Exhibit 10.23
WARRANT REGISTRATION RIGHTS AGREEMENT
UBIQUITEL INC.
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354,971 Warrants Initially Exercisable to Purchase 2,117,402.015
Shares of Common Stock
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Dated as of April 11, 2000
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XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
PARIBAS CORPORATION
PNC CAPITAL MARKETS, INC.
WARRANT REGISTRATION RIGHTS AGREEMENT
This WARRANT REGISTRATION RIGHTS AGREEMENT (this "Agreement") is
made and entered into as of April 11, 2000, by and among UbiquiTel Inc., a
Delaware corporation (the "Issuer"), and Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation, Paribas Corporation and PNC Capital Markets, Inc. (the "Initial
Purchasers"), which have agreed to purchase the Warrants of the Issuer issued
pursuant to the Warrant Agreement (the "Warrant Agreement") between the Issuer
and American Stock Transfer & Trust Company, as warrant agent (the "Warrant
Agent").
The Warrants are being issued and sold in connection with the
offering (the "Offering") by UbiquiTel Operating Company, a Delaware corporation
and wholly-owned subsidiary of the Issuer ("UbiquiTel"), and the Issuer of
300,000 Units each consisting of (i) $1,000 principal amount at maturity of 14%
Senior Subordinated Discount Notes due 2010 (the "Notes") of UbiquiTel and (ii)
one Warrant. In connection with the Offering, the Issuer is also issuing 54,971
Warrants to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation. Each Warrant
entitles the holder thereof to purchase 5.965 shares of the common stock, $0.001
par value ("Common Stock"), of the Issuer, subject to adjustment as set forth in
the Warrant Agreement.
This Agreement is made pursuant to the Purchase Agreement, dated
April 4, 2000 (the "Purchase Agreement"), by and between the Issuer, UbiquiTel
and the Initial Purchaser. In order to induce the Initial Purchasers to purchase
the Warrants, the Issuer has 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 Initial Purchasers set forth in Section 9 of the
Purchase Agreement. Capitalized terms used herein and not otherwise defined
shall have the meaning assigned to them in the Warrant Agreement.
The parties hereby agree as follows:
1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall
have the following meanings:
Act: The Securities Act of 1933, as amended.
Affiliate: As defined in Rule 144.
Black Out Notice: As defined in Section 4(b) hereof.
Black Out Period: As defined in Section 3(a) hereof.
Closing Date: The date hereof.
Commission: The Securities and Exchange Commission.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Expiration Date: 5:00 p.m. New York City time on April 15, 2010.
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Holders: As defined in Section 2 hereof.
Prospectus: The prospectus included in a Registration Statement at
the time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments thereto,
including post-effective amendments, and all material incorporated by reference
into such Prospectus.
Registration Statement: Any registration statement of the Issuer
relating to the registration for resale of Transfer Restricted Securities that
is filed pursuant to the provisions of this Agreement and including the
Prospectus included therein, all amendments and supplements thereto (including
post-effective amendments) and all exhibits and material incorporated by
reference therein.
Rule 144: Rule 144 promulgated under the Act.
Transfer Restricted Securities: (a) Each Warrant and Warrant Share
held by an Affiliate of the Issuer and (b) each other Warrant and Warrant Share
until the earlier to occur of (i) the date on which such Warrant or Warrant
Share (other than any Warrant Share issued upon exercise of a Warrant in
accordance with a Registration Statement) has been disposed of in accordance
with a Registration Statement and (ii) the date on which such Warrant or Warrant
Share (or the related Warrant) is distributed to the public pursuant to Rule 144
under the Act.
2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted Securities
(each, a "Holder") whenever such Person is the holder of record of Transfer
Restricted Securities.
3. SHELF REGISTRATION
(a) Shelf Registration. The Issuer shall prepare and cause to be
filed with the Commission on or before 75 days from the Closing Date pursuant to
Rule 415 under the Securities Act a Registration Statement on the appropriate
form relating to resales of Transfer Restricted Securities by the Holders
thereof. The Issuer shall use its reasonable best efforts to cause the
Registration Statement to be declared effective by the Commission on or before
180 days after the Closing Date.
To the extent necessary to ensure that the Registration Statement is
available for sales of Transfer Restricted Securities by the Holders thereof
entitled to the benefit of this Section 3(a), the Issuer shall use its
reasonable best efforts to keep any Registration Statement required by this
Section 3(a) continuously effective, supplemented, amended and current as
required by and subject to the provisions of Section 4(a) hereof and in
conformity 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 Expiration Date and (B) the first date as of which all
Warrants or Warrant Shares have been sold or otherwise transferred pursuant to
the Registration Statement by the Holders thereof; provided that such obligation
shall expire before such date if the Issuer delivers to the Warrant Agent a
written opinion of counsel to the Issuer (which opinion of counsel shall be
satisfactory to the Warrant Agent) that all Holders (other than Affiliates of
the Issuer) of Warrants and Warrant Shares may resell the Warrants and the
Warrant Shares without registration under the Act and without restriction as to
the manner, timing or volume of any such sale; and provided, further, that
notwithstanding the foregoing, any Affiliate of the Issuer may, with notice to
the Issuer, require the Issuer to keep the Registration Statement continuously
effective for resales by such Affiliate for so long as such Affiliate holds
Warrants or Warrant Shares,
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including as a result of any market-making activities or other trading
activities of such Affiliate. Notwithstanding the foregoing, the Issuer shall
not be required to amend or supplement the Registration Statement, any related
prospectus or any document incorporated therein by reference, for a period (a
"Black Out Period") not to exceed, for so long as this Agreement is in effect,
an aggregate of 60 days in any calendar year, in the event that (i) an event
occurs and is continuing as a result of which the Registration Statement, any
related prospectus or any document incorporated therein by reference as then
amended or supplemented would, in the Issuer's good faith judgment, contain an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, and (ii)(A) the Issuer determines in its
good faith judgment that the disclosure of such event at such time would have a
material adverse effect on the business, operations or prospects of the Issuer
or (B) the disclosure otherwise relates to a material business transaction which
has not yet been publicly disclosed; provided that such Black Out Period shall
be extended for any period, not to exceed an aggregate of 30 days in any
calendar year, during which the Commission is reviewing any proposed amendment
or supplement to the Registration Statement, any related prospectus or any
document incorporated therein by reference which has been filed by the Issuer;
and provided, further, that no Black Out Period may be in effect during the
three months prior to the Expiration Date.
(b) Provision by Holders of Certain Information in Connection with
the Registration Statement. No Holder of Transfer Restricted Securities may
include any of its Transfer Restricted Securities in any Registration Statement
pursuant to this Agreement unless and until such Holder furnishes to the Issuer
in writing, within 20 days after receipt of a request therefor, the information
specified in Item 507 or 508 of Regulation S-K, as applicable, of the Act for
use in connection with any Registration Statement or Prospectus or preliminary
Prospectus included therein. No Holder of Transfer Restricted Securities shall
be entitled to liquidated damages pursuant to Section 8 unless and until such
Holder shall have provided all such information. Each selling Holder agrees to
promptly furnish additional information required to be disclosed in order to
make the information previously furnished to the Issuer by such Holder not
materially misleading.
4. REGISTRATION PROCEDURES
(a) In connection with the Registration Statement and any related
Prospectus required by this Agreement, the Issuer shall:
(i) use its reasonable 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 (as indicated in the information furnished to the
Issuer pursuant to Section 3(b) hereof), and pursuant thereto the Issuer
will prepare and file with the Commission 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
within the time periods and otherwise in accordance with the provisions
hereof;
(ii) use its reasonable best efforts to keep such Registration
Statement continuously effective and provide all requisite financial
statements for the period specified in Section 3 of this Agreement. Upon
the occurrence of any event that would cause any such Registration
Statement or the Prospectus contained therein (A) to contain an untrue
statement of material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading or (B) not
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to be effective and usable for resale of Transfer Restricted Securities
during the period required by this Agreement, the Issuer shall, subject to
Section 3(a), file promptly an appropriate amendment to such Registration
Statement or a supplement to the Prospectus, as applicable, curing such
defect, and, in the case of an amendment, use its reasonable best efforts
to cause such amendment to be declared effective as soon as practicable;
(iii) prepare and file with the Commission such amendments and
post-effective amendments to the applicable Registration Statement as may
be necessary to keep such Registration Statement effective for the
applicable period set forth in Section 3; cause 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
Rules 424, 430A and 462, as applicable, 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;
(iv) advise the Initial Purchasers promptly and, if requested
by the Initial Purchasers, 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 applicable 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 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, and (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 in order to make the statements therein not misleading, or that
requires the making of any additions to or changes in the Prospectus in
order to make the statements therein, in the light of the circumstances
under which they were made, 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 Issuer shall use its reasonable
best efforts to obtain the withdrawal or lifting of such order at the
earliest possible time;
(v) subject to Section 4(a)(ii), if any fact or event
contemplated by Section 4(a)(iv)(D) hereof 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, in
the light of the circumstances under which they were made, not misleading;
(vi) furnish to the Initial Purchasers, 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
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documents incorporated by reference after the initial filing of such
Registration Statement), which documents will be subject to the review and
comment of such Persons, if any, for a period of at least five Business
Days, and the Issuer will not file any such Registration Statement or
Prospectus or any amendment or supplement to any such Registration
Statement or Prospectus (including all such documents incorporated by
reference) to which the Initial Purchasers shall reasonably object within
five Business Days after the receipt thereof. The Initial Purchasers 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 an untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading or
fails to comply with the applicable requirements of the Act;
(vii) promptly prior to the filing of any document (other than
any document relative to the ordinary course of the Issuer's business)
that is to be incorporated by reference into a Registration Statement or
Prospectus, provide copies of such document to the Initial Purchasers,
make the Issuer'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 the Initial
Purchasers may reasonably request;
(viii) make available, at reasonable times, for inspection by
the Initial Purchasers and any attorney or accountant retained by the
Initial Purchasers, all financial and other records, pertinent corporate
documents of the Issuer and cause the Issuer's officers, directors and
employees to supply all information reasonably requested by the Initial
Purchasers, attorney or accountant in connection with such Registration
Statement or any post-effective amendment thereto subsequent to the filing
thereof and prior to its effectiveness;
(ix) if requested by the Initial Purchasers, promptly include
in any Registration Statement or Prospectus, pursuant to a supplement or
post-effective amendment if necessary, such information as the Initial
Purchasers may reasonably request to have included therein, including,
without limitation, information relating to the "Plan of Distribution" of
the Transfer Restricted Securities and the use of the Registration
Statement or Prospectus for market-making activities; and make all
required filings of such Prospectus supplement or post-effective amendment
as soon as practicable after the Issuer is notified of the matters to be
included in such Prospectus supplement or post-effective amendment;
(x) furnish to the Initial Purchasers and each Holder upon
request, 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
(excluding exhibits incorporated therein by reference);
(xi) deliver to the Initial Purchasers and each Holder,
without charge, as many copies of the Prospectus (including each
preliminary prospectus) and any amendment or supplement thereto as the
Initial Purchasers or such Holder reasonably may request; the Issuer
hereby consents to the use (in accordance with law and subject to Section
4(d) hereof) of the Prospectus and any amendment or supplement thereto by
each selling Person in connection with the offering and the sale of the
Transfer Restricted Securities covered by the Prospectus or any amendment
or supplement thereto and all market-making activities of the Initial
Purchasers, as the case may be;
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(xii) upon the request of the Initial Purchasers, enter into
such agreements (including underwriting agreements) and make such
representations and warranties and take all such other actions in
connection therewith in order to expedite or facilitate the disposition of
the Transfer Restricted Securities pursuant to any applicable Registration
Statement contemplated by this Agreement as may be reasonably requested by
the Initial Purchasers in connection with any sale or resale pursuant to
any applicable Registration Statement. In such connection, the Issuer
shall:
(A) upon request of the Initial Purchasers, furnish (or
in the case of paragraphs (2) and (3), use its reasonable best
efforts to cause to be furnished) to the Initial Purchasers, upon
the effectiveness of the Registration Statement:
(1) a certificate, dated such date, signed on
behalf of the Issuer by (x) the President or any Vice
President and (y) a principal financial or accounting officer
of the Issuer, confirming, as of the date thereof, the matters
set forth in Sections 6(ee) (with respect to the applicable
registration statement and prospectus), 9(a) and 9(b) of the
Purchase Agreement and such other similar matters as such
Person may reasonably request;
(2) an opinion, dated the date of effectiveness of
the Registration Statement, of counsel for the Issuer covering
matters similar to those set forth in Sections 9(e) of the
Purchase Agreement and such other matters as the Initial
Purchasers may reasonably request, and in any event including
a statement to the effect that such counsel has participated
in conferences with officers and other representatives of the
Issuer, representatives of the independent public accountants
for the Issuer and have considered the matters required to be
stated therein and the statements contained therein, although
such counsel has not independently verified the accuracy,
completeness or fairness of such statements; and that such
counsel advises that, on the basis of the foregoing (relying
as to materiality to the extent such counsel deems appropriate
upon the statements of officers and other representatives of
the Issuer) and without independent check or verification), no
facts came to such counsel's attention that caused such
counsel to believe that the applicable Registration Statement,
at the time such Registration Statement or any post-effective
amendment thereto became effective contained an untrue
statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus
contained in such Registration Statement as of its date
contained an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading. Without limiting the
foregoing, such counsel may state further that such counsel
assumes no responsibility for, and has not independently
verified, the accuracy, completeness or fairness of the
financial statements, notes and schedules and other financial
or statistical data included in any Registration Statement
contemplated by this Agreement or the related Prospectus; and
(3) a customary comfort letter, dated the date of
effectiveness of the Registration Statement, from the Issuer's
independent accountants, in the customary form and covering
matters of the type customarily
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covered in comfort letters to underwriters in connection with
underwritten offerings, and affirming the matters set forth in
the comfort letters delivered pursuant to Section 9(g) of the
Purchase Agreement; and
(B) deliver such other documents and certificates as may
be reasonably requested by the Initial Purchasers to evidence
compliance with the matters covered in clause (A) above and with any
customary conditions contained in any agreement entered into by the
Issuer pursuant to this clause;
(xiii) prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders and their 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 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 that the Issuer 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 the
service of process in suits or to taxation, other than as to matters and
transactions relating to the Registration Statement, in any jurisdiction
where it is not now so subject;
(xiv) in connection with any sale of Transfer Restricted
Securities that will result in such securities no longer being Transfer
Restricted Securities, cooperate with the Holders 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 selling Holders may request at least two Business Days
prior to such sale of Transfer Restricted Securities;
(xv) use its reasonable best efforts to cause the disposition
of 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 to consummate the disposition of such Transfer Restricted
Securities, subject to the proviso contained in clause (xiii) above;
(xvi) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of a Registration Statement
covering such Transfer Restricted Securities and provide the Warrant Agent
or the Transfer Agent and Registrar for the Warrant Shares, as applicable,
with printed certificates for the Transfer Restricted Securities which are
in a form eligible for deposit with The Depository Trust Company;
(xvii) otherwise use its reasonable best efforts to comply
with all applicable rules and regulations of the Commission, and make
generally available to its security holders with regard to any applicable
Registration Statement, as soon as practicable, a consolidated earnings
statement meeting the requirements of Rule 158 (which need not be audited)
covering a twelve-month period beginning after the effective date of the
Registration Statement (as such term is defined in Rule 158(c) under the
Act); and
(xviii) provide promptly to the Initial Purchaser, upon
request, each document filed with the Commission pursuant to the
requirements of Section 13 or Section 15(d) of the Exchange Act.
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(b) Restrictions on Holders. Each Holder agrees by acquisition of a
Transfer Restricted Security and the Initial Purchaser agrees that, upon receipt
of the notice from the Issuer of the commencement of a Black Out Period (in each
case, a "Black Out Notice"), such Person will forthwith discontinue disposition
of Transfer Restricted Securities pursuant to the applicable Registration
Statement until such Person is advised in writing by the Issuer of the
termination of the Black Out Period. Each Person receiving a Black Out Notice
hereby agrees that it will either (i) destroy any Prospectuses, other than
permanent file copies, then in such Person's possession which have been replaced
by the Issuer with more recently dated Prospectuses or (ii) deliver to the
Issuer (at the Issuer's expense) all copies, other than permanent file copies,
then in such Person's possession of the Prospectus covering such Transfer
Restricted Securities that was current at the time of receipt of the Black Out
Notice.
5. REGISTRATION EXPENSES
All expenses incident to the Issuer's performance of or compliance
with this Agreement will be borne by the Issuer, regardless of whether a
Registration Statement becomes effective, including, without limitation: (i) all
registration and filing fees and expenses; (ii) all fees and expenses of
compliance with federal securities and state Blue Sky or securities laws; (iii)
all expenses of printing (including printing Prospectuses (whether for sales,
market-making or otherwise), messenger and delivery services and telephone; (iv)
all fees and disbursements of counsel for the Issuer; (v) if the Common Stock
shall then be listed on any national securities exchange or automated quotation
system, all application and filing fees in connection with listing the Warrant
Shares thereon, and (vi) all fees and disbursements of independent certified
public accountants of the Issuer (including the expenses of any special audit
and comfort letters required by or incident to such performance).
The Issuer will, in any event, bear its 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 Issuer.
6. INDEMNIFICATION
(a) The Issuer agrees to indemnify and hold harmless each Holder,
its directors, officers and each Person, if any, who controls such Holder
(within the meaning of Section 15 of the Act or Section 20 of the Exchange Act),
from and against any and all losses, claims, damages, liabilities, judgments,
(including, without limitation, any reasonable legal or other expenses incurred
in connection with investigating or defending any matter, including any action
that could give rise to any such losses, claims, damages, liabilities or
judgments) caused by any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement, preliminary prospectus or
Prospectus (or any amendment or supplement thereto) provided by the Issuer to
any Holder or any prospective purchaser of Transfer Restricted Securities, or
caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages, liabilities or
judgments are caused by an untrue statement or omission or alleged untrue
statement or omission that is based upon information relating to a Holder
furnished in writing to the Issuer by or on behalf of such Holder.
(b) Each Holder of Transfer Restricted Securities agrees, severally
and not jointly, to indemnify and hold harmless the Issuer, its directors and
officers, and each person, if any, who controls (within the meaning of Section
15 of the Act or Section 20 of the Exchange Act) the Issuer, to the same extent
as the foregoing indemnity from the Issuer set forth in Section 6(a) hereof, but
only with
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reference to information relating to such Holder furnished in writing to the
Issuer by or on behalf of such Holder expressly for use in any Registration
Statement. In no event shall any Holder, its directors, officers or any Person
who controls such Holder be liable or responsible for any amount in excess of
the amount by which the total amount received by such Holder with respect to its
sale of Transfer Restricted Securities pursuant to a Registration Statement
exceeds (i) the amount paid by such Holder for such Transfer Restricted
Securities and (ii) the amount of any damages that such Holder, its directors,
officers or any Person who controls such Holder has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged
omission.
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 6(a) or 6(b) (the
"indemnified party"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying party") in writing,
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses of such counsel, as incurred (except that,
in the case of any action in respect of which indemnity may be sought pursuant
to both Sections 6(a) and 6(b), a Holder shall not be required to assume the
defense of such action pursuant to this Section 6(c), but may employ separate
counsel and participate in the defense thereof, but the fees and expenses of
such counsel, except as provided below, shall be at the expense of the Holder).
Any indemnified party shall have the right to employ separate counsel in any
such action and participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of the indemnified party, unless (i) the
employment of such counsel shall have been specifically authorized in writing by
the indemnifying party, (ii) the indemnifying party shall have failed to assume
the defense of such action or employ counsel reasonably satisfactory to the
indemnified party or (iii) the named parties to any such action (including any
impleaded parties) include both the indemnified party and the indemnifying
party, and the indemnified party shall have been advised by such counsel that
there may be one or more legal defenses available to it which are different from
or additional to those available to the indemnifying party (in which case the
indemnifying party shall not have the right to assume the defense of such action
on behalf of the indemnified party). In any such case, the indemnifying party
shall not, in connection with any one action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and expenses of
more than one separate firm of attorneys (in addition to any local counsel) for
all indemnified parties and all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by a majority of the
Holders, in the case of the parties indemnified pursuant to Section 6(a), and by
the Issuer, in the case of parties indemnified pursuant to Section 6(b). The
indemnifying party shall indemnify and hold harmless the indemnified party from
and against any and all losses, claims, damages, liabilities and judgments by
reason of any settlement of any action (i) effected with its written consent or
(ii) effected without its written consent if the settlement is entered into more
than twenty business days after the indemnifying party shall have received a
request from the indemnified party for reimbursement for the fees and expenses
of counsel (in any case where such fees and expenses are at the expense of the
indemnifying party) and, prior to the date of such settlement, the indemnifying
party shall have failed to comply with such reimbursement request. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement or compromise of, or consent to the entry of
judgment with respect to, any pending or threatened action in respect of which
the indemnified party is or could have been a party and indemnity or
contribution may be or could have been sought hereunder by the indemnified
party, unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability on claims that
are or could have been the subject matter of such action and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of the indemnified party.
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(d) To the extent that the indemnification provided for in this
Section 6 is unavailable to an indemnified party in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or judgments (i) in such proportion
as is appropriate to reflect the relative benefits received by the Issuer, on
the one hand, and the Holders, on the other hand, from their sale of Transfer
Restricted Securities or (ii) if the allocation provided by clause 6(d)(i) is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause 6(d)(i) hereof but also the
relative fault of the Issuer, on the one hand, and of the Holder, on the other
hand, in connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative fault of the Issuer, on the one hand, and
of the Holder, on the other hand, shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Issuer, on the one hand, or by or on behalf of the
Holder, on the other hand, and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to above shall be deemed to
include, subject to the limitations set forth in the second paragraph of Section
6(a), any legal or other fees or expenses reasonably incurred by such
indemnified party in connection with investigating or defending any matter,
including any action that could have given rise to such losses, claims, damages,
liabilities or judgments.
The Issuer and each Holder agree that it would not be just and
equitable if contribution pursuant to this Section 6(d) were determined by pro
rata allocation (even if the Holders were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 6, no Holder, its directors, its
officers or any Person, if any, who controls such Holder shall be required to
contribute, in the aggregate, any amount in excess of the amount by which the
total received by such Holder with respect to the sale of Transfer Restricted
Securities pursuant to a Registration Statement exceeds (i) the amount paid by
such Holder for such Transfer Restricted Securities and (ii) the amount of any
damages which such Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Holders' obligations to contribute
pursuant to this Section 6(d) are several in proportion to the respective
principal amount of Transfer Restricted Securities held by each Holder hereunder
and not joint.
(e) The Issuer agrees that the cross indemnity and contribution
provisions of this Section 6 shall apply to the Initial Purchaser to the same
extent, on the same conditions, as it applies to Holders.
7. RULE 144
The Issuer agrees with each Holder, for so long as any Transfer
Restricted Securities remain outstanding and during any period in which the
Issuer is subject to Section 13 or 15(d) of the Exchange Act, to make all
filings required thereby in a timely manner in order to permit resales of such
Transfer Restricted Securities pursuant to Rule 144.
8. LIQUIDATED DAMAGES
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(a) Liquidated Damages. The Issuer and the Initial Purchasers agree
that the Holders will suffer damages if the Issuer fails to fulfill its
obligations pursuant to Section 3 and 4 of this Agreement and that it would not
be possible to ascertain the extent of such damages. Accordingly, in the event
of such failure by the Issuer to fulfill such obligations, the Issuer hereby
agrees to pay liquidated damages ("Liquidated Damages") to each Holder under the
circumstances and to the extent set forth below:
(i) if the Registration Statement has not been filed with the
Commission within 75 days after the Closing Date;
(ii) if the Registration Statement has not been declared
effective by the Commission within 180 days after the Closing Date; or
(iii) if the Registration Statement has been declared
effective by the Commission and such Registration Statement ceases to be
effective or usable at any time after the expiration of a Black Out Period
until the earlier of (A) the Expiration Date and (B) the first date as of
which all Warrants or Warrant Shares have been sold or otherwise
transferred pursuant to the Registration Statement by the Holders
thereof(the "Effectiveness Period"), without being succeeded on the same
day immediately by a post-effective amendment to such Registration
Statement that cures such failure and that is itself immediately declared
effective on the same day, (any of the foregoing, a "Registration
Default"),
then the Issuer shall pay Liquidated Damages to each Holder in an amount equal
to $0.03 per week per Warrant held by such Holder for each week or portion
thereof that the Registration Default continues for the first 90-day period
immediately following the occurrence of such Registration Default. This amount
will increase by an additional $0.02 per week per Warrant with respect to each
subsequent 90-day period, up to a maximum amount of Liquidated Damages equal to
$0.07 per week per Warrant. The provision for Liquidated Damages will continue
until such Registration Default has been cured. The Issuer will not be required
to pay Liquidated Damages for more than one Registration Default at any given
time. A Registration Default under clause (i) above shall be cured on the date
that the Registration Statement is filed with the Commission; a Registration
Default under clause (ii) above shall be cured on the date that the Registration
Statement is declared effective by the Commission; a Registration Default under
clause (iii) above shall be cured on the earlier of (A) the date that the
post-effective amendment curing the deficiency in the Registration Statement is
declared effective or (B) the Effectiveness Period expires. Notwithstanding the
foregoing, the Issuer shall not be deemed to have failed to perform its
obligations under clauses (i) through (iii) above by the reason of the failure
of any Holder to provide information regarding itself reasonably requested by
the Issuer or any regulatory agency having jurisdiction over any of the Holders
at least 10 business days prior to a Registration Default.
(b) Payment of Liquidated Damages. The Issuer shall notify the
Warrant Agent within one Business Day after each and every date on which a
Registration Default occurs (an "Event Date"). Liquidated Damages shall accrue
from the most recent date to which Liquidated Damages have been paid or, if no
Liquidated Damages have been paid, from the date hereof. Liquidated Damages
accrued as of April 15 or October 15 of each year (each a "Payment Date") will
be payable on such Payment Date. The Issuer shall pay Liquidated Damages on the
applicable Payment Date to the Persons who are Holders of Warrants at the close
of business on the April 1 or October 1 next preceding the Payment Date.
Liquidated Damages shall be payable at the office of the Warrant Agent or, at
the option of the Issuer, payment of Liquidated Damages may be made by check
mailed to the Holders at their addresses set forth in the register of Holders,
provided that payment by wire transfer of immediately
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available funds shall be required with respect to the Liquidated Damages on all
Warrants the Holders of which shall have provided written wire transfer
instructions to the Issuer and the Warrant Agent. Such payment shall be in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts.
9. MISCELLANEOUS
(a) Remedies. The Issuer acknowledges and agrees that any failure by
the Issuer to comply with its obligations under Section 3 hereof may result in
material irreparable injury to the Initial Purchaser or the Holders for which
there is no adequate remedy at law, that it will not be possible to measure
damages for such injuries precisely and that, in the event of any such failure,
the Initial Purchaser or any Holder may obtain such relief as may be required to
specifically enforce the Issuer's obligations under Section 3 hereof. The Issuer
further agrees to waive the defense in any action for specific performance that
a remedy at law would be adequate.
(b) No Inconsistent Agreements. Neither the nor UbiquiTel will, 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. Except for
rights described in (or contemplated by the agreements referenced in) the
Offering Memorandum (as defined in the Purchase Agreement), neither the Issuer
nor UbiquiTel has previously entered into any agreement granting any
registration rights with respect to its securities to any Person. 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 Issuer's and
UbiquiTel's securities under any agreement in effect on the date hereof, except
for any rights granted under agreements described in (or contemplated by the
agreements referenced in) the Offering Memorandum (as defined in the Purchase
Agreement) which have been waived.
(c) 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 (i) in the case of this
Section 9(c)(i), the Issuer has obtained the written consent of Holders of all
outstanding Transfer Restricted Securities, and (ii) in the case of all other
provisions hereof, the Issuer has obtained the written consent of Holders of a
majority of the outstanding principal amount of Transfer Restricted Securities
(excluding Transfer Restricted Securities held by the Issuer or its Affiliates);
provided that this Agreement may be amended without the consent of any Holder in
order to cure any ambiguity or to correct or supplement any provision contained
herein which may be defective or inconsistent with any other provision herein,
or to make any other provisions in regard to matters or questions arising
hereunder which the Issuer may deem necessary or desirable and which shall not
in any way adversely affect any Holder.
(d) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements granting rights to Holders made hereunder
between the Issuer, on the one hand, and the Initial Purchaser, on the other
hand, and shall have the right to enforce such agreements directly to the extent
they may deem such enforcement necessary or advisable to protect its rights or
the rights of Holders hereunder.
(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), telex, telecopier, or air
courier guaranteeing overnight delivery:
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(i) if to a Holder, at the address set forth on the records of
the Warrant Agent, with a copy to the Warrant Agent; and
(ii) if to the Issuer:
UbiquiTel Inc.
0 Xxxx Xxxxx, Xxxxx 000
Xxxx Xxxxxx, Xxxxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
With a copy to:
Xxxxxxxxx Traurig, LLP
0000 Xxxxxx Xxxxxxxxx
Xxxxxx Xxxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxx X. Xxxxx, Esq.
and:
Xxxxxxxxx Traurig, P.A.
0000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if mailed;
when 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 Warrant Agent at the
address specified in Warrant Agreement.
(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 limitation, and without the need for an express
assignment, subsequent Holders; provided that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Transfer Restricted
Securities in violation of the terms hereof or of the Purchase Agreement or the
Warrant Agreement. If any transferee of any Holder shall acquire Transfer
Restricted Securities in any manner, whether by operation of law or otherwise,
such Transfer Restricted Securities shall be held subject to all of the terms of
this Agreement, and by taking and holding such Transfer Restricted Securities
such Person shall be conclusively deemed to have agreed to be bound by and to
perform all of the terms and provisions of this Agreement, including the
restrictions on resale set forth in this Agreement and, if applicable, the
Purchase Agreement or Warrant Agreement, as the case may be, and such Person
shall be entitled to receive the benefits hereof.
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(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 and
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 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 with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
15
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
UBIQUITEL INC.
By:_______________________________________
Xxxxx Xxxxx
Interim Chief Financial Officer
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
PARIBAS CORPORATION
PNC CAPITAL MARKETS, INC.
By: XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
By:_______________________________
Xxxxxxx X. Xxxxx
Senior Vice President
