REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (the "Agreement") dated as of June 5,
1997 by and among XXXXX X. XXXXXXXX, XXXXXXX XXXXXXX BILBERRY and XXXX X
XXXXXXXX (collectively, the "Shareholders" and individually, a "Shareholder")
and GST TELECOMMUNICATIONS, INC., a federally-chartered Canadian corporation
(the "Company").
1. DEFINITIONS.
As used in this Agreement, the following terms shall have the following
meanings:
"MERGER AGREEMENT": That certain Agreement and Plan of Merger dated as
of May 31, 1997 by and among the Company, GST Action Telecom, Inc. and the
Shareholders.
"COMMON SHARES": The Common Shares, no par value, of the Company.
"EXCHANGE ACT": The Securities Exchange Act of 1934, as amended, and
the rules and regulations of the SEC promulgated thereunder.
"INITIAL REGISTRATION": See Section 3 hereof.
"INDEMNIFIED PARTY": See Section 7 hereof.
"INDEMNIFYING PARTY": See Section 7 hereof.
"FIRST DEFERRED REGISTRATION": See Section 3 hereof.
"LOSSES": See Section 7 hereof.
"MAJORITY HOLDERS": Holders from time to time of a majority in number
of the Registrable Securities.
"PERMITTED INTERRUPTION": See Section 3 hereof.
"PROSPECTUS": The prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A), as amended or supplemented by any
prospectus supplement, relating to the terms of the offering of any portion of
the Registrable Securities covered by such Registration Statement and all other
amendments and supplements to the Registration Statement or prospectus, as the
case may be, including post-effective amendments, and all material incorporated
or deemed to be incorporated by reference in such prospectus.
"REGISTRABLE SECURITIES": The Common Shares to be issued and delivered
to the Shareholders pursuant to the Merger Agreement and any and all Common
Shares issued as a dividend or distribution thereon or in connection with a
split thereof or as a result of the recapitalization of the Company, until such
time as such Common Shares cease to be Registrable Securities as provided in the
next sentence. Any Registrable Security will cease to be a Registrable Security
when (i) a Registration Statement covering such Registrable Security has been
declared effective by the SEC and such Registrable Security has been disposed of
pursuant to such effective Registration Statement or (ii) such Registrable
Security is distributed to the public pursuant to Rule 144 (or any similar rule
then in force) under the Securities Act or (iii) such Registrable Security is
held by the Company.
"REGISTRATION" or "REGISTRATIONS": See Section 3 hereof.
"REGISTRATION STATEMENT": Any registration statement of the Company
that covers any of the Registrable Securities pursuant to the provisions of this
Agreement, including the Prospectus, amendments and supplements to such
registration statement or the Prospectus, as the case may be, including
post-effective amendments, all exhibits, and all material incorporated or deemed
to be incorporated by reference in such registration statement.
"RULE 144": Rule 144 under the Securities Act (and any successor rule
then in force).
"SEC": The Securities and Exchange Commission.
"SECOND DEFERRED REGISTRATION": See Section 3 hereof.
"SECURITIES ACT": The Securities Act of 1933, as amended, and the rules
and regulations promulgated by the SEC thereunder.
"UNDERWRITTEN REGISTRATION" OR "UNDERWRITTEN OFFERING": An offering and
sale of securities of the Company pursuant to a Registration Statement under the
Securities Act.
2. SECURITIES SUBJECT TO THIS AGREEMENT. The securities entitled to the
benefits of this Agreement are the Registrable Securities.
3. REGISTRATION.
(a) Subject to the limitations set forth in Section 3(b) hereof, the
Company shall use its best efforts to effect the registration under the
Securities Act of all Registrable Securities in accordance with this Section
3(a). The Company shall file with the SEC a Registration Statement in respect of
the Registrable Securities (i) representing the Exchange Shares (as defined in
the Merger Agreement) no later than 60 days following the Closing Date
-2-
(as defined in the Merger Agreement) (the "Initial Registration"), (ii)
representing the Initial Additional Payment (as defined in the Merger
Agreement), if such Common Shares are issued pursuant to the Merger Agreement,
no later than 60 days following the First Anniversary (as defined in the Merger
Agreement) (the "First Deferred Registration") and (iii) representing the Second
Additional Payment (as defined in the Merger Agreement), if such Common Shares
are issued pursuant to the Merger Agreement, no later than 60 days following the
Second Anniversary (as defined in the Merger Agreement) (the "Second Deferred
Registration," which together with the Initial Registration and the First
Deferred Registration, are referred to hereinafter collectively as the
"Registrations" and individually as a "Registration"). In connection with each
of the Registrations, the Company shall file a Registration Statement and use
its best efforts to cause the same to be declared effective by the SEC as soon
thereafter as practicable. The Company shall keep the Registration Statement
filed in respect of each Registration effective until the earlier to occur of
(A) one (1) year following the date upon which such Registration Statement is
declared effective by the SEC and (B) the date when the Registrable Securities
covered by each respective Registration Statement have been sold pursuant
thereto.
(b) Notwithstanding the provisions of Section 3(a) hereof, the Company
shall have the right at any time on one occasion in respect of any Registration
Statement to delay the filing of such Registration Statement or to withdraw such
Registration Statement (or notify the holders of Registrable Securities covered
by such Registration Statement not to sell such Registrable Securities pursuant
to such Registration Statement) after the filing and the effective date thereof
(each such delay, withdrawal or notice is referred to herein as a "Permitted
Interruption") for a reasonable period of time (not to exceed 90 days in any
such case, which may not thereafter be extended) if, at such time: (i) the
Company is engaged in any active program for repurchase of Common Shares and
furnishes a certificate to that effect to the Shareholders; or (ii) the Board of
Directors of the Company shall determine in good faith that such offering will
interfere with a pending or contemplated financing, merger, acquisition, sale of
assets, recapitalization or other similar corporate action of the Company and
the Company furnishes a certificate to that effect to the Shareholders. After
such Permitted Interruption, the Company shall use its best efforts to restore
such Registration or to effect such Registration (as the case may be) within 30
days without further request from the Shareholders, unless such request has been
withdrawn by written notice of the Majority Holders.
4. HOLDBACK AGREEMENTS.
RESTRICTIONS ON PUBLIC SALE BY SHAREHOLDERS OF REGISTRABLE SECURITIES.
Each Shareholder, if, as and when his
-3-
Registrable Securities are covered by a Registration Statement filed pursuant to
Section 3 hereof, agrees, if and to the extent requested by the Company, in the
case of a non-underwritten public offering, or if and to the extent requested by
the managing underwriter or underwriters, in the case of an underwritten
offering (to the extent timely notified in writing by the Company or the
managing underwriter or underwriters), not to effect any public sale or
distribution of securities of the Company of any class included in such
Registration Statement, including a sale pursuant to Rule 144 (or any similar
rule then in force) under the Securities Act, except as part of such
non-underwritten or underwritten registration, during the 10-day period prior
to, and a period of up to 60 days (as determined by the Company, in the case of
any non-underwritten offering) or 120 days (as determined by the Company and the
managing underwriter or underwriters, in the case of an underwritten offering)
beginning on, the effective date of any non-underwritten or underwritten
offering made pursuant to such Registration Statement (any such period in
respect of a Registration Statement being referred to as a "Holding Period");
PROVIDED, however, that the period of time for which the Company is to maintain
the effectiveness of such Registration Statement pursuant to Section 3(a) shall
be increased by the length of the applicable Holding Period.
5. REGISTRATION PROCEDURES.
In connection with the registration obligations of the Company pursuant
to and in accordance with Section 3 of this Agreement, the Company shall effect
the Registrations to permit the sale of such Registrable Securities in
accordance with the intended method or methods of disposition thereof, and
pursuant thereto the Company shall as expeditiously as possible:
(a) prepare and file with the SEC a Registration Statement relating to
the Registration on any appropriate form under the Securities Act that shall be
available for the sale of the Registrable Securities by the Shareholders in
accordance with the intended method or methods of distribution thereof, and use
its best efforts to cause such Registration Statement to become effective and
remain effective as provided herein; PROVIDED, HOWEVER, that before filing a
Registration Statement or Prospectus or any amendments or supplements thereto,
as the case may be, the Company shall furnish to each Shareholder and the
managing underwriter or underwriters, if any, copies of all such documents
proposed to be filed, which documents will be subject to the review of the
Shareholders and such underwriter or underwriters, if any, and the Company shall
not file any such Registration Statement, or amendment thereto or any Prospectus
or any supplement thereto to which the Majority Holders, or the managing
underwriter or underwriters, if any, shall reasonably object in writing on a
timely basis;
-4-
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement required to be filed pursuant to
Section 3 of this Agreement as may be necessary to keep each such Registration
Statement effective for the time period necessitated by the intended methods of
disposition contemplated by the distribution resulting in the filing of such
Registration Statement; cause the related Prospectus to be supplemented by any
required Prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 (or any similar provisions then in force) under the Securities Act; and
comply with the provisions of the Securities Act with respect to the disposition
of all securities covered by such Registration Statement during such period in
accordance with the intended methods of disposition by the sellers thereof set
forth in such Registration Statement, as so amended, or such Prospectus as so
supplemented;
(c) notify each Shareholder and the managing underwriter or
underwriters, if any, promptly, and (if requested by any such person) confirm
such notice in writing, (i) when a Prospectus or any Prospectus supplement or
post-effective amendment related to such Registrable Securities has been filed,
and, with respect to any Registration Statement or any post-effective amendment
related to such Registrable Securities, when the same has become effective, (ii)
of any request by the SEC for amendments or supplements to such Registration
Statement or related Prospectus or for additional information, (iii) of the
issuance by the SEC of any stop order suspending the effectiveness of such
Registration Statement or the initiation of any proceedings for that purpose,
(iv) if at any time the representations and warranties of the Company contained
in any agreement (including any underwriting agreement) contemplated by Section
5(j) below cease to be true and correct, (v) of the receipt by the Company of
any notification with respect to the suspension of the qualification or
exemption from qualification of any of the Registrable Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for such
purpose, (vi) of the happening of any event that makes any statement made in
such Registration Statement or related Prospectus or any document incorporated
or deemed to be incorporated therein by reference untrue in any material respect
or that requires the making of any changes in such Registration Statement or
Prospectus so that such documents will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, and (vii) of the reasonable determination
of the Company that a post- effective amendment to such Registration Statement
would be appropriate;
(d) use its reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement;
-5-
(e) if requested in writing by the managing underwriter or underwriters
or the Majority Holders, (i) immediately incorporate in a Prospectus supplement
or post-effective amendment such information as the managing underwriter or
underwriters and Majority Holders agree should be included therein and as may be
required by applicable law, (ii) make all required filings of such Prospectus
supplement or such post-effective amendment promptly after the Company has
received notification of the matters to be incorporated in such Prospectus
supplement or such post-effective amendment and (iii) supplement or make
amendments to such Registration Statement; PROVIDED, HOWEVER, that the Company
shall not be required to take any of the actions set forth in this Section 5(e)
that are not, in the opinion of counsel for the Company, in compliance with or
required by applicable law;
(f) furnish to each managing underwriter, if any, without charge, at
least one signed copy, and furnish to each Shareholder, without charge, at least
one conformed copy, of each Registration Statement related to such Registrable
Securities and any post-effective amendments thereto, including financial
statements and schedules, all documents incorporated therein by reference and
all exhibits (including, if requested, those previously furnished or
incorporated by reference);
(g) deliver to the Shareholders and the underwriters, if any, without
charge, as many copies of the Prospectus or Prospectuses related to such
Registrable Securities (including each preliminary prospectus) and as many
copies of any amendment or supplement thereto as they may reasonably request;
(h) prior to any public offering of Registrable Securities, to register
or qualify or cooperate with the Shareholders, the underwriters, if any, and
their respective counsel in connection with the registration or qualification
(or exemption from such registration or qualification) of such Registrable
Securities for offer and sale under the securities or Blue Sky laws of such
jurisdictions as the Shareholders or underwriters reasonably request in writing;
use its best efforts to keep each such registration or qualification (or
exemption therefrom) effective during the period such Registration Statement is
required to be kept effective; PROVIDED, HOWEVER, that the Company will not be
required to (i) qualify generally to do business in any jurisdiction where it is
not then so qualified, (ii) take any action that would subject it to general
service of process in any such jurisdiction where it is not then so subject or
(ii) take any action that would subject it to the assessment of taxes in any
such jurisdiction where it is not then so subject;
(i) cause all Registrable Securities covered by a Registration
Statement to be (i) listed on each securities exchange, if any, on which similar
securities issued by the Company are then listed or (ii) authorized to be quoted
on the National
-6-
Association of Securities Dealers Automated Quotation System if the securities
so qualify and if the Company does not then have similar securities listed on
any securities exchange;
(j) enter into such agreements (including an underwriting agreement in
form, scope and substance as is customary in similar underwritten offerings) and
take all such other actions in connection therewith (including those reasonably
requested in writing by the managing underwriter or underwriters, if any, or the
Majority Holders) in order to expedite or facilitate the disposition of such
Registrable Securities and in such connection, whether or not an underwriting
agreement is entered into and whether or not the registration is an underwritten
registration (i) obtain opinions of counsel to the Company and updates thereof
addressed to each Shareholder and each of the underwriters, if any, covering the
matters customarily covered in opinions requested in underwritten offerings;
(ii) obtain "cold comfort" letters and updates thereof from the independent
certified public accountants of the Company addressed to each Shareholder and
each of the underwriters, if any, such letters to be in customary form and
covering matters of the type customarily covered in "cold comfort" letters in
connection with similar underwritten offerings; and (iii) if an underwriting
agreement is entered into, the same shall contain customary indemnification
provisions and procedures no less favorable than those set forth in Section 7
hereof with respect to all parties to be indemnified pursuant to said Section;
and
(k) so long as the Company is required to keep the Registration
effective, comply with all applicable rules and regulations of the SEC and make
generally available to its security holders earning statements satisfying the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder no
later than 45 days after the end of any 12-month period (or 90 days after the
end of any 12-month period if such period is a fiscal year) (i) commencing at
the end of any fiscal quarter in which Registrable Securities are sold to
underwriters in a firm commitment or are sold in a best efforts underwritten
offering, and (ii) if not sold to underwriters in such an offering, commencing
on the first day of the first fiscal quarter of the Company after the effective
date of a Registration Statement, which statements shall cover said 12-month
periods.
The Company may require each Shareholder to furnish to the Company such
information regarding the distribution of such Registrable Securities as the
Company may from time to time reasonably request in writing and the Company may
exclude from such registration the Registrable Securities of any Shareholder if
he fails to furnish such information within a reasonable time after receiving
such request.
Each Shareholder agrees by acquisition of such Registrable Securities
that, upon receipt of any notice from the
-7-
Company of the happening of any event of the kind described in Section 5(c)(ii),
(iii), (v), (vi) or (vii) hereof, such Shareholder shall immediately discontinue
disposition of such Registrable Securities covered by such Registration
Statement or Prospectus until such Shareholder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 5(b) hereof, or until
it is advised in writing (the "Advice") by the Company that the use of the
applicable Prospectus may be resumed, and has received copies of any additional
or supplemental filings which are incorporated or deemed to be incorporated by
reference in such Prospectus. In the event the Company shall give any such
notice, the time period mentioned in Section 5(b) hereof shall be extended by
the number of days during the time period from and including the date of the
giving of such notice to and including the date when Shareholders shall have
received the copies of the supplemented or amended Prospectus contemplated by
Section 5(b) hereof or the Advice.
6. REGISTRATION EXPENSES.
All reasonable fees and expenses incident to the Company's performance
of or compliance with this Agreement shall be borne by the Company whether or
not any Registration Statement becomes effective including, without limitation:
(i) all registration and filing fees (including, without limitation, fees and
expenses (A) with respect to filings required to be made with the National
Association of Securities Dealers, Inc., and (B) with respect to compliance with
securities or Blue Sky laws); (ii) fees and disbursements of counsel for the
Company; (iii) fees and disbursements of all independent certified public
accountants for the Company (including, without limitation, the expenses of any
special audit and "cold comfort" letters required by or incident to such
performance); (iv) Securities Act liability insurance if the Company so desires
such insurance; and (v) fees and expenses of all other persons retained by the
Company. The Company shall not pay any fees or expenses incurred by any
Shareholder, including, without limitation, accounting and legal expenses of any
Shareholder and commissions or discounts attributable to any Shareholder's sale
of Registrable Securities.
7. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. The Company shall indemnify and
hold harmless each Shareholder, to the full extent permitted by law, from and
against all losses, claims, damages, liabilities, costs (including, without
limitation, reasonable costs of preparation and reasonable attorney's fees) and
expenses (collectively, "Losses"), arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement, Prospectus or preliminary prospectus relating to the
Registrable Securities, or arising out of or based upon any omission or alleged
omission of a material fact required
-8-
to be stated therein or necessary to make the statements therein not misleading,
except insofar as the same are based solely upon information furnished in
writing to the Company by such Shareholder or on such Shareholder's behalf
expressly for use therein. The Company shall also indemnify underwriters,
selling brokers, dealer- managers and similar securities industry professionals
participat- ing in the distribution, their officers, directors, agents and
employees and each person who controls such persons (within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same
extent as provided above with respect to the indemnification of such
Shareholder.
(b) INDEMNIFICATION BY SHAREHOLDERS. In connection with any
Registration Statement in which any Shareholder is participating, such
Shareholder shall furnish to the Company in writing such information as the
Company reasonably requests for use in connection with any Registration
Statement or Prospectus and agrees to indemnify and hold harmless, to the full
extent permitted by law, the Company, its directors, officers, agents and
employees, each person who controls the Company (within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act) and the directors,
officers, agents or employees of such controlling persons, from and against all
Losses arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement, Prospectus
or preliminary prospectus relating to the Registrable Securities, or arising out
of or based upon any omission or alleged omission of a material fact required to
be stated therein or necessary to make the statement therein not misleading, to
the extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission is contained in any information
furnished by such Shareholder or on such Shareholder's behalf to the Company.
The Company shall be entitled to receive indemnities from underwriters, selling
brokers, dealer-managers and similar securities industry professionals
participating in the distribution to the same extent as provided above with
respect to information so furnished in writing by such persons or on their
behalf expressly for use in any Prospectus or Registration Statement.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. If any action or proceeding
(including any governmental investigation or inquiry) shall be brought or any
claim shall be asserted against any person entitled to indemnity hereunder (an
"indemnified party"), such indemnified party shall promptly notify the party
from which such indemnity is sought (the "indemnifying party") in writing, and
the indemnifying party shall assume the defense thereof, including the
employment of counsel and the payment of all fees and expenses incurred in
connection with the defense thereof. Any such indemnified party shall have the
right to employ separate counsel in any such action, claim or proceeding and to
participate in the defense thereof, but the fees and expenses of such counsel
shall be the expenses of such indemnified party unless (i) the
-9-
indemnifying party has agreed to pay such fees and expenses or (ii) the
indemnifying party shall have failed to promptly assume the defense of such
action, claim or proceeding and to employ counsel for the indemnified party in
any such action, claim or proceeding, it being understood, however, that the
indemnifying party shall not, in connection with any one such action, claim or
proceeding or separate but substantially similar or related actions, claims or
proceedings in the same jurisdiction arising out of the same general allegations
or circumstances, be liable for the fees and expenses of more than one separate
firm of attorneys at any time for all such indemnified parties.
(d) CONTRIBUTION. If the indemnification provided for in this Section 7
is unavailable to an indemnified party under Section 7(a) or 7(b) hereof (other
than by reason of exceptions provided in those Sections) in respect of any
Losses, then each applicable indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such Losses, in such proportion as is
appropriate to reflect the relative fault of the indemnifying party and
indemnified party in connection with the actions, statements or omissions which
resulted in such Losses as well as any other relevant equitable considerations.
The relative fault of such indemnifying party and such indemnified party shall
be determined by reference to, among other things, whether any action in
question, including any untrue statement or alleged untrue statement of a
material fact or omission or alleged omission of a material fact, has been taken
or made by, or relates to information supplied by, such indemnifying party or
indemnified party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action, statement or
omission. The amount paid or payable to a party as a result of any Losses shall
be deemed to include any legal or other fees or expenses reasonably incurred by
such party in connection with any investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 7(d) were determined by pro rata
allocation or by any other method of allocation which does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
No person found guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) by judgment of a court of competent
jurisdiction whose judgment is final beyond appeal shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
8. UNDERWRITTEN REGISTRATIONS.
If any Registration is an underwritten offering, the Company will have
the right to select the investment banker or investment bankers and manager or
managers to administer the
-10-
offering. A Shareholder may not participate in any underwritten registration
hereunder unless such Shareholder (a) agrees to sell his Registrable 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 questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required under the terms of such underwriting arrangements.
Notwithstanding any other provision of this Agreement, if the underwriter in an
underwritten offering advises the Company in writing that marketing factors
require a limitation of the number of securities to be underwritten, then the
number of Registrable Securities that may be included in such underwritten
offering shall, as nearly as possible, be reduced pro rata among each holder of
Common Shares whose Common Shares were to be included in such underwritten
offering, on the basis of the number of Common Shares so requested by each
holder to be included in such underwritten offering.
9. MISCELLANEOUS.
(a) AMENDMENTS AND WAIVERS. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
except by a writing executed by the Company and the Majority Holders. Waivers or
consents to departures from the provisions of this Agreement by a Shareholder
may only be given by a writing executed by such Shareholder.
(b) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, certified
first-class mail or by Federal Express or another internationally recognized
overnight courier service:
(i) if to a Shareholder, at the most current address
given by such Shareholder to the Company in accordance with
the provisions of this Section 9(b), which address initially
is, with respect to a Shareholder, the address set forth in
the Merger Agreement; or
(ii) if to the Company, initially at 0000 X.X.
Xxxxxxxx Xxx, Xxxxxxxxx, Xxxxxxxxxx 00000 (Attention: Chief
Executive Officer) with a copy to Xxxxxx Xxxxxxxx Frome &
Xxxxxxxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(Attention: Xxxxxxx Xxxxx, Esq.) and thereafter at such other
address, notice of which is given in accordance with the
provisions of this Section 9(b).
All such notices and communications shall be deemed to have been duly
given: (i) when delivered by hand, if personally delivered; (ii) five business
days after being deposited in the
-11-
mail, postage prepaid, if mailed or (iii) one business day after being sent by
overnight courier service.
(c) OWNER OF REGISTRABLE SECURITIES. The Company may deem and treat the
person in whose name Registrable Securities are registered in the stock transfer
records of the Company as the owner thereof for all purposes, including, without
limitation, the giving of notices under this Agreement.
(d) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties, and to
the extent set forth in Section 7 hereof, the indemnified parties and their
respective heirs, personal representatives, successors and assigns.
(e) COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed to be an original and all of which together shall
constitute one and the same agreement.
(f) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) GOVERNING LAW; JURISDICTION, ETC. This Agreement shall in all
respects be construed in accordance with and governed by the laws of the State
of Delaware, without regard to principles of conflict of laws thereof.
Each of the parties hereto hereby irrevocably and unconditionally
submits to the nonexclusive jurisdiction of any Washington state court or
federal court of the United States of America sitting in the State of
Washington, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such Washington state or, to the
extent permitted by law, in such federal court. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law.
Each of the parties hereto irrevocably and unconditionally waives, to
the fullest extent either of them may legally and effectively do so, any
objection that either of them may now or hereafter have to the laying of venue
of any suit, action or proceeding arising out of or relating to this Agreement
in any Washington state or federal court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
-12-
(h) SEVERABILITY. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated, and the parties hereto shall use
their best efforts to find and employ an alternative means to achieve the same
or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such which may
be hereafter declared invalid, void or unenforceable.
(i) ENTIRE AGREEMENT. This Agreement is intended by the parties as a
final expression of their agreement, and is intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto, in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties nor undertakings, other than those set forth or referred to
herein, with respect to the registration rights granted by the Company with
respect to the Registrable Securities. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
-13-
IN WITNESS WHEREOF, we have hereunto set our hands as of the day and
year first above written.
SHAREHOLDERS:
/s/ Xxxxx X. Xxxxxxxx
---------------------------------------
Xxxxx X. Xxxxxxxx
/s/ Xxxxxxx Xxxxxxx Bilberry
---------------------------------------
Xxxxxxx Xxxxxxx Bilberry
/s/ Xxxx X Xxxxxxxx
---------------------------------------
Xxxx X Xxxxxxxx
GST TELECOMMUNICATIONS, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
-14-
