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EXHIBIT 4.7
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
This Exchange and Registration Rights Agreement (this "Agreement") is
made and entered into as of September 23, 1997 by and among HighwayMaster
Communications, Inc., a Delaware corporation (the "Company"), HighwayMaster
Corporation, a Delaware corporation (the "Guarantor"), Bear, Xxxxxxx & Co. Inc.
("Bear Xxxxxxx") and Xxxxx Xxxxxx Inc. ("Xxxxx Xxxxxx"). Bear Xxxxxxx and Xxxxx
Xxxxxx are hereafter referred to collectively as the "Purchasers."
Pursuant to the Purchase Agreement, dated September 18, 1997, (the
"Purchase Agreement"), by and among the Company, the Guarantor and the
Purchasers, the Purchasers have agreed to purchase units consisting in part of
the Company's 13 3/4% Senior Notes due 2005 the payment of which the Guarantor
has guaranteed (the "Series A Notes").
In order to induce the Purchasers to purchase the units, the Company
and the Guarantor have agreed to provide the registration rights set forth in
this Agreement. The execution and delivery of this Agreement is a condition to
the obligations of the Purchasers set forth in Section 9 of the Purchase
Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have
the following meanings:
Act: The Securities Act of 1933, as amended.
Advice: As defined in Section 6(d).
Agreement: As defined in the preamble hereto.
Bear Xxxxxxx: As defined in the preamble hereto.
Broker-Dealer: Any broker or dealer registered under the Exchange Act,
including the Purchasers.
Business Day: Any day except a Saturday, Sunday or other day in the
City of New York on which banks are authorized to close.
Closing Date: The date of this Agreement.
Commission: The Securities and Exchange Commission.
Consummate: The Exchange Offer shall be deemed "Consummated" for
purposes of this Agreement upon the occurrence of (a) the filing and
effectiveness under the Act of the Exchange Offer Registration Statement
relating to the Series B Notes to be issued in the Exchange Offer, (b) the
maintenance of such Registration Statement continuously effective and the
keeping of the Exchange Offer open for a period not less than the minimum
period required pursuant to Section 3(b) hereof, and (c) the delivery by the
Company to the Trustee under the Indenture of Series B Notes in the same
aggregate principal amount as the aggregate principal amount of Series A Notes
that were validly tendered by Holders thereof pursuant to the Exchange Offer.
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Damages Payment Date: With respect to the Series A Notes, each
Interest Payment Date.
Effectiveness Target Date: As defined in Section 5.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Offer: The registration by the Company under the Act of the
Series B Notes (and by the Guarantor of the related guarantees) pursuant to an
Exchange Offer Registration Statement pursuant to which the Company offers the
Holders of all outstanding Transfer Restricted Securities the opportunity to
exchange all such outstanding Transfer Restricted Securities held by such
Holders for Series B Notes in an aggregate principal amount equal to the
aggregate principal amount of the Transfer Restricted Securities validly
tendered in such exchange offer by such Holders.
Exchange Offer Registration Statement: The Registration Statement
relating to the Exchange Offer, including the related Prospectus.
Exempt Resales: The transactions in which the Purchasers propose to
sell the Series A Notes to certain "qualified institutional buyers," as such
term is defined in Rule 144A under the Act, and outside the United States to
persons other than U.S. Persons in offshore transactions meeting the
requirements of Rule 903 of Regulation S under the Securities Act.
Guarantor: As defined in the preamble hereto, but also including any
future guarantors of the Securities as provided under the Indenture. The
Company shall cause any such future guarantors to comply with the obligations
of the Guarantor under this Agreement.
Holder: As defined in Section 2(b) hereof.
Holder Resale Notice: As defined in Section 4(a) hereof.
Indenture: The Indenture, dated as of the Closing Date, among the
Company, the Guarantor and the Trustee, pursuant to which the Securities are to
be issued, as such Indenture is amended or supplemented from time to time in
accordance with the terms thereof.
Interest Payment Date: As defined in the Indenture and the Securities.
Liquidated Damages: As defined in Section 5 hereof.
NASD: National Association of Securities Dealers, Inc.
Person: An individual, partnership, corporation, limited liability
company, joint venture, association, trust or other organization whether or not
a legal entity, or a government or agency or political subdivision thereof.
Prospectus: The prospectus included in a Registration Statement, as
amended or supplemented by any prospectus supplement and by all other
amendments thereto,
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including post-effective amendments, and all material incorporated by reference
into such Prospectus.
Purchase Agreement: As defined in the preamble hereto.
Purchasers: As defined in the preamble hereto.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the Company (and
with respect to the guarantees, the Guarantor) relating to (a) an offering of
Series B Notes pursuant to an Exchange Offer or (b) the registration for resale
of Transfer Restricted Securities pursuant to the Shelf Registration Statement,
which is filed pursuant to the provisions of this Agreement, in each case,
including the Prospectus included therein, all amendments and supplements
thereto (including post-effective amendments) and all exhibits and material
incorporated by reference therein.
Securities: The Series A Notes and the Series B Notes.
Series A Notes: As defined in the preamble hereto.
Series B Notes: The Company's 13 3/4% Senior Notes due 2005 to be
issued pursuant to the Indenture in the Exchange Offer, the payment of which
the Guarantor will guarantee.
Shelf Registration: A registration effected by the filing of a Shelf
Registration Statement pursuant to Section 4 hereof.
Shelf Registration Statement: As defined in Section 4 hereof.
Xxxxx Xxxxxx: As defined in the preamble hereto.
TIA: The Trust Indenture Act of 1939 as in effect on the date of the
Indenture.
Transfer Restricted Securities: The following Securities: (a) each
Series A Note until the date on which such Series A Note has been exchanged by
a Person other than a Broker-Dealer for a Series B Note in the Exchange offer,
(b) following the exchange by a Broker-Dealer in the Exchange Offer of a Series
A Note for a Series B Note, the date on which such Series B Note is sold to a
purchaser who receives from such Broker-Dealer on or prior to the date of such
sale a copy of the Prospectus contained in the Exchange Offer Registration
Statement if it is permissible under applicable law and Commission policy to
use the Prospectus for such purpose, (c) the date on which such Security has
been effectively registered under the Securities Act and disposed of in
accordance with the Shelf Registration Statement, or (d) the date on which such
Security is distributed (and not merely eligible for distribution) to the
public pursuant to Rule 144 under the Securities Act.
Trustee: Texas Commerce Bank, National Association or such other
Person who may be the trustee under the Indenture at the time.
Underwritten Registration or Underwritten Offering: A registration in
which securities
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of the Company (and to the extent of the guarantees, the Guarantor) are sold to
an underwriter for reoffering to the public.
U.S. Person: As defined in Rule 902 of Regulation S under the
Securities Act.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) Transfer Restricted Securities. The Securities entitled to
the benefits of this Agreement are the Transfer Restricted Securities.
(b) Holders of Transfer Restricted Securities. A Person is deemed
to be a holder of Transfer Restricted Securities (each, a "Holder") whenever
such Person beneficially owns Transfer Restricted Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Exchange Offer. Unless the Exchange Offer shall not be permissible
under applicable law or Commission policy, the Company (and to the extent of
the guarantees, the Guarantor) shall (i) cause to be filed with the Commission,
on or prior to 45 days after the Closing Date, the Exchange Offer Registration
Statement under the Act relating to the Series B Notes and the Exchange Offer,
(ii) use its best efforts to cause such Exchange Offer Registration Statement
to be declared effective by the Commission on or prior to 135 days after the
Closing Date, (iii) in connection with the foregoing, file (A) all
pre-effective amendments to such Exchange Offer Registration Statement as may
be necessary in order to cause such Exchange Offer Registration Statement to
become effective, (B) cause all necessary filings in connection with the
registration and qualification of the Series B Notes to be made under the Blue
Sky laws of such jurisdictions as are necessary to permit Consummation of the
Exchange Offer, and (iv) upon the effectiveness of such Exchange Offer
Registration Statement, commence the Exchange Offer. The Exchange Offer shall
be on an appropriate form permitting registration of the Series B Notes to be
offered in exchange for the Transfer Restricted Securities and to permit
resales of Securities held by Broker-Dealers as contemplated by Section 3(c)
below, if permissible under applicable law or Commission policy. If, after such
Exchange Offer Registration Statement initially is declared effective by the
Commission, the Exchange Offer or the issuance of Series B Notes thereunder or
the sale of Transfer Restricted Securities pursuant thereto as contemplated by
Section 3(c) below is interfered with by any stop order, injunction or other
order or requirement of the Commission or any other governmental agency or
court, such Exchange Offer Registration Statement shall be deemed not to have
become effective for purposes of this Agreement during the period that such
stop order, injunction or other similar order or requirement shall remain in
effect.
(b) Duration. The Company (and to the extent of the guarantees, the
Guarantor) shall use its best efforts to cause the Exchange Offer Registration
Statement to be effective continuously and shall keep the Exchange Offer open
for a period of not less than the minimum period required under applicable
federal and state securities laws to Consummate the Exchange Offer; provided,
however, that in no event shall such period be less than 20 Business Days. The
Company (and to the extent of the guarantees, the Guarantor) shall cause the
Exchange Offer to comply with all applicable federal and state
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securities laws. No securities other than the Securities shall be included in
the Exchange Offer Registration Statement. The Company (and to the extent of
the guarantees, the Guarantor) shall use its best efforts to cause the Exchange
Offer to be Consummated not later than 180 days after the Closing Date.
(c) Broker-Dealers. The Company (and to the extent of the guarantees,
the Guarantor) shall indicate in a "Plan of Distribution" section contained in
the Prospectus included in the Exchange Offer Registration Statement that any
Broker-Dealer who holds Series A Notes that are Transfer Restricted Securities
and that were acquired for its own account as a result of market-making
activities or other trading activities (other than Transfer Restricted
Securities acquired directly from the Company), may exchange such Series A
Notes pursuant to the Exchange Offer; provided, however, that such
Broker-Dealer may be deemed to be an "underwriter" within the meaning of the
Act and must, therefore, deliver a prospectus meeting the requirements of the
Act in connection with any resales of the Series B Notes received by such
Broker-Dealer in the Exchange Offer, which prospectus delivery requirement may
be satisfied by the delivery by such Broker-Dealer of the Prospectus contained
in the Exchange Offer Registration Statement. Such "Plan of Distribution"
section shall also contain all other information with respect to such resales
by Broker-Dealers that the Commission may require in order to permit such
resales pursuant thereto, but such "Plan of Distribution" shall not name any
such Broker-Dealer or disclose the amount of Securities held by any such
Broker-Dealer except to the extent required by the Commission.
The Company (and to the extent of the guarantees, the Guarantor) shall
use its best efforts to keep the Exchange Offer Registration Statement
continuously effective, supplemented and amended as required by the provisions
of Section 6(c) below to the extent necessary to ensure that it is available
for resales of Securities acquired by Broker-Dealers for their own accounts as
a result of market-making activities or other trading activities, and to ensure
that it conforms with the requirements of this Agreement, the Act and the
policies, rules and regulations of the Commission as announced from time to
time, for a period of 180 days from the date on which the Exchange Offer
Registration Statement is declared effective.
The Company shall provide sufficient copies of the latest version of
such Prospectus to Broker-Dealers promptly upon request at any time during such
period in order to facilitate such resales.
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SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Company is not required to file an
Exchange Offer Registration Statement or consummate the Exchange Offer because
the Exchange Offer is not permitted by applicable law or Commission policy (so
long as the procedures set forth in Section 6(a) below are being or have been
complied with) or (ii) any Holder of Transfer Restricted Securities shall
deliver a notice (the "Holder Resale Notice") to the Company on or prior to the
20th Business Day following the Consummation of the Exchange Offer that (A)
such Holder is prohibited by applicable law or Commission policy from
participating in the Exchange Offer, (B) such Holder may not resell the Series
B Notes to be acquired by it in the Exchange Offer to the public without
delivering a prospectus and that the Prospectus contained in the Exchange Offer
Registration Statement is not appropriate or available for such resales by such
Holder, or (c) such Holder is a Broker- Dealer and holds Series A Notes
acquired directly from the Company or an affiliate of the Company, then the
Company (and to the extent of the guarantees, the Guarantor) shall:
(x) cause to be filed a shelf registration statement
pursuant to Rule 415 under the Act, which may be an amendment to the
Exchange Offer Registration Statement (in either event, the "Shelf
Registration Statement"), on or prior to the 45th day after the
obligation to file such Shelf Registration Statement arises, which
Shelf Registration Statement shall provide for resales of all Transfer
Restricted Securities, the Holders of which shall have provided the
information required pursuant to Section 4(b) hereof; and
(y) use its best efforts to cause such Shelf
Registration Statement to be declared effective by the Commission on
or before the 120th day after the obligation to file such Shelf
Registration Statement arises (but in any event within 180 days after
the Closing Date).
Subject to paragraph (c) below, the Company (and to the extent of the
guarantees, the Guarantor) shall use its best efforts to keep such Shelf
Registration Statement continuously effective, supplemented and amended as
required by the provisions of Sections 6(b) and (c) hereof to the extent
necessary to ensure that it is available for resales of Securities by the
Holders of Transfer Restricted Securities entitled to the benefit of this
Section 4(a), and to ensure that it conforms with the requirements of this
Agreement, the Act and the policies, rules and regulations of the Commission as
announced from time to time, until the earlier of (A) the date two years after
the effective date thereof (plus any extension of such two year period pursuant
to Section 4(c) below), (B) the consummation of the Exchange Offer with respect
to all Transfer Restricted Securities and the expiration of 20 Business Days
after the consummation thereof if during such 20 day period no Holder Resale
Notice shall have been delivered to the Company and (C) the date when all
securities covered by the Shelf Registration Statement have been sold pursuant
to the Shelf Registration Statement.
(b) Provision by Holders of Certain Information in Connection with the
Shelf Registration Statement. No Holder of Transfer Restricted Securities may
include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing such information as the Company may reasonably request
specified in Item 507 and Item 508
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of Regulation S-K under the Act for use in connection with any Shelf
Registration Statement or Prospectus or preliminary Prospectus included
therein. Each Holder as to which any Shelf Registration Statement is being
effected agrees to furnish promptly to the Company all information required to
be disclosed in order to make the information previously furnished to the
Company by such Holder not materially misleading. No Holder of Transfer
Restricted Securities shall be entitled to Liquidated Damages pursuant to
Section 5 hereof unless and until such Holder shall have used its best efforts
to provide all such reasonably requested information.
(c) Black Out Period. During any consecutive 365 day period, the
Company may suspend the effectiveness of the Shelf Registration Statement on
two occasions for a period of not more than 45 consecutive days if there is a
possible acquisition or business combination or other transaction, business
development or event involving the Company that may require disclosure in the
Shelf Registration Statement and the Board of Directors of the Company
determines in the exercise of its reasonable judgment that such disclosure is
not in the best interests of the Company and its stockholders or obtaining any
financial statements relating to a possible acquisition or business combination
required to be included in the Shelf Registration Statement would be
impracticable. In such a case, the Company shall promptly notify the Holders of
the suspension of the Shelf Registration Statement's effectiveness, provided
that such notice shall not require the Company to disclose the possible
acquisition or business combination or other transaction, business development
or event if the Board of Directors of the Company determines in good faith that
such acquisition or business combination or other transaction, business
development or event should remain confidential. Upon the abandonment,
consummation, or termination of the possible acquisition or business
combination, or the availability of the required financial statements with
respect to a possible acquisition or business combination, the suspension of
the use of the Shelf Registration Statement pursuant to this Section 4(c) shall
cease and the Company shall promptly comply with Section 6(c)(ii) hereof and
notify the Holders that disposition of Transfer Restricted Securities may be
resumed. The length of any periods during which the Company prohibits offers
and sales of Transfer Restricted Securities pursuant to the Shelf Registration
Statement under this Section 4(c) shall be considered periods of a Registration
Default under Section 5 hereof. In addition, the length of any periods during
which the Company prohibits offers and sales of Transfer Restricted Securities
pursuant to the Shelf Registration Statement under this Section 4(c) shall be
added to the two year period described in Section 4(a) above.
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SECTION 5. LIQUIDATED DAMAGES
If (a) the Company (and to the extent of the guarantees, the
Guarantor) fails to file any of the Registration Statements required by this
Agreement on or before the date specified for such filing, (b) any of such
Registration Statements is not declared effective by the Commission on or prior
to the date specified for such effectiveness (the "Effectiveness Target Date"),
(c) the Company (and to the extent of the guarantees, the Guarantor) fails to
commence, accept tenders, issue registered Series B Notes in respect of
accepted tenders under the Exchange Offer within 30 Business Days after the
Effectiveness Target Date with respect to the Exchange Offer Registration
Statement or (d) the Shelf Registration Statement or the Exchange Offer
Registration Statement is declared effective but thereafter ceases to be
effective or usable in connection with resales of Transfer Restricted
Securities during the periods specified in this Agreement (each such event
referred to in clauses (a) through (d) above a "Registration Default"), then
the Company will pay damages (the "Liquidated Damages") to the Holders in an
amount equal to 0.25% per annum of the outstanding principal amount of the
Transfer Restricted Securities for the first 90 days after such Registration
Default. The amount of the Liquidated Damages will increase, up to a maximum
rate of 1.0% per annum, by an additional 0.25% per annum with respect to each
subsequent 90 day period. All accrued Liquidated Damages will be paid by the
Company on each Damages Payment Date to the record holders of the respective
Securities by wire transfer of immediately available funds to the accounts
specified by them or by mailing checks to their registered addresses if no such
accounts have been specified. Following the cure of all Registration Defaults,
the accrual of Liquidated Damages will cease.
All obligations of the Company set forth in the preceding paragraph
that are outstanding with respect to any Transfer Restricted Security at the
time such security ceases to be a Transfer Restricted Security shall survive
until such time as all such obligations with respect to such Security shall
have been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the
Exchange Offer, the Company (and to the extent of the guarantees, the
Guarantor) shall comply with all of the provisions of Section 6(c) below, shall
use its best efforts to effect such exchange to permit the sale of Transfer
Restricted Securities being sold in accordance with the intended method or
methods of distribution thereof, and shall comply with all of the following
provisions:
(i) If in the reasonable opinion of counsel to the
Company there is a question as to whether the Exchange Offer is
permitted by applicable law, the Company hereby agrees to seek a
no-action letter or other favorable decision from the Commission,
including oral advice from the staff of the Commission, allowing the
Company to Consummate an Exchange Offer for such Series A Notes. The
Company hereby agrees to pursue the issuance of such a decision to the
Commission staff level but shall not be required to take commercially
unreasonable action to effect a change of Commission policy. In
connection with the foregoing, the Company hereby agrees, however, to
(A) participate in telephonic conferences with the Commission, (B)
deliver to the Commission staff an analysis prepared by
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counsel to the Company setting forth the legal bases, if any, upon
which such counsel has concluded that such an Exchange Offer should be
permitted and (C) diligently pursue a resolution (which need not be
favorable) by the Commission staff of such submission.
(ii) As a condition to its participation in the
Exchange Offer pursuant to the terms of this Agreement, each Holder of
Transfer Restricted Securities shall furnish, upon the request of the
Company, prior to the Consummation thereof, a written representation
to the Company (which may be contained in the letter of transmittal
contemplated by the Exchange Offer Registration Statement) to the
effect that (A) it is not an affiliate of the Company, (B) it is not
engaged in, and does not intend to engage in, and has no arrangement
or understanding with any Person to participate in, a distribution of
the Series B Notes to be issued in the Exchange Offer and (C) it is
acquiring the Series B Notes in its ordinary course of business. Each
Holder hereby acknowledges and agrees that any Broker-Dealer who
acquired Series A Notes directly from the Company or any affiliate of
the Company and any such Holder intending to use the Exchange Offer to
participate in a distribution of the securities to be acquired in the
Exchange Offer (1) could not under Commission policy as in effect on
the date of this Agreement rely on the position of the Commission
enunciated in Xxxxxx Xxxxxxx and Co., Inc. (available June 5, 1991)
and Exxon Capital Holdings Corporation (available May 13, 1988), as
interpreted in the Commission's letter to Shearman & Sterling dated
July 2, 1993, and similar no-action letters (including any no-action
letter obtained pursuant to clause (i) above), and (2) must comply
with the registration and prospectus delivery requirements of the Act
in connection with a secondary resale transaction and that such a
secondary resale transaction should be covered by an effective
registration statement containing the selling security holder
information required by Item 507 or 508, as applicable, of Regulation
S-K if the resales are of Series B Notes obtained by such Holder in
exchange for Series A Notes acquired by such Holders directly from the
Company.
(iii) Prior to effectiveness of the Exchange Offer
Registration Statement, the Company shall, if requested by the
Commission, provide a supplemental letter to the Commission (A)
stating that the Company is registering the Exchange Offer in reliance
on the position of the Commission enunciated in Exxon Capital Holdings
Corporation (available May 13, 1988), Xxxxxx Xxxxxxx and Co., Inc.
(available June 5, 1991) and, if applicable, any no-action letter
obtained pursuant to clause (i) above, and (B) including a
representation that the Company has not entered into any arrangement
or understanding with any Person to distribute the Series B Notes to
be received in the Exchange Offer and that, to the best of the
Company's information and belief, each Holder participating in the
Exchange Offer is acquiring the Series B Notes in its ordinary course
of business and has no arrangement or understanding with any Person to
participate in the distribution of the Series B Notes received in the
Exchange Offer.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Company (and to the extent of the guarantees, the
Guarantor) shall comply with all the provisions of Section 6(c) below and shall
use its best efforts to effect such registration to permit the sale of the
Transfer Restricted Securities being sold in accordance with the intended
method or methods of distribution thereof, and pursuant
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thereto, the Company (and to the extent of the guarantees, the Guarantor) will
prepare and file with the Commission within the period specified in Section
4(a) above a Registration Statement relating to the registration on any
appropriate form under the Act, which form shall be available for the sale of
the Transfer Restricted Securities in accordance with the intended method or
methods of distribution thereof.
(c) General Provisions. In connection with any Registration Statement
and any related Prospectus required by this Agreement to permit the sale or
resale of Transfer Restricted Securities (including, without limitation, any
Registration Statement and the related Prospectus required to permit resales of
Securities by Broker-Dealers), the Company (and to the extent of the
guarantees, the Guarantor) shall:
(i) Use its best efforts to keep such Registration
Statement continuously effective and provide all requisite financial
statements for the period specified in Section 3 and 4 of this
Agreement, as applicable; upon the occurrence of any event that would
cause any such Registration Statement or the Prospectus contained
therein (A) to contain a material misstatement or omission or (B) not
to be effective and usable for resale of Transfer Restricted
Securities during the period required by this Agreement, the Company
(and to the extent of the guarantees, the Guarantor) shall file
promptly an appropriate amendment to such Registration Statement, in
the case of clause (A), correcting any such misstatement or omission,
and, in the case of either clause (A) or (B), use its best efforts to
cause such amendment to be declared effective and such Registration
Statement and the related Prospectus to become usable for their
intended purpose(s) as soon as reasonably practicable thereafter;
(ii) Prepare and file with the Commission such
amendments and post-effective amendments to the Registration Statement
as may be necessary to keep the Registration Statement effective for
the applicable period set forth in Section 3 or 4 hereof, as
applicable, or such shorter period as will terminate when all Transfer
Restricted Securities covered by such Registration Statement have been
exchanged or sold or until such Transfer Restricted Securities no
longer constitute Transfer Restricted Securities or are no longer
outstanding; cause, subject to Section 4(c), the Prospectus to be
supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the Act, and to
comply fully with the applicable provisions of Rules 424 and 430A
under the Act in a timely manner; and comply with the provisions of
the Act with respect to the disposition of all securities covered by
such Registration Statement during the applicable period in accordance
with the intended method or methods of distribution by the sellers
thereof set forth in such Registration Statement or supplement to the
Prospectus;
(iii) Advise promptly the underwriter(s), if any,
and selling Holders and, if requested by such Persons, to confirm such
advice in writing, (A) when the Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and, with
respect to any Registration Statement or any post-effective amendment
thereto, when the same has become effective, (B) of any request by the
Commission for amendments to the Registration Statement or amendments
or supplements to the Prospectus or for additional information
relating thereto, (C) of the issuance by the Commission of any stop
order suspending the effectiveness of
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the Registration Statement under the Act or of the suspension by any
state securities commission of the qualification of the Transfer
Restricted Securities for offering or sale in any jurisdiction, or the
initiation of any proceeding for any of the preceding purposes or (D)
of the existence of any fact or the happening of any event that makes
any statement of a material fact made in the Registration Statement,
the Prospectus, any amendment or supplement thereto, or any document
incorporated by reference therein untrue, or that requires the making
of any additions to or changes in the Registration Statement or the
Prospectus in order to make the statements of material fact therein
not misleading; if at any time the Commission shall issue any stop
order suspending the effectiveness of the Registration Statement, or
any state securities commission or other regulatory authority shall
issue an order suspending the qualification or exemption from
qualification of the Transfer Restricted Securities under state
securities or Blue Sky laws, the Company (and to the extent of the
guarantees, the Guarantor) shall use its best efforts to obtain the
withdrawal or lifting of such order at the earliest practicable time;
(iv) Furnish to the Purchasers, each selling Holder
named in any Registration Statement or Prospectus and each of the
underwriter(s) in connection with such sale, if any, before filing
with the Commission, copies of any Registration Statement or any
Prospectus included therein or any amendments or supplements to any
such Registration Statement or Prospectus (including all documents
incorporated by reference), which documents will be subject to the
review of such Holders and underwriter(s) in connection with such
sale, if any, for a period of at least five Business Days, and the
Company (and to the extent of the guarantees, the Guarantor) will not
file any such Registration Statement or Prospectus or any amendment or
supplement to any such Registration Statement or Prospectus (including
all documents incorporated by reference) to which a selling Holder of
Transfer Restricted Securities covered by such Registration Statement
or the underwriter(s) in connection with such sale, if any, shall
reasonably object within five Business Days after the receipt thereof;
a selling Holder or underwriter, if any, shall be deemed to have
reasonably objected to such filing if such Registration Statement,
amendment, Prospectus or supplement, as applicable, as proposed to be
filed, contains a material misstatement or omission or fails to comply
with the applicable requirements of the Act;
(v) Promptly prior to the filing of any document
that is to be incorporated by reference into a Registration Statement
or Prospectus, if requested by any selling Holders or the
underwriter(s), if any, within five Business Days after receipt of
notification thereof from the Company, provide copies of such document
to the selling Holders and to the underwriter(s), if any, make the
Company's representatives available for discussion of such document
and other customary due diligence matters, and include such
information in such document prior to the filing thereof as such
selling Holders or underwriter(s), if any, reasonably may request;
(vi) Make available at reasonable times for
inspection by the selling Holders, any managing underwriter
participating in any disposition pursuant to such Registration
Statement, and any attorney or accountant retained by such selling
Holders or any of the underwriter(s), all financial and other records,
pertinent corporate documents and properties of the Company and cause
the Company's
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officers, directors and employees to supply all information reasonably
requested by any such Holder, underwriter, attorney or accountant in
connection with such Registration Statement subsequent to the filing
thereof and prior to its effectiveness;
(vii) If requested by any selling Holders or the
underwriter(s) in connection with such sale, if any, promptly include
in any Registration Statement or Prospectus, pursuant to a supplement
or post-effective amendment if necessary, such information as such
selling Holders and such underwriter(s), if any, may reasonably
request to have included therein, including, without limitation,
information relating to the "Plan of Distribution" of the Transfer
Restricted Securities, information with respect to the principal
amount of Transfer Restricted Securities being sold to such
underwriter(s), the purchase price being paid therefor and any other
terms of the offering of the Transfer Restricted Securities to be sold
in such offering; and make all required filings of such Prospectus
supplement or post-effective amendment as soon as practicable after
the Company is notified of the matters to be included in such
Prospectus supplement or post-effective amendment;
(viii) Cause the Transfer Restricted Securities
covered by the Registration Statement to be rated with the appropriate
rating agencies, if so requested by the Holders of a majority in
aggregate principal amount of the Securities covered thereby or the
managing underwriter(s), if any;
(ix) Furnish to each selling Holder and each of the
underwriter(s), if any, without charge, at least one copy of the
Registration Statement, as first filed with the Commission, and of
each amendment thereto, including all documents incorporated by
reference therein and all exhibits (including exhibits incorporated
therein by reference);
(x) Deliver to each selling Holder and each of the
underwriter(s) in connection with such sale, if any, without charge,
as many copies of the Prospectus (including each preliminary
prospectus) and any amendment or supplement thereto as such Persons
may request; the Company (and to the extent of the guarantees, the
Guarantor) hereby consents to the use of the Prospectus and any
amendment or supplement thereto by each of the selling Holders and
each of the underwriter(s), if any, in connection with the offering
and the sale of the Transfer Restricted Securities covered by the
Prospectus or any amendment or supplement thereto;
(xi) In connection with an underwritten offering of
Transfer Restricted Securities pursuant to a Shelf Registration
Statement, enter into an underwriting agreement as is customary in
underwritten offerings and take all such other actions as are
reasonably requested by the managing underwriter(s) in order to
expedite or facilitate the registration or the disposition of such
Transfer Restricted Securities, and in such connection, (A) make such
representations and warranties to the underwriters, with respect to
the business of the Company and its subsidiaries, and the Registration
Statement, Prospectus and documents, if any, incorporated or deemed to
be incorporated by reference therein, in each case, as are customarily
made by issuers to underwriters in underwritten offerings, and confirm
the same if and when requested; (B) obtain an opinion of counsel to
the Company and updates thereof in form and substance reasonably
satisfactory to the
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managing underwriter(s), addressed to the underwriters covering the
matters customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably requested by the
underwriters, including a statement to the effect that such counsel
has participated in conferences with officers and other
representatives of the Company, representatives of the independent
public accountants for the Company, and such other Persons as may
participate in such conferences at which the contents of such Shelf
Registration Statement and related Prospectus were discussed, and
although such counsel has not undertaken to investigate or
independently verify and does not assume any responsibility for the
accuracy, completeness, or fairness of the statements therein, such
counsel advises that (relying as to materiality to a large extent upon
facts provided to such counsel by officers and other representatives
of the Company and without independent check or verification), no
facts came to such counsel's attention that caused such counsel to
believe that the Shelf Registration Statement and related Prospectus,
at the time that the Shelf Registration Statement became effective,
contained an untrue statement of material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; (C) obtain comfort letters and
updates thereof in form and substance reasonably satisfactory to the
managing underwriter(s) from the independent certified public
accountants of the Company; (D) if an underwriting agreement is
entered into, the same shall contain indemnification and contribution
provisions and procedures no less favorable than those set forth in
Section 8 hereof with respect to all parties to be indemnified
pursuant to Section 8. The above shall be done at each closing under
such underwriting agreement. In addition, notwithstanding anything
herein to the contrary, in connection with any other offering of
Transfer Restricted Securities pursuant to a Shelf Registration
Statement, the Company shall obtain those items specified in clause
(C) of the foregoing sentence concurrently with the effectiveness of
the Shelf Registration Statement and any post-effective amendments
thereto;
(xii) Prior to any public offering of Transfer
Restricted Securities, cooperate with the selling Holders, the
underwriter(s), if any, and their respective counsel in connection
with the registration and qualification of the Transfer Restricted
Securities under the securities or Blue Sky laws of such jurisdictions
as the selling Holders or underwriter(s), if any, may request and do
any and all other acts or things necessary or advisable to enable the
disposition in such jurisdictions of the Transfer Restricted
Securities covered by the applicable Registration Statement; provided
however, that the Company shall not be required to register or qualify
as a foreign corporation where it is not now so qualified or to take
any action that would subject it to service of process in suits or to
taxation in any jurisdiction where it is not now so subject;
(xiii) Shall issue, upon the request of any Holder
of Series A Notes covered by the Shelf Registration Statement, Series
B Notes, having an aggregate principal amount equal to the aggregate
principal amount of Series A Notes surrendered to the Company by such
Holder in exchange therefor or being sold by such Holder; such Series
B Notes to be registered in the name of such Holder or in the name of
the purchaser(s) of such Series B Notes, as the case may be; in
return, the Series A Notes held by such Holder shall be surrendered to
the Company for cancellation;
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(xiv) Cooperate with the selling Holders and the
underwriter(s), if any, to facilitate the timely preparation and
delivery of certificates representing Transfer Restricted Securities
to be sold and not bearing any restrictive legends; and to register
such Transfer Restricted Securities in such denominations and such
names as the Holders or the underwriter(s), if any, may request at
least two Business Days prior to such sale of Transfer Restricted
Securities made by such underwriter(s);
(xv) Use its best efforts to cause the Transfer
Restricted Securities covered by the Registration Statement to be
registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers
thereof or the underwriter(s), if any, to consummate the disposition
of such Transfer Restricted Securities, except as may be required
solely as a consequence of the nature of such seller's business (in
which case the Company will cooperate in all reasonable respects);
(xvi) If any fact or event contemplated by Section
6(c)(iii)(D) above shall exist or have occurred, prepare a supplement
or post-effective amendment to the Registration Statement or related
Prospectus or any document incorporated therein by reference or file
any other required document so that, as thereafter delivered to the
purchasers of Transfer Restricted Securities, the Prospectus will not
contain an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not misleading;
(xvii) Provide a CUSIP number for all Transfer
Restricted Securities not later than the effective date of the
Registration Statement covering such Transfer Restricted Securities if
such Transfer Restricted Securities do not already have a CUSIP number
and provide the Trustee with printed certificates for the Transfer
Restricted Securities which are in a form eligible for deposit with
the Depository Trust Company if the Trustee does not already have a
sufficient quantity of printed certificates;
(xviii) Cooperate and assist in any filings required
to be made with the NASD and in the performance of any due diligence
investigation by any underwriter (including any "qualified independent
underwriter") that is required to be retained in accordance with the
rules and regulations of the NASD;
(xix) Otherwise use its best efforts to comply with
all applicable rules and regulations of the Commission, and make
generally available to Holders, as soon as reasonably practicable, a
consolidated earnings statement meeting the requirements of Rule 158
under the Act (which need not be audited) covering a twelve month
period (A) beginning at the end of any fiscal quarter in which
Transfer Restricted Securities are sold to underwriters in a firm or
best efforts Underwritten Offering or (B) if not sold to underwriters
in such an offering, commencing with the first month of the Company's
first fiscal quarter commencing after the effective date of the
Registration Statement;
(xx) Cause the Indenture to be qualified under the
TIA not later than the effective date of the first Registration
Statement required by this Agreement,
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and, in connection therewith, cooperate, with the Trustee and the
Holders of Securities to effect such changes to the Indenture as may
be required for such Indenture to be so qualified in accordance with
the terms of the TIA; and execute, and use its best efforts to cause
the Trustee to execute, all documents that may be required to effect
such changes and all other forms and documents required to be filed
with the Commission to enable such Indenture to be so qualified in a
timely manner;
(xxi) Provide promptly to each Holder upon request
each document filed with the Commission pursuant to the requirements
of Section 13 or Section 15 of the Exchange Act; and
(xxii) Use its best efforts to cause all Transfer
Restricted Securities covered by the Registration Statement to be
listed on each securities exchange on which similar securities issued
by the Company are then listed if requested by the Holders of a
majority in aggregate principal amount of the Transfer Restricted
Securities covered by such Registration Statement or the managing
underwriter(s), if any.
(d) Restrictions on Holders. Each Holder agrees by acquisition of a
Transfer Restricted Security that, upon receipt of any notice from the Company
of the existence of any fact of the kind described in Section 6(c)(iii)(D)
hereof, such Holder will forthwith discontinue disposition of Transfer
Restricted Securities pursuant to the applicable Registration Statement until
such Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 6(c)(xvi) hereof, or until it is advised in writing
(the "Advice") by the Company that the use of the Prospectus may be resumed,
and has received copies of any additional or supplemental filings that are
incorporated by reference in the Prospectus. If so directed by the Company,
each Holder will deliver to the Company (at the Company's expense) all copies,
other than permanent file copies then in such Holder's possession, of the
Prospectus covering such Transfer Restricted Securities that was current at the
time of receipt of such notice. In the event the Company shall give any such
notice, the time period regarding the effectiveness of such Registration
Statement set forth in Section 3 or 4 hereof, as applicable, shall be extended
by the number of days during the period from and including the date of the
giving of such notice pursuant to Section 6(c)(iii)(D) hereof to and including
the date when each selling Holder covered by such Registration Statement shall
have received the copies of the supplemented or amended Prospectus contemplated
by Section 6(c)(xvi) hereof or shall have received the Advice.
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SECTION 7. REGISTRATION EXPENSES
(a) Company Expenses. All expenses incident to the Company's (and to
the extent of the guarantees, the Guarantor's) performance of or compliance
with this Agreement will be borne by the Company, regardless of whether a
Registration Statement becomes effective, including without limitation: (i) all
registration and filing fees and expenses (including filings made by any
underwriter or Holder with the NASD (and, if applicable, the fees and expenses
of any "qualified independent underwriter" and its counsel that may be required
by the rules and regulations of the NASD)), (ii) all fees and expenses incurred
in connection with compliance with federal securities and state Blue Sky or
securities laws, (iii) all expenses of printing (including printing
certificates for the Series B Notes to be issued in the Exchange Offer and
printing of Prospectuses), messenger and delivery services and telephone, (iv)
all fees and disbursements of counsel for the Company, and in accordance with
Section 7(b) below, the Holders of Transfer Restricted Securities, (v) if
applicable, all application and filing fees in connection with listing
Securities on a national securities exchange or automated quotation system
pursuant to the requirements hereof, and (vi) all fees and disbursements of
independent certified public accountants of the Company (including the expenses
of any special audit and comfort letters required by or incident to such
performance).
The Company will bear internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), the expenses of any annual audit and the fees and
expenses of any Person, including special experts, retained by the Company.
(b) Counsel for Holders. In connection with the Shelf Registration
Statement, the Company will reimburse the Purchasers and the Holders of
Transfer Restricted Securities being resold pursuant to the "Plan of
Distribution" contained therein for the reasonable fees and disbursements of
not more than one counsel, which shall be Akin, Gump, Strauss, Xxxxx & Xxxx,
L.L.P. or such other counsel as may be chosen by the Holders of a majority in
principal amount of the Transfer Restricted Securities for whose benefit such
Registration Statement is being prepared. Such Holders shall be responsible for
any of their other out-of-pocket expenses incurred in connection with the
registration of the sale of their Transfer Restricted Securities.
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SECTION 8. INDEMNIFICATION
(a) Indemnification by the Company and the Guarantor. The Company and
the Guarantor, jointly and severally, agree to indemnify and hold harmless, to
the fullest extent permitted by law, each of the Holders, each Person, if any,
who controls any Holder within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act and the respective officers, directors, partners,
employees, representatives and agents of each Holder or any controlling Person,
against any and all losses, liabilities, claims, damages and expenses
whatsoever (including but not limited to attorneys' fees and any and all
expenses whatsoever incurred in investigating, preparing or defending against
any litigation, commenced or threatened, or any claim whatsoever, and any and
all amounts paid in settlement of any claim or litigation), joint or several,
to which they or any of them may become subject under the Act, the Exchange Act
or otherwise, insofar as such losses, liabilities, claims, damages or expenses
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement or Prospectus, or in any supplement thereto or amendment
thereof, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the Company and the
Guarantor will not be liable in any such case to the extent, but only to the
extent, that any such loss, liability, claim, damage or expense arises out of
or is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in conformity
with written information furnished to the Company by or on behalf of any
Holders expressly for use therein. This indemnity will be in addition to any
liability which the Company and the Guarantor may otherwise have, including,
under this Agreement.
(b) Indemnification by the Holders. Each of the Holders agrees,
severally and not jointly, to indemnify and hold harmless the Company, the
Guarantor, each Person, if any, who controls the Company within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act and the respective
officers, directors, partners, employees, representatives and agents of the
Company, the Guarantor or any such controlling Person, against any and all
losses, liabilities, claims, damages and expenses whatsoever (including but not
limited to attorneys' fees and any and all expenses whatsoever incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever and any and all amounts paid in settlement
of any claim or litigation), joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or otherwise, insofar as such
losses, liabilities, claims, damages or expenses (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement or
Prospectus, or in any amendment thereof or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein 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 in
each case to the extent, but only to the extent, that any such loss, liability,
claim, damage or expense arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of such Holder expressly for use therein; provided,
however, that in no case shall any Holder be liable or responsible for any
amount in excess of the dollar amount of the proceeds received by such Holder
upon the
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sale of the Securities giving rise to such indemnification obligation. This
indemnity will be in addition to any liability which any Holder may otherwise
have, including under this Agreement.
(c) Indemnification Procedure. Promptly after receipt by an
indemnified party under subsection (a) or (b) above of notice of the
commencement of any action, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under such subsection,
notify each party against whom indemnification is to be sought in writing of
the commencement thereof (but the failure so to notify an indemnifying party
shall not relieve it from any liability which it may have under this Section 8
except to the extent that it has been prejudiced in any material respect by
such failure or from any liability which it may otherwise have). In case any
such action is brought against any indemnified party, and it notifies an
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein, and to the extent it may elect by written
notice delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense thereof
with counsel reasonably satisfactory to such indemnified party. Notwithstanding
the foregoing, the indemnified party or parties shall have the right to employ
its or their own counsel in any such case, but the fees and expenses of such
counsel shall be at the expense of such indemnified party or parties unless (i)
the employment of such counsel shall have been authorized in writing by the
indemnifying parties in connection with the defense of such action, (ii) the
indemnifying parties shall not have employed counsel to take charge of the
defense of such action within a reasonable time after notice of commencement of
the action, or (iii) such indemnified party or parties shall have concluded,
upon the advice of counsel, that there may be defenses available to it or them
which are different from or additional to those available to one or all of the
indemnifying parties (in which case the indemnifying parties shall not have the
right to direct such different or additional defenses on behalf of the
indemnified party or parties, but shall retain the right to direct any common
defenses) in any of which events such fees and expenses of counsel shall be
borne by the indemnifying parties; provided, however, that the indemnifying
party under subsection (a) or (b) above, shall only be liable for the legal
expenses of one counsel (in addition to any local counsel) for all indemnified
parties in each jurisdiction in which any claim or action is brought. Anything
in this subsection to the contrary notwithstanding, an indemnifying party shall
not be liable for any settlement of any claim or action effected without its
written consent.
(d) Contribution. In order to provide for contribution in
circumstances in which the indemnification provided for in this Section 8 is
for any reason held to be unavailable or is insufficient (other than by reason
of the terms thereof) to hold harmless a party indemnified hereunder, the
Company and the Guarantor, on the one hand, and each Holder, on the other hand,
shall contribute to the aggregate losses, claims, damages, liabilities and
expenses of the nature contemplated by such indemnification provision
(including any investigation, legal and other expenses incurred in connection
with, and any amount paid in settlement of, any action, suit or proceeding or
any claims asserted, but after deducting in the case of losses, claims,
damages, liabilities and expenses suffered by the Company or the Guarantor any
contribution received by the Company or the Guarantor from Persons, other than
the Holders, who may also be liable for contribution, including Persons who
control the Company within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act) to which the Company and any Holder may be subject,
in such proportion as is appropriate to reflect the relative benefits received
by the Company and the Guarantor, on the one hand, and any such Holder, on the
other hand,
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or, if such allocation is not permitted by applicable law or if indemnification
is not available as a result of the indemnifying party not having received
notice as provided in this Section 8, in such proportion as is appropriate to
reflect not only the relative benefits referred to above but also the relative
fault of the Company and the Guarantor, on the one hand, and the Holders, on
the other hand, in connection with the statements or omissions which resulted
in such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative benefits received by the
Company and the Guarantor, on the one hand, and any Holder, on the other hand,
shall be deemed to be in the same proportion as (x) the total proceeds from the
offering of the Series A Notes (net of discounts but before deducting expenses)
received by the Company and (y) the total proceeds received by such Holder upon
its sale of Securities which would otherwise give rise to the indemnification
obligation, respectively. The relative fault of the Company, the Guarantor, and
the Holders shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied or
which should have been supplied by the Company or the Guarantor, on the one
hand, or to information supplied by the Holders, on the other hand, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company, the Guarantor, and
each Holder agree that it would not be just and equitable if contribution
pursuant to this Section 8 were determined by pro rata allocation or by any
other method of allocation which does not take into account the equitable
considerations referred to above. Notwithstanding the provisions of this
Section 8, (i) no Holder shall be required to contribute, in the aggregate, any
amount in excess of the dollar amount by which the proceeds received by such
Holder with respect to the sale of its Securities exceeds the amount of any
damages which such Holder has otherwise been required to pay by reason of such
untrue statement or alleged untrue statement or omission or alleged omission
and (ii) no Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation. For purposes of this
Section 8, each Person, if any, who controls a Holder within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act and the respective
officers, directors, partners, employees, representatives and agents of a
Holder or any controlling Person shall have the same rights to contribution as
such Holder, and each Person, if any, who controls the Company within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act and the
respective officers, directors, partners, employees, representatives and agents
of the Company, the Guarantor, or any such controlling Person shall have the
same rights to contribution as the Company, subject in each case to clauses (i)
and (ii) of this Section 8(d). Any party entitled to contribution will,
promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution may
be made against another party or parties under this Section 8, notify such
party or parties from whom contribution may be sought, but the failure to so
notify such party or parties shall not relieve the party or parties from whom
contribution may be sought from any obligation it or they may have under this
Section 8 or otherwise.
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SECTION 9. RULE 144A
The Company hereby agrees with each Holder, for so long as any
Transfer Restricted Securities remain outstanding, to make available to any
Holder or beneficial owner of Transfer Restricted Securities in connection with
any sale thereof and any prospective purchaser of such Transfer Restricted
Securities from such Holder or beneficial owner, the information required by
Rule 144A(d)(4) under the Act in order to permit resales of such Transfer
Restricted Securities pursuant to Rule 144A.
SECTION 10. UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration hereunder
unless such Holder (a) agrees to sell such Holder's Transfer Restricted
Securities on the basis provided in any underwriting arrangements approved by
the Persons entitled hereunder to approve such arrangements and (b) completes
and executes all reasonable questionnaires, powers of attorney, indemnities,
underwriting agreements, lock-up letters and other documents required under the
terms of such underwriting arrangements.
SECTION 11. SELECTION OF UNDERWRITERS
The Holders of Transfer Restricted Securities covered by the Shelf
Registration Statement who desire to do so may sell such Transfer Restricted
Securities in an Underwritten Offering. In any such Underwritten Offering the
investment banker or investment bankers and manager or managers that will
administer the offering will be selected by the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities included in
such offering; provided, that such investment bankers and managers must be
reasonably satisfactory to the Company (it being understood that Bear Xxxxxxx
and Xxxxx Xxxxxx are reasonably satisfactory); such investment bankers and
manager or managers are referred to herein as the "underwriters."
SECTION 12. MISCELLANEOUS
(a) Remedies. The Company (and to the extent of the guarantees, the
Guarantor) agrees that monetary damages (including the Liquidated Damages
contemplated hereby) would not be adequate compensation for any loss incurred
by reason of a breach by it of the provisions of this Agreement and hereby
agrees to waive the defense in any action for specific performance that a
remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company (and to the extent of the
guarantees, the Guarantor) will not on or after the date of this Agreement
enter into any agreement with respect to its securities that is inconsistent
with the rights granted to the Holders in this Agreement or otherwise conflicts
with the provisions hereof. The Company (and to the extent of the guarantees,
the Guarantor) represents and warrants that the rights granted to the Holders
hereunder do not in any way conflict with and are not inconsistent with the
rights granted to the holders of the Company's securities (and to the extent of
the guarantees, the Guarantor's) under any agreement in effect on the date
hereof.
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(c) Adjustments Affecting the Securities. The Company (and to the
extent of the guarantees, the Guarantor) will not take any action, or permit
any change to occur, with respect to the Securities that would materially and
adversely affect the ability of the Holders to Consummate any Exchange Offer.
(d) Amendments and Waivers. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to or departures
from the provisions hereof may not be given unless the Company has obtained the
written consent of Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities. Notwithstanding the foregoing, a waiver or
consent to departure from the provisions hereof that relates exclusively to the
rights of Holders whose securities are being tendered pursuant to the Exchange
Offer or registered pursuant to the Shelf Registration and that does not affect
directly or indirectly the rights of other Holders whose securities are not
being tendered pursuant to such Exchange Offer or registered pursuant to the
Shelf Registration may be given by the Holders of a majority of the outstanding
principal amount of Transfer Restricted Securities being tendered or
registered, as applicable.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), facsimile transmission,
telex, telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on
the records of the registrar under the Indenture, with a copy to the
registrar under the Indenture; and
(ii) if to the Company or the Guarantor:
HighwayMaster Communications, Inc.
00000 Xxxxxx Xxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Phone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx
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; upon
receipt of a confirmation notice, if sent by facsimile transmission; when
answered back, if telexed; when receipt acknowledged, if telecopied; and on the
next Business Day, if timely delivered to an air courier guaranteeing overnight
delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including without
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limitation and without the need for an express assignment, subsequent Holders
of Transfer Restricted Securities; provided, however, that this Agreement shall
not inure to the benefit of or be binding upon any Person that is not a Holder
of Transfer Restricted Securities.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO THE CONFLICT OF LAW RULES THEREOF.
(j) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality or enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement together with the other Operative
Documents (as defined in the Purchase Agreement) is intended by the parties as
a final expression of their agreement and 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. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted by the Company (and with
respect to the guarantees, the Guarantor) with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
HIGHWAYMASTER COMMUNICATIONS, INC.
By: /S/ J. Xxxxxx XxXxxxxxx
-------------------------------------
Name: J. Xxxxxx XxXxxxxxx
------------------------------------
Title: Executive Vice President and Chief
-----------------------------------
Financial Officer
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HIGHWAYMASTER CORPORATION
By: /S/ J. Xxxxxx XxXxxxxxx
-------------------------------------
Name: J. Xxxxxx XxXxxxxxx
------------------------------------
Title: Executive Vice President and Chief
-----------------------------------
Financial Officer
BEAR, XXXXXXX & CO. INC.
By: /S/ J. Xxxxxx Xxxxx
-------------------------------------
Name: J. Xxxxxx Xxxxx
-----------------------------------
Title: Senior Managing Director
----------------------------------
XXXXX XXXXXX INC.
By: /S/ Xxxxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxxx
-----------------------------------
Title: Managing Director
----------------------------------
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