Exhibit F
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT, dated as of
October 18, 1999 (this "Agreement"), is entered into by and among
CONVERGENCE COMMUNICATIONS, INC., a Nevada corporation (the "Company"),
PEGASUS GROUP, L.P., ("Pegasus"), FONDELEC ESSENTIAL SERVICES GROWTH FUND,
L.P., a Cayman Islands limited partnership ("FESGF"), INTERNEXUS S.A., an
Argentine sociedad anonima ("Internexus"), TELEMATICA EDC, C.A., a
Venezuelan compania anonima ("Telematica"), TCW/CCI HOLDING LLC, a Delaware
limited liability company ("TCW"), INTERNATIONAL FINANCE CORPORATION, an
international organization established by Articles of Agreement among its
member countries ("IFC"), GLACIER LATIN-AMERICA LTD., a British Virgin
Islands International Business Company ("Glacier"), and XXXXX X'XXXXXXXX,
XXXX X'XXXXXXXX and the ESTATE OF XXXXXX X. X'XXXXXXXX (collectively, the
"D'Ambrosios"). Pegasus, FESGF, Internexus, Telematica, TCW, IFC and
Glacier are collectively referred to herein as the "Purchasers" and each
may be singularly referred to herein as a "Purchaser."
WHEREAS, Pegasus, FESGF, Internexus and the D'Ambrosios currently
hold shares of the Common Stock of the Company and all such parties other
than the D'Ambrosios currently hold Original Warrants (as defined below) to
acquire additional shares of the Common Stock of the Company, all as more
particularly described on Schedule 1 hereto;
WHEREAS, pursuant to the terms of those certain Registration Rights
Agreements dated February 4, 1997, December 23, 1998, June 15, 1999, August
6, 1999, September 3, 1999 and October 1, 1999 (the "Original Agreements"),
the Company granted Pegasus, FESGF and Internexus certain rights relating
to the registration by the Company of the Common Stock to be acquired by
them under such Original Warrants;
WHEREAS, pursuant to the terms of that certain Participation
Agreement dated October 15, 1999 among the Company and the Purchasers other
than Pegasus (the "Participation Agreement"), the Purchasers other than
FondElec and Internexus have agreed to acquire shares of the Company's
Series C Preferred Stock, options to acquire additional shares of Series C
Preferred Stock, and Series C Warrants (as defined below) for cash, and
FESGF and Internexus have agreed to convert certain amounts due them by the
Company into shares of the Company's Series C Preferred Stock, options to
acquire additional shares of the Company's Series C Preferred Stock, Series
C Warrants (as defined below) and FondElec/Internexus Warrants (as defined
below);
WHEREAS, it is a condition precedent to the acquisition of those
securities by such Purchasers under the Participation Agreement that the
Company provide certain registration rights to them in accordance with the
terms hereof;
WHEREAS, to facilitate the consummation of the transactions
contemplated by the Participation Agreement, the Company also desires to
grant to the D'Ambrosios certain registration rights;
WHEREAS, the parties desire that Telematica, TCW, IFC and Glacier
join in the execution of, and be granted, the registration rights granted
Pegasus, FESGF and Internexus pursuant to the Original Agreements and that,
in connection therewith, this Agreement be substituted in the place of, and
replace in their entirety, the Original Agreements; and
WHEREAS, the parties intend that this Agreement constitute the
"Registration Rights Agreement," as defined in the Participation Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and for
other good and valuable consideration, the adequacy and receipt of which
are hereby acknowledged, the parties hereto hereby agree that the Original
Agreements are hereby amended and restated in their entirety as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. The following terms shall have the
meanings ascribed to them below:
"Agreement" means this Agreement, as amended, modified or
supplemented from time to time, in accordance with the terms hereof,
together with any exhibits, schedules or other attachments thereto.
"Business Day" means any day that is not a Saturday, Sunday or
a day on which banking institutions in New York, New York are authorized or
obligated by law, executive order or government decree to be closed.
"CCI Shareholders' Agreement" means the CCI Shareholders'
Agreement, as that term is defined in the Participation Agreement.
"Closing" has the meaning given it in the Participation Agreement.
"Closing Date" has the meaning given it in the Participation
Agreement.
"Commission" means the United States Securities and Exchange
Commission or any other federal agency at the time administering the
Securities Act.
"Common Stock" means the common stock, par value $.001 per
share, of the Company.
"Company" has the meaning ascribed thereto in the introduction
hereof.
"Controlling Person" means a Controlling Person as defined in
Section 4.1.
"Damages" means Damages as defined in Section 4.1.
"Demand Registration" means a Demand Registration as defined in
Section 2.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"FESGF" has the meaning ascribed thereto in the introduction
hereof.
"FondElec/Internexus Warrants" means the FondElec/Internexus
Warrants, as that term is defined in the Participation Agreement.
"Glacier" has the meaning ascribed thereto in the introduction
hereof.
"Holder" means any Person who now holds or shall hereafter
acquire and hold Registrable Securities.
"IFC" has the meaning ascribed thereto in the introduction hereof.
"Indemnified Party" means an Indemnified Party as defined in
Section 4.3.
"Indemnifying Party" means an Indemnifying Party as defined in
Section 4.3.
"Internexus" has the meaning ascribed thereto in the introduction
hereof.
"Market Price" means, with respect to the shares of Common
Stock, (a) if the shares are listed or admitted for trading on any national
securities exchange or included in The Nasdaq National Market or Nasdaq
SmallCap Market, the last reported sales price as reported on such exchange
or market; (b) if the shares are not listed or admitted for trading on any
national securities exchange or included in The Nasdaq National Market or
Nasdaq SmallCap Market, the average of the last reported closing bid and
asked quotation for the shares as reported on the National Association of
Securities Dealers Automated Quotation System ("NASDAQ") or a similar
service if NASDAQ is not reporting such information; (c) if the shares are
not listed or admitted for trading on any national securities exchange or
included in The Nasdaq National Market or Nasdaq SmallCap Market or quoted
by NASDAQ or a similar service, the average of the last reported bid and
asked quotation for the shares as quoted by a market maker in the shares
(or if there is more than one market maker, the bid and asked quotation
shall be obtained from two market makers and the average of the lowest bid
and highest asked quotation). In the absence of any available public
quotations for the Common Stock, the Board of Directors of the Company
shall determine in good faith the fair value of the Common Stock, which
determination shall be set forth in a certificate by the Secretary of the
Company. "New Registrable Securities" means (i) the shares of Common Stock
issued or issuable upon exercise of the FondElec/Internexus Warrants or
Series C Warrants or upon the conversion of the Series C Convertible
Preferred Stock (whether acquired by a Purchaser under the terms of the
Participation Agreement at the Closing or Subsequent Closing, pursuant to
the Option, or pursuant to Section 7 of the Participation Agreement), (ii)
the shares of Common Stock held by FondElec and Internexus as of the date
hereof or acquired by either of them in the exercise of the Original
Warrants or options described in Schedule 1 hereto, and (iii) any shares of
Common Stock acquired as a result of stock splits, stock dividends,
reclassifications, recapitalizations, or similar events relating to the
shares described in clauses (i) and (ii) above.
"Old Registrable Securities" means (i) any shares of Common
Stock held by a Holder, as of the date hereof other than New Registrable
Securities, and (ii) any shares of Common Stock acquired as a result of
stock splits, stock dividends, reclassifications, recapitalizations, or
similar events relating to the shares described in clause (i) above.
"Option" means the nine month option to acquire Series C
Preferred Stock issued to Telematica, TCW, IFC, Glacier, FESGF and
Internexus, as described in the Participation Agreement.
"Original Warrants" means the warrants to acquire shares of
Common Stock issued to Pegasus, FESGF and Internexus in connection with the
Original Agreements.
"Pegasus" has the meaning ascribed thereto in the introduction
hereof.
"Person" has the meaning given it in the Participation Agreement.
"Piggy-Back Registration" means a Piggy-Back Registration as
defined in Section 2.3.
"Prospectus" means the prospectus included in any Registration
Statement (including without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an
effective Registration Statement in reliance upon Rule 430A promulgated
under the Securities Act), as amended or supplemented by any prospectus
supplement with respect to the terms of the offering of any portion of the
securities covered by such Registration Statement, and all other amendments
and supplements to the prospectus, including post-effective amendments, and
all material incorporated by reference or deemed to be incorporated by
reference in such prospectus.
"Purchase Agreement" has the meaning ascribed thereto in the
introduction hereof.
"Purchasers" has the meaning ascribed thereto in the introduction
hereof.
"Registrable Securities" means New Registrable Securities and
Old Registrable Securities, in each case until such time as (x) a
Registration Statement covering such shares of Common Stock has been
declared effective by the Commission and such shares of Common Stock have
been disposed of pursuant to such effective Registration Statement, or (y)
such shares of Common Stock would be saleable pursuant to Rule 144 under
the Securities Act (or any similar provisions then in force) without regard
to the volume limitations set forth in Rule 144(e), or (z) such shares of
Common Stock have been otherwise transferred and the Company has delivered
a new certificate or other evidence of ownership for such Common Stock not
bearing a restrictive legend and not subject to any stop transfer or
similar restrictive order and all of such Common Stock may be resold by the
Person receiving such certificate without complying with the registration
requirements of the Securities Act.
"Registration Statement" means any registration statement of
the Company filed under the Securities Act which covers any of the
Registrable Securities pursuant to the provisions of this Agreement,
including the Prospectus, amendments and supplements to such registration
statement, including post-effective amendments, all exhibits and all
material incorporated by reference in such registration statement.
"Request" means a Request as defined in Section 2.1(a).
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Selling Holder" means a Holder who is selling Registrable
Securities pursuant to a Registration Statement under the Securities Act.
"Selling Holders' Counsel" means the counsel selected to
represent the Selling Holders as set forth in Section 3.1(c).
"Series C Preferred Stock" means the Series C Convertible
Preferred Stock, par value $.001 per share, of the Company.
"Series C Warrants" means the warrants to acquire shares of
Series C Preferred Stock issued to FESGF, Internexus, Telematica, TCW, IFC
and Glacier under the terms of the Participation Agreement.
"Shareholder Parties" has the meaning given that term in the
CCI Shareholders' Agreement.
"Subsequent Closing" has the meaning given it in the
Participation Agreement.
"TCW" has the meaning ascribed thereto in the introduction hereof.
"Telematica" has the meaning ascribed thereto in the introduction
hereof.
"Underwriter" means a securities dealer who purchases any
Registrable Securities as principal in an underwritten offering and not as
part of such dealer's market-making activities.
ARTICLE II
REGISTRATION RIGHTS
Section 2.1 Performance Part of Series of Transactions. The
Parties acknowledge and agree that the performance provided for in this
Agreement is part of a series of transactions which, pursuant to the
Participation Agreement, are to occur simultaneously and subject to certain
conditions precedent as provided for therein, including the Closing and the
execution of the CCI Shareholders' Agreement which, among other things,
provides for certain restrictions on transfer of the Registrable
Securities. The parties do not intend that this Agreement diminish or
otherwise modify the restrictions on transfer set forth in the CCI
Shareholders' Agreement, and this Agreement shall be construed consistent
with that intent.
Section 2.2 Demand Registration.
(a) Request for Registration. Subject to the limitations
contained in this Section 2.2(a), at any time after the first anniversary
of the Closing Date any Holder or Holders of an aggregate of New
Registrable Securities representing 20% or more of all the New Registrable
Securities may make written requests (individually, a "Request") on the
Company for the registration of the offer and sale of some or all of the
Holders' New Registrable Securities under the Securities Act (such
registration being hereinafter referred to as a "Demand Registration").
Subject to the penultimate sentence of Section 2.2(b), the Company shall
have no obligation to effect more than three (3) Demand Registrations. Any
Request will specify the number of New Registrable Securities proposed to
be sold and the intended method(s) of disposition thereof and shall also
state the intent of the Holder to offer New Registrable Securities for
sale. The Company shall give written notice of such Request within 10 days
after the receipt thereof to all other Holders. Within 20 days after
receipt of such notice by any such Holder, such Holder may request in
writing that all or any portion of its New Registrable Securities be
included in such Registration Statement and the Company shall include in
the Registration Statement for such Demand Registration the New Registrable
Securities of all Holders that requested to be so included. Each such
request by such other Holders shall specify the number of New Registrable
Securities proposed to be sold and the intended method(s) of disposition
thereof and shall also state the intent of the Holder to offer New
Registrable Securities for sale. Notwithstanding the foregoing, the Company
shall not be requested to effect a Demand Registration unless the Request
has been made at least 180 days since the last Registration Statement
(other than a shelf registration under Rule 415 of the Securities Act or a
Registration Statement on Form S-8) was filed by the Company.
(b) Effective Registration. A registration will not be
deemed to have been effected as a Demand Registration unless the
Registration Statement relating thereto has been declared effective by the
Commission and the Company has complied in all material respects with its
obligations under this Agreement with respect thereto; provided that if,
after the Registration Statement has become effective, the offering and/or
sale of New Registrable Securities pursuant to such Registration Statement
is or becomes the subject of any stop order, injunction or other order or
requirement of the Commission or any other governmental or administrative
agency, or if any court or other governmental or quasi-governmental agency
prevents or otherwise limits the offer and/or sale of the New Registrable
Securities pursuant to the Registration Statement, other than in each case
primarily as a result of acts or omissions of the Holder or any agent
thereof, such registration will be deemed not to have been effected. If (i)
a registration requested pursuant to this Section 2.2 is deemed not to have
been effected or (ii) the Registration Statement relating to a Demand
Registration requested pursuant to this Section 2.2 does not remain
effective for a period of at least 180 consecutive days beyond the
effective date thereof or, with respect to an underwritten offering of New
Registrable Securities, until 45 days after the commencement of the
distribution by the Holders of the New Registrable Securities included in
such Registration Statement, then the Company shall continue to be
obligated to effect such New Registration pursuant to this Section 2.2. The
Holders shall be permitted to withdraw all or any part of the New
Registrable Securities from a Registration Statement at any time prior to
the effective date of such Demand Registration Statement; provided that in
the event of such withdrawal, such Holders shall be responsible for the
fees and expenses referred to in Section 3.2(viii) hereof incurred by such
Holders with respect to such Demand Registration prior to such withdrawal.
(c) Limitations. At such time as the New Registrable
Securities may be registered on Form S-2 or Form S-3, as the case may be
(or any similar form or forms promulgated by the SEC), the Holders of New
Registrable Securities shall have unlimited rights to request registration
of their shares on Form S-2 or Form S-3, as the case may be, or any such
similar form. Registrations effected on Form S-2 and Form S-3 shall not be
counted towards the limit on Demand Registrations under Section 2.2(a).
(d) Selection of Underwriter. If a requested registration
pursuant to this Section 2.2 involves an underwritten offering, the
managing Underwriter(s) thereof shall be selected by the Selling Holders
and shall be reasonably acceptable to the Company unless the Company has
theretofore sold shares of Common Stock in an underwritten offering, in
which case the managing Underwriter(s) of a requested registration pursuant
to this Section 2.2 shall be selected by the Company and shall be
reasonably acceptable to the Selling Holders.
(e) Deferral of Registration. Notwithstanding any other
provision of this Section 2, the Company shall not be obligated to effect
the filing of a Registration Statement pursuant to Section 2.2(a) hereof
(i) during any period when there exists an effective Registration Statement
covering any New Registrable Securities, or (ii) for a period not to exceed
90 days, if the Company shall furnish to the Holders requesting a
Registration Statement under Section 2(a) hereof a certificate, signed by
the Company, stating that in the good faith judgment of the Board of
Directors of the Company it would be detrimental to the best interests of
the Company and its stockholders generally for such Registration Statement
to be filed at that time; provided that in such event, the Holders
initiating the request for registration will be entitled to withdraw such
request.
Section 2.3 Piggy-Back Registration. If at any time after the
first anniversary of the Closing Date the Company proposes to file a
Registration Statement under the Securities Act with respect to an offering
by the Company for its own account (including for the purpose of effecting
any transaction approved by the Company's board of directors under the
terms of Section 6(b)(vi) or Section 6(c)(i) of the CCI Shareholders'
Agreement, or which the Shareholder Parties agree to proceed with under the
terms of Section 9 of the CCI Shareholders' Agreement, which the Company
hereby agrees to undertake) or for the account of any of its respective
security holders (other than a Registration Statement on Form S-4 or Form
S-8 or on any other form inappropriate for an underwritten public offering
or related solely to securities to be issued in a merger, acquisition of
the stock or assets of another entity or in a similar transaction (or any
substitute form that may be adopted by the Commission), including a
Registration Statement pursuant to a Demand Registration under Section
2.2), then the Company shall give written notice of such proposed filing to
the Holders as soon as practicable (but in no event less than 30 days
before the anticipated filing date), and such notice shall offer such
Holders the opportunity to register such number of New Registrable
Securities as each such Holder may request (which request shall specify the
New Registrable Securities intended to be disposed of by such Holder and
shall also state the intent of the Holder to offer New Registrable
Securities for sale) (a "Piggy-Back Registration"). The Company shall use
all reasonable efforts to cause the managing Underwriter or Underwriters of
a proposed underwritten offering to permit the New Registrable Securities
requested to be included in a Piggy-Back Registration to be included on the
same terms and conditions as any similar securities of the Company or any
other security holder included therein and to permit the sale or other
disposition of such New Registrable Securities in accordance with the
intended method of distribution thereof. Any Holder shall have the right to
withdraw its request for inclusion of its New Registrable Securities in any
Registration Statement pursuant to this Section 2.3 by giving written
notice to the Company of its request to withdraw, provided that in the
event of such withdrawal (other than pursuant to Section 2.5(c) hereof),
such Holder shall be responsible for the fees and expenses referred to in
Section 3.2(viii) hereof incurred by such Holder prior to such withdrawal
relating to such Registration Statement. The Company may withdraw a
Piggy-Back Registration at any time prior to the time it becomes effective.
No registration effected under this Section 2.3, and no failure
to effect a registration under this Section 2.3, shall relieve the Company
of its obligation to effect a registration upon the request of Holders
pursuant to Section 2.2, and no failure to effect a registration under this
Section 2.3 and to complete the sale of New Registrable Securities in
connection therewith shall relieve the Company of any other obligation
under this Agreement (including, without limitation, the Company's
obligations under Sections 3.2 and 4.1).
Section 2.4 Special Registration. If at any time after the
first anniversary of the Closing Date the registration (whether pursuant to
a Demand Registration or a Piggy-Back Registration) of some or all of a
Holder's Old Registrable Securities under the Securities Act is required or
advisable for the Holders of the Old Registrable Securities to (i)
effectuate any transaction approved by the Company's board of directors
under the terms of Section 6(b)(vi) or Section 6(c)(i) of the CCI
Shareholders' Agreement, (ii) exercise their rights under the provisions of
Section 3(b) of the CCI Shareholders' Agreement, or (iii) effectuate any
transaction that the Shareholder Parties agree to proceed with under the
provisions of Section 9 of the CCI Shareholders' Agreement, then the
Company shall offer to the Holders of such Old Registrable Securities (but
in no event less than 30 days before the anticipated filing date) the
ability to register such number of Old Registrable Securities (subject to
the limitations of clauses (i), (ii) or (iii) above as such Holders may
request (which request shall specify the Old Registrable Securities
intended to be disposed of by such Holders and which shall state the firm
intent of such Holders to offer such Old Registrable Securities for sale).
The Company shall use all reasonable efforts to cause or permit such Old
Registrable Securities to be included on the same terms and conditions as
any similar securities of the Company or any other security holder included
therein and to permit the registration, sale or other disposition of such
Old Registrable Securities in accordance with the intended method of
registration and distribution thereof.
Section 2.5 Reduction of Offering.
(a) Demand Registration. The Company may include in a
Demand Registration pursuant to Section 2.2 securities of the same class as
the Registrable Securities for the account of the Company and any other
Persons who hold securities of the same class as the Registrable Securities
on the same terms and conditions as the Registrable Securities to be
included therein; provided, however, that (i) if the managing Underwriter
or Underwriters of any underwritten offering described in Section 2.2 have
informed the Company in writing that it is their opinion that the total
number of Registrable Securities, and securities of the same class as the
Registrable Securities which Holders, the Company and any other Persons
desiring to participate in such registration intend to include in such
offering is such as to materially and adversely affect the success of such
offering, then the number of shares to be offered for the account of the
Company and for the account of all such other Persons (other than the
Holders) participating in such registration shall be reduced or limited pro
rata in proportion to the respective number of shares requested to be
registered to the extent necessary to reduce the total number of shares
requested to be included in such offering to the number of shares, if any,
recommended by such managing Underwriter or Underwriters, and (ii) if the
offering is not underwritten, no other Person, including the Company, shall
be permitted to offer securities under any such Demand Registration unless
the Selling Holders owning a majority-in-interest of Common Stock to be
sold consent to the inclusion of such shares therein.
(b) Piggy-Back Registration.
(i) Notwithstanding anything contained herein, if
the managing Underwriter or Underwriters of any underwritten offering
described in Section 2.3 have informed, in writing, the Holders
requesting inclusion in such offering that it is their opinion that
the total number of shares which the Company, Holders and any other
Persons holding securities of the same class as the Registrable
Securities desiring to participate in such registration intend to
include in such offering is such as to materially and adversely
affect the success of such offering, then, the Company will include
in such registration (A) first, all the shares the Company offered
for its own account, if any, (B) then, if additional shares may be
included in such registration without materially and adversely
affecting the success of such offering, the shares offered by the
holders of securities as a result of their exercise of "demand"
registration rights by such holders, if any, and (C) then, if
additional shares may be included in such registration without
materially and adversely affecting the success of such offering, the
number of shares offered by the Holders and such other holders of
securities of the same class as the Registrable Securities whose
piggy-back registration rights may not be reduced without violating
their contractual rights (provided such contractual rights were in
existence prior to the date of this Agreement), on a pro rata basis
in proportion to the relative number of Registrable Securities of the
holders (including the Holders) participating in such registration.
(ii) If the managing Underwriter or Underwriters of
any underwritten offering described in Section 2.3 notify the Holders
requesting inclusion in such offering that the kind of securities
that the Holders, the Company and any other Persons desiring to
participate in such registration intend to include in such offering
is such as to materially and adversely affect the success of such
offering, (A) the Registrable Securities to be included in such
offering shall be reduced as described in clause (i) above or (B) if
such reduction would, in the judgment of the managing Underwriter or
Underwriters, be insufficient to substantially eliminate the material
adverse effect that inclusion of the Registrable Securities requested
to be included would have on such offering, such Registrable
Securities will be excluded from such offering.
(c) Withdrawal. If, as a result of the proration
provisions of this Section 2.5, any Holder shall not be entitled to include
all Registrable Securities in a Demand Registration or Piggy-Back
Registration that such Holder has requested to be included, such Holder may
elect to withdraw his request to include Registrable Securities in such
registration; provided, however, that if a Holder withdraws his request
pursuant to this Paragraph 2.5(c), the Company shall be responsible for the
fees and expenses referred to in Section 3.2(viii) hereof.
(d) Holdback Agreements. If any registration of
Registrable Securities shall be in connection with an underwritten public
offering, each Holder agrees not to effect any public sale or distribution,
including any sale pursuant to Rule 144 under the Securities Act, of any
Registrable Securities, and not to effect any such public sale or
distribution of any other equity security of the Company or of any security
convertible into or exchangeable or exercisable for any equity security of
the Company (in each case, other than as part of such underwritten public
offering) during the seven (7) days prior to, and during the one hundred
eighty (180) day period beginning on, the effective date of such
Registration Statement (except as part of such registration).
ARTICLE III
REGISTRATION PROCEDURES
Section 3.1 Filings; Information. Whenever the Company is
required to effect or cause the registration of the offer and sale of
Registrable Securities pursuant to Section 2.2 or 2.3 hereof, including
where such registration shall be required in order to (i) effectuate any
transaction approved by the Company's board of directors under the terms of
Section 6(b)(vi) or Section 6(c)(i) of the CCI Shareholders' Agreement, or
(ii) effectuate any transaction that the Shareholder Parties agree to
proceed with under the provisions of Section 9 of the CCI Shareholders'
Agreement, the Company will use its best efforts to effect the registration
of the offer and the sale of such Registrable Securities in accordance with
the intended method(s) of disposition thereof as quickly as practicable,
and in connection with any such request:
(a) Registration Filing. The Company will prepare and
file with the Commission a Registration Statement with respect to the offer
and sale of such securities and use its best efforts to cause such
Registration Statement to become and remain effective until the completion
of the distribution contemplated thereby; provided, however, the Company
shall not be required to keep such Registration Statement effective for
more than 180 days (or such shorter period which will terminate when all
Registrable Securities covered by such Registration Statement have been
sold, but not prior to the expiration of the applicable period referred to
in Section 4(3) of the Securities Act and Rule 174 thereunder, if
applicable); provided, further, that with respect to a Demand Registration,
the Company shall use its best efforts to file with the Commission a
Registration Statement as soon as is practicable after the date of the
Request and in any event no later than 60 days after the date of the
Request for the Demand Registration and shall use its best efforts to cause
such Registration Statement to be declared effective as soon as is
practicable after the date of filing and in any event no later than 180
days after the date of such Request.
(b) Amendments. The Company will prepare and file with
the Commission such amendments and post-effective amendments to the
Registration Statement as may be necessary to keep such Registration
Statement effective for as long as such registration is required to remain
effective pursuant to the terms hereof; cause the Prospectus to be
supplemented by any required Prospectus supplement, and, as so
supplemented, to be filed pursuant to Rule 424 under the Securities Act;
and comply with the provisions of the Securities Act applicable to it with
respect to the disposition of all Registrable Securities covered by such
Registration Statement during the applicable period in accordance with the
intended methods of disposition by the Selling Holders set forth in such
Registration Statement or supplement to the Prospectus.
(c) Copies. The Company, at least ten (10) Business Days
prior to filing a Registration Statement or at least five (5) Business Days
prior to filing a Prospectus or any amendment or supplement to such
Registration Statement or Prospectus, will furnish to (i) each Selling
Holder, (ii) not more than one counsel representing all Selling Holders
("Selling Holders' Counsel"), to be selected by a majority-in-interest of
such Selling Holders, and (iii) each Underwriter, if any, of the
Registrable Securities covered by such Registration Statement copies of
such Registration Statement as proposed to be filed, together with exhibits
thereto, which documents will be subject to review and approval by each of
the foregoing within five (5) Business Days after delivery (except that
such review and approval of any Prospectus or any amendment or supplement
to such Registration Statement or Prospectus must be within three (3)
Business Days after delivery), and thereafter, furnish to such Selling
Holders, Selling Holders' Counsel and Underwriters, if any, such number of
conformed 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 or information as such Selling Holders, Selling
Holders' Counsel or Underwriters may reasonably request in order to
facilitate the disposition of the Registrable Securities (it being
understood that the Company consents to the use of the Prospectus and any
amendment or supplement thereto by each Selling Holder and the
Underwriters, if any, in connection with the offering and sale of the
Registrable Securities covered by such Prospectus or any amendment or
supplement thereto).
(d) No Stop Orders. The Company will take all reasonable
actions required to prevent the entry of such stop order or to remove it at
the earliest possible moment if entered.
(e) Blue Sky Filings. On or prior to the date on which
the Registration Statement is declared effective, use its best efforts to
register or qualify such Registrable Securities under such other securities
or "blue sky" laws of such jurisdictions as any Selling Holder, Selling
Holders' Counsel or Underwriter reasonably requests and do any and all
other acts and things which may be necessary or advisable to enable such
Selling Holder to consummate the disposition in such jurisdictions of such
Registrable Securities owned by such Selling Holder; use its best efforts
to keep each such registration or qualification (or exemption therefrom)
effective during the period which the Registration Statement is required to
be kept effective; and use its best efforts to do any and all other acts or
things necessary or advisable to enable the disposition in such
jurisdictions of the Registrable Securities covered by the applicable
Registration Statement; provided that the Company will not be required to
(i) qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this paragraph (e), (ii) subject
itself to taxation in any such jurisdiction or (iii) consent to general
service of process in any such jurisdiction.
(f) Post-Effective Matters. The Company will notify each
Selling Holder, Selling Holders' Counsel and any Underwriter and (if
requested by any such Person) confirm such notice in writing, (i) when a
Prospectus or any Prospectus supplement or post-effective amendment has
been filed and, with respect to a Registration Statement or any
post-effective amendment, when the same has become effective, (ii) of the
issuance by the Commission of any stop order suspending the effectiveness
of a Registration Statement or the initiation or threatening of any
proceedings for that purpose, (iii) of the issuance by any state securities
commission or other regulatory authority of any order suspending the
qualification or exemption from qualification of any of the Registrable
Securities under state securities or "blue sky" laws or the initiation of
any proceedings for that purpose, and (iv) of the happening of any event
which makes any statement made in a Registration Statement or related
Prospectus or any document incorporated or deemed to be incorporated by
reference therein untrue in a material respect or which requires the making
of any changes in such Registration Statement, Prospectus or documents so
that they will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to
make the statements in the Registration Statement and Prospectus not
misleading in light of the circumstances in which they were made; and, as
promptly as practicable thereafter, prepare and file with the Commission
and furnish a supplement or amendment to such Prospectus so that, as
thereafter deliverable to the buyers of such 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.
(g) Earning Statement. The Company will make generally
available an earning statement satisfying the provisions of Section 11(a)
of the Securities Act no later than 90 days after the end of the 12-month
period beginning with the first day of the Company's first fiscal quarter
commencing after the effective date of a Registration Statement, which
earning statement shall cover said 12-month period, and which requirement
will be deemed to be satisfied if the Company timely files complete and
accurate information on Forms 10-Q, 10-K and 8-K under the Exchange Act and
otherwise complies with Rule 158 under the Securities Act.
(h) Underwriting Agreement. The Company will enter into
customary agreements (including, if applicable, 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.
(i) Transfer Agent and Registrar. The Company will
provide for a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration
statement, and use its best efforts to cause all such Registrable
Securities to be listed on each securities exchange on which similar
securities issued by the Company are then listed and, if not so listed, to
be listed on the NASDAQ (or other national market reasonably acceptable to
the holders of 66 2/3% or more of the holders of the Registrable
Securities) and, if listed on the NASDAQ, use its best efforts to secure
designation of all such Registrable Securities covered by such registration
statement as a NASDAQ national market system security within the meaning of
Rule 11Aa2-1 of the Commission or, failing that, to secure NASDAQ
authorization for such Registrable Securities and, without limiting the
generality of the foregoing, to arrange for at least two market makers to
register as such with respect to such Registrable Securities with the
NASDAQ.
(j) Information Regarding Distribution. The Company,
during the period when the Prospectus is required to be delivered under the
Securities Act, will file all documents required to be filed with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act.
The Company may require each Selling Holder to promptly furnish in
writing to the Company such information regarding the distribution of the
Registrable Securities as the Company may from time to time reasonably
request and such other information as may be legally required in connection
with such registration including, without limitation, all such information
as may be requested by the Commission or the National Association of
Securities Dealers, Inc.
Each Selling Holder agrees that, upon receipt of any notice from the
Company of the happening of any event of the kind described in Section
3.1(f) hereof, such Selling Holder will forthwith discontinue disposition
of Registrable Securities pursuant to the Registration Statement covering
such Registrable Securities until such Selling Holder's receipt of the
copies of the supplemented or amended Prospectus contemplated by Section
3.1(f) hereof, and, if so directed by the Company, such Selling Holder will
deliver to the Company all copies, other than permanent file copies then in
such Selling Holder's possession, of the most recent Prospectus covering
such Registrable Securities at the time of receipt of such notice. In the
event 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 3.1(a) hereof) by
the number of days during the period from and including the date of the
giving of notice pursuant to Section 3.1(f) hereof to the date when the
Company shall make available to the Selling Holders covered by such
Registration Statement a Prospectus supplemented or amended to conform with
the requirements of Section 3.1(f) hereof.
Section 3.2 Registration Expenses. The Company shall pay all
expenses incident to the Company's performance of or compliance with this
Agreement including, without limitation: (i) all registration and filing
fees, (ii) the fees and expenses of compliance with securities or blue sky
laws (including fees and disbursements of counsel in connection with blue
sky qualifications of the Registrable Securities), (iii) all printing,
messenger and delivery expenses, (iv) the Company's internal expenses
(including, without limitation, all salaries and expenses of its officers
and employees performing legal or accounting duties), (v) the fees and
expenses incurred in connection with the listing or quotation, as
appropriate, of the Registrable Securities, (vi) the fees and disbursements
of counsel for the Company and the fees and expenses for independent
certified public accountants retained by the Company (including the
expenses of any special audit or cold comfort letters), (vii) the fees and
expenses of any special experts retained by the Company in connection with
such registration, and (viii) the fees and expenses of the Selling Holders
Counsel, provided, however, that, notwithstanding the foregoing, any Holder
whose Registrable Securities are included in more than two registration
statements filed pursuant to the provisions of Section 2.2(a) hereof shall
pay his pro rata portion of all the foregoing expenses (based on the number
of shares included) with respect to the third registration statement in
which such Holders' shares are included. The Company shall have no
obligation to pay any underwriting fees, discounts or commissions
attributable to the sale of Registrable Securities and any of the expenses
incurred by Selling Holders which are not payable by the Company, such
costs to be borne by the Selling Holder or Selling Holders.
ARTICLE IV
INDEMNIFICATION AND CONTRIBUTION
Section 4.1 Indemnification by the Company. The Company agrees
to indemnify and hold harmless, to the fullest extent permitted by law,
each Selling Holder, its partners, officers, directors, employees, advisors
and agents, and each Person, if any, who controls such Selling Holder
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, together with the partners, officers, directors, employees,
advisors and agents of such controlling Person (collectively, the
"Controlling Persons"), from and against any loss, claim, damage,
liability, attorneys' fees, cost or expense and costs and expenses of
investigating and defending any such claim (collectively, the "Damages")
and any action in respect thereof to which such Selling Holder, its
partners, officers, directors, employees, advisors and agents, and any such
Controlling Person may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such Damages (or proceedings in
respect thereof) arise out of, or are based upon, any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement or Prospectus or any preliminary Prospectus, or arise out of, or
are based upon, any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as the same are based
upon information furnished in writing to the Company by a Selling Holder
expressly for use therein, and shall reimburse each Selling Holder, its
partners, officers, directors, employees, advisors and agents, and each
such Controlling Person for any legal and other expenses reasonably
incurred by that Selling Holder, its partners, officers, directors,
employees, advisors and agents, or any such Controlling Person in
investigating or defending or preparing to defend against any such Damages
or proceedings. The Company also agrees to indemnify any Underwriters of
the Registrable Securities, their officers and directors and each Person
who controls such Underwriters on substantially the same basis as that of
the indemnification of the Selling Holders provided in this Section 4.1.
Section 4.2 Indemnification by Selling Holders. Each Selling
Holder agrees, severally but not jointly, to indemnify and hold harmless
the Company, its officers, directors, employees, advisors and agents and
each Person, if any, who controls the Company within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act, together with
the partners, officers, directors, employees, advisors and agents of such
Controlling Person, to the same extent as the foregoing indemnity from the
Company to such Selling Holder, but only with reference to information
related to such Selling Holder, or its plan of distribution, furnished in
writing by such Selling Holder expressly for use in any Registration
Statement or Prospectus, or any amendment or supplement thereto, or any
preliminary Prospectus; provided, however, that such Selling Holder shall
not be liable in any such case to the extent that prior to the filing of
any such Registration Statement or Prospectus or amendment or supplement
thereto, such Selling Holder has furnished in writing to the Company
information expressly for use in such Registration Statement or Prospectus
or any amendment or supplement thereto which corrected or made not
misleading information previously furnished to the Company. In no event
shall the liability of any Selling Holder be greater in amount than the
dollar amount of the proceeds received by such Selling Holder upon the sale
of the Registrable Securities giving rise to such indemnification
obligation.
Section 4.3 Conduct of Indemnification Proceedings. Promptly
after receipt by any Person in respect of which indemnity may be sought
pursuant to Section 4.1 or 4.2 (an "Indemnified Party") of notice of any
claim or the commencement of any action, the Indemnified Party shall, if a
claim in respect thereof is to be made against the Person against whom such
indemnity may be sought (an "Indemnifying Party"), notify the Indemnifying
Party in writing of the claim or the commencement of such action; provided
that the failure to notify the Indemnifying Party shall not relieve it from
any liability which it may have to an Indemnified Party otherwise than
under Section 4.1 or 4.2 except to the extent of any actual prejudice
resulting therefrom. If any such claim or action shall be brought against
an Indemnified Party, and it shall notify the Indemnifying Party thereof,
the Indemnifying Party shall be entitled to participate therein, and, to
the extent that it wishes, jointly with any other similarly notified
Indemnifying Party, to assume the defense thereof with counsel reasonably
satisfactory to the Indemnified Party. After notice from the Indemnifying
Party to the Indemnified Party of its election to assume the defense of
such claim or action, the Indemnifying Party shall not be liable to the
Indemnified Party for any legal or other expenses subsequently incurred by
the Indemnified Party in connection with the defense thereof other than
reasonable costs of investigation; provided that the Indemnified Party
shall have the right to employ separate counsel to represent the
Indemnified Party and its Controlling Persons who may be subject to
liability arising out of any claim in respect of which indemnity may be
sought by the Indemnified Party against the Indemnifying Party, but the
fees and expenses of such counsel shall be for the account 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 opinion of counsel to such Indemnified Party, representation of both
parties by the same counsel would be inappropriate due to actual or
potential conflicts of interest between them, it being understood, however,
that the Indemnifying Party shall not, in connection with any one such
claim or action or separate but substantially similar or related claims or
actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more
than one separate firm of attorneys (together with appropriate local
counsel) at any time for all Indemnified Parties. No Indemnifying Party
shall, without the prior written consent of the Indemnified Party, effect
any settlement of any claim or pending or threatened proceeding in respect
of which the 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 or proceeding. Whether or not the
defense of any claim or action is assumed by the Indemnifying Party, such
Indemnifying Party will not be subject to any liability for any settlement
made without its consent, which consent will not be unreasonably withheld.
Section 4.4 Contribution. If the indemnification provided for
in this Article 4 is unavailable to the Indemnified Parties in respect of
any Damages referred to herein, then each 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 Damages in such
proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and the Selling Holders on the other from the
offering of the 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 on the one hand and the Selling Holders on the other in connection
with the statements or omissions which resulted in such Damages, as well as
any other relevant equitable considerations. The relative fault of the
Company on the one hand and of each Selling Holder 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 such
party, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company and the Selling Holders agree that it would not be just
and equitable if contribution pursuant to this Section 4.4 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 Damages 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 4.4, no Selling Holder shall
be required to contribute any amount in excess of the amount by which the
total price at which the Registrable Securities of such Selling Holder were
offered to the public exceeds the amount of any damages which such Selling
Holder has otherwise paid 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 Selling Holder's obligations to
contribute pursuant to this Section 4.4 is several in the proportion that
the proceeds of the offering received by such Selling Holder bears to the
total proceeds of the offering received by all the Selling Holders and not
joint.
ARTICLE V
MISCELLANEOUS
Section 5.1 Participation in Underwritten Registrations. No
Person may participate in any underwritten registration 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 these registration rights.
Section 5.2 Additional Rights. If subsequent to the date hereof
the Company grants to holders or prospective holders of its securities
registration rights which are more favorable than the terms or provisions
of this Agreement are to the Holders of the New Registrable Securities,
this Agreement shall be deemed to be automatically amended (without the
necessity of any action on the part of the Company or the Holders) to grant
to the Holders of the New Registrable Securities such more favorable or
additional rights, in addition to those set forth herein.
Section 5.3 Rule 144 and 144A. The Company covenants that it
will file any reports required to be filed by it under the Securities Act
and the Exchange Act and that it will take such further action as any
Holder may reasonably request, all to the extent required from time to time
to enable Holders to sell Registrable Securities without registration under
the Securities Act within the limitation of the exemptions provided by (a)
Rule 144 or Rule 144A under the Securities Act, or (b) any similar rule or
regulation hereafter adopted by the Commission. Upon the request of any
Holder, the Company will deliver to such Holder a written statement as to
whether it has complied with such requirements.
Section 5.4 Amendment and Modification. Any provision of this
Agreement may be waived, provided that such waiver is set forth in a
writing executed by the party against whom the enforcement of such waiver
is sought. This Agreement may not be amended, modified or supplemented
other than by a written instrument signed by the holders of at least 66
2/3% of the Registrable Securities (calculated with respect to the Series C
Preferred Stock on an as-converted basis in accordance with the terms and
conditions for such securities under the certificate establishing the
Series C Preferred Stock's rights and preferences); provided, however, that
without the consent of all the Holders, no amendment or modification which
materially and adversely affects any Holders' rights hereunder without the
consent of such Holders. No course of dealing between or among any Persons
having any interest in this Agreement will be deemed effective to modify,
amend or discharge any part of this Agreement or any rights or obligations
of any Person under or by reason of this Agreement.
Section 5.5 Successors and Assigns; Third Party Beneficiaries.
This Agreement and all of the provisions hereof shall be binding upon and
inure to the benefit of the parties hereto, each subsequent Holder and
their respective successors and assigns and executors, administrators and
heirs. Holders are intended third-party beneficiaries of this Agreement and
this Agreement may be enforced by such Holders.
Section 5.6 Entire Agreement. This Agreement sets forth the
entire agreement and understanding between the parties as to the subject
matter hereof and merges and supersedes all prior discussions, agreements
and understandings of any and every nature among them.
Section 5.7 Headings. Subject headings are included for
convenience only and shall not affect the interpretation of any provisions
of this Agreement.
Section 5.8 Notices. Any notice, demand, request, waiver, or
other communication under this Agreement shall be in writing and shall be
deemed to have been duly given on the date of service if personally served
or sent by telecopy, on the business day after notice is delivered to a
courier or mailed by express mail if sent by courier delivery service or
express mail for next day delivery and on the third day after mailing if
mailed to the party to whom notice is to be given, by first class mail,
registered, return receipt requested, postage prepaid and addressed as
follows:
If to the Company to:
Convergence Communications, Inc.
000 Xxxx 000 Xxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Chief Executive Officer
Telecopier No.: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxx & Xxxxxxx
000 Xxxxx Xxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Xxxxx Xxxxxxxxx, Esq.
Telecopier No.: (000) 000-0000
if to the Purchasers, at the address set forth next to such Purchaser's
name on the signature page hereto.
Section 5.9 Governing Law; Forum; Process. This Agreement shall
be construed in accordance with, and the rights of the parties shall be
governed by, the internal laws of the State of New York, including Section
5-1401 of the New York General Obligations Law. All disputes arising under
or relation to this Agreement shall first be subject to conciliation in
accordance with the Rules of Conciliation of the International Chamber of
Commerce and, failing conciliation, be finally settled under the Rules of
Arbitration of the International Chamber of Commerce by three arbitrators
appointed in accordance with said Rules. The place of arbitration shall be
New York, New York. The language of the arbitration shall be English. In
the event any dispute under the Participation Agreement relates in any way
to the validity, performance or interpretation of this Agreement and an
arbitral tribunal is constituted pursuant to Section 11(n) of the
Participation Agreement, all parties to any dispute hereunder agree (i) to
be joined to the procedures initiated pursuant to Section 11(n) of the
Participation Agreement; (ii) to have any proceedings initiated hereunder
consolidated with proceedings initiated pursuant to Section 11(n) of the
Participation Agreement and (iii) to be bound by any ruling of the arbitral
tribunal constituted pursuant to Section 11(n) of the Participation
Agreement or any interim or final award thereof. Submission of disputes to
arbitration pursuant to the Rules of Arbitration of the International
Chamber of Commerce, in consolidation with any disputes submitted to
arbitration pursuant to Section 11(n) of the Participation Agreement as
provided above, shall be the sole method of resolving disputes between the
Parties hereto. Judgment upon an arbitration award may be entered in any
court having jurisdiction.
Section 5.10 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, and all of which
together shall constitute a single agreement.
Section 5.11 Severability. In the event that any one or more of
the immaterial provisions contained in this Agreement shall for any reason
be held to be invalid, illegal or unenforceable, the same shall not affect
any other provision of this Agreement, but this Agreement shall be
construed in a manner which, as nearly as possible, reflects the original
intent of the parties.
Section 5.12 No Prejudice. The terms of this Agreement shall not
be construed in favor of or against any party on account of its
participation in the preparation hereof.
Section 5.13 Words in Singular and Plural Form. Words used in the
singular form in this Agreement shall be deemed to import the plural, and
vice versa, as the sense may require.
Section 5.14 Remedy for Breach. The Company hereby acknowledges
that in the event of any breach or threatened breach by the Company of any
of the provisions of this Agreement, the Holder would have no adequate
remedy at law and could suffer substantial and irreparable damage.
Accordingly, the Company hereby agrees that, in such event, the Holder
shall be entitled, without the necessity of proving damages or posting
bond, and notwithstanding any election by any Holder to claim damages, to
obtain a temporary and/or permanent injunction, without proving a breach
therefor, to restrain any such breach or threatened breach or to obtain
specific performance of any such provisions, all without prejudice to any
and all other remedies which any Holder may have at law or in equity.
Section 5.15 Termination of Original Agreements. By executing
this Agreement, each of Pegasus, Internexus, FondElec and the Company
acknowledge and agree that the Original Agreements are superseded and
replaced by this Agreement in their entirety, that the Original Agreements
are of no further force or effect with respect to such parties, and that
the rights of such parties relating to the registration of their
Registrable Securities will be governed by this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
CONVERGENCE COMMUNICATIONS, INC.
By: /s/ Xxxxx X'Xxxxxxxx
----------------------------------------------
Name: Xxxxx X'Xxxxxxxx
Title: Chairman and CEO
Address: 000 Xxxx 000 Xxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
Fax No.: (000) 000-0000
PEGASUS FUND, L.P.
By: Pegasus Management Corp.
Its: General Partner
By: /s/ Xxxxxx Xxxxxx Rua
----------------------------------------------
Name: Xxxxxx Xxxxxx Rua
Title: Director
Address: 000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Fax No.: (000) 000-0000
FONDELEC ESSENTIAL SERVICES GROWTH
FUND, L.P.
By: FondElec E.S.G.P. Corp.
Its: General Partner
By: /s/ Xxxxxx Xxxxxx Rua
----------------------------------------------
Name: Xxxxxx Xxxxxx Rua
Title: Director
Address: 000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Fax No.: (000) 000-0000
INTERNEXUS S.A.
By: /s/ Xxxxx Xxxxxxxx
----------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Duly Authorized
Address: Xxxxx 000, 0xx Xxxxx
Xxxxxx Xxxxx 0000, Xxxxxxxxx
Fax No.: 000-0000-0000-0000
TELEMATICA EDC, C.A.
By: /s/ Xxxxxxxx Xxxxxxxx
----------------------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Chairman and CEO
Address: Xxxxxxx Xxxxxxx, Xxx Xxxxxxxxxx
Xxxxxxxx 0000, Xxxxxxx
0000-X-Xxxxxxxxx
Fax No.: 000-000-000-0000
TCW/CCI HOLDING LLC
By: /s/ Xxxxx X. Xxxxx
----------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Chairman and CEO
Address: 000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Fax No.: (000) 000-0000
INTERNATIONAL FINANCE CORPORATION
By:
----------------------------------------------
Name:
Title:
Address: 0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xx. X0X-000
Xxxxxxxxxx, XX 00000
Fax No.: (000) 000-0000
GLACIER LATIN-AMERICA LTD.
By: /s/ Xxxxx Leivman
----------------------------------------------
Name: Xxxxx Leivman
Title: Assistant Treasurer
Address: 0000 X.X. 000 Xxxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Fax No.: (000) 000-0000
XXXXX X'XXXXXXXX
By: /s/ Xxxxx X'Xxxxxxxx
----------------------------------------------
Name: Xxxxx X'Xxxxxxxx
Title: Personal Capacity
Address: 0000 Xxxx Xxxxxx Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
XXXX X'XXXXXXXX
By: /s/ Xxxx X'Xxxxxxxx
----------------------------------------------
Name: Xxxx X'Xxxxxxxx
Title: Personal Capacity
Address: 0000 Xxxx Xxx
Xxxx Xxxx Xxxx, Xxxx 00000
ESTATE OF XXXXXX X. X'XXXXXXXX
By: /s/ Xxxxx X'Xxxxxxxx
----------------------------------------------
Name: Xxxxx X'Xxxxxxxx
Title: Representative of Estate of
Xxxxxx X. X'Xxxxxxxx
Address: 0000 Xxxxx 0000 Xxxx
Xxxx Xxxx Xxxx, Xxxx 00000
