REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (the "Agreement") is
entered into this 17th day of October, 1996 by and among the Selling
Shareholders listed on Exhibit A hereto (individually, a Shareholder and
collectively, the "Shareholders"), GST Newco of Texas, Inc., a Delaware
corporation ("Sub"), 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:
ADVICE: See Section 5 hereof.
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.
INDEMNIFIED PARTY: See Section 7 hereof.
INDEMNIFYING PARTY: See Section 7 hereof.
LOSSES: See Section 7 hereof.
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 to the
Shareholders pursuant to that certain Agreement and Plan of Merger (the "Merger
Agreement"), dated September , 1996, by and among TotalNet Communications Inc.,
Sub and the Company, 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: 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.
SEC: The Securities and Exchange Commission.
SECURITIES ACT: The Securities Act of 1933, as amended, and
the rules and regulations promulgated by the SEC thereunder.
SHAREHOLDERS' SHARES: Common Shares held by the Shareholders.
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
(a) SUBJECT SECURITIES. The securities entitled to the
benefits of this Agreement are the Registrable Securities.
(b) HOLDERS OF REGISTRABLE SECURITIES. A person is deemed to
be a Holder of Registrable Securities whenever such person owns Registrable
Securities.
3. REGISTRATION
(a) Subject to the limitations of Section 3(b) hereof, the
Company shall use its best efforts to effect the registration under the
Securities Act of the resale of all of the Registrable Securities delivered or
deliverable to the Shareholders pursuant to the Merger Agreement (a
"Registration") and, in such connection within 30 days after the Closing Date
shall file a Registration Statement and use its best efforts to cause the same
to be declared
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effective by the SEC as soon thereafter as practicable Except as otherwise
provided in Section 3(b), 4(a) and the final paragraph of Section 5, the Company
shall keep effective such Registration Statement for two periods (each an
"Effective Period") of 180 days, the first such period to commence on the date
the Registration Statement becomes effective and the second to commence on the
first anniversary of the Closing Date, provided that the Company may terminate
the effectiveness of such Registration Statement on an earlier date if all of
the Registrable Securities that are the subject thereof shall have been sold.
(b) Notwithstanding the provisions of Section 3(a) hereof, the
Company may postpone (such postponement is referred to herein as a "Permitted
Interruption") for a reasonable period of time (not to exceed 45 days, which may
not thereafter be extended) the filing or the effectiveness of a Registration
Statement 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 each
Shareholder; (ii) the Company is conducting or about to conduct an offering of
Common Shares and the Company is advised by the investment banker engaged by the
Company to conduct the offering that such offering would be affected adversely
by the Registration and the Company furnishes a certificate to that effect to
each Shareholder participating in the Registration; or (iii) the Board of
Directors of the Company shall determine in good faith that such offering will
interfere with a pending or contemplated material 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 each
Shareholder. After such Permitted Interruption, the Company shall effect such
registration as promptly as practicable.
4. HOLDBACK AGREEMENTS
(a) RESTRICTIONS ON PUBLIC SALE BY HOLDERS OF REGISTRABLE
SECURITIES. Each holder of Registrable Securities whose Registrable Securities
are covered by a Registration Statement filed pursuant to Section 3 hereof
agrees, 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 underwritten registration, during the 10-day period prior to, and a
period of up to 180 days beginning on, the effective date of any underwritten
offering made pursuant to such Registration Statement; provided that in no event
shall the provisions of this Section 4(a) prevent the sale of Registrable
Securities for more than 180 days in any 365-day period. In the event that the
provisions of this Section 4(a) become applicable
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during an Effective Period, such Effective Period shall be extended by the
number of days during which the holders of Registrable Securities have agreed
not to make sales thereof.
(b) If as a result of the provisions of Sections 3(b) and 4(a)
hereof, the holders of Registrable Securities are prevented from making sales
thereof for an aggregate of 225 days in any one year period, then in addition to
the rights provided elsewhere herein to such holders, they shall have piggyback
registration rights with respect to the remainder of the Registrable Securities
held by them for a period equal to the lesser of (i) one year, or (ii) the
period ending when all remaining Registrable Securities shall have been sold.
The Company and such holders shall enter into a registration rights agreement
containing customary terms and conditions, including provisions comparable to
those contained in Sections 3(b), 4(a) and (b), 5, 6, 7 and 8 hereof.
(c) RESTRICTIONS ON PUBLIC SALE BY THE COMPANY AND OTHERS. The
Company agrees, if requested by the managing underwriter or underwriters in an
underwritten offering of Registrable Securities covered by a Registration
Statement filed pursuant to Section 3 hereof, not to effect any public or
private sale or distribution of its securities, including a sale pursuant to
Regulation D under the Securities Act, during the 10-day period prior to, and
the 90-day period beginning on, the effective date of any underwritten offering
made pursuant to such Registration Statement, except as part of such
underwritten registration or pursuant to registrations on Form S-8 or any
successor form to such Form.
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 such 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 on
any appropriate form under the Securities Act that shall be available for the
sale of the Registrable Securities by the holders thereof 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 the holders of the Registrable Securities covered by
such Registration Statement and the managing underwriter or underwriters, if
any, copies of all such documents proposed to be
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filed, which documents will be subject to the review of such holders 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 holders of a majority in number of the Registrable
Securities covered by such Registration Statement, or the managing underwriter
or underwriters, if any, shall reasonably object on a timely basis;
(b) prepare and file with the SEC such amendments and
post-effective amendments to the Registration Statement required to be filed
pursuant to Section 3 of this Agreement as may be necessary to keep such
Registration Statement effective for the time period necessitated by the
intended methods of disposition contemplated by the distribution resulting in
the filing of the Registration Statement, but in no event longer than six months
from the effective date of the 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 the selling holders of Registrable Securities 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 a 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
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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 best efforts to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement;
(e) if requested by the managing underwriter or underwriters
or any holder of Registrable Securities being sold in connection with an
underwritten offering, (i) immediately incorporate in a Prospectus supplement or
post-effective amendment such information as the managing underwriter or
underwriters and such holder 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 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 selling holder of
Registrable Securities, 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 all selling holders of Registrable Securities
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 selling holders of Registrable
Securities, 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 any seller or underwriter
reasonably requests in writing; use its best efforts to keep each such
registration or qualification (or
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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 such 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 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, if requested
by the holders of a majority in aggregate number of shares of such issue or
class of Registrable Securities;
(j) enter into such agreements (including an underwriting
agreement in form, scope and substance as is customary in underwritten
offerings) and take all such other actions in connection therewith (including
those reasonably requested by the managing underwriter or underwriters, if any,
or the holders of a majority of the Registrable Securities being sold) 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 selling
holder 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 selling holder of Registrable
Securities 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 underwritten offerings; and (iii) if an underwriting
agreement is entered into, the same shall contain indemnification provisions and
procedures no less favorable than those set forth in Section 7 hereof (or such
other provisions and procedures acceptable to a majority of the holders of
Registrable Securities covered by such Registration Statement) with respect to
all parties to be indemnified pursuant to said Section; and
(k) 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
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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 seller of Registrable Securities
as to which any registration is being effected 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 seller who
fails to furnish such information within a reasonable time after receiving such
request.
Each holder of Registrable Securities agrees by acquisition of
such Registrable Securities that, upon receipt of any notice from the Company of
the happening of a material event of the kind described in Section 5(c)(ii),
(iii), (v), (vi) or (vii) hereof, such holder shall forthwith discontinue
disposition of such Registrable Securities covered by such Registration
Statement or Prospectus until such holder'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 each seller of Registrable
Securities covered by such Registration Statement 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
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Company so desires such insurance; and (v) fees and expenses of all other
persons retained by the Company, including financial printers. The Company shall
not pay any fees or expenses incurred by the holders of Registrable Securities,
including, without limitation, fees and expenses of counsel or any other expert
retained by such holders and commissions or discounts attributable to the sale
of Registrable Securities.
7. INDEMNIFICATION
(a) INDEMNIFICATION BY THE COMPANY. The Company shall
indemnify and hold harmless, to the full extent permitted by law, each holder of
Registrable Securities, its officers, directors, agents and employees, each
person who controls such holder (within the meaning of Section 15 of the
Securities Act or Section 20 the Exchange Act), and the officers, directors,
agents or employees of any such controlling person, 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 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 holder or on such holder's behalf expressly for
use therein. The Company shall also indemnify underwriters, selling brokers,
dealer managers and similar securities industry professionals participating 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 the holders of Registrable
Securities.
(b) INDEMNIFICATION BY HOLDERS OF REGISTRABLE SECURITIES. In
connection with any Registration Statement in which a holder of Registrable
Securities is participating, such holder of Registrable Securities 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
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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 holder or on such holder's behalf to the Company specifically
for use in connection with the preparation of such Registration Statement or
Prospectus. 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 indemnifying
party has agreed to pay such fees and expenses, (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, or (iii) the indemnified party shall have reasonably
concluded that there may be defenses available to it that are different from or
additional to those available to the indemnifying party, 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
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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 guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
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 offering.
No person may participate in any underwritten registration
hereunder unless such person (a) agrees to sell such person's 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.
9. MISCELLANEOUS
(a) NO INCONSISTENT AGREEMENTS. The Company shall not, on or
after the date of this Agreement, enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the holders of
Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof.
(b) 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
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the Company and the holders of at least a majority of the then outstanding
Registrable Securities. Waivers or consents to departures from the provisions of
this Agreement by the holders of Registrable Securities may not be given, except
by a writing executed by the holders of at least a majority of the then
outstanding Registrable Securities. Notwithstanding the foregoing, a waiver or
consent to depart from the provisions hereof with respect to a matter that
relates exclusively to the rights of holders of Registrable Securities whose
securities are being sold pursuant to a Registration Statement and that does not
directly or indirectly affect the rights of holders of Registrable Securities
whose securities are not being sold pursuant to a Registration Statement, may be
given by either (i) holders of at least a majority of the then outstanding
Registrable Securities or (ii) holders of a majority the Registrable Securities
being sold by such holders.
(c) NOTICES. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand delivery, certified
first-class mail or next-day air courier:
(i) if to a holder of Registrable Securities, at the
most current address given by such holder to the Company in
accordance with the provisions of this Section 9(c), which
address initially is, with respect to each Shareholder, the
address set forth on the signature page hereof; or
(ii) if to the Company or Sub, initially at 0000 XX
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(c).
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 mail, postage prepaid, if mailed or
(iii) one business day after being sent by next day air courier.
(d) 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.
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(e) 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.
(f) COUNTERPARTS. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(h) GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware, without regard
to principles of conflict of laws.
(i) 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.
(j) 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 Shareholders' Shares. 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.
SUMMIT CAPITAL INC. SHAREHOLDERS:
By: /s/ Xxxxxx X. Xxxxx /s/ Xxxxxx Xxxxx
--------------------- ------------------------------------
Name: Xxxxxx X. Xxxxx Name: Xxxxxx Xxxxx
Title:Chairman Address:
/s/ Xxxx X. Xxxxxx XX
------------------------------------
Name: Xxxx X. Xxxxxx XX
Address: 0 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000
/s/ Xxxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx
Address:10 S. Xxxxx Xxxxxx Xx #00
Xxxxxxx, XX 00000
/s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
Address: 0000 Xxxx
Xxxxxxx, XX 00000
/s/ Xxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxx
Address:1400 Xxxx Xxx Xxxx., Xxxxx 000
Xxxxxxx, XX 00000-0000
/s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Address:
/s/ Xxxxxx X. Xxxxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Address:
/s/ Xxxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxxx Xxxxx
Address:
-14-
/s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Address:
/s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Address:
/s/ Xxxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Address:
/s/ Xxxxx Xxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxx
Address:1400 Post Oak Blvd. Ste. 900
Houston, TX USA
/s/ Xxxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxxx
Address:1400 Post Oak Blvd. Ste. 900
Xxxxxxx, XX 00000
/s/ Xxx Xxxxxxx
------------------------------------
Name: Xxx Xxxxxxx
Address:5555 Xxxxxxxx #000
Xxxxxxx, XX 00000
/s/ Xxxxxx Xxxxxx
------------------------------------
Name: Xxxxxx Xxxxxx
Address:6119 Valkeith
Xxxxxxx, XX 00000
/s/ Xxx X. Xxxxxxx
------------------------------------
Name: Xxx X. Xxxxxxx
Address:
-15-
/s/ Xxxxxx X. Xxxx
------------------------------------
Name: Xxxxxx X. Xxxx
Address:622 Augusta
Xxxxxxx, XX 00000
/s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Address:2601 S. Braeswood #605
Xxxxxxx, XX 00000
/s/ Xxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxxx
Address:717 Fostorix
Xxxxxxx, XX 00000
/s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Address:2425 Xxxxxxxxx 352
Xxxxxxx, XX 00000
/s/ Xxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxx
Address:12010 Xxxxxxxxxx Xx.
Xxxxxxx, XX 00000
GST TELECOMMUNICATIONS, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title:Senior Vice President
GST NEWCO OF TEXAS, INC.
By:/s/ Xxxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title:Vice President
-16-
