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EXHIBIT 10.32
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT dated as of June 21, 1999 by and
among XXXXXXX COMMUNICATIONS CORPORATION, an Iowa corporation, and each of the
Persons listed on Schedule 1 hereto (each a "Purchaser" and, collectively, the
"Purchasers").
WHEREAS, the Issuer and the Purchasers have entered into a Note and
Warrant Purchase Agreement, dated as of even date herewith, among the Issuer,
its Subsidiaries as guarantors, and the Purchasers (as the same may be amended,
supplemented or otherwise modified from time to time, the "Note Agreement";
capitalized terms used herein and not otherwise defined shall have the meanings
given such terms in the Note Agreement);
WHEREAS, pursuant to the Note Agreement and on the terms and subject to
the conditions set forth therein, the Issuer has agreed to issue and the
Purchasers have agreed to purchase $2,000,000 in aggregate principal amount of
the Issuer's Fixed Rate Senior Notes due July 21, 1999 (together with each
promissory note issued and delivered substitution, extension or exchange
therefor, the "Notes") and warrant certificates (together with each warrant
certificate issued and delivered in substitution or exchange therefor, the
"Warrant Certificates") evidencing the right to purchase an aggregate 250,000
shares of the Issuer's Common Stock, no par value per share (the "Common
Stock"), subject to adjustment from time to time in accordance with the terms of
the Warrant Certificates;
WHEREAS, it is a condition to the obligations of the Purchasers to
purchase the Notes and the Warrant Certificates that the Issuer and the
Purchasers execute and deliver this Agreement, and the Issuer and the Purchasers
desire to satisfy such condition;
NOW, THEREFORE, for and in consideration of the mutual premises,
covenants and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, agree as follows:
Section 1. Definitions. In addition to the other terms defined herein,
the following terms used herein shall have the meanings herein specified (such
meanings to be equally applicable to both the singular and plural forms of the
terms defined):
"Agreement" means this Registration Rights Agreement, as the same may
be amended or otherwise modified from time to time in accordance with the terms
hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended or
otherwise modified from time to time.
"Holder" means any holder from time to time of any Warrant Securities.
"Prospectus" means each prospectus included as part of any Registration
Statement, as
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amended or supplemented, including each preliminary prospectus and all material
incorporated by reference in such prospectus.
"Registration Statement" means any registration statement of the Issuer
which covers Warrant Securities pursuant to the provisions of this Agreement,
including the Prospectus and all amendments, including post-effective
amendments, and supplements to such registration statement and Prospectus and
all exhibits and all material incorporated by reference in such registration
statement.
"Securities Act" means the Securities Act of 1933, as amended or
otherwise modified from time to time.
"Shelf Registration Statement" means the Registration Statement of the
Issuer which covers all Warrant Securities to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act.
"Warrant Securities" means, collectively, the Warrant Certificates and
Warrant Shares.
"Warrant Shares" means the securities which a Holder may acquire upon
exercise or conversion of a Warrant Certificate, together with any other
securities which such Holder may acquire on account of any such Warrant Shares,
whether upon the making or paying of any dividend or other distribution on
Common Stock, upon any split-up of such Common Stock, upon a recapitalization,
merger, consolidation, share exchange, reorganization or other transaction or
series of related transactions in which shares of Common Stock are changed into
or exchanged for securities of another corporation, upon exercise of any
preemptive right (or the exercise or conversion of any security which such
Holder may acquire in connection with the exercise of any preemptive right) with
respect to any such Common Stock or otherwise.
Section 2. Shelf Registration. Promptly after the date hereof and in
any event on or before July 21, 1999, the Issuer shall cause to be filed the
Shelf Registration Statement providing for the sale by the Holders of all of the
Warrant Securities in accordance with terms hereof, and the Issuer will use its
best efforts to cause such Shelf Registration Statement to be declared effective
by the Securities and Exchange Commission (the "SEC") on or before August 21,
1999. The Issuer agrees to use its best efforts to keep the Shelf Registration
Statement with respect to the Warrant Securities continuously effective so long
as any Holder holds Warrant Securities until such time as each Holder has
received an opinion of counsel to the Issuer (which opinion and counsel shall be
satisfactory to the Holders) to the effect that each such Holder is permitted
under Rule 144 to the dispose of all of its Warrant Securities without such
registration. The Issuer further agrees to amend the Shelf Registration
Statement if and as required by the rules, regulations or instructions
applicable to the registration form used by the Issuer for such Shelf
Registration Statement or by the Securities Act or any rules and regulations
thereunder; provided, however, that the Issuer shall not be deemed to have used
its best efforts to keep the Shelf Registration Statement effective if it
voluntarily takes any action that would result in selling Holders not being able
to sell Warrant Securities covered thereby, unless such action is permitted by
this Agreement or required under applicable law or the Issuer has
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filed a post-effective amendment to the Shelf Registration Statement and the SEC
has not declared it effective. The registration pursuant to this Section 2 shall
be effected by the filing of a Shelf Registration Statement on Form S-1 or Form
S-3 (provided that if Form S-3 is used, the Prospectus shall contain the
information that would have been required to be included therein had Form S-1
been used) or on Form SB-2; provided, however, that if the intended method of
disposition by the Holders is to be an underwritten offering, the Issuer shall
use such form of Registration Statement as is acceptable to the underwriters.
Section 3. Piggyback Registration. If at any time or from time to time
the Issuer shall propose to file on its behalf or on behalf of any of its
security holders a registration statement under the Securities Act on Form X-0,
X-0 or S-3 (or on any other Form for the general registration of securities)
with respect to any class of equity securities (or any class of securities
convertible into or exchangeable or exercisable for such equity securities) the
Issuer shall:
(i) promptly give written notice to each Holder at least
thirty (30) days before the anticipated filing date, indicating the
proposed offering price and describing the plan of distribution;
(ii) include in such registration (and any related
qualification under blue sky or other state securities laws or other
compliance) for the sale by the Holders and, at the request of any
Holder, in any underwriting involved therein, all the Warrant
Securities specified by any Holder or Holders (the "Specified Warrant
Securities") in a written request (the "Registration Request") made
within twenty (20) days after receipt of such written notice from the
Issuer, specifying the number or amount of Specified Warrant
Securities; and
(iii) use its best efforts to cause the underwriter(s) of such
proposed underwritten offering to permit the Specified Warrant
Securities to be included in the Registration Statement for such
offering on the same terms and conditions as any similar securities of
the Issuer included therein.
If the registration of which the Issuer gives notice is for a registered public
offering involving an underwriting, the Issuer shall so advise the Holders. In
such event, the right of any Holder to include Specified Warrant Securities in
such registration pursuant to this Section 3 shall be conditioned upon such
Holder's participation in such underwriting and the inclusion of such Holder's
Specified Warrant Securities in the underwriting to the extent provided herein.
All Holders proposing to distribute their securities through such underwriting
shall enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for such underwriting. If the
underwriter(s) of such offering advise(s) the Holders of Specified Warrant
Securities in writing that marketing considerations require a limitation on the
securities to be included in any Registration Statement filed under this Section
3 to a certain number of shares in excess of those to be sold by the Issuer (the
"Available Securities"), then the Issuer shall in such case be obligated to such
Holders only with respect to the Holders' pro rata share of such number of
Available Securities based upon the percentage that the Specified Warrant
Securities represent of the aggregate number of shares of Common Stock
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represented by all outstanding securities of the Issuer that have been requested
to be included in such registration and are required to be so included (without
giving effect to any similar limitation) pursuant to binding agreements with the
Issuer. The limitation on the number of Specified Warrant Securities will be
imposed pro rata (based upon the ratio of the number of shares of Specified
Warrant Securities which the underwriter(s) propose to include at the
anticipated offering price to the number of Specified Warrant Securities owned
by each Holder) among all Holders of Specified Warrant Securities.
Section 4. Registration Procedures. In connection with the obligations
of the Issuer with respect to the Shelf Registration Statement contemplated by
Section 2, and if and when the Issuer shall be required by the provisions of
Section 3 to effect the registration of Warrant Securities under the Securities
Act, the Issuer will use its best efforts to effect such registration to permit
the sale of such Warrant Securities in accordance with the intended method or
methods of disposition thereof, and pursuant thereto it will, as expeditiously
as possible:
(i) before filing a Registration Statement or Prospectus or
any amendments or supplements thereto, furnish to the Holders and the
underwriter(s), if any, copies of all such documents proposed to be
filed, which documents will be made available, on a timely basis, for
review by such Holders and underwriters; and, with respect to any
Registration Statement filed pursuant to the provisions of Section 2,
the Issuer will not file any Registration Statement or amendment
thereto or any Prospectus or any supplement thereto to which the
Holders or the underwriter(s), if any, shall reasonably object;
(ii) prepare and file with the SEC (A) the Shelf Registration
Statement within the time period set forth in Section 2, and (B) such
amendments and post-effective amendments to any Registration Statement,
and such supplements to the Prospectus, as may be reasonably requested
by any Holder or the underwriter(s), if any, or as may be required by
the Securities Act, the Exchange Act or by the rules, regulations or
instructions applicable to the registration Form utilized by the Issuer
or as may otherwise be necessary to keep such Registration Statement
effective for the applicable period; and cause the Prospectus as so
supplemented to be filed pursuant to Rule 424 (or any successor rule)
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 the applicable period in
accordance with the intended methods of disposition by the sellers
thereof set forth in such Registration Statement or Prospectus;
(iii) promptly notify the selling Holders and the
underwriter(s), if any, of: (A) the filing of the Prospectus, any
Prospectus supplement and of the effectiveness of the Registration
Statement and any post-effective amendment; (B) any request by the SEC
for amendments or supplements to the Registration Statement or the
Prospectus or for additional information; (C) the issuance by the SEC
of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose; (D)
the Issuer's becoming aware at any time that the representations and
warranties of the Issuer
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contemplated by paragraph (xii)(A) below have ceased to be true and
correct; (E) the receipt by the Issuer of any notification with respect
to the suspension of the qualification of the Warrant Securities for
sale in any jurisdiction or the initiation or, to Issuer's knowledge,
threat of any proceeding for such purpose; and (F) the existence of any
fact which, to the knowledge of the Issuer, results in the Registration
Statement, the Prospectus or any document incorporated therein by
reference containing an untrue statement of material fact or omitting
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading;
(iv) make every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of the Registration Statement or
any qualification referred to in paragraph (iii)(E) at the earliest
possible moment;
(v) promptly incorporate in a Prospectus supplement or
post-effective amendment to the Registration Statement such information
as the underwriter(s) or the Holders reasonably request to have
included therein relating to the plan of distribution with respect to
such Warrant Securities, and make all required filings of such
Prospectus supplement or post-effective amendment to the Registration
Statement as soon as notified of the matters to be incorporated
therein;
(vi) furnish to each selling Holder and each underwriter, if
any, without charge, at least one signed copy of the Registration
Statement and any post-effective amendment thereto, including all
documents incorporated therein by reference;
(vii) deliver to each selling Holder and the underwriter(s),
if any, without charge, as many copies of the Registration Statement,
each Prospectus (including each preliminary prospectus) and any
amendment or supplement thereto (in each case including all exhibits
and documents incorporated by reference in such Registration Statement
or Prospectus) as such Persons may reasonably request;
(viii) use its best efforts to register or qualify such
Warrant Securities for offer and sale under the securities or blue sky
laws of such jurisdictions as any selling Holder or underwriter(s)
reasonably request(s) and do any and all other acts or things
reasonably necessary to enable the disposition in such jurisdictions of
the Warrant Securities covered by the Registration Statement;
(ix) if any fact contemplated by paragraph (iii)(D) or
(iii)(F) above shall exist, promptly notify each Holder and prepare and
furnish to such Holders a supplement or post-effective amendment to the
Registration Statement or the related Prospectus or any document
incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of the Warrant
Securities, neither the Registration Statement nor the Prospectus will
contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements
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therein not misleading;
(x) use its best efforts to cause all Warrant Securities
covered by the Registration Statement to be listed on each securities
exchange on which securities of the same class are then listed or
admitted for trading in any inter-dealer quotation system on which
securities of the same class are then traded;
(xi) not later than the effective date of the applicable
Registration Statement, provide a CUSIP number for all Warrant
Securities covered by the Registration Statement, and provide the
applicable transfer agent with printed certificates for such Warrant
Securities in a form eligible for deposit with Depository Trust Issuer
and in such denominations and registered in such names as the Holders
or the underwriters, if any, may request at least two Business Days
prior to any sale;
(xii) enter into agreements (including underwriting
agreements) and take all other reasonable actions in order to expedite
or facilitate the disposition of such Warrant Securities and in such
connection, except as otherwise provided, whether or not an
underwriting agreement is entered into and whether or not the
registration is an underwritten registration:
(A) make such representations and warranties to the
Holders selling such Warrant Securities and, in connection
with any underwritten offering, to the underwriters, in form,
substance and scope as are customarily made by issuers to
underwriters in similar underwritten offerings;
(B) obtain opinions of counsel to the Issuer and
updates thereof addressed to each selling Holder and the
underwriters, if any, covering the matters customarily covered
in opinions requested in similar offerings and such other
matters as may be reasonably requested by such Holders and
underwriters, if any, which counsel and opinions shall be
reasonably satisfactory (in form, scope and substance) to the
underwriters, if any, and such Holders;
(C) in connection with any underwritten offering, use
its best efforts to obtain so-called "cold comfort" letters
and updates thereof from the Issuer's independent certified
public accountants addressed to the selling Holders and the
underwriters, if any, such letters to be in customary form and
covering matters of the type customarily covered in "cold
comfort" letters to underwriters in connection with similar
underwritten offerings;
(D) if an underwriting agreement is entered into,
cause the same to set forth in full the indemnification and
contribution provisions and procedures of Section 6 (or such
other substantially similar provisions and procedures as the
underwriters shall reasonably request) with respect to all
parties to be indemnified pursuant to Section 6; and
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(E) deliver such documents and certificates as may
reasonably be requested by the Holders, or the underwriter(s),
if any, to evidence compliance with this paragraph (xii) and
with any customary conditions contained in the underwriting
agreement or other agreement entered into by the Issuer;
the foregoing to be done upon each closing under any underwriting or
similar agreement as and to the extent required thereunder and from
time to time as may reasonably be requested by any selling Holder in
connection with the disposition of Warrant Securities pursuant to such
Registration Statement, all in a manner consistent with customary
industry practice;
(xiii) upon execution and delivery of such confidentiality
agreements as the Issuer may reasonably request, provide to the
Holders, any underwriter participating in any disposition pursuant to
such Registration Statement, and any attorney or accountant retained by
such Holders or underwriter, reasonable access to all financial and
other records, pertinent corporate documents and properties of the
Issuer, and cause the Issuer's officers, directors and employees to
supply all information reasonably requested by any such Holder,
underwriter, attorney or accountant in connection with the registration
for purposes of satisfying any diligence obligations such Persons may
have, at such time or times as the Person requesting such information
shall reasonably determine;
(xiv) otherwise use its best efforts to comply with the
Securities Act, the Exchange Act, all applicable rules and regulations
of the SEC and all applicable state blue sky and other securities laws,
rules and regulations, and make generally available to its security
holders an earnings statement satisfying the provisions of Section
11(a) of the Securities Act, as soon as practicable, but in no event
later than ninety (90) days after the end of the 12 calendar month
period commencing after the effective date of the Registration
Statement;
(xv) cooperate and assist in any filings required to be made
with the National Association of Securities Dealers, Inc. (the "NASD")
and in the performance of any due diligence investigation by any
underwriter (including any "qualified independent underwriter" that is
required to be retained in accordance with the rules and regulations of
the NASD); and
(xvi) prior to the filing of any document which is being
prepared for incorporation by reference into the Registration Statement
or the Prospectus, upon receipt of such confidentiality agreements as
the Issuer may reasonably request, provide copies of such document to
counsel to the selling Holders, and to the underwriter(s), if any, and
make the Issuer's representatives available for discussion of such
document.
Section 5. Registration Expenses. All expenses incident to the Issuer's
performance of or compliance with its obligations under this Agreement
(excluding underwriting discounts, selling commissions and brokerage fees) will
be paid by the Issuer, regardless of whether Warrant Securities are sold
pursuant to any Registration Statement, including, without limitation, all
registration, filing
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and listing fees, fees and expenses of compliance with securities or blue sky
laws, printing, messenger, telephone and delivery expenses, fees and
disbursements of counsel for the Issuer and counsel for the selling Holders of
the Warrant Securities, fees and disbursements of all independent certified
public accountants of the Issuer (including, without limitation, in connection
with any special audit or "cold comfort" letters), and fees and expenses
associated with any NASD filing required to be made in connection with the
Registration Statement, including, if applicable, the fees and expenses of any
"qualified independent underwriter" (and its counsel) that is required to be
retained in accordance with the rules and regulations of the NASD. The Issuer
will, in any event, pay its internal expenses, the expense of any annual audit,
and the fees and expenses incurred in connection with the listing of the
securities to be registered on each securities exchange on which securities of
the same class are then listed or the qualification for trading of the
securities to be registered in each inter-dealer quotation system in which
securities of the same class are then traded. Notwithstanding the foregoing
provisions of this Section 5, in connection with each Registration Statement
required hereunder, the Issuer will reimburse the Holders pursuant to such
Registration Statement for the reasonable fees and disbursements of not more
than one counsel chosen by the Holders of the Warrant Securities being sold.
Section 6. Indemnification.
(a) Indemnification by the Issuer. In the event of the
registration of any Warrant Securities under the Securities Act pursuant to the
provisions hereof, the Issuer will indemnify and hold harmless each and every
seller of Warrant Securities, its directors, officers, employees and agents,
each underwriter, broker and dealer, if any, who participates in the offering or
sale of such Warrant Securities, and each other Person, if any, who controls
such seller or any such underwriter, broker or dealer within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act (each
hereinafter sometimes referred to as an "Indemnified Person") from and against
any losses, claims, damages, liabilities or expenses, joint or several, to which
such Indemnified Person may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, claims, damages, liabilities
or expenses (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained or
incorporated by reference in any Registration Statement or Prospectus or any
amendment or supplement thereto, or any document incorporated by reference
therein, or arise out of or are based upon 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 will reimburse each such Indemnified
Person for any legal or other expenses reasonably incurred by such Indemnified
Person in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the Issuer will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made or incorporated by reference in
the Registration Statement or Prospectus or any amendment or supplement thereto,
in reliance upon and in conformity with written information furnished to the
Issuer by such Indemnified Person stated to be specifically for use in
preparation thereof. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of such Indemnified Person
and shall survive the transfer of such Warrant Securities.
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(b) Contribution. If the indemnification provided for in this
Section 6 is unavailable to a party that would have been an Indemnified Person
under this Section 6 in respect of any losses, claims, damages, liabilities or
expenses (or actions in respect thereof) referred to herein, then each party
that would have been an Indemnifying Person thereunder shall, in lieu of
indemnifying such Indemnified Person, contribute to the amount paid or payable
by such Indemnified Person as a result of such losses, claims, damages,
liabilities or expenses (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Person on the one
hand and the Indemnified Person on the other in connection with the statement or
omission which resulted in such losses, claims, damages, liabilities or expenses
(or actions in respect thereof), as well as any other relevant 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 the omission or alleged omission of a material fact relates to information
supplied by the Indemnifying Person or the Indemnified Person and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The amount paid or payable by a party as a
result of the losses, claims, damages, liabilities and expenses referred to
above shall be deemed to include any legal or other fees or expenses reasonably
incurred by such party in connection with the investigation or defense of any
action or claim. The Issuer and each Holder agrees that it would not be just and
equitable if contribution pursuant to this Section 6 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in this Section 6.
Section 7. Exchange Act Registration; Rule 144 Reporting. The Issuer
covenants and agrees that until such time as the Holders no longer hold any
Warrant Securities it will:
(a) if required by law, maintain an effective registration
statement (containing such information and documents as the SEC shall specify)
with respect to the Common Stock of the Issuer under Section 12(g) of the
Exchange Act;
(b) use its best efforts to make and keep public information
available, as those terms are understood and defined in Rule 144 under the
Securities Act, at all times (even if the Issuer subsequently ceases to be
subject to such reporting requirements);
(c) use its best efforts to file with the SEC in a timely
manner all reports and documents required of the Issuer under the Securities Act
and the Exchange Act; and
(d) furnish to any Holder promptly upon request (i) a written
statement by the Issuer as to its compliance with the reporting requirements of
Rule 144, (ii) a copy of the most recent annual or quarterly report of the
Issuer, and (iii) such other reports and documents of the Issuer and other
information in the possession of or reasonably attainable by the Issuer as such
Holder may reasonably request in availing itself of any Rule or Regulation of
the SEC allowing such Holder to sell any Warrant Securities without
registration.
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The Issuer represents and warrants that such registration statement or any
information, document or report filed with the SEC in connection therewith or
any information so made public shall not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements contained therein not misleading. The
Issuer agrees to indemnify and hold harmless (or to the extent the same is not
enforceable, make contribution to) the Holders, their partners, officers,
directors, employees and agents, each broker, dealer or underwriter (within the
meaning of the Securities Act) acting for any Holder in connection with any
offering or sale of Warrant Securities by such Holder or any Person controlling
(within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act) such Holder and any such broker, dealer or underwriter from
and against any and all losses, claims, damages, liabilities or expenses (or
actions in respect thereof) arising out of or resulting from any breach of the
foregoing representation or warranty, all on terms and conditions comparable to
those set forth in Section 6.
Section 8. Limitation on Registration Rights of Others. The Issuer
covenants and agrees that, so long as any Holder holds any Warrant Securities,
in respect of which any registration rights provided for in Section 2 or Section
3 remain in effect, the Issuer will not, directly or indirectly, grant to any
Person or agree to or otherwise become obligated in respect of (x) any
registration rights of securities of the Issuer upon the demand of any Person
without the prior written consent of the Holders, or (y) rights of registration
in the nature or substantially in the nature of those set forth in Section 2 or
Section 3, unless in the case of both clauses (x) and (y) such rights are pari
passu with to the rights of registration of the Holders pursuant to Section 2
and Section 3 on terms reasonably satisfactory to the Holders.
Section 9. Mergers, etc. References hereunder to "Warrant Securities"
shall be deemed to include any securities which Holders are entitled to receive
in exchange for Warrant Securities pursuant to any merger, consolidation or
reorganization or recapitalization, or by any other means. If, and as often as,
there are any changes in the Warrant Securities by way of stock split, stock
dividend, combination or classification, or through merger, consolidation,
reorganization or recapitalization, or by any other means, appropriate
adjustments shall be made in the provisions hereof as may be required, so that
the rights and privileges granted hereby shall continue with respect to the
Warrant Securities as so changed.
Section 10. Notices, etc. All notices, consents, approvals, agreements
and other communications provided hereunder shall be in writing or by telex or
telecopy and shall be sufficiently given to the Purchasers, the Holders and the
Issuer if addressed or delivered to them in accordance with Section 10.1 of the
Note Agreement:
Section 11. Further Agreements. Each of the parties hereto agrees to
execute all such further instruments and documents and to take all such further
action as the other parties may reasonably require in order to effectuate the
terms and purposes of this Agreement.
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Section 12. Waivers and Amendments. This Agreement may not be amended
nor shall any waiver, change, modification, consent or discharge be effected
except by an instrument in writing executed by or on behalf of the party or
parties against whom enforcement of any amendment, waiver, change, modification,
consent or discharge is sought; provided, however, that any amendment requested
or waiver sought from the Holders of any provision of this Agreement which
affects the Holders generally, and any action required to be taken by the
Holders as a group pursuant to this Agreement, shall be given or taken by the
Holders of a majority in interest of the Warrant Securities, and any such waiver
or action so given or taken shall be binding on all Holders. No failure or delay
by any party in exercising any right or remedy hereunder shall operate as a
waiver thereof, and a waiver of a particular right or remedy on one occasion
shall not be deemed a waiver of any other right or remedy or a waiver of the
same right or remedy on any subsequent occasion.
Section 13. Assignment; Successors and Assigns. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective heirs, executors, legal representatives, successors and permitted
assigns, including, without limitation, any Holders from time to time of the
Warrant Securities. Nothing herein shall be construed as requiring the Holders
of Warrant Certificates to exercise their warrants for, or convert their Warrant
Certificates into, Warrant Shares prior to exercising the rights conferred upon
such Holders under this Agreement. Anything in this Agreement to the contrary
notwithstanding, the term "Holders" as used in this Agreement shall be deemed to
include the registered holders from time to time of the Warrant Securities.
Section 14. Severability. If any provision of this Agreement shall be
held or deemed to be, or shall in fact be, invalid, inoperative or unenforceable
as applied to any particular case in any jurisdiction or jurisdictions, or in
all jurisdictions or in all cases, because any provision conflicts with any
constitution, statute, rule or public policy, or for any other reason, such
circumstance shall not have the effect of rendering the provision or provisions
in question, invalid, inoperative or unenforceable in any other jurisdiction or
in any other case or circumstance or of rendering any other provision or
provisions herein contained invalid, inoperative or unenforceable to the extent
that such other provisions are not themselves actually in conflict with such
constitution, statute, rule or public policy, but this Agreement shall be
reformed and construed in any such jurisdiction or case as if such invalid,
inoperative or unenforceable provision had never been contained herein and such
provision reformed so that it would be valid, operative and enforceable to the
maximum extent permitted in such jurisdiction or in such case.
Section 15. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original and all of
which together shall constitute one and the same instrument.
Section 16. Section Headings. The headings contained in this Agreement
are for reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
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Section 17. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
OTHER THAN THE CONFLICTS OF LAWS PRINCIPLES THEREOF.
Section 18. Termination. This Agreement shall terminate when all
Warrant Certificates have expired unexercised in accordance with their terms. In
addition, the rights of any Holder under Sections 2 and Section 3 of this
Agreement shall terminate as to any Warrant Securities when such Warrant
Securities have been effectively registered under the Securities Act and sold
pursuant to a Registration Statement covering such Warrant Securities. The
indemnification and contribution provisions of Section 6 and shall survive any
termination of this Agreement.
Section 19. Expenses. The Issuer shall be obligated to pay to the
Holders, on demand, all reasonable costs and expenses (including, without
limitation, court costs and attorneys' fees and expenses and interest to the
extent permitted by applicable law on overdue amounts) paid or incurred in
collecting any sums due from, or enforcing any other obligations of, the Issuer.
Section 20. Specific Performance. The Issuer recognizes that the rights
of the Holders under this Agreement are unique and, accordingly, the Holders
shall, in addition to such other remedies as may be available to any of them at
law or in equity, have the right to enforce their rights hereunder by actions
for injunctive relief and specific performance to the extent permitted by law.
The Issuer agrees that monetary damages would not be adequate compensation for
any loss incurred by reason of a breach by it of the provisions of this
Agreement and hereby agrees to waive the defense in any action for specific
performance that a remedy at law would be adequate. This Agreement is not
intended to limit or abridge any rights of the Holders which may exist apart
from this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their authorized officers all as of the day and year first above
written.
ISSUER:
XXXXXXX COMMUNICATIONS
CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
PURCHASERS:
NEW VALLEY CORPORATION
By:
-------------------------------------
Name:
Title:
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
