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EXHIBIT 4.6
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EXECUTION COPY
WARRANT REGISTRATION RIGHTS AGREEMENT
Dated as of October 27, 1997
By and Between
INTERAMERICAS COMMUNICATIONS CORPORATION
and
UBS SECURITIES LLC
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WARRANT REGISTRATION RIGHTS AGREEMENT
THIS WARRANT REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made
and entered into as of October 27, 1997, by and between INTERAMERICAS
COMMUNICATIONS CORPORATION, a Texas corporation (the "Company"), and UBS
SECURITIES LLC (the "Initial Purchaser").
This Agreement is made pursuant to the Purchase Agreement dated October
21, 1997, between the Company and the Initial Purchaser (the "Purchase
Agreement"), relating to, among other things, the sale by the Company to the
Initial Purchaser of an aggregate of 150,000 Units, consisting in the aggregate
of (i) $150,000,000 principal amount at maturity of 14% Senior Notes due 2007
(the "Notes") and (ii) 5,250,00 Warrants (the "Unit Warrants"), each
representing the right to purchase initially one share of Common Stock, par
value $.001 per share, of the Company (the "Common Stock"). In addition,
pursuant to (i) that certain letter agreement dated September 22, 1997 by and
between the Company and the Initial Purchaser (the "Engagement Letter"), the
Company has agreed to issue warrants to the Initial Purchaser (the "UBS
Warrants" and, together with the Unit Warrants, the "Warrants") to purchase an
aggregate of 2,250,000 shares of Common Stock and (ii) the Purchase Agreement,
the Company has agreed to issue 2,250,000 UBS Warrants, each representing the
right to purchase initially one share of Common Stock. The Warrants have been
issued pursuant to the Warrant Agreement dated as of the date hereof between the
Company and State Street Bank and Trust Company, N.A., as warrant agent (the
"Warrant Agreement"). In order to induce the Initial Purchaser to enter into the
Purchase Agreement, the Company has agreed to provide to the Initial Purchaser
and the Holders (as defined herein), among other things, the registration rights
for the Warrant Shares (as defined herein) set forth in this Agreement. The
execution and delivery of this Agreement is a condition to the obligations of
the Initial Purchaser under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
SECTION 1. DEFINITIONS
As used in this agreement, the following defined terms shall have the
following meanings:
"Advice" has the meaning ascribed to such term in the last paragraph of
Section 4 hereof.
"Affiliate" means, when used with reference to any Person, any other
Person directly or indirectly controlling, controlled by, or under direct or
indirect common control with, the referent Person or such other Person, as the
case may be. For the purposes of this definition, the term "control" when used
with respect to any specified Person means the power to direct or cause the
direction of management or policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "affiliated," "controlling" and "controlled" have meanings
correlative of the foregoing. Neither the Initial Purchaser nor any of its
Affiliates shall be deemed to be an Affiliate of the Company or of any of its
subsidiaries or Affiliates.
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"Anniversary Date" has the meaning ascribed to such term in Section
2.1(a) hereof.
"Black Out Period" has the meaning ascribed to such term in Section
2.4(b) hereof.
"Business Day" shall mean a day that is not a Legal Holiday.
"Capital Stock" means any and all shares, interests, rights to
purchase, warrants, options, participations, or other equivalents of or
interests (however designated) of corporate stock of the Company, including each
class of common stock and preferred stock of the Company, together with any
warrants, rights, or options to purchase or acquire any of the foregoing.
"Common Stock" has the meaning ascribed to such term in the preamble
hereof.
"Company" shall have the meaning ascribed to that term in the preamble
hereof and shall also include the Company's permitted successors and assigns.
"Demand Registration" has the meaning ascribed to such term in Section
2.2(a) hereof.
"Disqualified Capital Stock" has the meaning ascribed to such term in
the Warrant Agreement.
"DTC" has the meaning ascribed to such term in Section 4(i) hereof.
"Equity Interests" has the meaning ascribed to such term in the Warrant
Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time.
"Expiration Date" has the meaning ascribed to such term in the Warrant
Agreement.
"Holder" shall mean the Initial Purchaser, for so long as it owns any
Warrants or Warrant Shares, and each of its successors, assigns and direct and
indirect transferees who become registered owners of such Warrants or Warrant
Shares.
"Included Securities" has the meaning ascribed to such term in Section
2.2(a) hereof.
"indemnified party" has the meaning ascribed to such term in Section
5(c) hereof.
"indemnifying party" has the meaning ascribed to such term in Section
5(c) hereof.
"Indenture" means the Indenture, of even date herewith, between the
Company and State Street Bank and Trust Company, N.A., as Trustee, pursuant to
which the Notes are issued.
"Initial Purchaser" has the meaning ascribed to such term in the
preamble hereof.
"Inspectors" has the meaning ascribed to such term in Section 4(n)
hereof.
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"Legal Holiday" shall mean a Saturday, a Sunday or a day on which
banking institutions in New York, New York are required by law, regulation or
executive order to remain closed.
"Notes" has the meaning ascribed to such term in the preamble hereof.
"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
"Piggy-Back Registration" has the meaning ascribed to such term in
Section 2.3 hereof.
"Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, any prospectus subject to completion
and a prospectus that includes any 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, 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 to such term in the
preamble hereof.
"Registrable Securities" means any of (i) the Warrant Shares and (ii)
any other securities issued or issuable with respect to any Warrant Shares by
way of stock dividend or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization or
otherwise, unless, in each case, such Warrant Shares and securities, if any,
have been offered and sold to the Holder pursuant to an effective Registration
Statement under the Securities Act declared effective prior to the
exercisability of the Warrants or such Warrant Shares and securities, if any,
may be sold to the public pursuant to Rule 144 without any restriction on the
amount of securities which may be sold by such Holder or the satisfaction of any
condition. As to any particular Registrable Securities held by a Holder, such
securities shall cease to be Registrable Securities when (i) a Registration
Statement with respect to the exercise or offering of such securities by the
Holder thereof shall have been declared effective under the Securities Act and
such securities shall have been exercised and/or disposed of by such Holder
pursuant to such Registration Statement, (ii) such securities may at the time of
determination be sold to the public pursuant to Rule 144 without any restriction
on the amount of securities which may be sold by such Holder (or any similar
provision then in force, but not Rule 144A) promulgated under the Securities Act
without the lapse of any further time or the satisfaction of any condition,
(iii) such securities shall have been otherwise transferred by such Holder and
new certificates for such securities not bearing a legend restricting further
transfer shall have been delivered by the Company or its transfer agent and
subsequent disposition of such securities shall not require registration or
qualification under the Securities Act or any similar state law then in force or
(iv) such securities shall have ceased to be outstanding.
"Registration Expenses" shall mean all expenses incident to the
Company's performance of or compliance with this Agreement, including, without
limitation, all SEC and stock exchange or National Association of Securities
Dealers, Inc. registration and filing fees and expenses, fees and expenses of
compliance with securities or blue sky laws (including, without limitation,
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reasonable fees and disbursements of counsel for the underwriters in connection
with blue sky qualifications of the Registrable Securities in an amount not to
exceed $20,000), printing expenses, messenger, telephone and delivery expenses,
fees and disbursements of counsel for the Company and all independent certified
public accountants, the fees and disbursements of underwriters customarily paid
by issuers or sellers of securities (but not including any underwriting
discounts or commissions or transfer taxes, if any, attributable to the sale of
Registrable Securities by Holders of such Registrable Securities) and other
reasonable out-of-pocket expenses of Holders (it being understood that the
Registration Expenses shall not include, as to the fees and expenses of counsel,
the fees and expenses of more than one counsel for the Holders).
"Registration Statement" shall mean any appropriate registration
statement of the Company filed with the SEC pursuant to the Securities Act which
covers any of the Registrable Securities pursuant to the provisions of this
Agreement and all amendments and supplements to any 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.
"Requisite Securities" shall mean a number of Registrable Securities
equal to not less than 25% of the Registrable Securities held in the aggregate
by all Holders; provided, however, that with respect to any action to be taken
at the request of the Holders of the Registrable Securities prior to such time
as the Warrants have expired pursuant to the terms thereof and of the Warrant
Agreement, each Warrant outstanding shall be deemed to represent that number of
Registrable Securities for which such Warrant would be then exercisable (without
giving effect to the cashless (net) exercise feature referred to in the Warrant
Agreement).
"Rule 144" shall mean Rule 144 promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule (other than Rule
144A) or regulation hereafter adopted by the SEC providing for offers and sales
of securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
"Rule 144A" shall mean Rule 144A promulgated under the Securities Act,
as such Rule may be amended from time to time, or any similar rule (other than
Rule 144) or regulation hereafter adopted by the SEC.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended from
time to time.
"Selling Holder" shall mean a Holder who is selling Registrable
Securities in accordance with the provisions of Section 2.1, 2.2 or 2.3 hereof.
"Shelf Registration" has the meaning ascribed to such term in Section
2.1(a) hereof.
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"Shelf Registration Statement" has the meaning ascribed to such term in
Section 2.1(a) hereof.
"Warrants" has the meaning ascribed to such term in the preamble
hereof.
"Warrant Agent" means State Street Bank and Trust Company, N.A. and
any successor Warrant Agent for the Warrants pursuant to the Warrant Agreement.
"Warrant Agreement" has the meaning ascribed to such term in the
preamble hereof.
"Warrant Share Prospectus" means the prospectus included in any Warrant
Share Registration Statement (including, without limitation, any prospectus
subject to completion and a prospectus that includes any 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, and all other amendments and
supplements to the Warrant Share Prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Warrant Share Prospectus.
"Warrant Share Registration Statement" has the meaning ascribed to that
term in Section 5(a) hereof.
"Warrant Shares" means the shares of Common Stock delivered or
deliverable upon exercise of the Warrants.
SECTION 2. REGISTRATION RIGHTS
SECTION 2.1. SHELF REGISTRATION. If after the date of this
Agreement, in the reasonable opinion of counsel to the Company or counsel to the
Initial Purchaser, the exercise of any Warrants is not exempt from the
registration requirements of the Securities Act by virtue of Section 3(a)(9)
thereof, the Company shall:
(a) prepare and, on the first anniversary of the date
of the Warrant Agreement (the "Anniversary Date"), cause to be filed with the
Commission pursuant to Rule 415 under the Securities Act a shelf registration
statement (the "Shelf Registration Statement") on the appropriate form relating
to the offer and sale by the Company of the Warrant Shares to the Holders of
Warrants upon exercise of the Warrants (if such issuance is permitted to be
registered by applicable rule or policy of the SEC) and resales of the Warrant
Shares by the holders thereof;
(b) use its reasonable best efforts to cause such
Shelf Registration Statement to be declared effective by the Commission by 60
days from the Anniversary Date; and
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(c) use its best efforts to keep the Shelf
Registration Statement continuously effective under the Securities Act in order
to permit the Prospectus included therein to be lawfully delivered by the
Company to the Holders exercising the Warrants until the Expiration Date or such
shorter period that will terminate when all the Warrants have been exercised.
Except as provided in Section 2.4(b) below with respect to any Black Out Period,
the Company shall be deemed not to have used its reasonable best efforts to keep
a Shelf Registration Statement effective during the requisite period if it
voluntarily takes any action that would result in it not being able to offer and
sell the Warrant Shares upon exercise of the Warrants during that period, unless
such action is required by applicable law.
SECTION 2.2. DEMAND REGISTRATION
(a) At any time and from time to time after the first
anniversary of the date of the Warrant Agreement, Holders owning, individually
or in the aggregate, not less than the Requisite Securities may make a written
request, on two occasions (each, a "Demand Registration"), that the Company
register the issuance of the Warrant Shares by the Company upon exercise, or if
such issuance is not then permitted to be registered by applicable rule or
policy of the SEC, the resale of the Warrant Shares, under the Securities Act.
The Company shall file with the SEC and use its best efforts to cause to become
effective under the Securities Act a Registration Statement with respect to such
Registrable Securities within (i) 60 days of receipt of such written request for
a Demand Registration if the Company is then eligible to register an offering
pursuant to Form S-3 under the Securities Act; (ii) 90 days of receipt of such
written request for a Demand Registration if the Company is not then eligible to
register an offering pursuant to Form S-3 under the Securities Act but is then
qualified as a reporting company under the Exchange Act; or (iii) 180 days of
receipt of such written request for a Demand Registration in any other case. Any
such request will specify the number of Registrable Securities proposed to be
sold and will also specify the intended method of disposition thereof. The
Company shall give written notice of such registration request to all other
Holders of Registrable Securities within 15 business days after the receipt
thereof. Within 10 days after receipt by any Holder of Registrable Securities of
such notice from the Company, such Holder may request in writing that such
Holder's Registrable Securities be included in such Registration Statement and
the Company shall include in such Registration Statement the Registrable
Securities of any such Holder requested to be so included (the "Included
Securities"). Each such request by such other Holders shall specify the number
of Included Securities proposed to be sold and the intended method of
disposition thereof. Subject to Sections 2.2(b) and 2.2(e) hereof, the Company
shall be required to register Registrable Securities pursuant to this Section
2.2(a) on a maximum of two separate occasions.
Subject to Section 2.2(e) hereof, no other securities of the Company
except (i) Registrable Securities held by any Holder, (ii) equity securities to
be offered and sold for the account of the Company and (iii) any equity
securities of the Company held by any Person having "piggy-back" registration
rights pursuant to any contractual obligation of the Company shall be included
in a Demand Registration. The inclusion of any such securities for the account
of the Company or any other Person shall be on the same terms as that of the
Registrable Securities.
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(b) Effective Registration. A Registration Statement
will not be deemed to have been effected as a Demand Registration unless it has
been declared effective by the SEC and the Company has complied in all material
respects with all of its obligations under this Agreement with respect thereto;
provided, however, that if, after such Registration Statement has become
effective, the offering of Registrable Securities pursuant to such Registration
Statement is or becomes the subject of any stop order, injunction or other order
or requirement of the SEC or any other governmental or administrative agency or
court that prevents, restrains or otherwise limits the sale of Registrable
Securities pursuant to such Registration Statement for any reason not
attributable to any Holder participating in such registration and such
Registration Statement has not become effective within a reasonable time period
thereafter (not to exceed 30 days), such Registration Statement 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) a Demand Registration
does not remain effective under the Securities Act until at least the earlier of
(A) an aggregate of 90 days after the effective date thereof or (B) the
consummation of the distribution by the Holders of all of the Registrable
Securities covered thereby, then such registration shall not count towards
determining if the Company has satisfied its obligation to effect two Demand
Registrations pursuant to this Section 2.2. For purposes of calculating the
90-day period referred to in the preceding sentence, any period of time during
which such Registration Statement was not in effect shall be excluded. The
Holders of Registrable Securities shall be permitted to withdraw all or any part
of the Registrable Securities from a Demand Registration at any time prior to
the effective date of such Demand Registration; provided, however, that should
the Holders of Registrable Securities remaining after such withdrawal own,
individually or in the aggregate, less than the Requisite Securities, the
Company shall have the right to terminate or withdraw any registration initiated
by it under Section 2.2 prior to the effectiveness of such registration.
(c) Restrictions on Sale by Holders. Each Holder of
Registrable Securities whose Registrable Securities are covered by a
Registration Statement filed pursuant to Section 2.1 or 2.2 and are to be sold
by the Holder thereunder agrees, if and to the extent reasonably requested by
the managing underwriter or underwriters in an underwritten offering of common
stock or common equivalents the gross proceeds of which equal at least $10.0
million, not to effect any public sale or distribution of Registrable Securities
of the Company of the same class as any securities included in such Registration
Statement, including a sale pursuant to Rule 144 (except as part of such
underwritten offering), during the 10 day period prior to, and during the 180
day period beginning on, the closing date of each underwritten offering made
pursuant to such Registration Statement, to the extent timely notified in
writing by the Company or such managing underwriter or underwriters.
The foregoing provisions of Section 2.2(c) shall not apply to any
Holder of Registrable Securities if such Holder is prevented by applicable
statute or regulation from entering into any such agreement; provided, however,
that any such Holder shall undertake, in its request to participate in any such
underwritten offering, not to effect any public sale or distribution of any
Registrable Securities commencing on the date of sale of such Registrable
Securities unless it has provided 45 days' prior written notice of such sale or
distribution to the underwriter or underwriters.
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(d) Underwritten Registrations. If any of the
Registrable Securities covered by a Demand Registration are to be sold in an
underwritten offering, the investment banker or investment bankers and manager
or managers that will manage the offering will be selected by the Company and
will be reasonably acceptable to the Holders of not less than a majority of the
Registrable Securities to be sold thereunder.
No Holder of Registrable Securities may participate in any underwritten
registration pursuant to a Registration Statement filed under this Agreement
unless such Holder (a) agrees to (i) sell such Holder's Registrable Securities
on the basis provided in and in compliance with any underwriting arrangements
approved by the Holders of not less than a majority of the Registrable
Securities to be sold thereunder and (ii) comply with Rules 10b-6 and 10b-7
under the Exchange Act 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.
(e) Priority in Demand Registration. In a
registration pursuant to Section 2.2 hereof involving an underwritten offering,
if the managing underwriter or underwriters of such underwritten offering have
informed, in writing, the Company and the Selling Holders who have requested
such Demand Registration or who have sought inclusion therein that in such
underwriter's or underwriters' opinion the total number of securities which the
Selling Holders and any other Person desiring to participate in such
registration intend to include in such offering is such as to adversely affect
the success of such offering, including the price at which such securities can
be sold, then the Company will be required to include in such registration only
the amount of securities which it is so advised should be included in such
registration. In such event, securities shall be registered in such registration
in the following order of priority: (i) first, the securities which have been
requested to be included in such registration by the Holders of Registrable
Securities, (ii) second, provided that no securities sought to be included by
the Holders have been excluded from such registration, the securities of other
Persons entitled to exercise "piggy-back" registration rights pursuant to
contractual commitments of the Company (pro rata based on the amount of
securities held by such Persons) and (iii) third, provided that no securities of
any other Person sought to be included therein have been excluded from such
registration, securities to be offered and sold for the account of the Company.
If 25% or more of the Registrable Securities which the Holders have
requested to be included in a registration statement pursuant to Section 2.2
hereof have been excluded from such registration statement pursuant to the
provisions of the foregoing paragraph, then such registration shall not count
towards determining whether the Company has satisfied its obligation to effect
two Demand Registrations pursuant to Section 2.2 hereof.
SECTION 2.3. PIGGY-BACK REGISTRATION
(a) If at any time the Company proposes to file a
Registration Statement under the Securities Act with respect to an offering by
the Company for its own account or for the account of any of its security
holders of any class of its common equity
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securities (other than (i) a Registration Statement on Form S-4 or S-8 (or any
substitute form that may be adopted by the SEC or other form of limited purpose)
or (ii) a Registration Statement filed in connection with an exchange offer or
offering of securities solely to the Company's existing security holders), then
the Company shall give written notice of such proposed filing to the Holders of
Registrable Securities as soon as practicable (but in no event fewer than 15
days before the anticipated filing date or 10 days if the Company is subject to
filing reports under the Exchange Act and able to use Form S-3 under the
Securities Act), and such notice shall offer such Holders the opportunity to
register such number of shares of Registrable Securities as each such Holder may
request in writing not later than 5 days prior to the anticipated filing date of
the Registration Statement after receipt of such written notice from the Company
(which request shall specify the Registrable Securities intended to be disposed
of by such Selling Holder and the intended method of distribution thereof) (a
"Piggy-Back Registration"). The Company shall use its best efforts to keep such
Piggy-Back Registration continuously effective under the Securities Act until at
least the earlier of (A) 90 days after the effective date thereof or (B) the
consummation of the distribution by the Holders of all of the Registrable
Securities covered thereby. The Company shall use its commercially reasonable
efforts to cause the managing underwriter or underwriters, if any, of such
proposed offering to permit the 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, subject to the restrictions set forth in Section 2.3(b), and to permit
the sale or other disposition of such Registrable Securities in accordance with
the intended method of distribution thereof. Any Selling Holder shall have the
right to withdraw its request for inclusion of its Registrable Securities in any
Registration Statement pursuant to this Section 2.3 by giving timely written
notice to the Company of its request to withdraw. The Company may withdraw a
Piggy-Back Registration at any time prior to the time it becomes effective or
the Company may elect to delay the registration; provided, however, that the
Company shall give prompt written notice thereof to participating Selling
Holders. The Company will pay all Registration Expenses in connection with each
registration of Registrable Securities requested pursuant to this Section 2.3,
and each Holder of Registrable Securities 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 a Registration Statement
effected pursuant to this Section 2.3.
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 pursuant to Section 2.1 or 2.2 hereof, and
no failure to effect a registration under this Section 2.3 and to complete the
sale of securities registered thereunder in connection therewith shall relieve
the Company of any other obligation under this Agreement.
(b) Priority in Piggy-Back Registration. In a
registration pursuant to Section 2.3 hereof involving an underwritten offering,
if the managing underwriter or underwriters of such underwritten offering have
informed, in writing, the Company and the Selling Holders requesting inclusion
in such offering that in such underwriter's or underwriters' opinion the total
number of securities which the Company, the Selling Holders and any other
Persons desiring to participate in such registration intend to include in such
offering is such as to adversely affect the success of such offering, including
the price at which such securities can be
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sold, then the Company will be required to include in such registration only the
amount of securities which it is so advised should be included in such
registration. In such event: (x) in cases only involving the registration for
sale of securities for the Company's own account (other than pursuant to the
exercise of piggyback rights herein and in other contractual commitments of the
Company), securities shall be registered in such offering in the following order
of priority: (i) first, the securities which the Company proposes to register,
(ii) second, provided that no securities sought to be included by the Company
have been excluded from such registration, the securities which have been
requested to be included in such registration by the Holders of Registrable
Securities, and (iii) third, provided that no securities sought to be included
by the Company or the Holders have been excluded from such registration, the
securities of other Persons entitled to exercise "piggy-back" registration
rights pursuant to contractual commitments of the Company (pro rata based on the
amount of securities held by such Persons); and (y) in cases not involving the
registration for sale of securities for the Company's own account only,
securities shall be registered in such offering in the following order of
priority: (i) first, the securities of any Person whose exercise of a "demand"
registration right pursuant to a contractual commitment of the Company is the
basis for the registration (provided that if such Person is a Holder of
Registrable Securities, as among Holders of Registrable Securities there shall
be no priority and Registrable Securities sought to be included by Holders of
Registrable Securities shall be included pro rata based on the amount of
securities held by such Persons), (ii) second, provided that no securities of
such Person referred to in the immediately preceding clause (i) have been
excluded from such registration, the securities which have been requested to be
included in such registration by the Holders of Registrable Securities, and
(iii) third, provided that no securities of such Person referred to in the
immediately preceding clause (i) or of the Holders have been excluded from such
registration, securities of other Persons entitled to exercise "piggy-back"
registration rights pursuant to contractual commitments (pro rata based on the
amount of securities held by such Persons) and (iv) fourth, provided that no
securities of any other Person have been excluded from such registration, the
securities which the Company proposes to register.
If, as a result of the provisions of this Section 2.3(b), any Selling
Holder shall not be entitled to include all Registrable Securities in a
Piggy-Back Registration that such Selling Holder has requested to be included,
such Selling Holder may elect to withdraw his request to include Registrable
Securities in such registration.
SECTION 2.4. LIMITATIONS, CONDITIONS AND QUALIFICATIONS TO
OBLIGATIONS UNDER REGISTRATION COVENANTS
The obligations of the Company set forth in Sections 2.1, 2.2 and 2.3
hereof are subject to each of the following limitations, conditions and
qualifications:
(a) Subject to the next sentence of this paragraph,
the Company shall be entitled to postpone, for a reasonable period of time, the
filing or effectiveness of, or suspend the rights of any Holders to make sales
pursuant to, any Registration Statement otherwise required to be prepared, filed
and made and kept effective by it pursuant to Section 2.2 or 2.3 thereunder;
provided, however, that the duration of such postponement or suspension may not
exceed the earlier to occur of (A) 15 days after the cessation of the
circumstances described in
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the next sentence of this paragraph on which such postponement or suspension is
based or (B) 90 days after the date of the determination of the Board of
Directors referred to in the next sentence, and the duration of such
postponement or suspension shall be excluded from the calculation of the 90-day
period described in Section 2.2(b). Such postponement or suspension may be
effected only if the Board of Directors of the Company determines reasonably and
in good faith that the filing or effectiveness of, or sales pursuant to, such
Registration Statement would materially impede, delay or interfere with any
material financing, offer or sale of securities, acquisition, corporate
reorganization or other significant transaction involving the Company or any of
its Subsidiaries which material financing, offer or sale of securities,
acquisition, corporate reorganization or other significant transaction is under
active consideration at the time of such postponement or suspension; provided,
however, that the Company shall not be entitled to such postponement or
suspension more than twice in any twelve-month period. If the Company shall so
postpone the filing of a Registration Statement it shall, as promptly as
possible, deliver a certificate signed by the Chief Executive Officer or
President of the Company to the Selling Holders as to such determination, and
the Selling Holders shall (y) have the right, in the case of a postponement of
the filing or effectiveness of a Registration Statement, upon the affirmative
vote of the Holders of not less than a majority of the Registrable Securities to
be included in such Registration Statement, to withdraw the request for
registration by giving written notice to the Company within 10 days after
receipt of such notice or (z) in the case of a suspension of the right to make
sales, receive an extension of the registration period equal to the number of
days of the suspension. Any Demand Registration as to which the withdrawal
election referred to in the preceding sentence has been effected shall not be
counted for purposes of the two Demand Registrations the Company is required to
effect pursuant to Section 2.2 hereof;
(b) The Company shall not be required to amend or
supplement the any Registration Statement filed pursuant to Section 2.1 of this
Agreement, any related prospectus or any document incorporated therein by
reference, for a period (a "Black Out Period") not to exceed, for so long as
this Agreement is in effect, an aggregate of 60 days in any calendar year, in
the event that (i) the Board of Directors of the Company determines reasonably
and in good faith that sales pursuant to such Registration Statement would
materially impede, delay or interfere with any material financing, offer or sale
of securities, acquisition, corporate reorganization or other significant
transaction involving the Company or any of its Subsidiaries which material
financing, offer or sale of securities, acquisition, corporate reorganization or
other significant transaction is under active consideration at the time of such
postponement or suspension, (ii) an event occurs and is continuing as a result
of which the Shelf Registration Statement, any related prospectus or any
document incorporated therein by reference as then amended or supplemented
would, in the Company's good faith judgment, contain an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or (iii) the disclosure otherwise relates to a material
business transaction which has not yet been publicly disclosed; provided that no
Black Out Period may be in effect during the three months prior to the
Expiration Date.
(c) The Company shall not be required by this
Agreement to file a registration statement with respect to a Demand Registration
during the period starting with the
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date of filing of, and within 120 days immediately following, the effective date
of any registration statement under the Securities Act pertaining to a firmly
underwritten offering of equity securities of the Company for its own account;
provided that this clause (c) shall not apply from and after October 27, 2005.
(d) The Company shall not be required by this
Agreement to file a registration statement with respect to a Demand Registration
during the period starting with the date of filing of, and within 90 days
immediately following, the effective date of any registration statement
pertaining to a firmly underwritten offering of Common Stock of the Company for
the account of any security holder of the Company; provided, however, that the
Company shall not be entitled to invoke this clause (d) more than once during
any 12-month period.
(e) The Company's obligations shall be subject to the
obligations of the Selling Holders, which the Selling Holders acknowledge, to
furnish all information and materials required of such Selling Holders and to
take any and all actions required of such Selling Holders as may be required
under applicable federal and state securities laws and regulations to permit the
Company to comply with all applicable requirements of the SEC and to obtain any
acceleration of the effective date of such Registration Statement; and
(f) The Company shall not be obligated to cause any
special audit to be undertaken in connection with any registration pursuant to
this Agreement unless such audit is required by the SEC or requested by the
underwriters with respect to such registration.
SECTION 2.5. RESTRICTIONS ON SALE BY THE COMPANY AND OTHERS
The Company covenants and agrees that (i) it shall not, and that it
shall not cause or permit any of its subsidiaries to, effect any public sale or
distribution of any securities of the same class as any of the Registrable
Securities or any securities convertible into or exchangeable or exercisable for
such securities (or any option or other right for such securities), other than
any Common Stock and/or options, warrants or other Common Stock purchase rights,
and the Common Stock issued pursuant to such option, warrants or other rights,
to employees, officers or directors of, or consultants or advisors to the
Company or any subsidiary pursuant to stock purchase or stock option plans or
other arrangements that are approved by the Board of Directors of the Company,
during the 10-day period prior to, and during the 180-day period beginning on,
the commencement of any underwritten offering of Registrable Securities pursuant
to a Demand Registration which has been requested pursuant to this Agreement,
prior to the Company or any of its subsidiaries publicly announcing its
intention to effect any such public sale or distribution; (ii) the Company will
not, and the Company will not cause or permit any subsidiary of the Company to,
after the date hereof, enter into any agreement or contract that conflicts with
or limits or prohibits the full and timely exercise by the Holders of
Registrable Securities of the rights herein to request a Shelf Registration or
Demand Registration or to join in any Piggy-Back Registration subject to the
other terms and provisions hereof; and (iii) that it shall use its reasonable
best efforts to secure the written agreement of each of its officers and
directors to not effect any public sale or distribution of any securities of the
same class as the Registrable Securities (or any securities convertible into or
exchangeable or exercisable for any such
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securities), or any option or right for such securities during the period
described in clause (i) of this Section 2.5.
SECTION 2.6. RULE 144 AND RULE 144A
The Company covenants that it will file the reports required to be
filed by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the SEC thereunder in a timely manner and, if at any time
the Company is not required to file such reports, it will, upon the request of
any Holder or beneficial owner of Registrable Securities, make available such
information necessary to permit sales pursuant to Rule 144A under the Securities
Act. The Company further covenants that it will take such further action as any
Holder of Registrable Securities may reasonably request, all to the extent
required from time to time to enable such Holder to sell Registrable Securities
without registration under the Securities Act within the limitation of the
exemptions provided by (a) Rule 144(k) and Rule 144A under the Securities Act,
as such Rules may be amended from time to time, or (b) any similar rule or
regulation hereafter adopted by the SEC (it being expressly understood that the
foregoing shall not create any obligation on the part of the Company to file
periodic reports or other reports under the Exchange Act at any time that it is
not then required to file such reports pursuant to the Exchange Act). Upon the
request of any Holder of Registrable Securities, the Company will in a timely
manner deliver to such Holder a written statement as to whether it has complied
with such information requirements.
SECTION 3. "MARKET STAND-OFF" AGREEMENT
(a) Each Holder hereby agrees that it shall not, to
the extent requested by a managing underwriter of common stock or common
equivalents of the Company, sell or otherwise transfer or dispose of any
Registrable Securities of the Company then owned by such Holder (other than to
donees or partners of the Holder who agree to be similarly bound) for up to 180
days following the date of the final Prospectus in connection with the
Registration Statement of the Company filed under the Securities Act; provided,
however, that such agreement (i) shall not be applicable to Registrable
Securities sold pursuant to such registration, and (ii) shall only be applicable
if the managing underwriters request such agreement from each Holder.
(b) In order to enforce the foregoing covenant, the
Company shall have the right to impose stop transfer instructions with respect
to the Registrable Securities (and the Registrable Securities of every other
person subject to the foregoing restriction) until the end of such period. The
provisions of this Section 3 shall be binding upon any transferee of any
Registrable Securities.
SECTION 4. REGISTRATION PROCEDURES. In connection with the
obligations of the Company with respect to any Registration Statement pursuant
to Sections 2.1, 2.2, 2.3 and 2.6 hereof, the Company shall, except as otherwise
provided:
(a) Prepare and file with the SEC as soon as
practicable each such Registration Statement (but in any event on or prior to
the date of filing thereof required under
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this Agreement) and cause such Registration Statement to become effective and
remain effective as provided herein; provided, however, that before filing any
such Registration Statement or any Prospectus (for registrations pursuant to
Sections 2.1, 2.2 and 2.3 hereof) or any amendments or supplements thereto (only
for registrations pursuant to Section 2.1 and 2.2 hereof) (including documents
that would be incorporated or deemed to be incorporated therein by reference,
including such documents filed under the Exchange Act that would be incorporated
therein by reference), the Company shall afford promptly to the Holders of the
Registrable Securities covered by such Registration Statement, their counsel and
the managing underwriter or underwriters, if any, upon their written request, an
opportunity to review copies of all such documents proposed to be filed a
reasonable time prior to the proposed filing thereof. The Company shall not file
any Registration Statement or Prospectus (for registrations pursuant to Sections
2.1, 2.2 and 2.3 hereof) or any amendments or supplements thereto (only for
registrations pursuant to Section 2.1 and 2.2 hereof) if the Holders of a
majority of the Registrable Securities covered by such Registration Statement,
their counsel, or the managing underwriter or underwriters, if any, shall
reasonably object in writing to any information contained therein or omitted
therefrom unless failure to file any such amendment or supplement would likely
result, in the Company's reasonable judgment based on the advice of counsel, in
a violation of the Securities Act or other applicable law.
(b) Prepare and file with the SEC such amendments
and post-effective amendments to the Registration Statement as may be
necessary to keep such Registration Statement continuously effective for the
time periods prescribed hereby; cause the related Prospectus to be supplemented
by any required prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 (or any similar provisions then in force) promulgated
under the Securities Act; and comply with the provisions of the Securities Act,
the Exchange Act and the rules and regulations of the SEC promulgated
thereunder applicable to it with respect to the disposition of all securities
covered by such Registration Statement as so amended or in such prospectus as
so supplemented.
(c) Notify the Holders of Registrable Securities,
their counsel and the managing underwriter or underwriters, if any, promptly
(but in any event within two (2) Business Days), and 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 (including in such
notice a written statement that any Holder may, upon request, obtain, without
charge, one conformed copy of such Registration Statement or post-effective
amendment including financial statements and schedules and exhibits), (ii) of
the issuance by the SEC of any stop order suspending the effectiveness of such
Registration Statement or of any order preventing or suspending the use of any
preliminary prospectus or the initiation or threatening of any proceedings for
that purpose, (iii) if at any time when a prospectus is required by the
Securities Act to be delivered in connection with sales of the Registrable
Securities the representations and warranties of the Company contained in any
agreement (including any underwriting agreement) contemplated by Section 4(m)
below, to the knowledge of the Company, cease to be true and correct in any
material respect, (iv) of the receipt by the Company of any notification with
respect to (A) the suspension of the qualification or exemption from
qualification of the Registration Statement or
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any of the Registrable Securities covered thereby for offer or sale in any
jurisdiction, or (B) the initiation of any proceeding for such purpose, (v) of
the happening of any event, the existence of any condition or information
becoming known that requires the making of any changes in such Registration
Statement, Prospectus or documents so that, in the case of such Registration
Statement, it will conform in all material respects with the requirements of the
Securities Act and it 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 therein, not misleading, and that in the case of the
Prospectus, it will conform in all material respects with the requirements of
the Securities Act and it 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 therein, in light of the circumstances under
which they were made, not misleading, and (vi) of the Company's reasonable
determination that a post-effective amendment to such Registration Statement
would be appropriate.
(d) Use commercially reasonable efforts to prevent
the issuance of any order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of a Prospectus or
suspending the qualification (or exemption from qualification) of any of the
Registrable Securities covered thereby for sale in any jurisdiction, and, if any
such order is issued, to obtain the withdrawal of any such order at the earliest
practicable moment.
(e) If requested by the managing underwriter or
underwriters, if any, or the Holders of a majority of the Registrable Securities
being sold in connection with an underwriting offering (only for registrations
pursuant to Section 2.1 and 2.2 hereof), (i) promptly incorporate in a
prospectus supplement or post-effective amendment such information as the
managing underwriter or underwriters, if any, or such Holders reasonably request
to be included therein to comply with applicable law, (ii) make all required
filings of such prospectus supplement or such post-effective amendment as soon
as practicable after the Company has received notification of the matters to be
incorporated in such prospectus supplement or post- effective amendment, and
(iii) supplement or make amendments to such Registration Statement.
(f) Furnish to each Holder of Registrable Securities
who so requests and to counsel for the Holders of Registrable Securities and
each managing underwriter, if any, without charge, upon request, one conformed
copy of the Registration Statement and each post-effective amendment thereto,
including financial statements and schedules, and of all documents incorporated
or deemed to be incorporated therein by reference and all exhibits (including
exhibits incorporated by reference).
(g) Deliver to each Holder of Registrable Securities,
their counsel and each underwriter, if any, without charge, as many copies of
each Prospectus (including each form of prospectus) and each amendment or
supplement thereto as such Persons may reasonably request; and, subject to the
last paragraph of this Section 4, the Company hereby consents to the use of such
Prospectus and each amendment or supplement thereto by each of the Holders of
Registrable Securities and the underwriter or underwriters or agents, if any, in
connection with
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the offering and sale of the Registrable Securities covered by such Prospectus
and any amendment or supplement thereto.
(h) Prior to any offering of Registrable Securities,
to register or qualify, and cooperate with the Holders of Registrable
Securities, the underwriter or underwriters, if any, and their respective
counsel in connection with the registration or qualification (or exemption from
such registration or qualification) of, such Registrable Securities for offer
and sale under the securities or Blue Sky laws of such jurisdictions within the
United States as the managing underwriter or underwriters reasonably request in
writing, or, in the event of a non-underwritten offering, as the Holders of a
majority of the Registrable Securities may request; provided, however, that
where Registrable Securities are offered other than through an underwritten
offering, the Company agrees to cause its counsel to perform Blue Sky
investigations and file registrations and qualifications required to be filed
pursuant to this Section 4(h); keep each such registration or qualification (or
exemption therefrom) effective during the Effectiveness Period and do any and
all other acts or things necessary or advisable to enable the disposition in
such jurisdictions of the securities covered thereby; provided, however, that
the Company will not be required to (A) qualify generally to do business in any
jurisdiction where it is not then so qualified, (B) take any action that would
subject it to general service of process in any such jurisdiction where it is
not then so subject or (C) become subject to taxation in any jurisdiction where
it is not then so subject.
(i) Cooperate with the Holders of Registrable
Securities and the managing underwriter or underwriters, if any, to facilitate
the timely preparation and delivery of certificates representing Registrable
Securities to be sold, which certificates shall not bear any restrictive legends
whatsoever and shall be in a form eligible for deposit with The Depository Trust
Company ("DTC"); and enable such Registrable Securities to be in such
denominations and registered in such names as the managing underwriter or
underwriters, if any, or Holders may reasonably request at least two business
days prior to any sale of Registrable Securities in a firm commitment
underwritten public offering.
(j) Pay all Registration Expenses in connection with
the registrations requested pursuant to Sections 2.1, 2.2 and 2.3 hereof. Each
Holder of Registrable Securities 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 a Registration Statement
requested pursuant to Section 2.1 or 2.2.
(k) Upon the occurrence of any event contemplated by
Section 4(c)(v) or 4(c)(vi) above, as promptly as practicable prepare a
supplement or post-effective amendment to the Registration Statement or a
supplement to the related Prospectus or any document incorporated or deemed to
be incorporated therein by reference, and, subject to Section 4(a) hereof, file
such with the SEC so that, as thereafter delivered to the purchasers of
Registrable Securities being sold thereunder, such Prospectus will not contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading.
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(l) Prior to the effective date of a Registration
Statement, (i) provide the registrar for the Registrable Securities with
certificates for such securities in a form eligible for deposit with DTC and
(ii) provide a CUSIP number for such securities.
(m) Enter into an underwriting agreement in form,
scope and substance as is customary in underwritten offerings and take all such
other actions as are reasonably requested by the managing underwriter or
underwriters in order to expedite or facilitate the registration or disposition
of such Registrable Securities in any underwritten offering to be made of the
Registrable Securities in accordance with this Agreement, and in such
connection, (i) make such representations and warranties to the underwriter or
underwriters, with respect to the business of the Company and the subsidiaries
of the Company, and the Registration Statement, Prospectus and documents, if
any, incorporated or deemed to be incorporated by reference therein, 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) use reasonable efforts to obtain opinion of counsel to the
Company, addressed to the underwriter or underwriters covering the matters
customarily covered in opinions requested in underwritten offerings and such
other matters as may be reasonably requested by underwriters; (iii) use
reasonable efforts to obtain "cold comfort" letters from the independent
certified public accountants of the Company (and, if applicable, the
subsidiaries of the Company) and, if necessary, any other independent certified
public accountants of any subsidiary of the Company or of any business acquired
by the Company for which financial statements and financial data are, or are
required to be, included in the Registration Statement, addressed to each of the
underwriters, 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 such other matters as reasonably requested by the
managing underwriter or underwriters and as permitted by the Statement of
Auditing Standards No. 72; and (iv) if an underwriting agreement is entered
into, the same shall contain customary indemnification provisions and procedures
with respect to all parties to be indemnified pursuant to said Section. The
above shall be done at each closing under such underwriting agreement, or as and
to the extent required thereunder.
(n) Make available for inspection by a representative
of the Holders of Registrable Securities being sold, any underwriter
participating in any such disposition of Registrable Securities, if any, and any
attorney or accountant retained by such representative of the Holders or
underwriter (collectively, the "Inspectors"), at the offices where normally
kept, during reasonable business hours, at the Inspector's expense, all
financial and other records, pertinent corporate documents and properties of the
Company and the subsidiaries of the Company, and cause the officers, directors
and employees of the Company and the subsidiaries of the Company to supply all
information in each case reasonably requested by any such Inspector in
connection with such Registration Statement; provided, however, that all
material non-public information shall be kept confidential by such Inspector and
shall not be used for any purpose other than as contemplated hereby, except to
the extent that (i) the disclosure of such information is necessary or advisable
to avoid or correct a misstatement or omission in the Registration Statement or
in any Prospectus; provided, however, that prior notice is given to the Company,
and the Company's legal counsel and such Holder's legal counsel concur that
disclosure is required, (ii) the release of such information is ordered pursuant
to a subpoena or
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other order from a court of competent jurisdiction, (iii) disclosure of such
information is necessary or advisable in connection with any action, claim, suit
or proceeding, directly or indirectly, involving or potentially involving such
Inspector and arising out of, based upon, relating to or involving this
Agreement or any of the transactions contemplated hereby or arising thereunder;
provided, however, that prior notice shall be provided as soon as practicable to
the Company of the potential disclosure of any information by such Inspector
pursuant to clauses (ii) or (iii) of this sentence to permit the Company to
obtain a protective order (or waive the provisions of this paragraph (n)) and
that such Inspector shall take all actions as are reasonably necessary to
protect the confidentiality of such information (if practicable) to the extent
such action is otherwise not inconsistent with, an impairment of or in
derogation of the rights and interests of the Holder or any Inspector, or (iv)
such information has been made generally available to the public.
(o) Comply with all applicable rules and regulations
of the SEC and make generally available to its security holders earnings
statements satisfying the provisions of Section 11(a) of the Securities Act and
Rule 158 thereunder (or any similar rule promulgated under the Securities Act)
no later than forty-five (45) days after the end of any 12 month period (or
ninety (90) days after the end of any 12 month period if such period is a fiscal
year) (i) commencing at the end of any fiscal quarter in which Registrable
Securities are sold to an underwriter or to underwriters in a firm commitment or
best efforts underwritten offering and (ii) if not sold to an underwriter or to
underwriters in such an offering, commencing on the first day of the first
fiscal quarter of the Company after the effective date of the relevant
Registration Statement, which statements shall cover said 12 month periods.
(p) Use its best efforts to cause all Registrable
Securities relating to such Registration Statement to be listed on each
securities exchange, if any, on which similar securities issued by the Company
are then listed.
(q) 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 registered in such names as the Selling Holders may reasonably
request at least two business days prior to the closing of any sale of
Registrable Securities.
Each seller of Registrable Securities as to which any registration is
being effected agrees, as a condition to the registration obligations with
respect to such seller provided herein, to furnish to the Company such
information regarding such seller and the distribution of such Registrable
Securities as the Company may, from time to time, reasonably request in writing
to comply with the Securities Act and other applicable law. The Company may
exclude from such registration the Registrable Securities of any seller for so
long as such seller fails to furnish such information within a reasonable time
after receiving such request. If the identity of a seller of Registrable
Securities is to be disclosed in the Registration Statement, such seller shall
be permitted to include all information regarding such seller as it shall
reasonably request.
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Each Holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 4(c)(ii), 4(c)(iv),
4(c)(v), or 4(c)(vi) hereof, such Holder will forthwith discontinue disposition
of such Registrable Securities covered by the Registration Statement or
Prospectus until such Holder's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 4(k) hereof), or until it is advised
in writing (the "Advice") by the Company that the use of the applicable
prospectus may be resumed, and has received copies of any amendments or
supplements thereto, and, if so directed by the Company, such Holder will, at
the Company's expense, deliver to the Company all copies, other than permanent
file copies, then in such Holder's actual possession of the Prospectus covering
such Registrable Securities current at the time of receipt of such notice;
provided, however, that nothing herein shall create any obligation on the part
of any Holder to undertake unreasonable efforts to retrieve or return any such
Prospectus not within the actual possession or control of such Holder. In the
event the Company shall give any such notice, the period of time for which a
Registration Statement is required thereunder to be effective shall be extended
by the number of days during such periods from and including the date of the
giving of such notice to and including the date when each seller of Registrable
Securities covered by such Registration Statement shall have received (x) the
copies of the supplemented or amended Prospectus contemplated by Section 4(k)
hereof or (y) the Advice.
SECTION 5. INDEMNIFICATION AND CONTRIBUTION
(a) The Company agrees to indemnify and hold harmless
each Holder and each Person, if any, who controls such Holder within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act, or
is under common control with, or is controlled by, such Holder, from and against
all losses, claims, damages and liabilities (including, without limitation, and
subject to clause (c) of this Section 5 below, the reasonable legal fees and
other reasonable out-of-pocket expenses actually incurred by any Holder or any
such controlling or affiliated Person in connection with any suit, action or
proceeding or any claim asserted), caused by, arising out of or based upon any
untrue statement or alleged untrue statement of a material fact contained in any
Registration Statement (or any amendment thereto) pursuant to which Registrable
Securities were registered under the Securities Act, or caused by any omission
or alleged omission to state in any such Registration Statement 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 preliminary prospectus or 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 in
any such preliminary prospectus or Prospectus a material fact required to be
stated in any such preliminary prospectus or Prospectus or necessary to make the
statements in any such preliminary prospectus or Prospectus 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 made in reliance upon and in
conformity with information relating to any Holder furnished to the Company in
writing by such Holder expressly for use in any such Registration Statement or
Prospectus; provided, however, that the Company shall not be required to
indemnify any such
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Person if such untrue statement or omission or alleged untrue statement or
omission was contained or made in any preliminary prospectus and corrected in
the Prospectus, or any amendment or supplement thereto and the Prospectus does
not contain any other untrue statement or omission or alleged untrue statement
or omission of a material fact that was the subject matter of the related
proceeding and any such loss, liability, claim, damage or expense suffered or
incurred by such indemnified Person resulted from any action, claim or suit by
an Person who purchased Registrable Securities which are the subject thereof
from such indemnified Person and it is established in the related proceeding
that such indemnified Person failed to deliver or provide a copy of the
Prospectus (as amended or supplemented) to such Person with or prior to the
confirmation of the sale of such Registrable Securities sold to such Person if
required by applicable law, unless such failure to deliver or provide a copy of
the Prospectus (as amended or supplemented) was a result of noncompliance by the
Company with Section 4 hereof or as a result of the failure of the Company to
provide such Prospectus.
(b) Each Holder agrees, severally and not jointly,
to indemnify and hold harmless the Company, its directors, its officers who sign
any Registration Statement, and each Person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act to the same extent as the foregoing indemnity from the Company
to such Holder, but only with reference to information relating to such Holder
furnished to the Company in writing by such Holder expressly for use in any
Registration Statement (or any amendment thereto) or any Prospectus (or any
amendment or supplement thereto). The liability of any Holder under this
paragraph shall in no event exceed the proceeds received by such Holder from
sales of Registrable Securities giving rise to such obligations.
(c) In case any suit, action, proceeding (including
any governmental or regulatory investigation), claim or demand shall be
instituted involving any Person in respect of which indemnity may be sought
pursuant to either paragraph (a) or (b) above, such Person (the "indemnified
party") shall promptly notify the Person against which 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 reasonably designate in such proceeding and shall pay the
reasonable fees and expenses actually incurred of such counsel relating to such
proceeding; provided, however, that the failure to so notify the indemnifying
party shall not relieve it of any obligation or liability which it may have
thereunder or otherwise. 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
contrary, (ii) the indemnifying party shall have failed to retain within a
reasonable period of time counsel reasonably satisfactory to such indemnified
party or parties or (iii) the named parties to any such proceeding (including
any impleaded parties) include both such indemnified party or parties and the
indemnifying parties or an affiliate of the indemnifying parties or such
indemnified parties and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between the
indemnifying party or parties and the indemnified party or parties. It is
understood that the indemnifying parties shall not, in connection with any one
such proceeding or separate but substantially similar or related
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proceedings 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 such indemnified party or parties and that all such fees and expenses
shall be reimbursed within reasonable time of the request after the incurrence
thereof. Any such separate firm for the Holders and such control Persons of the
Holders shall be designated in writing by Holders who sold a majority in
interest of Registrable Securities sold by all such Holders and shall be
reasonably acceptable to the Company and any such separate firm for the Company,
its directors, its officers and such control Persons of the Company shall be
designated in writing by the Company. The indemnifying party shall not be liable
for any settlement of any proceeding effected without its prior written consent
(which consent shall not be unreasonably withheld or delayed) but if settled
with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify and hold harmless 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 (which consent shall not be unreasonably withheld), effect any
settlement or compliance of any pending or threatened proceeding in respect of
which any indemnified party is or could have been a party, or indemnity could
have been sought thereunder by such indemnified party, unless such settlement or
compliance involves only the payment of money damages that are actually paid by
the indemnifying party or includes an unconditional written release of such
indemnified party in form and substance reasonably satisfactory to such
indemnified party of such indemnified party from all liability or claims that
are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in
paragraph (a) or (b) of this Section 5 is unavailable to, or insufficient to
hold harmless, an indemnified party in respect of any losses, claims, damages or
liabilities, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder and in order to provide for just
and equitable contribution, 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 (i) the relative
benefits received by the Company on the one hand and the Holders on the other
hand from the offering of such Registrable Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, not only such
relative benefits but also the relative fault of the Company on the one hand and
the Holders on the other hand in connection with the statements or omissions or
alleged statements or omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Holders on the other shall be deemed to be in the same
proportion as the total proceeds from the offering (net of discounts and
commissions but before deducting expenses) of the Warrants sold pursuant to the
Purchase Agreement received by the Company bears to the total proceeds received
by such Holder from the sale of Registrable Securities, as the case may be. The
relative fault of the Company on the one hand and the Holders on the other hand
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, and any other
equitable considerations appropriate in the circumstances.
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(e) The Company and each Holder agree that it would
not be just or equitable if contribution pursuant to this Section 5 were
determined by pro rata allocation or by any other method of allocation that does
not take account of the equitable considerations referred to in Section 5(d)
above. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages and liabilities referred to in Section 5(d) above shall
be deemed to include, subject to the limitations set forth above, any reasonable
legal or other expenses actually incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 5, in no event shall a Holder be
required to contribute any amount in excess of the amount by which proceeds
received by such Holder from sales of Registrable Securities exceeds the amount
of any damages that such Holder has otherwise been required to pay or has 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. The remedies
provided for in this Section 5 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.
(f) Any losses, claims, damages, liabilities or
expenses for which an indemnified party is entitled to indemnification or
contribution under this Section 5 shall be paid by the indemnifying party to the
indemnified party as such losses, claims, damages, liabilities or expenses are
incurred. The indemnity and contribution agreements contained in this Section 5
and the representations and warranties of the Company set forth in this
Agreement shall remain operative and in full force and effect, regardless of (i)
any investigation made by or on behalf of any Holder or any person who controls
a Holder, the Company, their respective directors or officers or any person
controlling the Company and (ii) any termination of this Agreement.
SECTION 6. MISCELLANEOUS
(a) No Inconsistent Agreements. The Company
represents and warrants to the Holders that it has not entered into nor will the
Company on or after the date of this Agreement enter into, or cause or permit
any of its subsidiaries to 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 thereunder 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, if any, under any such agreements.
(b) Amendments and Waivers. The provisions of this
Agreement 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 prior written consent of Holders of not less than a majority in
number of the then outstanding Warrants for the purpose of adding any provision
to or changing in any manner or eliminating any of the provisions of this
Agreement or modifying in any manner the rights of the holders of the
outstanding Warrants; provided, however, that Section 5 hereof and this Section
6(b) may not be amended, modified or
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supplemented without the prior written consent of each Holder (including any
Person who was a Holder of Registrable Securities disposed of pursuant to any
Registration Statement) affected by such amendment, modification or supplement.
Notwithstanding the foregoing, a waiver or consent to departure from the
provisions hereof that relates exclusively to the rights of Holders of
Registrable Securities whose securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect, impair,
limit or compromise the rights of other Holders of Registrable Securities may be
given by the Holders of not less than a majority of the Registrable Securities
proposed to be sold by such Holders pursuant to such Registration Statement.
(c) Notices. All notices and other communications
provided for or permitted thereunder 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 of Holder as
set forth in the register for the Warrants or the Warrant Shares, which address
initially is, with respect to the Initial Purchaser, the address set forth in
the Purchase Agreement; and (ii) if to the Company, initially at the address set
forth below the Company's name on the signature pages hereto and thereafter at
such other address, notice of which is given in accordance with the provisions
of this Section 6(c), and thereafter at such other address notice of which is
given in accordance with the provisions of this Section 6(c).
A copy of all notices and other communications under this Section 6(c)
shall be delivered to Xxxxx & XxXxxxxx, 000 Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxx,
Xxxxxxx, 00000, Attention: Xxxxxx Xxxxx, Esq.
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.
(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. If any transferee of any
Holder shall acquire Warrants and/or Registrable Securities, in any manner,
whether by operation of law or otherwise, such Warrants and/or Registrable
Securities shall be held subject to all of the terms of this Agreement, and by
taking and holding such Warrants and/or 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.
(e) 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.
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(f) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(g) GOVERNING LAW; JURISDICTION. THIS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WHOLLY WITHIN THE STATE OF
NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
Each of the parties hereto hereby irrevocably and
unconditionally: (i) submits itself and its property in any legal action or
proceeding relating to this Warrant Registration Rights Agreement or for
recognition and enforcement of any judgment in respect thereof, to the
non-exclusive jurisdiction of the courts of the State of New York and the courts
of the United States of America for the Southern District of New York, and
appellate courts thereof, and consents and agrees to such action or proceeding
being brought in such courts; and (ii) waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any such court
or that such action or proceeding was brought in any inconvenient court and
agrees not to plead or claim the same.
(h) Severability. If any term, provision, covenant
or restriction of this Agreement is held by a court of competent jurisdiction to
be invalid, illegal, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions set forth herein shall remain in full
force and effect and shall in no way be affected, impaired or invalidated, and
the parties hereto shall use their best efforts to find and employ an
alternative means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It is hereby
stipulated and declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions without
including any of such that may be hereafter declared invalid, illegal, void or
unenforceable.
(i) Entire Agreement. This Agreement, together with
the Purchase Agreement and the Warrant Agreement is intended by the parties as a
final expression of their agreement, and is intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein and therein. This Agreement, the
Purchase Agreement and the Warrant Agreement supersede all prior agreements and
understandings between the parties with respect to such subject matter.
(j) Attorneys' Fees. As between the parties to this
Agreement, in any action or proceeding brought to enforce any provision of this
Agreement, or where any provision hereof is validly asserted as a defense, the
successful party shall be entitled to recover reasonable attorneys' fees in
addition to its costs and expenses and any other available remedy.
(k) Securities Held by the Company or Its Affiliates.
Whenever the consent or approval of Holders of a specified percentage of
Registrable Securities or Warrants is required thereunder, Registrable
Securities or Warrants held by the Company or by any of its affiliates (as such
term is defined in Rule 405 under the Securities Act) shall not be counted (in
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either the numerator or the denominator) in determining whether such consent or
approval was given by the Holders of such required percentage.
(l) Remedies. In the event of a breach by the
Company of any of its obligations under this Agreement, each Holder, in addition
to being entitled to exercise all rights provided herein, in the Purchase
Agreement or granted by law, including recovery of damages, will be entitled to
specific performance of its rights under this Agreement. The Company agrees that
monetary damages would not be adequate compensation for any loss incurred by
reason of a breach by it of any of the provisions of this Agreement.
[signature page follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
INTERAMERICAS COMMUNICATIONS CORPORATION
By:
---------------------------------------------------
Name: Xxxxxxxx X. Northland
Title: President and Chief Executive Officer
Address for Notices:
0000 Xxxxxxxx Xxxxxx
Xxxxx, XX 00000
UBS SECURITIES LLC
By:
---------------------------------------------------
Name:
Title:
Address for Notices:
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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