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REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of October 1,
1999, by and among Shared Technologies Cellular, Inc., a Delaware corporation
(the "Company"), and each of the entities whose names appear on the signature
pages hereof. Such entities are each referred to herein as a "Purchaser" and,
collectively, as the "Purchasers".
The Company has agreed, on the terms and subject to the conditions set
forth in the Securities Purchase Agreement of even date herewith (the
"Securities Purchase Agreement"), to issue and sell to each Purchaser shares
(the "Preferred Shares") of the Company's Series D Convertible Preferred Stock,
par value $.01 per share (the "Preferred Stock"). The Preferred Shares are
convertible pursuant to a Certificate of Designation (the "Certificate of
Designation") into shares (the "Conversion Shares") of the Company's Common
Stock, par value $.01 per share (the "Common Stock"). In order to induce the
Purchasers to enter into the Securities Purchase Agreement, the Company has
agreed to provide certain registration rights under the Securities Act of 1933,
as amended (the "Securities Act"), and under applicable state securities laws.
Capitalized terms used herein and not otherwise defined shall have the
respective meanings set forth in the Securities Purchase Agreement.
In consideration of each Purchaser entering into the Securities Purchase
Agreement, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. As used in this Agreement, the following capitalized
terms have the meanings set forth below:
Applicable Period -- In the case of a Shelf Registration Statement,
the period referred to in Section 2.1(a)(ii), and in the case of any other
Registration Statement, nine (9) months or such shorter period as is
necessary to complete the distribution of the Registrable Securities
covered thereby.
Demand - As defined in Section 2.1(a)(i) hereof.
Holder -- Any person owning or having the right to acquire, through
conversion of Preferred Shares, or through the exercise or conversion of
any securities issued to such Holder in exchange for the Preferred Shares,
Registrable Securities, including initially each Purchaser and thereafter
any permitted assignee thereof.
Exchange Act - The Securities Exchange Act of 1934, as amended.
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Majority Holders -- Holders holding fifty percent (50%) of the
Registrable Securities included in a Shelf Registration Statement.
Notice of Demand -- As defined in Section 2.1(a)(i) hereof.
Person - An individual, partnership, joint venture, corporation,
trust, limited liability company, limited liability partnership,
unincorporated organization or government or any department or agency
thereof.
Piggy-back Registration - A registration of Registrable Securities
pursuant to Section 2.1(b) hereof.
Prospectus -- The prospectus included in a Registration Statement,
including any preliminary prospectus, and any such Prospectus as amended
or supplemented by any prospectus supplement with respect to the terms of
the offering of any portion of the Registrable Securities covered by a
Registration Statement, and by all other amendments and supplements to
such Prospectus, including post-effective amendments, and in each case
including all exhibits thereto and all material incorporated by reference
therein.
Registrable Securities - The Conversion Shares, and any other shares
of Common Stock issuable pursuant to the terms of the Preferred Stock, or
pursuant to any securities issued to a Holder in exchange for Preferred
Stock, and any shares of capital stock issued or issuable from time to
time (with any adjustments) in replacement of, in exchange for or
otherwise in respect of the Conversion Shares or such other shares. As to
any Registrable Securities, once issued such securities shall cease to be
Registrable Securities when: (i) a Registration Statement with respect to
the sale of such securities shall have become effective under the
Securities Act and such securities shall have been disposed of in
accordance with such Registration Statement or, if earlier, when the
Applicable Period shall have expired with respect to such securities; (ii)
they are eligible to be distributed to the public pursuant to Rule 144(k)
(or any successor provision) under the Securities Act; (iii) new
certificates for them not bearing a legend restricting further transfer
shall have been delivered by the Company and subsequent disposition of
them shall not require registration or qualification of them under the
Securities Act or any similar state law then in force; or (iv) they shall
have ceased to be outstanding.
Register, registered and registration - Refers to a registration
effected by preparing and filing a Registration Statement or Statements in
compliance with the Securities Act and the declaration or ordering of
effectiveness of the Registration Statement by the SEC;
Registration Statement -- A Shelf Registration Statement, any
registration statement registering shares held by Holders pursuant to
Section 2.1(b) hereof and all amendments and supplements to any such
Registration Statement, including post-effective amendments, in each case
including the Prospectus contained therein, all
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exhibits thereto and all material incorporated by reference therein.
SEC -- The Securities and Exchange Commission.
Securities Act -- The Securities Act of 1933, as amended.
Seller - As defined in Section 2.1(g) hereof.
Shelf Registration -- A registration required to be effected
pursuant to Section 2.1(a).
Shelf Registration Statement -- A "shelf"registration statement of
the Company pursuant to the provisions of Section 2.1(a) of this Agreement
which covers Registrable Securities and is filed on Form S-3 under Rule
415 under the Securities Act, or any similar rule that may be adopted by
the SEC, and all amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
Underwriter -- A person who acts as an underwriter with respect to
any registration of securities pursuant to this Agreement.
Underwritten Offering -- A sale of securities of the Company to an
Underwriter or Underwriters for reoffering to the public.
ARTICLE II
REGISTRATION RIGHTS
2.1 Registration.
(a) Demand Registration.
(i) At any time from and after the ninetieth (90th) day after
the date hereof until the fifth (5th) anniversary of the date hereof, one (1) or
more Holders holding in the aggregate at least fifty percent (50%) of the
Registrable Securities held by the Holders will be entitled to deliver to the
Company a written notice (a "Demand") requesting a Shelf Registration. Upon
receipt of a Demand, the Company will deliver to each Holder a written notice
(the "Notice of Demand") which shall include a copy of the Demand, together with
a statement to the effect that the Company will include all Registrable
Securities in a Shelf Registration pursuant to this Section 2.1(a) unless the
Company receives, by a date specified in the Notice of Demand (which date shall
be no less than twenty (20) days following the delivery of such Notice of
Demand), a notice from a Holder to exclude all or a portion of such Holder's
Registrable Securities from such Shelf Registration. Following receipt of a
Demand, the Company shall, as expeditiously as reasonably possible, use its
reasonable best efforts to effect a Shelf Registration of all Registrable
Securities except: (i) those which a Holder has on a timely basis requested to
be excluded from such Shelf
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Registration, and (ii) those of any Holder that does not provide information
reasonably requested by the Company in connection with the Shelf Registration
Statement. Notwithstanding the foregoing, the Company shall not be required to
effect more than one (1) Shelf Registration pursuant to this Section 2.1(a) so
long as (i) such Shelf Registration has been declared or ordered effective under
the Securities Act (and all applicable state securities laws) and (ii) the
Registrable Securities included in such Shelf Registration shall be eligible for
sale or shall have been sold pursuant to such Shelf Registration or the
Applicable Period shall have expired. The Company may, at its option, include in
such Shelf Registration Statement shares held by any other shareholders having
rights similar to those contained in this Section 2.1(a) or Section 2.1(b).
(ii) The Company agrees to use its reasonable best efforts to
keep the Shelf Registration Statement continuously effective for a period of two
(2) years following the date on which such Shelf Registration Statement is
initially declared effective, or such shorter period which will terminate when
all of the Registrable Securities covered by the Shelf Registration Statement
have been sold pursuant to the Shelf Registration Statement. The Company further
agrees, if necessary, to supplement or amend the Shelf Registration Statement,
if required by the rules, regulations or instructions applicable to the
registration form used by the Company for such Shelf Registration Statement or
by the Securities Act or by any other rules and regulations thereunder for shelf
registration.
(iii) The Company shall not be obligated to take any action to
effect any registration pursuant to this Section 2.1(a):
(A) if the Company shall furnish to the Holders a
certificate signed by the President of the Company, stating that in the good
faith judgment of the Board of Directors of the Company the filing of a
registration statement would require the disclosure of material information
regarding a possible financing, business combination or other material
transaction, which disclosure the Board of Directors of the Company has
determined in its good faith judgment would be detrimental to the Company, then
the Company's obligation to use its best efforts to register, qualify or comply
under this Section 2.1(a) shall be deferred for a single period not to exceed
ninety (90) days from the date of its receipt of a Demand; or
(B) within 180 days immediately following the effective
date of any registration statement pertaining to an Underwritten Offering of
securities of the Company for its own account.
(b) Piggy-back Registration.
(i) If the Company at any time prior to the fifth (5th)
anniversary of the date hereof proposes to register any of its securities for an
Underwritten Offering under the Securities Act (other than pursuant to a Shelf
Registration), whether or not for sale for its own account, and if the
registration form proposed to be used may be used for the registration of
Registrable Securities, the Company will each such time give prompt written
notice to all Holders of its intention to do so. Upon the written request of any
such Holder made within twenty (20) days after the receipt of any such notice
(which request shall specify the Registrable Securities intended to be disposed
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of by such Holder), the Company will use its reasonable best efforts to cause
all such Registrable Securities as to which Holders requested registration to be
registered under the Securities Act (with the securities which the Company at
the time proposes to register), so as to permit the sale or other disposition by
such Holders of such Registrable Securities.
(ii) No registration effected pursuant to this Section 2.1(b)
shall be deemed to have been effected pursuant to Section 2.1(a) hereof.
(iii) Notwithstanding anything to the contrary in this Section
2.1(b), the Company shall have the right to discontinue any Piggy-back
Registration at any time prior to the effective date of such Piggy-back
Registration if the registration of other securities giving rise to such
Piggy-back Registration is discontinued; provided, that no such discontinuation
shall preclude an immediate or subsequent request for a Shelf Registration.
(c) Registration Procedures. If the Company is required by the
provisions of this Section 2.1 to use its reasonable best efforts to effect or
cause the registration of any Registrable Securities under the Securities Act as
provided in this Section, the Company will, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement
with respect to such Registrable Securities and use its reasonable best efforts
to cause such registration statement to become and remain effective during the
Applicable Period; in the case of a Shelf Registration Statement, such
Registration Statement shall be available for the sale of Registrable Securities
in accordance with the intended method or methods of distribution of the selling
Holders (subject to the limitation set forth in Section 2.1(a)(iii) hereof),
unless in the reasonable judgment of the Company such method or methods would
violate any applicable anti-manipulation provisions of the Exchange Act or the
Securities Act;
(ii) prepare and file with the SEC such amendments and
supplements to such Registration Statement as may be necessary to keep such
Registration Statement effective for the Applicable Period and to comply with
the provisions of the Securities Act with respect to the sale or other
disposition of all securities covered by such Registration Statement during the
Applicable Period in accordance with the intended methods of disposition by the
seller or sellers thereof set forth in such Registration Statement;
(iii) furnish to each seller of such Registrable Securities
and, in the case of an Underwritten Offering, each Underwriter of the securities
being sold by such seller, such number of copies of such Registration Statement,
such number of copies of the Prospectus included in such Registration Statement
and such other documents as such seller and Underwriter may reasonably request
in order to facilitate the public sale or other disposition of the Registrable
Securities owned by such seller (including any Prospectus amended or
supplemented as set forth in Section 2.1(c)(vi));
(iv) use its reasonable best efforts to register or qualify
such Registrable Securities covered by such Registration Statement under such
other securities or "blue-sky laws", so-called, of such jurisdictions as any
seller and each Underwriter of the securities being sold by such seller shall
reasonably request, and do any and all other acts and things which may be
necessary or advisable to enable
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such seller and Underwriter to consummate the disposition in such jurisdictions
of such Registrable Securities owned by such seller; provided, that the Company
shall not for any such purpose be required to (A) qualify generally to do
business as a foreign corporation in any jurisdiction wherein it would not but
for the requirements of this Section 2.1(c)(iv) be obligated to be qualified,
(B) subject itself to taxation in any such jurisdiction, (C) to consent to
general service of process in any such jurisdictions, or (D) except as may be
required by the Underwriter in an Underwritten Offering, register or qualify
such Registrable Securities in more than twenty (20) states;
(v) use its reasonable best efforts to cause such Registrable
Securities covered by such 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
Registrable Securities;
(vi) notify each seller of any such Registrable Securities
covered by such Registration Statement: (i) of the issuance by the SEC or any
state securities authority of any stop order suspending the effectiveness of
such Registration Statement or the initiation of any proceedings for that
purpose, (ii) of receipt of notification with respect to the suspension of the
qualification of the Registrable Securities for offer or sale in any
jurisdiction or the initiation of any proceeding for such purpose, (iii) at any
time when a Prospectus relating thereto is required to be delivered under the
Securities Act, of the Company's becoming aware that the Prospectus included in
such Registration Statement, as then in effect, includes an untrue statement of
a material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading in the light
of the circumstances then existing (other than a fact relating to such seller),
and as promptly as practicable use its reasonable best efforts to prepare a
Prospectus supplemented or amended so that, as thereafter delivered to the
purchasers of such Registrable Securities, such Prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading in
the light of the circumstances then existing;
(vii) otherwise use its reasonable best efforts to comply with
federal and state laws and all applicable rules and regulations of the SEC, and
make available to its security holders, as soon as reasonably practicable, but
not later than 45 calendar days after the close of the period covered thereby
(90 calendar days in case the period covered corresponds to a fiscal year of the
Company), an earnings statement which shall satisfy the provisions of Section
11(a) of the Securities Act;
(viii) use its reasonable best efforts (A) to cause all such
Registrable Securities covered by such Registration Statement to be listed on
each securities exchange on which similar securities issued by the Company are
then listed, if the listing of such Registrable Securities is then permitted
under the rules of such exchange or (B) to secure the listing of all such
Registrable Securities covered by such registration statement on the NASDAQ
SmallCap Market or the NASDAQ National Market System and, without limiting the
generality of the foregoing, to arrange for at least two (2) market makers to
register as such with respect to such Registrable Securities with the National
Association of Securities Dealers;
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(ix) provide a transfer agent and registrar for all such
Registrable Securities covered by such registration statement not later than the
effective date of such registration statement;
(x) make available for inspection by any seller of such
Registrable Securities covered by such Registration Statement, by any
Underwriter participating in any disposition to be effected pursuant to such
Registration Statement and by any attorney, accountant or other agent retained
by any such seller or any such Underwriter, all pertinent financial and other
records, pertinent corporate documents and properties of the Company, and cause
all of the Company's officers, directors and employees to supply all information
reasonably requested by any such seller, underwriter, attorney, accountant or
agent in connection with such registration statement; provided, however, that
all such persons shall agree to standard confidentiality provisions regarding
all such records, documents and information; and
(xi) permit any Holder of Registrable Securities which Holder,
in the sole and exclusive judgment, exercised in good faith, of such Holder,
might be deemed to be a controlling person of the Company, to participate in the
preparation of such registration or comparable statement; and
(xii) permit one counsel for the Holders of a majority of the
Registrable Securities to review the Registration Statement and all amendments
and supplements thereto, and any comments made by the staff of the SEC and the
Company's responses thereto, a reasonable period of time prior to the filing
thereof with the SEC.
Each Holder shall be deemed to have agreed by including Registrable Securities
in a Registration Statement that upon receipt of any notice from the Company of
the happening of any event of the kind described in Section 2.1(c)(vi) hereof,
such Holder will forthwith discontinue such Holder's disposition of Registrable
Securities pursuant to the Registration Statement covering such Registrable
Securities until such Holder's receipt of the copies of the supplemented or
amended prospectus contemplated by Section 2.1(c)(vi) hereof and, if so directed
by the Company, 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 Registrable Securities current at the time of
receipt of such notice. In the event the Company shall give any such notice, the
Applicable Period shall be extended by the number of days during the period from
and including the date of the giving of such notice to and including the date
when each seller of any Registrable Securities covered by such registration
statement shall have received the copies of the supplemented or amended
prospectus contemplated by Section 2.1(c)(vi) hereof.
If any Registration Statement, Prospectus or comparable statement refers
to any Holder by name or otherwise as the holder of any securities of the
Company, then (whether or not, in the sole and exclusive judgment, exercised in
good faith, of such Holder, such Holder is or might be deemed to be a
controlling person of the Company) such holder shall have the right to require:
(i) the insertion therein of language, in form and substance reasonably
satisfactory to such Holder and presented to the Company in writing, to the
effect that the holding of such Holder of such securities is not to be construed
as a recommendation by such Holder of the investment quality of the Company's
securities covered thereby and that such holding does not imply that such Holder
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will assist in meeting any future financial requirements of the Company, or (ii)
in the event that such reference to such Holder by name or otherwise is not
required by the Securities Act or any similar federal or state statute then in
force, the deletion of the reference to such Holder. Each Seller (as defined
below) shall provide to the Company in writing information concerning itself
required by law to be included in any Registration Statement registering shares
held by such Seller.
(d) Registration Expenses. The Company shall, whether or not any
Shelf Registration or Piggy-back Registration shall become effective, pay all
expenses incident to its performance of or compliance with this Section in
connection with a Shelf Registration or Piggy-back Registration, including
without limitation all registration and filing fees, fees and expenses of
compliance with securities or blue sky laws (subject to the limitation set forth
in Section 2.1(c)(iv) hereof), printing expenses, messenger and delivery
expenses, fees and disbursements of counsel for the Company and all independent
public accountants and other persons retained by the Company; provided, however,
that the Company shall bear no responsibility for any fees or disbursements of
any counsel for any Seller, any fees or disbursements of any underwriter or any
underwriting commissions and discounts. In all cases, any allocation of Company
personnel or other general overhead expenses of the Company or other expenses
for the preparation of financial statements or other data normally prepared by
the Company in the ordinary course of its business shall be borne by the
Company.
(e) Indemnification and Contribution. The Company hereby
indemnifies, to the extent permitted by law, each Holder, its officers,
directors, employees, agents and representatives, if any, and each Person, if
any, that "controls" such Holder within the meaning of Section 15 of the
Securities Act, against all losses, claims, damages, liabilities (or proceedings
in respect thereof) and expenses (under the Securities Act or common law or
otherwise), joint or several, caused by any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement or
Prospectus (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) or caused by any omission or alleged omission
to state 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 proceedings in respect thereof) or expenses are
caused by any untrue statement or alleged untrue statement contained in or by
any omission or alleged omission from information respecting such Holder
furnished in writing to the Company by such Holder expressly for use therein. In
connection with any Registration Statement with respect to Registrable
Securities held by a Holder, each such Holder will furnish to the Company in
writing such information respecting such Holder as shall be reasonably requested
by the Company for use in any such Registration Statement or Prospectus and will
indemnify, to the extent permitted by law, the Company, its officers, directors,
employees, agents and representatives and each Person, if any, that "controls"
the Company within the meaning of Section 15 of the Securities Act, against any
losses, claims, damages, liabilities (or proceedings in respect thereof) and
expenses resulting from any untrue statement or alleged untrue statement of a
material fact or any omission or alleged omission of a material fact required to
be stated in the Registration Statement or Prospectus or necessary to
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make the statements therein not misleading, but only to the extent that such
untrue statement is contained in or such omission is from information so
furnished in writing by such Holder expressly for use therein provided, that, in
no event shall any indemnity under this Section 2.1(e) exceed the net purchase
price of securities sold by such Holder under the Registration Statement. Any
Person entitled to indemnification under the provisions of this Section 2.1(e)
shall: (i) give prompt notice to the indemnifying party of any claim with
respect to which it seeks indemnification and (ii) unless in such indemnified
party's reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim, permit such
indemnifying party to assume the defense of such claim, with counsel reasonably
satisfactory to the indemnified party; and if such defense is so assumed, such
indemnifying party shall not enter into any settlement without the consent of
the indemnified party and such indemnifying party shall not be subject to any
liability for any such settlement made without its consent (which consent shall
not be unreasonably withheld). In the event an indemnifying party shall not be
entitled, or elects not, to assume the defense of a claim, such indemnifying
party shall not be obligated to pay the fees and expenses of more than one
counsel or firm of counsel for all parties indemnified by such indemnifying
party in respect of such claim, unless in the reasonable judgment of any such
indemnified party a conflict of interest may exist between such indemnified
party and any other of such indemnified parties in respect to such claim. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of a participating Holder, its officers, directors or any
Person, if any, who controls such Holder as aforesaid, and shall survive the
transfer of such securities by such Holder.
If for any reason the foregoing indemnity is unavailable, or is insufficient to
hold harmless an indemnified party, then the indemnifying party shall contribute
to the amount paid or payable by the indemnified party as a result of such
losses, claims, damages, liabilities or expenses (x) in such proportion as is
appropriate to reflect the relative benefits received by the indemnifying party
on the one hand and the indemnified party on the other or (y) if the allocation
provided by clause (x) above is not permitted by applicable law or provides a
lesser sum to the indemnified party than the amount hereinafter calculated, in
such proportion as is appropriate to reflect not only the relative benefits
received by the indemnifying party on the one hand and the indemnified party on
the other but also the relative fault of the indemnifying party and the
indemnified party as well as any other relevant equitable considerations
provided, however, that in no case shall such Holder be responsible for any
amount in excess of the net purchase price of securities sold by it under the
Registration Statement. Notwithstanding the foregoing, no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
(f) Certain Limitations on Registration Rights. In the case of a
Piggy-back Registration, if the Company or holders of securities initially
requesting or demanding such registration have determined to enter into an
underwriting agreement in connection therewith, all Registrable Securities to be
included in such registration shall be subject to such underwriting agreement,
and no Person may participate in such registration unless such Person agrees to
sell such
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Person's securities on the basis provided in the underwriting arrangements
approved by the Company or such holders and completes and/or executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other reasonable documents which must be executed under the terms of such
underwriting arrangements.
(g) Allocation of Securities Included in Registration Statement. In
the case of an Underwritten Offering, if the managing Underwriter shall advise
the Company and the Holders in writing that the inclusion in any registration
pursuant to this Section of some or all of the Registrable Securities sought to
be registered by the holders requesting such registration creates a substantial
risk that the proceeds or price per unit either the Company or the holders of
securities who have demanded such Underwritten Offering will derive from such
registration will be reduced or that the number of securities to be registered
(including those sought to be registered at the instance of the Company and any
other party entitled to participate in such registration as well as those sought
to be registered by the Holders) is too large a number to be reasonably sold,
then (subject to any superior rights in favor of Persons holding registration
rights on the date of this Agreement all of which have been disclosed in writing
by the Company to the Holders ("Existing Registration Rights")) the number of
Registrable Securities sought to be registered by each Seller shall be reduced
pro rata in proportion to the number of securities sought to be registered by
all Sellers to the extent necessary to reduce the number of securities to be
registered to the number recommended by the managing underwriter; provided,
however, that with respect to any Shelf Registration effected pursuant to
Section 2.1(a), any securities sought to be included in any such Shelf
Registration by the Company or any other Seller of any such securities (other
than a Holder and other than any person holding Existing Registration Rights)
shall be excluded from any such Shelf Registration before any Registrable
Securities held by any Holder shall be excluded.
For purposes of this Section 2.1(g), the term "Seller" shall mean and
include each holder of securities (including, but not limited to, Registrable
Securities) entitled to participate in the subject registration pursuant to
contractual piggy back registration rights held by such holder.
(h) Limitations on Sale or Distribution of Other Securities. In
connection with any Underwritten Public Offering, each holder of Registrable
Securities shall be deemed to have agreed by the inclusion of Registrable
Securities in a Registration Statement not to effect any public sale or
distribution, including (if requested by the Underwriter) any sale pursuant to
Rule 144 under the Securities Act, of any Registrable Securities, and to use
such holder's best efforts not to effect any public sale or distribution of any
other equity security of the Company or of any security convertible into or
exchangeable or exercisable for any equity security of the Company (other than
as part of such underwritten public offering) within seven (7) days before or
ninety (90) days (or such other period to which the Underwriters of such
offering may consent) after the effective date of any Registration Statement
filed by the Company pursuant to this Article II or otherwise.
2.2 Rule 144. The Company covenants that it will timely file the reports
required to be filed by it under the Securities Act or the Exchange Act
(including but not limited to the reports under Sections 13 and 15(d) of the
Exchange Act referred to in subparagraph (c)(l) of Rule 144 adopted
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by the SEC under the Securities Act) and the rules and regulations adopted by
the SEC thereunder (or, if the Company is not required to file such reports,
will, upon the request of any Holder, make publicly available such information),
and will take such further action as any Holder may reasonably request, all to
the extent required from time to time to enable such Holder to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by: (i) Rule 144 under the Securities Act, as such
Rule may be amended from time to time, or (ii) any similar rule or regulation
hereafter adopted by the SEC. Upon the request of any Holder, the Company will
deliver to such Holder a written statement as to whether it has complied with
such requirements.
ARTICLE III
MISCELLANEOUS
3.1 Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given unless the Company has obtained the written consent of the Majority
Holders; provided, that no amendment, modification or supplement or waiver or
consent to the departure with respect to the provisions of Section 2.1(e) hereof
shall be effective as against any Holder of Registrable Securities unless
consented to in writing by such Holder of Registrable Securities.
3.2 Successors, Assigns and Transferees. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
representatives, administrators, heirs, successors and assigns, as applicable,
including, without limitation and without the need for an express assignment,
subsequent Holders. If any successor, assignee or transferee of any Holder shall
acquire Registrable Securities, in any manner, whether by operation of law or
otherwise, such Registrable Securities shall be held subject to all of the terms
of this Agreement, and by taking and holding such Registrable Securities such
Person shall be entitled to receive the benefits hereof and shall be
conclusively deemed to have agreed to be bound by all of the terms and
provisions hereof.
3.3 Notices. Any notice, demand or request required or permitted to be
given by any party to any other party pursuant to the terms of this Agreement
shall be in writing and shall be deemed given (i) when delivered personally or
by verifiable facsimile transmission (with an original to follow) on or before
5:00 p.m., eastern time, on a Business Day or, if such day is not a Business
Day, on the next succeeding Business Day, (ii) on the next Business Day after
timely delivery to a nationally-recognized overnight courier and (iii) on the
Business Day actually received if deposited in the U.S. mail (certified or
registered mail, return receipt requested, postage prepaid), addressed to the
parties as follows:
If to the Company:
Shared Technologies Cellular, Inc.
000 Xxxxx Xxxxxx Xxxx
-11-
12
Suite 100
Wethersfield, CT 06109
Attn: Legal Department
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Day, Xxxxx & Xxxxxx LLP
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
and if to any Holder, to such address as shall be designated by such Holder
in writing to the Company.
3.4 Descriptive Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning of terms contained herein.
3.5 Severability. In the event that any one or more of the provisions,
paragraphs, words, clauses, phrases or sentences contained herein, or the
application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of such provision, paragraph, word, clause, phrase or sentence in
every other respect and of the remaining provisions, paragraphs, words, clauses,
phrases or sentences hereof shall not be in any way impaired, it being intended
that all rights, powers and privileges of the parties hereto shall be
enforceable to the fullest extent permitted by law.
3.6 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument, and it shall not be necessary in making
proof of this Agreement to produce or account for more than one such
counterpart.
3.7 Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New York, without regard to
the conflicts of laws rules thereof.
-12-
13
[Remainder of page intentionally left blank.]
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14
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound,
hereby have executed this Registration Rights Agreement as of the date first
above written.
SHARED TECHNOLOGIES CELLULAR, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Chairman and CEO
PURCHASER NAME: SIB INVESTMENT HOLDINGS LIMITED
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
15
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound,
hereby have executed this Registration Rights Agreement as of the date first
above written.
SHARED TECHNOLOGIES CELLULAR, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Chairman and CEO
PURCHASER NAME: ARDARA INVESTMENT INC.
One Director
XXXXX LIMITED
By: /s/ Xxxxxxx X. Xxxxx /s/ Xxxxxxxxx X. Xxxxx
----------------------------------------------------------------------
Name: Xxxxxxx X. Xxxxx Xxxxxxxxx X. Xxxxx
Title: Two Directors
16
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound,
hereby have executed this Registration Rights Agreement as of the date first
above written.
SHARED TECHNOLOGIES CELLULAR, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Chairman and CEO
PURCHASER NAME: SWISSCON LIMITED
By: CORPORATE SERVICES (GUERNSEY) LIMITED
AS SECRETARIES TO THE COMPANY
/s/ X. X. XxXxxxxx /s/ I. M. Xxxxxxx
---------------------------- -------------------------------
Name: X. X. XxXxxxxx I. M. Xxxxxxx
Title: Director Director
