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EXHIBIT 4.4
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT ("Agreement"), made as of ___________,
1999, by and among Orius Corp., a Florida corporation (the "CORPORATION"), HIG
Cable, Inc., a Cayman Island corporation (the "INVESTOR," and together with its
successors and assigns, the "INVESTORS"), and the other persons set forth on the
signature pages hereto (each individually, together with its successors and
assigns, an "EXECUTIVE" and collectively, the "EXECUTIVES"). All of the
stockholders of the Corporation, other than the Investor and Management, are
sometimes referred to herein as the "COMPANY STOCKHOLDERS." The Investor and the
Executives are sometimes collectively referred to herein as the "STOCKHOLDERS"
and individually as a "STOCKHOLDER." Capitalized terms used herein are defined
in Section 10 hereof.
In consideration of the mutual covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties to this Agreement hereby agree as follows:
1. DEMAND REGISTRATIONS.
(a) REQUESTS FOR REGISTRATION. At any time, a majority of the
Investors may request registration under the Securities Act of all or part of
their Stockholder Shares on Form S-1 or any similar long-form registration
("LONG-FORM REGISTRATIONS"), and a majority of the Investors may request
registration under the Securities Act of all or part of their Stockholder Shares
on Form S-2 or S-3 or any similar short-form registration ("SHORT-FORM
REGISTRATIONS") if available. All registrations requested pursuant to this
Section 1(a) are referred to herein as "DEMAND REGISTRATIONS." Each request for
a Demand Registration shall specify the approximate number of Stockholder Shares
requested to be registered and the requested per share price range, if any, for
such offering.
(b) LONG-FORM REGISTRATIONS. The Investors shall be
collectively entitled to request (i) two Long-Form Registrations in which the
Corporation will pay all Registration Expenses ("CORPORATION-PAID LONG-FORM
REGISTRATIONS") and (ii) two Long-Form Registrations in which the Investors
shall pay their share of the Registration Expenses as set forth in Section 7
hereof. A registration will not count as one of the permitted Long-Form
Registrations until it has become effective, and no Long-Form Registration will
count as one of the permitted Long-Form Registrations unless the Investors are
able to register and sell at least fifty percent (50%) of the Stockholder Shares
requested by them to be included in such registration; provided that in any
event the Corporation will pay all Registration Expenses in connection with any
registration initiated as a Corporation-Paid Long-Form Registration whether or
not it has become effective.
(c) SHORT-FORM REGISTRATIONS. In addition to the Long-Form
Registrations provided pursuant to Section 1(b), a majority of the Investors
shall be entitled to request ten Short-Form Registrations in which the
Corporation will pay all Registration Expenses; provided that the Corporation
and the securities meet the eligibility requirements for such forms and provided
further that the Short Form Registration shall only be effective for 90 days and
shall be subject to
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no sale periods if in the reasonable judgment of the Corporation such Short Form
Registration conflicts with the Corporation's business plans or another existing
or proposed registration statement. Demand Registrations shall be Short-Form
Registrations whenever the Corporation is permitted to use any applicable short
form. The Corporation shall use its best efforts to make Short-Form
Registrations on Form S-3 available for the sale of Stockholder Shares.
(d) PRIORITY ON DEMAND REGISTRATIONS. Upon the Corporation's
commencement of a Demand Registration, the Corporation shall mail notice thereof
to all Investors and the Investors shall have twenty (20) days after such
mailing date to notify the Corporation of the number of shares they desire to
sell in such offering. The Corporation shall not include in any Demand
Registration any securities which are not Stockholder Shares owned by the
Investors without the prior written consent of a majority in interest of the
Investors. If a Demand Registration is an underwritten offering and the managing
underwriters advise the Corporation in writing that in their opinion the number
of registerable securities and, if permitted hereunder, other securities
requested to be included in such offering exceeds the number of securities which
can be sold in an orderly manner in such offering within a price range
acceptable to the Investors requesting registration, the Corporation shall
include in such registration prior to the inclusion of any securities which are
not Stockholder Shares owned by the Investors the number of Stockholder Shares
owned by the Investors requested to be included which in the opinion of such
underwriters can be sold in an orderly manner within the price range of such
offering.
(e) RESTRICTIONS ON DEMAND REGISTRATIONS. The Corporation
shall not be obligated to effect any Demand Registration within six months after
the effective date of a previous underwritten registration of equity securities.
The Corporation may postpone for up to six months the filing or the
effectiveness of a registration statement for a Demand Registration if the
Corporation notifies the Investors that such Demand Registration would
reasonably be expected to have an adverse effect on any business plan of the
Corporation or any of its subsidiaries; provided that in such event, the
Investors initially requesting such Demand Registration will be entitled to
withdraw such request and, if such request is withdrawn, such Demand
Registration will not count as one of the permitted Demand Registrations
hereunder and the Corporation shall pay all Registration Expenses in connection
with such registration.
(f) SELECTION OF UNDERWRITERS. A majority in interest of the
Investors shall have the right to select the investment banker(s) and manager(s)
to administer any Demand Registration, subject to the approval of the
Corporation, which will not be unreasonably withheld. The Corporation will have
the right to select the investment banker(s) and manager(s) to administer any
offerings other than Demand Registrations.
(g) OTHER REGISTRATION RIGHTS. Except as provided in this
Agreement, the Corporation shall not grant to any person the right to request
the Corporation to register any equity securities of the Corporation, or any
securities convertible or exchangeable into or exercisable for such securities,
without the prior written consent of the Investors; provided that the
Corporation may grant rights to other persons to participate in Piggyback
Registrations so long as such rights are subordinate to the rights of the
Investors with respect to such Piggyback Registrations.
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2. PIGGYBACK REGISTRATIONS.
(a) RIGHT TO PIGGYBACK. Whenever the Corporation proposes to
register any of its Common Stock (either on its own behalf or on behalf of
others) under the Securities Act (other than a transaction described under Rule
145 of the Securities Act, a transaction registering securities convertible into
Common Stock or pursuant to Forms X-0, X-0 or their successor forms) and the
registration form to be used may be used for the registration of the Stockholder
Shares of the Stockholders (a "PIGGYBACK REGISTRATION"), the Corporation shall
give prompt written notice to the Stockholders of its intention to effect such a
registration and will include in such registration the Stockholder Shares of the
Stockholders with respect to which the Corporation has received written requests
for inclusion therein within 15 days after the receipt of the Corporation's
notice.
(b) PIGGYBACK EXPENSES. The Registration Expenses of the
Stockholders shall be paid by the Corporation in all Piggyback Registrations.
(c) PRIORITY ON PRIMARY REGISTRATIONS. If a Piggyback
Registration is an underwritten primary registration on behalf of the
Corporation, and the managing underwriters advise the Corporation in writing
that in their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering without
adversely affecting the marketability of the offering, the Corporation shall
include in such registration (i) first, the securities the Corporation proposes
to sell, (ii) second, the Stockholder Shares of Xx. Xxxxxxx X. Xxxxxxxx in the
amount of his Preference Amount if at least twenty percent (20%) of his
Stockholder Shares were not sold in the Corporation's initial Public Offering;
provided, however, that this priority shall only apply to such number of shares
received by Xx. Xxxxxxxx pursuant to that certain Stock Exchange Agreement among
North American Tel-Com Group, Inc. and Xxxxxxx X. Xxxxxxxx, dated Xxxxx 00,
0000, (xxx) third, the Stockholder Shares of the Investors and the Company
Stockholders up to an amount equal to twenty-five percent (25%) of the
Stockholder Shares held by each of them as of the date they became stockholders
(as adjusted to reflect any stock split, stock dividend or other form of
recapitalization) (the "PREFERENCE AMOUNT"), and (iv) fourth, all other
Stockholder Shares of all Stockholders requested to be included in such
registration. The Preference Amount for each applicable Stockholder shall be
adjusted from time to time by (i) subtracting the number of Stockholder Shares
either (A) sold in a Public Sale by such Stockholder or (B) saleable in a
Piggyback Registration that was consummated and pursuant to which the
Stockholder declined to participate in whole or in part, and (ii) adding or
subtracting the number of Stockholder Shares to appropriately reflect stock
splits, dividends and other recapitalizations.
(d) PRIORITY ON SECONDARY REGISTRATIONS. If a Piggyback
Registration is an underwritten secondary registration on behalf of holders of
the Corporation's securities, and the managing underwriters advise the
Corporation in writing that in their opinion the number of securities requested
to be included in such registration exceeds the number which can be sold in such
offering without adversely affecting the marketability of the offering, the
Corporation shall include in such registration (i) first, the securities
requested to be included therein by the Stockholder exercising its Demand
Registration, (ii) second, the Stockholder Shares of the Investors and the
Company Stockholders to the extent of their Preference Amounts and (iii) third,
all other
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Stockholder Shares of all Stockholders requested to be included in such
registration.
(e) OTHER REGISTRATIONS. If the Corporation has previously
filed a registration statement with respect to the Stockholder Shares of the
Investors pursuant to Section 1 or pursuant to this Section 2, and if such
previous registration has not been withdrawn or abandoned, the Corporation shall
not without the consent of the Investors file or cause to be effected any other
registration of any of its equity securities or securities convertible or
exchangeable into or exercisable for its equity securities under the Securities
Act (except on Form S-8 or any successor form), whether on its own behalf or at
the request of any holder or holders of such securities, until a period of at
least six months has elapsed from the effective date of such previous
registration.
(f) PRORATION OF ELIGIBLE SHARES. In the event of any
registration pursuant to this Section 2 where the full amount of the Stockholder
Shares of a particular group of Stockholders (e.g., the Investors and/or the
Company Stockholders) requested to be included in such registration cannot be
included in full, then the number of Stockholder Shares available for
registration shall be allocated among such group pro rata based upon the number
of Stockholder Shares requested to be included in such registration by each
member of the group. The obligation of the Corporation to include any
Stockholder's Stockholder Shares in a Piggyback Registration shall be subject to
the advice of the managing underwriter of such Public Offering, which may take
into account the size of the offering, market conditions and the appropriateness
of the Stockholder's participation if he is an employee, officer or director of
the Corporation.
3. CURRENT STOCKHOLDING. The Stockholders acknowledge and agree that
Schedule A hereto is an accurate list of the number of shares of Common Stock
and the percentage ownership of the Corporation held by each of the Stockholders
as of the date hereof on a fully diluted basis.
4. LOCKUP AGREEMENTS.
(a) Each Stockholder agrees not to effect any Public Sale or
distribution (including sales pursuant to Rule 144) of equity securities of the
Corporation, or any securities convertible into or exchangeable or exercisable
for such securities, during the seven days prior to and the 180-day period
beginning on the effective date of any (i) underwritten Demand Registration or
any underwritten Piggyback Registration in which Stockholder Shares are included
(except as part of such underwritten registration) or (ii) a Public Offering, in
each case unless the underwriters managing such Public Offering and the
Corporation otherwise agree. In the event that (x) the Investors initiate a
Demand Registration prior to thirty (30) days after the expiration of a Public
Offering lockup period, (y) the Company Stockholders were prohibited from
participating in such Public Offering pursuant to Section 2(f), and (z) the
Company Stockholders are prohibited from participating in the Demand
Registration pursuant to Section 1(d), then the Company Stockholders shall be
allowed to sell their Stockholders Shares pursuant to Rule 144 of the Securities
Act for a period of at least thirty (30) days after the expiration of the lockup
period for such Public Offering before becoming subject to the lockup period for
the Investor's Demand Registration.
(b) The Corporation agrees (i) not to effect any public sale
or distribution of its
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equity securities, or any securities convertible into or exchangeable or
exercisable for such securities, during the seven days prior to and during the
180-day period beginning on the effective date of any underwritten Demand
Registration or any underwritten Piggyback Registration (except as part of such
underwritten registration or pursuant to registrations on Form S-8 or any
successor form), unless the underwriters managing the Public Offering otherwise
agree, and (ii) to use its reasonable best efforts to cause each holder of at
least 5% of its Common Stock, or any securities convertible into or exchangeable
or exercisable for Common Stock, purchased from the Corporation at any time
after the date of this Agreement (other than in a Public Offering) to agree not
to effect any public sale or distribution (including sales pursuant to Rule 144)
of any such securities during such period (except as part of such underwritten
registration, if otherwise permitted), unless the underwriters managing such
Public Offering otherwise agree.
5. REGISTRATION PROCEDURES. Whenever a Stockholder has requested that
any securities be registered pursuant to this Agreement, the Corporation shall
use its best efforts to effect the registration and the sale of such securities
in accordance with the intended method of disposition thereof, and pursuant
thereto the Corporation shall as expeditiously as possible:
(a) prepare and file with the Securities and Exchange
Commission a registration statement with respect to such securities and use its
best efforts to cause such registration statement to become effective (provided
that before filing a registration statement or prospectus or any amendments or
supplements thereto, the Corporation shall furnish to the counsel selected by
the Investors covered by such registration statement copies of all such
documents proposed to be filed, which documents will be subject to the review
and comment of such counsel);
(b) prepare and file with the Securities and Exchange
Commission such amendments and supplements to such registration statement and
the prospectus used in connection therewith as may be necessary to keep such
registration statement effective for a period of not less than six months and
comply with the provisions of the Securities Act with respect to the disposition
of all securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the sellers thereof set
forth in such registration statement;
(c) furnish to each seller of securities such number of copies
of such registration statement, each amendment and supplement thereto, the
prospectus included in such registration statement (including each preliminary
prospectus) and such other documents as such seller may reasonably request in
order to facilitate the disposition of the securities owned by such seller;
(d) use its best efforts to register or qualify such
securities under such other securities or blue sky laws of such jurisdictions as
any seller reasonably requests and do any and all other acts and things which
may be reasonably necessary or advisable to enable such seller to consummate the
disposition in such jurisdictions of the securities owned by such seller
(provided that the Corporation shall 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 subparagraph, (ii) subject itself to taxation in any such
jurisdiction, or (iii) consent to general service of process in any such
jurisdiction);
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(e) notify each seller of Stockholder Shares, at any time when
a prospectus relating thereto is required to be delivered under the Securities
Act, of the happening of any event as a result of which the prospectus included
in such registration statement contains an untrue statement of a material fact
or omits any fact necessary to make the statements therein not misleading, and,
at the request of any such seller, the Corporation shall prepare a supplement or
amendment to such prospectus so that, as thereafter delivered to the purchasers
of such Stockholder Shares, such prospectus will not contain an untrue statement
of a material fact or omit to state any fact necessary to make the statements
therein not misleading;
(f) cause all such securities to be listed on each securities
exchange on which similar securities issued by the Corporation are then listed
and, if not so listed, to be listed on the NASD automated quotation system and,
if listed on the NASD automated quotation system, use its best efforts to secure
designation of all such securities covered by such registration statement as a
Nasdaq national market security within the meaning of Rule 11Aa2-1 of the
Securities and Exchange Commission or, failing that, to secure NASDAQ
authorization for such 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 securities with the NASD;
(g) provide a transfer agent and registrar for all such
securities not later than the effective date of such registration statement;
(h) enter into such customary agreements (including
underwriting agreements in customary form) and take all such other actions as
the Investor or the underwriters, if any, reasonably request in order to
expedite or facilitate the disposition of such securities (including, without
limitation, effecting a stock split or a combination of shares);
(i) make available for inspection by any seller of securities,
any underwriter participating in any disposition pursuant to such registration
statement and any attorney, accountant or other agent retained by any such
seller or underwriter, all financial and other records, pertinent corporate
documents and properties of the Corporation, and cause the Corporation's
officers, directors, employees and independent accountants to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement;
(j) otherwise use its best efforts to comply with all
applicable rules and regulations of the Securities and Exchange Commission, and
make available to its security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least twelve months beginning with
the first day of the Corporation's first full calendar quarter after the
effective date of the registration statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder;
(k) permit the Stockholder which, in its sole and exclusive
judgment, might be deemed to be an underwriter or a controlling person of the
Corporation, to participate in the preparation of such registration or
comparable statement and to require the insertion therein of
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material, furnished to the Corporation in writing, which in the reasonable
judgment of the Investor and its counsel should be included;
(l) in the event of the issuance of any stop order suspending
the effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any Common Stock included in such registration statement for sale in any
jurisdiction, the Corporation shall use its best efforts promptly to obtain the
withdrawal of such order;
(m) obtain a cold comfort letter from the Corporation's
independent public accountants in customary form and covering such matters of
the type customarily covered by cold comfort letters as the Stockholder may
reasonably request (provided that the Stockholder's Stockholder Shares
constitute at least 10% of the securities covered by such registration
statement); and
(n) if the offering is underwritten and at the request of any
seller of Stockholder Shares, use its best efforts to furnish on the date that
the Stockholder Shares are delivered to the underwriters (if any) for sale
pursuant to such registration: (i) an opinion dated such date of counsel
representing the Corporation for the purpose of such registration, addressed to
the underwriters and to such seller, stating that such registration statement
has become effective under the Securities Act and that (A) to the best knowledge
of such counsel, no stop order suspending the effectiveness thereof has been
issued and no proceedings for that purpose have been instituted or are pending
or contemplated under the Securities Act, (B) the registration statement, the
related prospectus and each amendment or supplement thereof comply as to form in
all material respects with the requirements of the Securities Act (except that
such counsel need not express any opinion as to financial statements or other
financial data contained therein) and (C) to such other effects as reasonably
may be requested by counsel for the underwriters or by such seller or its
counsel and (ii) a letter dated such date from the independent public
accountants retained by the Corporation, addressed to the underwriters and to
such seller, stating that they are independent public accountants within the
meaning of the Securities Act and that, in the opinion of such accountants, the
financial statements of the Corporation included in the registration statement
or the prospectus, or any amendment or supplement thereof, comply as to form in
all material respects with the applicable accounting requirements of the
Securities Act, and such letter shall additionally cover such other financial
matters (including information as to the period ending no more than five
business days prior to the date of such letter) with respect to such
registration as such underwriters reasonably may request.
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6. REGISTRATION EXPENSES.
(a) All expenses incident to the Corporation's performance of
or compliance with this Agreement, including without limitation all
registration, listing and filing fees, fees and expenses of compliance with
securities or blue sky laws, NASD fees, fees of transfer agents and registrars,
printing expenses, messenger and delivery expenses, and fees and disbursements
of counsel for the Corporation and all independent certified public accountants,
underwriters (excluding discounts and commissions) and other persons retained by
the Corporation (all such expenses being herein called "REGISTRATION EXPENSES"),
shall be borne as provided in this Agreement, except that the Corporation shall,
in any event, pay its internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), the expense of any annual audit or quarterly review, the
expense of any liability insurance and the expenses and fees for listing the
securities to be registered on each securities exchange on which similar
securities issued by the Corporation are then listed or on the NASD automated
quotation system.
(b) In connection with each Demand Registration and each
Piggyback Registration, the Corporation shall reimburse the Stockholders for the
reasonable fees and disbursements of one counsel to the extent the Stockholders
request separate counsel from the Corporation.
(c) To the extent Registration Expenses are not required to be
paid by the Corporation, each holder of securities included in any registration
hereunder shall pay those Registration Expenses allocable to the registration of
such holder's securities so included, and any Registration Expenses not so
allocable shall be borne by all sellers of securities included in such
registration in proportion to the aggregate selling price of the securities to
be so registered.
7. INDEMNIFICATION.
(a) The Corporation agrees to indemnify, to the extent
permitted by law, the participating Stockholders (in their capacity as a seller
of securities and not as an officer of the Corporation), their officers and
directors and each person who controls the Investors (within the meaning of the
Securities Act) against all losses, claims, damages, liabilities and expenses
caused by any untrue or alleged untrue statement of material fact contained in
any registration statement, prospectus or preliminary prospectus or any
amendment thereof or supplement thereto or any omission or alleged omission of a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as the same are caused by or contained in
any information furnished in writing to the Corporation by the Stockholder
expressly for use therein or by the Stockholder's failure to deliver a copy of
the registration statement or prospectus or any amendments or supplements
thereto after the Corporation has furnished the Stockholder with a sufficient
number of copies of the same. In connection with an underwritten offering, the
Corporation shall indemnify such underwriters, their officers and directors and
each person who controls such underwriters (within the meaning of the Securities
Act) to the same extent as provided above with respect to the indemnification of
the Investor.
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(b) In connection with any registration statement in which the
Stockholder is participating, the Stockholder shall furnish to the Corporation
in writing such powers of attorney, custody agreements and letters of direction
and other information and affidavits as the Corporation reasonably requests for
use in connection with any such registration statement or prospectus and, to the
extent permitted by law, shall only have to indemnify the Corporation, its
directors and officers and each person who controls the Corporation (within the
meaning of the Securities Act) against any losses, claims, damages, liabilities
and expenses resulting from any untrue or alleged untrue statement of material
fact contained in the registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading, but only to the extent that such
untrue statement or omission is contained in any information or affidavit so
furnished in writing by the Stockholder to the Corporation for specific use in
such registration statement, prospectus or amendment or supplement thereto and
which remained in the final prospectus delivered to the purchaser of such
securities; provided that the obligation to indemnify shall be limited to the
net amount of proceeds received by the Stockholder from the sale of Stockholder
Shares pursuant to such registration statement.
(c) Any person entitled to indemnification hereunder shall (i)
give prompt written notice to the indemnifying party of any claim with respect
to which it seeks indemnification and (ii) unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party. If such defense is assumed, the
indemnifying party shall not be subject to any liability for any settlement made
by the indemnified party without its consent (but such consent shall not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim shall not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim. An indemnified party shall be able to assume defense if the indemnifying
party does not diligently pursue the defense of the indemnified party. In
addition, no indemnifying party should, except with the consent of each
indemnified party, consent to the entry of any judgment or enter into any
settlement.
(d) The indemnification provided for under this Agreement
shall remain in full force and effect regardless of any investigation made by or
on behalf of the indemnified party or any officer, director or controlling
person of such indemnified party and shall survive the transfer of securities.
The Corporation also agrees to make such provisions, as are reasonably requested
by any indemnified party, for contribution to such party in the event the
Corporation's indemnification is unavailable for any reason.
(e) In order to provide for just and equitable contribution to
joint liability under the Securities Act in any case in which either (i) any
Stockholder exercising rights under this
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Agreement, or any controlling person of any such Stockholder, makes a claim for
indemnification pursuant to this section but it is judicially determined (by the
entry of a final judgment or decree by a court of competent jurisdiction and the
expiration of time to appeal or the denial of the last right of appeal) that
such indemnification may not be enforced in such case notwithstanding the fact
that this section provides for indemnification in such case, or (ii)
contribution under the Securities Act may be required on the part of any such
selling Stockholder or any such controlling person in circumstances for which
indemnification is provided under this section; then, and in each such case, the
Corporation and such Stockholder will contribute to the aggregate losses,
claims, damages or liabilities to which they may be subject (after contribution
from others) in such proportion so that such Stockholder is responsible for the
portion represented by the percentage that the Public Offering price of its
registered securities offered by the registration statement bears to the Public
Offering price of all securities offered by such registration statement, and the
Corporation is responsible for the remaining portion; provided, however, that in
any such case, (A) no such Stockholder will be required to contribute any amount
in excess of the net proceeds received by it from the sale of its registered
securities covered by such registration statement (as further reduced by any
damages or other amounts such Stockholder was otherwise required to pay in
connection with such losses, claims, damages or liabilities); and (B) no person
or entity guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) will be entitled to contribution from any person or
entity who was not guilty of such fraudulent misrepresentation.
8. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No person may
participate in any registration hereunder which is underwritten unless such
person (i) agrees to sell such person's securities on the basis provided in any
underwriting arrangements approved by the person or persons entitled hereunder
to approve such arrangements and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements; provided that no
holder of securities included in any underwritten registration shall be required
to make any representations or warranties to the Corporation or the underwriters
other than representations and warranties regarding such holder and such
holder's intended method of distribution.
9. INFORMATION. The Corporation agrees, so long as any Stockholder
holds any Stockholder Shares, to use all reasonable efforts to (i) timely file
with the Securities and Exchange Commission all reports required to be filed by
the Corporation under the Securities Exchange Act of 1934, as amended, and (ii)
provide each Stockholder, upon request, information sufficient to enable such
Stockholder to sell Stockholder Shares under Rule 144 and Rule 144A of the
Securities Act; provided, however, the Corporation shall have no liability to
any Stockholder under this Section 9 unless the Corporation fails to perform
after 30 days prior written notice of a previous failure to perform.
10. DEFINITIONS.
"COMMON STOCK" means any and all of the Corporation's common stock
issued and outstanding at any given point (whether Vested Shares or Unvested
Shares), and includes (i) all classes of common stock, and (ii) any securities
issued or issuable with respect to the capital stock
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referred to in clause (i) above by way of stock dividends or stock splits or in
connection with a combination of shares, recapitalization, merger,
consolidation, or other reorganization.
"COMPANY STOCKHOLDERS" shall have the meaning set forth in the
preamble.
"CORPORATION" shall have the meaning set forth in the preamble and
shall include all of the Corporation's subsidiaries.
"CORPORATION-PAID LONG-FORM REGISTRATIONS" shall have the meaning set
forth in Section 1(b) hereof.
"DEMAND REGISTRATIONS" shall have the meaning set forth in Section 1(a)
hereof.
"EXECUTIVE" shall have the meaning set forth in the preamble and shall
include their permitted successors and assigns.
"INVESTOR" shall have the meaning in the preamble.
"LONG-FORM REGISTRATIONS" shall have the meaning set forth in Section
1(a) hereof.
"MANAGEMENT" means Xxxxxxxx & Associates, P.A., GMS Consulting Group,
Inc., Messrs. Xxxxxxx X. Xxxxxxxx, Xxxxxx Xxxxxx, Xxxxxx Xxxxxxx, Xxxxxx Xxxxxxx
and Xx. Xxxxxxxxx Xxxxxxxxxx.
"PIGGYBACK REGISTRATION" shall have the meaning set forth in Section
2(a) hereof.
"PREFERRED STOCK" means any series of preferred stock issued by the
Corporation.
"PUBLIC OFFERING" means the offer and sale of the Corporation's Common
Stock in an offering registered under the Securities Act.
"PUBLIC SALE" means any sale of Stockholder Shares to the public
pursuant to an offering registered under the Securities Act or to the public
through a broker, dealer or market maker pursuant to the provisions of Rule 144
adopted under the Securities Act.
"REGISTRATION EXPENSES" shall have the meaning set forth in Section
6(a) hereof.
"SECURITIES ACT" means the Securities Act of 1933, as amended from time
to time.
"SHORT-FORM REGISTRATIONS" shall have the meaning set forth in Section
1(a) hereof.
"STOCKHOLDER" shall have the meaning as set forth in the preamble and
shall include their permitted successors and assigns.
"STOCKHOLDERS" shall have the meaning as set forth in the preamble.
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"STOCKHOLDER SHARES" means (i) any Common Stock purchased or otherwise
acquired by any Stockholder, including without limitation, Unvested Shares and
Vested Shares, (ii) any equity securities issued or issuable directly or
indirectly with respect to the Common Stock referred to in clause (i) above by
way of stock dividend or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization, (iii)
any Common Stock issuable upon conversion of the Preferred Stock, and (iv) any
other shares of any class or series of capital stock of the Corporation held by
a Stockholder. As to any particular shares constituting Stockholder Shares, such
shares shall cease to be Stockholder Shares when they have been sold to the
public through a Public Sale even if thereafter they are reacquired by a
Stockholder.
"UNVESTED SHARES" means (i) any Common Stock purchased or otherwise
acquired by an Executive which is subject to vesting requirements or, as a
result of an agreement with the Corporation or the Investor, other contractual
risk of forfeiture, and (ii) any equity securities issued or issuable directly
or indirectly with respect to the Common Stock referred to in clause (i) above
by way of stock dividend or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization;
provided, however, upon the occurrence of the event or action which causes the
Executive to have vested rights in all or any portion of such Common Stock or
otherwise removes the substantial risk of forfeiture, the portion of such Common
Stock as to which "vesting" occurred shall become Vested Shares.
"VESTED SHARES" means (i) any Common Stock purchased or otherwise
acquired by a Stockholder which is free of vesting requirements and substantial
risk of forfeiture from contractual restrictions through an agreement with the
Corporation or the Investor, (ii) any Common Stock which would be issuable upon
conversion of the Preferred Stock at the Conversion Rate applicable at such
time, and (iii) any equity securities issued or issuable directly or indirectly
with respect to the Common Stock referred to in clause (i) above by way of stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization; provided,
however, that, notwithstanding the foregoing, all of the Common Stock receivable
upon conversion of the Preferred Stock shall be "Vested Shares."
11. AMENDMENT AND WAIVER. Except as otherwise provided herein, no
modification, amendment or waiver of any provision of this Agreement shall be
effective unless in writing and unless signed by the party against whom such
modification, amendment or waiver is to be enforced. The failure of any party to
enforce any of the provisions of this Agreement shall in no way be construed as
a waiver of such provisions and shall not affect the right of such party
thereafter to enforce each and every provision of this Agreement in accordance
with its terms.
12. SEVERABILITY. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
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13. ENTIRE AGREEMENT. Except as expressly set forth herein, this
document embodies the complete agreement and understanding among the parties
hereto with respect to the subject matter hereof and supersedes and preempts any
prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way.
14. SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, this
Agreement shall bind and inure to the benefit of and be enforceable by the
Corporation and its successors and assigns and the Stockholders and any
permitted subsequent holders of Stockholder Shares and the respective successors
and permitted assigns of each of them, so long as they hold Stockholder Shares.
15. COUNTERPARTS. This Agreement may be executed in separate
counterparts each of which shall be an original and all of which taken together
shall constitute one and the same agreement.
16. REMEDIES. The Corporation, the Investors, and the Executives shall
be entitled to enforce their rights under this Agreement specifically, to
recover damages by reason of any breach of any provision of this Agreement and
to exercise all other rights existing in their favor. The parties hereto agree
and acknowledge that money damages may not be an adequate remedy for any breach
of the provisions of this Agreement and that the Corporation, any Investors and
any Executive may in its sole discretion apply to any court of law or equity of
competent jurisdiction for specific performance and/or injunctive relief
(without posting a bond or other security) in order to enforce or prevent any
violation of the provisions of this Agreement.
17. NOTICES. Any notice provided for in this Agreement shall be in
writing and shall be either personally delivered, or mailed first class mail
(postage prepaid) or sent by reputable overnight courier service (charges
prepaid) to the Corporation at the address set forth below and to any other
recipient at the address indicated on the schedules hereto and to any subsequent
holder of Stockholder Shares subject to this Agreement at such address as
indicated by the Corporation's records, or at such address or to the attention
of such other person as the recipient party has specified by prior written
notice to the sending party. Notices will be deemed to have been given hereunder
when delivered personally, three days after deposit in the U.S. mail and one day
after deposit with a reputable overnight courier service. The Corporation's
address is:
Orius Corp.
0000 Xxxxx Xxx, Xxxxx 000
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx, President
and a copy of all notices sent to the Corporation should be
sent to:
Akerman Senterfitt & Xxxxxx, P.A.
Las Olas Centre, Suite 950
000 Xxxx Xxx Xxxx Xxxxxxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxx Xxxxxx, Esq.
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18. GOVERNING LAW. This Agreement will be construed and interpreted in
accordance with and governed by the internal laws of the State of Delaware.
19. TERMINATION. The provisions of this Agreement shall expire on
February 26, 2009.
20. ENFORCEMENT. The Corporation shall use its best efforts to enforce
this Agreement for the equal benefit of all Stockholders and shall take all
actions necessary to effect the foregoing.
21. CONSENT TO JURISDICTION; SERVICE OF PROCESS. The Corporation and
the Stockholders all hereby irrevocably submit to the jurisdiction of the state
or federal courts located in Dade County, Florida or in New Castle County,
Delaware in connection with any suit, action or other proceeding arising out of
or relating to this Agreement and the transactions contemplated hereby, and
hereby agrees not to assert, by way of motion, as a defense, or otherwise in any
such suit, action or proceeding that the suit, action or proceeding is brought
in an inconvenient forum, that the venue of the suit, action or proceeding is
improper or that this Agreement or the subject matter hereof may not be enforced
by such courts.
22. WAIVER OF JURY TRIAL. THE CORPORATION AND THE STOCKHOLDERS ALL
HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY AND TO THE FULLEST EXTENT PERMITTED BY LAW WAIVE ANY RIGHTS
THAT THEY MAY HAVE TO CLAIM OR RECEIVE CONSEQUENTIAL OR SPECIAL DAMAGES IN
CONNECTION WITH ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
IN WITNESS WHEREOF, the parties hereto have agreed to this Registration
Rights Agreement as of the day and year first written above.
ORIUS CORP.
By:
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Its
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HIG CABLE, INC.
By:
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Its
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