Exhibit 4.9
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into July 26, 2000, between CFW COMMUNICATIONS COMPANY, a Virginia
corporation (the "Company"), and LTSE HOLDINGS CORPORATION (the "Purchaser").
This Agreement is made pursuant to the Purchase Agreement dated July
21, 2000, between the Company, the Purchaser and WCAS Capital Partners III, L.P.
(the "Purchase Agreement"), which provides for the sale by the Company to the
Purchaser of an aggregate of $95,000,000 principal amount of the Company's 13.5%
Subordinated Notes due 2011 (the "Securities") and the sale by the Company to
WCAS Capital Partners III, L.P. of 300,000 warrants. In order to induce the
Purchaser to enter into the Purchase Agreement, the Company has agreed to
provide to the Purchaser and its direct and indirect transferees the
registration rights set forth in this Agreement. The execution of this
Agreement is a condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions.
As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended from time
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to time.
"1934 Act" shall mean the Securities Exchange Act of 1934, as amended
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from time to time.
"Closing Date" shall mean the Closing Date as defined in the Purchase
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Agreement.
"Company" shall have the meaning set forth in the preamble and shall
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also include the Company's successors.
"Holder" shall mean the Purchaser, for so long as it owns any
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Registrable Securities, and each of its successors, assigns and direct and
indirect transferees who become registered owners of Registrable Securities
under the Indenture.
"Indenture" shall mean the Indenture relating to the Securities dated
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as of July 26, 2000 between the Company and The Bank of New York, as
trustee, and as the same may be amended from time to time in accordance
with the terms thereof.
"Majority Holders" shall mean the Holders of a majority of the
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aggregate principal amount of outstanding Registrable Securities; provided
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that whenever the consent or approval of Holders of a specified percentage
of Registrable Securities is required hereunder, Registrable Securities
held by the Company shall not be counted in
determining whether such consent or approval was given by the Holders of
such required percentage or amount.
"Person" shall mean an individual, partnership, limited liability
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company, corporation, trust or unincorporated organization, or a government
or agency or political subdivision thereof.
"Purchase Agreement" shall have the meaning set forth in the preamble.
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"Purchaser" shall have the meaning set forth in the preamble.
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"Prospectus" shall mean the prospectus included in a Shelf
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Registration Statement, including any preliminary prospectus, and any such
prospectus as amended or supplemented by any prospectus supplement,
including a prospectus supplement with respect to the terms of the offering
of any portion of the Registrable Securities covered by a Shelf
Registration Statement, and by all other amendments and supplements to such
prospectus, and in each case including all material incorporated by
reference therein.
"Registrable Securities" shall mean the Securities; provided, however,
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that the Securities shall cease to be Registrable Securities (i) when a
shelf Registration Statement with respect to such Securities shall have
been declared effective under the 1933 Act and such Securities shall have
been disposed of pursuant to such shelf Registration Statement, (ii) when
such Securities have been sold to the public pursuant to Rule 144(k) (or
any similar provision then in force, but not Rule 144A) under the 1933 Act
or (iii) when such Securities shall have ceased to be outstanding.
"Registration Expenses" shall mean any and all expenses incident to
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performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC, stock exchange or National Association of
Securities Dealers, Inc. registration and filing fees, (ii) all fees and
expenses incurred in connection with compliance with state securities or
blue sky laws (including reasonable fees and disbursements of counsel for
any underwriters or Holders in connection with blue sky qualification of
any of the Registrable Securities), (iii) all expenses of any Persons in
preparing or assisting in preparing, word processing, printing and
distributing any shelf Registration Statement, any Prospectus, any
amendments or supplements thereto, any underwriting agreements, securities
sales agreements and other documents relating to the performance of and
compliance with this Agreement, (iv) all rating agency fees, (v) all fees
and disbursements relating to the qualification of the Indenture under
applicable securities laws, (vi) the fees and disbursements of the Trustee
and its counsel, (vii) the fees and disbursements of counsel for the
Company and the fees and disbursements of one counsel for the Holders
(which counsel shall be selected by the Majority Holders and which counsel
may also be counsel for the Purchaser) and (viii) the fees and
disbursements of the independent public accountants of the Company,
including the expenses of any special audits or "cold comfort" letters
required by or incident to such performance and compliance, but excluding
underwriting discounts and commissions and transfer taxes, if any, relating
to the sale or disposition of Registrable Securities by a Holder.
"Richmond-Norfolk Acquisition" means the acquisition by the Company of
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certain licenses and assets of the Richmond Major Trading Area owned by
PrimeCo PCS, L.P.
"SEC" shall mean the Securities and Exchange Commission.
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"Shelf Registration" shall mean a registration effected pursuant to
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Section 2(a) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
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statement of the Company pursuant to the provisions of Section 2(a) of this
Agreement which covers all of the Registrable Securities (but no other
securities unless approved by the Holders whose Registrable Securities are
covered by such Shelf Registration Statement) on an appropriate form under
Rule 415 under the 1933 Act, or any similar rule that may be adopted by the
SEC, and all amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
"Termination Date" shall have the meaning ascribed to it in the
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Indenture.
"Trustee" shall mean the trustee with respect to the Securities under
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the Indenture.
"Underwriter" shall have the meaning set forth in Section 3 hereof.
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"Underwritten Registration" or "Underwritten Offering" shall mean a
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registration in which Registrable Securities are sold to an Underwriter for
reoffering to the public.
2. Registration Under the 0000 Xxx.
(a) The Company shall use its best efforts to cause to be filed
within 275 days of the Closing Date, a Shelf Registration Statement providing
for the sale by the Holders of all of the Registrable Securities and to have
such Shelf Registration Statement declared effective by the SEC within 365 days
of the Closing Date. The Company agrees to use its best efforts to keep the
Shelf Registration Statement continuously effective until the expiration of the
period referred to in Rule 144(k) with respect to the Registrable Securities or
such shorter period that will terminate when all of the Registrable Securities
covered by the Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement. The Company further agrees to supplement or amend the
Shelf Registration Statement if required by the rules, regulations or
instructions applicable to the registration form used by the Company for such
Shelf Registration Statement or by the 1933 Act or by any other rules and
regulations thereunder for shelf registration or if reasonably requested by a
Holder with respect to material information relating to such Holder, and to use
its best efforts to cause any such amendment to become effective and such Shelf
Registration Statement to become usable as soon as thereafter practicable. The
Company agrees to furnish to the Holders of Registrable Securities copies of any
such supplement or amendment promptly after its being used or filed with the
SEC.
(b) The Company shall pay all Registration Expenses in connection
with the registration pursuant to Section 2(a). Each Holder shall pay all
underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or disposition of
such Holder's Registrable Securities pursuant to the Shelf Registration
Statement.
(c) A Shelf Registration Statement pursuant to Section 2(a) hereof
will not be deemed to have become effective unless it has been declared
effective by the SEC; provided, however, that, if, after it has been declared
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effective, the offering of Registrable Securities pursuant to a Shelf
Registration Statement is interfered with by any stop order, injunction or other
order or requirement of the SEC or any other governmental agency or court, such
Shelf Registration Statement will be deemed not effective during the period of
such interference until the offering of Registrable Securities pursuant to such
Shelf Registration Statement may legally resume. As provided for in the
Indenture, in the event the Shelf Registration Statement is not declared
effective on or prior to the date that is 365 days after the Closing Date, the
interest rate on the Securities will be increased by .5% per annum until the
Shelf Registration Statement is declared effective by the SEC.
(d) Without limiting the remedies available to the Purchasers and the
Holders, the Company acknowledges that any failure by the Company to comply with
its obligations under Section 2(a) hereof may result in material irreparable
injury to the Purchasers or the Holders for which there is no adequate remedy at
law, that it will not be possible to measure damages for such injuries precisely
and that, in the event of any such failure, the Purchasers or any Holder may
obtain such relief as may be required to specifically enforce the Company's
obligations under Section 2(a) hereof.
3. Registration Procedures.
In connection with the obligations of the Company with respect to the
Shelf Registration Statement pursuant to Section 2(a) hereof, the Company shall
as expeditiously as possible:
(a) prepare and file with the SEC a Shelf Registration Statement on
the appropriate form under the 1933 Act, which form (x) shall be selected
by the Company and (y) shall, be available for the sale of the Registrable
Securities by the selling Holders thereof and include any required
disclosure under Items 507 and 508 of Regulation S-K as requested by the
Company and provided by any Holder, and (z) shall comply as to form in all
material respects with the requirements of the applicable form and include
all financial statements required by the SEC to be filed therewith, and use
its best efforts to cause such Shelf Registration Statement to become
effective and remain effective in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Shelf Registration Statement as may be necessary to keep
such Registration Statement effective for the applicable period and cause
each Prospectus to be supplemented by any required prospectus supplement
and, as so supplemented, to be filed pursuant to Rule 424 under the 1933
Act; to keep each Prospectus current during the period described under
Section 4(3) and Rule 174 under the 1933 Act that is applicable to
transactions by brokers or dealers with respect to the Registrable
Securities;
(c) furnish to each Holder of Registrable Securities, to counsel for
the Purchasers, to counsel for the Holders and to each Underwriter of an
Underwritten Offering of Registrable Securities, if any, without charge, as
many copies of each
Prospectus, including each preliminary Prospectus, and any amendment or
supplement thereto and such other documents as such Holder or Underwriter
may reasonably request, in order to facilitate their particular public sale
or other disposition of the Registrable Securities; and the Company
consents to the use of such Prospectus and any amendment or supplement
thereto in accordance with applicable law by each of the selling Holders of
Registrable Securities and any such Underwriters in connection with the
offering and sale of the Registrable Securities covered by and in the
manner described in such Prospectus or any amendment or supplement thereto
in accordance with applicable law;
(d) use its best efforts to register or qualify the Registrable
Securities under all applicable state securities or "blue sky" laws of such
jurisdictions as any Holder of Registrable Securities covered by a Shelf
Registration Statement shall reasonably request in writing a sufficient
time prior to the date that the applicable Shelf Registration Statement is
declared effective by the SEC, to cooperate with such Holders in connection
with any filings required to be made with the National Association of
Securities Dealers, Inc. and do any and all other acts and things which may
be reasonably necessary or advisable to enable such Holder to consummate
the disposition in each such jurisdiction of such Registrable Securities
owned by such Holder; provided, however, that the Company shall not be
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required to (i) qualify as a foreign corporation or as a dealer in
securities in any jurisdiction where it would not otherwise be required to
qualify but for this Section 3(d), (ii) file any general consent to service
of process or (iii) subject itself to taxation in any such jurisdiction if
it is not so subject;
(e) notify each Holder of Registrable Securities or their counsel and
counsel for the Purchaser promptly and, if requested by any such Holder or
counsel, confirm in writing (i) when a Shelf Registration Statement has
become effective and when any post-effective amendment thereto has been
filed and becomes effective, (ii) of any request by the SEC or any state
securities authority for amendments and supplements to a Shelf Registration
Statement and Prospectus or for additional information after the Shelf
Registration Statement has become effective, (iii) of the issuance by the
SEC or any state securities authority of any stop order suspending the
effectiveness of a Shelf Registration Statement or the initiation of any
proceedings for that purpose, (iv) if, between the effective date of a
Shelf Registration Statement and the closing of any sale of Registrable
Securities covered thereby, the representations and warranties of the
Company contained in any underwriting agreement, securities sales agreement
or other similar agreement, if any, relating to the offering cease to be
true and correct in all material respects or if the Company receives any
notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation of
any proceeding for such purpose, (v) of the happening of any event during
the period a Shelf Registration Statement is effective which makes any
statement made in such Shelf Registration Statement or the related
Prospectus untrue in any material respect or which requires the making of
any changes in such Shelf Registration Statement or Prospectus in order to
make the statements therein not misleading and (vi) of any determination by
the Company that a post-effective amendment to a Shelf Registration
Statement would be appropriate;
(f) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of a Shelf Registration Statement at the
earliest possible moment and provide immediate notice to each Holder of the
withdrawal of any such order;
(g) furnish to each Holder of Registrable Securities, without charge,
at least one conformed copy of each Shelf Registration Statement and any
post-effective amendment thereto (without documents incorporated therein by
reference or exhibits thereto, unless requested);
(h) cooperate with the selling Holders of Registrable Securities to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive legends
and enable such Registrable Securities to be in such denominations
(consistent with the provisions of the Indenture) and registered in such
names as the selling Holders may reasonably request at least one business
day prior to the closing of any sale of Registrable Securities;
(i) upon the occurrence of any event contemplated by Section 3(e)(v)
hereof, use its best efforts to prepare and file with the SEC a supplement
or post-effective amendment to a Shelf Registration Statement or the
related Prospectus or any document incorporated therein by reference or
file any other required document so that, as thereafter delivered to the
purchasers of the Registrable Securities, such Prospectus will not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading. The Company agrees to notify
the Holders to suspend use of the Prospectus as promptly as practicable
after the occurrence of such an event, and the Holders hereby agree to
suspend use of the Prospectus until the Company has amended or supplemented
the Prospectus to correct such misstatement or omission;
(j) a reasonable time prior to the filing of any Shelf Registration
Statement, any Prospectus, any amendment to a Shelf Registration Statement
or amendment or supplement to a Prospectus or any document which is to be
incorporated by reference into a Shelf Registration Statement or a
Prospectus after the initial filing of a Shelf Registration Statement,
provide copies of such document to the Purchaser and its counsel and make
such of the representatives of the Company as shall be reasonably requested
by the Purchaser or its counsel available for discussion of such document,
and shall not at any time file or make any amendment to the Shelf
Registration Statement, any Prospectus or any amendment of or supplement to
a Shelf Registration Statement or a Prospectus or any document which is to
be incorporated by reference into a Shelf Registration Statement or a
Prospectus, of which the Purchaser and its counsel shall not have
previously been advised and furnished a copy or to which the Purchaser or
its counsel shall reasonably object. In the event of such objection, the
objecting party shall use its best efforts to cooperate with the Company to
resolve the matter that is the basis for the objection;
(k) obtain a CUSIP number for all Registrable Securities, as the case
may be, not later than the effective date of a Shelf Registration
Statement;
(l) cause the Indenture to be qualified under the Trust Indenture Act
of 1939, as amended (the "TIA"), in connection with the registration of the
Registrable Securities, as the case may be, cooperate with the Trustee and
the Holders to effect such changes to the Indenture as may be required for
the Indenture to be so qualified in accordance with the terms of the TIA
and execute, and use its best efforts to cause the Trustee to execute, all
documents as may be required to effect such changes and all other forms and
documents required to be filed with the SEC to enable the Indenture to be
so qualified in a timely manner;
(m) make available for inspection by a representative of the Holders
of the Registrable Securities, any Underwriter participating in any
disposition pursuant to such Shelf Registration Statement, and attorneys
and accountants designated by the Holders, at reasonable times and in a
reasonable manner, all financial and other relevant records, pertinent
documents and properties of the Company, and cause the respective officers,
directors and employees of the Company to supply all information reasonably
requested by any such representative, Underwriter, attorney or accountant
in connection with a Shelf Registration Statement;
(n) use its best efforts to cause all Registrable Securities to be
listed on any securities exchange or any automated quotation system on
which the Securities are then listed if requested by the Majority Holders,
to the extent such Registrable Securities satisfy applicable listing
requirements;
(o) if necessary and appropriate for the Shelf Registration Statement
and reasonably requested by any Holder of Registrable Securities covered by
a Shelf Registration Statement, (i) promptly incorporate in a Prospectus
supplement or post-effective amendment such information with respect to
such Holder as such Holder reasonably requests to be included therein and
(ii) make all required filings of such Prospectus supplement or such post-
effective amendment promptly after the Company has received notification of
the matters to be incorporated in such filing; and
(p) enter into such customary agreements and take all such other
actions in connection therewith (including those reasonably requested by
the Holders of a majority of the Registrable Securities being sold) in
order to expedite or facilitate the disposition of such Registrable
Securities including, but not limited to, an Underwritten Offering and in
such connection, (i) to the extent possible, make such reasonable
representations and warranties to the Holders and any Underwriters of such
Registrable Securities with respect to the business of the Company and its
subsidiaries, the Shelf Registration Statement, Prospectus and documents
incorporated by reference or deemed incorporated by reference, if any, in
each case, in form, substance and scope as are customarily made by issuers
to underwriters in underwritten offerings and confirm the same if and when
requested, (ii) obtain opinions of counsel to the Company (which counsel
and opinions, in form, scope and substance, shall be reasonably
satisfactory to the Holders and such Underwriters and their respective
counsel) addressed to each selling Holder and Underwriter of Registrable
Securities, covering the matters customarily covered in opinions requested
in underwritten offerings, (iii) obtain "cold comfort" letters from the
independent certified public accountants of the Company (and, if necessary,
any other
certified public accountant of any subsidiary of the Company, and use its
best efforts to obtain such "cold comfort" letters from any business
acquired by the Company for which financial statements and financial data
are or are required to be included in the Shelf Registration Statement)
addressed to each selling Holder and Underwriter of Registrable Securities,
such letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with
underwritten offerings, and (iv) deliver such documents and certificates as
may be reasonably requested by the Holders of a majority in principal
amount of the Registrable Securities being sold or the Underwriters, and
which are customarily delivered in underwritten offerings, to evidence the
continued validity of the representations and warranties of the Company
made pursuant to clause (i) above and to evidence compliance with any
customary conditions contained in an underwriting agreement.
The Company may require each Holder of Registrable Securities to
furnish to the Company such information regarding the Holder and the proposed
distribution by such Holder of such Registrable Securities as the Company may
from time to time reasonably request in writing. No Holder of Registrable
Securities may include its Registrable Securities in such Shelf Registration
Statement unless and until such Holder furnishes such information to the
Company.
Each Holder agrees that, upon receipt of any notice from the Company
of the happening of any event of the kind described in Section 3(e)(v) hereof,
such Holder will forthwith discontinue disposition of Registrable Securities
pursuant to a Shelf Registration Statement until such Holder's receipt of the
copies of the supplemented or amended Prospectus contemplated by Section 3(i)
hereof, and, if so directed by the Company, such Holder will deliver to the
Company (at its expense) all copies in its possession, other than permanent file
copies then in such Holder's possession, of the Prospectus covering such
Registrable Securities current at the time of receipt of such notice. If the
Company shall give any such notice to suspend the disposition of Registrable
Securities pursuant to a Shelf Registration Statement, the Company shall extend
the period during which the Shelf Registration Statement shall be maintained
effective pursuant to this Agreement by the number of days during the period
from and including the date of the giving of such notice to and including the
date when the Holders shall have received copies of the supplemented or amended
Prospectus necessary to resume such dispositions. The Company may give any such
notice only twice during any 365 day period and any such suspensions may not
exceed 30 days for each suspension and there may not be more than two
suspensions in effect during any 365 day period.
The Holders of Registrable Securities covered by a Shelf Registration
Statement who desire to do so may sell such Registrable Securities in an
Underwritten Offering. In any such Underwritten Offering, the investment banker
or investment bankers and manager or managers (the "Underwriters") that will
administer the offering will be selected by the Majority Holders of the
Registrable Securities included in such offering.
4. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless the Purchaser,
each Holder and each Person, if any, who controls the Purchaser or any Holder
within the meaning of either Section 15 of the 1933 Act or Section 20 of the
1934 Act, or is under common control with, or is controlled by, the Purchaser or
any Holder, from and against all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably
incurred by the Purchaser, any Holder or any such controlling or affiliated
Person in connection with defending or investigating any such action or claim)
caused by any untrue statement or alleged untrue statement of a material fact
contained in any Shelf Registration Statement (or any amendment thereto)
pursuant to which Registrable Securities were registered under the 1933 Act,
including all documents incorporated therein by reference, 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, or
caused by any untrue statement or alleged untrue statement of a material fact
contained in any Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), or caused by any omission
or alleged omission to state therein a material fact necessary to make the
statements therein in light of the circumstances under which they were made not
misleading, except insofar as such losses, claims, damages or liabilities are
caused by any such untrue statement or omission or alleged untrue statement or
omission based upon information relating to the Purchaser or any Holder
furnished to the Company in writing by the Purchaser or any selling Holder
expressly for use therein. In connection with any Underwritten Offering
permitted by Section 3, the Company will also indemnify the Underwriters, if
any, selling brokers, dealers and similar securities industry professionals
participating in the distribution, their officers and directors and each Person
who controls such Persons (within the meaning of the 1933 Act and the 0000 Xxx)
to the same extent as provided above with respect to the indemnification of the
Holders, if requested in connection with any Shelf Registration Statement.
(b) Each Holder agrees, severally and not jointly, to indemnify and
hold harmless the Company, the Purchaser and the other selling Holders, and each
of their respective directors, officers who sign the Shelf Registration
Statement and each Person, if any, who controls the Company, the Purchaser and
any other selling Holder within the meaning of either Section 15 of the 1933 Act
or Section 20 of the 1934 Act to the same extent as the foregoing indemnity from
the Company to the Purchasers and the Holders, but only with reference to
information relating to such Holder furnished to the Company in writing by such
Holder expressly for use in any Shelf Registration Statement (or any amendment
thereto) or any Prospectus (or any amendment or supplement thereto).
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any Person in respect of which indemnity may be
sought pursuant to either paragraph (a) or paragraph (b) above, such Person (the
"indemnified party") shall promptly notify the Person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
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, (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them, (iii) the indemnifying party shall not have
employed counsel reasonably satisfactory to the indemnified party to represent
the indemnified party within a reasonable time after notice of the institution
of such action or (iv) the indemnifying party shall have authorized the
indemnified party to employ
separate counsel at the expense of the indemnifying party. It is understood that
the indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for (a) the fees and expenses of
more than one separate firm (in addition to any local counsel) for the Purchaser
and all Persons, if any, who control the Purchaser within the meaning of either
Section 15 of the 1933 Act or Xxxxxxx 00 xx xxx 0000 Xxx, (x) the fees and
expenses of more than one separate firm (in addition to any local counsel) for
the Company, its directors, its officers who sign the Shelf Registration
Statement and each Person, if any, who controls the Company within the meaning
of either such Section and (c) the fees and expenses of more than one separate
firm (in addition to any local counsel) for all Holders and all Persons, if any,
who control any Holders within the meaning of either such Section, and that all
such fees and expenses shall be reimbursed as they are incurred. In such case
involving the Purchaser and Persons who control the Purchaser, such firm shall
be designated in writing by the Purchaser. In such case involving the Holders
and such Persons who control Holders, such firm shall be designated in writing
by the Majority Holders. In all other cases, such firm shall be designated by
the Company. 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 agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or 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 such
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 claim, action, suit or proceeding.
(d) If the indemnification provided for in paragraph (a) or paragraph
(b) of this Section 4 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities, then each indemnifying
party under such paragraph, in lieu of indemnifying such indemnified party
thereunder, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party or parties on the one hand and of the indemnified party or parties on the
other hand in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company and the Holders 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 or by the Holders
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Holders'
respective obligations to contribute pursuant to this Section 4(d) are several
in proportion to the respective principal amount of Registrable Securities of
such Holder that were registered pursuant to a Shelf Registration Statement.
(e) The Company and each Holder agree that it would not be just or
equitable if contribution pursuant to this Section 4 were determined by pro rata
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allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in paragraph (d) above. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in paragraph (d) above 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 4, no Holder shall be
required to indemnify or contribute any amount in excess of the amount by which
the total price at which Registrable Securities were sold by such Holder exceeds
the amount of any damages that such Holder 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 0000 Xxx) shall be entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation. The remedies
provided for in this Section 4 are not exclusive and shall not limit any rights
or remedies, which may otherwise be available to any indemnified party at law or
in equity.
The indemnity and contribution provisions contained in this Section 4
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
the Purchaser, any Holder or any Person controlling the Purchaser or any Holder,
or by or on behalf of the Company, its officers or directors or any Person
controlling the Company and (iii) any sale of Registrable Securities pursuant to
a Shelf Registration Statement.
5. Miscellaneous.
(a) No Inconsistent Agreements. The Company has not entered into, and
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on or after the date of this Agreement will not enter into, any agreement which
is inconsistent with the rights granted to the Holders of Registrable Securities
in this Agreement or otherwise conflicts with the provisions hereof. The rights
granted to the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Company's other
issued and outstanding securities under any such agreements.
(b) Amendments and Waivers. The provisions of this Agreement,
----------------------
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company has obtained the written consent of Holders
of at least a majority in aggregate principal amount of the outstanding
Registrable Securities affected by such amendment, modification, supplement,
waiver or consent; provided, however, that no amendment, modification,
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supplement, waiver or consent to any departure from the provisions of Section 4
hereof shall be effective as against any Holder of Registrable Securities unless
consented to in writing by such Holder.
(c) Notices. All notices and other communications provided for or
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permitted hereunder shall be made in writing by hand-delivery, registered first-
class mail, telex, telecopier, or any courier guaranteeing overnight delivery
(i) if to a Holder, at the most current address given by such Holder to the
Company by means of a notice given in accordance with the provisions of this
Section 5(c), which address initially is, with respect to the Purchaser, the
address set forth in the Purchase Agreement; and (ii) if to the Company,
initially at the Company's address set forth in the Purchase Agreement and
thereafter at such other address, notice of which is given in accordance with
the provisions of this Section 5(c).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and on
the next business day if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
(d) Successors and Assigns. This Agreement shall inure to the benefit
----------------------
of and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders; provided that nothing herein shall be deemed to
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permit any assignment, transfer or other disposition of Registrable Securities
in violation of the terms of the Placement Agreement. If any transferee of any
Holder shall acquire Registrable Securities, in any manner, whether by operation
of law or otherwise, such Registrable Securities shall be held subject to all of
the terms of this Agreement, and by taking and holding such Registrable
Securities such Person shall be conclusively deemed to have agreed to be bound
by and to perform all of the terms and provisions of this Agreement and such
Person shall be entitled to receive the benefits hereof. The Purchaser shall
have no liability or obligation to the Company with respect to any failure by a
Holder to comply with, or any breach by any Holder of, any of the obligations of
such Holder under this Agreement.
(e) Purchases and Sales of Securities. The Company shall not, and
---------------------------------
shall use its best efforts to cause its affiliates (as defined in Rule 405 under
the 0000 Xxx) not to, purchase and then resell or otherwise transfer any
Securities.
(f) Third Party Beneficiary. The Holders shall be third party
-----------------------
beneficiaries to the agreements made hereunder between the Company, on the one
hand, and the Purchaser, on the other hand, and shall have the right to enforce
such agreements directly to the extent it deems such enforcement necessary or
advisable to protect its rights or the rights of Holders hereunder.
(g) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
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reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. This Agreement shall be governed by the laws of
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the State of New York.
(j) Severability. In the event that any one or more of the provisions
------------
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
CFW COMMUNICATIONS COMPANY
By:_____________________
Name:
Title:
Confirmed and accepted as of
the date first above written:
LTSE HOLDINGS CORPORATION
By:___________________________
Name:
Title:
