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EXHIBIT 4.3
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DIGITAL TELEVISION SERVICES, LLC
DTS CAPITAL, INC.
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$155,000,000
12 1/2% SENIOR SUBORDINATED NOTES DUE 2007
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REGISTRATION RIGHTS AGREEMENT
DATED AS OF July 30, 1997
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XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
CIBC WOOD GUNDY SECURITIES CORP.
X.X. XXXXXX SECURITIES INC.
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is dated
as of July 30, 1997, by and among Digital Television Services, LLC, a Delaware
limited liability company and DTS Capital, Inc., a Delaware corporation (the
"Issuers"), the parties listed on Schedule 1 attached hereto (each a "Guarantor"
and, collectively, the "Guarantors") and Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation, CIBC Wood Gundy Securities Corp. and X.X. Xxxxxx Securities Inc.
(together, the "Initial Purchasers").
This Agreement is entered into in connection with the Purchase
Agreement, dated as of July 25, 1997, among the Issuers, Guarantors and the
Initial Purchasers (the "Purchase Agreement") relating to the sale by the
Issuers to the Initial Purchasers of $155,000,000 aggregate principal amount of
their 12 1/2% Senior Subordinated Notes due 2007 (the "Notes"). In order to
induce the Initial Purchasers to enter into the Purchase Agreement, the Issuers
have agreed to provide the registration rights set forth in this Agreement for
the equal benefit of the Initial Purchasers and their respective direct and
indirect transferees. The execution and delivery of this Agreement is a
condition to the Initial Purchasers' obligation to purchase the Notes under the
Purchase Agreement.
The parties hereby agree as follows:
1. DEFINITIONS
As used in this Agreement, the following terms shall have the
following meanings:
Additional Interest: See Section 4(a).
Advice: See the last paragraph of Section 5.
Applicable Period: See Section 2(b).
Closing Date: The Closing Date as defined in the Purchase
Agreement.
Effectiveness Date: The 150th day after the Closing Date;
provided, however, that, with respect to the Initial Shelf Registration
Statement, (i) if the Filing Date in respect thereof is fewer than 60 days prior
to the 150th day after the Closing Date, then the Effectiveness Date in respect
thereof shall be the 60th day after such Filing Date and (ii) if the Filing Date
is after the filing of the Exchange Offer Registration Statement with the SEC,
then the Effectiveness Date in respect thereof shall be the 60th day after such
Filing Date.
Effectiveness Period: See Section 3.
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Event Date: See Section 4.
Exchange Act: The Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
Exchange Offer: See Section 2(a).
Exchange Offer Registration Statement: See Section 2(a).
Exchange Securities: See Section 2(a).
Expiration Date: See Section 2(a).
Filing Date: The 120th day after the Closing Date; provided,
however, that, with respect to the Initial Shelf Registration Statement, (i) if
a Shelf Registration Event shall have occurred fewer than 30 days prior to the
120th day after the Closing Date, then the Filing Date in respect thereof shall
be the 30th day after such Shelf Registration Event and (ii) if a Shelf
Registration Event shall have occurred after the filing of the Exchange Offer
Registration Statement with the SEC, then the Filing Date in respect thereof
shall be the 45th day after such Shelf Registration Event.
Guarantors: The Guarantors defined in the preamble hereto and
any Person that becomes a guarantor after the date hereof pursuant to the terms
of the Indenture. See Section 10(d).
Holder: Any record holder of Registrable Securities.
Indemnified Person: See the third paragraph of Section 7.
Indemnifying Person: See the third paragraph of Section 7.
Indenture: The Indenture, dated as of July 30, 1997, between
the Issuers and Guarantors and The Bank of New York, as trustee, pursuant to
which the Notes are being issued, as amended or supplemented from time to time
in accordance with the terms thereof.
Initial Purchasers: See the introductory paragraph to this
Agreement.
Initial Shelf Registration Statement: See Section 3(a).
Inspectors: See Section 5(o).
Issue Date: The date of original issuance of the Notes.
Issuers: See the introductory paragraph to this Agreement.
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Manager: Any officer or member of the board of managers or
similar governing body of Digital Television Services, LLC.
NASD: See Section 5(t).
Notes: See the second introductory paragraph to this
Agreement.
Participant: See the first paragraph of Section 7.
Participating Broker-Dealer: See Section 2(b).
Person: An individual, corporation, limited or general
partnership, limited liability company, joint venture, association, joint stock
company, trust, unincorporated organization or government or any agency or
political subdivision thereof.
Private Exchange: See Section 2(b).
Private Exchange Securities: See Section 2(b).
Prospectus: The prospectus included in any Registration
Statement (including, without limitation, a prospectus that includes any
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the Registrable
Securities covered by such Registration Statement, and all other amendments and
supplements to the Prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by reference in
such Prospectus.
Purchase Agreement: See the second introductory paragraph to
this Agreement.
Records: See Section 5(o).
Registrable Securities: The Notes upon original issuance
thereof and at all times subsequent thereto, each Exchange Security as to which
Section 2(c)(v) hereof is applicable upon original issuance and at all times
subsequent thereto and, if issued, the Private Exchange Securities, until in the
case of any such Notes, Exchange Securities or Private Exchange Securities, as
the case may be, (i) a Registration Statement (other than, with respect to any
Exchange Security as to which Section 2(c)(v) hereof is applicable, the Exchange
Offer Registration Statement) covering such Notes, Exchange Securities or
Private Exchange Securities has been declared effective by the SEC and such
Notes, Exchange Securities or Private Exchange Securities, as the case may be,
have been disposed of in accordance with such effective Registration Statement,
(ii) such Notes, Exchange Securities or Private Exchange Securities, as the case
may be, are sold in compliance with Rule 144, (iii) such Note has been exchanged
for an Exchange Note pursuant to the Exchange Offer and Section 2(c)(v) is not
applicable thereto, or (iv) such Notes, Exchange Securities or Private Exchange
Securities, as the case may be, cease to be outstanding.
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Registration Statement: Any registration statement of the
Issuers and Guarantors (including, but not limited to, the Exchange Offer
Registration Statement) that covers any of the Registrable Securities pursuant
to the provisions of this Agreement, including the Prospectus, amendments and
supplements to such registration statement, including post-effective amendments,
all exhibits, and all material incorporated by reference or deemed to be
incorporated by reference in such registration statement.
Rule 144: Rule 144 promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule (other than Rule
144A) or regulation hereafter adopted by the SEC providing for offers and sales
of securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
Rule 144A: Rule 144A promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule (other than Rule
144) or regulation hereafter adopted by the SEC.
Rule 415: Rule 415 promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, and
the rules and regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2(c).
Shelf Registration Statement: See Section 3(b).
Shelf Registration Event: See Section 2(c).
Subsequent Shelf Registration Statement: See Section 3(b).
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The trustee under the Indenture and, if applicable,
the trustee under any indenture governing the Exchange Securities and Private
Exchange Securities (if any).
Underwritten registration or underwritten offering: A
registration in which securities of the Issuers are sold to an underwriter for
reoffering to the public.
2. EXCHANGE OFFER
(a) The Issuers and Guarantors agree to file with the SEC on
or before the Filing Date an offer to exchange (the "Exchange Offer") any and
all of the Registrable Securities for
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a like aggregate principal amount of senior subordinated debt securities of the
Issuers that are identical to the Notes (the "Exchange Securities") (and that
are entitled to the benefits of a trust indenture that is identical to the
Indenture (other than such changes as are necessary to comply with any
requirements of the SEC to effect or maintain the qualification of such trust
indenture under the TIA) and that has been qualified under the TIA), except that
the Exchange Securities shall have been registered pursuant to an effective
Registration Statement under the Securities Act and shall contain no restrictive
legend thereon. The Exchange Offer will be registered under the Securities Act
on the appropriate form (the "Exchange Offer Registration Statement") and will
comply with all applicable tender offer rules and regulations under the Exchange
Act. The Issuers and Guarantors agree to use their commercially reasonable best
efforts (i) to cause the Exchange Offer Registration Statement to become
effective and to commence the Exchange Offer on or prior to the Effectiveness
Date, (ii) to keep the Exchange Offer open for 30 days (or longer if required by
applicable law) (the last day of such period, the "Expiration Date") and (iii)
to exchange Exchange Securities for all Notes validly tendered and not withdrawn
pursuant to the Exchange Offer on or prior to the fifth day following the
Expiration Date.
Each Holder who participates in the Exchange Offer will be
deemed to represent that any Exchange Securities received by it will be acquired
in the ordinary course of its business, that at the time of the consummation of
the Exchange Offer such Holder will have no arrangement with any person to
participate in the distribution of the Exchange Securities in violation of the
provisions of the Securities Act, and that such Holder is not an affiliate of
the Issuers within the meaning of the Securities Act.
Upon consummation of the Exchange Offer in accordance with
this Section 2, the provisions of this Agreement shall continue to apply,
mutatis mutandis, solely with respect to Registrable Securities that are Private
Exchange Securities, Exchange Securities to which Section 2(c)(v) is applicable
and Exchange Securities held by Participating Broker-Dealers, and no Issuer or
Guarantor shall have any further obligation to register Registrable Securities
(other than Private Exchange Securities and other than Exchange Securities as to
which Section 2(c)(v) hereof applies) pursuant to Section 3 of this Agreement.
No securities other than the Exchange Securities shall be included in the
Exchange Offer Registration Statement.
(b) The Issuers and Guarantors shall include within the
Prospectus contained in the Exchange Offer Registration Statement a section
entitled "Plan of Distribution," reasonably acceptable to the Initial
Purchasers, which shall contain a summary statement of the positions taken or
policies made by the Staff of the SEC (and publicly disseminated) with respect
to the potential "underwriter" status of any broker-dealer that is the
beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange
Securities received by such broker-dealer in the Exchange Offer (a
"Participating Broker-Dealer"). Such "Plan of Distribution" section shall also
allow the use of the prospectus by all persons subject to the prospectus
delivery requirements of the Securities Act, including all Participating
Broker-Dealers, and include a statement describing the means by which
Participating Broker-Dealers may resell the Exchange Securities.
The Issuers and Guarantors shall use their commercially
reasonable best efforts to keep the Exchange Offer Registration Statement
effective and to amend and supplement the Prospectus
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contained therein in order to permit such Prospectus to be lawfully delivered by
all persons subject to the prospectus delivery requirements of the Securities
Act for at least 180 days following the consummation of the Exchange Offer (or
such shorter time as such persons must comply with such requirements in order to
resell the Exchange Securities) (the "Applicable Period").
If, prior to consummation of the Exchange Offer, any Initial
Purchaser holds any Notes acquired by it and having, or which are reasonably
likely to be determined to have, the status of an unsold allotment in the
initial distribution, the Issuers upon the request of such Initial Purchaser
shall, simultaneously with the delivery of the Exchange Securities in the
Exchange Offer, issue and deliver to such Initial Purchaser, in exchange (the
"Private Exchange") for the Notes held by such Initial Purchaser, a like
principal amount of debt securities of the Issuers that are identical to the
Exchange Securities (the "Private Exchange Securities") (and which are issued
pursuant to the same indenture as the Exchange Securities) (except for the
placement of a restrictive legend on such Private Exchange Securities). The
Private Exchange Securities shall bear the same CUSIP number as the Exchange
Securities. Interest on the Exchange Securities and Private Exchange Securities
will accrue from the last interest payment date on which interest was paid on
the Notes surrendered in exchange therefor or, if no interest has been paid on
the Notes, from the Issue Date.
Any indenture under which the Exchange Securities or the
Private Exchange Securities will be issued shall provide that the holders of any
of the Exchange Securities and the Private Exchange Securities will vote and
consent together on all matters to which such holders are entitled to vote or
consent as one class and that none of the holders of the Exchange Securities and
the Private Exchange Securities will have the right to vote or consent as a
separate class on any matter.
(c) If, (i) because of any change in law or in currently
prevailing interpretations of the Staff of the SEC, the Issuers reasonably
determine in good faith, after consultation with counsel, that they are not
permitted to effect the Exchange Offer, (ii) the Exchange Offer is not commenced
on or prior to the Effectiveness Date, (iii) the Exchange Offer is not, for any
reason, consummated on or prior to the 180th day after the Closing Date, (iv)
any Holder of Private Exchange Securities so requests, or (v) in the case of any
Holder that participates in the Exchange Offer, such Holder does not receive
Exchange Securities on the date of the exchange that may be sold without
restriction under state and federal securities laws (the occurrence of any such
event, a "Shelf Registration Event"), then, in the case of each of clauses (i)
to and including (v) of this sentence, the Issuers shall promptly deliver to the
Holders and the Trustee notice thereof (the "Shelf Notice") and the Issuers and
Guarantors shall thereafter file an Initial Shelf Registration Statement
pursuant to Section 3.
3. SHELF REGISTRATION
If a Shelf Registration Event has occurred (and whether or not
an Exchange Offer Registration Statement has been filed with the SEC or has
become effective, or the Exchange Offer has been consummated), then:
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(a) Initial Shelf Registration Statement. The Issuers and
Guarantors shall promptly prepare and file with the SEC a Registration Statement
for an offering to be made on a continuous basis pursuant to Rule 415 covering
all of the Registrable Securities (the "Initial Shelf Registration Statement").
The Issuers and Guarantors shall file with the SEC the Initial Shelf
Registration Statement on or prior to the Filing Date. The Initial Shelf
Registration Statement shall be on Form S-1 or another appropriate form if
available, permitting registration of such Registrable Securities for resale by
such Holders in the manner designated by them (including, without limitation, in
one or more underwritten offerings). The Issuers and Guarantors shall not permit
any securities other than the Registrable Securities to be included in the
Initial Shelf Registration Statement or any Subsequent Shelf Registration
Statement. The Issuers and Guarantors shall use their commercially reasonable
best efforts to cause the Initial Shelf Registration Statement to be declared
effective under the Securities Act on or prior to the Effectiveness Date, and to
keep the Initial Shelf Registration Statement continuously effective under the
Securities Act until the date that is 24 months from the Issue Date, or such
shorter period ending when (i) all Registrable Securities covered by the Initial
Shelf Registration Statement have been sold in the manner set forth and as
contemplated in the Initial Shelf Registration Statement or (ii) a Subsequent
Shelf Registration Statement covering all of the Registrable Securities has been
declared effective under the Securities Act (such 24 month or shorter period,
the "Effectiveness Period").
(b) Subsequent Shelf Registration Statements. If the Initial
Shelf Registration Statement or any Subsequent Shelf Registration Statement
ceases to be effective for any reason at any time during the Effectiveness
Period (other than because of the sale of all of the securities registered
thereunder), the Issuers and Guarantors shall use their commercially reasonable
best efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof, and in any event the Issuers and Guarantors shall within
45 days of such cessation of effectiveness amend the Shelf Registration
Statement in a manner reasonably expected to obtain the withdrawal of the order
suspending the effectiveness thereof, or file an additional "shelf" Registration
Statement pursuant to Rule 415 covering all of the Registrable Securities (a
"Subsequent Shelf Registration Statement"). If a Subsequent Shelf Registration
Statement is filed, the Issuers and Guarantors shall use their commercially
reasonable best efforts to cause the Subsequent Shelf Registration Statement to
be declared effective as soon as reasonably practicable after such filing and to
keep such Registration Statement continuously effective until the end of the
Effectiveness Period. As used herein the term "Shelf Registration Statement"
means the Initial Shelf Registration Statement and any Subsequent Shelf
Registration Statement.
(c) Supplements and Amendments. The Issuers and Guarantors
shall promptly supplement and amend the Shelf Registration Statement if required
by the rules, regulations or instructions applicable to the registration form
used for such Shelf Registration Statement, if required by the Securities Act,
or if reasonably requested by the Holders of a majority in aggregate principal
amount of the Registrable Securities covered by such Registration Statement or
by any underwriter of such Registrable Securities.
(d) Hold-Back Agreements.
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(i) Restrictions on Public Sale by Holders of Registrable
Securities. Each Holder of Registrable Securities whose Registrable
Securities are covered by a Shelf Registration Statement (which
Registrable Securities are not being sold in the underwritten offering
described below) agrees, if requested (pursuant to a timely written
notice) by the Issuers and Guarantors or by the managing underwriter or
underwriters in an underwritten offering, not to effect any public sale
or distribution of any securities within the class of securities
covered by such Shelf Registration Statement or any similar class of
securities of any Issuer or Guarantor, including a sale pursuant to
Rule 144 or Rule 144A (except as part of such underwritten offering),
during the period beginning 10 days prior to, and ending 60 days after,
the closing date of each underwritten offering made pursuant to each
Shelf Registration Statement, to the extent timely notified in writing
by the Issuers or by the managing underwriter or underwriters;
provided, however, that each holder of Registrable Securities shall be
subject to the hold-back restrictions of this Section 3(d)(i) only once
during the term of this Agreement.
The foregoing provisions shall not apply to any Holder of
Registrable Securities if such Holder is prevented by applicable
statute or regulation from entering into any such agreement; provided,
however, that any such Holder shall undertake, in its request to
participate in any such underwritten offering, not to effect any public
sale or distribution of the class of securities covered by such Shelf
Registration Statement (except as part of such underwritten offering)
during such period unless it has provided 45 days' prior written notice
of such sale or distribution to the Issuers or the managing underwriter
or underwriters, as the case may be.
(ii) Restrictions on the Issuers, Guarantors and Others. The
Issuers and Guarantors agree (A) not to effect any public or private
sale or distribution (including, without limitation, a sale pursuant to
Regulation D under the Securities Act) of any securities the same as or
similar to those covered by a Shelf Registration Statement or any
securities convertible into or exchangeable or exercisable for such
securities, during the 10 days prior to, and during the 60-day period
beginning on, the commencement of an underwritten public distribution
of Registrable Securities, where the managing underwriter or
underwriters so requests pursuant to timely written notice; (B) to
include in any agreements entered into by any Issuer or Guarantor on or
after the date of this Agreement (other than any underwriting agreement
relating to a public offering registered under the Securities Act)
pursuant to which any Issuer or Guarantor issues or agrees to issue
securities the same as or similar to the Notes a provision
substantially identical to Section 3(d)(i); and (C) not to grant or
agree to grant any "piggy-back registration" or other similar rights to
any holder of any Issuer or Guarantor or any of their respective
subsidiaries' securities issued on or after the date of this Agreement
with respect to any Registration Statement.
(e) Limitations, Conditions and Qualifications to Obligations
Under Registration Covenants. The obligations of the Issuers and Guarantors set
forth in this Section 3 are subject to each of the following limitations,
conditions and qualifications:
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(i) Subject to the next sentence of this paragraph, the
Issuers and Guarantors shall be entitled to postpone, for a reasonable
period of time, the filing or effectiveness of, or suspend the rights
of any Holders to make sales pursuant to, any Registration Statement
otherwise required to be prepared, filed and made and kept effective by
them hereunder; provided, however, that the duration of such
postponement or suspension may not extend beyond the earlier to occur
of (A) the day after the cessation of the circumstances described in
the next sentence of this paragraph on which such postponement or
suspension is based or (B) 90 days after the date of the determination
of the Board of Directors referred to in the next sentence. Such
postponement or suspension may be effected only if the Manager and
Board of Directors, as applicable, of the Issuers determine reasonably
and in good faith that the filing or effectiveness of, or sales
pursuant to, such Registration Statement would materially impede, delay
or interfere with any financing, offer or sale of securities,
acquisition, corporate reorganization or other significant transaction
involving the Issuers or any of their affiliates or require disclosure
of material information that the Issuers have a bona fide business
purpose for preserving as confidential; provided, however, that the
Issuers shall be entitled to such postponement or suspension only once
during the term of this Agreement. If the Issuers so postpone the
filing of a Registration Statement they shall, as promptly as possible,
deliver a certificate signed by the chief executive officer of each of
the Issuers to the Holders as to such determination. The exercise by
the Issuers of their rights under this Section 3(e) shall not relieve
them of their obligation to pay Additional Interest pursuant to Section
4 if the Registration Statement is not filed by the applicable Filing
Date or declared effective by the applicable Effectiveness Date or
postponed or suspended beyond the period specified therein.
4. ADDITIONAL INTEREST
(a) The Issuers, Guarantors and the Initial Purchasers agree
that the Holders of Notes will suffer damages if the Issuers and Guarantors fail
to fulfill their obligations under Section 2 or Section 3 hereof (including by
virtue of their exercise of their rights under Section 3(d) hereof) and that it
would not be feasible to ascertain the extent of such damages with precision.
Accordingly, the Issuers and Guarantors agree jointly and severally to pay, as
liquidated damages, additional interest on the Registrable Securities
("Additional Interest") under the circumstances and to the extent set forth
below (each of which shall be given independent effect):
(i) if either the Exchange Offer Registration Statement or the
Initial Shelf Registration Statement required to be filed under this
Agreement has not been filed on or prior to the Filing Date (unless,
with respect to the Exchange Offer Registration Statement, a Shelf
Registration Event described in clause (i) of Section 2(c) shall have
occurred prior to the Filing Date), Additional Interest shall accrue on
the Registrable Securities over and above the stated interest in an
amount equal to $0.05 per week (or any part thereof), per $1,000 of
principal amount (as of the first day of each such week) of the
Registrable Securities for the first 90 days immediately following such
date, such Additional Interest rate increasing by an additional $0.05
per week (or any part thereof)
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per $1,000 of principal amount (as of the first day of each such week)
of the Registrable Securities for each subsequent 90-day period;
(ii) if either the Exchange Offer Registration Statement or
the Initial Shelf Registration Statement required to be filed under
this Agreement is not declared effective by the SEC on or prior to the
Effectiveness Date (unless, with respect to the Exchange Offer
Registration Statement, a Shelf Registration Event described in clause
(i) of Section 2(c) above shall have occurred), Additional Interest
shall accrue on the Registrable Securities over and above the stated
interest in an amount equal to $0.05 per week (or any part thereof) per
$1,000 of principal amount (as of the first day of each such week) of
the Registrable Securities for the first 90 days immediately following
the day after such date, such Additional Interest rate increasing by an
additional $0.05 per week (or any part thereof) per $1,000 of principal
amount (as of the first day of each such week) of the Registrable
Securities for each subsequent 90-day period; and
(iii) if (A) the Issuers have not exchanged Exchange
Securities for all Registrable Securities validly tendered and not
withdrawn in accordance with the terms of the Exchange Offer on or
prior to the fifth day after the Expiration Date, or (B) the Exchange
Offer Registration Statement ceases to be effective at any time prior
to the Expiration Date, or (C) if applicable, any Shelf Registration
Statement has been declared effective and such Shelf Registration
Statement ceases to be effective at any time during the Effectiveness
Period, then Additional Interest shall accrue on the Registrable
Securities (over and above any interest otherwise payable on the
Registrable Securities) in an amount equal to $0.05 per week (or any
part thereof) per $1,000 of principal amount (as of the first day of
each such week) of the Registrable Securities for the first 90 days
commencing on (x) the sixth day after the Expiration Date, in the case
of (A) above, or (y) the day the Exchange Offer Registration Statement
ceases to be effective in the case of (B) above, or (z) the day such
Shelf Registration Statement ceases to be effective in the case of (C)
above, such Additional Interest rate increasing by an additional $0.05
per week (or any part thereof) per $1,000 of principal amount (as of
the first day of each such week) of the Registrable Securities at the
beginning of each such subsequent 90-day period;
provided, however, that the Additional Interest rate on the Registrable
Securities may not exceed at any one time in the aggregate $0.40 per week per
$1,000 of principal amount (as of the first day of each such week) of the
Registrable Securities; provided, further, that (1) upon the filing of the
Exchange Offer Registration Statement or a Shelf Registration Statement as
required hereunder (in the case of clause (i) of this Section 4(a)), (2) upon
the effectiveness of the Exchange Offer Registration Statement or the Shelf
Registration Statement as required hereunder (in the case of clause (ii) of this
Section 4(a)) or (3) upon the exchange of Exchange Securities for all
Registrable Securities validly tendered and not withdrawn (in the case of clause
(iii)(A) of this Section 4(a)), or upon the effectiveness of the Exchange Offer
Registration Statement that had ceased to remain effective (in the case of
clause (iii)(B) of this Section 4(a)), or upon the effectiveness of the Shelf
Registration Statement that had ceased to remain effective (in the case of
clause (iii)(C) of this Section 4(a)), Additional Interest on the Registrable
Securities as a result of such clause (or the relevant subclause thereof), as
the case may be, shall cease to accrue (but any accrued amount shall be
payable).
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(b) The Issuers shall notify the Trustee within one business
day after each and every date on which an event occurs in respect of which
Additional Interest is required to be paid (an "Event Date"). The Issuers shall
jointly and severally pay the Additional Interest due on the Registrable
Securities by depositing with the Trustee, in trust, for the benefit of the
Holders thereof, on or before the applicable semi-annual interest payment date,
immediately available funds in sums sufficient to pay the Additional Interest
then due to Holders of Registrable Securities. Each obligation to pay Additional
Interest shall be deemed to accrue immediately following the occurrence of the
applicable Event Date. Any accrued Additional Interest amount shall be due and
payable on each interest payment date immediately after the applicable Event
Date to the record Holder of Registrable Securities entitled to receive the
interest payment to be made on such date as set forth in the Indenture. The
parties hereto agree that the Additional Interest provided for in this Section 4
constitutes a reasonable estimate of the damages that may be incurred by Holders
of Registrable Securities by reason of the failure of a Shelf Registration
Statement or Exchange Offer Registration Statement to be filed or declared
effective, or a Shelf Registration Statement to remain effective, as the case
may be, in accordance with this Section 4.
5. REGISTRATION PROCEDURES
In connection with the registration of any Registrable
Securities pursuant to Sections 2 or 3 hereof, the Issuers and Guarantors shall
use their commercially reasonable best efforts to effect such registrations to
permit the sale of such Registrable Securities in accordance with the intended
method or methods of disposition thereof, and pursuant thereto the Issuers and
Guarantors shall:
(a) prepare and file with the SEC on or before the Filing
Date, a Registration Statement or Registration Statements as prescribed by
Section 2 or 3, and to use their commercially reasonable best efforts to cause
each such Registration Statement to become effective and remain effective as
provided herein, provided that, if such filing is pursuant to Section 3, before
filing any Registration Statement or Prospectus or any amendments or supplements
thereto, the Issuers shall furnish to and afford the Holders of the Registrable
Securities covered by such Registration Statement, their counsel and the
managing underwriters, if any, a reasonable opportunity to review copies of all
such documents (including copies of any documents to be incorporated by
reference therein and all exhibits thereto) proposed to be filed (at least five
days prior to such filing); the Issuers and Guarantors shall not file any
Registration Statement or Prospectus or any amendments or supplements thereto in
respect of which the Holders must be afforded a reasonable opportunity to review
prior to the filing of such document, if the Holders of a majority in aggregate
principal amount of the Registrable Securities covered by such Registration
Statement, their counsel, or the managing underwriters, if any, shall reasonably
object;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Shelf Registration Statement or Exchange Offer
Registration Statement, as the case may be, as may be necessary to keep such
Registration Statement continuously effective for the Effectiveness Period, in
the case of a Shelf Registration Statement, or until the later of the Expiration
Date and the Applicable Period (if applicable), in the case of the Exchange
Offer Registration Statement; cause the related Prospectus to be supplemented by
any required
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Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424
(or any similar provisions then in force) under the Securities Act; and comply
with the provisions of the Securities Act, the Exchange Act and the rules and
regulations of the SEC promulgated thereunder applicable to them with respect to
the disposition of all securities covered by such Registration Statement as so
amended or in such Prospectus as so supplemented and with respect to the
subsequent resale of any securities being sold by a Participating Broker-Dealer
covered by any such Prospectus;
(c) if (1) a Shelf Registration Statement is filed pursuant to
Section 3, or (2) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2 is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Securities during the Applicable Period that has notified the Issuers in writing
that it will be a Participating Broker-Dealer in the Exchange Offer, notify the
selling Holders of Registrable Securities, or each such Participating
Broker-Dealer, as the case may be, their counsel and the managing underwriters,
if any, promptly (but in any event within five business days), and confirm such
notice in writing, (i) when a Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to a Registration
Statement or any post-effective amendment, when the same has become effective
(including in such notice a written statement that any Holder may, upon request,
obtain, without charge, one conformed copy of such Registration Statement or
post-effective amendment including financial statements and schedules, documents
incorporated or deemed to be incorporated by reference and exhibits); (ii) of
the issuance by the SEC of any stop order suspending the effectiveness of a
Registration Statement or of any order preventing or suspending the use of any
preliminary prospectus or the initiation of any proceedings for that purpose;
(iii) if at any time when a prospectus is required by the Securities Act to be
delivered in connection with sales of the Registrable Securities the
representations and warranties of the Issuers contained in any agreement
(including any underwriting agreement) contemplated by Section 5(n) below cease
to be true and correct; (iv) of the receipt by the Issuers of any notification
with respect to the suspension of the qualification or exemption from
qualification of a Registration Statement or any of the Registrable Securities
or the Exchange Securities to be sold by any such Participating Broker-Dealer
for offer or sale in any jurisdiction, or the initiation or threatening of any
proceeding for such purpose; (v) of the happening of any event or any
information becoming known that makes any statement made in such Registration
Statement or related Prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue in any material respect or that
requires the making of any changes in such Registration Statement, Prospectus or
documents so that, in the case of the Registration Statement, it will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, and that in the case of the Prospectus, it will not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading provided,
however, that such notification need not specifically identify such event if
notification of the occurrence thereof would in the Issuers' reasonable
judgment, involve the disclosure of confidential non-public information; and
(vi) of the Issuers' reasonable determination that a post-effective amendment to
the Registration Statement would be appropriate;
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(d) if (1) a Shelf Registration Statement is filed pursuant to
Section 3, or (2) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2 is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Securities during the Applicable Period, use their commercially reasonable best
efforts to prevent the issuance of any order suspending the effectiveness of a
Registration Statement or of any order preventing or suspending the use of a
Prospectus or suspending the qualification (or exemption from qualification) of
any of the Registrable Securities or the Exchange Securities to be sold by any
Participating Broker-Dealer, for sale in any jurisdiction, and, if any such
order is issued, use their commercially reasonable best efforts to obtain the
withdrawal of any such order at the earliest possible moment;
(e) if a Shelf Registration Statement is filed pursuant to
Section 3 and if requested by the managing underwriters, if any, or the Holders
of a majority in aggregate principal amount of the Registrable Securities being
sold in connection with an underwritten offering, (i) promptly incorporate in a
prospectus supplement or post-effective amendment such information as the
managing underwriters, if any, or such Holders or their respective counsel
reasonably request to be included therein; and (ii) make all required filings of
such prospectus supplement or such post-effective amendment as soon as
reasonably practicable after the Issuers have received notification of the
matters to be incorporated in such prospectus supplement or post-effective
amendment;
(f) if a Shelf Registration Statement is filed pursuant to
Section 3, furnish to each selling Holder of Registrable Securities and upon
request to its counsel and each managing underwriter, if any, without charge,
one conformed copy of the Registration Statement or Statements and each
post-effective amendment thereto, including financial statements and schedules,
all documents incorporated or deemed to be incorporated therein by reference and
all exhibits;
(g) if (1) a Shelf Registration Statement is filed pursuant to
Section 3, or (2) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2 is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Securities during the Applicable Period, deliver to each selling Holder of
Registrable Securities, or each such Participating Broker-Dealer, as the case
may be, their counsel, and the underwriters, if any, without charge, as many
copies of the Prospectus or Prospectuses (including each form of preliminary
prospectus) and each amendment or supplement thereto and any documents
incorporated by reference therein as such Persons may reasonably request; and,
subject to the last paragraph of this Section 5, the Issuers and Guarantors
hereby consent to the use of such Prospectus and each amendment or supplement
thereto by each of the selling Holders of Registrable Securities or each such
Participating Broker-Dealer, as the case may be, and the underwriters or agents,
if any, and dealers (if any), in connection with the offering and sale of the
Registrable Securities covered by or the sale by Participating Broker-Dealers of
the Exchange Securities pursuant to such Prospectus and any amendment or
supplement thereto, provided that such use complies with all applicable laws and
regulations;
(h) prior to any public offering of Registrable Securities or
any delivery of a Prospectus contained in the Exchange Offer Registration
Statement by any Participating Broker-
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Dealer who seeks to sell Exchange Securities during the Applicable Period, use
their commercially reasonable best efforts to register or qualify, and to
cooperate with the selling Holders of Registrable Securities or each such
Participating Broker-Dealer, as the case may be, the underwriters, if any, and
their respective counsel in connection with the registration or qualification
(or exemption from such registration or qualification) of such Registrable
Securities for offer and sale under the securities or Blue Sky laws of such
jurisdictions within the United States as any selling Holder, Participating
Broker-Dealer, or the managing underwriters reasonably request in writing,
provided that where Exchange Securities held by Participating Broker-Dealers or
Registrable Securities are offered other than through an underwritten offering,
the Issuers and Guarantors shall cause their counsel to (i) perform Blue Sky
investigations and file registrations and qualifications required to be filed
pursuant to this Section 5(h); (ii) use their commercially reasonable best
efforts to keep each such registration or qualification (or exemption therefrom)
effective during the period such Registration Statement is required to be kept
effective; and (iii) do any and all other acts or things necessary or advisable
to enable the disposition in such jurisdictions of the Exchange Securities held
by Participating Broker-Dealers or the Registrable Securities covered by the
applicable Registration Statement, provided further that no Issuer or Guarantor
shall in any case be required to (A) qualify generally to do business in any
jurisdiction where it is not then so qualified, (B) take any action that would
subject it to general service of process in any such jurisdiction where it is
not then so subject, (C) subject itself to taxation in excess of a nominal
dollar amount in any such jurisdiction or (D) conform its capitalization or the
composition of its assets to the securities or Blue Sky laws of any such
jurisdiction;
(i) if a Shelf Registration Statement is filed pursuant to
Section 3, cooperate with the selling Holders of Registrable Securities and the
managing underwriters, if any, to facilitate the timely preparation and delivery
of certificates representing Registrable Securities to be sold, which
certificates shall not bear any restrictive legends and shall be in a form
eligible for deposit with The Depository Trust Company; and enable such
Registrable Securities to be in such denominations and registered in such names
as the managing underwriter or underwriters, if any, or Holders may reasonably
request;
(j) use their commercially reasonable best efforts to cause
the Registrable Securities covered by the Registration Statement to be
registered with or approved by such other governmental agencies or authorities
as may be necessary to enable the seller or sellers thereof or the underwriters,
if any, to consummate the disposition of such Registrable Securities, except as
may be required solely as a consequence of the nature of such selling Holder's
business, in which case the Issuers and Guarantors will cooperate in all
reasonable respects with the filing of such Registration Statement and the
granting of such approvals;
(k) if (1) a Shelf Registration Statement is filed pursuant to
Section 3, or (2) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2 is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Securities during the Applicable Period, upon the occurrence of any event
contemplated by paragraph 5(c)(v) or 5(c)(vi) above, as promptly as practicable
prepare and (subject to Section 5(a) above) file with the SEC, solely at the
expense of the Issuers and Guarantors, a supplement or post-effective amendment
to the Registration Statement or a supplement to the related Prospectus or any
document incorporated or deemed to be incorporated
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therein by reference, or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Securities being sold thereunder
or to the purchasers of the Exchange Securities to whom such Prospectus will be
delivered by a Participating Broker-Dealer, any such Prospectus will 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, in the light
of the circumstances under which they were made, not misleading;
(l) use their commercially reasonable best efforts to cause
the Registrable Securities covered by a Registration Statement or the Exchange
Securities, as the case may be, to be rated with the appropriate rating
agencies, if so requested by the Holders of a majority in aggregate principal
amount of Registrable Securities covered by such Registration Statement or the
Exchange Securities, as the case may be, or the managing underwriters, if any;
(m) prior to the effective date of the first Registration
Statement relating to the Registrable Securities, (i) provide the Trustee with
printed certificates for the Registrable Securities in a form eligible for
deposit with The Depository Trust Company; and (ii) provide a CUSIP number for
the Registrable Securities;
(n) in connection with an underwritten offering of Registrable
Securities pursuant to a Shelf Registration Statement, enter into an
underwriting agreement as is customary in underwritten offerings, provided such
agreement is reasonably acceptable to the Issuers and provided that the
underwriters are reasonably acceptable to the Issuers, and take all such other
actions as are reasonably requested by the managing underwriters in order to
expedite or facilitate the registration or the disposition of such Registrable
Securities, and in such connection if reasonably requested, (i) make such
representations and warranties to the underwriters, with respect to the business
of the Issuers and their subsidiaries and the Registration Statement, Prospectus
and documents, if any, incorporated or deemed to be incorporated by reference
therein, in each case, as are customarily made by issuers to underwriters in
underwritten offerings, and confirm the same if and when reasonably requested;
(ii) use their commercially reasonable best efforts to obtain opinions of
counsel to the Issuers and updates thereof in form and substance reasonably
satisfactory to the managing underwriters, addressed to the underwriters
covering the matters customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably requested by underwriters;
(iii) use their commercially reasonable best efforts to obtain "cold comfort"
letters and updates thereof in form and substance reasonably satisfactory to the
managing underwriters from the independent certified public accountants of the
Issuers (and, if necessary, any other independent certified public accountants
of any subsidiary of any Issuer or of any business acquired by any Issuer or any
of their subsidiaries for which financial statements and financial data are, or
are required to be, included in the Registration Statement), addressed to each
of the underwriters, such letters to be in customary form and covering matters
of the type customarily covered in "cold comfort" letters in connection with
underwritten offerings and such other matters as reasonably requested by
underwriters; and (iv) if an underwriting agreement is entered into, the same
shall contain indemnification provisions and procedures comparable to those set
forth in Section 7 hereof (or such other provisions and procedures reasonably
acceptable to the Issuers and the Holders of a majority in aggregate principal
amount of Registrable Securities covered by such Registration Statement and the
managing underwriters or agents) with respect to all parties to be indemnified
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pursuant to said Section, all of which shall be done at each closing under such
underwriting agreement, or as and to the extent required thereunder;
(o) if a Shelf Registration Statement is filed pursuant to
Section 3, subject to the prior receipt by the Issuers of undertakings to use
commercially reasonable efforts to preserve the confidentiality of any
information disclosed by the Issuers pursuant hereto in form and substance
reasonably satisfactory to the Issuers, make available for inspection by any
selling Holder of such Registrable Securities being sold, any underwriter
participating in any such disposition of Registrable Securities, if any, and any
attorney, accountant or other agent retained by any such selling holder or
underwriter (collectively, the "Inspectors"), at the offices where normally
kept, during reasonable business hours, all relevant financial and other
records, pertinent corporate documents and properties of the Issuers and their
subsidiaries (collectively, the "Records") as shall be necessary to enable them
to exercise any applicable due diligence responsibilities, and cause the
officers, directors and employees of the Issuers and their subsidiaries to
supply all information in each case requested by any such Inspector in
connection with such Registration Statement; however, records that the Issuers
determine, in good faith, to be confidential and any Records that the Issuers
notify the Inspectors are confidential shall not be disclosed by the Inspectors
unless (i) the disclosure of such Records is necessary to avoid or correct a
misstatement or omission in such Registration Statement; (ii) the release of
such Records is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction; (iii) the information in such Records has been made
generally available to the public; or (iv) release thereof is necessary or
advisable in connection with any action, suit or proceeding involving any Holder
or other Inspector;
(p) provide for an indenture trustee for the Registrable
Securities or the Exchange Securities, as the case may be, and cause the
Indenture or the trust indenture provided for in Section 2(a), as the case may
be, to be qualified under the TIA not later than the effective date of the
Exchange Offer or the first Registration Statement relating to the Registrable
Securities; and in connection therewith, cooperate with the trustee under any
such indenture and the holders of the Registrable Securities, to effect such
changes to such indenture as may be required for such Indenture to be so
qualified in accordance with the terms of the TIA; and execute, and use their
commercially reasonable best efforts to cause such trustee to execute, all
documents as may be required to effect such changes, and all other forms and
documents required to be filed with the SEC to enable such indenture to be so
qualified in a timely manner;
(q) comply with all applicable rules and regulations of the
SEC to the extent and so long as they are applicable to the Exchange Offer
Registration Statement or the Shelf Registration Statement and make generally
available to their securityholders earning statements satisfying the provisions
of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar
rule promulgated under the Securities Act) no later than 45 days after the end
of any 12- month period (or 90 days after the end of any 12-month period if such
period is a fiscal year) (i) commencing at the end of any fiscal quarter in
which Registrable Securities are sold to underwriters in a firm commitment or
commercially reasonable best efforts underwritten offering; and (ii) if not sold
to underwriters in such an offering, commencing on the first day of the first
fiscal quarter of the Issuers after the effective date of a Registration
Statement, which statements shall cover said 12-month periods;
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(r) upon consummation of an Exchange Offer or a Private
Exchange, obtain an opinion of counsel to the Issuers in customary form,
relating to the Exchange Securities or the Private Exchange Securities, as the
case may be, addressed to the Trustee for the benefit of all Holders of
Registrable Securities participating in the Exchange Offer or the Private
Exchange, as the case may be, and which includes an opinion that (i) the Issuers
have duly authorized, executed and delivered the Exchange Securities and Private
Exchange Securities and the related indenture; and (ii) each of the Exchange
Securities or the Private Exchange Securities, as the case may be, and related
indenture constitute legal, valid and binding obligations of the Issuers,
enforceable against the Issuers in accordance with their respective terms (with
customary exceptions);
(s) if an Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Registrable Securities by Holders to the
Issuers (or to such other Person as directed by the Issuers) in exchange for the
Exchange Securities or the Private Exchange Securities, as the case may be,
xxxx, or caused to be marked, on such Registrable Securities that such
Registrable Securities are being cancelled in exchange for the Exchange
Securities or the Private Exchange Securities, as the case may be; in no event
shall such Registrable Securities be marked as paid or otherwise satisfied;
(t) cooperate with each seller of Registrable Securities
covered by any Registration Statement and each underwriter, if any,
participating in the disposition of such Registrable Securities and their
respective counsel in connection with any filings required to be made with the
National Association of Securities Dealers, Inc. (the "NASD"); and
(u) use their commercially reasonable best efforts to take all
other steps necessary to effect the registration of the Registrable Securities
covered by a Registration Statement contemplated hereby.
The Issuers may require each seller of Registrable Securities
or Participating Broker-Dealer as to which any registration is being effected to
furnish to the Issuers such information regarding such seller or Participating
Broker-Dealer and the distribution of such Registrable Securities or Exchange
Securities to be sold by such Participating Broker-Dealer, as the case may be,
as the Issuers may, from time to time, reasonably request. The Issuers and
Guarantors may exclude from such registration the Registrable Securities of any
seller or Participating Broker-Dealer who unreasonably fails to furnish such
information within a reasonable time after receiving such request.
Each Holder of Registrable Securities and each Participating
Broker-Dealer agrees by acquisition of such Registrable Securities or Exchange
Securities to be sold by such Participating Broker-Dealer, as the case may be,
that, upon receipt of any notice from the Issuers of the happening of any event
of the kind described in Section 5(c)(ii), 5(c)(iv), 5(c)(v), or 5(c)(vi), such
Holder will forthwith discontinue disposition of such Registrable Securities
covered by such Registration Statement or Prospectus or Exchange Securities to
be sold by such Participating Broker-Dealer, as the case may be, until such
holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 5(k), or until it is advised in writing (the "Advice")
by the Issuers that the use of the applicable Prospectus may be resumed, and has
received copies of any amendments or supplements thereto.
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6. REGISTRATION EXPENSES
(a) All fees and expenses incident to the performance of or
compliance with this Agreement by the Issuers and Guarantors shall be borne
jointly and severally by the Issuers and Guarantors whether or not the Exchange
Offer Registration Statement or a Shelf Registration Statement is filed or
becomes effective, including, without limitation, (i) all registration and
filing fees (including, without limitation, (A) fees with respect to filings
required to be made with the NASD in connection with an underwritten offering
and (B) fees and expenses of compliance with state securities or Blue Sky laws
(including, without limitation, reasonable fees and disbursements of counsel) in
such jurisdictions (x) where the holders of Registrable Securities are located,
in the case of the Exchange Securities, or (y) as provided in Section 5(h), in
the case of Registrable Securities to be sold in a public offering or Exchange
Securities to be sold by a Participating Broker-Dealer during the Applicable
Period); (ii) printing expenses (including, without limitation, expenses of
printing certificates for Registrable Securities or Exchange Securities in a
form eligible for deposit with The Depository Trust Company and of printing
prospectuses if the printing of prospectuses is requested by the managing
underwriters, if any, or, in respect of Registrable Securities or Exchange
Securities to be sold by any Participating Broker-Dealer during the Applicable
Period, by the Holders of a majority in aggregate principal amount of the
Registrable Securities included in any Registration Statement or of such
Exchange Securities, as the case may be); (iii) messenger, telephone and
delivery expenses incurred by the any Issuer or Guarantor; (iv) fees and
disbursements of counsel for any Issuer or Guarantor and reasonable fees and
disbursements of special counsel for the sellers of Registrable Securities but
only with respect to such counsel's review of the Registration Statement and
Prospectus, including, without limitation, any portions of the Registration
Statement and Prospectus relating to the Holders, and all documentation related
thereto, including any underwriting agreement and all related documentation
(subject to the provisions of Section 6(b)); (v) fees and disbursements of all
independent certified public accountants referred to in Section 5(n)(iii)
(including, without limitation, the expenses of any special audit and "cold
comfort" letters required by or incident to such performance); (vi) the
reasonable fees and expenses of any "qualified independent underwriter" or other
independent appraiser participating in an offering pursuant to Rule 2710 of the
Conduct Rules of the NASD; (vii) rating agency fees; (viii) Securities Act
liability insurance, if any Issuer or Guarantor desires such insurance; (ix)
fees and expenses of all other Persons retained by any Issuer or Guarantor; (x)
internal expenses of any Issuer or Guarantor (including, without limitation, all
salaries and expenses of officers and employees of any Issuer or Guarantor
performing legal or accounting duties); (xi) the expense of any annual audit of
any Issuer or Guarantor; (xii) the fees and expenses incurred by any Issuer or
Guarantor in connection with the listing of the Registrable Securities on any
securities exchange; and (xiii) the expenses relating to printing, word
processing and distributing all Registration Statements, underwriting
agreements, securities sales agreements, indentures and any other documents
necessary in order to comply with this Agreement. Anything contained herein to
the contrary notwithstanding, no Issuer or Guarantor shall have any obligation
whatsoever in respect of any underwriters' discounts or commissions, brokerage
commissions, dealers' selling concessions, transfer taxes or any other selling
expenses (other than those expressly enumerated in clauses (i) through (xiii)
above) incurred in connection with the underwriting, offering or sale of
Registrable Securities or Exchange Securities by or on behalf of any Person.
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(b) In connection with any Shelf Registration Statement
hereunder, the Issuers and Guarantors shall jointly and severally reimburse the
Holders of the Registrable Securities being registered in such registration for
the reasonable fees and disbursements of not more than one counsel (in addition
to appropriate local counsel) chosen by the Holders of a majority in aggregate
principal amount of the Registrable Securities to be included in such
Registration Statement and other reasonable out-of-pocket expenses of the
Holders of Registrable Securities incurred in connection with the registration
of the Registrable Securities.
7. INDEMNIFICATION
The Issuers and Guarantors agree to jointly and severally
indemnify and hold harmless each Holder of Registrable Securities and each
Participating Broker-Dealer selling Exchange Securities during the Applicable
Period, the officers and directors of each such person, and each person, if any,
who controls any such person within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act (each, a "Participant"), from
and against any and all losses, claims, damages and liabilities (including,
without limitation, the reasonable legal fees and other expenses actually
incurred in connection with any suit, action or proceeding or any claim
asserted) caused by any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement (or any amendment thereto)
or Prospectus (as amended or supplemented if the Issuers and Guarantors shall
have furnished any amendments or supplements thereto) or any preliminary
prospectus, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except insofar as such losses, claims, damages or liabilities are
caused by any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with information relating to
such Participant furnished to the Issuers and Guarantors in writing by such
Participant (or, if such Participant is not a Holder or a Participating
Broker-Dealer, furnished in writing by the Holder or Participating Broker-Dealer
in respect of which such person is a Participant relating to such Participant)
expressly for use therein; provided that (i) the foregoing indemnity with
respect to any preliminary prospectus shall not inure to the benefit of any
Participant (or to the benefit of any officer or director of, or of any person
controlling, such Participant) from whom the person asserting any such losses,
claims, damages or liabilities purchased Registrable Securities to the extent
that such untrue statement or omission or alleged untrue statement or omission
made in such preliminary prospectus is eliminated or remedied in the related
Prospectus (as amended or supplemented if the Issuers and Guarantors shall have
furnished any amendments or supplements thereto) and a copy of the related
Prospectus (as so amended or supplemented) shall not have been furnished to such
person at or prior to the sale of such Registrable Securities or Exchange
Securities, as the case may be, to such person and (ii) the foregoing indemnity
with respect to any Prospectus shall not inure to the benefit of a Holder of
Registrable Securities or Participating Broker-Dealer to the extent that such
Holder or Participating Broker-Dealer uses such Prospectus three business days
after such time as the Issuers shall have advised such Holder or Participating
Broker-Dealer in writing of the happening of any event that makes any statement
of a material fact made in such Prospectus untrue or which requires the making
of any additions to or changes in such Prospectus in order that it will not
contain an untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they are made, not misleading.
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Each Participant will be required to agree, severally and not
jointly, to indemnify and hold harmless each of the Issuers and Guarantors,
their respective managers, directors, and officers who sign the Registration
Statement and each person who controls any Issuer or Guarantor within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Issuers and Guarantors to
each Participant, but only with reference to information relating to such
Participant furnished to the Issuers and Guarantors in writing by such
Participant expressly for use in any Registration Statement or Prospectus, any
amendment or supplement thereto, or any preliminary prospectus. The liability of
any Participant under this paragraph shall in no event exceed the net proceeds
received by such Participant from sales of Registrable Securities giving rise to
such obligations.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the
reasonable fees and expenses incurred by such counsel related to such
proceeding, provided that the failure to so notify the Indemnifying Person shall
not relieve it of any obligation or liability which it may have hereunder or
otherwise (unless and only to the extent that such failure actually prejudices
the Indemnifying Person). In any such proceeding, any Indemnified Person shall
have the right to retain its own counsel, but, other than in circumstances
involving a conflict among Indemnified Persons, the fees and expenses of such
counsel shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have agreed to the
contrary; (ii) the Indemnifying Person has failed within a reasonable time to
retain counsel reasonably satisfactory to the Indemnified Person; or (iii) the
named parties in any such proceeding (including any impleaded parties) include
both the Indemnifying Person and the Indemnified Person and representation of
both parties by the same counsel would be inappropriate due to an actual or
potential conflict of interest or because there may be legal defenses available
to an indemnified party that are different from or in addition to those
available to the indemnifying party. It is understood that, other than in
circumstances involving a conflict among Indemnified Persons, the Indemnifying
Person shall not, in connection with any proceeding or related proceeding in the
same jurisdiction arising out of the same general allegations or circumstances,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all Indemnified Persons, and that all such fees and
expenses shall be reimbursed as they are incurred. Any such separate firm for
the Participants shall be designated in writing by Participants who sold a
majority in interest of Registrable Securities sold by all such Participants and
any such separate firm for any Issuer or Guarantor, their respective managers,
directors, and officers and such control persons of any Issuer or Guarantor
shall be designated in writing by such Issuer or Guarantor. The Indemnifying
Person shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the Indemnifying Person agrees to indemnify any
Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an Indemnified Person shall
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have requested an Indemnifying Person to reimburse the Indemnified Person for
reasonable fees and expenses incurred by counsel as contemplated by the third
sentence of this paragraph, the Indemnifying Person agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 60 days after receipt by such
Indemnifying Person of the aforesaid request and (ii) such Indemnifying Person
shall not have reimbursed the Indemnified Person in accordance with such request
prior to the date of such settlement; provided, however, that the Indemnifying
Person shall not be liable for any settlement effected without its consent
pursuant to this sentence if the Indemnifying Party is contesting, in good
faith, the request for reimbursement. No Indemnifying Person shall, without the
prior written consent of the Indemnified Person, effect any settlement of any
pending or threatened proceeding in respect of which any Indemnified Person is
or could have been a party, unless such settlement includes an unconditional
written release of such Indemnified Person in form and substance satisfactory to
the Indemnified Persons from all liability on claims that are the subject matter
of such proceeding.
If the indemnification provided for in the first and second
paragraphs of this Section 7 is for any reason unavailable to, or insufficient
to hold harmless, an Indemnified Person in respect of any losses, claims,
damages or liabilities referred to therein, then each Indemnifying Person under
such paragraphs, in lieu of indemnifying such Indemnified Person thereunder and
in order to provide for just and equitable contribution, shall contribute to the
amount paid or payable by such Indemnified Person as a result of such losses,
claims, damages or liabilities in such proportion as is appropriate to reflect
(i) the relative benefits received by the Indemnifying Person or Persons on the
one hand and the Indemnified Person or Persons on the other from the initial
offering of the Notes or (ii) if the allocation provided by the foregoing clause
(i) is not permitted by applicable law, not only such relative benefits but also
the relative fault of the Indemnifying Person or Persons on the one hand and the
Indemnified Person or Persons on the other in connection with the statements or
omissions or alleged statements or omissions that resulted in such losses,
claims, damages or liabilities (or actions in respect thereof) as well as any
other relevant equitable considerations. The relative benefits received by the
Issuers and Guarantors on the one hand and the Participants on the other shall
be deemed to be in the same proportion as the total proceeds from the initial
offering (net of discounts and commissions but before deducting expenses) of the
Notes received by the Issuers bears to the total proceeds received by such
Participant from the sale of Registrable Securities. The relative fault of the
parties 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 any Issuer
or Guarantor, on the one hand, or such Participant or such other Indemnified
Person, as the case may be, on the other, the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission, and any other equitable considerations appropriate in the
circumstances.
The parties shall agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Participants were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any reasonable legal or other expenses actually incurred by
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such Indemnified Person in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 7, in no event
shall a Participant be required to contribute any amount in excess of the amount
by which net proceeds received by such Participant from sales of Registrable
Securities exceeds the amount of any damages that such Participant has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
The indemnity and contribution agreements contained in this
Section 7 will be in addition to any liability which the Indemnifying Persons
may otherwise have to the Indemnified Persons referred to above.
8. RULE 144 AND RULE 144A
Each Issuer and Guarantor 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 SEC thereunder in a timely manner
and, if at any time such Issuer or Guarantor is not required to file such
reports, it will, upon the request of any Holder of Registrable Securities, make
publicly available other information so long as necessary to permit sales
pursuant to Rule 144 and Rule 144A under the Securities Act. Each Issuer and
Guarantor further covenants that it will take such further action as any Holder
of Registrable Securities may reasonably request, to the extent required from
time to time to enable such Holder to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by Rule 144 and Rule 144A under the Securities Act.
9. UNDERWRITTEN REGISTRATIONS
If any of the Registrable Securities covered by any Shelf
Registration Statement are to be sold in an underwritten offering, the
investment banker or investment bankers and manager or managers that will manage
the offering will be selected by the Holders of a majority in aggregate
principal amount of such Registrable Securities included in such offering and
reasonably acceptable to the Issuers.
No Holder of Registrable Securities may participate in any
underwritten registration hereunder unless such Holder (a) agrees to sell such
Holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements (however the terms applicable to each Holder shall be identical in
all respects) and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements applicable to all Holders.
10. MISCELLANEOUS
(a) Remedies. In the event of a breach by any Issuer or
Guarantor of any of its obligations under this Agreement, each Holder of
Registrable Securities, in addition to being entitled to exercise all rights
provided herein, in the Indenture or, in the case of the Initial
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Purchasers, in the Purchase Agreement or granted by law, including recovery of
damages, will be entitled to specific performance of its rights under this
Agreement. Each Issuer and Guarantor agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it of any
of the provisions of this Agreement and hereby further agrees that, in the event
of any action for specific performance in respect of such breach, it shall waive
the defense that a remedy at law would be adequate.
(b) No Inconsistent Agreements. Each Issuer and Guarantor has
not, as of the date hereof, entered into and shall not, after the date of this
Agreement, enter into any agreement with respect to any of its securities that
is inconsistent with the rights granted to the Holders of Registrable Securities
in this Agreement or otherwise conflicts with the provisions hereof. Each Issuer
and Guarantor has not entered into and will not enter into any agreement with
respect to any of its securities which will grant to any Person "piggy-back"
rights with respect to a Registration Statement.
(c) Adjustments Affecting Registrable Securities. Each Issuer
and Guarantor shall not, directly or indirectly, take any action with respect to
the Registrable Securities as a class that would adversely affect the ability of
the Holders of Registrable Securities to include such Registrable Securities in
a registration undertaken pursuant to this Agreement.
(d) Guarantors. So long as any Registrable Securities remain
outstanding, each Issuer and Guarantor shall cause each of its subsidiaries that
becomes a guarantor of the Notes under the Indenture to execute and deliver a
counterpart to this Agreement which subjects such subsidiary to the provisions
of this agreement as a guarantor (all such subsidiaries, the "Guarantors"). Each
of the Guarantors agrees to join the Issuers in all of their undertakings
hereunder to effect the Exchange Offer for the Exchange Securities (which will
be guaranteed by each of the Guarantors with terms identical to such Guarantors'
guaranty of the Notes) and the filing of any Shelf Registration Statement
required hereunder (including, without limitation, the undertakings in Section 5
hereof).
(e) Amendments and Waivers. Except as provided in paragraph
(c) above, the provisions of this Agreement may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, otherwise than with the prior written consent of (A) the
Holders of not less than a majority in aggregate principal amount of the then
outstanding Registrable Securities and (B) in circumstances that would adversely
affect the Participating Broker-Dealers, the Participating Broker-Dealers
holding not less than a majority in aggregate principal amount of the Exchange
Securities held by all Participating Broker-Dealers; provided, however, that
Section 7 and this Section 10(e) may not be amended, modified or supplemented
without the prior written consent of each Holder and each Participating
Broker-Dealer (including any person who was a Holder or Participating
Broker-Dealer of Registrable Securities or Exchange Securities, as the case may
be, disposed of pursuant to any Registration Statement) affected by any such
amendment, modification or supplement. Notwithstanding the foregoing, a waiver
or consent to depart from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders of Registrable Securities whose
securities are being sold pursuant to a Registration Statement and that does not
directly or indirectly affect, impair, limit or compromise the rights of other
Holders of
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Registrable Securities may be given by Holders of at least a majority in
aggregate principal amount of the Registrable Securities being sold by such
Holders pursuant to such Registration Statement.
(f) Notices. All notices and other communications (including
without limitation any notices or other communications to the Trustee) provided
for or permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day courier or telecopier:
(i) if to a Holder of Registrable Securities, at the most
current address given by the Trustee to the Issuers; and
(ii) if to the Issuers, at Digital Television Services, LLC,
Building C-200, 000 Xxxxxxx Xxxxxx Xxxx, Xxxxxxx, Xxxxxxx 00000,
Attention: Chief Financial Officer.
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; one business
day after being timely delivered to a next-day courier; and when receipt is
acknowledged by the addressee's telecopier machine, if telecopied.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the trustee
under the Indenture at the address specified in such Indenture.
(g) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders of Registrable Securities.
(h) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(i) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(j) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO
THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(k) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or
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unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated, and the parties hereto shall use
their commercially reasonable best efforts to find and employ an alternative
means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction. It is hereby stipulated and
declared to be the intention of the parties that they would have executed the
remaining terms, provisions, covenants and restrictions without including any of
such that may be hereafter declared invalid, illegal, void or unenforceable.
(l) Entire Agreement. This Agreement, together with the
Purchase Agreement, is intended by the parties as a final expression of their
agreement, and is intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein and therein.
(m) Securities Held by the Issuers and Guarantors or their
Affiliates. Whenever the consent or approval of Holders of a specified
percentage of Registrable Securities is required hereunder, Registrable
Securities held by any Issuer or Guarantor or its respective affiliates (as such
term is defined in Rule 405 under the Securities Act) shall be deemed to be not
outstanding for purposes of determining whether such consent or approval was
given by the Holders of such required percentage.
[Signature Pages Follow]
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Please confirm that the foregoing correctly sets forth the
agreement between the Issuers and the Guarantors and the Initial Purchasers.
Very truly yours,
DIGITAL TELEVISION SERVICES, LLC
DIGITAL TELEVISION SERVICES OF
CALIFORNIA, LLC
DIGITAL TELEVISION SERVICES OF
COLORADO, LLC
DIGITAL TELEVISION SERVICES OF
GEORGIA, LLC
DIGITAL TELEVISION SERVICES OF
KANSAS, LLC
DIGITAL TELEVISION SERVICES OF
KENTUCKY, LLC
DIGITAL TELEVISION SERVICES OF NEW
MEXICO, LLC
DIGITAL TELEVISION SERVICES OF NEW
YORK I, LLC
DIGITAL TELEVISION SERVICES OF SOUTH
CAROLINA I, LLC
DIGITAL TELEVISION SERVICES OF
VERMONT, LLC
By: DTS Management, LLC
their manager
By: /s/
-----------------------------
Name:
Title:
DTS MANAGEMENT, LLC
By: /s/
----------------------------------
Name:
Title:
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SPACENET, INC.
By: /s/
----------------------------------
Name:
Title:
DTS CAPITAL, INC.
By: /s/
----------------------------------
Name:
Title:
Accepted and Agreed to as of
the date first above written.
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
By: /s/
------------------------------
Name:
Title:
CIBC WOOD GUNDY SECURITIES CORP.
By: /s/
------------------------------
Name:
Title:
X.X. XXXXXX SECURITIES INC.
By: /s/
------------------------------
Name:
Title:
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Schedule 1
Digital Television Services of New Mexico, LLC
Digital Television Services of Colorado, LLC
Digital Television Services of New York I, LLC
Digital Television Services of South Carolina I, LLC
Digital Television Services of Kentucky, LLC
Digital Television Services of Kansas, LLC
Digital Television Services of Vermont, LLC
Digital Television Services of Georgia, LLC
Digital Television Services of California, LLC
Spacenet, Inc.
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