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REGISTRATION RIGHTS AGREEMENT
Dated as of May 21, 1998
Among
STARTEC GLOBAL COMMUNICATIONS CORPORATION
and
XXXXXX BROTHERS INC.
XXXXXXX, SACHS & CO.
and
ING BARING (U.S.) SECURITIES, INC.
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TABLE OF CONTENTS
Page
1. Definitions........................................... 3
2. Securities Subject to this Agreement.................. 5
3. Registered Exchange Offer............................. 5
4. Shelf Registration.................................... 7
5. Liquidated Damages.................................... 8
6. Registration Procedures............................... 8
7. Registration Expenses................................. 16
8. Indemnification and Contribution...................... 16
9. Rule 144A............................................. 19
10. Participation in Underwritten Registrations........... 19
11. Selection of Underwriters............................. 19
12. Miscellaneous......................................... 20
This Registration Rights Agreement (this "Agreement") is made
and entered into as of May 21, 1998 by and among Startec Global Communications
Corporation, a Maryland corporation (the "Company") and Xxxxxx Brothers Inc.,
Xxxxxxx, Sachs & Co. and ING Baring (U.S.) Securities, Inc.
(each an "Initial Purchaser" and together the "Initial Purchasers").
This Agreement is entered into in connection with the Purchase
Agreement, dated as of May 18, 1998, among the Company and the Initial
Purchasers (the "Purchase Agreement"), which provides for the sale by the
Company to the Initial Purchasers of 160,000 units (the "Units") consisting of
$160,000,000 principal amount of the Company's 12% Senior Notes due 2008 (the
"Notes") and warrants (the "Warrants") to purchase an aggregate of 200,226
shares of the Company's common stock, $.01 par value (the "Common Stock").
Capitalized terms used but not specifically defined herein have the respective
meanings ascribed thereto in the Purchase Agreement. As an inducement to the
Initial Purchasers to enter into the Purchase Agreement and in satisfaction of a
condition to the Initial Purchasers' obligations thereunder, the Company agrees
with the Initial Purchasers, for the benefit of the holders of the Notes
(together with the Initial Purchasers, the "Holders"), as follows:
1. Definitions. As used in this Agreement, the following
capitalized terms shall have the following meanings:
Broker-Dealer: Any broker or dealer registered under
the Exchange Act.
Closing Date: The date on which the Notes are issued
and sold to the Initial Purchasers.
Commission: The Securities and Exchange Commission.
Consummate, Consummation or Consummated: A Registered
Exchange Offer shall be deemed "Consummated" for purposes of this
Agreement upon the occurrence of (i) the filing and effectiveness under
the Securities Act of the Exchange Offer Registration Statement
relating to the Exchange Notes to be issued in the Exchange Offer, (ii)
the keeping of the Exchange Offer open for a period not less than the
minimum period required pursuant to Section 3(b) hereof, and (iii) the
delivery by the Company of the Exchange Notes in the same aggregate
principal amount as the aggregate principal amount of Transfer
Restricted Securities that were validly tendered by Holders thereof
pursuant to the Exchange Offer.
Liquidated Damages Payment Date: With respect to the
Notes, each Interest Payment Date until the earlier of (i) the date on
which Liquidated Damages no longer are payable or (ii) the final Stated
Maturity of the Notes.
Effectiveness Target Date: As defined in Section 5.
Exchange Act: The Securities Exchange Act of 1934, as
amended.
Exchange Notes: The Notes to be issued pursuant to
the Indenture in the Exchange Offer.
Exchange Offer: The registration by the Company under
the Securities Act of the Exchange Notes pursuant to which the Company
offers the Holders of all outstanding Transfer Restricted Securities
the opportunity to exchange all such outstanding Transfer Restricted
Securities held by such Holders for Exchange Notes in an aggregate
principal amount equal to the aggregate principal amount of the
Transfer Restricted Securities tendered in such exchange offer by such
Holders.
Exchange Offer Registration Statement: The
Registration Statement relating to the Exchange Offer, including the
Prospectus which forms a part thereof.
Exempt Resales: The transactions in which the Initial
Purchasers propose to sell the Notes to certain "qualified
institutional buyers," as such term is defined in Rule 144A under the
Securities Act and to certain non-U.S. Persons in off-shore
transactions pursuant to Regulation S under the Securities Act.
Holders: As defined in Section 2(b) hereof.
Indenture: The Indenture, dated as of the date
hereof, between the Company and First Union National Bank, as trustee
(the "Trustee"), pursuant to which the Notes are to be issued, as such
Indenture may be amended or supplemented from time to time in
accordance with the terms thereof.
Initial Purchasers: As defined in the preamble
hereto.
NASD: National Association of Securities Dealers,
Inc.
Person: An individual, partnership, corporation,
limited liability company or partnership, trust or unincorporated
organization, or a government or agency or political subdivision
thereof.
Prospectus: The prospectus included in a Registration
Statement, as may be amended or supplemented by any prospectus
supplement and by all other amendments thereto, including
post-effective amendments.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of
the Company relating to (a) an offering of Exchange Notes pursuant to
an Exchange Offer or (b) the registration for resale of Transfer
Restricted Securities pursuant to the Shelf Registration Statement
which is filed pursuant to the provisions of this Agreement, in either
case, including the Prospectus included therein, all amendments and
supplements thereto (including post-effective amendments).
Securities Act: The Securities Act of 1933, as
amended.
Shelf Filing Deadline: As defined in Section 4
hereof.
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Shelf Registration Statement: As defined in Section 4
hereof.
Stated Maturity: (i) with respect to any debt
security, the date specified in such debt security as the fixed date on
which the final installment of principal of such debt security is due
and payable and (ii) with respect to any scheduled installment of
principal of or interest on any debt security, the date specified in
such debt security as the fixed date on which such installment is due
and payable.
TIA: The Trust Indenture Act of 1939, as amended.
Transfer Restricted Securities: Each Note, until the
earliest to occur of (a) the date on which such Note has been properly
tendered for exchange (and accepted by the Company) by a Person other
than a Broker-Dealer for Exchange Notes pursuant to the Exchange Offer,
(b) following the exchange by a Broker-Dealer in the Exchange Offer of
such Note for one or more Exchange Notes, the date on which such
Exchange Notes are sold to a purchaser who receives from such
Broker-Dealer on or prior to the date of such sale a copy of the
Prospectus contained in the Exchange Offer Registration Statement, (c)
the date on which the Registration Statement registering such Notes has
been declared effective under the Securities Act and such Notes have
disposed of in accordance with the Shelf Registration Statement or (d)
the date on which such Notes are eligible to be distributed to the
public pursuant to Rule 144 under the Securities Act;
Underwritten Registration or Underwritten Offering: A
registration or offering in which securities of the Company are sold to
an underwriter (in the case of a "firm commitment" underwritten
offering) for reoffering to the public.
2. Securities Subject to this Agreement.
(a) Transfer Restricted Securities. The securities
that are entitled to the benefits of this Agreement are the Transfer Restricted
Securities.
(b) Holders of Transfer Restricted Securities. A
Person is deemed to be a holder of Transfer Restricted Securities (each, a
"Holder") whenever such Person owns Transfer Restricted Securities.
3. Registered Exchange Offer.
(a) Unless the Exchange Offer shall not be
permissible under applicable law
or Commission policy (after the procedures set forth in Section 6(a) below have
been complied with) or one of the events set forth in Section 4(a)(ii) has
occurred the Company shall (i) cause to be filed with the Commission promptly
after the Closing Date, but in no event later than 90 days after the Closing
Date, a Registration Statement under the Securities Act relating to the Exchange
Notes and the Exchange Offer, (ii) use its reasonable best efforts to cause such
Registration Statement to be declared effective no later than 150 days after the
Closing Date, (iii) in connection with the foregoing, file (A) all pre-effective
amendments to such Registration Statement as may be necessary in order to cause
such Registration Statement to become effective, (B) if applicable, a
post-effective amendment to such Registration
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Statement pursuant to Rule 430A under the Securities Act and (C) cause all
necessary filings in connection with the registration and qualification of the
Exchange Notes to be made under the Blue Sky laws of such jurisdictions as are
necessary to permit the Consummation of the Exchange Offer, and (iv) use its
reasonable best efforts to cause the Exchange Offer to be consummated on or
prior to 30 days after the date on which the Exchange Offer Registration
Statement was declared effective by the Commission. The Exchange Offer shall be
on the appropriate form of Registration Statement permitting registration of the
Exchange Notes to be offered in exchange for the Transfer Restricted Securities
and to permit resales of Exchange Notes held by Broker-Dealers as contemplated
by Section 3(c) below. The 90, 150 and 30-day periods referred to in (i), (ii)
and (iii) of this Section 3(a) shall not include any period during which the
Company is seeking a "no-action" letter or other favorable decision from the
Commission pursuant to Section 6(a)(i) below.
(b) The Company shall use its reasonable best efforts
to cause the Exchange Offer Registration Statement to be effective continuously
and shall keep the Exchange Offer open for a period of not less than the minimum
period required under applicable federal and state securities laws to Consummate
the Exchange Offer; provided, however, that in no event shall such period be
less than 20 business days. The Company shall cause the Exchange Offer to comply
in all material respects with all applicable federal and state securities laws.
No securities other than the Exchange Notes shall be included in the Exchange
Offer Registration Statement.
(c) The Company shall indicate in a "Plan of
Distribution" section contained in the Prospectus contained in the Exchange
Offer Registration Statement that any Broker-Dealer who holds Notes that are
Transfer Restricted Securities and that were acquired for its own account as a
result of market-making activities or other trading activities (other than
Transfer Restricted Securities acquired directly from the Company) may exchange
such Notes pursuant to the Exchange Offer; however, such Broker-Dealer may be
deemed to be an "underwriter" within the meaning of Section 2(11) of the
Securities Act and must, therefore, deliver a prospectus meeting the
requirements of the Securities Act in connection with any resales of the
Exchange Notes received by such Broker-Dealer in the Exchange Offer, which
prospectus delivery requirement may be satisfied by the delivery by such
Broker-Dealer of the Prospectus contained in the Exchange Offer Registration
Statement. Such "Plan of Distribution" section shall also contain all other
information with respect to such resales by Broker-Dealers that the Commission
may require in order to permit such resales pursuant thereto, but such "Plan of
Distribution" shall not name any such Broker-Dealer or disclose the amount of
Exchange Notes held by any such Broker-Dealer except to the extent required by
the Commission as a result of a change in policy announced after the date of
this Agreement or as required by the Securities Act.
The Company shall use its reasonable best efforts to keep the
Exchange Offer Registration Statement continuously effective, supplemented and
amended as required by the provisions of Section 6(c) below to the extent
necessary to ensure that it is available for resales of Exchange Notes acquired
by Broker-Dealers for their own accounts as a result of market-making activities
or other trading activities, and to ensure that it conforms with the
requirements of this Agreement, the Securities Act and the policies, rules and
regulations of the Commission as announced from time to time, for a period of
180 days from the date on which the Exchange Offer is Consummated.
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The Company shall provide sufficient copies of the latest
version of such Prospectus to Broker-Dealers promptly upon request at any time
during such 180-day period in order to facilitate such resales.
4. Shelf Registration.
(a) Shelf Registration. If (i) the Company is not
permitted to file an Exchange Offer Registration Statement or to consummate the
Exchange Offer because the Exchange Offer is not permitted by applicable law or
Commission policy (after the procedures set forth in Section 6(a) below have
been complied with), (ii) any Holder of Transfer Restricted Securities that is a
"qualified institutional buyer" (as defined in Rule 144A under the Securities
Act) or an institutional "accredited investor" (as defined in Rule 501(A)(l),
(2), (3) or (7) under the Securities Act) shall notify the Company at least 20
business days prior to the Consummation of the Exchange Offer (A) that such
Holder is prohibited by applicable law or Commission policy or action from
participating in the Exchange Offer, or (B) that such Holder may not resell the
Exchange Notes acquired by it in the Exchange Offer to the public without
delivering a prospectus and that the Prospectus contained in the Exchange Offer
Registration Statement is not appropriate or available for such resales by such
Holder, or (C) that such Holder is a Broker-Dealer and holds Notes acquired
directly from the Company or one of its "Affiliates" (as such term is defined in
the Indenture), (iii) the Exchange Offer is not, for any reason, consummated
within 180 days after the Closing Date or (iv) the Exchange Offer has been
completed and in the opinion of counsel for the Initial Purchasers, a
Registration Statement must be filed and a prospectus must be delivered by the
Initial Purchasers in connection with any offering or sale of Transfer
Restricted Securities, the Company will use its reasonable best efforts to:
(x) cause to be filed a shelf registration
statement pursuant to Rule 415 under the Securities Act, which may be
an amendment to the Exchange Offer Registration Statement (in either
event, the "Shelf Registration Statement"), within 60 days of the
earliest to occur of (i) through (iv) above; and
(y) cause such Shelf Registration Statement
to be declared effective by the Commission on or prior to the 150th day
after such obligation arises (the "Shelf Filing Deadline").
The Company shall use its reasonable best efforts to keep such Shelf
Registration Statement continuously effective, supplemented and amended as
required by the provisions of Sections 6(b) and (c) hereof to the extent
necessary to ensure that it is available for resales of Transfer Restricted
Securities by the Holders of Transfer Restricted Securities entitled to the
benefit of this Section 4(a), and to ensure that it conforms with the
requirements of this Agreement, the Securities Act and the policies, rules and
regulations of the Commission as announced from time to time, for a period
ending on the second anniversary of the Closing Date.
(b) Provision by Holders of Certain Information in
Connection with the Shelf Registration Statement. No Holder of Transfer
Restricted Securities may include any of its Transfer Restricted Securities in
any Shelf Registration Statement pursuant to this Agreement unless and until
such Holder furnishes to the Company in writing, within 20 Business Days after
receipt of a request therefor, such information as the Company may reasonably
request, or which is required under the Securities Act,
7
for use in connection with any Shelf Registration Statement or Prospectus or
preliminary Prospectus included therein. No Holder of Transfer Restricted
Securities shall be entitled to Liquidated Damages pursuant to Section 5 hereof
unless and until such Holder shall have provided all such reasonably requested
information. Each Holder as to which any Shelf Registration Statement is being
effected agrees to furnish promptly to the Company all information required to
be disclosed in order to make the information previously furnished to the
Company by such Holder not materially misleading.
5. Liquidated Damages.
(a) If (i) the Company fails to file with the
Commission any of the Registration Statements required by this Agreement on or
before the date specified for such filing in this Agreement, (ii) any of such
Registration Statements is not declared effective by the Commission on or prior
to the date specified for such effectiveness in this Agreement (the
"Effectiveness Target Date"), (iii) the Exchange Offer has not been Consummated
within 30 days after the Effectiveness Target Date with respect to the Exchange
Offer Registration Statement or (iv) any Registration Statement required by this
Agreement is filed and declared effective but shall thereafter cease to be
effective or fails to be usable for its intended purpose without being succeeded
within five business days by a post-effective amendment to such Registration
Statement that cures such failure and that is itself immediately declared
effective (each such event referred to in clauses (i) through (iv) above, a
"Registration Default"), additional cash interest ("Liquidated Damages") shall
accrue to each Holder of the Notes commencing upon the occurrence of such
Registration Default in an amount equal to .50% per annum of the principal
amount of Notes held by such Holder. The amount of Liquidated Damages will
increase by an additional .50% per annum of the principal amount of Notes with
respect to each subsequent 90-day period (or portion thereof) until all
Registration Defaults have been cured, up to a maximum rate of Liquidated
Damages of 1.50% per annum of the principal amount of Notes. All accrued
Liquidated Damages will be paid to Holders by the Company in the same manner as
interest is paid pursuant to the Indenture. Following the cure of all
Registration Defaults relating to any particular Transfer Restricted Securities,
the accrual of Liquidated Damages with respect to such Transfer Restricted
Securities will cease.
All obligations of the Company set forth in the preceding
paragraph that have accrued and are outstanding with respect to any Transfer
Restricted Security at the time such security ceases to be a Transfer Restricted
Security shall survive until such time as all such obligations with respect to
such Transfer Restricted Security shall have been satisfied in full.
(b) The Company shall notify the Trustee within one
business day after each and every date on which an event occurs in respect of
which Liquidated Damages are required to be paid (an "Event Date"). Liquidated
Damages shall be paid by depositing Liquidated Damages with the Trustee, in
trust, for the benefit of the Holders of the Notes, on or before the applicable
Interest Payment Date (whether or not any payment other than Liquidated Damages
is payable on such Notes), in immediately available funds in sums sufficient to
pay the Liquidated Damages then due to such Holders. Each obligation to pay
Liquidated Damages shall be deemed to accrue from the applicable date of the
occurrence of the Registration Default
6. Registration Procedures.
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(a) Exchange Offer Registration Statement. In
connection with the Exchange Offer, the Company shall comply with all of the
provisions of Section 6(c) below, shall use its reasonable best efforts to
effect such Exchange Offer to permit the sale of Transfer Restricted Securities
being sold in accordance with the intended method or methods of distribution
thereof, and shall comply with all of the following provisions, other than
paragraph (ii) of this Section 6(a), which condition shall be performed only by
the Holders:
(i) If, in the reasonable opinion of counsel
to the Company, there is a question as to whether the Exchange Offer is
permitted by applicable law or Commission policy or action, the Company
hereby agrees to seek a "no-action letter" or other favorable decision
from the Commission allowing the Company to Consummate an Exchange
Offer for such Notes. The Company hereby agrees to pursue the issuance
of such a letter or decision to the Commission staff level but shall
not be required to take commercially unreasonable action to effect a
change of Commission policy. The Company hereby agrees, however, to (A)
participate in telephonic conferences with the Commission, (B) deliver
to the Commission staff an analysis prepared by counsel to the Company
setting forth the legal bases, if any, upon which such counsel has
concluded that such an Exchange Offer should be permitted and (C)
diligently pursue a resolution (which need not be favorable) by the
Commission staff of such submission.
(ii) As a condition to its participation in
the Exchange Offer pursuant to the terms of this Agreement, each Holder
of Transfer Restricted Securities shall furnish, upon the request of
the Company, prior to the Consummation thereof, a written
representation to the Company (which may be contained in the letter of
transmittal contemplated by the Exchange Offer Registration Statement)
to the effect that (A) such Holder is not an "Affiliate" of the Company
(as "Affiliate" is defined in the Indenture), (B) such Holder is not
engaged in, does not intend to engage in, and has no arrangement or
understanding with any Person to participate in, a distribution of the
Exchange Notes to be issued in the Exchange Offer and (C) such Holder
is acquiring the Exchange Notes in its ordinary course of business.
Each Holder hereby acknowledges and agrees that any Broker-Dealer and
any such Holder using the Exchange Offer to participate in a
distribution of the Exchange Notes (1) could not, under Commission
policy or action as in effect on the date of this Agreement, rely on
the position of the Commission enunciated in Xxxxxx Xxxxxxx and Co.,
Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation
(available May 13, 1988), as interpreted in the Commission's letter to
Shearman & Sterling dated July 2, 1993, and similar "no-action letters"
(including Xxxxx & Xxxx LLP (available February 7, 1997), and any
"no-action letter" obtained pursuant to clause (i) above), and (2) must
comply with the registration and prospectus delivery requirements of
the Securities Act in connection with a resale transaction and that
such a resale transaction should be covered by an effective
registration statement containing the selling security holder
information required by Items 507 or 508, as applicable, of Regulation
S-K if the resales are of Exchange Notes obtained by such Holder in
exchange for Transfer Restricted Securities acquired by such Holder
directly from the Company.
(iii) Prior to the effectiveness of the
Exchange Offer Registration Statement, the Company shall provide a
supplemental letter to the Commission (A) stating that the Company is
registering the Exchange Offer in reliance on the position of the
Commission enunciated in Exxon Capital Holdings Corporation (available
May 13, 1988), Xxxxxx Xxxxxxx
9
and Co., Inc. (available June 5, 1991), Xxxxx & Wood LLP (available
February 7, 1997) and, if applicable, any "no-action letter" obtained
pursuant to clause (i) above and (B) including a representation that
the Company has not entered into any arrangement or understanding with
any Person to distribute the Exchange Notes to be received in the
Exchange Offer and that, to the best of the Company's information and
belief, each Holder participating in the Exchange Offer is acquiring
the Exchange Notes in its ordinary course of business and has no
arrangement or understanding with any Person to participate in the
distribution of the Exchange Notes received in the Exchange Offer.
(b) Shelf Registration Statement. In connection with
the Shelf Registration Statement, the Company shall comply with all the
provisions of Section 6(c) below and shall use its reasonable best efforts to
effect such registration to permit the sale of the Transfer Restricted
Securities being sold in accordance with the intended method or methods of
distribution thereof, and pursuant thereto, the Company will, as expeditiously
as possible, prepare and file with the Commission a Registration Statement on
any appropriate form which is available for the sale of the Transfer Restricted
Securities in accordance with the intended method or methods of distribution
thereof.
(c) General Provisions. In connection with any
Registration Statement and any Prospectus required by this Agreement to permit
the sale or resale of Transfer Restricted Securities (including, without
limitation, any Registration Statement and the related Prospectus required to
permit resales of Transfer Restricted Securities by Broker-Dealers), the Company
shall:
(i) use its reasonable best efforts to keep
such Registration Statement continuously effective and provide all
requisite financial statements for the period specified in Section 3 or
4 of this Agreement, as applicable; 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 Transfer Restricted
Securities during the period required by Section 4 of this Agreement,
the Company shall file promptly an appropriate amendment to such
Registration Statement, in the case of clause (A), correcting any such
misstatement or omission, and, in the case of either clause (A) or (B),
use its reasonable 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;
(ii) 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 applicable period set forth in Section 3 or 4 hereof,
as applicable, or such shorter period as will terminate when all
Transfer Restricted Securities covered by such Registration Statement
have been sold; cause the Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented, to be filed pursuant to
Rule 424 under the Securities Act, and to comply fully with the
applicable provisions of Rules 424 and 430A under the Securities Act in
a timely manner; and comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by such
Registration Statement during the applicable period in accordance with
the intended method or methods of distribution by the sellers thereof
set forth in such Registration Statement or supplement to the
Prospectus;
10
(iii) in the case of a Shelf Registration
Statement, advise the underwriter(s), if any, and selling Holders
promptly and, if requested by such Persons, to 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 been declared 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
Securities Act or of the suspension by any state securities commission
of the qualification of the Transfer Restricted Securities for offering
or sale in any jurisdiction, or the initiation of any proceeding for
any of the foregoing 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 or the Prospectus in order to make the
statements therein 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 Transfer Restricted Securities
under state securities or Blue Sky laws, the Company shall use its
reasonable best efforts to obtain the withdrawal or lifting of such
order at the earliest possible time;
(iv) in the case of a Shelf Registration
Statement, furnish to each of the selling or exchanging Holders and
each of the underwriter(s), 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 (including all documents incorporated by reference after the
initial filing of such Registration Statement), which documents will be
subject to the review of such Holders and underwriter(s), if any, for a
period of at least three business days, and the Company will not file
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 selling Holders
of a majority in Liquidation Amount of Transfer Restricted Securities
covered by such Registration Statement or the underwriter(s), if any,
shall reasonably object within three 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;
(v) subject to a three business day review
and objection period as provided in Section 6(a)(iv) of this Agreement,
in the case of a Shelf Registration Statement, promptly prior to the
filing of any document that is to be incorporated by reference into a
Registration Statement or Prospectus, provide copies of such document
to the selling Holders and to the underwriter(s), if any, make the
Company's 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;
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(vi) in the case of a Shelf Registration
Statement, make available at reasonable times for inspection by the
selling Holders, any underwriter participating in any disposition
pursuant to such Registration Statement, and any attorney or accountant
retained by such selling Holders or any of the underwriter(s), all
financial and other records, pertinent corporate documents and
properties of the Company and cause the Company's officers, directors
and employees to supply all information reasonably requested by any
such Holder, underwriter, attorney or accountant in connection with
such Registration Statement subsequent to the filing thereof and prior
to its effectiveness;
(vii) in the case of a Shelf Registration
Statement, if requested by any selling Holders or the underwriter(s),
if any, promptly incorporate 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 Transfer Restricted Securities, information with respect to the
principal amount of Transfer Restricted Securities being sold, the
purchase price being paid therefor and any other terms of the offering
of the Transfer Restricted 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 the Company is
notified of the matters to be incorporated in such Prospectus
supplement or post-effective amendments;
(viii) use its reasonable best efforts to
cause the Transfer Restricted Securities covered by the Registration
Statement to be rated with the appropriate rating agencies, if so
requested by the Holders of a majority in aggregate principal amount of
Notes covered thereby or the underwriter(s), if any;
(ix) in the case of a Shelf Registration
Statement, furnish to each selling Holder and each of the
underwriter(s), if any, without charge, at least one copy of the
Registration Statement, as first filed with the Commission, and of each
amendment thereto, including all documents incorporated by reference
therein and all exhibits (including exhibits incorporated therein by
reference);
(x) in the case of a Shelf Registration
Statement, 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; the Company
hereby consents to the use of the Prospectus and any amendment or
supplement thereto by each of the selling Holders and each of the
underwriter(s), if any, in connection with the offering and the sale of
the Transfer Restricted Securities covered by the Prospectus or any
amendment or supplement thereto;
(xi) in the case of a Shelf Registration
Statement, enter into such agreements (including an underwriting
agreement), and make such representations and warranties, and take all
such other actions in connection therewith in order to expedite or
facilitate the disposition of the Transfer Restricted Securities
pursuant to any Registration Statement contemplated by this Agreement,
all to such extent as may be reasonably requested by any Initial
Purchaser or by any Holder of Transfer Restricted Securities or
underwriter in
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connection with any sale or resale pursuant to any Registration
Statement contemplated by this Agreement; and in connection with an
Underwritten Registration, the Company shall:
(A) upon request, furnish to each
selling Holder and each underwriter, if any, in such substance
as they may reasonably request and as are customarily made by
issuers to underwriters in primary underwritten debt
offerings, upon the date of the effectiveness of the Shelf
Registration Statement:
(1) a certificate, dated
the date of the effectiveness of the Shelf
Registration Statement, signed by (y) the Chairman of
the Board, its President or a Vice President and (z)
the Chief Financial Officer of the Company,
confirming, as of the date thereof, such matters as
such parties may reasonably request;
(2) an opinion, dated the
date of the effectiveness of the Shelf Registration
Statement, of counsel for the Company, covering such
matters as such parties may reasonably request and
containing such qualifications and assumptions as are
customary for such opinions, and in any event
including a statement to the effect, generally, that
such counsel has participated in conferences with
officers and other representatives of the Company,
representatives of the independent public accountants
for the Company, the Initial Purchasers'
representatives and the Initial Purchasers' counsel
in connection with the preparation of such
Registration Statement and the related Prospectus 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
upon facts provided to such counsel by officers and
other representatives of the Company and without
independent investigation 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, 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, contained an untrue statement of a
material fact or omitted to state a material fact
necessary in order to make the statements therein, in
light of the circumstances under which they were
made, not misleading. Without limiting the foregoing,
such counsel may state further that such counsel
assumes no responsibility for, and has not
independently investigated or verified, the accuracy,
completeness or fairness of the financial statements,
notes and schedules and other statistical or
financial data included in any Registration Statement
contemplated by this Agreement or the related
Prospectus; and
(3) a comfort letter, dated
the date of the effectiveness of the Shelf
Registration Statement, from the Company's
13
independent accountants, in the form and covering
matters of the type customarily covered in comfort
letters to underwriters in connection with primary
underwritten debt offerings.
(B) set forth in full or
incorporate by reference in the underwriting agreement, if
any, the indemnification provisions and procedures of Section
8 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 the Company
pursuant to this clause (xi), if any.
If, at any time, the representations and
warranties of the Company contemplated in clause (A)(1) above
cease to be true and correct, the Company shall so advise each
of the Initial Purchasers and the underwriter(s), if any, and
each selling Holder promptly and, if requested by such
Persons, shall confirm such advice in writing;
(xii) in the case of a Shelf Registration
Statement, prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders, the underwriter(s), if
any, and their respective counsel in connection with the registration
and qualification of the Transfer Restricted Securities under the
applicable securities or Blue Sky laws of such jurisdictions as the
selling Holders or underwriter(s) may reasonably request and do any and
all other acts or things reasonably necessary or advisable to enable
the disposition in such jurisdictions of the Transfer Restricted
Securities covered by the Shelf Registration Statement; provided,
however, that none of the Company or any of its subsidiaries shall 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;
(xiii) in the case of a Shelf Registration
Statement, shall issue, upon the request of any Holder of Transfer
Restricted Securities covered by the Shelf Registration Statement,
Exchange Notes in the same amount as the Transfer Restricted Securities
surrendered to the Company by such Holder in exchange therefor or being
sold by such Holder; such Exchange Notes to be registered in the name
of such Holder or in the name of the purchaser(s) of such Exchange
Notes, as the case may be; in return, the Transfer Restricted
Securities held by such Holder shall be surrendered to the Company for
cancellation;
(xiv) in the case of a Shelf Registration
Statement, cooperate with the selling Holders and the underwriter(s),
if any, to facilitate the timely preparation and delivery of
certificates representing Transfer Restricted Securities to be sold and
not bearing any restrictive legends; and enable such Transfer
Restricted Securities to be in such denominations and registered in
such names as the Holders or the underwriter(s), if any, may reasonably
request at least two business days prior to any sale of Transfer
Restricted Securities made by such underwriter(s);
14
(xv) use its reasonable best efforts to cause
the Transfer Restricted Securities covered by the Registration
Statement to be registered with or approved by such other governmental
agencies or authorities as may be reasonably necessary to enable the
seller or sellers thereof or the underwriter(s), if any, to consummate
the disposition of such Transfer Restricted Securities, subject to the
proviso contained in clause (xii) above;
(xvi) if any fact or event contemplated by
clause (c)(iii)(D) 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 Transfer Restricted Securities, the Prospectus will
not contain an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not misleading;
(xvii) provide CUSIP numbers for all Transfer
Restricted Securities not later than the effective date of the
Registration Statement and provide certificates for the Transfer
Restricted Securities;
(xviii) 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 that is required to be
retained in accordance with the rules and regulations of the NASD, and
use its reasonable 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 Transfer
Restricted Securities to consummate the disposition of such Transfer
Restricted Securities; provided, however, that none of the Company or
any of its subsidiaries shall 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;
(xix) otherwise use its reasonable best
efforts to comply with all applicable rules and regulations of the
Commission, and make generally available to its security holders, as
soon as practicable, a consolidated earnings statement meeting the
requirements of Rule 158 (which need not be audited) for the
twelve-month period (A) commencing at the end of any fiscal quarter in
which Transfer Restricted Securities are sold to underwriters in a
"firm commitment" or "best efforts" Underwritten Offering or (B) if not
sold to underwriters in such an offering, beginning with the first
month of the Company's first fiscal quarter commencing after the
effective date of the Registration Statement,
(xx) cause the Indenture to be qualified
under the TIA not later than the effective date of the first
Registration Statement required by this Agreement, and, in connection
therewith, cooperate with the Trustee and the Holders to effect such
changes to the Indenture as may be required for such Indenture to be so
qualified in accordance with the terms of the TIA; and execute and use
its reasonable best efforts to cause the Trustee to execute all
documents that may be required to effect such changes and all other
forms and documents required to be filed with the Commission to enable
such Indenture to be so qualified in a timely manner; and
15
(xxi) provide promptly to each Holder upon
request each document filed with the Commission pursuant to the
requirements of Section 13 and Section 15 of the Exchange Act.
Each Holder agrees that by its acquisition of a
Transfer Restricted Security, upon receipt of any notice from the
Company of the existence of any fact of the kind described in Section
6(c)(iii)(D) hereof, such Holder will forthwith discontinue disposition
of Transfer Restricted Securities pursuant to the applicable
Registration Statement until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 6(c)(xvi)
hereof, or until it is advised in writing (the "Advice") by the Company
that the use of the Prospectus may be resumed, and has received copies
of any additional or supplemental filings that are incorporated by
reference in the Prospectus. If so directed by the Company, each Holder
will deliver to the Company (at the Company's expense) all copies,
other than permanent file copies then in such Holder's possession, of
the Prospectus covering such Transfer Restricted Securities that was
current at the time of receipt of such notice. In the event the Company
shall give any such notice, the time period regarding the effectiveness
of such Registration Statement set forth in Section 3 or 4 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 6(c)(iii)(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 6(c)(xvi) hereof or shall have received the Advice.
7. Registration Expenses.
All expenses incident to the Company's performance of or
compliance with this Agreement will be borne by the Company, regardless of
whether a Registration Statement becomes effective, including without
limitation: (i) all registration and filing fees and expenses (including filings
made by any Initial Purchaser or Holder with the NASD (and, if applicable, the
fees and expenses of any "qualified independent underwriter" and its counsel
that may be required by the rules and regulations of the NASD)); (ii) all fees
and expenses of compliance with federal securities and applicable state Blue Sky
or securities laws; (iii) all expenses of printing (including printing
certificates for the Exchange Notes to be issued in the Exchange Offer and
printing of Prospectuses), and associated messenger and delivery services and
telephone; (iv) all fees and disbursements of counsel for the Company; (v) all
application and filing fees in connection with listing Notes on a national
securities exchange or automated quotation system; and (vi) all fees and
disbursements of independent certified public accountants of the Company
(including the expenses of any special audit and comfort letters required by or
incident to such performance).
The Company 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 of any annual
audit and the fees and expenses of any Person, including special experts,
retained by the Company.
8. Indemnification and Contribution.
16
(a) In connection with a Shelf Registration Statement
or in connection with any delivery of a Prospectus contained in an Exchange
Offer Registration Statement by any participating Broker-Dealer or Initial
Purchaser, as applicable, who seeks to sell Exchange Notes, the Company shall
indemnify and hold harmless each Holder of Transfer Restricted Securities
included within any such Shelf Registration Statement and each participating
Broker-Dealer or Initial Purchaser selling Exchange Notes or Notes pursuant to
the Shelf Registration Statement, and each Person, if any, who controls any such
Person within the meaning of Section 15 of the Securities Act (each, a
"Participant") from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof (including, but not limited to, any
loss, claim, damage, liability or action relating to purchases and sales of
Notes or Exchange Notes) to which such Participant or controlling person may
become subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact contained in any
preliminary Prospectus, Registration Statement or Prospectus, or in any
amendment or supplement thereto or (ii) the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and shall reimburse each Participant
promptly upon demand for any legal or other expenses reasonably incurred by such
Participant in connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such expenses are
incurred; provided however that the Company shall not be liable in any such case
to the extent that any such loss, claim, damage, liability or action directly or
indirectly arises out of, or is based upon, any untrue statement or alleged
untrue statement or omission or alleged omission made in any such Registration
Statement or any prospectus forming part thereof or in any such amendment or
supplement in reliance upon and in conformity with written information furnished
to the Company by or on behalf of any Participant specifically for inclusion
therein. The foregoing indemnity agreement is in addition to any liability which
the Company may otherwise have to any Participant.
(b) Each Participant, severally and not jointly,
shall indemnify and hold harmless the Company, its directors, officers,
employees or agents and each Person, if any, who controls the Company within the
meaning of Section 15 of the Securities Act, from and against any loss, claim,
damage or liability, joint or several, or any action in respect thereof, to
which the Company or any such director, officer, employees or agents or
controlling person may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in any preliminary Prospectus, Registration Statement or
Prospectus, or in any amendment or supplement thereto or (ii) the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, but in each case
only to the extent that the untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company by or on behalf of that Participant
specifically for inclusion herein, and shall reimburse the Company and any such
director, officer, employees or agents or controlling person promptly on demand
for any legal or other expenses reasonably incurred by the Company or any such
director, officer, employees or agents or controlling person in connection with
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred. The foregoing
indemnity agreement is in addition to any liability which any Participant may
otherwise have to the Company or any such director, officer, employee, agent or
controlling person.
17
(c) Promptly after receipt by an indemnified party
under this Section 8 of notice of any claim or the commencement of any action,
the indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 8 except to the extent it has
been materially prejudiced by such failure and, provided further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under Section 8(a) or
8(b) hereof. If any such claim or action shall be brought against an indemnified
party, and it shall have notified the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it wishes, jointly with any other similarly notified indemnifying party, to
assume the defense thereof with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the indemnified
party of its election to assume the defense of such claim or action, the
indemnifying party shall not be liable to the indemnified party under this
Section 8 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than reasonable
costs of investigation; provided, however, that the indemnified party shall have
the right to employ counsel to represent jointly the indemnified party and those
other Participants and its respective officers, employees and controlling
persons who may be subject to liability arising out of any claim in respect of
which indemnity may be sought by the Participants by an indemnified party
against the indemnifying party under this Section 8 if, in the reasonable
judgment of the indemnified party it is advisable for the indemnified party and
those Participants, officers, employees and controlling persons to be jointly
represented by separate counsel, and in that event the fees and expenses of such
separate counsel shall be paid by the indemnifying party. In no event shall the
indemnifying parties be liable for the fees and expenses of more than one
counsel (in addition to local counsel) for all indemnified parties in connection
with any proceeding or related proceedings. Each indemnified party, as a
condition of the indemnity agreements contained in Section 8(a) and 8(b) hereof,
shall use its best efforts to cooperate with the indemnifying party in the
defense of any such action or claim. No indemnifying party shall (i) without the
prior written consent of the indemnified parties (which consent shall not be
unreasonably withheld), settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding, or (ii) be liable for any
settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with its written
consent or if there is a final judgment for the plaintiff in any such action,
the indemnifying party agrees to indemnify and hold harmless any indemnified
party from and against any loss or liability by reason of such settlement or
judgment in accordance with this Section 8.
(d) If the indemnification provided for in this
Section 8 shall for any reason be unavailable to or insufficient to hold
harmless an indemnified party under Section 8(a) or 8(b) in respect of any loss,
claim, damage or liability, or any action in respect thereof, referred to
therein, then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or action in respect
thereof, in such proportion as shall be appropriate to reflect the relative
fault of the Company on the one hand and the Participants on the other with
respect to the statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any other relevant
18
equitable considerations. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or the Participants, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the Participants
agree that it would not be just and equitable if contributions pursuant to this
Section 8(d) were to be determined by pro rata allocation (even if the
Participants were treated as one entity for such purpose) or by any other method
of allocation which does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, damage or liability, or action in respect thereof,
referred to above in this Section 8(d) shall be deemed to include, subject to
limitations set forth above, for purposes of this Section 8(d), any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8(d), no Participant shall be required to indemnify
or contribute any amount in excess of the amount by which proceeds received by
such Participant from an offering of the Notes exceeds the amount of any damages
which such Participant has otherwise paid or become liable to pay by reason of
any 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 Participants'
obligations to contribute as provided in this Section 8(d) are several and not
joint. The remedies provided for in this Section 8 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
9. Rule 144A.
The Company hereby agrees with each Holder, for so long as any
Transfer Restricted Securities remain outstanding, to make available to any
Holder or beneficial owner of Transfer Restricted Securities in connection with
any sale thereof and any prospective purchaser of such Transfer Restricted
Securities from such Holder or beneficial owner, the information required by
Rule 144A(d)(4) under the Securities Act in order to permit resales of such
Transfer Restricted Securities pursuant to Rule 144A.
10. Participation in Underwritten Registrations.
No Holder may participate in any Underwritten Registration
hereunder unless such Holder (a) agrees to sell such Holder's Transfer
Restricted Securities on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all reasonable questionnaires, powers of attorney,
indemnities, underwriting agreements, "lock-up" agreements and other documents
required under the terms of such underwriting arrangements.
11. Selection of Underwriters.
The Holders of Transfer Restricted Securities covered by the
Shelf Registration Statement who desire to do so may sell such Transfer
Restricted Securities in an Underwritten Offering. In any such 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 the
19
Transfer Restricted Securities included in such offering; provided, that such
investment bankers and managers must be reasonably satisfactory to the Company.
12. Miscellaneous.
(a) Remedies. The Company agrees that monetary
damages (including Liquidated Damages) would not be adequate
compensation for any loss incurred by reason of a breach by it of the
provisions of this Agreement and hereby agrees to waive the defense in
any action for specific performance that a remedy at law would be
adequate.
(b) No Inconsistent Agreements. The Company will not
on or after the date of this Agreement enter into any agreement with
respect to its securities that is inconsistent with the rights granted
to the Holders in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not
in any way conflict with and are not inconsistent with the rights
granted to the holders of the Company's securities under any agreement
in effect on the date hereof.
(c) Adjustments Affecting the Transfer Restricted
Securities. The Company will not take any action, or permit any change
to occur, with respect to Transfer Restricted Securities that would
materially and adversely affect the ability of the Holders to
Consummate any Exchange Offer unless such action or change is required
by applicable law.
(d) Amendments and Waivers. The provisions of this
Agreement may not be amended, modified or supplemented, and waivers or
consents to or departures from the provisions hereof may not be given
unless the Company has obtained the written consent of Holders of a
majority of the outstanding principal amount of Transfer Restricted
Securities. Notwithstanding the foregoing, a waiver or consent to
departure from the provisions hereof that relates exclusively to the
rights of Holders whose securities are being tendered pursuant to the
Exchange Offer and that does not affect directly or indirectly the
rights of other Holders whose securities are not being tendered
pursuant to such Exchange Offer may be given by the Holders of a
majority of the outstanding principal amount of Transfer Restricted
Securities being tendered or registered.
(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:
(i) if to a Holder, at the address of such
Holder maintained by the Registrar under the Indenture; and
(ii) if to the Company:
Startec Global Communications
Corporation
00000 Xxxxx Xxxx Xxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
20
Attention: Xxxxxxx X. Xxxxxxx,
Chief Financial Officer
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxxx Xxxxxxxx Xxxxx & Xxxxx LLP
0000 Xxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
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 Transfer
Restricted Securities; provided, however, that this Agreement shall not
inure to the benefit of or be binding upon a successor or assign of a
Holder unless and to the extent such successor or assign acquired
Transfer Restricted Securities from such Holder.
(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.
(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 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.
21
(k) Entire Agreement. This Agreement together with
the Purchase Agreement and the Indenture 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 the Company with respect to the Transfer Restricted
Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
(l) Required Consents. Whenever the consent or
approval of Holders of a specified percentage of Transfer Restricted
Securities is required hereunder, Transfer Restricted Securities held
by the Company or its affiliates (as such term is defined in Rule 405
under the Securities Act) shall not be counted in determining whether
such consent or approval was given by the Holders of such required
percentage.
22
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
STARTEC GLOBAL COMMUNICATIONS
CORPORATION
By:_____________________________
Name:
Title:
XXXXXX BROTHERS INC.
By:____________________________
Name:
Title:
XXXXXXX, SACHS & CO.
By:____________________________
Name:
Title:
ING BARING (U.S.) SECURITIES, INC.
By:____________________________
Name:
Title:
23
