INDEMNIFICATION PROCEEDINGS. In case any proceeding
(including any governmental investigation) shall be instituted involving any
Person in respect of which indemnity may be sought pursuant to this Agreement,
such Person (an "INDEMNIFIED PARTY"), after the Indemnified Party has actual
notice of any proceeding as to which indemnity may be sought, shall promptly
notify the Person against whom such indemnity may be sought (the "INDEMNIFYING
PARTY") in writing and the Indemnifying Party shall assume the defense thereof,
including the employment of counsel reasonably satisfactory to such Indemnified
Party, and shall assume the payment of all fees and expenses; PROVIDED that the
failure of any Indemnified Party so to notify the Indemnifying Party shall not
relieve the Indemnifying Party of its obligations hereunder except to the extent
that the Indemnifying Party is materially prejudiced by such failure to notify.
In any such proceeding, any Indemnified Party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such Indemnified Party unless (i) the Indemnifying Party and the Indemnified
Party shall have mutually agreed to the retention of such counsel or (ii) in the
reasonable judgment of such Indemnified Party representation of both parties by
the same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the Indemnifying Party shall not,
in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys (in addition to any local counsel) at any time for
all such Indemnified Parties, and that all such fees and expenses shall be
reimbursed as they are incurred. In the case of any such separate firm for the
Indemnified Parties, such firm shall be designated in writing by the Indemnified
Parties. The Indemnifying Party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent, or if there be a final judgment for the plaintiff, the Indemnifying
Party shall indemnify and hold harmless such Indemnified Parties from and
against any and all losses, claims, damages, liabilities and expenses or
liability (to the extent stated above) by reason of such settlement or
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judgment. No Indemnifying Party shall, without the prior written consent of the
Indemnified Party, effect any settlement of any pending or threatened proceeding
in respect of which any Indemnified Party is or could have been a party and
indemnity could have been sought hereunder by such Indemnified Party, unless
such settlement includes an unconditional release of such Indemnified Party from
all liability arising out of such proceeding.
8. CONTRIBUTION.
(a) If the indemnification provided for in this Agreement is held by a
court of competent jurisdiction to be unavailable to the Indemnified Parties in
respect of any losses, claims, damages, liabilities or expenses referred to
herein, then each such Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such losses, claims, damages, liabilities or
expenses (i) as between the Company and the Shareholder Parties holding
Registrable Securities covered by a registration statement and their related
Indemnified Parties on the one hand and the underwriters, other participating
Persons and their related Indemnified Parties on the other, in such proportion
as is appropriate to reflect the relative benefits received by the Company and
such Shareholder Parties on the one hand and the underwriters and other
participating Persons on the other, from the offering of the parties'
Registrable Securities, or if such allocation is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits but also the relative fault of the Company and the Shareholder Parties
on the one hand and of such underwriters and other participating Persons on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations and (ii) as between the Company and their related
Indemnified Parties on the one hand and each Shareholder Party and their related
Indemnified Parties on the other, in such proportion as is appropriate to
reflect the relative fault of the Company and of each such Shareholder Party in
connection with such statements or omissions, as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Shareholder Parties on the one hand and such underwriters and other
participating Persons on the other shall be deemed to be in the same proportion
as the total proceeds from the offering (net of underwriting discounts and
commissions but before deducting expenses) received by the Company and such
Shareholder Parties bear to the total underwriting discounts and commissions
received by such underwriters and fees received by other participating Persons,
in each case as set forth in the table on the cover page of the prospectus. The
relative fault of the Company and the Shareholder Parties on the one hand and of
such underwriters and other participating Persons on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company and the
Shareholder Parties or by such underwriters and other participating Persons. The
relative fault of the Company on the one hand and of each Shareholder Party on
the other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by
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a Shareholder Party and the Shareholder Party's relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
(b) The Company and the Shareholder Parties agree that it would not be
just and equitable if contribution pursuant to this Section 8 were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Party as a result of the
losses, claims, damages, liabilities or expenses referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such Indemnified
Party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8, no underwriter shall be
required to contribute any amount in excess of the underwriting discount
applicable to Securities purchased by such underwriter in such offering, less
the aggregate amount of any damages which such underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission, and no party shall be required to contribute any amount in
excess of the amount by which the total price at which the Registrable
Securities of such party hereto were offered to the public exceeds the amount of
any damages which such party has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. Each party's obligation
to contribute pursuant to this Section 8 is several in the proportion that the
proceeds of the offering received by such party bears to the total proceeds of
the offering received by all such parties hereto and not joint.
9. PARTICIPATION IN PUBLIC OFFERING. No Person may participate in any
Underwritten Public Offering hereunder unless such Person (a) agrees to sell
such Person's securities on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements and the provisions of this Agreement.
10. COOPERATION BY THE COMPANY. In the event any Shareholder Party shall
transfer any Registrable Securities pursuant to Rule 144A under the Securities
Act, the Company shall cooperate, to the extent commercially reasonable, with
such Shareholder Party and shall provide to such Shareholder Party such
information as such Shareholder Party shall reasonably request, PROVIDED such
Shareholder Party shall pay any material expenses incurred by the Company in
connection with its cooperation.
11. NO TRANSFER OF REGISTRATION RIGHTS. None of the rights of parties
under this Agreement shall be assignable by any party to any Person acquiring
Securities in any Public Offering or pursuant to Rule 144A of the Securities
Act.
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12. LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS. The Company shall not
enter into any agreement with any holder or prospective holder of any securities
of the Company that would allow such holder or prospective holder to include
such securities in any registration, (a) unless under the terms of such
agreement, such holder or prospective holder may include such securities in any
such registration only to the extent that the inclusion of such securities would
not reduce the amount of the Registrable Securities of the Shareholder Parties
included therein or (b) on terms otherwise more favorable to such holder or
prospective holder than provided in this Agreement. The Company shall not,
without the consent of the Shareholder Parties whose consent would be necessary
to amend this Agreement, consent to any amendment to the Shareholders' Agreement
that makes the Restricted Provisions of the Shareholders' Agreement more
favorable to the parties to the Shareholders' Agreement than the corresponding
provisions of this Agreement are to the parties hereto. For purposes of this
Section 12, "Restricted Provisions" means those terms of the Shareholders'
Agreement that provide for (i) the number of demand registration rights
available thereunder or the period during which, or the other circumstances
under which, demand registration rights are available thereunder and (ii) the
order of priority in which the Shareholder Parties have the right to participate
in registrations thereunder.
13. TERMINATION. This Agreement, and the rights and obligations hereunder,
shall terminate as to all parties on January 29, 2014 and shall terminate with
respect to any single Shareholder Party when such Shareholder Party no longer
owns any Registrable Securities. Notwithstanding the foregoing, the
indemnification and contribution provisions set forth in sections 5, 6, 7 and 8
shall survive termination of this Agreement.
14. ASSIGNABILITY. Neither this Agreement nor any right, remedy,
obligation or liability arising hereunder or by reason hereof shall be
assignable by any party.
15. WAIVER/AMENDMENTS. No provision of this Agreement may be waived except
by an instrument in writing executed by the party against whom the waiver is to
be effective. No provision of this Agreement may be amended or otherwise
modified except by an instrument in writing executed by the Company with
approval of its Board of Directors and holders of at least 75% of the shares of
Common Stock of the Company held by the Shareholder Parties to this Agreement at
the time of such proposed amendment or modification.
16. NOTICES. All notices and other communications given or made pursuant
hereto, unless otherwise specified, shall be in writing and shall be deemed to
have been duly given and received when sent by fax (with confirmation of
receipt) or delivered personally or on the third Business Day after being sent
by registered or certified U.S. mail (postage prepaid, return receipt requested)
to the parties at the fax number or address set forth in the signature pages
attached hereto or at such other addresses as shall be furnished by the parties
by like notice.
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17. FEES/EXPENSES. Except for the Company's obligation to pay Registration
Expenses as provided herein, all other attorneys' fees and expenses incurred by
any party in connection with this Agreement shall be paid by such party.
18. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
19. GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, without regard to the
conflicts of laws rules of such state.
20. SPECIFIC ENFORCEMENT. Each party hereto acknowledges that the remedies
at law of the other parties for a breach or threatened breach of this Agreement
would be inadequate and, in recognition of this fact, any such party to this
Agreement, without posting any bond, and in addition to all other remedies which
may be available, shall be entitled to obtain equitable relief in the form of
specific performance, a temporary restraining order, a temporary or permanent
injunction or any other equitable remedy which may then be available.
21. PUNITIVE/CONSEQUENTIAL DAMAGES. Each party hereto acknowledges that no
party is entitled to seek or recover consequential, punitive or exemplary
damages in respect of this Agreement under any circumstances or for any reason.
Consequential damages are, without limitation, lost profits, lost revenue and
the like but do not include the actual costs incurred in obtaining substitute
performance where there has been a failure to perform an obligation under an
agreement.
22. CONSENT TO JURISDICTION; EXPENSES.
(a) Any suit, action or proceeding seeking to enforce any provision of, or
based on any matter arising out of or in connection with, this Agreement or the
transactions contemplated hereby shall be brought in any Federal Court sitting
in New York, New York, or any New York State court sitting in New York, New
York, and each of the parties hereby consents to the exclusive jurisdiction of
such courts (and of the appropriate appellate courts therefrom) in any such
suit, action or proceeding and irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the laying
of the venue of any such suit, action or proceeding in any such court or that
any such suit, action or proceeding which is brought in any such court has been
brought in an inconvenient form. Process in any such suit, action or proceeding
may be served on any party anywhere in the world, whether within or without the
jurisdiction of any such court. Without limiting the foregoing, each party
consents to the personal jurisdiction of any Federal Court sitting in New York,
New York, or any New York State court sitting in New York, New York.
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(b) In any dispute arising under this Agreement among any of the parties
hereto, the costs and expenses (including, without limitation, the reasonable
fees and expenses of counsel) incurred by the prevailing party shall be paid by
the party that does not prevail.
23. SEVERABILITY. If one or more provisions of this Agreement are held to
be unenforceable to any extent under applicable law, such provision shall be
interpreted as if it were written so as to be enforceable to the maximum
possible extent so as to effectuate the parties' intent to the maximum possible
extent, and the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its terms
to the maximum extent permitted by law.
24. CERTAIN DEFINITIONS. The following terms used in this Agreement shall
have the following meanings:
"DEMAND REGISTRATION" shall have the meaning set forth in Section 6.01(a)
of the Shareholders' Agreement.
"DEMANDING SHAREHOLDER" means those certain shareholders of the Company who
have the right and who request a Demand Registration pursuant to the
Shareholders' Agreement.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"HIGH YIELD INVESTORS" means each of Ares Leveraged Investment Fund, L.P.,
Ares Leveraged Investment Fund II, L.P., The Xxxx Alternative Income Fund L.P.,
and TCW. [SECTION 3.04(C)]
"MAXIMUM OFFERING SIZE" means the largest number of shares which can be
sold without having an adverse effect on the contemplated offering, including,
without limitation, the price at which such shares can be sold.
"PERSON" means an individual, corporation, limited liability company,
partnership, association, trust or other entity or organization, including a
government or political subdivision or an agency or instrumentality thereof.
"PUBLIC OFFERING" means any primary or secondary public offering of Company
Common Stock of the Company pursuant to an effective registration statement
under the Securities Act other than pursuant to a registration statement filed
in connection with a transaction of the type described in Rule 145 of the
Securities Act or for the purpose of issuing securities pursuant to an employee
benefit plan.
"REGISTRABLE SECURITIES" means, at any time, with respect to a Shareholder
Party, any shares of Company Common Stock then owned by such Shareholder Party
and that were acquired by such Shareholder Party on January 29, 1999 pursuant to
that certain Subscription and Contribution Agreement dated January 29, 1999 or
on September 9,
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1999 pursuant to that certain Expansion Subscription and Contribution Agreement
until (i) a registration statement covering such Company Common Stock has been
declared effective by the SEC and such securities have been disposed of pursuant
to such effective registration statement, or (ii) such securities are sold under
circumstances in which all of the applicable conditions of Rule 144 (or any
similar provisions then in force) under the Securities Act are met or such
securities may be sold pursuant to Rule 144(k).
"REGISTRATION EXPENSES" means (i) all registration and filing fees, (ii)
fees and expenses of compliance with securities or blue sky laws (including
reasonable fees and disbursements of counsel in connection with blue sky
qualifications of the securities registered), (iii) printing expenses, (iv)
internal expenses of the Company (including, without limitation, all salaries
and expenses of its officers and employees performing legal or accounting
duties), (v) reasonable fees and disbursements of counsel for the Company and
customary fees and expenses for independent certified public accountants
retained by the Company (including expenses relating to any comfort letters or
costs associated with the delivery by independent certified public accountants
of a comfort letter or comfort letters requested pursuant to Section 4), (vi)
the reasonable fees and expenses of any special experts retained by the Company
in connection with such registration, (vii) reasonable fees and expenses of up
to one counsel to represent collectively all of the Shareholder Parties and, if
applicable, the Demanding Shareholders, participating in the offering, (viii)
fees and expenses in connection with any review of underwriting arrangements by
the National Association of Securities Dealers, Inc. (the "NASD") including fees
and expenses of any "qualified independent underwriter" and (ix) fees and
disbursements of underwriters customarily paid by issuers or sellers of
securities, but shall not include any underwriting fees, discounts or
commissions attributable to the sale of Registrable Securities, or any
out-of-pocket expenses of the Shareholder Parties or any fees and expenses of
underwriter's counsel or any other fees and expenses of underwriters.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933.
"UNDERWRITTEN PUBLIC OFFERING" means an underwritten Public Offering of
Company Common Stock consummated pursuant to an effective registration statement
under the Securities Act.
[SIGNATURE PAGES FOLLOW]
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