EXHIBIT 4.5
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WARRANT REGISTRATION RIGHTS AGREEMENT
March 31, 1998
By and Among
AMERICAN MOBILE SATELLITE CORPORATION
and
BEAR, XXXXXXX & CO. INC.,
X.X. XXXXXX SECURITIES INC.,
T.D. SECURITIES (USA) INC.
BANCAMERICA XXXXXXXXX XXXXXXXX
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WARRANT REGISTRATION RIGHTS AGREEMENT
THIS WARRANT REGISTRATION RIGHTS AGREEMENT (the "AGREEMENT") is made
and entered into as of March 31, 1998, by and among American Mobile Satellite
Corporation, a Delaware corporation (the "HOLDINGS"), Bear, Xxxxxxx & Co. Inc.,
X.X. Xxxxxx Securities Inc., TD Securities (USA) Inc. and BancAmerica Xxxxxxxxx
Xxxxxxxx (collectively, the "INITIAL PURCHASERS").
This Agreement is made pursuant to the Purchase Agreement dated March
31, 1998, among Holdings, AMSC Acquisition Company, Inc. (the "COMPANY"), the
Guarantors (as defined in the Purchaser Agreement) and the Initial Purchasers
(the "PURCHASE AGREEMENT"), relating to, among other things, the sale by
Holdings and the Company to the Initial Purchasers of an aggregate of 335,000
Units, consisting in the aggregate of (i) $335,000,000 principal amount at
maturity of 12 1/4% Senior Notes due 2008 of the Company (the "SENIOR NOTES")
and (ii) 335,000 Warrants (the "WARRANTS"), each representing the right to
purchase initially 3.75749 shares of Common Stock, par value $.01 per share, of
Holdings (the "COMMON STOCK"). The Warrants have been issued pursuant to the
Warrant Agreement dated as of the date hereof between the Company and State
Street Bank and Trust Company, as warrant agent (the "WARRANT AGREEMENT"). In
order to induce the Initial Purchasers to enter into the Purchase Agreement,
Holdings has agreed to provide to the Initial Purchasers and the Holders (as
defined herein), among other things, the registration rights for the Warrant
Shares (as defined herein) set forth in this Agreement. The execution and
delivery of this Agreement is a condition to the obligations of the Initial
Purchasers under the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have
the following meanings:
ACT: The Securities Act of 1933, as amended.
BUSINESS DAY: Any day except a Saturday, Sunday or other day in the
City of New York, or in the city of the corporate trust office of the Trustee,
on which banks are authorized to close.
CLOSING DATE: The date hereof.
COMMISSION: The Securities and Exchange Commission.
COMMON STOCK: The common stock, $.01 par value, of the Company.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended from
time to time.
EXCHANGE OFFER: As defined in the A/B Exchange Registration Rights
Agreement, dated the Closing Date, among Holdings, the Company, the Guarantors
and the Initial Purchasers.
HOLDERS: As defined in Section 2 hereof.
INDENTURE: The Indenture, dated the Closing Date, among Holdings, the
Company, the Guarantors and State Street Bank and Trust Company, as trustee (the
"TRUSTEE"), pursuant to which the
Senior Notes are to be issued, as such Indenture is amended or supplemented from
time to time in accordance with the terms thereof.
NASD: National Association of Securities Dealers, Inc.
OFFERING MEMORANDUM: The Offering Memorandum of Holdings and the
Company dated March 26, 1998, relating to the Offering of the Units.
PERSON: An individual, partnership, corporation, trust,
unincorporated organization, or a government or agency or political subdivision
thereof.
PROSPECTUS: The prospectus included in a Registration Statement at
the time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments thereto,
including post-effective amendments, and all material incorporated by reference
into such Prospectus.
REGISTRABLE SECURITIES: The Warrants, Warrant Shares and any other
securities issued or issuable with respect to the Warrants or the Warrant Shares
by way of a stock dividend or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization;
provided that a security ceases to be a Registrable Security when it is no
longer a Transfer Restricted Security.
REGISTRATION EXPENSES: As defined in Section 6 hereof.
REGISTRATION STATEMENT: Any registration statement of Holdings which
covers Registrable Securities pursuant to the provisions of this Agreement,
including the Prospectus, amendments and supplements to such Registration
Statement, including post-effective amendments, and all exhibits and all
material incorporated by reference in such Registration Statement.
SELLING HOLDER: Means a Holder who is selling Registrable Securities
pursuant to Section 3 hereof.
TRANSFER RESTRICTED SECURITIES: A Warrant or Warrant Share, until
such Warrant or Warrant Share, as applicable, (i) has been effectively
registered under the Act and disposed of in accordance with the Registration
Statement covering it, (ii) is distributed to the public pursuant to Rule 144 or
(iii) may be sold or transferred pursuant to Rule 144(k) (or any similar
provisions then in force) under the Act or otherwise.
WARRANTS: The warrants of Holdings issued and sold pursuant to the
Purchase Agreement and the Warrant Agreement, together with any warrants issued
in substitution or replacement therefor.
WARRANT AGREEMENT: The Warrant Agreement dated the Closing Date by
and between Holdings and State Street Ban and Trust Company as Warrant Agent.
WARRANT SHARES: The Common Stock or other securities which any Holder
may acquire upon exercise of a Warrant, together with any other securities which
such Holder may acquire on account of any such securities, including, without
limitation, as the result of any dividend or other distribution on Common Stock
or any split-up of such Common Stock as provided for in the Warrant Agreement.
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SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) Registrable Securities. The securities entitled to the benefits
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of this Agreement are the Registrable Securities.
(b) Holders of Registrable Securities. A Person is deemed to be a
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Holder of Registrable Securities whenever such Person owns Registrable
Securities or has the right to acquire such Registrable Securities, whether or
not such acquisition has actually been effected and disregarding any legal
restrictions upon the exercise of such right.
SECTION 3. SHELF REGISTRATION
(1) Holdings shall file and use its best efforts to be declared
effective, by the earlier of (i) the date that is one year after the date hereof
and (ii) 65 days after the occurrence of a Change of Control (the "COMMENCEMENT
DATE"), a "shelf" registration with respect to all Registrable Securities on any
appropriate form pursuant to Rule 415 (or similar rule that may be adopted by
the Commission) under the Act (the "SHELF REGISTRATION") covering the resale of
the Warrants and issuance of the Warrant Shares by Holdings upon exercise of the
Warrants. Notwithstanding the foregoing, Holdings shall not be required to file
such Shelf Registration on or prior to the consummation of the Exchange Offer;
provided that, in the event the Exchange Offer is consummated later than the
filing time required by the preceding sentence for the Shelf Registration,
Holdings shall file such Shelf Registration within 30 days after the date of the
consummation of the Exchange Offer.
(2) If the Holders of a majority of the Registrable Securities to be
registered in the Shelf Registration so elect, an offering of Registrable
Securities pursuant to the Shelf Registration may be effected in the form of an
underwritten offering of Warrant Shares. In such event, and if the managing
underwriters advise Holdings and the Holders of such Registrable Securities in
writing that in their opinion the amount of Warrant Shares proposed to be sold
in such offering exceeds the amount of Warrant Shares which can be sold in such
offering, there shall be included in such underwritten offering the amount of
such Warrant Shares which in the opinion of such underwriters can be sold, and
such amount shall be allocated pro rata among the Holders of such Warrant Shares
on the basis of the number of Warrant Shares requested to be included by such
Holders. Registrable Securities not sold in an underwritten offering
contemplated by this Section 3(2) shall continue to be registered pursuant to
the Shelf Registration for the period provided for in Section 3(4); provided
that such period shall be extended on a day-for-day basis for every day that the
Holders of Registrable Securities not sold in the underwritten offering are
subject to the holdback provided for in Section 3(6) below. The Holders of the
Warrant Shares to be registered shall pay all underwriting discounts and
commissions of such underwriters.
(3) If any of the Registrable Securities covered by the Shelf
Registration are to be sold in an underwritten offering, the investment banker
or investment bankers and manager or managers that will administer the offering
will be selected by the Holders of a majority in aggregate principal amount of
such Registrable Securities included in such offering; provided that such
investment bank or manager shall be reasonably satisfactory to Holdings.
(4) Holdings shall use its best efforts to keep the Shelf Registration
continuously effective until the earlier of (i) all of the Registrable
Securities cease to be Transfer Restricted Securities, or (ii) April 1, 2008,
and, to the extent that the Shelf Registration is kept not effective for one or
more days during such period, Holdings shall be required to extend the
effectiveness of the Shelf Registration
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for a like number of days after the expiration of the such period (it being
expressly acknowledged that such extension of the required period of
effectiveness is in addition to, and not in lieu of, the payment of liquidated
damages as provided in Section 4 hereof).
(5) Holdings further agrees to use its best efforts to prevent the
happening of any event that would cause any Registration Statement made pursuant
to Section 3 hereof to contain a material misstatement or omission or to be not
effective and usable for resale of the Registrable Securities during the period
that such Registration Statement is required to be effective and usable.
(6) Each Holder of Registrable Securities whose Registrable Securities
are covered by a Registration Statement filed pursuant to this Section 3 agrees,
if requested by the managing underwriters in an underwritten offering of Common
Stock, not to effect any public sale or distribution of securities of Holdings
of the same class as any Securities included in such Registration Statement,
including a sale pursuant to Rule 144 under the Act (except as part of such
underwritten registration), during the 10-day period prior to, and during the
90-day period beginning on, the closing date of the underwritten offering made
pursuant to such Registration Statement, to the extent timely notified in
writing by Holdings or the managing underwriters; provided that each Holder of
Registrable Securities shall be subject to the hold-back restrictions of this
Section 3(6) 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 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 any applicable class of Registrable
Securities commencing on the date of sale of such applicable class of
Registrable Securities unless it has provided 45 days prior written notice of
such sale or distribution to the underwriter or underwriters.
SECTION 4. HOLDER INFORMATION
No Holder of Registrable Securities may include any of its Registrable
Securities in the Shelf Registration Statement pursuant to this Agreement unless
and until such Holder furnishes to Holdings in writing such information Holdings
may reasonably request specified in Item 507 and Item 508 of Regulation S-K
under the Act for use in connection with the Shelf Registration Statement or
Prospectus or Preliminary Prospectus included therein. Each Holder agrees to
furnish promptly to Holdings all information required to be disclosed in order
to make the information previously furnished to Holdings by such Holder not
materially misleading.
SECTION 5. BLACK OUT PERIOD
During any consecutive 365 day period, Holdings may suspend the
effectiveness of the Shelf Registration Statement on two occasions for a period
of not more than 45 consecutive days if there is a possible acquisition or
business combination or other transaction, business development or event
involving Holdings that may require disclosure in the Shelf Registration
Statement and the Board of Directors of Holdings determines in the exercise of
its reasonable judgment that such disclosure is not in the best interests of
Holdings and its stockholders or obtaining any financial statements relating to
an acquisition or business combination required to be included in the Shelf
Registration Statement would be impracticable. In such a case, Holdings shall
promptly notify the Holders of the suspension of the Shelf Registration
Statements effectiveness, provided that such notice shall not require Holdings
to disclose the possible acquisition or business combination or other
transaction, business development or event if
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the Board of Directors of Holdings determines in good faith that such
acquisition or business combination or other transaction, business development
or even should remain confidential. Upon the abandonment, consummation, or
termination of the possible acquisition or business combination or other
transaction, business development or event, or the availability of the required
financial statements with respect to a possible acquisition or business
combination, the suspension of the use of the Shelf Registration Statement
pursuant to this Section 5 shall cease and Holdings shall promptly comply with
Section 7(a)(2) hereof and notify the Holders that disposition of Registrable
Securities may be resumed. Notwithstanding anything to the contrary in this
Agreement, however, Holdings may not suspend the effectiveness of the Shelf
Registration Statement or permit any such suspension to continue at any time
after 45 days before the expiration of the Warrants.
SECTION 6. LIQUIDATED DAMAGES
If the Registration Statement: (i) is not filed with the Commission
on or prior to the date specified for such filing in Section 3(1) hereof; (ii)
has not been declared effective by the Commission on or prior to the dated
specified for such effectiveness in Section 3(1) hereof; or (iii) following the
date such Registration Statement is declared effective by the Commission, shall
cease to be effective without being restored to effectiveness by amendment or
otherwise within 30 business days, (each such event referred to in clauses (i)
through (iii), a "SHELF REGISTRATION DEFAULT") to the extent permitted by
applicable law, the Company shall pay as liquidated damages and not as a penalty
to each Holder during the first 90-day period immediately following the
occurrence, and during the continuance of such Shelf Registration Default, an
amount equal to $.025 per week per Warrant (or per such number of Warrant Shares
then issuable upon exercise of or in respect of a Warrant) held by such Holder
for each week or portion thereof that the Shelf Registration Default continues.
To the extent permitted by applicable law, the amount of the liquidated damages
will increase by an additional $.025 per week per Warrant (or per such number of
Warrant Shares then issuable upon exercise of or in respect of a Warrant) with
respect to each subsequent 90-day period until all Shelf Registration Defaults
have been cured, up to a maximum amount of liquidated damages of $.125 per week
per Warrant (or per such number of Warrant Shares then issuable upon exercise of
or in respect of a Warrant).
All accrued liquidated damages shall be paid to record Holders by the
Company by wire transfer of immediately available funds, or by mailing a federal
funds check, on each Interest Payment Date (as defined in the Indenture). All
obligations of the Company set forth in the preceding paragraph that are
outstanding with respect to any Registrable Security at the time such security
has been effectively registered under the Act shall survive until such time as
all such obligations with respect to such security have been satisfied in full.
SECTION 7. REGISTRATION PROCEDURES
(a) General Provisions. In connection with Holdings' registration
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obligations pursuant to Section 3 hereof, Holdings will use its best efforts to
effect such registration to permit the sale of such Registrable Securities in
accordance with the intended method or methods of disposition thereof, and
pursuant thereto Holdings will as expeditiously as possible:
(1) use its best efforts to keep such Registration Statement
continuously effective for the 180-day period following the Commencement Date
and provide or incorporate by reference all requisite financial statements for
such period. Upon the occurrence of any event that would cause any such
Registration Statement or the Prospectus contained therein (A) to contain a
material misstatement or omission or (B) not to be effective and usable for
resale of Registrable Securities during the period
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required by this Agreement, Holdings shall file promptly an appropriate
amendment to such Registration Statement or file appropriate documents that will
be so incorporated by reference, (1) in the case of clause (A), correcting any
such misstatement or omission, and (2) in the case of either clause (A) or (B),
use its best efforts to cause such amendment to be declared effective and such
Registration Statement and the related Prospectus to become usable for their
intended purpose(s) as soon as practicable thereafter;
(2) prepare and file with the Commission such amendments and post-
effective amendments to the Registration Statement as may be necessary to keep
the Registration Statement effective for the period set forth in Section 3(4),
cause the Prospectus to be supplemented by any required Prospectus supplement,
and as so supplemented to be filed pursuant to Rule 424 under the Act; and
comply in all material respects with the provisions of the Act with respect to
the disposition of all securities covered by such Registration Statement during
the applicable period in accordance with the intended method or methods of
distribution by the sellers thereof set forth in such Registration Statement or
supplement to the Prospectus; Holdings shall not be deemed to have used its best
efforts to keep a Registration Statement effective during the applicable period
if it voluntarily takes any action that would result in Holders of the
Registrable Securities covered thereby not being able to exercise their Warrants
or sell such Registrable Securities during that period unless such action is
required under applicable law, provided that the foregoing shall not apply to
actions taken by Holdings in good faith and for valid business reasons,
including without limitation the acquisition or divestiture of assets, so long
as Holdings promptly thereafter complies with the requirements of clause (14)
below, if applicable;
(3) advise the underwriter(s), if any, and Holders promptly and, if
requested by such Persons, confirm such advice in writing, (A) when the
Prospectus or any Prospectus supplement or post-effective amendment has been
filed, and, with respect to any Registration Statement or any post-effective
amendment thereto, when the same has become effective, (B) of any request by the
Commission for amendments to the Registration Statement or amendments or
supplements to the Prospectus or for additional information relating thereto,
(C) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement under the Act or of the suspension
by any state securities commission of the qualification of the Registrable
Securities for offering or sale in any jurisdiction, or the initiation of any
proceeding for any of the preceding purposes, (D) of the existence of any fact
or the happening of any event that makes any statement of a material fact made
in the Registration Statement, the Prospectus, any amendment or supplement
thereto or any document incorporated by reference therein untrue, or that
requires the making of any additions to or changes in the Registration Statement
in order to make the statements therein not misleading, or that requires the
making of any additions to or changes in the Prospectus in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, or any state
securities commission or other regulatory authority shall issue an order
suspending the qualification or exemption from qualification of the Registrable
Securities under state securities or Blue Sky laws, Holdings shall use its best
efforts to obtain the withdrawal or lifting of such order at the earliest
possible time;
(4) make available to each Selling Holder named in any Registration
Statement or Prospectus and each of the underwriter(s) in connection with such
sale, if any, before filing with the Commission, copies of any Registration
Statement or any Prospectus included therein or any amendments or supplements to
any such Registration Statement or Prospectus and Holdings will not file or will
correct any such Registration Statement or Prospectus or any amendment or
supplement to any such Registration Statement or Prospectus (including all such
documents incorporated by reference) to which the Selling Holders of the
Registrable Securities covered by such Registration Statement or the
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underwriter(s) in connection with such sale, if any, shall reasonably object
within five Business Days after the receipt thereof. A Selling Holder or
underwriter, if any, shall be deemed to have reasonably objected to such filing
if such Registration Statement, amendment, Prospectus or supplement, as
applicable, as proposed to be filed, contains a material misstatement or
omission or fails to comply with the applicable requirements of the Act;
(5) promptly upon the filing of any document that is to be
incorporated by reference into a Registration Statement or Prospectus, make
available copies of such document to the Selling Holders and to the
underwriter(s) in connection with such sale, if any, make Holdings'
representatives available for discussion of such document and other customary
due diligence matters, and include such information in such document prior to
the filing thereof as such Selling Holders or underwriter(s), if any, reasonably
may request;
(6) make available for inspection by a representative of the Holders
of Registrable Securities being sold, any underwriter participating in any such
disposition of Registrable Securities, if any, and any attorney or accountant
retained by such representative of the Holders or underwriter (collectively, the
"INSPECTORS"), at the offices where normally kept, during reasonable business
hours, at the Inspector's expense, all financial and other records, pertinent
corporate documents and properties of Holdings and the subsidiaries of Holdings,
and cause the officers, directors and employees of Holdings and the subsidiaries
of Holdings to supply all information in each case reasonably requested by any
such Inspector in connection with such Registration Statement; provided,
however, that (i) in connection with any such inspection, any such Inspectors
shall cooperate to the extent reasonably practicable to minimize any disruption
to the operation by Holdings of its business and (ii) any records, information
or documents shall be kept confidential by such Inspectors, unless (A) such
records, information or documents are in the public domain or otherwise publicly
available or (B) disclosure of such records, information or documents is
required by a court or administrative order or by applicable law and notice of
such requirement is promptly given to Holdings after being received;
(7) if requested by any Selling Holders or the underwriter(s) in
connection with such sale, if any, promptly include in any Registration
Statement or Prospectus, pursuant to a supplement or post-effective amendment if
necessary, such information as such Selling Holders and underwriter(s), if any,
may reasonably request to have included therein, including, without limitation,
information relating to the "Plan of Distribution" of the Registrable
Securities, information with respect to the principal amount of Registrable
Securities being sold to such underwriter(s), the purchase price being paid
therefor and any other terms of the 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 practicable after Holdings is
notified of the matters to be included in such Prospectus supplement or post-
effective amendment;
(8) furnish to each Holder and each of the underwriter(s) in
connection with a sale of Warrant Shares, if any, without charge, at least one
copy of the Registration Statement, as first filed with the Commission, and of
each amendment thereto, and make available all documents incorporated by
reference therein and all exhibits (including exhibits incorporated therein by
reference);
(9) deliver to each Selling Holder and each of the underwriter(s), if
any, without charge, as many copies of the Prospectus (including each
preliminary prospectus) and any amendment or supplement thereto as such Persons
reasonably may request; Holdings hereby consents to the use of the Prospectus
and any amendment or supplement thereto by each of the Selling Holders and each
of the
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underwriter(s), if any, in connection with the offering and the sale of the
Registrable Securities covered by the Prospectus or any amendment or supplement
thereto;
(10) enter into such agreements (including, unless not required
pursuant to Section 3 hereof, an underwriting agreement) and make such
representations and warranties and take all such other actions in connection
therewith that are reasonably necessary in order to expedite or facilitate the
disposition of the Registrable Securities pursuant to any Registration Statement
contemplated by this Agreement as may be reasonably requested by any Holder of
Registrable Securities or underwriter in connection with any exercise, sale or
resale pursuant to any Registration Statement contemplated by this Agreement,
and in such connection, whether or not an underwriting agreement is entered into
and whether or not the registration is an underwritten registration, Holdings
shall:
(A) furnish to each Selling Holder and each underwriter, if any,
upon the effectiveness of the Registration Statement:
(i) a certificate, dated the date of effectiveness of the
Registration Statement, signed by (x) the President and (y) any Vice
President, the Secretary or an Assistant Secretary of Holdings,
confirming, as of the date thereof, the matters of the types set forth
in paragraphs (a), (b), (c) and (d) of Section 8 of the Purchase
Agreement and such other matters as the Holders and/or underwriter(s)
may reasonably request;
(ii) an opinion (which may be rendered by the general
counsel of Holdings, except in the case of an underwritten offering),
dated the date of effectiveness of the Registration Statement, of
counsel for Holdings, covering (i) due authorization and
enforceability of the Warrants, (ii) a statement to the effect that
such counsel has participated in conferences with officers and other
representatives of Holdings and representatives of the independent
public accountants for Holdings and have considered the matters
required to be stated therein and the statements contained therein,
although such counsel has not independently verified the accuracy,
completeness or fairness of such statements; and that such counsel
advises that, on the basis of the foregoing (relying as to materiality
to a large extent upon facts provided to such counsel by officers and
other representatives of Holdings and without independent check or
verification), no facts came to such counsel's attention that caused
such counsel to believe that the applicable Registration Statement, at
the time such Registration Statement or any post-effective amendment
thereto became effective, and contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, or that the Prospectus contained in such Registration
Statement as of its date and, contained an untrue statement of a
material fact or omitted to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading and (iii) such other
matters of the type customarily covered in opinions of counsel for an
issuer in connection with similar securities offerings, as may
reasonably be requested by such parties. Without limiting the
foregoing, such counsel may state further that such counsel assumes no
responsibility for, and has not independently verified, the accuracy,
completeness or fairness of the financial statements, notes and
schedules and other financial, statistical and accounting data
included in any Registration Statement contemplated by this Agreement
or the related Prospectus; and
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(iii) a customary comfort letter, dated as of the date of
effectiveness of the Registration Statement, from Holdings'
independent accountants, in the customary form and covering matters of
the type customarily covered in comfort letters to underwriters in
connection with primary underwritten offerings, and affirming the
matters set forth in the comfort letters delivered pursuant to Section
8(i) of the Purchase Agreement, without exception;
(B) set forth in full or incorporate by reference in the
underwriting agreement, if any, in connection with any sale or resale
pursuant to any Registration Statement the indemnification provisions and
procedures of Section 9 hereof with respect to all parties to be
indemnified pursuant to said Section; and
(C) deliver such other documents and certificates as may be
reasonably requested by such parties to evidence compliance with clause (A)
above and with any customary conditions contained in the underwriting
agreement or other agreement entered into by Holdings pursuant to this
clause (10), if any.
The above shall be done at each closing under such underwriting or
similar agreement, as and to the extent required thereunder, and if at any time
the representations and warranties of Holdings contemplated in (A)(i) above
cease to be true and correct, Holdings shall so advise the underwriter(s), if
any, and Selling Holders promptly and if requested by such Persons, shall
confirm such advice in writing;
(11) prior to any public offering of Registrable Securities, cooperate
with the Holders, the underwriter(s), if any, and their respective counsel in
connection with the registration and qualification of the Registrable Securities
under the securities or Blue Sky laws of such jurisdictions as the Holders or
underwriter(s), if any, may request and do any and all other acts or things
necessary or advisable to enable the disposition in such jurisdictions of the
Registrable Securities covered by the applicable Registration Statement;
provided, however, that where Registrable Securities are offered other than
through an underwritten offering, Holdings agrees to cause its counsel to
perform Blue Sky investigations and file registrations and qualifications
required to be filed pursuant to this Section 5(a)(11), keep each such
registration or qualification (or exemption therefrom) effective during the
period that the applicable Registration Statement is required to remain
effective under the terms of this Agreement and do any and all other acts or
things necessary or advisable to enable the disposition in such jurisdictions of
the securities covered thereby; provided that Holdings shall not be required to
register or qualify as a foreign corporation where it is not now so qualified or
to take any action that would subject it to the service of process in suits or
to taxation, other than as to matters and transactions relating to the
Registration Statement, in any jurisdiction where it is not now so subject;
(12) in connection with any sale or exercise of Registrable Securities
that will result in such securities no longer being Transfer Restricted
Securities, cooperate with the Holders and the underwriter(s), 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 register such Registrable Securities in such denominations and such names as
the Holders or the underwriter(s), if any, may request at least two Business
Days prior to such sale of Registrable Securities;
(13) use its 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 Holder or
Holders thereof or the underwriter(s), if any, to
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consummate the exercise or disposition of such Registrable Securities, subject
to the proviso contained in clause (11) above;
(14) if any fact or event contemplated by clause (3) above shall exist
or have occurred, prepare a supplement or post-effective amendment to the
Registration Statement or related Prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter
delivered to the purchasers of 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, in the light of the circumstances
under which they were made, not misleading;
(15) provide a CUSIP number for all Registrable Securities not later
than the effective date of a Registration Statement covering such Registrable
Securities and provide the Trustee under the Indenture with printed certificates
for the Registrable Securities which are in a form eligible for deposit with the
Depository Trust Company;
(16) cooperate and assist in any filings required to be made with the
NASD and in the performance of any due diligence investigation by any
underwriter (including any "qualified independent underwriter") that is required
to be retained in accordance with the rules and regulations of the NASD, and use
its best efforts to cause such Registration Statement to become effective and
approved by such governmental agencies or authorities as may be necessary to
enable the Holders selling Registrable Securities to consummate the disposition
of such Registrable Securities in accordance with the plan of distribution set
forth in such Registration Statement;
(17) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make generally available to its
security holders with regard to any applicable Registration Statement, as soon
as practicable, a consolidated earnings statement meeting the requirements of
Rule 158 (which need not be audited) covering a twelve-month period beginning
after the effective date of the Registration Statement (as such term is defined
in paragraph (c) of Rule 158 under the Act);
(18) cause all Registrable Securities covered by the Registration
Statement to be listed on each securities exchange or interdealer quotation
system on which similar securities issued by Holdings are then listed;
(19) provide promptly to each Holder upon written request each
document filed with the Commission pursuant to the requirements of Section 13 or
Section 15(d) of the Exchange Act;
(20) cooperate with the Holders of Registrable Securities and the
managing underwriter or 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 whatsoever
and shall be in a form eligible for deposit with The Depository Trust Company
("DTC"); 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 at least two business days prior to any sale of
Registrable Securities in a firm commitment underwritten public offering;
(21) pay all Registration Expenses in connection with the
registrations requested pursuant to Section 3 hereof. Each Holder of
Registrable Securities shall pay all underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of such Holder's
Registrable Securities pursuant to a Registration Statement requested pursuant
to Section 3(2);
10
(22) make appropriate officers of Holdings available to the Selling
Holders for meetings with prospective purchasers of the Registrable Securities
and prepare and present to potential investors customary "road show" material in
a manner consistent with other new issuances of other securities similar to the
Registrable Securities, in connection with any proposed sale of the Securities
in an aggregate offering of at least $10.0 million; and
(23) cooperate with the Selling Holders of Registrable Securities to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive legends and
registered in such names as the Selling Holders may reasonably request at least
two business days prior to the closing of any sale of Registrable Securities.
(b) Restrictions on Holders. Each Holder agrees by acquisition of a
-----------------------
Registrable Security that, upon receipt of any notice from Holdings of the
existence of any fact of the kind described in Section 7(a)(3)(D) hereof, such
Holder will forthwith discontinue disposition of Registrable Securities pursuant
to the applicable Registration Statement until such Holder's receipt of the
copies of the supplemented or amended Prospectus contemplated by Section
7(a)(14) hereof, or until it is advised in writing (the "ADVICE") by Holdings
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. If so directed by Holdings, each Holder will deliver to Holdings(at
Holdings' expense) all copies, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Registrable Securities that
was current at the time of receipt of such notice. In the event Holdings shall
give any such notice, the time period regarding the effectiveness of such
Registration Statement set forth in Section 3 hereof, as applicable, shall be
extended by the number of days during the period from and including the date of
the giving of such notice pursuant to Section 7(a)(3)(D) hereof to and including
the date when each Selling Holder covered by such Registration Statement shall
have received the copies of the supplemented or amended Prospectus contemplated
by Section 7(a)(14) hereof or shall have received the Advice.
SECTION 8. REGISTRATION EXPENSES
(a) All expenses incident to Holdings' performance of or compliance
with this Agreement ("REGISTRATION EXPENSES") will be borne by Holdings,
regardless of whether a Registration Statement becomes effective, including
without limitation: (i) all registration and filing fees and expenses (including
filings made by any Holder with the NASD (and, if applicable, the reasonable
fees and expenses of any "qualified independent underwriter") and such Holder's
counsel, as may be required by the rules and regulations of the NASD); (ii) all
fees and expenses of compliance with federal securities and state Blue Sky or
securities laws; (iii) all expenses of printing (including, without limitation,
expenses of printing or engraving certificates for the Registrable Securities in
a form eligible for deposit with the Depository Trust Company and printing of
Prospectuses), messenger and delivery services and telephone; (iv) all fees and
disbursements of counsel for Holdings and, subject to Section 9(b) below, the
reasonable fees and disbursements of counsel to the Holders of Transfer
Restricted Securities; (v) all application and filing fees in connection with
listing the Registrable Securities on a national exchange or automated quotation
system pursuant to the requirements hereof; and (vi) all fees and disbursements
of independent certified public accountants of Holdings (including the expenses
of any special audit and comfort letters required by or incident to such
performance).
Holdings will, in any event, bear its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expenses
11
of any annual audit and the fees and expenses of any Person, including special
experts, retained by Holdings.
(b) In connection with each Registration Statement required hereunder,
Holdings will reimburse the Holders of Registrable Securities being registered
pursuant to such Registration Statement for the reasonable fees and actual
disbursements of not more than one counsel chosen by the Holders of a majority
of the principal amount of such Registrable Securities, or more than one, if, in
the reasonable judgment of counsel for the Holders and counsel for Holdings, a
conflict exists among such Holders. Notwithstanding the provisions of this
Section 8, each Holder of Registrable Securities shall pay all registration
expenses to the extent required by applicable law.
SECTION 9. INDEMNIFICATION
(a) Holdings agrees to indemnify and hold harmless (i) each Holder and
(ii) each person, if any, who controls (within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act) any Holder (any of the persons referred
to in this clause (ii) being hereinafter referred to as a "controlling person")
and (iii) the respective officers, directors, partners, employees,
representatives and agents of any Holder or any controlling person (any person
referred to in clause (i), (ii) or (iii) may hereinafter be referred to as an
"INDEMNIFIED HOLDER"), from and against any and all losses, claims, damages,
liabilities, judgments, (including without limitation, any legal or other
expenses incurred in connection with investigating or defending any matter,
including any action that could give rise to any such losses, claims, damages,
liabilities or judgments) (collectively, "LOSSES") caused by any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement, preliminary prospectus or Prospectus (or any amendment
or supplement thereto) provided by Holdings to any holder or any prospective
purchaser of Warrants or Warrant Shares, or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
Losses are caused by an untrue statement or omission or alleged untrue statement
or omission that is based upon information relating to any of the Holders
furnished in writing to Holdings by any of the Holders. Notwithstanding the
foregoing, Holdings shall not be liable in any such case to the extent that any
such Loss arises out of, or is based upon, an untrue statement or alleged untrue
statement or omission or alleged omission made in any preliminary prospectus if
(i) the Selling Holder failed to send or deliver a copy of the Prospectus with
or prior to the delivery of written confirmation of the sale of Warrant Shares
to the person asserting such Loss or who purchased such Warrant Shares which are
the subject thereof and (ii) the Prospectus would have corrected such untrue
statement or omission or alleged untrue statement or alleged omission.
(b) Each Holder of Transfer Restricted Securities agrees, severally
and not jointly, to indemnify and hold harmless Holdings, and its directors and
officers, and each person, if any, who controls (within the meaning of Section
15 of the Act or Section 20 of the Exchange Act) Holdings to the same extent as
the foregoing indemnity from Holdings to each of the Indemnified Holders, but
only with reference to information relating to such Indemnified Holder furnished
in writing to Holdings by such Indemnified Holder expressly for use in any
Registration Statement. In no event shall any Indemnified Holder be liable or
responsible for any amount in excess of the amount by which the total amount
received by such Indemnified Holder with respect to its sale of Transfer
Restricted Securities pursuant to a Registration Statement exceeds (i) the
amount paid by such Indemnified Holder for such Transfer Restricted Securities
and (ii) the amount of any damages that such Indemnified Holder has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission.
12
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 9(a) or 9(b) (the
"INDEMNIFIED PARTY"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "INDEMNIFYING PERSON") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses of such counsel, as incurred (except that
in the case of any action in respect of which indemnity may be sought pursuant
to both Sections 9(a) and 9(b), an Indemnified Holder shall not be required to
assume the defense of such action pursuant to this Section 9(c), but may employ
separate counsel and participate in the defense thereof, but the fees and
expenses of such counsel, except as provided below, shall be at the expense of
the Indemnified Holder). Any indemnified party shall have the right to employ
separate counsel in any such action and participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of the indemnified
party unless (i) the employment of such counsel shall have been specifically
authorized in writing by the indemnifying party, (ii) the indemnifying party
shall have failed to assume the defense of such action or employ counsel
reasonably satisfactory to the indemnified party or (iii) the named parties to
any such action (including any impleaded parties) include both the indemnified
party and the indemnifying party, and the indemnified party shall have been
advised in writing by such counsel that there may be one or more legal defenses
available to it which are different from or additional to those available to the
indemnifying party (in which case the indemnifying party shall not have the
right to assume the defense of such action on behalf of the indemnified party).
In any such case, the indemnifying party shall not, in connection with any one
action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) for all indemnified parties and all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by a majority of the Indemnified Holders, in the case of
the parties indemnified pursuant to Section 9(a), and by Holdings, in the case
of parties indemnified pursuant to Section 9(b). The indemnifying party shall
indemnify and hold harmless the indemnified party from and against any and all
losses, claims, damages, liabilities and judgments by reason of any settlement
of any action (i) effected with its written consent or (ii) effected without its
written consent if the settlement is entered into more than twenty business days
after the indemnifying party shall have received a request from the indemnified
party for reimbursement for the fees and expenses of counsel (in any case where
such fees and expenses are at the expense of the indemnifying party) and, prior
to the date of such settlement, the indemnifying party shall have failed to
comply with such reimbursement request. No indemnifying party shall, without
the prior written consent of the indemnified party, effect any settlement or
compromise of, or consent to the entry of judgment with respect to, any pending
or threatened action in respect of which the indemnified party is or could have
been a party and indemnity or contribution may be or could have been sought
hereunder by the indemnified party, unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability on claims that are or could have been the subject matter of such
action and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of the indemnified party.
(d) To the extent that the indemnification provided for in this
Section 9 is unavailable to an indemnified party in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or judgments (i) in such proportion
as is appropriate to reflect the relative benefits received by Holdings, on the
one hand, and the Holders, on the other hand, from their sale of Transfer
Restricted Securities or (ii) if the allocation provided by clause 9(d)(i) is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause 9(d)(i)
13
above but also the relative fault of Holdings, on the one hand, and of the
Indemnified Holder, on the other hand, in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
judgments, as well as any other relevant equitable considerations. The relative
fault of Holdings, on the one hand, and of the Indemnified Holder, on the other
hand, shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by Holdings,
on the one hand, or by the Indemnified Holder, on the other hand, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The amount paid or payable by a
party as a result of the losses, claims, damages, liabilities and judgments
referred to above shall be deemed to include, subject to the limitations set
forth in the second paragraph of Section 9(a), any legal or other fees or
expenses reasonably incurred by such party in connection with investigating or
defending any action or claim.
Holdings and each Holder agree that it would not be just and equitable
if contribution pursuant to this Section 9(d) were determined by pro rata
allocation (even if the Holders were treated as one entity for such purpose) or
by any other method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages, liabilities or judgments referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any matter, including any action
that could have given rise to such losses, claims, damages, liabilities or
judgments. Notwithstanding the provisions of this Section 9, no Holder or its
related Indemnified Holders shall be required to contribute, in the aggregate,
any amount in excess of the amount by which the total received by such Holder
with respect to the sale of its Transfer Restricted Securities pursuant to a
Registration Statement exceeds the sum of (A) the amount paid by such Holder for
such Transfer Restricted Securities plus (B) the amount of any damages which
such Holder has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Holders' obligations to contribute pursuant
to this Section 7(d) are several in proportion to amount of Transfer Restricted
Securities held by each of the Holders hereunder and not joint.
SECTION 10. RULE 144A
Holdings hereby agrees with each Holder, for so long as any
Registrable Securities remain outstanding, to make available, upon request of
any Holder of Registrable Securities, to any Holder or beneficial owner of
Registrable Securities in connection with any sale thereof and any prospective
purchaser of such Registrable Securities designated by such Holder or beneficial
owner, the information required by Rule 144A(d)(4) under the Act in order to
permit resales of such Registrable Securities pursuant to Rule 144A.
SECTION 11. MISCELLANEOUS
(a) Remedies. Each Holder of Registrable Securities, in addition to
---------
being entitled to exercise all rights provided herein, and as provided in the
Purchase Agreement and the Warrant Agreement and granted by law, including
recovery of damages, will be entitled to specific performance of its rights
under this Agreement. Holdings agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it of the
provisions of this Agreement and,
14
to the extent not prohibited by applicable law, hereby agrees to waive the
defense in any action for specific performance that a remedy at law would be
adequate.
(b) No Inconsistent Agreements. Holdings will not on or after the
---------------------------
date of this Agreement enter into any agreement with respect to its securities
that conflicts with the rights granted to the Holders of Registrable Securities
in this Agreement or otherwise conflicts with the provisions hereof. Except as
disclosed in the Offering Memorandum, Holdings has not previously entered into
any agreement granting any registration rights of its securities to any Person
except the Debt Registration Rights Agreement regarding the Senior Notes
executed concurrently herewith. The rights granted to the Holders of
Registrable Securities hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of Holdings' securities
under any other agreement in effect on the date hereof, except where a waiver
with respect thereto has been obtained prior to the date of effectiveness of any
Registration Statement required under this Agreement.
(c) Adjustments Affecting the Registrable Securities. Holdings will
-------------------------------------------------
not take any action, or permit any change to occur, with respect to the
Registrable Securities which would (i) adversely affect the ability of any of
the Holders of Registrable Securities to include such Registrable Securities in
a registration undertaken pursuant to this Agreement or (ii) materially
adversely affect the marketability of the Registrable Securities in any such
registration.
(d) Amendments and Waivers. The provisions of this Agreement,
-----------------------
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless Holdings has obtained the written consent of Holders of
a majority of the outstanding Registrable Securities; provided, however, that
Section 9 and Section 11(d) may not be amended, modified or supplemented without
the written consent of each Holder (including any Person who was a Holder of
Registrable Securities disposed of pursuant to any Registration Statement)
affected by any such amendment, modification or supplement. Notwithstanding the
foregoing, a waiver or consent to departure from the provisions hereof 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 the rights of other Holders of Registrable
Securities may be given by the Holders of at least a majority of the Registrable
Securities being sold.
(e) Notices. All notices and other communications provided for or
--------
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(1) if to a Holder, at the address set forth on the records of
the Warrant Agent under the Warrant Agreement, with a copy to the Warrant
Agent under the Warrant Agreement; and
15
(2) if to Holdings:
American Mobile Satellite Corporation
00000 Xxxxxxxxx Xxxx.
Xxxxxx, Xxxxxxxx 00000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxx X. Xxxxx
With a copy to (which shall not constitute notice):
Xxxxxx & Xxxxxx
000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt acknowledged, if telecopied; and on the
next business day, if timely delivered to an air courier guaranteeing overnight
delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the benefit
-----------------------
of and be binding upon the successors and assigns of each of the parties,
including without limitation and without the need for an express assignment,
subsequent Holders of Registrable Securities.
(g) Counterparts. This Agreement may be executed in any number of
-------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
---------
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
--------------
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF. Holdings hereby irrevocably and unconditionally:
(i) submits itself and its property in any legal action or proceeding relating
to this Warrant Registration Rights Agreement or for recognition and enforcement
of any judgment in respect thereof, to the non-exclusive jurisdiction of the
courts of the State of New York and the courts of the United States of America
for the Southern District of New York, and appellate courts thereof, and
consents and agrees to such action or proceeding being brought in such courts;
and (ii) waives any objection that it may now or hereafter have to the venue of
any such action or proceeding in any such court or that such action or
proceeding was brought in any inconvenient court and agrees not to plead or
claim the same.
(j) Severability. In the event that any one or more of the provisions
-------------
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the
16
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be affected
or impaired thereby.
(k) Entire Agreement. This Agreement together with the other
-----------------
Operative Documents (as defined in the Purchase Agreement) is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted by Holdings with respect
to the securities sold pursuant to the Purchase Agreement. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
(l) Securities Held by Holdings or Its Affiliates. Whenever the
---------------------------------------------
consent or approval of Holders of a specified percentage of Registrable
Securities or Warrants is required thereunder, Registrable Securities or
Warrants held by Holdings or by any of its affiliates (as such term is defined
in Rule 405 under the Securities Act) shall not be counted (in either the
numerator or the denominator) in determining whether such consent or approval
was given by the Holders of such required percentage.
[signature page follows]
17
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
AMERICAN MOBILE SATELLITE CORPORATION
By:
-------------------------
Name:
Title:
BEAR, XXXXXXX & CO. INC.
By:
-------------------------
Name:
Title:
X.X. XXXXXX SECURITIES INC.
By:
-------------------------
Name:
Title:
TD SECURITIES (USA) INC.
By:
-------------------------
Name:
Title:
BANCAMERICA XXXXXXXXX XXXXXXXX
By:
-------------------------
Name:
Title:
Warrant Registration Rights signature page(s) - 1
