EXHIBIT 99.11
ARCH COMMUNICATIONS GROUP, INC.
REGISTRATION RIGHTS AGREEMENT
This Agreement, dated as of June 29, 1998, is entered into by and among
Arch Communications Group, Inc., a Delaware corporation (the "Company"),
Adelphia Communications Corporation, a Delaware corporation ("Adelphia"), and
Xxxx-Xxxx Shearing ("Shearing") (Adelphia and Shearing together are referred to
herein as the "Selling Stockholders").
WHEREAS, pursuant to a Stock Purchase Agreement, dated as of April 30, 1997
and amended as of June 29, 1998, the Selling Stockholders agreed to sell to
Benbow PCS Ventures, Inc., a California corporation ("Benbow"), and Xxxxxx
agreed to purchase, all the outstanding shares of capital stock of Page Call,
Inc., a Delaware corporation ("Page Call"), for an aggregate purchase price of
$17,150,000, together with interest at an annual rate of 12% on such amount from
April 8, 1998 through June 29, 1998 (the "Purchase Agreement"). In payment of
the purchase price, (i) Xxxxxx agreed to issue to Adelphia 1,731,964 shares of
Xxxxxx'x Series A Redeemable Preferred Shares, no par value (the "Preferred
Shares"), exchangeable in certain circumstances for Common Stock of the Company,
and (ii) Xxxxxx agreed to issue to Shearing a promissory note in the original
principal amount of $285,015, exchangeable in certain circumstances for Common
Stock of the Company (the "Note"); and
WHEREAS, the Company has guaranteed the obligations of Xxxxxx under the
Preferred Shares and the Note pursuant to Guaranties of even date herewith (the
"Guaranties");
WHEREAS, the Company and the Selling Stockholders desire to provide for
certain arrangements with respect to the registration of shares of capital stock
of the Company under the Securities Act of 1933;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement, the parties hereto agree as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following terms
shall have the following respective meanings:
"COMMISSION" means the Securities and Exchange Commission, or any
other Federal agency at the time administering the Securities Act.
"COMMON STOCK" means the common stock, $.01 par value per share, of
the Company.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
or any similar Federal statute, and the rules and regulations of the Commission
issued under such Act, as they each may, from time to time, be in effect.
"REGISTRABLE SHARES" means (i) the shares of Common Stock issued or
issuable upon conversion or exchange of the Note (whether pursuant to the
Guaranties or otherwise), (ii) the shares of Common Stock issued or issuable
upon conversion or exchange of the Preferred Shares (whether pursuant to the
Guaranties or otherwise) and (iii) any other shares of Common Stock issued in
respect of such shares (because of stock splits, stock dividends,
reclassifications, recapitalizations, or similar events); PROVIDED, HOWEVER,
that shares of Common Stock which are Registrable Shares shall cease to be
Registrable Shares (i) upon any sale pursuant to a Registration Statement or
Rule 144 under the Securities Act or (ii) upon any sale in any manner to a
person or entity which, by virtue of Section 13 of this Agreement, is not
entitled to the rights provided by this Agreement.
"REGISTRATION EXPENSES" means the expenses described in Section 5.
"REGISTRATION STATEMENT" means a registration statement filed by the
Company with the Commission for a public offering and sale of Common Stock
(other than a registration statement on Form S-8 or Form S-4, or their
successors, or any other form for a similar limited purpose, or any registration
statement covering only securities proposed to be issued in exchange for
securities or assets of another corporation, or any registration filed at the
request of other stockholders of the Company).
"SECURITIES ACT" means the Securities Act of 1933, as amended, or any
similar Federal statute, and the rules and regulations of the Commission issued
under such Act, as they each may, from time to time, be in effect.
"STOCKHOLDERS" means the Selling Stockholders and any persons or
entities to whom the rights granted under this Agreement are transferred by any
Selling Stockholders, their successors or assigns pursuant to Section 13 hereof.
2. REQUIRED REGISTRATION.
(a) At any time, a Stockholder or Stockholders may request the
Company, in writing, to effect the registration on Form S-3 (or any successor
form relating to secondary offerings) of all or any portion of the Registrable
Shares. If the holders initiating the registration intend to distribute the
Registrable Shares by means of an underwriting, they shall so advise the Company
in their request and shall include the identity of the proposed underwriter who
shall be acceptable to the Company. Upon receipt of any such request, the
Company shall promptly give written notice of such proposed registration to all
other Stockholders. Such Stockholders shall have the right, by giving written
notice to the Company within 10 days after the Company provides its notice, to
elect to have included in such registration such of their Registrable Shares as
such Stockholders may request in such notice of election; provided that if the
underwriter (if any) managing the offering determines that, because of marketing
factors, all of the Registrable
Shares requested to be registered by all Stockholders may not be included in the
offering, then all Stockholders who have requested registration shall
participate in the registration pro rata based upon the number of Registrable
Shares which they have requested to be so registered. Thereupon, the Company
shall, as expeditiously as possible, use its best efforts to effect the
registration on Form S-3 (or such successor form) of all Registrable Shares
which the Company has been requested to so register.
(b) The Company shall only be required to effect a total of two
registrations pursuant to paragraph (a) above. In addition, the Company shall
not be required to effect any registration within six months after the effective
date of any other Registration Statement of the Company.
(c) If at the time of any request to register Registrable Shares
pursuant to this Section 2, the Company is engaged or has fixed plans to engage
within 90 days of the time of the request in a registered public offering as to
which the Stockholders may include Registrable Shares pursuant to Section 3 or
is engaged in any other activity which, in the good faith determination of the
Company's Board of Directors, would be materially adversely affected by the
requested registration to the material detriment of the Company, then the
Company may at its option direct that such request be delayed for a period not
in excess of six months from the effective date of such offering or the date of
commencement of such other material activity, as the case may be. Following the
delay of the filing of a registration statement in accordance with the above,
the Company shall promptly proceed with such filing at the earliest time
practicable, notwithstanding such six-month period has not run, if such
registered public offering is abandoned by the Company or such adverse effect on
such other activity is no longer present.
3. INCIDENTAL REGISTRATION.
(a) Whenever the Company proposes to file a Registration Statement
(other than pursuant to Section 2) at any time and from time to time, it will,
prior to such filing, give written notice to all Stockholders of its intention
to do so and, upon the written request of a Stockholder or Stockholders given
within 10 days after the Company provides such notice (which request shall state
the intended method of disposition of such Registrable Shares), the Company
shall use its best efforts to cause all Registrable Shares which the Company has
been requested by such Stockholder or Stockholders to register to be registered
under the Securities Act to the extent necessary to permit their sale or other
disposition in accordance with the intended methods of distribution specified in
the request of such Stockholder or Stockholders; provided that the Company shall
have the right to postpone or withdraw any registration effected pursuant to
this Section 3 without obligation to any Stockholder.
(b) In connection with any registration under this Section 3 involving
an underwriting, the Company shall not be required to include any Registrable
Shares in such registration unless the holders thereof accept the terms of the
underwriting as agreed upon between the Company and the underwriters selected by
it (provided that such terms must be consistent with this Agreement). If in the
opinion of the managing underwriter it is appropriate because of marketing
factors to limit the number of shares of Common Stock to be included in
the offering, then the Company and the Stockholders shall reduce, on a pro rata
basis, the number of shares each intends to include in the registration so that
the aggregate number to be registered shall equal that number of shares which
the managing underwriter believes should be included therein. If the number of
Registrable Shares to be included in the offering in accordance with the
foregoing is less than the total number of shares which the holders of
Registrable Shares have requested to be included, then the holders of
Registrable Shares who have requested registration and other holders of
securities entitled to include them in such registration shall participate in
the registration pro rata based upon their total ownership of shares of Common
Stock (giving effect to the conversion into Common Stock of all securities
convertible thereinto and the exchange for Common Stock of all securities
exchangeable therefor). If any holder would thus be entitled to include more
securities than such holder requested to be registered, the excess shall be
allocated among other requesting holders pro rata in the manner described in the
preceding sentence.
4. REGISTRATION PROCEDURES. If and whenever the Company is required by the
provisions of this Agreement to use its best efforts to effect the registration
of any of the Registrable Shares under the Securities Act, the Company shall:
(a) file with the Commission a Registration Statement with respect to
such Registrable Shares and use its best efforts to cause that Registration
Statement to become and remain effective;
(b) as expeditiously as possible prepare and file with the Commission
any amendments and supplements to the Registration Statement and the prospectus
included in the Registration Statement as may be necessary to keep the
Registration Statement effective, in the case of a firm commitment underwritten
public offering, until each underwriter has completed the distribution of all
securities purchased by it and, in the case of any other offering, until the
earlier of the sale of all Registrable Shares covered thereby or 120 days after
the effective date thereof;
(c) as expeditiously as possible furnish to each selling Stockholder
such reasonable numbers of copies of the prospectus, including a preliminary
prospectus, in conformity with the requirements of the Securities Act, and such
other documents as the selling Stockholder may reasonably request in order to
facilitate the public sale or other disposition of the Registrable Shares owned
by the selling Stockholder; and
(d) as expeditiously as possible use its best efforts to register or
qualify the Registrable Shares covered by the Registration Statement under the
securities or Blue Sky laws of such states as the selling Stockholders shall
reasonably request, and do any and all other acts and things that may be
necessary or desirable to enable the selling Stockholders to consummate the
public sale or other disposition in such states of the Registrable Shares owned
by the selling Stockholder; PROVIDED, HOWEVER, that the Company shall not be
required in connection with this paragraph (d) to qualify as a foreign
corporation or execute a general consent to service of process in any
jurisdiction.
If the Company has delivered preliminary or final prospectuses to the
selling Stockholders and after having done so the prospectus is amended to
comply with the requirements of the Securities Act, the Company shall promptly
notify the selling Stockholders and, if requested, the selling Stockholders
shall immediately cease making offers of Registrable Shares and return all
prospectuses to the Company. The Company shall promptly provide the selling
Stockholders with revised prospectuses and, following receipt of the revised
prospectuses, the selling Stockholders shall be free to resume making offers of
the Registrable Shares.
5. ALLOCATION OF EXPENSES. The Company will pay all Registration Expenses
of all registrations under this Agreement. For purposes of this Section 5, the
term "Registration Expenses" shall mean all expenses incurred by the Company in
complying with this Agreement, including, without limitation, all registration
and filing fees, exchange listing fees, printing expenses, fees and expenses of
counsel for the Company, state Blue Sky fees and expenses, and the expense of
any special audits incident to or required by any such registration, but
excluding underwriting discounts, selling commissions and the fees and expenses
of selling Stockholders' own counsel.
6. INDEMNIFICATION AND CONTRIBUTION.
(a) In the event of any registration of any of the Registrable Shares
under the Securities Act pursuant to this Agreement, the Company will indemnify
and hold harmless the seller of such Registrable Shares, each underwriter of
such Registrable Shares, and each other person, if any, who controls such seller
or underwriter within the meaning of the Securities Act or the Exchange Act
against any losses, claims, damages or liabilities, joint or several, to which
such seller, underwriter or controlling person may become subject under the
Securities Act, the Exchange Act, state securities or Blue Sky laws or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement
under which such Registrable Shares were registered under the Securities Act,
any preliminary prospectus or final prospectus contained in the Registration
Statement, or any amendment or supplement to such Registration Statement, or
arise out of or are based upon the omission or alleged omission to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading; and the Company will reimburse such seller, underwriter
and each such controlling person for any legal or any other expenses reasonably
incurred by such seller, underwriter or controlling person in connection with
investigating or defending any such loss, claim, damage, liability or action;
PROVIDED, HOWEVER, that the Company 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 any untrue statement or omission made in such Registration Statement,
preliminary prospectus or final prospectus, or any such amendment or supplement,
in reliance upon and in conformity with information furnished to the Company, in
writing, by or on behalf of such seller, underwriter or controlling person
specifically for use in the preparation thereof.
(b) In the event of any registration of any of the Registrable Shares
under the Securities Act pursuant to this Agreement, each seller of Registrable
Shares, severally and not jointly, will indemnify and hold harmless the Company,
each of its directors and officers and each underwriter (if any) and each
person, if any, who controls the Company or any such underwriter within the
meaning of the Securities Act or the Exchange Act, against any losses, claims,
damages or liabilities, joint or several, to which the Company, such directors
and officers, underwriter or controlling person may become subject under the
Securities Act, Exchange Act, state securities or Blue Sky laws or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement under which
such Registrable Shares were registered under the Securities Act, any
preliminary prospectus or final prospectus contained in the Registration
Statement, or any amendment or supplement to the Registration Statement, or
arise out of or are based upon any omission or alleged omission to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, if the statement or omission was made in reliance upon
and in conformity with information relating to such seller furnished in writing
to the Company by or on behalf of such seller specifically for use in connection
with the preparation of such Registration Statement, prospectus, amendment or
supplement; PROVIDED, HOWEVER, that the obligations of such Stockholders
hereunder shall be limited to an amount equal to the proceeds to each
Stockholder of Registrable Shares sold in connection with such registration.
(c) Each party entitled to indemnification under this Section 6 (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 litigation, shall be
approved by the Indemnified Party (whose approval shall not be unreasonably
withheld); 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 6. The Indemnified Party may participate in such
defense at such party's expense; PROVIDED, however, that the Indemnifying Party
shall pay such expense if representation of such Indemnified Party by the
counsel retained by the Indemnifying Party would be inappropriate due to actual
or potential differing interests between the Indemnified Party and any other
party represented by such counsel in such proceeding. 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 of such claim or litigation, and no Indemnified Party shall
consent to entry of any judgment or settle such claim or litigation without the
prior written consent of the Indemnifying Party.
(d) In order to provide for just and equitable contribution to joint
liability under the Securities Act in any case in which either (i) any holder of
Registrable Shares exercising rights under this Agreement, or any controlling
person of any such holder, makes a claim for indemnification pursuant to this
Section 6 but it is judicially determined (by the entry of a final judgment or
decree by a court of competent jurisdiction and the expiration of time to appeal
or the denial of the last right of appeal) that such indemnification may not be
enforced in such case notwithstanding the fact that this Section 6 provides for
indemnification in such case, or (ii) contribution under the Securities Act may
be required on the part of any such selling Stockholder or any such controlling
person in circumstances for which indemnification is provided under this Section
6; then, in each such case, the Company and such Stockholder will contribute to
the aggregate losses, claims, damages or liabilities to which they may be
subject (after contribution from others) in such proportions so that such holder
is responsible for the portion represented by the percentage that the public
offering price of its Registrable Shares offered by the Registration Statement
bears to the public offering price of all securities offered by such
Registration Statement, and the Company is responsible for the remaining
portion; PROVIDED, HOWEVER, that, in any such case, (A) no such holder will be
required to contribute any amount in excess of the proceeds to it of all
Registrable Shares sold by it pursuant to such Registration Statement, and (B)
no person or entity guilty of fraudulent misrepresentation, within the meaning
of Section 11(f) of the Securities Act, shall be entitled to contribution from
any person or entity who is not guilty of such fraudulent misrepresentation.
7. INDEMNIFICATION WITH RESPECT TO UNDERWRITTEN OFFERING. In the event that
Registrable Shares are sold pursuant to a Registration Statement in an
underwritten offering pursuant to Section 2, the Company agrees to enter into an
underwriting agreement containing customary representations and warranties with
respect to the business and operations of an issuer of the securities being
registered and customary covenants and agreements to be performed by such
issuer, including without limitation customary provisions with respect to
indemnification by the Company of the underwriters of such offering.
8. INFORMATION BY HOLDER. Each Stockholder including Registrable Shares in
any registration shall furnish to the Company such information regarding such
Stockholder and the distribution proposed by such Stockholder as the Company may
reasonably request in writing and as shall be required in connection with any
registration, qualification or compliance referred to in this Agreement.
9. "STAND-OFF" AGREEMENT. Each Stockholder, if requested by the Company and
the managing underwriter of an offering by the Company of Common Stock or other
securities of the Company pursuant to a Registration Statement, shall agree not,
without the consent of such managing underwriter, to sell publicly or otherwise
transfer or dispose of any Registrable Shares or other securities of the Company
held by such Stockholder for a specified period of time (not to exceed 120 days)
following the effective date of such Registration Statement; PROVIDED, that all
Stockholders holding not less than the number of shares of Common Stock held by
such Stockholder (including shares of Common Stock issuable upon the exchange of
Preferred Shares, or other securities convertible into or exchangeable for
Common Stock, or upon the exercise of
options, warrants or rights) and all executive officers and directors of the
Company enter into similar agreements.
A. 10. RULE 144 REQUIREMENTS. The Company agrees to: comply with the
requirements of Rule 144(c) under the Securities Act with respect to current
public information about the Company; 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; and furnish to any holder
of Registrable Shares upon request (i) a written statement by the Company as to
its compliance with the requirements of said Rule 144(c), and the reporting
requirements of the Securities Act and the Exchange Act, (ii) a copy of the most
recent annual or quarterly report of the Company, and (iii) such other reports
and documents of the Company as such holder may reasonably request to avail
itself of any similar rule or regulation of the Commission allowing it to sell
any such securities without registration.
11. MERGERS, ETC. The Company shall not, directly or indirectly, enter into
any merger, consolidation or reorganization in which the Company shall not be
the surviving corporation unless the proposed surviving corporation shall, prior
to such merger, consolidation or reorganization, agree in writing to assume the
obligations of the Company under this Agreement, and for that purpose references
hereunder to "Registrable Shares" shall be deemed to be references to the
securities which the Stockholders would be entitled to receive in exchange for
Registrable Shares under any such merger, consolidation or reorganization;
PROVIDED, HOWEVER, that the provisions of this Section 11 shall not apply in the
event of any merger, consolidation or reorganization in which the Company is not
the surviving corporation if all Stockholders are entitled to receive in
exchange for their Registrable Shares consideration consisting solely of (i)
cash, (ii) securities of the acquiring corporation which may be immediately sold
to the public without registration under the Securities Act, or (iii) securities
of the acquiring corporation which the acquiring corporation has agreed to
register within 90 days of completion of the transaction for resale to the
public pursuant to the Securities Act.
12. TERMINATION. All of the Company's obligations to register Registrable
Shares under this Agreement shall terminate on the later of (i) the second
anniversary of this Agreement and (ii) in the case of Registrable Shares issued
or issuable upon exchange of the Note, the first anniversary of the issuance of
such shares, or in the case of Registrable Shares issued or issuable upon
exchange of the Preferred Shares, the first anniversary of such issuance.
Notwithstanding anything to the contrary in this Section 12, no holder of
Registrable Shares shall be entitled to cause the Company to register the sale
of Registrable Shares if and so long as the intended sale may then be
effectuated by such holder in compliance with Rule 144 under the Securities Act.
13. TRANSFERS OF RIGHTS. This Agreement, and the rights and obligations of
each Selling Stockholder hereunder, may be assigned by such Selling Stockholder
to any person or entity to which Registrable Shares are transferred by such
Selling Stockholder, and such transferee shall be deemed a "Selling Stockholder"
for purposes of this Agreement; provided that the transferee provides written
notice of such assignment to the Company.
14. GENERAL.
(a) NOTICES. All notices, requests, consents, and other communications
under this Agreement shall be in writing and shall be delivered by hand or
mailed by first class certified or registered mail, return receipt requested,
postage prepaid, or via a nationally recognized courier service:
If to the Company, to Arch Communications Group, Inc., 0000 Xxxx Xxxx
Xxxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000, Attention: President, or at
such other address or addresses as may have been furnished in writing by the
Company to the Selling Stockholders, with a copy to Xxxx and Xxxx LLP, 00 Xxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxxx X. Xxxxxxxxxx, Esq.;
If to Shearing, x/x Xxxxxxxx Xxxxxxxxxxxxxx Xxxxxxxxxxx, Xxxxxxxx Xxxxxxxx,
Xxxx at Xxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxxxxx 00000, or at such other address
or addresses as may have been furnished to the Company in writing by Shearing,
with a copy to Paul, Hastings, Xxxxxxxx & Xxxxxx LLP, 000 Xxxxxxxxx Xxxxxx XX,
Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000, Attention: Xxxxxx X. Xxxxxxxx, Esq.
If to Adelphia, Adelphia Building, Main at Xxxxx Xxxxxx, Xxxxxxxxxxx,
Xxxxxxxxxxxx 00000, Attention: Xxxxx X. Xxxxx, or at such other address or
addresses as may have been furnished to the Company in writing by Adelphia, with
a copy to Paul, Hastings, Xxxxxxxx & Xxxxxx LLP, 000 Xxxxxxxxx Xxxxxx XX, Xxxxx
0000, Xxxxxxx, Xxxxxxx 00000, Attention: Xxxxxx X. Xxxxxxxx, Esq.
Notices provided in accordance with this Section 14(a) shall be deemed
delivered upon personal delivery or two business days after deposit in the mail.
(b) ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and understandings relating to such
subject matter.
(c) AMENDMENTS AND WAIVERS. Any term of this Agreement may be amended
and the observance of any term of this Agreement may be waived (either generally
or in a particular instance and either retroactively or prospectively), with the
written consent of the Company and the holders of at least a majority of the
Registrable Shares. No waivers of or exceptions to any term, condition or
provision of this Agreement, in any one or more instances, shall be deemed to
be, or construed as, a further or continuing waiver of any such term, condition
or provision.
(d) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
shall be one and the same document.
(e) SEVERABILITY. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
(f) GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the Commonwealth of Massachusetts.
[rest of page intentionally left blank]
Executed as of the date first written above.
ARCH COMMUNICATIONS GROUP, INC.
By:
Title:
ADELPHIA COMMUNICATIONS CORPORATION
By:
Title:
Xxxx-Xxxx Shearing
