REGISTRATION RIGHTS AGREEMENT
between
XXXXXX COMMUNICATIONS CORPORATION
and
BANK OF AMERICA, N.A.
dated as of
March 15, 2002
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of March 15, 2002 (this
"Agreement"), by and among Xxxxxx Communications Corporation, an Oklahoma
corporation (the "Company"), and Bank of America, N.A. ("BofA").
RECITALS
WHEREAS:
(A) Xxxxxx XX Limited Partnership ("Xxxxxx Partnership") and BofA have
entered into the Second Amended, Restated, and Consolidated Credit Agreement
dated as of the date hereof (the "Amended Credit Agreement").
(B) The loans made by BofA to Xxxxxx Partnership pursuant to the Amended
Credit Agreement are secured by Common Stock of the Company owned by the Xxxxxx
Partnership (the "Collateral Shares").
(C) Contemporaneously with the execution of the Amended Credit Agreement,
Xxxxxx Partnership is granting BofA an option (the "Initial Option") exercisable
into shares of Class A Common Stock of the Company (which shares will have been
contemporaneously converted from Class B Common Stock held by Xxxxxx
Partnership).
(D) Pursuant to the Amended Credit Agreement, Xxxxxx Partnership may be
required to grant BofA additional options (the "Additional Options," and
together with the Initial Option, the "Options") in the future, exercisable into
shares of class A common Stock of the Company.
(E) The Company will benefit from Xxxxxx Partnership and BofA entering into
the Amended Credit Agreement.
(F) The Company desires to grant to BofA certain registration rights for
Class A Common Stock of the Company that BofA may acquire pursuant to the
exercise of the Options, through foreclosure on the Collateral Shares or
otherwise.
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties, covenants, conditions and agreements hereinafter
set forth, and for other good and valid consideration, the parties agree as
follows:
ARTICLE 1.
1.1 Certain Defined Terms. As used herein, the following terms have the
following meanings (unless indicated otherwise, all Section and Article
references are to Sections and Articles in this Agreement, and all Schedule and
Exhibit references are to Schedules and Exhibits to this Agreement):
"AAA Rules" shall have the meaning set forth in Section 5.6(b).
"Additional Options" shall have the meaning given such term in Recital (D).
"Advice" shall have the meaning set forth in Section 2.5(b).
"Affiliate" shall have the meaning given such term in Rule 501(b)
promulgated under the Securities Act.
"Amended Credit Agreement" shall have the meaning given such term in
Recital (A) hereto.
"Arbitration Notice" shall have the meaning set forth in Section 5.6(b).
"Beneficially Own" shall have the meaning set forth in Rule 13d-3 of the
Exchange Act (and correlative terms such as "Beneficial Ownership" shall have
correlative meanings).
"Board of Directors" shall mean the Board of Directors of the Company, as
duly constituted in accordance with this Agreement.
"Class A Common Stock" shall mean the Class A common stock, par value $0.01
per share, of the Company.
"Class B Common Stock" shall mean the Class B common stock, par value $0.01
per share, of the Company.
"Collateral Shares" shall have the meaning given such term in Recital (B).
"Commission" shall mean the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
"Common Stock" shall collectively mean the Class A Common Stock and the
Class B Common Stock.
"Company" shall have the meaning set forth in the preamble.
"Company Stock" shall mean any shares of capital stock of the Company.
"Control" (including the terms "controlling," "controlled by" and "under
common control with") shall mean the possession, direct or indirect, of the
power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of Voting Securities, by contract, or
otherwise.
"Dispute" shall have the meaning set forth in Section 5.6.
"Xxxxxx Partnership" shall have the meaning specified in Recital (A)
hereto.
"Equity Securities" shall mean, with respect to any Person, any shares of
stock of, or partnership interest or other ownership or beneficial interest in,
such Person, in each case outstanding at any time.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"FCC" shall mean the Federal Communications Commission or similar
regulatory authority established in replacement thereof.
"GAAP" shall mean U.S. generally accepted accounting principles,
consistently applied.
"Governmental Authority" shall mean a federal, state or local court,
legislature, governmental agency, commission or regulatory or administrative
authority or instrumentality.
"Indemnified Party" shall have the meaning set forth in Section 2.6(e).
"Indemnified Stockholder" shall have the meaning set forth in Section
2.6(a).
"Indemnifying Party" shall have the meaning set forth in Section 2.6(e).
"Initial Option" shall have the meaning given such term in Recital (C).
"Law" shall mean applicable common law and any statute, ordinance, code or
other law, rule, permit, permit condition, regulation, order, decree, technical
or other standard, requirement or procedure enacted, adopted, promulgated,
applied or followed by any Governmental Authority.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"NASDAQ" shall mean the National Association of Securities Dealers'
Automated Quotation System.
"Options" shall have the meaning given such term in Recital (D).
"Person" shall mean an individual, corporation, partnership, limited
liability company, association, joint stock company, Governmental Authority,
business trust or other legal entity.
"Prior Investors" shall mean those Persons who have been granted
registration rights by the company prior to the date hereof.
"Prospectus" shall have the meaning set forth in Section 2.4(a).
"Registrable Securities" shall mean: (a) the Class A Common Stock now owned
or hereafter acquired by BofA, whether by foreclosure of its pledge and security
interest on the Collateral Shares, exercise of the Options or otherwise, (b) all
Class A Common Stock issued or issuable to BofA upon conversion or exchange of
any Equity Security or exercise of any right to acquire any Equity Security and
(c) all Class A Common Stock issued or issuable upon any stock split, stock
dividend or other similar distribution or event with respect to Class A Common
Stock referred to in clauses (a) and (b) provided, in each case shares of such
Class A Common Stock shall cease to be Registrable Securities at such time as
such Class A Common Stock (i) has been effectively registered under the
Securities Act and disposed of in accordance with the Registration Statement
covering it, (ii) has been sold to the public pursuant to Rule 144 (or any
similar provision then in force), (iii) shall otherwise have been transferred, a
new certificate evidencing such Class A Common Stock without a legend
restricting further transfer shall have been delivered by the Company, and
subsequent public distribution of such Class A Common Stock shall neither
require registration under the Securities Act nor qualification (or any similar
filing) under any state securities or "blue sky" law then in effect, or (iv)
shall have ceased to be issued and outstanding.
"Registration" shall have the meaning set forth in Section 2.4.
"Registration Statement" shall have the meaning set forth in Section
2.4(a).
"Rule 144" shall mean Rule 144 promulgated under the Securities Act (or any
similar rule as may be in effect from time to time).
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Subsidiary" shall mean, with respect to any Person, any corporation,
partnership, limited liability company, association or other business entity of
which (i) if a corporation, a majority of the total voting power of shares of
stock entitled (without regard to the occurrence of any contingency) to vote in
the election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof, or (ii) if a partnership,
limited liability company, association or other business entity, a majority of
the partnership, limited liability company or other similar ownership interest
thereof is at the time owned or controlled, directly or indirectly, by any
Person or one or more Subsidiaries of that Person or a combination thereof. For
purposes hereof, a Person or Persons shall be deemed to have a majority
ownership interest in a partnership, limited liability company, association, or
other business entity if such Person or Persons shall be allocated a majority of
partnership, limited liability company, association or other business entity
gains or losses or shall be or control the managing general partner or board of
managers of such partnership, limited liability company, association or other
business entity.
"Voting Securities" shall mean Equity Securities (or other voting
interests) in a Person having the right to vote generally in the election of the
directors (or persons performing equivalent functions) of such Person.
1.2 Other Definitional Provisions. Each definition or pronoun herein shall
be deemed to refer to the singular, plural, masculine, feminine or neuter as the
context requires. Words such as "herein," "hereinafter," "hereof," "hereto" and
"hereunder" refer to this Agreement as a whole, unless the context otherwise
requires. References to a document or agreement shall be to such document or
agreement, as the same may be amended, supplemented or otherwise modified from
time to time.
ARTICLE 2.
Registration Rights
2.1 Demand Registration Rights.
(a) Right to Demand Registration. Subject to Sections 2.1(e) and
2.1(f) below, BofA (or its permitted assignees, if any, in the aggregate) shall
have the right to make two (2) requests to the Company for registration with the
Commission, under and in accordance with the provisions of the Securities Act,
of all or part of its Registrable Securities pursuant to an underwritten
offering (a "Demand Registration"), which request shall be in writing and shall
specify the number of Registrable Securities proposed to be sold in the
offering; provided, however, that the Company need not effect a Demand
Registration unless the sale of the Registrable Securities proposed to be sold
by BofA shall reasonably be expected to l result in aggregate gross proceeds of
at least $20 million and provided, further, that the Company is not obligated to
participate in any "roadshow" or exceptional marketing, diligence or other
efforts in connection with such offering unless the sale of Registrable
Securities proposed to be sold by BofA shall reasonably be expected to result in
aggregate gross proceeds of at least $60 million. A Demand Registration shall
not be deemed a Demand Registration hereunder until such Demand Registration has
been declared effective by the Commission (without interference by any stop
order, injunction or other order or requirement of the Commission or other
governmental agency, for any reason), and maintained continuously effective for
a period of at least six (6) months or such shorter period when all Registrable
Securities included therein have been sold in accordance with such Demand
Registration. BofA may make a written request for a Demand Registration in
accordance with the foregoing in respect of Registrable Securities that it will
acquire upon exercise of Options and that will be sold upon the effectiveness of
the Registration Statement requested pursuant to this Section 2.1(a).
(b) S-3 Registration. In addition to the rights set forth in the
preceding paragraph, BofA shall have the right to request that the Company file
registration statements on Form S-3 (or any successor form to Form S-3) for an
offering of Registrable Securities (an "S-3 Registration"); provided, however,
that the number of shares to be included in any such S-3 Registration Statement
shall not be less that 4,000,000; provided, further, that the Company shall not
be obligated to participate in any "road-show" or exceptional marketing,
diligence or other efforts in connection with such offering and, provided,
further, that BofA shall only be permitted to make sales of Registrable
Securities under such registration statement during (A) the twenty business days
beginning on the second business day following the date on which the Company
files a Quarterly Report on Form 10-Q or its Annual Report on Form 10-K ("Normal
Selling Periods") and (B) any period during which a registration statement
covering sales by other securityholders of the Company is effective and such
other securityholders are making sales thereunder or are entitled to make sales
thereunder without obtaining the prior consent of the Company ("Additional
Selling Periods") and together with Normal Selling Periods, "Selling Periods").
The Company shall not be required to monitor or advise BofA of the existence of
Additional Selling Periods, provided that the Company shall promptly respond to
any inquiry as to whether an Additional Selling Period is in effect as of the
date of such inquiry and the following ten business days and, if no Additional
Selling Period is in effect on the date of such inquiry, but an Additional
Selling Period becomes effective within ten business days following the date of
such inquiry, the Company shall promptly notify BofA thereof. The additional
demand registrations provided by this Section 2.1(b) may be
"shelf-registrations" under Rule 415 of the Securities Act which shelf
registrations would be kept effective for an aggregate period of one year (each
a "Shelf Registration"), unless otherwise requested by BofA. The aggregate one
year effective period for a Shelf Registration shall not run during any period
during which BofA is subject to a lock-up or market standoff agreement for the
benefit of the Company. The procedures and limitations for effecting the
registration of the Registrable Securities on Form S-3 (or any successor form to
Form S-3), including the procedure used for any underwriting limitation, if
sales of Registrable Securities under Shelf Registrations are pursuant to an
underwritten offering, shall be as set forth in this Article 2 with respect to
Demand Registrations, and Shelf Registrations will be considered Demand
Registrations for such purposes unless otherwise specifically provided.
(c) Priority on Demand Registration. If the managing underwriter or
underwriters advise the Company and the holders of securities proposed to be
registered in writing that in its or their opinion the number of securities
proposed to be sold in any Demand Registration under this Section 2.1 exceeds
the number that can be sold in such offering without (A) creating a substantial
risk that the proceeds or price per share that will be derived from such Demand
Registration will be materially reduced or that the number of securities to be
registered is too large a number to be reasonably sold, or (B) materially and
adversely affecting such Demand Registration in any other respect, the Company
will not allow any securities other than Registrable Securities to be included
in such Demand Registration unless all Registrable Securities requested to be
included shall have been included therein, and then only to the extent
recommended by the managing underwriter or determined by the Company after
consultation with an investment banker of nationally recognized standing
(notification of which number shall be given by the Company to the holders of
Registrable Securities).
(d) Selection of Underwriters. In the event an offering of such
Registrable Securities pursuant to such Demand Registration (other than an S-3
Registration) shall be in the form of an underwritten offering, Banc America
Securities LLC shall have the right, at its option, to serve as the sole and
exclusive book running manager of such offering. If Banc of America Securities
LLC does not act as book running manager, BofA will select a managing
underwriter or underwriters of recognized national standing to administer the
offering, which managing underwriter or underwriters shall be reasonably
acceptable to the Company.
(e) Right to Preempt. Notwithstanding any other provision of this
Agreement to the contrary, the Company shall have the right to preempt any
Demand Registration (including an S-3 Registration) upon notice to BofA stating
that the Company intends to file a registration of securities for its own
account within the succeeding thirty (30) days, in which case the Company shall
be under no obligation to effect such Demand Registration at that time. The
Company shall have the right to preempt a Demand Registration not more than once
in any twelve-month period. A Demand Registration that is preempted pursuant to
this Section 2.1(e) shall not count as a Demand Registration for purposes of
Section 2.1(a).
(f) Right to Defer. Notwithstanding anything set forth in this
Agreement to the contrary, no more frequently than once in any calendar year, in
addition to its rights under Section 2.1(e) above, the Company shall have the
right to delay the filing of a Registration Statement pursuant to this Section
2.1 and to suspend the effectiveness of any such Registration Statement for a
reasonable period of time (not exceeding ninety (90) days) if the Company
furnishes to BofA a certificate signed by the Chairman of the Board or the
President of the Company stating that the Company has determined in good faith
that effecting such Registration at such time would adversely affect a material
financing, acquisition, disposition of assets or stock, merger or other
comparable transaction or would require the Company to make public disclosure of
information the public disclosure of which would have a material adverse effect
upon the Company.
(g) Termination. The rights granted pursuant to this Section 2.1 shall
terminate as of the date that is 180 days after the termination of the last to
expire of the options granted to BofA pursuant to the Amended Credit Agreement.
In addition, no Shelf Registration shall be required to be filed or to be kept
effective at any time after February 15, 2005.
2.2 Piggyback Registration Rights.
(a) Right to Piggyback. If the Company for itself or any of its
securityholders proposes to register any shares of Common Stock (or securities
convertible into or exchangeable for Common Stock) with the Commission under the
Securities Act (other than a registration on Form S-4 or Form S-8, or any
successor forms), and the registration form to be used may be used for the
registration of the Registrable Securities (a "Piggyback Registration"), the
Company will give written notice (a "Piggyback Notice") to BofA, (i) at least
thirty (30) days prior to the anticipated filing date in the case of a
registration on behalf of the Company, or (ii) within five (5) days after the
Company receives any notice from any securityholder of a requested registration
on their behalf, of its intention to effect such a Piggyback Registration, which
notice will specify the proposed offering price (if determined at that time),
the kind and number of securities proposed to be registered and the distribution
arrangements, and will include in such Piggyback Registration, subject to
Section 2.2(b) below, all Registrable Securities with respect to which the
Company has received a written request from BofA (which request has not been
withdrawn) for inclusion therein within ten (10) days after the last date such
Piggyback Notice was deemed to have been given pursuant to Section 2.2(a). If at
any time after giving the Piggyback Notice and prior to the effective date of
the Registration Statement filed in connection with such Piggyback Registration,
the Company determines for any reason not to register or to delay the Piggyback
Registration, the Company may, at its election, give written notice of such
determination to BofA and (A) in the case of a determination not to register,
shall be relieved of its obligation to register any Registrable Securities in
connection with such Registration, and (B) in the case of a determination to
delay registering, shall be permitted to delay registering any Registrable
Securities for the same period as the delay in registering such other
securities.
(b) Priority on Piggyback Registration. If the managing underwriter or
underwriters advise the Company and the holders of any securities to be
registered that in its or their opinion the number of Registrable Securities
proposed to be sold in any Piggyback Registration under this Section 2.2 and any
other securities of the Company requested or proposed to be included in such
Registration exceeds the number that can be sold in such offering without (A)
creating a substantial risk that the proceeds or price per share that will be
derived from such Piggyback Registration will be materially reduced or that the
number of securities to be registered is too large a number to be reasonably
sold, or (B) materially and adversely affecting such Piggyback Registration in
any other respect, the Company will include in such Piggyback Registration the
aggregate number of Registrable Securities recommended by the managing
underwriter on the following basis:
The Company will not allow any Registrable Securities or any
securities of other securityholders to be included in such Piggyback
Registration unless all securities of the Company, the Prior Investors (other
than the Xxxxxx Partnership) and any other Person who has the right to and has
demanded registration which has resulted in the Piggyback Registration shall
have been included therein, and then only to the extent recommended by the
managing underwriter or determined by the Company after consultation with an
investment banker of nationally recognized standing (notification of which
number shall be given by the Company to the holders of Registrable Securities).
2.3 Selection of Underwriters. Except as may be set forth in Section 2.1(d)
above or the Stockholders Agreement, the Company (by action of the Board of
Directors) will select the managing underwriter or underwriters to administer
offerings of its Company Stock, which managing underwriter or underwriters will
be of nationally recognized standing.
2.4 Registration Procedures. With respect to any Demand Registration, S-3
Registration or Piggyback Registration (each, a "Registration"), the Company
shall, subject to Sections 2.1(a) and 2.1(c) and Section 2.2(a), as
expeditiously as practicable:
(a) prepare and file with the Commission, as promptly as reasonably
practicable (but in no event more than forty-five (45) days) after the latter of
(i) the receipt of the Registration requests under Sections 2.1 or 2.2 or (ii)
the expiration of the applicable notice periods, if any, under registration
obligations of the Company to other Persons, a registration statement or
registration statements (each, a "Registration Statement") relating to the
applicable Registration on any appropriate form under the Securities Act, which
form shall be available for the sale of the Registrable Securities in accordance
with the intended method or methods of distribution thereof; cooperate and
assist in any filings required to be made with the NASD; and use its
commercially reasonable efforts to cause such Registration Statement to become
and (to the extent provided herein) remain effective; provided, however, that
before filing a Registration Statement or prospectus related thereto
("Prospectus") or any amendment or supplement thereto, the Company shall furnish
to the holders of the Registrable Securities covered by such Registration
Statement a copy of the information to be included therein which relates
specifically to such holder (i.e., its name, address and number of Registrable
Securities proposed to be sold) and its intended method of distribution.
(b) prepare and file with the Commission such amendments and
supplements to the Registration Statement as may be necessary to keep each
Registration Statement effective for six (6) months (twelve (12) months or such
longer period as is necessary to comply with the provisions of Section 2.1(b) in
the case of any Shelf Registration requested by BofA pursuant to this Article 2)
or such shorter period that will terminate when all Registrable Securities
covered by such Registration Statement have been sold; cause each Prospectus to
be supplemented by any required Prospectus supplement, and as so supplemented to
be filed pursuant to Rule 424 under the Securities Act; and comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement during the applicable period
in accordance with the intended method or methods of distribution by the sellers
thereof set forth in such Registration Statement or supplement to the
Prospectus;
(c) promptly notify the selling holders of Registrable Securities or
other securities and the managing underwriters, if any (and, if requested by any
such Person or entity, confirm such advice in writing), (A) when the Prospectus
or any Prospectus supplement or post-effective amendment has been filed, and,
with respect to the Registration Statement or any post-effective amendment, when
the same has become effective; (B) of any request by the Commission for
amendments or supplements to the Registration Statement or the Prospectus or for
additional information; (C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose; (D) if at any time the representations and
warranties of the Company contemplated by subsection 2.4(m) cease to be true and
correct; (E) of the receipt by the Company of any notification with respect to
the suspension of the qualification of the Registrable Securities for sale under
the securities or blue sky laws of any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and (F) of the happening of any
event which makes any statement made in the Registration Statement, the
Prospectus or any document incorporated therein by reference untrue or which
requires the making of any changes in the Registration Statement, the Prospectus
or any document incorporated therein by reference in order to make the
statements therein not misleading;
(d) use its commercially reasonable efforts to obtain the withdrawal
of any order suspending the effectiveness of (A) the Registration Statement, or
(B) the qualification of the Registrable Securities for sale under the
securities or blue sky laws of any jurisdiction at the earliest possible time;
(e) if requested by the managing underwriter or underwriters or a
holder of Registrable Securities being sold in connection with an underwritten
offering, promptly incorporate in a Prospectus supplement or post-effective
amendment such information as the managing underwriters and the holders of a
majority of the Registrable Securities being sold agree should be included
therein relating to the plan of distribution with respect to such Registrable
Securities, including, without limitation, information with respect to the
number of Registrable Securities being sold to such underwriters, the purchase
price being paid therefor by such underwriters and any other terms of the
underwritten (or best efforts underwritten) offering of the Registrable
Securities to be sold in such offering; and make all required filings of such
Prospectus supplement or post-effective amendment as soon as notified of the
matters to be incorporated in such Prospectus supplement or post-effective
amendment;
(f) furnish to each selling securityholder and each managing
underwriter (if any), without charge, at least one signed copy of the
Registration Statement and any amendment thereto, including financial statements
and schedules, all documents incorporated therein by reference and all exhibits
(including those incorporated by reference);
(g) deliver to each selling securityholder and the underwriters, if
any, without charge, as many copies of the Prospectus (including each
preliminary prospectus) and any amendment or supplement thereto as such selling
securityholder or underwriters (if any) may reasonably request in order to
facilitate the public sale or other disposition of the securities owned by such
selling holder;
(h) prior to any public offering of Registrable Securities, (i) use
its reasonable best efforts to register or qualify or cooperate with BofA and
any other selling securityholders, the underwriters, if any, and their
respective counsel in connection with the Registration or qualification of such
Registrable Securities for offer and sale under the securities or "blue sky"
laws of such jurisdictions in the United States as any seller or underwriter (if
any) reasonably requests in writing; (ii) use its reasonable best efforts to
obtain all appropriate registrations, permits and consents required in
connection therewith; (iii) and do any and all other acts or things reasonably
necessary or advisable to enable the disposition in such jurisdictions of the
Registrable Securities covered by the Registration Statement; provided, however,
that the Company will not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified or to take any action that would
subject it to taxation or general service of process in any such jurisdiction
where it is not then so subject;
(i) cooperate with the selling securityholders and the managing
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold and not bearing any
restrictive legends and to be in such denominations and registered in such names
as the managing underwriters (if any) may request at least two (2) business days
prior to any sale of Registrable Securities;
(j) use its reasonable best efforts to cooperate with any selling
security holder to cause the Registrable Securities covered by the applicable
Registration Statement to be registered with, or approved by, such other
governmental agencies or authorities in the United States as may be necessary to
enable the seller or sellers thereof or the underwriters (if any) to consummate
the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by subsection
2.4(c)(B), (C) and (F) above, promptly prepare a supplement or post-effective
amendment to the Registration Statement or the related Prospectus or any
document incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of the Registrable
Securities, the Prospectus will not contain an untrue statement of a material
fact or omit to state any material fact necessary to make the statements therein
not misleading;
(l) cause all Registrable Securities covered by any Registration
Statement to be listed on each securities exchange on which similar securities
issued by the Company are then listed, or, if not so listed, cause such
Registrable Securities to be authorized for trading on the NASDAQ or other
electronic quotation system if any similar securities issued by the Company are
then so authorized, if requested by the holders of a majority of such
Registrable Securities or the managing underwriters, if any;
(m) enter into such customary agreements (including in the case of a
Demand Registration that is an underwritten offering, an underwriting agreement
in customary form) and take all such other actions reasonably required in
connection therewith in order to expedite or facilitate the disposition of such
Registrable Securities and in such connection, whether or not an underwriting
agreement is entered into and whether or not the Registration is an underwritten
Registration, (A) make such representations and warranties to the underwriters,
if any, in form, substance and scope as are customarily made by issuers to
underwriters in primary underwritten offerings; (B) use reasonable best efforts
to obtain opinions of counsel to the Company and updates thereof, if any (which
opinions of counsel shall be in form, scope and substance reasonably
satisfactory to the managing underwriters), addressed to the underwriters, if
any, covering the matters customarily covered in opinions requested in
underwritten offerings and such other matters as may be reasonably requested by
such holders and underwriters; (C) use reasonable best efforts to obtain "cold
comfort" letters and updates thereof from the Company's independent certified
public accountants addressed to the underwriters, if any, such letters to be in
customary form and covering matters of the type customarily covered in "cold
comfort" letters by underwriters in connection with primary underwritten
offerings; and (D) deliver such documents and certificates as may be reasonably
requested by the holders of a majority of the securities being sold and the
managing underwriters, if any, to evidence compliance with any customary
conditions contained in the underwriting agreement or other agreement entered
into by the Company. All the above in this Section 2.4(m) shall be done at each
closing under each underwriting or similar agreement or as and to the extent
required thereunder;
(n) make available for inspection by a representative of BofA or any
other selling holder, any underwriter participating in any disposition pursuant
to such Registration, and any attorney or accountant retained by such selling
securityholders or underwriter, copies or extracts of all financial and other
records, pertinent corporate documents and properties of the Company as shall be
reasonably necessary, in the opinion of the selling securityholders' or
underwriter's counsel, to enable them to fulfill their due diligence
responsibilities; and cause the Company's officers, directors and employees to
supply all information reasonably requested by any such representative,
underwriter, attorney or accountant in connection with such Registration
Statement; provided, however, that the Company shall not be required to comply
with this Section 2.4(n) unless such Person executes confidentiality agreements
whereby such Person agrees that any records, information or documents that are
designated by the Company in writing as confidential shall be kept confidential
by such Persons and used only in connection with the proposed Registration
unless disclosure of such records, information or documents is required by court
or administrative order or any regulatory body having jurisdiction; and each
seller of Registrable Securities agrees that it will, upon learning that
disclosure of such records, information or documents is sought in a court of
competent jurisdiction or by a governmental agency, give notice to the Company
and allow the Company, at the Company's expense, to undertake appropriate action
to prevent disclosure of any records, information or documents deemed
confidential; provided further, however, notwithstanding any designation of
confidentiality by the Company, confidential information shall not include
information which (i) becomes generally available to the public other than as a
result of a disclosure by or on behalf of any such Person, or (ii) becomes
available to any such Person on a non-confidential basis from a source other
than the Company or its advisors, provided that such source is not to such
Person's knowledge bound by a confidentiality agreement with or other
obligations of secrecy to the Company or another party with respect to such
information; and
(o) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the Commission, and make generally available
to its securityholders, earnings statements satisfying the provisions of Section
11(a) of the Securities Act as soon as practicable (A) commencing at the end of
any fiscal quarter in which Registrable Securities are sold to underwriters in a
firm or best efforts underwritten offering, or (B) if not sold to underwriters
in such an offering, beginning with the first month of the Company's first
fiscal quarter commencing after the effective date of the Registration
Statement, which statements shall cover said twelve (12) month periods.
Notwithstanding the above, the Company shall not be required to
provide any material or information under the terms of this Agreement other than
that required for the Company and the holder of Registrable Securities whose
Registrable Securities are the subject of a Registration to comply with the
terms of this Agreement and so that such holder can establish its "exercise of
reasonable care" under Section 12(a)(2) of the Securities Act of 1933.
2.5 Obligations of Holders of Registrable Securities.
(a) The Company may require each seller of Registrable Securities as
to which any Registration is being effected to furnish to the Company such
information regarding the proposed distribution of such securities as the
Company may from time to time reasonably request in writing.
(b) Each holder of Registrable Securities agrees by acquisition of
such Registrable Securities that, upon receipt of any notice from the Company of
the happening of any event of the kind described in Section 2.4(c)(B), (C) and
(F), such holder shall forthwith discontinue disposition of Registrable
Securities until such holder's receipt of the copies of the supplemented or
amended prospectus contemplated by Section 2.4(k), or until it is advised in
writing (the "Advice") by the Company that the use of the Prospectus may be
resumed, and has received copies of any additional or supplemental filings that
are incorporated by reference in the Prospectus; and, if so directed by the
Company, such holder shall deliver to the Company (at the Company's expense) all
copies, other than permanent file copies then in such seller's possession, of
the Prospectus covering such Registrable Securities current at the time of
receipt of such notice. In the event the Company gives any such notice, the time
periods regarding the maintenance of the effectiveness of any Registration
Statement in Section 2.4(b) shall be extended by the number of days during the
period from and including the date of the receipt of such notice pursuant to
Section 2.4(c)(B), (C) and (F) hereof to and including the date when each seller
of Registrable Securities covered by such Registration Statement shall have
received the copies of the supplemented or amended prospectuses contemplated by
Section 2.4(k) or the Advice.
2.6 Indemnification.
(a) In the event of the Registration or qualification of any
Registrable Securities under the Securities Act or any other applicable
securities laws pursuant to the provisions of this Article 2, the Company agrees
to indemnify and hold harmless: (i) each securityholder thereby offering such
Registrable Securities for sale and each of its controlling persons, directors
and officers (each, an "Indemnified Stockholder"); (ii) each underwriter, broker
or dealer, if any, of such Registrable Securities; and (iii) each other Person,
if any, who controls any such Indemnified Stockholder, underwriter, broker or
dealer within the meaning of the Securities Act or any other applicable
securities laws, from and against any and all losses, claims, damages, expenses
or liabilities (or actions in respect thereof), joint or several, to which such
Indemnified Stockholder, underwriter, broker or dealer or controlling person may
become subject under the Securities Act or any other applicable federal or state
securities laws or otherwise, insofar as such losses, claims, damages, expenses
or liabilities (or actions in respect thereof) arise out of or are based upon
(i) any untrue statement or alleged untrue statement of any material fact
contained in any Registration Statement under which such Registrable Securities
were registered or qualified under the Securities Act or any other applicable
federal or state securities laws, any preliminary Prospectus or final Prospectus
relating to such Registrable Securities, or any amendment or supplement thereto,
(ii) the 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 (iii) any violation or alleged violation by the Company of the Securities
Act, the Exchange Act or other applicable federal or state securities laws or
any rule or regulation promulgated under any of them applicable to the Company
or relating to any action or inaction required by the Company in connection with
any such Registration or qualification, and will reimburse each such Indemnified
Stockholder, underwriter, broker or dealer and each such controlling person for
any legal or other expenses reasonably incurred by such Indemnified Stockholder,
underwriter, broker or dealer or controlling person in connection with
investigating or defending any such loss, claim, damage, expense, liability or
action; provided, however, that the Company will not be liable in any such case
to the extent that any such loss, claim, damage, expense or liability arises out
of or is based upon an untrue material statement or omission contained in such
Registration Statement, such preliminary Prospectus, such final Prospectus or
such amendment or supplement thereto, made in reliance upon and in conformity
with written information furnished to the Company by such Indemnified
Stockholder, underwriter, broker, dealer or controlling person specifically and
expressly for use in the preparation thereof or by the failure of such
Indemnified Stockholder, underwriter, broker or dealer, or controlling person to
deliver a copy of the Registration Statement, such preliminary Prospectus, such
final Prospectus or such amendment or supplement thereto after the Company has
furnished such party with a sufficient number of copies of the same and such
party failed to deliver or otherwise provide a copy of the final Prospectus to
the Person asserting an untrue material statement or omission or alleged untrue
material statement or omission at or prior to the written confirmation of the
sale of securities to such person, if such material statement or omission was in
fact corrected in such final Prospectus.
(b) In the case of an underwritten offering in which the Registration
Statement covers Registrable Securities, the Company agrees to enter into an
underwriting agreement in customary form and substance with such underwriters
and to indemnify the underwriters, their officers and directors, if any, and
each person, if any, who controls such underwriters within the meaning of
Section 15 of the Securities Act and Section 20 of the Exchange Act, to the same
extent as provided in the preceding paragraph with respect to the
indemnification of the holders of Registrable Securities; provided, however, the
Company shall not be required to indemnify any such underwriter, or officer or
director of such underwriter or person who controls such underwriter within the
meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act,
to the extent that the loss, claim, damage, expense or liability (or actions in
respect thereof) for which indemnification is sought results from such
underwriter's failure to deliver or otherwise provide a copy of the final
Prospectus to the Person asserting an untrue material statement or omission or
alleged untrue material statement or omission at or prior to the written
confirmation of the sale of securities to such Person, if such material
statement or omission was in fact corrected in such final Prospectus.
(c) In the event of the Registration or qualification of any
Registrable Securities under the Securities Act or any other applicable federal
or state securities laws for sale pursuant to the provisions hereof, each holder
of Registrable Securities included in a Registration Statement agrees to
indemnify and hold harmless the Company, each Person who controls the Company
within the meaning of the Securities Act, and each officer and director of the
Company from and against any losses, claims, damages, expenses or liabilities
(or actions in respect thereof), joint or several, to which the Company, such
controlling person or any such officer or director may become subject under the
Securities Act or any other applicable federal or state securities laws or
otherwise, insofar as such losses, claims, damages, expenses or liabilities (or
actions in respect thereof) (i) arise out of or are based upon any untrue
statement of any material fact contained in any Registration Statement under
which such Registrable Securities were registered or qualified under the
Securities Act or any other applicable securities laws, any preliminary
Prospectus or final prospectus relating to such Registrable Securities, or any
amendment or supplement thereto, or (ii) arise out of or are based upon an
untrue statement of a material fact therein or the omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case of (i) and (ii) above which untrue
statement or omission was made therein in reliance upon and in conformity with
written information furnished to the Company by such holder of Registrable
Securities included in such Registration Statement specifically and expressly
for use in connection with the preparation thereof, and will reimburse the
Company, such controlling person and each such officer or director for any legal
or any other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, expense, liability or
action; provided, however, such holder's liability under this Section 2.6(c)
shall not exceed the net proceeds received by that holder with respect to the
sale of any Registrable Securities.
(d) In the case of an underwritten offering of Registrable Securities,
each holder of a Registrable Security included in a Registration Statement shall
agree to enter into an underwriting agreement in customary form and substance
with such underwriters, and to indemnify such underwriters, their officers and
directors, if any, and each person, if any, who controls such underwriters
within the meaning of Section 15 of the Securities Act and Section 20 of the
Exchange Act, to the same extent as provided in the preceding paragraph with
respect to indemnification by such holder of the Company, but subject to the
same limitation as provided in Section 2.6(b) with respect to indemnification by
the Company of such underwriters, officers, directors and control persons.
(e) Promptly after receipt by a Person entitled to indemnification
under this Section 2.6 (an "Indemnified Party") of notice of the commencement of
any action or claim relating to any Registration Statement filed under this
Article 2 as to which indemnity may be sought hereunder, such Indemnified Party
will, if a claim for indemnification hereunder in respect thereof is to be made
against any other party hereto (an "Indemnifying Party"), give written notice to
each such Indemnifying Party of the commencement of such action or claim, but
the omission to so notify each such Indemnifying Party will not relieve any such
Indemnifying Party from any liability which it may have to any Indemnified Party
otherwise than pursuant to the provisions of this Section 2.6 and shall also not
relieve any such Indemnifying Party of its obligations under this Section 2.6
except to the extent that any such Indemnifying Party is actually prejudiced
thereby. In case any such action is brought against an Indemnified Party, and
such Indemnified Party notifies an Indemnifying Party of the commencement
thereof, such Indemnifying Party will be entitled (at its own expense) to
participate in and, to the extent that it may wish, jointly with any other
Indemnifying Party similarly notified, to assume the defense, with counsel
reasonably satisfactory to such Indemnified Party, of such action and/or to
settle such action and, after notice from the Indemnifying Party to such
Indemnified Party of its election so to assume the defense thereof, the
Indemnifying Party will not be liable to such Indemnified Party for any legal or
other expenses subsequently incurred by such Indemnified Party in connection
with the defense thereof, other than the reasonable cost of investigation;
provided, however, that no Indemnifying Party shall consent to the entry of any
judgment or enter into any settlement agreement without the prior written
consent of the Indemnified Party unless such Indemnified Party is fully released
and discharged from any such liability, and no Indemnified Party shall consent
to the entry of any judgment or enter into any settlement of any such action the
defense of which has been assumed by an Indemnifying Party without the consent
of each Indemnifying Party. Notwithstanding the foregoing, the Indemnified Party
shall have the right to employ its own counsel in any such case, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Party
unless (a) the employment of such counsel shall have been authorized in writing
by the Indemnifying Party in connection with the defense of such suit, action,
claim or proceeding; (b) the Indemnifying Party shall not have employed counsel
(reasonably satisfactory to the Indemnified Party) to take charge of the defense
of such action, suit, claim or proceeding; or (c) such Indemnified Party shall
have reasonably concluded, based upon the advice of counsel, that there may be
defenses available to it which are different from or additional to those
available to the Indemnifying Party which, if the Indemnifying Party and the
Indemnified Party were to be represented by the same counsel, could result in a
conflict of interest for such counsel or materially prejudice the prosecution of
the defenses available to such Indemnified Party. If any of the events specified
in clause (a), (b) or (c) of the preceding sentence shall have occurred or shall
otherwise be applicable, then the fees and expenses of one counsel or firm of
counsel selected by a majority in interest of the Indemnified Parties (and
reasonably acceptable to the Indemnifying Party) shall be borne by the
Indemnifying Party. If, in any such case, the Indemnified Party employs separate
counsel, the Indemnifying Party shall not have the right to direct the defense
of such action, suit, claim or proceeding on behalf of the Indemnified Party and
the Indemnified Party shall assume such defense and/or settle such action;
provided, however, that an Indemnifying Party shall not be liable for the
settlement of any action, suit, claim or proceeding effected without its prior
written consent, which consent shall not be unreasonably withheld.
The provisions of this Section 2.6 shall be in addition to any
liability which any party may have to any other party and shall survive any
termination of this Agreement.
2.7 Contribution. If for any reason the indemnification provided for in
Section 2.6(a) or (c) is unavailable to an Indemnified Party as contemplated
therein, then the Indemnifying Party, in lieu of indemnification shall
contribute to the amount paid or payable by the Indemnified Party as a result of
such loss, claim, damage, expense or liability (or action in respect thereof) in
such proportion as is appropriate to reflect not only the relative benefits
received by the Indemnified Party and the Indemnifying Party, but also the
relative fault of the Indemnified Party and the Indemnifying Party, as well as
any other relevant equitable considerations; provided, however, that no selling
holder shall be required to contribute in an amount greater than the net
proceeds received by such stockholder with respect to the sale of any
Registrable Securities. No person guilty of a 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 any such fraudulent
misrepresentation. The relative fault of such Indemnifying Party and Indemnified
Party shall be determined by reference to, among other things, whether any
action in question, including any untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact, has been
made by, or relates to information supplied by, such Indemnifying Party or
Indemnified Party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action.
2.8 Registration Expenses. Except as hereinafter provided, all expenses
incident to the performance of or compliance with this Article 2 with respect to
two Demand Registrations, one S-3 Registration and the Piggyback Registrations
will be borne by the Company, including, without limitation, all Registration
and filing fees under the Securities Act and the Exchange Act (except that each
Person exercising a Piggyback Registration shall pay its proportionate share of
such filing fees), the fees and expenses of the counsel and accountants for the
Company (including the expenses of any "cold comfort" letters and special audits
required by or incident to the performance of such persons), all other costs and
expenses incident to the preparation, printing and filing under the Securities
Act of the Registration Statement (and all amendments and supplements thereto),
and furnishing copies thereof and of the Prospectus included therein, all
out-of-pocket expenses of underwriters to the extent provided for in any
underwriting agreement, the costs and expenses incurred by the Company in
connection with the qualification of the Registrable Securities under the state
securities or "blue sky" laws of various jurisdictions, the costs and expenses
associated with filings required to be made with the NASD, the costs and
expenses of listing the Registrable Securities for trading on a national
securities exchange or authorizing them for trading on NASDAQ or other
electronic quotation system, underwriters' discounts and commissions and all
other costs and expenses in connection with any Registration hereunder. Except
as provided in the immediately preceding sentence, each selling securityholder
shall bear the costs and expenses of any brokerage fees or transfer taxes
relating to the Registrable Securities sold by such selling securityholder and
the fees and expenses of any attorneys, accountants or other representatives
retained by the selling securityholder.
2.9 Participation in Underwritten Registrations. No holder of Registrable
Securities may participate in any underwritten Registration hereunder unless
such holder (i) agrees to sell its Registrable Securities on the basis provided
in any customary and reasonable underwriting arrangements approved by the
persons entitled hereunder to select the underwriter, and (ii) accurately
completes in a timely manner and executes all questionnaires, powers of
attorney, underwriting agreements, indemnities and other documents customarily
required under the terms of such underwriting arrangements.
2.10 Holdback Agreements.
(a) Each holder of Registrable Securities whose securities are
included in a Registration Statement agrees not to effect any sale, transfer or
other disposition of Company Stock or any securities convertible into Company
Stock or other interest in the Company, including through any hedging or
derivative transaction or to effect any distribution of the issue being
registered or a similar security of the Company, or any securities convertible
into or exchangeable or exercisable for such securities, including a sale
pursuant to Rule 144 or Rule 144A under the Securities Act, during the fifteen
(15) days prior to, and during the one hundred eighty (180)-day period (or such
longer period as reasonably requested by the managing underwriter or
underwriters in the case of an underwritten public offering) beginning on, the
effective date of such Registration Statement (except as part of such
Registration), if and to the extent requested by the managing underwriter or
underwriters in an underwritten public offering.
(b) The Company agrees not to effect any public sale or distribution
of the issue being registered or a similar security of the Company, or any
securities convertible into or exchangeable or exercisable for such securities
(other than any such sale or distribution of such securities in connection with
any merger or consolidation by the Company or any Subsidiary or the acquisition
by the Company or any Subsidiary of the capital stock or substantially all of
the assets of any other Person), during the fifteen (15) days prior to, and
during the ninety (90) day period beginning on, the effective date of each
Demand Registration.
2.11 Public Information Reporting.
(a) The Company hereby covenants and agrees to and with BofA that at
all times while its securities are traded on a national exchange or electronic
quotation system, it shall provide and file such financial and other information
concerning the Company as may from time to time be required by the Commission
and any other Governmental Authority having jurisdiction, so as to comply with
all reporting requirements under the Exchange Act, and shall, upon request,
state in writing that it has complied with all such requirements, and further
agrees that, for so long as the Company is not subject to Section 13 or 15(d) of
the Exchange Act, the Company shall comply in all respects with paragraph (c)(2)
of Rule 144.
(b) If the Company shall have filed a registration statement pursuant
to the requirements of Section 12 of the Exchange Act or a registration
statement pursuant to the requirements of the Securities Act, the Company
covenants that it will file the reports required to be filed by it under the
Securities Act and the Exchange Act and the rules and regulations adopted by the
Commission thereunder (or, if the Company is not required to file such reports,
it will, upon the request of any holder of Registrable Securities, make publicly
available other information), and it will take such further action as any holder
of Registrable Securities may reasonably request, all to the extent required
from time to time to enable such holder to sell shares of 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 Commission. Upon the request of any holder of Registrable
Securities, the Company will deliver to such holder a written statement as to
whether it has complied with such requirements. Upon the request of a holder of
Registrable Securities, the Company covenants and agrees to provide the
information required by Rule 144A(d)(4) under the Securities Act.
ARTICLE 3.
Assignability
BofA may not assign this Agreement or any rights hereunder except in
conjunction with a contemporaneous assignment of not less than 4,000,000
Registrable Shares without the Company's prior written consent. Upon such an
assignment, this Agreement and all of the provisions hereof shall inure to the
benefit of the purchaser, transferee or assignee of the Registrable Securities,
and any such purchaser, transferee or assignee shall take such shares of
Registrable Securities subject to, and shall be bound by, the terms of this
Agreement; provided in each instance that the transferee or assignee of such
rights assumes in writing the obligations of such transferor or assignor under
this Agreement. However, the Company shall not be required to recognize any such
purchaser, transferee or assignee unless and until ten (10) days following the
first to occur of either (i) such person becomes the holder of record of
Registrable Securities or (ii) the Company receives written notice of such
purchase, transfer or assignment and such person executes and delivers to the
Company a counter-part signature page to this Agreement. Notwithstanding the
above, in the event of any assignment or transfer of all or any of the
Registrable Securities to any Person other than as expressly permitted under the
first sentence of this paragraph., this Agreement and the obligations of the
Company hereunder shall terminate with respect to such Registrable Securities.
If, as a result of the transfer or assignment of this Agreement or any rights
hereunder to more than one transferee, assignee or purchaser, all such
transferees, assignees or purchasers shall be considered and treated as a single
transferee , assignee or purchaser, and any registration rights provided under
the terms of Article 2 of this Agreement with respect to such transferees may be
exercised only with the written consent of the owners of a majority of the other
holders of Registrable Securities outstanding at the time of the exercise of any
such registration rights; provided that no such transfer, assignment or purchase
of Registrable Securities shall expand the obligations of the Company under this
Agreement, including the registration obligations under Afticle 2 of this
Agreement. No assignee of BofA can assign all or any of its right under this
Agreement without the Company's prior consent, which consent shall not be
unreasonably be withheld.
ARTICLE 4.
After-Acquired Shares; Recapitalization
4.1 After-Acquired Shares; Recapitalization. Except as expressly set forth
herein, all of the provisions of this Agreement shall apply to all of the shares
of Company Stock now owned or hereafter issued or transferred to BofA or to any
permitted transferee pursuant to Article 3 as a consequence of any additional
issuance, conversion, purchase, exchange or reclassification of shares of
Company Stock, corporate reorganization, or any other form of recapitalization,
or consolidation, or merger, or share split, or share dividend, or which are
acquired by BofA in any other manner. Whenever the number of outstanding shares
of Company Stock is changed by reason of a stock dividend or a subdivision or
combination of shares effected by a reclassification of shares, each specified
number of shares referred to in this Agreement shall be adjusted accordingly.
ARTICLE 5.
Miscellaneous
5.1 Notices. All notices or other communications hereunder shall be in
writing and shall be given (and shall be deemed to have been duly given upon
receipt) by delivery in person, by facsimile transmission, or by registered or
certified mail (return receipt requested), postage prepaid, with an
acknowledgment of receipt signed by the addressee or an authorized
representative thereof, addressed as follows (or to such other address for a
party as shall be specified by like notice; provided that notice of a change of
address shall be effective only upon receipt thereof:
If to the Company, to:
Xxxxxx Communications Corporation
00000 Xxxxxxxx Xxx
Xxxxxxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, President
With a copy to the Company at the same address to:
Attention: Xxxxxx X. Xxxxxx, Senior Corporate Counsel
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
With a further copy to:
McAfee & Xxxx
000 Xxxxx Xxxxxxxx
00xx Xxxxx
Xxxxxxxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxxx X. Xxxx
If to BofA, at:
Bank of America, N.A.
000 Xxxxx XxXxxxx Xxxxxx
Mail Code IL 1-231-08-40
Xxxxxxx, XX 00000
Telephone:
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxxx
With a copy to:
Xxxxxx and Xxxxx, LLP
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxx
5.2 Entire Agreement; Amendments.
(a) This Agreement constitutes the entire agreement among the parties
with respect to the subject matter hereof and supersedes all other prior
agreements and understandings, both written and oral, among the parties or any
of them with respect to the subject matter hereof, except the letter to BofA
from the general counsel of the Company of even date.
(b) No change or modification of this Agreement shall be valid,
binding or enforceable unless the same shall be in writing and signed by the
Company and BofA; provided, however, that in the event BofA shall cease to own
any shares of Company Stock or Options it shall cease to be a party to this
Agreement and, except as expressly provided herein, the rights and obligations
of BofA hereunder shall terminate.
5.3 Suspension and Termination. This Agreement shall be suspended and not
operative if and during any period that the Company does not have any Common
Stock authorized for trading on a national securities exchange, NASDAQ or other
electronic quotation system. In addition, this Agreement shall terminate if the
parties hereto consent to its termination in writing.
5.4 Waiver. No failure or delay on the part of any party to this Agreement
in exercising any right, power or privilege hereunder, nor any course of dealing
between the Company and BofA shall operate as a waiver thereof nor shall any
single or partial exercise of any right, power or privilege hereunder preclude
the simultaneous or later exercise of any other right, power or privilege. The
rights and remedies herein expressly provided are cumulative and not exclusive
of any rights and remedies which any party hereto would otherwise have. No
notice to or demand on the Company in any case shall entitle the Company to any
other or further notice or demand in similar or other circumstances or
constitute a waiver of the rights of BofA to take any other or further action in
any circumstances without notice or demand.
5.5 Governing Law. This Agreement shall be governed and construed in
accordance with the law of the State of Oklahoma without reference to the
conflicts of law principles thereof.
5.6 Dispute Resolution; Waiver of Jury Trial. The parties shall use and
strictly adhere to the following dispute resolution processes, except as
otherwise expressly provided in this Section 5.6, to resolve any and all
disputes, controversies or claims, whether based on contract, tort, statute,
fraud, misrepresentation or any other legal or equitable theory (hereinafter,
"Dispute(s)"), arising out of or relating to this Agreement (and any prior
agreement this Agreement supersedes), including without limitation, its making,
termination, its alleged breach and the subject matter of this Agreement:
(a) The parties shall first attempt to settle each Dispute through
good faith negotiations. The aggrieved party shall initiate such negotiations by
giving the other party(ies) written notice of the existence and nature of the
Dispute. The other party(ies) shall in a writing to the aggrieved party
acknowledge such notice of Dispute within ten (10) business days. Such
acknowledgment may also set forth any Dispute that the acknowledging party
desires to have resolved in accordance with this Section.
(b) Thereafter, if any Dispute is not resolved by the parties through
negotiation within thirty (30) calendar days of the date of the notice of
acknowledgment, either party may terminate informal negotiations with respect to
that Dispute and have the right, by delivery of written notice thereof (the
"Arbitration Notice") to the other party, to submit the matter to be finally
settled by arbitration in accordance with the Commercial Arbitration Rules then
in effect of the American Arbitration Association, as modified herein (the "AAA
Rules"). The place of arbitration shall be Oklahoma City, Oklahoma. All matters
so submitted to arbitration shall be settled by three arbitrators. The disputing
party and the Company shall each designate one arbitrator within 20 days of the
delivery of the Arbitration Notice. If either the disputing party or the Company
fails so to timely designate an arbitrator, the matter shall be resolved by the
one arbitrator timely designated. The disputing party and the Company shall
cause the designated arbitrators to mutually agree upon and to designate a third
arbitrator, provided, however, that failing such agreement within 45 days of
delivery of the Arbitration Notice, the third arbitrator shall be appointed in
accordance with the AAA Rules. The disputing party and the Company, shall be
responsible for the payment of the fees and expenses of their respectively
designated arbitrators and shall bear equally the fees and expenses of the third
arbitrator. The disputing party and the Company, shall cause the arbitrators to
decide the matter to be arbitrated pursuant hereto within 60 days after the
appointment of the last arbitrator. The arbitral tribunal is not empowered to
award damages in excess of compensatory damages and each party hereby
irrevocably waives any right to recover punitive, exemplary or similar damages
with respect to any Dispute. The final decision of the majority of the
arbitrators shall be furnished to the disputing party and the Company in writing
and shall constitute a conclusive determination of the matter in question,
binding upon the parties hereto and shall not be contested by them. Such
decision may be used in a court of law only for the purpose of seeking
enforcement of the arbitrators' award. Any arbitration proceeding, decision or
award rendered hereunder and the validity, effect and interpretation of this
arbitration agreement shall be governed by the Federal Arbitration Act, 9 U.S.C.
ss.1-16, and judgment upon any award may be entered in any court of competent
jurisdiction.
(c) EACH OF THE PARTIES HERETO, AFTER CONSULTING WITH COUNSEL WAIVE
THEIR RIGHTS, IF ANY, TO JURY TRIAL IN RESPECT TO ANY DISPUTE OR CLAIMS BETWEEN
OR AMONG THE PARTIES TO THIS AGREEMENT RELATING TO OR IN RESPECT OF THIS
AGREEMENT, ITS NEGOTIATION, EXECUTION, PERFORMANCE, SUBJECT MATTER, OR ANY
COURSE OF CONDUCT OR DEALING OR ACTIONS UNDER OR IN RESPECT OF THIS AGREEMENT,
INCLUDING, WITHOUT LIMITATION ANY CLAIM UNDER THE SECURITIES ACT, THE SECURITIES
EXCHANGE ACT OF 1934, AS AMENDED, ANY OTHER STATE OR FEDERAL LAW RELATING TO
SECURITIES OR FRAUD OR BOTH, THE RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS
ACT, AS AMENDED, OR FEDERAL OR STATE COMMON LAW.
5.7 Benefit and Binding Effect; Severability. This Agreement shall be
binding upon and shall inure to the benefit of the Company, its successors and
assigns, and to BofA and its permitted assigns, and the Indemnified Parties. If
any term or other provision of this Agreement is invalid, illegal or incapable
of being enforced by any law or public policy or any listing requirement
applicable to the Common Stock, all other terms and provisions of this Agreement
shall nevertheless remain in full force and effect. Upon such determination that
any term or other provision is invalid, illegal or incapable of being enforced,
the parties hereto affected by such determination in any material respect shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner in order
that the provisions hereof are given effect as originally contemplated to the
greatest extent possible.
5.8 FCC Approvals. Notwithstanding anything contained in this Agreement to
the contrary, no transaction or action contemplated herein shall be consummated
and no interests or rights transferred, converted or exchanged prior to
receiving FCC approvals with respect thereto to the extent such FCC approvals
are necessary.
5.9 Attorneys' Fees. Except as otherwise provided herein, all attorneys'
fees incurred by BofA in connection with the preparation of this Agreement shall
be borne by Xxxxxx Partnership in accordance with the terms of the Amended
Credit Agreement and all attorneys' fees incurred by BofA in connection with
BofA's performance under this Agreement (including, without limitation, in the
preparation of notices (and responses thereto) and consents) shall be borne by
BofA. In any action or proceeding brought to enforce any provision of this
Agreement, or where any provision hereof is validly asserted as a defense, the
successful party shall be entitled to recover reasonable attorneys' fees in
addition to any other available remedy.
5.10 Headings. The captions in this Agreement are for convenience only and
shall not be considered a part of or affect the construction or interpretation
of any provision of this Agreement.
5.11 Counterparts; Facsimile Signatures. This Agreement may be executed in
two or more counterparts, each of which shall be deemed to be an original, but
all of which together shall constitute one and the same instrument. Facsimile
copies of original signatures shall have the same effect as the original.
5.12 Effective Date. This Agreement shall be effective as of March 15,
2002.
[Signature page follows.]
IN WITNESS WHEREOF, each of the parties has executed or caused this
Registration Rights Agreement to be executed by its duly authorized officers as
of the date first written above.
XXXXXX COMMUNICATIONS CORPORATION
By: XXXXXXX X. XXXXXX
Xxxxxxx X. Xxxxxx,
Chairman of the Board,
Chief Executive Officer and President
BANK OF AMERICA, N.A.
By: XXXX X. XXXXXXX
Xxxx X. Xxxxxxx
Senior Vice President
