EXHIBIT 99.6
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered into
as of June 29, 1998, by and among ARCH COMMUNICATIONS GROUP, INC., a Delaware
corporation (the "Company"), SANDLER CAPITAL PARTNERS IV, L.P., a Delaware
limited partnership, SANDLER CAPITAL PARTNERS IV FTE, L.P., a Delaware limited
partnership, XXXXXX XXXXXXX, XXXX XXXXXXXXX, XXXXXXX X. XXXXXXX, XXXXXX XXXXXXX,
SOUTH FORK PARTNERS, a Delaware general partnership, THE GEORGICA INTERNATIONAL
FUND LIMITED, a Bermuda corporation, ASPEN PARTNERS, a Delaware general
partnership, and CONSOLIDATED PRESS INTERNATIONAL LIMITED, a Bahamas corporation
(each of the foregoing persons or entities, other than the Company, being
sometimes referred to hereinafter individually as an "Investor" and collectively
as the "Investors").
WITNESSETH:
WHEREAS, the Company has entered into that certain Stock Purchase
Agreement (the "Stock Purchase Agreement"), dated as of June 29, 1998, with the
Investors pursuant to which the Company has agreed to issue and sell to the
Investors shares of the Company's Series C Convertible Preferred Stock, par
value $0.01 per share,(the "Series C Preferred"); and
WHEREAS, the Company has agreed to grant certain registration rights
with respect to the shares of the Company's Common Stock, par value $0.01 per
share, issuable upon conversion of the Series C Preferred issued to the
Investors pursuant to the Stock Purchase Agreement.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises and covenants contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties, intending to be legally hereby agree as follows:
ARTICLE 1
DEFINITIONS
As used herein, the following terms shall have the following respective
meanings:
1.1 "COMMISSION" shall mean the Securities and Exchange Commission, or any
other successor federal agency at the time administering the Securities Act.
1.2 "COMMON STOCK" shall mean the Company's common stock, par value $0.01
per share.
1.3 "HOLDERS" shall mean and include each of the Investors and any person
or entity who shall, pursuant to Section 11.2 hereof, become a party hereto, and
any permitted transferee under Article 9 hereof who holds Registrable
Securities.
1.4 "INITIATING HOLDERS" shall mean any Holder or Holders who in the
aggregate own not less than twenty-five percent (25%) of the Registrable
Securities.
1.5 The terms "REGISTER," "REGISTERED" and "REGISTRATION" refer to a
registration effected by preparing and filing with the Commission a registration
statement in compliance with the Securities Act, and the declaration or ordering
by the Commission of the effectiveness of such registration statement.
1.6 "REGISTRABLE SECURITIES" means any and all shares of Common Stock (i)
issued or issuable upon conversion of the Series C Preferred, (ii) issued or
issuable with respect to the Series C Preferred upon any stock split, stock
dividend, recapitalization, reclassification or similar event, and (iii)
otherwise held or acquired by any of the Investors excluding in all cases,
however, Registrable Securities sold by a Holder to the public or pursuant to
Rule 144 promulgated under the Securities Act and Registrable Securities which
may be sold by a Holder without any restrictions (including, without limitation,
restrictions as to volume or manner of sale) under Rule 144(k) of the Securities
Act.
1.7 "REGISTRATION EXPENSES" shall mean all expenses incurred by the Company
in complying with Articles 2 and 3 hereof, including, without limitation, all
registration, qualification and filing fees, printing expenses, escrow fees,
fees and disbursements of legal counsel for the Company, reasonable fees and
disbursements of one legal counsel for the selling Holders (not to exceed
$10,000), blue sky fees and expenses, and the expense of any special audits
incident to or required by any such registration (but excluding the compensation
of regular employees of the Company, which shall be paid in any event by the
Company).
1.8 "S-3 REGISTRATION EXPENSES" shall mean all expenses incurred by the
Company in complying with Article 4 hereof, including, without limitation, all
registration, qualification and filing fees, printing expenses, escrow fees,
fees and disbursements of legal counsel for the Company, reasonable fees and
disbursements of one legal counsel for the selling Holders (not to exceed
$10,000), blue sky fees and expenses, and the expense of any special audits
incident to or required by any such registration (but excluding the compensation
of regular employees of the Company, which shall be paid in any event by the
Company).
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1.9 "SECURITIES ACT" shall mean the Securities Act of 1933, as amended, or
any similar federal statute and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
1.10 "SELLING EXPENSES" shall mean all underwriting fees, discounts,
selling commissions and stock transfer taxes applicable to the Registrable
Securities registered by the Holders.
ARTICLE 2
REQUESTED REGISTRATION
2.1 REQUEST FOR REGISTRATION. At any time after the date of this Agreement,
Initiating Holders may request registration in accordance with this Article 2.
In the event the Company shall receive from the Initiating Holders a written
request that the Company effect any registration, qualification or compliance
with respect to Registrable Securities having an aggregate offering price which
exceeds $1,000,000 (based on the then current market price), the Company will:
(a) promptly give written notice of the proposed registration,
qualification or compliance to all other Holders; and
(b) use its best efforts to effect such registration, qualification or
compliance as soon as practicable (including, without limitation, undertaking to
file post-effective amendments, appropriate qualifications under applicable blue
sky or other state securities laws, and appropriate compliance with applicable
regulations issued under the Securities Act, and any other governmental
requirements or regulations) as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of such Registrable
Securities as are specified in such request, together with all or such portion
of the Registrable Securities of any Holder or Holders joining in such request
as are specified in a written request received by the Company within 10 days
after the receipt of the written notice from the Company described in Section
2.1(a); PROVIDED, HOWEVER, that the Company shall not be obligated to take any
action to effect any such registration, qualification or compliance pursuant to
this Article 2:
(i) in any particular jurisdiction in which the Company would be
required to execute a general consent to service of process in effecting such
registration, qualification or compliance, unless the Company is already subject
to service in such jurisdiction and except as may be required by the Securities
Act;
(ii) within one hundred and eighty (180) days immediately
following the effective date of any registration statement pertaining to a
firmly underwritten offering of securities of the Company for its own account
(or such lesser period as the managing underwriters of such offering will
allow);
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(iii) After the Company has effected two (2) such requested
registrations pursuant to this Article 2 (not including registrations on Form
S-3), each such registration has been declared or ordered effective, and the
Registrable Securities offered pursuant to each such registration have been
sold, or if the Company has effected any requested registration pursuant to this
Agreement during the previous six-month period (or such shorter period as the
managing underwriter of the Company's most recent public offering will allow);
or
(iv) If the Company then meets the eligibility requirements
applicable to the use of Form S-3 in connection with such registration and is
able to effect such requested registration pursuant to Article 4 hereof.
(c) Subject to the foregoing clauses (i) through (iv), the Company
shall file a registration statement covering the Registrable Securities so
requested to be registered as soon as practicable after receipt of the request
of the Initial Holders; PROVIDED, HOWEVER, that if the Company shall furnish to
such Holders a certificate signed by the Chairman of the Board and Chief
Executive Officer of the Company stating that in the good faith judgment of the
Board of Directors of the Company, it would be detrimental to the Company and
its stockholders for such registration statement to be filed, or, if already
filed (but prior to effectiveness of such registration statement), that the use
of the prospectus contained in such registration statement would be detrimental
to the Company and its stockholders, the Company shall have the right to defer,
postpone or interrupt such offering (including the use of any prospectus related
thereto) for a period of not more than 180 days after receipt of the request of
the Initial Holders; PROVIDED, FURTHER, that the Company shall not be permitted
to exercise such deferral right under this Section 2.1(c) or Section 4.1(c)
hereof more than once in any 360-day period.
2.2 UNDERWRITING.
(a) The distribution of the Registrable Securities covered by the
request of the Initiating Holders shall be effected by means of the method of
distribution selected by the Holders holding a majority of the Registrable
Securities covered by such registration. If such distribution is effected by
means of an underwriting, the right of any Holder to registration pursuant to
this Article 2 shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable Securities in the
underwriting (unless otherwise agreed by the Initiating Holders) to the extent
provided herein.
(b) If such distribution is effected by means of an underwriting, the
Company (together with all Holders proposing to distribute their securities
through such underwriting) shall enter into an underwriting agreement in
customary form with a
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managing underwriter of nationally recognized standing selected for such
underwriting by a majority in interest of the Initiating Holders and approved by
the Company, which approval shall not be unreasonably withheld. Notwithstanding
any other provision of this Article 2, if the managing underwriter advises the
Initiating Holders in writing that marketing factors require a limitation of the
number of shares to be underwritten, then the underwriters may exclude shares
requested to be included in such registration. The number of shares of
Registrable Securities to be included in the registration and underwriting shall
be allocated first amongst the Initiating Holders who have requested
registration of Registrable Securities and then amongst the other Holders who
have requested registration of Registrable Securities in such registration and
underwriting in proportion, as nearly as practicable, to the respective amounts
of Registrable Securities held by such Holders at the time of filing the
registration statement. No Registrable Securities excluded from the underwriting
by reason of the managing underwriter's marketing limitation shall be included
in such registration.
(c) If any Holder disapproves of the terms of the underwriting, such
person may elect to withdraw therefrom by written notice to the Company, the
managing underwriter and the Initiating Holders. The Registrable Securities
and/or other securities so withdrawn shall also be withdrawn from registration;
PROVIDED, HOWEVER, that if by the withdrawal of such Registrable Securities a
greater number of Registrable Securities held by other Holders may be included
in such registration (up to the maximum of any limitation imposed by the
underwriters), then the Company shall offer to all Holders who have included
Registrable Securities in the registration the right to include additional
Registrable Securities in the same proportion used in determining the
underwriter limitation in this Section 2.2.
2.3 INCLUSION OF SHARES BY COMPANY. If the distribution of Registrable
Securities is being effected by means of an underwriting and if the managing
underwriter has not limited the number of Registrable Securities to be
underwritten, the Company (i) may include securities for its own account in such
registration if the managing underwriter so agrees and (ii) may include
securities for the account of stockholders other than the Holders in such
registration if the managing underwriter so agrees and if Holders holding a
majority of the Registrable Securities covered by such registration consent to
such inclusion. The inclusion of such shares by the Company or such other
holders shall be on the same terms as the registration of shares held by the
Initiating Holders. In the event that the underwriters exclude some of the
securities to be registered, the securities to be sold for the account of the
Company and any other holders shall be excluded in their entirety prior to the
exclusion of any Registrable Securities.
2.4 CANCELLATION OF REGISTRATION. A majority in interest of the Initiating
Holders shall have the right to cancel a proposed registration of Registrable
Securities pursuant to Article 2 when, in their discretion, market conditions
are so unfavorable as to be seriously
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detrimental to an offering pursuant to such registration. Such cancellation of a
registration shall not be counted as one of the two (2) such requested
registrations pursuant to Section 2.1(b)(iii) subject to the condition that the
Initiating Holders shall promptly reimburse the Company for all Registration
Expenses reasonably incurred by the Company in connection with the cancelled
registration, unless such registration was cancelled after having been deferred,
postponed or interrupted by the Company pursuant to Section 2.1(c) in which case
such expense reimbursement shall not be required.
ARTICLE 3
COMPANY REGISTRATION
3.1 NOTICE OF REGISTRATION TO HOLDERS. If at any time or from time to time
the Company shall determine to register any of its securities, either for its
own account or the account of a security holder or holders, other than (i) a
registration relating solely to employee benefit plans on Form S-8 (or any
successor form), (ii) a registration relating solely to a Commission Rule 145
transaction on Form S-4 (or any successor form) or (iii) a registration relating
solely to an exchange offer, the Company will:
(a) promptly give to each Holder written notice thereof, and
(b) include in such registration (and any related qualification under
blue sky laws or other compliance), and in any underwriting involved therein
(subject to Section 3.2), all the Registrable Securities specified in a written
request or requests, made within 30 days after receipt of such written notice
from the Company described in Section 3.1(a), by any Holder or Holders.
3.2 UNDERWRITING. If the registration of which the Company gives notice is
for a registered public offering involving an underwriting, the Company shall so
advise the Holders as a part of the written notice given pursuant to Section
3.1(a). In such event, the right of any Holder to registration pursuant to this
Article 3 shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable Securities in the
underwriting to the extent provided herein. All Holders proposing to distribute
their securities through such underwriting shall (together with the Company)
enter into an underwriting agreement in customary form with the managing
underwriter selected for such underwriting by the Company.
(a) Notwithstanding any other provision of this Article 3, if the
managing underwriter determines that marketing factors require a limitation of
the number of shares to be underwritten, the underwriter may exclude some or all
Registrable Securities from such registration and underwriting. The Company
shall so advise all Holders of Registrable Securities, and the number of shares
of Common Stock to be
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included in such registration shall be allocated as follows: first, for the
account of the Company, all shares of Common Stock proposed to be sold by the
Company; and second, for the account of the Holders and any other stockholder
participating in such registration, the number of shares of Common Stock
requested to be included in the registration by such Holders and other
stockholders, which shall be allocated on a pari passu basis in proportion, as
nearly as practicable, to the respective amounts of Common Stock that are
proposed to be offered and sold by such Holders or other stockholders at the
time of filing the registration statement. No Registrable Securities excluded
from the underwriting by reason of the underwriters' marketing limitation shall
be included in such registration.
(b) The Company shall so advise all Holders and the other holders
distributing their securities through such underwriting of any such limitation,
and the number of shares of Registrable Securities held by Holders that may be
included in the registration. If any Holder disapproves of the terms of any such
underwriting, such Holder may elect to withdraw therefrom by written notice to
the Company and the managing underwriter. Any securities excluded or withdrawn
from such underwriting shall be withdrawn from such registration, but the Holder
shall continue to be bound by Article 8 hereof.
(c) The Company shall have the right to terminate or withdraw any
registration initiated by it under this Article 3 prior to the effectiveness of
such registration, whether or not a Holder has elected to include Registrable
Securities in such registration.
ARTICLE 4
REGISTRATION ON FORM S-3
4.1 REQUEST FOR REGISTRATION.
(a) In addition to the rights set forth in Articles 2 and 3 hereof, if
a Holder or Holders request that the Company file a registration statement on
Form S-3 (or any successor form to Form S-3) for a public offering of shares of
Registrable Securities having an aggregate offering price which exceeds $500,000
(based on the then current market price) and the Company is a registrant
entitled to use Form S-3 (or any successor form to Form S-3) to register such
shares for such an offering, the Company shall use its best efforts to cause
such shares to be registered for the offering as soon as practicable on Form S-3
(or any such successor form to Form S-3).
(b) Notwithstanding the foregoing, the Company shall not be obligated
to take any action pursuant to this Article 4:
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(i) in any particular jurisdiction in which the Company would be
required to execute a general consent to service of process in effecting such
registration, qualification or compliance, unless the Company is already subject
to service in such jurisdiction and except as may be required by the Securities
Act;
(ii) if the Company, within ten (10) days of the receipt of the
request of the Holder or Holders, gives notice of its BONA FIDE intention to
effect the filing of a registration statement with the Commission within
forty-five (45) days of receipt of such request (other than with respect to a
registration statement relating to a Rule 145 transaction or an offering solely
to employees);
(iii) during the period starting with the date of filing of, and
ending on a date which is 180 days following the effective date of, a
registration statement described in (ii) above or filed pursuant to this Article
4 or Articles 2 or 3 hereof (or such shorter period as the managing underwriter
of the Company's most recent public offering may agree), provided that the
Company is actively employing in good faith all reasonable efforts to cause such
registration statement to become effective and provided, further, that no other
person or entity could require the Company to file a registration statement in
such period;
(c) Subject to the foregoing clauses (b)(i) through (iii), the Company
shall file a registration statement on Form S-3 covering the Registrable
Securities so requested to be registered as soon as practicable after receipt of
the request of the Holders; PROVIDED, HOWEVER, that if the Company shall furnish
to such Holders a certificate signed by the Chairman of the Board and the Chief
Executive Officer of the Company stating that in the good faith judgment of the
Board of Directors of the Company, it would be detrimental to the Company and
its stockholders for such registration statement to be filed, or, if already
filed (but prior to effectiveness of such registration statement), that the use
of the prospectus contained in such registration statement would be detrimental
to the Company and its stockholders, the Company shall have the right to defer,
postpone or interrupt such offering (including the use of any prospectus related
thereto) for a period of not more than 90 days after receipt of the request of
the Holders; PROVIDED, FURTHER, that the Company shall not be permitted to
exercise such deferral right under this Section 4.1(c) or Section 2.1(c) hereof
more than once in any 360-day period.
4.2 UNDERWRITING.
(a) The distribution of the Registrable Securities covered by the
registration on Form S-3 shall be effected by means of the method of
distribution selected by the Holders holding a majority of the Registrable
Securities covered by such registration. If such distribution is effected by
means of an underwriting, the right of any Holder to registration pursuant to
this Article 4 shall be conditioned upon such Holder's
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participation in such underwriting, if any, and the inclusion of such Holder's
Registrable Securities in such underwriting.
(b) If the distribution of the Registrable Securities pursuant to this
Section 4.2 is effected by means of an underwriting, the Company (together with
all Holders proposing to distribute their securities through such underwriting)
shall enter into an underwriting agreement in customary form with a managing
underwriter of nationally recognized standing selected for such underwriting by
a majority in interest of the Holders requesting registration on Form S-3 and
approved by the Company, which approval shall not be unreasonably withheld.
Notwithstanding any other provision of this Article 4, if the managing
underwriter advises the Holders in writing that marketing factors require a
limitation of the number of shares to be underwritten, then the underwriters may
exclude some or all of the shares requested to be included in such registration,
and the number of shares of Registrable Securities that may be included in the
registration and underwriting shall be allocated among all Holders thereof in
proportion, as nearly as practicable, to the respective amounts of Registrable
Securities held by such Holders at the time of filing the registration
statement. No Registrable Securities excluded from the underwriting by reason of
the managing underwriter's marketing limitation shall be included in such
registration.
(c) If the distribution of the Registrable Securities pursuant to this
Section 4.2 is effected by means of an underwriting and if any Holder of
Registrable Securities disapproves of the terms of the underwriting, such person
may elect to withdraw therefrom by written notice to the Company, the managing
underwriter and the Holders. The Registrable Securities and/or other securities
so withdrawn shall also be withdrawn from registration; PROVIDED, HOWEVER, that
if by the withdrawal of such Registrable Securities a greater number of
Registrable Securities held by other Holders may be included in such
registration (up to the maximum of any limitation imposed by the underwriters),
then the Company shall offer to all Holders who have included Registrable
Securities in the registration the right to include additional Registrable
Securities in the same proportion used in determining the underwriter limitation
in this Section 4.2.
4.3 INCLUSION OF SHARES BY COMPANY. If the distribution of the Registrable
Securities pursuant to this Article 4 is effected by means of an underwriting
and if the managing underwriter has not limited the number of Registrable
Securities to be underwritten, the Company may include securities for its own
account or for the account of others in such registration if the managing
underwriter so agrees and if the number of Registrable Securities held by
Holders requesting registration on Form S-3 which would otherwise have been
included in such registration and underwriting will not thereby be limited. The
inclusion of such shares shall be on the same terms as the registration of
shares held by the Holders requesting such registration. In the event that the
underwriters exclude some of the securities to be registered on Form S- 3, the
securities to be sold for
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the account of the Company and any other holders shall be excluded in their
entirety prior to the exclusion of any Registrable Securities.
ARTICLE 5
EXPENSES OF REGISTRATION
All Registration Expenses incurred in connection with any registration,
qualification or compliance pursuant to Article 2 and Article 3 hereof and all
S-3 Registration Expenses shall be borne by the Company. All Selling Expenses
relating to Registrable Securities registered by the Holders shall be borne by
the Holders of such Registrable Securities PRO RATA on the basis of the number
of shares so registered.
ARTICLE 6
REGISTRATION PROCEDURES
(a) In the case of each registration effected by the Company pursuant
to this Agreement, the Company will keep each Holder advised in writing as to
the initiation of each registration and as to the completion thereof. The
Company agrees to use its best efforts to effect or cause such registration to
permit the sale of the Registrable Securities covered thereby by the Holders
thereof in accordance with the intended method or methods of distribution
thereof described in such registration statement. In connection with any
registration of any Registrable Securities pursuant to Section 2, 3 or 4 hereof,
the Company shall, as soon as reasonably possible:
(i) use its best efforts to cause the registration statement
filed for purposes of such registration to become effective as soon as
reasonably possible thereafter;
(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus included therein
as may be necessary to effect and maintain the effectiveness of such
registration statement for a period of (a) 180 days or (b) such longer period as
may be required in order to complete the distribution of Registrable Securities
in connection with a registration effected pursuant to Section 4.1(a), and
furnish to the holders of the Registrable Securities covered thereby copies of
any such supplement or amendment prior to this being used and/or filed with the
Commission; and comply with the provisions of the Securities Act with respect to
the disposition of all the Registrable Securities to be included in such
registration statement;
(iii) provide (A) the Holders of the Registrable Securities to be
included in such registration statement, (B) the underwriters (which term, for
purposes of this
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Agreement, shall include a person deemed to be an underwriter within the meaning
of Section 2(11) of the Securities Act), if any, thereof, (C) the sales or
placement agent, if any, therefor, (D) one counsel for such underwriters or
agent, and (E) not more than one counsel for all the Holders of such Registrable
Securities, the opportunity to participate in the preparation of such
registration statement, each prospectus included therein or filed with the
Commission, and each amendment or supplement thereto;
(iv) for a reasonable period prior to the filing of such
registration statement, and throughout the period specified above, make
available for inspection by the parties referred to in Section 6(a)(iii) above
such financial and other information and books and records of the Company, and
cause the officers, directors, employees, counsel and independent certified
public accountants of the Company to respond to such inquiries, as shall be
reasonably necessary, in the judgment of the respective counsel referred to in
such Section 6(a)(iii), to conduct a reasonable investigation within the meaning
of the Securities Act; PROVIDED, HOWEVER, that each such party shall be required
to maintain in confidence and not disclose to any other person or entity any
information or records reasonably designated by the Company in writing as being
confidential, until such time as (a) such information becomes a matter of public
record (whether by virtue of its inclusion in such registration statement or
otherwise), or (b) such party shall be required so to disclose such information
pursuant to the subpoena or order of any court or other governmental agency or
body having jurisdiction over the matter, or (c) such information is required to
be set forth in such registration statement or the prospectus included therein
or in an amendment to such registration statement or an amendment or supplement
to such prospectus in order that such registration statement, prospectus,
amendment or supplement, as the case may be, does not include an untrue
statement of a material fact or omit to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading;
and provided, further, that the Company need not make such information
available, nor need it cause any officer, director or employee to respond to
such inquiry, unless each such Holder of Registrable Securities to be included
in a registration statement hereunder and such counsel, upon the Company's
request, execute and deliver to the Company an undertaking to substantially the
same effect contained in the second preceding proviso;
(v) promptly notify the Holders of Registrable Securities to be
included in a registration statement hereunder, the sales or placement agent, if
any, therefor and the managing underwriter of the securities being sold and
confirm such advice in writing, (A) when such registration statement or the
prospectus included therein or any prospectus amendment or supplement or
post-effective amendment has been filed, and, with respect to such registration
statement or any post-effective amendment, when the same has become effective,
(B) of any comments by the Commission and by the blue sky or securities
commissioner or regulator of any state with respect thereto or any request by
the Commission for amendments or supplements to such registration statement or
the
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prospectus or for additional information, (C) of the issuance by the Commission
of any stop order suspending the effectiveness of such registration statement or
the initiation of any proceedings for that purpose, (D) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of the Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, or (E) if it shall be the case,
at any time when a prospectus is required to be delivered under the Securities
Act, that such registration statement, prospectus, or any document incorporated
by reference, in any of the foregoing contains 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 light of the
circumstances then existing, in which case such Holders of Registrable
Securities included in such registration statement shall suspend sales of such
Registrable Securities until they have been advised by the Company that an
appropriate prospectus amendment or supplement or post-effective amendment has
been filed; PROVIDED, HOWEVER, that in such instance the Company shall use its
best efforts to promptly file such prospectus amendment or supplement or
post-effective amendment and the period during which such Holders shall be so
required to suspend sales hereunder shall not exceed thirty (30) days;
(vi) use its best efforts to obtain the withdrawal of any order
suspending the effectiveness of such registration statement or any
post-effective amendment thereto at the earliest practicable date;
(vii) if requested by any managing underwriter or underwriter,
any placement or sales agent or any Holder of Registrable Securities to be
included in a registration statement, promptly incorporate in a prospectus,
prospectus supplement or post-effective amendment such information as is
required by the applicable rules and regulations of the Commission and as such
managing underwriter or underwriters, such agent or such Holder may reasonably
specify should be included therein relating to the terms of the sale of the
Registrable Securities included thereunder, including, without limitation,
information with respect to the number of Registrable Securities being sold by
such Holder or agent or to such underwriters, the name and description of such
Holder, the offering price of such Registrable Securities and any discount,
commission or other compensation payable in respect thereof, the purchase price
being paid therefor by such underwriters and with respect to any other terms of
the offering of the Registrable Securities to be sold in such offering; and make
all required filings of such prospectus; prospectus supplement or post-
effective amendment promptly after notification of the matters to be
incorporated in such prospectus, prospectus supplement or post-effective
amendment;
(viii) furnish to each Holder of Registrable Securities to be
included in such registration statement hereunder, each placement or sales
agent, if any, therefor, each underwriter, if any, thereof and the counsel
referred to in Section 6(a)(iii) an
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executed copy of such registration statement, each such amendment and supplement
thereto (in each case excluding all exhibits and documents incorporated by
reference) and such number of copies of the registration statement (excluding
exhibits thereto and documents incorporated by reference therein unless
specifically so requested by such holder, agent or underwriter, as the case may
be) of the prospectus included in such registration statement (including each
preliminary prospectus and any summary prospectus), in conformity with the
requirements of the Securities Act, as such Holder, agent, if any, and
underwriter, if any, may reasonably request in order to facilitate the
disposition of the Registrable Securities owned by such Holder sold by such
agent or underwritten by such underwriter and to permit such Holder, agent and
underwriter to satisfy the prospectus delivery requirements of the Securities
Act; and the Company hereby consents to the use of such prospectus and any
amendment or supplement thereto by each such Holder and by any such agent and
underwriter, in each case in the form most recently provided to such party by
the Company, in connection with the offering and sale of the Registrable
Securities covered by the prospectus (including such preliminary and summary
prospectus) or any supplement or amendment thereto;
(ix) use its best efforts to (A) register or qualify the
Registrable Securities to be included in such registration statement under such
other securities laws or blue sky laws of such jurisdictions to be designated by
the Holders of a majority of such Registrable Securities participating in such
registration and each placement or sales agent, if any, therefor and
underwriter, if any, thereof, as any Holder and each underwriter, if any, of the
securities being sold shall reasonably request, (B) keep such registrations or
qualifications in effect and comply with such laws so as to permit the
continuance of offers, sales and dealings therein in such jurisdictions for so
long as may be necessary to enable such Holder, agent or underwriter to complete
its distribution of the Registrable Securities pursuant to such registration
statement and (C) take any and all such actions as may be reasonably necessary
or advisable to enable such Holder, agent, if any, and underwriter to consummate
the disposition in such jurisdictions of such Registrable Securities; provided,
however, that the Company shall not be required for any such purpose to (1)
qualify generally to do business as a foreign company or a broker-dealer in any
jurisdiction wherein it would not otherwise be required to qualify but for the
requirements of this Section 6(a)(ix), or (2) subject itself to taxation in any
such jurisdiction;
(x) cooperate with the Holders of the Registrable Securities to
be included in a registration statement hereunder and the managing underwriters
to facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold, which certificates shall be printed,
lithographed or engraved, or produced by any combination of such methods, on
steel engraved borders and which shall not bear any restrictive legends; and
enable such Registrable Securities to be in such denominations
-13-
and registered in such names as the managing underwriters may request at least
two business days prior to any sale of the Registrable Securities;
(xi) provide a CUSIP number for all Registrable Securities, not
later than the effective date of the registration statement;
(xii) enter into one or more underwriting agreements, engagement
letters, agency agreements, "best efforts" underwriting agreements or similar
agreements, as appropriate, and take such other actions in connection therewith
as the Holders of at least a majority of the Registrable Securities being sold
shall reasonably request in order to expedite or facilitate the disposition of
such Registrable Securities; PROVIDED, HOWEVER, that notwithstanding the
foregoing under no circumstances shall the Company be required to consent to a
"lock-up" or otherwise be subject to any restrictions on its ability to issue
shares of capital stock for a period in excess of ninety (90) days, and PROVIDED
FURTHER, HOWEVER, that the Company shall be permitted to issue Common Stock (a)
to any transferee that agrees to be bound to the same extent as the Company by
such "lock-up" provisions for the remainder of such 90-day period and (b) in
connection with the exercise of stock options pursuant to its stock option plans
or the exercise of previously outstanding stock warrants or other convertible
securities;
(xiii) whether or not an agreement of the type referred to in the
preceding subsection if entered into and whether or not any portion of the
offering contemplated by such registration statement is an underwritten offering
or is made though a placement or sales agent or any other entity, (A) make such
representations and warranties to the Holders of such Registrable Securities and
the placement or sales agent, if any, therefor and the underwriters, if any,
thereof in form, substance and scope as are customarily made in connection with
any offering of equity securities pursuant to any appropriate agreement and/or
to a registration statement filed on the form applicable to such registration
statement; (B) obtain an opinion of counsel to the Company in customary form and
covering such matters, of the type customarily covered by such an opinion, as
the managing underwriters, if any, and as the Holders of at least a majority of
such Registrable Securities may reasonably request, addressed to such Holders
and the placement or sales agent, if any, therefor and the underwriters, if any,
thereof and dated the effective date of such registration statement (and if such
registration statement contemplates an underwritten offering of a part or of all
of the Registrable Securities, dated the date of the closing under the
underwriting agreement relating thereto) (it being agreed that the matters to be
covered by such opinion shall include, without limitation, the due organization
of the Company, and its subsidiaries, if any; the qualification of the Company,
and its subsidiaries, if any, to transact business as foreign companies; the due
authorization, execution and delivery of this agreement and of any agreement of
the type referred to in Section 6(a)(xii) hereof; the due authorization, valid
issuance, and the fully paid status of the Common Stock of the Company; the
absence to the knowledge of such
-14-
counsel of material legal or governmental proceedings involving the Company; the
absence to the knowledge of such counsel of a breach by the Company or its
subsidiaries of, or a default under, agreements binding the Company or any
subsidiary; the absence to the knowledge of such counsel of governmental
approvals required to be obtained in connection with the registration statement,
the offering and sale of the Registrable Securities, this Agreement or any
agreement of the type referred to in Section 6(a)(xii) hereof; the compliance in
all material respects as to form of such registration statement and any
documents incorporated by reference therein with the requirements of the
Securities Act; the effectiveness of such registration statement under the
Securities Act; and, in the case of a distribution of Registrable Securities
which is effected by means of an underwriting by a nationally recognized
investment banking firm, counsel to the Company shall state that in the course
of the preparation of the registration statement and the prospectus, such
counsel has participated in conferences with officers and representatives of the
Company, representatives of the Company's independent public accountants, and
with the underwriter's representatives and counsel, at which conferences the
Company's counsel made inquiries of the Company's officers, representatives and
accountants and discussed the contents of the registration statement and the
prospectus and (without taking any further action to verify independently the
statements made in the registration statement and the prospectus and, except as
stated in the Company's counsel's opinion, without assuming responsibility for
the accuracy, completeness or fairness of such statements) nothing has come to
such counsel's attention that causes such counsel to believe that either the
registration statement or the prospectus contains any untrue statement of
material fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading (it being understood
that such counsel need not express any opinion with respect to the financial
statements, schedules and other financial and statistical data included in the
registration statement or the prospectus); (C) obtain a "cold" comfort letter or
letters from the independent certified public accountants of the Company
addressed to the Holders and the placement or sales agent, if any, therefor and
the underwriters, if any, thereof, dated (I) the effective date of such
registration statement and (II) the effective date of any prospectus supplement
to the prospectus included in such registration statement or post-effective
amendment to such registration statement which includes unaudited or audited
financial statements as of a date or for a period subsequent to that of the
latest such statements included in such prospectus (and, if such registration
statement contemplates an underwritten offering pursuant to any prospectus
supplement to the prospectus included in such registration statement or
post-effective amendment to such registration statement which includes unaudited
or audited financial statements as of a date or for a period subsequent to that
of the latest such statements included in such prospectus, dated the date of the
closing under the underwriting agreement relating thereto), such letter or
letters to be in customary form and covering such matters of the type
customarily covered by letters of such type; (D) deliver such documents and
certificates, including officers' certificates, as may be reasonably requested
by Holders of at least a majority of the Registrable Securities being
-15-
sold and the placement or sales agent, if any, therefor and the managing
underwriters, if any, thereof to evidence the accuracy of the representations
and warranties made pursuant to clause (A) above and the compliance with or
satisfaction of any agreements or conditions contained in the underwriting
agreement or other agreement entered into by the Company; and (E) undertake such
obligations relating to expense reimbursement, indemnification and contribution
as are provided in Sections 5 and 7 hereof;
(xiv) notify in writing each Holder of Registrable Securities of
any proposal by the Company to amend or waive any provision of this Agreement
and of any amendment or waiver effected pursuant thereto, each of which notices
shall contain the text of the amendment or waiver proposed or effected, as the
case may be;
(xv) engage to act on behalf of the Company with respect to the
Registrable Securities to be so registered a registrar and transfer agent having
such duties and responsibilities (including, without limitation, registration of
transfers and maintenance of stock registers) as are customarily discharged by
such an agent, and to enter into such agreements and to offer such indemnities
as are customary in respect thereof; and
(xvi) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make available to its
Holders, as soon as practicable, but in any event not later than 18 months after
the effective date of such registration statement, an earnings statement
covering a period of at least twelve months which shall satisfy the provisions
of Section 6(a) of the Securities Act (including, at the option of the Company,
pursuant to Rule 158 thereunder).
(b) In the event that the Company would be required,
pursuant to Section 6(a)(v)(E) above, to notify the Holders of Registrable
Securities included in a registration statement hereunder, the sales or
placement agent, if any, and the managing underwriters, if any, of the
securities being sold, the Company shall prepare and furnish to each such
Holder, to each such agent, if any, and to each underwriter, if any, a
reasonable number of copies of a prospectus supplement or amendment so that, as
thereafter delivered to the purchasers of Registrable Securities, such
prospectus shall not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing.
Each Holder agrees that upon receipt of any notice from the Company pursuant to
Section 6(a)(v)(E) hereof, such Holder shall forthwith discontinue the
distribution of Registrable Securities until such Holder shall have received
copies of such amended or supplemented registration statement or prospectus, and
if so directed by the Company, such Holder shall deliver to the Company (at the
Company's expense) all
-16-
copies, other than permanent file copies, then in such Holder's possession of
the prospectus covering such Registrable Securities at the time of receipt of
such notice.
(c) The Company may require each Holder of Registrable
Securities as to which any registration is being effected to furnish to the
Company such information regarding such Holder and such Holder's method of
distribution of such Registrable Securities as the Company may from time to time
reasonably request in writing but only to the extent that such information is
required in order to comply with the Securities Act. Each such Holder agrees to
notify the Company immediately of any inaccuracy or change in information
previously furnished by such Holder to the Company or of the occurrence of any
event in either case as a result of which any prospectus relating to such
registration contains or would contain an untrue statement of a material fact
regarding such Holder or the distribution of such Registrable Securities or
omits to state any material fact regarding such Holder or the distribution of
such Registrable Securities required to be stated therein or necessary to make
the statements therein not misleading in light of the circumstances then
existing, and promptly to furnish to the Company any additional information
required to correct and update any previously furnished information or required
so that such prospectus shall not contain, with respect to such Holder or the
distribution of such Registrable Securities, 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 light of the circumstances then
existing.
ARTICLE 7
INDEMNIFICATION
7.1 The Company shall indemnify each Holder, each of its officers and
directors and partners, and such Holder's legal counsel and independent
accountants, if any, and each person controlling any such persons within the
meaning of Section 15 of the Securities Act, with respect to which registration,
qualification or compliance has been effected pursuant to this Agreement, and
each underwriter, if any, and each person who controls any underwriter within
the meaning of Section 15 of the Securities Act, against all expenses, claims,
losses, damages and liabilities (or actions in respect thereof), including any
of the foregoing incurred in settlement of any litigation, commenced or
threatened, arising out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in any registration statement,
prospectus, offering circular or other document, or any amendment or supplement
thereof, incident to any such registration, qualification or compliance, or
based on 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, or any violation by the Company of any rule or regulation
promulgated under the Securities Act or any state securities laws applicable to
the Company and relating to action or inaction by the Company in connection with
any such registration, qualification or compliance, and will reimburse each such
Holder, each
-17-
of its officers and directors and partners and such Holder's legal counsel and
independent accountants, and each person controlling any such persons, each such
underwriter and each person who controls any such underwriter, for any legal and
any other expenses reasonably incurred in connection with investigating,
preparing or defending any such claim, loss, damage, liability or action;
PROVIDED, HOWEVER, that the Company will not be liable in any such case to the
extent that any such claim, loss, damage, liability or expense arises out of or
is based on any untrue statement or omission or alleged untrue statement or
omission, made in reliance upon and in conformity with written information
furnished to the Company by or on behalf of such Holder or underwriter and
expressly intended for use in such registration statement, prospectus, offering
circular or other document, or any amendment or supplement thereof.
7.2 Each Holder shall, if Registrable Securities held by such Holder are
included in the securities as to which such registration, qualification or
compliance is being effected, indemnify the Company, each of its directors and
officers and its legal counsel and independent accountants, each underwriter, if
any, of the Company's securities covered by such a registration statement, each
person who controls the Company or such underwriter within the meaning of
Section 15 of the Securities Act, and each other such Holder, each of its
officers, directors, partners, legal counsel and independent accountants, if
any, and each person controlling such Holder within the meaning of Section 15 of
the Securities Act, against all expenses, claims, losses, damages and
liabilities (or actions in respect thereof), including any of the foregoing
incurred in settlement of any litigation, commenced or threatened, arising out
of or based on any untrue statement (or alleged untrue statement) of a material
fact contained in any such registration statement, prospectus, offering circular
or other document, or any amendment or supplement thereto, incident to any such
registration, qualification or compliance or based on 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, and will reimburse the
Company, such Holders, such directors, officers, partners, legal counsel,
independent accountants, underwriters or control persons for any legal or any
other expenses reasonably incurred in connection with investigating, preparing
or defending any such claim, loss, damage, liability or action, in each case to
the extent, but only to the extent, that such untrue statement (or alleged
untrue statement) or omission (or alleged omission) is made in such registration
statement, prospectus, offering circular, other document or amendment or
supplement in reliance upon and in conformity with written information furnished
to the Company by or on behalf of such Holder and expressly intended for use in
such registration statement, prospectus, offering circular or other document, or
any amendment or supplement thereof; PROVIDED, HOWEVER, that the obligations of
each Holder hereunder shall be limited to an amount equal to the proceeds to
such Holder of Registrable Securities sold as contemplated herein.
-18-
7.3 Each party entitled to indemnification under this Section 7 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not unreasonably be
withheld). The Indemnified Party may participate in such defense at such party's
expense; PROVIDED, HOWEVER, that the Indemnifying Party shall bear the expense
of such defense of the Indemnified Party if representation of both parties by
the same counsel would be inappropriate due to actual or potential conflicts of
interest. The failure of any Indemnified Party to give notice as provided herein
shall not relieve the Indemnifying Party of its obligations under this
Agreement, unless and to the extent such failure is prejudicial to the ability
of the Indemnifying Party to defend the action. No Indemnifying Party, in the
defense of any such claim or litigation, shall, except with the consent of each
Indemnified Party, consent to entry of any judgment or enter into any settlement
which does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such Indemnified Party of a release from all liability
in respect of such claim or litigation.
7.4 If the indemnification provided for in Section 7.1 or 7.2 is
unavailable or insufficient to hold harmless an Indemnified Party, then each
Indemnifying Party shall contribute to the amount paid or payable by such
Indemnified Party as a result of the expenses, claims, losses, damages or
liabilities (or actions or proceedings in respect thereof) referred to in
Section 7.1 or 7.2, in such proportion as is appropriate to reflect the relative
fault of the Company on the one hand and the sellers of Registrable Securities
on the other hand in connection with statements or omissions which resulted in
such losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) or expenses, as well as any other relevant equitable
considerations. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the sellers of Registrable Securities and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such untrue statement or omission. The Company and the
Holders agree that it would not be just and equitable if contributions pursuant
to this Section 7.4 were to be determined by PRO RATA allocation (even if all
Sellers of Registrable Securities 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 first sentence of this Section 7.4.
The amount paid by an Indemnified Party as a result of the expenses, claims,
losses, damages or liabilities (or actions or proceedings in respect thereof)
referred to in the first sentence of this Section 7.4 shall be deemed to include
any legal or other expenses reasonably incurred by such Indemnified Party in
connection with
-19-
investigating or defending any claim, action or proceeding which is the subject
of this Section 7.4. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of sellers of Registrable Securities to
contribute pursuant to this Section 7.4 shall be several in proportion to the
respective amount of Registrable Securities sold by them pursuant to a
registration statement.
ARTICLE 8
RULE 144 REPORTING
With a view to making available the benefits of certain rules and
regulations of the Commission which may at any time permit the sale of
securities of the Company to the public without registration, after such time as
a public market exists for the Common Stock of the Company, the Company agrees
to:
8.1 Make and keep public information available as those terms are
understood and defined in Rule 144 under the Securities Act, at all times after
the effective date of the first registration under the Securities Act filed by
the Company for an offering of its securities to the general public; and
8.2 Use its best efforts to then file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Securities Exchange Act of 1934, as amended (the
"Exchange Act"); and
8.3 So long as a Holder owns any Registrable Securities, furnish to the
Holder forthwith upon request a written statement by the Company as to its
compliance with the reporting requirements of said Rule 144, and of the
Securities Act and the Exchange Act, a copy of the most recent annual or
quarterly report of the Company, and such other reports and documents of the
Company as a Holder may reasonably request in availing itself of any rule or
regulation of the Commission allowing a Holder to sell any such securities
without registration.
ARTICLE 9
TRANSFER OF REGISTRATION RIGHTS
The rights to cause the Company to register Registrable Securities granted
Holders under Articles 2, 3 and 4 hereof may be assigned in connection with any
permitted transfer or assignment of the Holder's Registrable Securities. All
transferees and assignees of the rights to cause the Company to register
Registrable Securities granted Holders under Articles 2, 3 and 4 hereof, as a
condition to the transfer of such
-20-
rights, shall agree in writing to be bound by the agreements set forth herein.
ARTICLE 10
LIMITATIONS ON REGISTRATION RIGHTS
GRANTED TO OTHER SECURITIES
The parties hereto agree that additional holders may, with the consent of
the Company and the Holders of a majority of the Registrable Securities then
outstanding, be added as parties to this Agreement with respect to any or all
securities of the Company held by them. Any additional parties shall execute a
counterpart of this Agreement, and upon execution by such additional parties and
by the Company, shall be considered Holders for purposes of this Agreement, and
shall be added to the Schedule of Registration Rights Holders.
ARTICLE 11
MISCELLANEOUS
11.1 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE
AND TO BE PERFORMED ENTIRELY WITHIN THE STATE WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW.
11.2 SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided herein,
the provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.
11.3 ENTIRE AGREEMENT. This Agreement constitutes the full and entire
understanding and agreement between the parties with regard to the subject
matter hereof.
11.4 NOTICES. All notices, requests, consents, and other communications
hereunder shall be in writing and shall be deemed effectively given and received
upon delivery in person, or one business day after delivery by national
overnight courier service or by telecopier transmission with acknowledgment of
transmission receipt, or three business days after deposit via certified or
registered mail, return receipt requested, in each case addressed as follows:
-21-
if to the Company:
Arch Communications Group, Inc.
0000 Xxxx Xxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: J. Xxx Xxxxxx
with a copy to:
Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxxx, Esq.
if to the Investors:
c/o Sandler Capital Management
000 Xxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with copy to:
Dow, Xxxxxx & Xxxxxxxxx, PLLC
0000 Xxx Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxx X. X'Xxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or, in any such case, at such other address or addresses as shall have been
furnished in writing by such party to the others.
11.5 SEVERABILITY. In case any provision of this Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions of this Agreement shall not in any way be affected or
impaired thereby.
-22-
11.6 TITLES AND SUBTITLES. The titles of the sections and subsections of
this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
11.7 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
constitute one instrument.
11.8 "MARKET STAND-OFF" AGREEMENT. Each Holder agrees, if requested by the
Company and an underwriter of Common Stock (or other securities) of the Company,
not to sell or otherwise transfer or dispose of, whether in privately negotiated
or open market transactions, any Common Stock (or other securities) of the
Company held by such Holder during the ninety (90) day period following the
effective date of a registration statement of the Company filed under the
Securities Act for any underwritten registered public offering of the Company,
without the prior consent of such underwriter, PROVIDED, HOWEVER, that all
Holders, officers, directors of the Company and all other holders and
optionholders of at least 1% of the Company's voting securities on an
as-converted basis enter into similar agreements.
Such agreement shall be in writing in a form satisfactory to the Company
and such underwriter. The Company may impose stop-transfer instructions with
respect to the shares (or securities) subject to the foregoing restriction until
the end of said ninety (90) day period.
-23-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
COMPANY:
ARCH COMMUNICATIONS GROUP, INC.
By: /S/ X. X. XXXXX, XX.
----------------------------
Name: X.X. Xxxxx, Xx.
Title: Chairman of the Board
and Chief Executive Officer
INVESTORS:
SANDLER CAPITAL PARTNERS IV, L.P.
By: Sandler Investment Partners, L.P., General Partner
By: Sandler Capital Management, General Partner
By: MJDM Corp., a General Partner
By: /S/ XXXXXX X. XXXXXXXXX
--------------------------
Xxxxxx X. Xxxxxxxxx
President
SANDLER CAPITAL PARTNERS IV, FTE, L.P.
By: Sandler Investment Partners, L.P., General Partner
By: Sandler Capital Management, General Partner
By: MJDM Corp., a General Partner
By: /S/ XXXXXX X. XXXXXXXXX
---------------------------
Xxxxxx X. Xxxxxxxxx
President
/S/ XXXXXX XXXXXXX
------------------------
XXXXXX XXXXXXX
/S/ XXXX XXXXXXXXX
------------------------
XXXX XXXXXXXXX
/S/ XXXXXXX X. XXXXXXX
------------------------
XXXXXXX X. XXXXXXX
/S/ XXXXXX XXXXXXX
------------------------
XXXXXX XXXXXXX
SOUTH FORK PARTNERS
By: /S/ XXXXXXX XXXXX XX.
-----------------------------
Xxxxxxx Xxxxx, Xx.
Xxxxx Capital Management LLC
General Partner of South Fork
Partners
THE GEORGICA INTERNATIONAL FUND
LIMITED
By: /S/ XXXXXXX XXXXX XX.
-----------------------------
Xxxxxxx Xxxxx, Xx.
Georgica Advisors LLC
Investment Advisor to The
Georgica International Fund
Limited
ASPEN PARTNERS
By: /S/ XXXXX XXXXX
-----------------------------
Xxxxx Xxxxx
Xxxxx Capital Management LLC
General Partner of Aspen
Partners
CONSOLIDATED PRESS INTERNATIONAL
LIMITED
By: /S/ XXXXX XXXXX
-----------------------------
Xxxxx Xxxxx
Georgica Advisors LLC
Investment Advisor to
Consolidated Press
International Limited
EXHIBIT B
SCHEDULE OF REGISTRATION RIGHTS HOLDERS
1. Sandler Capital Partners IV, L.P.
2. Sandler Capital Partners IV FTE, L.P.
3. Xxxxxx Xxxxxxx
4. Xxxx Xxxxxxxxx
5. Xxxxxxx X. Xxxxxxx
6. Xxxxxx Xxxxxxx
7. South Fork Partners
8. The Georgica International Fund Limited
9. Aspen Partners
10. Consolidated Press International Limited
