XO COMMUNICATIONS, INC.
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of January 16, 2003, among the
parties listed on Schedule I hereto (the "Holders") and XO Communications, a
Delaware corporation (the "Company").
R E C I T A L S
WHEREAS, on June 17, 2002, the Company commenced it case (the "Bankruptcy
Case") under Chapter 11 of the United Stated Code (the "Bankruptcy Code") in the
United States Bankruptcy Court for the Southern District of New York (the
"Bankruptcy Court");
WHEREAS, the Holders were holders of claims against the Company in the
Bankruptcy Case;
WHEREAS, on November 15, 2002, the Bankruptcy Court confirmed the Third
Amended Plan of Reorganization of the Company (the "Plan");
WHEREAS, on January 16, 2003 (the "Effective Date"), the Plan and the
related transactions contemplated thereby were consummated, at which time the
Holders claims were cancelled and they received New Reorganization Common Stock
(as defined below) and New Warrants (as defined in below);
WHEREAS, the Company has agreed to grant the Holders certain registration
rights;
WHEREAS, the Company and the Holders desire to define the registration
rights of the Holders on the terms and subject to the conditions herein set
forth.
NOW, THEREFORE, in consideration of the foregoing premises and for other
good and valuable consideration, the parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following terms have the respective meaning
set forth below:
Commission: shall mean the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act;
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Effective Date: shall have the meaning set forth in the Recitals above;
Exchange Act: shall mean the Securities Exchange Act of 1934, as amended
and the rules and regulations promulgated thereunder;
Holder: shall mean any holder of Registrable Securities;
Initiating Holder: shall mean any Holder or Holders who in the aggregate
are Holders of more than 50% of the then outstanding Registrable Securities;
New Reorganization Common Stock: shall mean any common stock of the
Company, par value $0.01 per share, issued on or after the Effective Date.
New Warrants: shall mean any warrants to purchase New Reorganization Common
Stock issued pursuant to the Plan.
Person: shall mean an individual, partnership, joint-stock company,
corporation, trust or unincorporated organization, and a government or agency or
political subdivision thereof;
Plan: shall have the meaning as set forth in the recitals.
Register, Registered and Registration: shall mean to a registration
effected by preparing and filing a registration statement in compliance with the
Securities Act (and any post-effective amendments filed or required to be filed)
and the declaration or ordering of effectiveness of such registration statement;
Registrable Securities: shall mean the Warrants and the shares of New
Reorganization Common Stock (together with any securities issued or issuable in
respect thereof by way of a dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization or otherwise) issued or issuable to the Holders pursuant to the
Plan or pursuant to the exercise of the Rights and the Warrants; provided,
however, that any shares of New Reorganization Common Stock that cease to be
owned by Holder or any of its Affiliates shall cease to be Registrable
Securities;
Registration Expenses: shall mean all expenses incurred by the Company in
compliance with Section 2(a), (b) and (c) hereof, including, without limitation,
all registration and filing fees, printing expenses, fees and disbursements of
counsel for the Company, fees and expenses of one counsel for all the Holders in
an amount not to exceed $15,000, blue sky fees and expenses and the expense of
any special audits incident to or required by any such registration (but
excluding the compensation of regular employees of the Company, which shall be
paid in any event by the Company); provided, however, that Registration Expenses
shall exclude Selling Expenses;
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Rights: shall mean any rights to purchase New Reorganization Common Stock
issued in the rights offering established pursuant to the Plan;
Security, Securities: shall have the meaning set forth in Section 2(1) of
the Securities Act;
Securities Act: shall mean the Securities Act of 1933, as amended and the
rules and regulations promulgated thereunder; and
Selling Expenses: shall mean all underwriting discounts and selling
commissions applicable to the sale of Registrable Securities and all fees and
disbursements of counsel for each of the Holders other than the fees and
expenses of one counsel for all the Holders referenced in the definition of
Registration Expenses above.
SECTION 2. REGISTRATION RIGHTS
(a) Requested Registration.
(i) Request for Registration. If the Company shall receive from
an Initiating Holder, at any time after the Effective Date, subject to
Section (2)(i), if applicable, a written request that the Company
effect any registration with respect to more than 30% of the
Registrable Securities, the Company will:
(1) promptly give written notice of the proposed
registration, qualification or compliance to all other Holders;
and
(2) as soon as practicable, use its diligent best efforts to
effect such registration (including, without limitation, the
execution of an undertaking to file post-effective amendments,
appropriate qualification under applicable blue sky or other
state securities laws and appropriate compliance with applicable
regulations issued under the Securities Act) as may be so
requested and as would permit or facilitate the sale and
distribution of all or such portion of such Registrable
Securities as are specified in such request, together with all or
such portion of the Registrable Securities of any Holder or
Holders joining in such request as are specified in a written
request received by the Company within 10 business days after
written notice from the Company is given under Section 2(a)(i)(1)
above; provided that the Company shall not be obligated to
effect, or take any action to effect, any such registration
pursuant to this Section 2(a):
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(A) In any particular jurisdiction in which the Company
would be required to execute a general consent to service of
process in effecting such registration, qualification or
compliance, unless the Company is already subject to service
in such jurisdiction and except as may be required by the
Securities Act or applicable rules or regulations
thereunder;
(B) After the Company has effected two (2) such
registrations pursuant to this Section 2(a) and such
registrations have been declared or ordered effective and
the sales of such Registrable Securities shall have closed;
(C) If the Registrable Securities requested by all
Holders to be registered pursuant to such request do not
have an anticipated aggregate public offering price (before
any underwriting discounts and commissions) of not less than
$5,000,000;
(D) During the period starting with the date sixty (60)
days prior to the Company's good faith estimate of the date
of filing of, and ending on the date six (6) months
immediately following the effective date of, any
registration statement pertaining to securities of the
Company (other than a registration of securities in a Rule
145 transaction, with respect to an employee benefit plan or
with respect to the Company's first registered public
offering of its stock), provided that the Company is
actively employing in good faith all reasonable efforts to
cause such registration statement to become effective; or
(E) If the Company shall furnish to the Initiating
Holders a certificate signed by an officer of the Company
stating that in the good faith judgment of the Board of
Directors it would be significantly detrimental to the
Company or its stockholders for a registration statement to
be filed or securities to be offered, in which case the
Company's obligation to use its best efforts to comply with
this Section 2 shall be deferred for a period not to exceed
ninety (90) days from the date of receipt of
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written request from the Initiating Holders; provided,
however, that the Company shall not exercise such right more
than once in any six-month period.
The registration statement filed pursuant to the request of the Initiating
Holders may, subject to the provisions of Section 2(a)(ii) below, include other
securities of the Company which are held by Persons who, by virtue of agreements
with the Company, are entitled to include their securities in any such
registration ("Other Stockholders"). In the event any Holder requests a
registration pursuant to this Section 2(a) in connection with a distribution of
Registrable Securities to its partners, the registration shall provide for the
resale by such partners, if requested by such Holder.
The registration rights set forth in this Section 2 may be assigned, in
whole or in part, to any transferee of Registrable Securities (who shall be
bound by all obligations of this Agreement).
(ii) Underwriting. If the Initiating Holders intend to distribute
the Registrable Securities covered by their request by means of an
underwriting, they shall so advise the Company as a part of their
request made pursuant to Section 2(a).
If Other Stockholders request such inclusion, the Holders shall offer to
include the securities of such Other Stockholders in the underwriting and may
condition such offer on their acceptance of the further applicable provisions of
this Section 2. The Holders whose shares are to be included in such registration
and the Company shall (together with all Other Stockholders proposing to
distribute their securities through such underwriting) enter into an
underwriting agreement in customary form with the representative of the
underwriter or underwriters selected for such underwriting by the Initiating
Holders and reasonably acceptable to the Company. Notwithstanding any other
provision of this Section 2(a), if the representative advises the Holders in
writing that marketing factors require a limitation on the number of shares to
be underwritten, the securities of the Company held by Other Stockholders shall
be excluded from such registration to the extent so required by such limitation.
If, after the exclusion of such shares, further reductions are still required,
the number of shares included in the registration by each Holder shall be
reduced on a pro rata basis (based on the number of shares held by such Holder),
by such minimum number of shares as is necessary to comply with such request. No
Registrable Securities or any other securities excluded from the underwriting by
reason of the underwriter's marketing limitation shall be included in such
registration. If any Other Stockholder who has requested inclusion in such
registration as provided above disapproves of the terms of the underwriting,
such Person may elect to withdraw therefrom by written notice to the Company,
the underwriter and the Initiating Holders. The securities so withdrawn shall
also be withdrawn from registration. If the
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underwriter has not limited the number of Registrable Securities or other
securities to be underwritten, the Company and officers and directors of the
Company may include its or their securities for its or their own account in such
registration if the representative so agrees and if the number of Registrable
Securities and other securities which would otherwise have been included in such
registration and underwriting will not thereby be limited.
(b) Company Registration.
(i) If the Company shall determine to register any of its equity
securities either for its own account or for the account of Other
Stockholders, other than a registration relating solely to employee
benefit plans, or a registration relating solely to a Commission Rule
145 transaction, or a registration on any registration form (including
Form S-4) which does not permit secondary sales or does not include
substantially the same information as would be required to be included
in a registration statement covering the sale of Registrable
Securities, the Company will:
(1) promptly give to each of the Holders a written notice
thereof (which shall include a list of the jurisdictions in which
the Company intends to attempt to qualify such securities under
the applicable blue sky or other state securities laws); and
(2) include in such registration (and any related
qualification under blue sky laws or other compliance), and in
any underwriting involved therein, all the Registrable Securities
specified in a written request or requests, made by the Holders
within fifteen (15) days after receipt of the written notice from
the Company described in clause (i) above, except as set forth in
Section 2(b)(ii) below. Such written request may specify all or a
part of the Holders' Registrable Securities. In the event any
Holder requests inclusion in a registration pursuant to this
Section 2(b) in connection with a distribution of Registrable
Securities to its partners, the registration shall provide for
the resale by such partners, if requested by such Holder.
(ii) Underwriting. If the registration of which the Company gives
notice is for a registered public offering involving an underwriting,
the Company shall so advise each of the Holders as a part of the
written notice given pursuant to Section 2(b)(i)(1). In such event,
the right of each of the Holders to registration pursuant to this
Section 2(b) shall be conditioned upon such Holders' participation in
such underwriting and the inclusion of such Holders' Registrable
Securities in the underwriting to the extent provided herein. The
Holders whose shares are to be included in such registration shall
(together with the Company and the Other Stockholders distributing
their securities through such underwriting) enter into an
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underwriting agreement in customary form with the representative
of the underwriter or underwriters selected for underwriting by the
Company. Notwithstanding any other provision of this Section 2(b), if
the representative determines that marketing factors require a
limitation on the number of shares to be underwritten, and the
representative may (subject to the allocation priority set forth
below) limit the number of Registrable Securities to be included in
the registration and underwriting to not less than twenty five percent
(25%) of the shares included therein (based on the number of shares).
The Company shall so advise all holders of securities requesting
registration, and the number of shares of securities that are entitled
to be included in the registration and underwriting shall be allocated
in the following manner: The securities of the Company held by
officers, directors and Other Stockholders of the Company (other than
Registrable Securities and other than securities held by holders who
by contractual right demanded such registration ("Demanding Holders"))
shall be excluded from such registration and underwriting to the
extent required by such limitation, and, if a limitation on the number
of shares is still required, the number of shares that may be included
in the registration and underwriting by each of the Holders and
Demanding Holders shall be reduced, on a pro rata basis (based on the
number of shares held by such Holder), by such minimum number of
shares as is necessary to comply with such limitation. If any of the
Holders or any officer, director or Other Stockholder disapproves of
the terms of any such underwriting, he may elect to withdraw therefrom
by written notice to the Company and the underwriter. Any Registrable
Securities or other securities excluded or withdrawn from such
underwriting shall be withdrawn from such registration.
(c) Form S-3. The Company shall use its best efforts to qualify for
registration on Form S-3 for secondary sales. After the Company has qualified
for the use of Form S-3, the Holders shall have the right to request three (3)
registrations on Form S-3 (such requests shall be in writing and shall state the
number of shares of Registrable Securities to be disposed of and the intended
method of disposition of shares by such holders), provided that the Company
shall not be obligated to effect, or take any action to effect, any such
registration pursuant to this Section 2(c):
(i) Unless the Holder or Holders requesting registration propose
to dispose of shares of Registrable Securities having an aggregate
price to the public (before deduction of Selling Expenses) of more
than $5,000,000;
(ii) Within 180 days of the effective date of the most recent
registration pursuant to this Section 2(c) in which securities held by
the requesting Holder could have been included for sale or
distribution;
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(iii) In any particular jurisdiction in which the Company would
be required to execute a general consent to service of process in
effecting such registration, qualification or compliance, unless the
Company is already subject to service in such jurisdiction and except
as may be required by the Securities Act or applicable rules or
regulations thereunder;
(iv) During the period starting with the date sixty (60) days
prior to the Company's good faith estimate of the date of filing of,
and ending on the date six (6) months immediately following the
effective date of, any registration statement pertaining to securities
of the Company (other than a registration of securities in a Rule 145
transaction or with respect to an employee benefit plan), provided
that the Company is actively employing in good faith all reasonable
efforts to cause such registration statement to become effective;
provided, however, that the Company may only delay an offering
pursuant to this Section 2(c)(iv) for a period of not more than sixty
(60) days, if a filing of any other registration statement is not made
within that period and the Company may only exercise this right once
in any twelve (12) month period; or
(v) If the Company shall furnish to the Holders a certificate
signed by an officer of the Company stating that in the good faith
judgment of the Board of Directors it would be significantly
detrimental to the Company or its stockholders for a registration
statement to be filed in the near future, in which case the Company's
obligation to use its best efforts to comply with this Section 2(c)
shall be deferred for a period not to exceed ninety (90) days from the
date of receipt of written request from the Holders; provided,
however, that the Company shall not exercise such right more than once
in any six-month period.
The Company shall give written notice to all Holders of the
receipt of a request for registration pursuant to this Section 2(c)
and shall provide a reasonable opportunity for other Holders to
participate in the registration, provided that if the registration is
for an underwritten offering, the terms of Section 2(a)(ii) shall
apply to all participants in such offering. Subject to the foregoing,
the Company will use its best efforts to effect promptly the
registration of all shares of Registrable Securities on Form S-3 to
the extent requested by the Holder or Holders thereof for purposes of
disposition. In the event any Holder requests a registration pursuant
to this Section 2(c) in connection with a distribution of Registrable
Securities to its partners, the registration shall provide for the
resale by such partners, if requested by such Holder.
(d) Expenses of Registration. All Registration Expenses incurred in
connection with any registration, qualification or compliance pursuant to this
Section 2 shall be borne by the Company, and all Selling Expenses shall be borne
by the Holders of the securities so registered pro rata on the basis of the
number of their shares so registered.
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(e) Registration Procedures. In the case of each registration effected by
the Company pursuant to this Section 2, the Company will keep the Holders, as
applicable, advised in writing as to the initiation of each registration and as
to the completion thereof. At its expense, the Company will:
(i) keep such registration effective for a period of one hundred
twenty (120) days or until the Holders (or in the case of a
distribution to the partners of such Holder, such partners), as
applicable, have completed the distribution described in the
registration statement relating thereto, whichever first occurs;
provided, however, that (A) such 120-day period shall be extended for
a period of time equal to the period during which the Holders or
partners, as applicable, refrain from selling any securities included
in such registration in accordance with provisions in Section 2(i)
hereof; and (B) in the case of any registration of Registrable
Securities on Form S-3 which are intended to be offered on a
continuous or delayed basis, such 120-day period shall be extended
until all such Registrable Securities are sold, provided that Rule
415, or any successor rule under the Securities Act, permits an
offering on a continuous or delayed basis, and provided further that
applicable rules under the Securities Act governing the obligation to
file a post-effective amendment permit, in lieu of filing a
post-effective amendment which (y) includes any prospectus required by
Section 10(a) of the Securities Act or (z) reflects facts or events
representing a material or fundamental change in the information set
forth in the registration statement, the incorporation by reference of
information required to be included in (y) and (z) above to be
contained in periodic reports filed pursuant to Section 12 or 15(d) of
the Exchange Act in the registration statement;
(ii) furnish such number of prospectuses and other documents
incident thereto as each of the Holders, as applicable, from time to
time may reasonably request;
(iii) notify each Holder of Registrable Securities covered by
such registration at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of
any event as a result of which the prospectus included in such
registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then
existing; and
(iv) furnish, on the date that such Registrable Securities are
delivered to the underwriters for sale, if such securities are being
sold through underwriters or, if such securities are not being sold
through underwriters, on the date that the registration statement with
respect to such securities becomes effective, (1) an opinion, dated as
of such date, of the counsel representing the Company for
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the purposes of such registration, in form and substance as is
customarily given to underwriters in an underwritten public offering
and reasonably satisfactory to a majority in interest of the Holders
participating in such registration, addressed to the underwriters, if
any, and to the Holders participating in such registration and (2) a
letter, dated as of such date, from the independent certified public
accountants of the Company, in form and substance as is customarily
given by independent certified public accountants to underwriters in
an underwritten public offering and reasonably satisfactory to a
majority in interest of the Holders participating in such
registration, addressed to the underwriters, if any, and if permitted
by applicable accounting standards, to the Holders participating in
such registration.
(f) Indemnification.
(i) The Company will indemnify each of the Holders, as
applicable, each of its officers, directors and partners, and each
Person controlling each of the Holders, with respect to each
registration which has been effected pursuant to this Section 2, and
each underwriter, if any, and each person who controls any
underwriter, against all claims, losses, damages and liabilities (or
actions in respect thereof) arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained
in any prospectus, offering circular or other document (including any
related registration statement, notification or the like) incident to
any such registration, qualification or compliance, or based on any
omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or any violation by the Company of the
Securities Act or the Exchange Act or any rule or regulation
thereunder applicable to the Company and relating to action or
inaction required of the Company in connection with any such
registration, qualification or compliance, and will reimburse each of
the Holders, each of its officers, directors and partners, and each
Person controlling each of the Holders, each such underwriter and each
Person who controls any such underwriter, for any legal and any other
expenses reasonably incurred in connection with investigating and
defending any such claim, loss, damage, liability or action, provided
that the Company will not be liable in any such case to the extent
that any such claim, loss, damage, liability or expense arises out of
or is based on any untrue statement or omission based upon written
information furnished to the Company by the Holders or underwriter and
stated to be specifically for use therein.
(ii) Each of the Holders will, if Registrable Securities held by
it are included in the securities as to which such registration,
qualification or compliance is being effected, indemnify the Company,
each of its directors and officers and each underwriter, if any, of
the Company's securities covered by such a registration statement,
each person who controls the Company or such underwriter, each Other
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Stockholder and each of their officers, directors, and partners,
and each person controlling such Other Stockholder against all claims,
losses, damages and liabilities (or actions in respect thereof)
arising out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in any such registration
statement, prospectus, offering circular or other document made by
such Holder, or any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the
statements by such Holder therein not misleading, and will reimburse
the Company and such Other Stockholders, directors, officers,
partners, persons, underwriters or control persons for any legal or
any other expenses reasonably incurred in connection with
investigating or defending any such claim, loss, damage, liability or
action, in each case to the extent, but only to the extent, that such
untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement, prospectus, offering
circular or other document in reliance upon and in conformity with
written information furnished to the Company by such Holder and stated
to be specifically for use therein; provided, however, that the
obligations of each of the Holders hereunder shall be limited to an
amount equal to the net proceeds to such Holder of securities sold as
contemplated herein.
(iii) Each party entitled to indemnification under this Section
2(f) (the "Indemnified Party") shall give notice to the party required
to provide indemnification (the "Indemnifying Party") promptly after
such Indemnified Party has actual knowledge of any claim as to which
indemnity may be sought, and shall permit the Indemnifying Party to
assume the defense of any such claim or any litigation resulting
therefrom; provided that counsel for the Indemnifying Party, who shall
conduct the defense of such claim or any litigation resulting
therefrom, shall be approved by the Indemnified Party (whose approval
shall not unreasonably be withheld) and the Indemnified Party may
participate in such defense at such party's expense (unless the
Indemnified Party shall have reasonably concluded that there may be a
conflict of interest between the Indemnifying Party and the
Indemnified Party in such action, in which case the fees and expenses
of counsel shall be at the expense of the Indemnifying Party), and
provided further that the failure of any Indemnified Party to give
notice as provided herein shall not relieve the Indemnifying Party of
its obligations under this Section 2 unless the Indemnifying Party is
materially prejudiced thereby. No Indemnifying Party shall be liable
for any settlement of any action or proceeding effected without its
written consent. No Indemnifying Party, in the defense of any such
claim or litigation shall, except with the consent of each Indemnified
Party, consent to entry of any judgment or enter into any settlement
which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such Indemnified Party of a release from
all liability in respect to such claim or litigation. Each Indemnified
Party shall furnish such information regarding itself or the claim in
question as an
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Indemnifying Party may reasonably request in writing and as shall
be reasonably required in connection with the defense of such claim
and litigation resulting therefrom.
(iv) If the indemnification provided for in this Section 2(f) is
held by a court of competent jurisdiction to be unavailable to an
Indemnified Party with respect to any loss, liability, claim, damage
or expense referred to herein, then the Indemnifying Party, in lieu of
indemnifying such Indemnified Party hereunder, shall contribute to the
amount paid or payable by such Indemnified Party as a result of such
loss, liability, claim, damage or expense in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party on
the one hand and of the Indemnified Party on the other in connection
with the statements or omissions which resulted in such loss,
liability, claim, damage or expense, as well as any other relevant
equitable considerations. The relative fault of the Indemnifying Party
and of the Indemnified Party shall be determined by reference to,
among other things, whether the untrue (or alleged untrue) statement
of a material fact or the omission (or alleged omission) to state a
material fact relates to information supplied by the Indemnifying
Party or by the Indemnified Party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission.
(v) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the
underwriting agreement entered into in connection with any
underwritten public offering contemplated by this Agreement are in
conflict with the foregoing provisions, the provisions in such
underwriting agreement shall be controlling.
(vi) The foregoing indemnity agreement of the Company and Holders
is subject to the condition that, insofar as they relate to any loss,
claim, liability or damage arising out of a statement made in or
omitted from a preliminary prospectus but eliminated or remedied in
the amended prospectus on file with the Commission at the time the
registration statement in question becomes effective or the amended
prospectus filed with the Commission pursuant to Commission Rule
424(b) (the "Final Prospectus"), such indemnity or contribution
agreement shall not inure to the benefit of any underwriter or Holder
if a copy of the Final Prospectus was furnished to such underwriter or
Holder and was not furnished to the Person asserting the loss,
liability, claim or damage at or prior to the time such action is
required by the Securities Act.
(g) Information by the Holders.
(i) Each of the Holders holding securities included in any
registration shall furnish to the Company such information regarding
such Holder and the distribution proposed by such Holder as the
Company may reasonably
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request in writing and as shall be reasonably required in
connection with any registration, qualification or compliance referred
to in this Section 2.
(ii) In the event that, either immediately prior to or subsequent
to the effectiveness of any registration statement, any Holder shall
distribute Registrable Securities to its partners, such Holder shall
so advise the Company and provide such information as shall be
necessary to permit an amendment to such registration statement to
provide information with respect to such partners, as selling
securityholders. Promptly following receipt of such information, the
Company shall file an appropriate amendment to such registration
statement reflecting the information so provided. Any incremental
expense to the Company resulting from such amendment shall be borne by
such Holder.
(h) Rule 144 Reporting.
With a view to making available the benefits of certain rules and
regulations of the Commission which may permit the sale of restricted securities
to the public without registration, the Company agrees to:
(i) make and keep public information available as those terms are
understood and defined in Rule 144 under the Securities Act ("Rule
144"), at all times from and after ninety (90) days following the
effective date of the first registration under the Securities Act
filed by the Company for an offering of its securities to the general
public;
(ii) use its best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under
the Securities Act and the Exchange Act at any time after it has
become subject to such reporting requirements; and
(iii) so long as the Holder owns any Registrable Securities,
furnish to the Holder upon request, a written statement by the Company
as to its compliance with the reporting requirements of Rule 144, and
of the Securities Act and the Exchange Act, a copy of the most recent
annual or quarterly report of the Company, and such other reports and
documents so filed as the Holder may reasonably request in availing
itself of any rule or regulation of the Commission allowing the Holder
to sell any such securities without registration.
(i) "Market Stand-off" Agreement. Each of the Holders agrees, if requested
by the Company or an underwriter of equity securities of the Company, not to
sell or otherwise transfer or dispose of any Registrable Securities held by such
Holder during the 180-day period following the effective date of a registration
statement of the Company filed under the Securities Act, provided that all
officers and directors of the Company enter into similar agreements.
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If requested by the underwriters, the Holders shall execute a separate
agreement to the foregoing effect. The Company may impose stop-transfer
instructions with respect to the shares (or securities) subject to the foregoing
restriction until the end of said 180-day period. The provisions of this Section
2(i) shall be binding upon any transferee who acquires Registrable Securities.
SECTION 3. MISCELLANEOUS
(a) Directly or Indirectly. Where any provision in this Agreement refers to
action to be taken by any Person, or which such Person is prohibited from
taking, such provision shall be applicable whether such action is taken directly
or indirectly by such Person.
(b) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed entirely within such State.
(c) Section Headings. The headings of the sections and subsections of this
Agreement are inserted for convenience only and shall not be deemed to
constitute a part thereof.
(d) Notices.
(i) All communications under this Agreement shall be in writing
and shall be delivered by hand or facsimile or mailed by overnight
courier or by registered or certified mail, postage prepaid:
(1) if to the Company, to XO Communications, Inc., 00000
Xxxxxx Xxxxx Xxxx, Xxxxxx, XX 00000, Attention: General Counsel
(facsimile: (000) 000-0000, or at such other address as it may
have furnished in writing to the Holders.
(2) if to the Holders, at the address or facsimile number
listed on Schedule I hereto, or at such other address or
facsimile number as may have been furnished the Company in
writing.
(ii) Any notice so addressed shall be deemed to be given: if
delivered by hand or facsimile, on the date of such delivery; if
mailed by overnight courier, on the first business day following the
date of such mailing; and if mailed by registered or certified mail,
on the third business day after the date of such mailing.
(e) Reproduction of Documents. This Agreement and all documents relating
thereto, including, without limitation, any consents, waivers and modifications
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which may hereafter be executed may be reproduced by the Holders by any
photographic, photostatic, microfilm, microcard, miniature photographic or other
similar process and the Holders may destroy any original document so reproduced.
The parties hereto agree and stipulate that any such reproduction shall be
admissible in evidence as the original itself in any judicial or administrative
proceeding (whether or not the original is in existence and whether or not such
reproduction was made by the Holders in the regular course of business) and that
any enlargement, facsimile or further reproduction of such reproduction shall
likewise be admissible in evidence.
(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.
(g) Entire Agreement; Amendment and Waiver. This Agreement constitutes the
entire understanding of the parties hereto and supersedes all prior
understanding among such parties. This Agreement may be amended, and the
observance of any term of this Agreement may be waived, with (and only with) the
written consent of the Company and the Holders holding a majority of the then
outstanding Registrable Securities.
(h) Severability. In the event that any part or parts of this Agreement
shall be held illegal or unenforceable by any court or administrative body of
competent jurisdiction, such determination shall not affect the remaining
provisions of this Agreement which shall remain in full force and effect.
(i) No Third Party Beneficiaries. The parties hereto acknowledge and agree
that there are no intended third party beneficiaries to this Agreement and no
third parties have any rights under or relating to this Agreement
(j) Counterparts. This Agreement may be executed in two or more
counterparts (including by facsimile), each of which shall be deemed an original
and all of which together shall be considered one and the same agreement.
15
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first set forth above.
XO COMMUNICATIONS, INC.
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President, General
Counsel
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High River Limited Partnership
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Signatory
Meadow Walk Limited Partnership
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Signatory
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Schedule I
Holders
Investor Name and Address
High River Limited Partnership
c/o Icahn Associates Corp.
000 Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
Meadow Walk Limited Partnership
c/o Icahn Associates Corp.
000 Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
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