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EXHIBIT 10.21
This EXCHANGE AND REGISTRATION RIGHTS AGREEMENT (this "Agreement") is
made and entered into as of July 30, 1999, by and among NET2000 COMMUNICATIONS,
INC., a Delaware corporation (the "Company") and NORTEL NETWORKS INC., a
Delaware corporation ("Purchaser"), who has agreed to purchase the Company's
Senior Discount Notes due 2009 (the "Notes") issued pursuant to the Purchase
Agreement (as defined below).
This Agreement is made pursuant to the Note Purchase Agreement, dated
July 30, 1999, (the "Purchase Agreement"), by and among the Company, the
Guarantors and Purchaser. In order to induce Purchaser to purchase the
Securities, the Company has agreed to provide the registration rights set forth
in this Agreement. The execution and delivery of this Agreement is a condition
to the obligations of Purchaser set forth in Section 9.1 of the Purchase
Agreement.
The parties hereby agree as follows:
Section 1. Certain Definitions.
For purposes of this Agreement, the following terms shall have the
following respective meanings:
"Additional Notes" shall mean debt securities of the Company (other than
the Exchange Securities) issued under this Indenture after the Initial Issue
Date, as part of the same series as the Notes.
"Base Interest" shall mean the interest that would otherwise accrue on
the Securities under the terms thereof and the Indenture, without giving effect
to the provisions of this Agreement.
"Broker-dealer" shall mean any broker or dealer registered with the
Commission under the Exchange Act.
"Business Day" shall mean any day except a Saturday, Sunday or other day
in the City of New York, or in the city of the Corporate Trust Office (as
defined in the Indenture) of the Trustee, on which banks are authorized to
close.
"Commission" shall mean the United States Securities and Exchange
Commission, or any other federal agency at the time administering the Exchange
Act or the Securities Act, whichever is the relevant statute for the particular
purpose.
"Demand Registration" shall have the meaning assigned to it in Section
3.1 hereof.
"Demand Registration Statement" shall have the meaning assigned to it in
Section 3.1(c) hereof.
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"Effective Time," shall mean, in the case of any Registration Statement,
the time and date as of which the Commission declares the Registration Statement
effective or as of which the Registration Statement otherwise becomes effective.
"Electing Holder" shall mean any Holder of Registrable Securities that
has returned a completed and signed Notice and Questionnaire to the Company in
accordance with Section 4.3(b) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, or any
successor thereto, as the same shall be amended from time to time.
"Exchange Offer" shall have the meaning assigned thereto in Section 2(a)
hereof.
"Exchange Registration" shall have the meaning assigned thereto in
Section 4.2 hereof.
"Exchange Registration Statement" shall have the meaning assigned thereto
in Section 2(a) hereof.
"Exchange Request Date" shall have the meaning assigned thereto in
Section 2(a) hereof.
"Exchange Securities" shall have the meaning assigned thereto in Section
2(a) hereof.
"Holder" shall mean Purchaser and other Persons who acquire Registrable
Securities from time to time (including any successors or assigns), in each case
for so long as such Person owns any Registrable Securities.
"Indenture" shall mean the Indenture, dated as of July 30, 1999, between
the Company, and Allfirst Trust Company, National Association, as Trustee, as
the same shall be amended or supplemented from time to time in accordance with
the terms thereof.
"Initial Issue Date" means the first Issue Date to occur.
"Issue Date" means each date on which any Notes are issued under the
Indenture and sold to Purchaser pursuant to Section 2.3 of the Purchase
Agreement.
"Market Making Shelf Registration Statement" shall have the meaning
assigned thereto in Section 2(c) hereof.
"NASD" shall mean the National Association of Securities Dealers, Inc..
"Notice and Questionnaire" shall mean a Notice of Registration Statement
and Selling Securityholder Questionnaire substantially in the form of Exhibit A
hereto.
"Person" shall mean a corporation, association, partnership, joint
venture, limited liability company, joint-stock company, trust, organization,
business, individual, government or political subdivision thereof or
governmental agency.
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"Piggyback Registration" shall have the meaning assigned to it in Section
3.2 hereof.
"Prospectus" shall mean the prospectus included in any Registration
Statement (including, without limitation, any prospectus subject to completion
and a prospectus that includes an information previously omitted from a
prospectus filed as part of an effective registration statement in reliance upon
Rule 430A promulgated under the Securities Act and any term sheet filed pursuant
to Rule 434 under the Securities Act), as amended or supplemented by any
prospectus supplement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
"Registrable Securities" shall mean the Securities; provided, however,
that a Security shall cease to be a Registrable Security when (i) in the
circumstances contemplated by Section 2(a) hereof, the Security has been
exchanged for an Exchange Security in an Exchange Offer as contemplated in
Section 2(a) hereof provided that any Exchange Security that, pursuant to the
last two sentences of Section 2(a), is included in a Prospectus for use in
connection with resales by Broker-dealers shall be deemed to be a Registrable
Security with respect to Sections 6, 7 and 10 until resale of such Registrable
Security has been effected within the 180-day period referred to in Section
2(a); (ii) in the circumstances contemplated by Sections 3.1 or 3.2 hereof,
registration pursuant to a Demand or Piggyback Registration registering such
Securities under the Securities Act has been effected and such Security has been
sold or otherwise transferred by the Holder thereof pursuant to and in a manner
contemplated by such Demand or Piggyback Registration; (iii) such Security is
sold pursuant to Rule 144 under circumstances in which any legend borne by such
Security relating to restrictions on transferability thereof, under the
Securities Act or otherwise, is removed by the Company or pursuant to the
Indenture; (iv) such Security is eligible to be sold pursuant to paragraph (k)
of Rule 144; or (v) such Security shall cease to be outstanding.
"Registration Default" shall have the meaning assigned thereto in Section
2(d) hereof.
"Registration Default Period" shall have the meaning assigned thereto in
Section 2(d) hereof.
"Registration Expenses" shall have the meaning assigned thereto in
Section 5 hereof.
"Registration Statement" shall mean any registration statement of the
Company that covers any of the Securities, filed with the Commission under the
Securities Act, including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits, and
all material incorporated by reference or deemed to be incorporated by reference
in such registration statement.
"Required Holders" shall mean Holders of a majority in aggregate
principal amount of Registrable Securities.
"Resale Date" shall mean the first date on which Purchaser sells,
transfers or otherwise disposes of all of the Securities to any Person or
Persons that are not affiliates of Purchaser.
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"Resale Period" shall have the meaning assigned thereto in Section 2(a)
hereof.
"Restricted Holder" shall mean (i) a Holder that is an affiliate of the
Company within the meaning of Rule 405, (ii) a Holder who acquires Exchange
Securities outside the ordinary course of such Holder's business, (iii) a Holder
who has arrangements or understandings with any person to participate in the
Exchange Offer for the purpose of distributing Exchange Securities and (iv) a
Holder that is a broker-dealer, but only with respect to Exchange Securities
received by such broker-dealer pursuant to an Exchange Offer in exchange for
Registrable Securities acquired by the broker-dealer directly from the Company.
"Rule 144", "Rule 144A", "Rule 405" and "Rule 415" shall mean, in each
case, such rule promulgated under the Securities Act (or any successor
provision), as the same shall be amended from time to time.
"Secondary Offering Shelf Registration Statement" shall mean a Shelf
Registration Statement, a Demand Registration Statement and/or a Market Making
Shelf Registration Statement.
"Securities" shall mean, collectively, the Senior Discount Notes due
2009, of the Company to be issued and sold to the Purchaser on the Issue Date,
Additional Notes issued pursuant to the Indenture, the Exchange Securities and
any other securities issued in exchange therefor or in lieu thereof pursuant to
the Indenture. Unless the context otherwise requires, any reference herein to a
"Security," an "Exchange Security" or a "Registrable Security" shall include a
reference to any related guarantee thereof.
"Securities Act" shall mean the Securities Act of 1933, or any successor
thereto, as the same shall be amended from time to time.
"Shelf Registration" shall have the meaning assigned to it in Section
2(b) hereof.
"Shelf Registration Statement" shall have the meaning assigned to it in
Section 2(b) hereof.
"Special Interest" shall have the meaning assigned thereto in Section
2(d) hereof.
"Suspension Period" shall have the meaning assigned to it in Section
3.1(c) hereof.
"TIA" shall mean the Trust Indenture Act of 1939, as amended, or any
successor thereto, and the rules, regulations and forms promulgated thereunder,
all as the same shall be amended from time to time.
"Underwritten Offering" shall mean a registration in which securities of
the Company are sold to an underwriter for reoffering to the public.
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Unless the context otherwise requires, any reference herein to a
"Section" or "clause" refers to a Section or clause, as the case may be, of this
Exchange and Registration Rights Agreement, and the words "herein", "hereof" and
"hereunder" and other words of similar import refer to this Agreement as a whole
and not to any particular Section or other subdivision.
Section 2. Exchange Offer; Shelf Registration.
(a) Upon the request of Purchaser, or after the Resale Date, the Required
Holders (the date of such request being the "Exchange Request Date"), the
Company agrees to file under the securities Act, as soon as practicable, but no
later than 90 days after the Exchange Request Date, a Registration Statement
relating to an offer to exchange (such registration statement, the "Exchange
Registration Statement", and such offer, the "Exchange Offer") any and all of
the Securities for a like aggregate principal amount of debt securities issued
by the Company, which debt securities are substantially identical to the
Securities (and are entitled to the benefits of a trust indenture which is
substantially identical to the Indenture or is the Indenture and which has been
qualified under the TIA), except which have been registered pursuant to an
effective Registration Statement under the Securities Act and do not contain
provisions for the additional interest contemplated in Section 2(d) below (such
new debt securities hereinafter called "Exchange Securities"). The Company
agrees to use its best efforts to cause the Exchange Registration Statement to
become effective under the Securities Act as soon as practicable thereafter, but
no later than 180 days after the Exchange Request Date. The Exchange Offer will
be registered under the Securities Act on the appropriate form and duly
registered or qualified under the applicable state securities or Blue Sky laws
and will comply with all applicable tender offer rules and regulations under the
Exchange Act and state securities or Blue Sky laws.
The Company further agrees to use its best efforts to: (i) commence and
complete the Exchange Offer promptly, but in any event, to complete it no later
than 210 days after the Exchange Request Date; (2) hold the Exchange Offer open
for at least 30 days and issue Exchange Securities for all Registrable
Securities that have been properly tendered and not withdrawn on or prior to the
expiration of the Exchange Offer. The Exchange Offer will be deemed to have been
completed only if the debt securities received by Holders other than Restricted
Holders in the Exchange Offer for Registrable Securities are, upon receipt,
transferable by each such Holder without restriction under Section 5 of the
Securities Act and the Exchange Act (except for the requirement to deliver the
Prospectus included in the Exchange Act Registration Statement applicable to
resales by any Broker-dealer of Exchange Securities received by such
Broker-dealer pursuant to an Exchange Offer in exchange for Registrable
Securities other than those acquired by the Broker-dealer directly from the
Company) and without material restrictions under the state securities or Blue
Sky laws of a substantial majority of the States of the United States of
America.
The Exchange Offer shall be deemed to have been completed upon the
earlier to occur of (i) the Company having exchanged the Exchange Securities for
all outstanding Registrable Securities pursuant to the Exchange Offer and (ii)
the Company having exchanged, pursuant to the Exchange Offer, Exchange
Securities for all Registrable Securities that have been properly tendered and
not withdrawn before the expiration of the Exchange Offer, which shall be on a
date that is at least 30 days following the commencement of the Exchange Offer.
The Company
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agrees (x) to include in the Exchange Registration Statement a Prospectus for
use in any resales by any Holder of Exchange Securities that is a Broker-dealer
and (y) to keep such Exchange Registration Statement effective for a period (the
"Resale Period") beginning when Exchange Securities are first issued in the
Exchange Offer and ending upon the earlier of the expiration of the 180th day
after the Exchange Offer has been completed or such time as such Broker-dealers
no longer own any Registrable Securities. With respect to such Exchange
Registration Statement, such Holders shall have the benefit of the rights of
indemnification and contribution set forth in Section 5 hereof.
(b) If, (i) because of any change in law or in currently prevailing
interpretations of the Staff of the Commission, the Company is not permitted to
effect an Exchange Offer, (ii) the Exchange Offer has not been completed within
210 days following the Exchange Request Date, or (iii) in the case of any Holder
that participates in the Exchange Offer, such Holder does not receive Exchange
Securities on the date of the exchange that may be sold without restriction
under state and federal securities laws (other than due solely to the status of
such Holder as an affiliate of the Company within the meaning of the Securities
Act), then, in the case of each of the foregoing clauses, the Company shall, in
lieu of (or in the case of clause (iii), in addition to) the Exchange Offer,
file under the Securities Act as soon as practicable, but no later than the
later of 45 days after the time such obligation to file arises or 90 days after
the Exchange Request Date, a Registration Statement providing for the
registration of, and the sale on a continuous or delayed basis by the Holders
of, all of the Registrable Securities, pursuant to Rule 415 or any similar rule
that may be adopted by the Commission (such filing, the "Shelf Registration" and
such Registration Statement, the "Shelf Registration Statement").
The Company agrees to use its best efforts (x) to cause the Shelf
Registration Statement to become or be declared effective no later than 90 days
after such Shelf Registration Statement is filed and to keep such Shelf
Registration Statement continuously effective for a period ending on the earlier
of the second anniversary of the Effective Time or such time as there are no
longer any Registrable Securities outstanding; provided, however, that no Holder
shall be entitled to be named as a selling securityholder in the Shelf
Registration Statement or to use the Prospectus included therein for resales of
Registrable Securities unless such Holder is an Electing Holder, and (y) after
the Effective Time of the Shelf Registration Statement, promptly upon the
request of any Holder of Registrable Securities that is not then an Electing
Holder, to take any action reasonably necessary to enable such Holder to use the
Prospectus forming a part thereof for resales of Registrable Securities,
including, without limitation, any action necessary to identify such Holder as a
selling securityholder in the Shelf Registration Statement, provided, however,
that nothing in this clause (y) shall relieve any such Holder of the obligation
to return a completed and signed Notice and Questionnaire to the Company in
accordance with Section 4.3(b) hereof. The Company further agrees to supplement
or make amendments to the Shelf Registration Statement, as and when required by
the rules, regulations or instructions applicable to the registration form used
by the Company for such Shelf Registration Statement or by the Securities Act or
rules and regulations thereunder for shelf registration, and the Company agrees
to furnish to each Electing Holder copies of any such supplement or amendment
prior to its being used or promptly following its filing with the Commission.
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Notwithstanding the foregoing, the Company may postpone, for a period not
to exceed 90 days, supplementing or amending the Shelf Registration Statement if
(i) the Company is in possession of material non-public information related to a
proposed financing, recapitalization, acquisition, business combination or other
material transaction and the Board of Directors of the Company determines (in
good faith in a written resolution) that disclosure of such information would
have a material adverse effect on the business or operations of the Company and
its subsidiaries and disclosure of such information is not otherwise required by
law and (ii) the Company delivers notice (which shall include a copy of the
resolution of the Board of Directors with respect to such determination) to the
Electing Holders and any placement agent or underwriting as contemplated by
Section 4.3(f) to the effect that Electing Holders may not make offers or sales
under the Shelf Registration Statement; provided, however, that the Company may
deliver only two such notices within any twelve-month period. Promptly upon the
earlier of (x) public disclosure of such material non-public information, (y)
the date on which such non-public information is no longer material and (z) 90
days after the date notice is given by the Company pursuant to clause (ii)
above, the Company shall supplement or amend Shelf Registration Statement as
required by the immediately preceding sentence and give notice to the Electing
Holders that offers and sales under the Shelf Registration Statement may be
resumed.
(c) The Company shall file under the Securities Act, on the date that the
Exchange Registration Statement (or in lieu thereof, the Shelf Registration
Statement) is filed with the Commission, a Registration Statement (which may be
the Exchange Registration Statement or the Shelf Registration Statement if
permitted by the rules and regulations of the Commission) pursuant to Rule 415
under the Securities Act or any similar rule that may be adopted by the
commission providing for the registration of, and the sale on a continuous or
delayed basis in secondary transactions by Purchaser (in the event of a Shelf
Registration) of Exchange Securities (in the event of an Exchange Offer) (such
filing, the "Market Making Shelf Registration"), and such registration
statement, the "Market Making Shelf Registration Statement"). The Company agrees
to use its best efforts to cause the Market Making Shelf Registration Statement
to become or be declared effective on or prior to (i) the date the Exchange
Offer is completed pursuant to Section 2(a) above or (ii) the date the Shelf
Registration becomes or is declared effective pursuant to Section 2(b) above,
and to keep such Market Making Shelf Registration Statement continuously
effective for so long as Purchaser may be required to deliver a Prospectus in
connection with transactions in the Securities or the Exchange Securities, as
the case may be. In the event that Purchaser holds Securities at the time an
Exchange Offer is to be conducted under Section 2(a) above, the Company agrees
that the Market Making Shelf Registration shall provide for the resale by
Purchaser of such Securities and shall be kept continuously effective for so
long as Purchaser may be required to deliver a Prospectus in connection with the
sale of such Securities. The Company further agrees to supplement or make
amendment to the Market Making Shelf Registration Statement, as and when
required by the rules, regulations or instructions applicable to the
registration form used by the Company for such Market Making Shelf Registration
Statement or by the Securities Act or rules and regulations thereunder for shelf
registration, and the Company agrees to furnish to Purchaser copies of any such
supplement or amendment prior to its being used or promptly following its filing
with the Commission.
Notwithstanding the foregoing, the Company may suspend the offering and
sale under the Market Making Shelf Registration Statement for a period or
periods the Board of Directors of the
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Company reasonably determines to be necessary, but in any event not to exceed
120 days in each year during which the Market Making Shelf Registration
Statement is required to be effective and usable hereunder (measured from the
Effective Time of the Market Making Shelf Registration Statement to successive
anniversaries thereof) if (A)(i) the Company is in possession of material
nonpublic information relating to a proposed financing, recapitalization,
acquisition, disposition, business combination or other material transaction and
(ii)(x) such transaction is required to be disclosed in the Market Making Shelf
Registration Statement, the related Prospectus or any amendment or supplement
thereto, or the failure by the Company to disclose such transaction in the
Market Making Shelf Registration Statement or related Prospectus, or any
amendment or supplement thereto, as then amended or supplemented, would cause
the Market Making Shelf Registration Statement, Prospectus or amendment or
supplement thereto, to contain an untrue statement of material fact or omit to
state a material fact necessary in order to make the statement therein, in the
light of the circumstances under which they were made, not misleading, (y)
information regarding the existence of such transaction has not then been
publicly disclosed by or on behalf of the Company and (z) the Board of Directors
of the Company determines in good faith that disclosure of such transaction
would not be in the best interest of the Company or would have a material
adverse effect on the consummation of such transaction, and (B) the Company
notifies Purchaser within five days after such Board of Directors makes the
relevant determination set forth in clause (A).
(d) In the event that (i) the Company has not filed the Exchange
Registration Statement, the Shelf Registration Statement or the Market Making
Shelf Registration Statement on or before the date on which such Registration
Statement is required to be filed pursuant to Section 2(a), 2(b) or (c),
respectively, or (ii) such Exchange Registration Statement, Shelf Registration
Statement or Market Making Shelf Registration Statement has not become effective
or been declared effective by the Commission on or before the date on which such
Registration Statement is required to become or be declared effective pursuant
to Section 2(a) or 2(c) hereof, respectively, or (iii) the Exchange Offer has
not been completed on or before the date on which the Exchange Offer is required
to be completed pursuant to Section 2(b) hereof, or (iv) any Exchange
Registration Statement, Shelf Registration Statement or Market Making Shelf
Registration Statement required by Section 2(a), 2(b) or 2(c) hereof is filed
and declared effective but shall thereafter either be withdrawn by the Company
or shall become subject to an effective stop order issued pursuant to Section
8(d) of the Securities Act suspending the effectiveness of such Registration
Statement (except as specifically permitted herein) without being succeeded
immediately by an additional Registration Statement filed and declared effective
(each such event referred to in clauses (i) through (iv), a "Registration
Default" and each period during which a Registration Default has occurred and is
continuing, a "Registration Default Period"), then, as liquidated damages for
such Registration Default, subject to the provisions of Section 8(b), special
interest ("Special Interest"), in addition to the Base Interest, shall accrue at
a per annum rate of 0.50% for the first 90 days of the Registration Default
Period, and increasing by 0.25% on the last day of each subsequent 90-day period
of the Registration Default Period; provided that the aggregate Special Interest
rate shall in no event exceed 1.0% per annum. Notwithstanding anything to the
contrary set forth herein, (A) upon filing of the Exchange Registration
Statement, the Shelf Registration Statement and/or the Market Making Shelf
Registration Statement in the case of (i) above, (2) upon the effectiveness of
the Exchange Registration Statement, or the Shelf Registration Statement and/or
the Market Making Shelf
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Registration Statement in the case of (ii) above, (3) upon completion of the
Exchange Offer, in the case of (iii) above, or (4) upon the filing of a
post-effective amendment or an additional Registration Statement that causes the
Exchange Registration Statement, the Shelf Registration Statement and/or the
Market Making Shelf Registration Statement to again be declared effective or
made usable in the case of (iv) above, the Special Interest payable as a result
of such clause (i), (ii), (iii) or (iv), as applicable, shall cease accruing and
the interest rate shall return to the Base Interest.
(e) The Company shall take, and shall cause any guarantors of Registrable
Securities, if any, to take, all actions necessary or advisable to be taken by
it to ensure that the transactions contemplated herein are effected as so
contemplated, including all actions necessary or desirable to register its
guarantee of such Registrable Securities under the Registration Statement
contemplated in Section 2(a), 2(b) or 2(c) hereof, as applicable.
Section 3. Other Registration Rights.
3.1 Demand Registrations.
(a) Purchaser, or after the Resale Date, the Required Holders, may
make a written request to the Company for registration of Registrable Securities
under the Securities Act with the Commission for a public offering of
Registrable Securities (a "Demand Registration"); provided, however, that the
Holders shall have the right to only two Demand Registrations of all or any part
of their Registrable Securities. Whenever the Company shall receive a request
for a Demand Registration, the Company will promptly give written notice of such
registration to all Holders, use its reasonable best efforts to effect the
registration under the Securities Act of the Registrable Securities with respect
to which the Company has received written requests for inclusion therein within
30 days after such notice is given; provided, however, that the Company will not
be required to take any action pursuant to this Section 3.1: (i) if the Company
has effected a registration pursuant to Sections 2, 3.1 or 3.2 within the
180-day period preceding such request which permitted Holders of Registrable
Securities to register Registrable Securities; (ii) if the Company shall at the
time have effective a Shelf Registration Statement pursuant to which the Holder
or Holders that requested registration could effect the disposition of such
Holder's or Holders' Registrable Securities in the manner requested; or (iii)
during the pendency of any Suspension Period permitted under Section 3.1(c); and
provided further, that the Company will be permitted to satisfy its obligations
under this Section 3.1 by amending (to the extent permitted by applicable law)
any Registration Statement previously filed by the Company under the Securities
Act so that such Registration Statement (as amended) will permit the disposition
in accordance with the intended methods of disposition as specified as
aforesaid) of all of the Registrable Securities for which a Demand Registration
has been made under this Section 3.1. If the Company so amends a previously
filed Registration Statement, it will be deemed to have effected a registration
for purposes of this Section 3.1. All requests made pursuant to this Section
3.1(a) will specify the number of shares of Registrable Securities to be
registered and will also specify the intended methods of disposition thereof.
(b) A registration initiated as a Demand Registration shall not be deemed
a Demand Registration until such registration has become effective and (except
in the case of a Shelf
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Registration) has been maintained effective by the Company until the earlier of
(i) 180 days and (ii) the date on which all Registrable Securities included in
such registration have actually been sold; provided, however, that a
registration that does not become effective after the Company has filed a
Registration Statement with respect thereto solely by reason of the refusal to
proceed by the Holders shall be deemed to have been effected by the Company
unless the Holders shall have elected (without any obligation) to pay, and in
fact pay (within 30 days after the Company receives notice of such refusal to
proceed of the Holders), all reasonable Registration Expenses in connection with
such registration.
(c) The Company may postpone, for a period not to exceed 90 days (each a
"Suspension Period"), filing, supplementing or amending the Registration
Statement (each a "Demand Registration Statement") required to be filed under
this Section 3.1 or suspend the effectiveness of any Registration Statement
filed pursuant to this Section 3.1 (or, without suspending such effectiveness,
instruct the Holders that no offers or sales of Registrable Securities include
din such Registration Statement may be made (and the Holders shall forthwith
discontinue disposition of any such Registrable Securities) if (i) the Company
is in possession of material non-public information related to a proposed
financing, recapitalization, acquisition, business combination or other material
transaction and the Board of Directors of the Company determines (in good faith
in a written resolution) that disclosure of such information would have a
material adverse effect on the business or operations of the Company and its
subsidiaries and disclosure of such information is not otherwise required by law
and (ii) the Company delivers notice (which shall include a copy of the
resolution of the Board of Directors with respect to such determination) to the
requesting Holders and any placement agent or underwriting as contemplated by
Section 4.3(f) of the delay, the reasons therefor, the proposed length thereof;
provided, however, that the Company may deliver only two such notices within any
twelve-month period. Promptly upon the earlier of (x) public disclosure of such
material non-public information, (y) the date on which such non-public
information is no longer material and (z) 90 days after the date notice is given
by the Company pursuant to clause (ii) above, the Company shall file, supplement
or amend the Demand Registration Statement as required by the immediately
preceding sentence and, in the case of the suspension of effectiveness or
resales of Registrable Securities give notice to the Holders of Registrable
Securities included therein that offers and sales under the Demand Registration
Statement may be resumed. The Company shall give prompt written notice to the
Holders of the termination of any Suspension Period.
(d) If any Person owning any securities of the Company (other than any
Holder) registers securities of the Company in a Demand Registration (in
accordance with the provisions of this Section 3.1, such Person shall pay the
fees and expenses of counsel to such Person and its pro rata share of the
Registration Expenses if the Registration Expenses for such registration are not
paid by the Company for any reason. The Company covenants that it shall not
grant any registration rights to any Person which rights would, in the
reasonable judgment of Purchaser or, if after the Resale Date, the Required
Holders conflict or be inconsistent with the provisions of this Section 3.1(d),
and in the event of such a conflict or inconsistency, the terms of this Section
3.1(d) shall prevail.
(e) The Company shall not be required to provide an Underwritten Offering
of the Registrable Securities. If Purchaser or, if after the Resale Date, the
Required Holders, so elect
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and the Company agrees to participate in its sole discretion, the offering of
such Registrable Securities pursuant to such Demand Registration shall be in the
form of an Underwritten Offering. If a Demand Registration involves an
Underwritten Offering, (i) Purchaser or, if after the Resale Date, the Required
Holders shall have the right to select the investment banker or bankers and
manager or managers to administer the offering (provided that such investment
bankers and managers must be reasonably satisfactory to the Company), and (ii)
Purchaser or, if after the Resale Date, the Required Holders, as the case may
be, shall have the right to select one counsel to represent the Holders
reasonably acceptable to the Company.
3.2 Piggy-Back Registration. If, at any time or from time to time while
any Registrable Securities are outstanding, the Company proposes to register any
of its securities (whether for its own or others' account) under the Securities
Act (other than by a Registration Statement on Form S-8 or Form S-4 or other
form that does not include substantially the same information as would be
required in a form for the general registration of securities or that would not
be available for registration of Registrable Securities), the Company shall
promptly give written notice to the Holders of the Company's intention to effect
such registration. If, within 15 days after receipt of such notice, any Holder
submits a written request to the Company specifying the Registrable Securities
such Holder proposes to sell or otherwise dispose of (a "Piggy-Back
Registration"), the Company shall include the number of shares of Registrable
Securities specified in such Holder's request in such Registration Statement and
the Company shall use its reasonable best efforts to keep each such Registration
Statement in effect and to maintain compliance with Federal and state Securities
and Blue Sky laws and regulations for the period necessary for such Holder to
effect the proposed sale or other disposition. Any Holder participating in an
Underwritten Offering pursuant to this Section 3.2 shall, if required by the
managing underwriter or underwriters of such offering, enter into an
underwriting agreement in a form customary for Underwritten Offerings of the
same general type as such offering.
Unless a Holder, or a person acting on behalf of a Holder, has commenced
a distribution thereunder, nothing in this Section 3.2 will create any liability
on the part of the Company to the Holders of Registrable Securities if the
Company for any reason should decide not to file a Registration Statement
proposed to be filed under the preceding paragraph or to withdraw such
Registration Statement subsequent to its filing, regardless of any action
whatsoever that a Holder may have taken, whether as a result of the issuance by
the Company of any notice hereunder or otherwise.
3.3 Reduction of Offering. Notwithstanding anything contained herein, if
the managing underwriter or underwriters of an offering described in Section 3.1
or 3.2 hereof delivers a written opinion to the Holders that the size of the
offering that the Holders, the Company or any other Person intends to make or
the kind or combination of securities that the Holders, the Company and any
other Persons intend to include in such offering are such that the success of
the offering would be materially and adversely affected by inclusion of the
Registrable Securities requested to be included, then the amount of any
securities proposed to be offered shall be reduced or excluded for the offering
as follows:
(a) in the case of a Demand Registration, (x) all securities proposed
to be included in such offering by Persons other than the Holders shall be
reduced or excluded from
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such offering on a pro rata basis (or on another basis agreed to by such other
Persons) before any Registrable Securities of the Holders are reduced or
excluded from such offering, and (y) in the event that any Registrable
Securities of the Holders are required to be reduced or excluded from such
offering (which will only be required after all securities of Persons other than
the Holders have been excluded entirely as provided in immediately preceding
clause (x)), then the number of Registrable Securities of the Holders shall be
reduced or excluded from such offering on a pro rata basis;
(b) in the case of a Piggy-Back Registration initiated by a Person
other than the Company, all securities (including Registration Securities) to be
included in such offering by the Company, the Holders and the holders of similar
"piggy-back" registration rights shall be reduced or excluded from such offering
on a pro rata basis before any securities of the Persons initiating the
Piggy-Back Registration are reduced or excluded; and
(c) in the case of a Piggy-Back Registration initiated by the
Company, all securities (including Registrable Securities) to be included in
such offering by the Holders, and any other holders of similar "piggy-back"
registration rights shall be reduced or excluded from such offering on a pro
rata basis before any securities of the Company are reduced or excluded.
Section 4. Registration Procedures.
If the Company files a Registration Statement pursuant to Section 2(a),
2(b), 2(c), 3.1 or 3.2, the following provisions shall apply:
4.1 General.
(a) At or before the Effective Time of the Exchange Offer, the Shelf
Registration, the Marketing Making Shelf Registration or a Demand or Piggy-back
Registration, whichever may be first, the Company shall qualify the Indenture
under the Trust Indenture Act.
(b) In the event that such qualification would require the
appointment of a new trustee under the Indenture, the Company shall appoint a
new trustee thereunder pursuant to the applicable provisions of the Indenture.
4.2 Exchange Offer. In connection with the Company's obligations with
respect to the registration of Exchange Securities as contemplated by Section
2(a) hereof (the "Exchange Registration"), if applicable, the Company shall, as
soon as practicable (or as otherwise specified):
(a) prepare and file with the Commission, as soon as practicable but
no later than 60 days after the Closing Date, an Exchange Registration Statement
on any form which may be utilized by the Company and which shall permit the
Exchange Offer and resales of Exchange Securities by Broker-dealers during the
Resale Period to be effected as contemplated by Section 2(a), and use its best
efforts to cause such Exchange Registration Statement to become effective as
soon as practicable thereafter, but no later than 150 days after the Closing
Date;
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(b) as soon as practicable prepare and file with the Commission such
amendments and supplements to such Exchange Registration Statement and the
Prospectus included therein as may be necessary to effect and maintain the
effectiveness of such Exchange Registration Statement for the periods and
purposes contemplated in Section 2(a) hereof and as may be required by the
applicable rules and regulations of the Commission and the instructions
applicable to the form of such Exchange Registration Statement, and promptly
provide each Broker-dealer holding Exchange Securities with such number of
copies of the Prospectus included therein (as then amended or supplemented), in
conformity in all material respects with the requirements of the Securities Act
and the TIA and the rules and regulations of the Commission thereunder, as such
Broker-dealer reasonably may request prior to the expiration of the Resale
Period, for use in connection with resales of Exchange Securities;
(c) promptly notify each Broker-dealer that has requested or received
copies of the Prospectus included in such Exchange Registration Statement, and
confirm such advice in writing, (i) when such Exchange Registration Statement or
the Prospectus included therein or any amendment or supplement thereto has been
filed, and, with respect to such Exchange Registration Statement or any
post-effective amendment, when the same has become effective, (ii) of any
comments by the Commission and by the Blue Sky or securities commissioner or
regulator of any State with respect thereto or of any request by the Commission
for amendments or supplements to such Exchange Registration Statement or
Prospectus or for additional information, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of such Exchange
Registration Statement or the initiation or threatening of any proceedings for
that purpose, (iv) if at any time the representations and warranties of the
Company contemplated by Section 7 cease to be true and correct in all material
respects, (v) of the receipt by the Company of any notification with respect to
the suspension of the qualification of the Exchange Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose, or (vi) at any time during the Resale Period when a Prospectus is
required to be delivered under the Securities Act, that such Exchange
Registration Statement, Prospectus, Prospectus amendment or supplement or
post-effective amendment does not conform in all material respects to the
applicable requirements of the Securities Act and the TIA and the rules and
regulations of the Commission thereunder or contains an untrue statement of a
material fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading in the light of the
circumstances then existing;
(d) in the event that the Company would be required to provide notice
pursuant to Section 4.2(c)(vi) to any Broker-dealers holding Exchange
Securities, without unreasonable delay prepare and furnish to each such Holder a
reasonable number of copies of a Prospectus supplemented or amended so that, as
thereafter delivered to purchasers of such Exchange Securities during the Resale
Period, such Prospectus shall conform in all material respects to the applicable
requirements of the Securities Act and the TIA and the rules and regulations of
the Commission thereunder and shall not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances then existing;
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(e) use its best efforts to obtain the withdrawal of any order
suspending the effectiveness of such Exchange Registration Statement or any
post-effective amendment thereto at the earliest practicable date;
(f) use its best efforts to (A) register or qualify the Exchange
Securities under the securities laws or Blue Sky laws of such jurisdictions as
are contemplated by Section 2(a), no later than the commencement of the Exchange
Offer, (B) keep such registrations or qualifications in effect and comply with
such laws so as to permit the continuance of offers, sales and dealings therein
in such jurisdictions until the expiration of the Resale Period and (C) take any
and all other actions as may be reasonably necessary or advisable to enable each
Broker-dealer holding Exchange Securities to consummate the disposition thereof
in such jurisdictions during the Resale Period; provided, however, that the
Company shall not be required for any such purpose to (1) qualify as a foreign
corporation in any jurisdiction wherein it would not otherwise be required to
qualify but for the requirements of this Section 4.2(f), (2) consent to general
service of process in any such jurisdiction or (3) make any changes to its
certificate of incorporation or by-laws or any agreement between it and its
stockholders;
(g) use its best efforts to obtain the consent or approval of each
governmental agency or authority, whether federal, state or local, which may be
required to effect the Exchange Registration, the Exchange Offer and the
offering and sale of Exchange Securities by Broker-dealers during the Resale
Period;
(h) provide a CUSIP number for all Exchange Securities, not later
than the Effective Time of the Exchange Registration Statement; and
(i) comply with all applicable rules and regulations of the
Commission, and make generally available to its securityholders as soon as
practicable but no later than fifteen months after the effective time of such
Exchange Registration Statement, an earnings statement of the Company and its
subsidiaries complying with Section 11(a) of the Securities Act (including, at
the option of the Company, Rule 158 thereunder).
4.3 Shelf Market Making, Demand and Piggy-back Registration In connection
with the Company's obligations with respect to the Shelf Registration, the
Market Making Shelf Registration and a Demand or Piggyback Registration, as
applicable, the Company shall:
(a) (A) prepare and file with the Commission, (as soon as
practicable, but in any case within the time periods prescribed by Section 2(a),
2(b), 2(c), 3.1 or 3.2, as applicable, a Registration Statement (including all
exhibits and financial statements required by the Commission to be filed
therewith) on any form for which the Company then qualifies or which counsel for
the Company shall deem appropriate and which form shall be available for the
sale of the Registrable Securities to be registered thereunder in accordance
with the intended method of distribution thereof (and, in the case of the Market
Making Shelf Registration Statement, in a form approved by Purchaser), and (B)
use its best efforts to cause such Registration
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Statement to become effect as soon as practicable after filing, but in any event
within the time periods specified in Section 2(a), 2(b), 2(c), 3.1 or 3.2, as
applicable; prepare and file with the Commission such amendments, post-effective
amendments and supplements to such Registration Statement as may be required by
Purchaser (or, if after the Resale Date, the Required Holders) or as may be
necessary to keep the Registration Statement effective for the period specified
in Section 2(a), 2(b), 2(c), 3.1 or 3.2, as applicable (or such shorter period
which will terminate when all Registrable Securities covered by such
Registration Statement have been sold or withdrawn), or, if such Registration
Statement relates to an Underwritten Offering, or such longer period as in the
opinion of counsel for the underwriters a Prospectus is required by law to be
delivered in connection with sales of Registrable Securities by an underwriter
or dealer (and, in the case of the Market Making Shelf Registration Statement,
in a form approved by Purchaser), cause the Prospectus to be supplemented by any
required Prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 under the Securities Act; and comply with the provisions of the
Securities Act, the Exchange Act, and the rules and regulations promulgated
thereunder with respect to the disposition of all securities covered by such
Registration Statement during the applicable period in accordance with the
intended method or methods of distribution by the sellers thereof set forth in
such Registration Statement or supplement to the Prospectus (and, in the case of
the Market Making Shelf Registration Statement, in a form approved by
Purchaser); provided that if the Holders specify that such registration shall be
a Shelf Registration and the Company is eligible to use a Registration Statement
on Form S-3, the Company shall use its best effort to effect such Shelf
Registration and to keep such Shelf Registration effective for a period of not
less than two years (or such shorter period which will terminate when all
Registrable Shares covered by such Shelf Registration have been sold or may be
resold reasonable without registration under the Securities Act pursuant to Rule
144(k) or the equivalent thereunder);
(b) in the case of a Secondary Offering Shelf Registration Statement,
not less than 30 calendar days prior to the Effective Time of the Registration
Statement, mail the Notice and Questionnaire to the Holders of Registrable
Securities; no Holder shall be entitled to be named as a selling securityholder
in the Registration Statement as of the Effective Time, and no Holder shall be
entitled to use the Prospectus forming a part thereof for resales of Registrable
Securities at any time, unless such Holder has returned a completed and signed
Notice and Questionnaire to the Company by the deadline for response set forth
therein; provided, however, Holders of Registrable Securities shall have at
least 30 days from the date on which the Notice and Questionnaire is first
mailed to such Holders to return a completed and signed Notice and Questionnaire
to the Company;
(c) prior to filing a Registration Statement or Prospectus or any
amendment or supplement thereto, furnish to the Holders of Registrable
Securities and each underwriter, if any, of the Registrable Securities covered
by such Registration Statement copies of such Registration Statement as proposed
to be filed, and thereafter furnish to the Holders requesting registration of
Registrable Securities and the underwriters, if any, such number of copies of
such Registration Statement, each amendment and supplement thereto (in each case
including all exhibits thereto and documents incorporated by reference therein),
the Prospectus included in such Registration Statement (including preliminary
Prospectus) and such other documents as such Holders or underwriter may
reasonably request in order to facilitate the disposition of the Registrable
Securities owned by such Holders prior to its filing or being used;
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(d) comply with the provisions of the Securities Act with respect to
the disposition of all of the Registrable Securities, or Exchange Securities, as
applicable, covered by such Registration Statement in accordance with the
intended methods of disposition provided for therein;
(e) provide Purchaser, each Holder and the underwriters (which term,
for purposes of this Agreement, shall include a person deemed to be an
underwriter within the meaning of Section 2(a) (11) of the Securities Act), if
any, thereof, the sales or placement agent, if any, therefor, and one counsel
(and any local counsel) for such underwriters, the opportunity to participate in
the preparation of such Registration Statement, each Prospectus included therein
or filed with the Commission and each amendment or supplement thereto;
(f) promptly notify the selling Holders of Registrable Securities and
the underwriters, if any, and (if requested) confirm such advice in writing, as
soon as practicable after notice thereof is received by the Company (i) when the
Registration Statement or the Prospectus included therein or any amendment or
supplement thereto has been filed or becomes effective, and to furnish such
selling Holders and underwriters with executed copies thereof and of any
documents incorporated by reference therein, (ii) of any comments by the
Commission and by the Blue Sky or securities commissioner or regulator of any
State with respect thereto or of any request by the Commission or any other
federal or state governmental authority for amendments or supplements to the
Registration Statement or the Prospectus or for additional information, (iii) of
the receipt by the Company of any notification with respect to the suspension of
the qualification of the Registrable Securities for offering or sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose, (iv) if at any time the representations and warranties of the Company
contemplated by Section 7 cease to be true and correct in all material respects
and (v) if at any time when a Prospectus is required to be delivered under the
Securities Act, that such Registration Statement, Prospectus, amendment or
supplement does not conform in all material respects to the applicable
requirements of the Securities Act and the TIA and the rules and regulations of
the Commission thereunder or contains an untrue statement of a material fact or
omits to state any material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances the
existing;
(g) after the filing of the Registration Statement, promptly notify
the Holders of any stop order issued or threatened by the Commission suspending
the effectiveness of the Registration Statement or any order preventing or
suspending the use of any preliminary or final Prospectus or the initiation or
threatening of any proceedings for such purpose, and use its best efforts to
prevent the entry of such stop order or to remove it if entered;
(h) in the event that the Company would be required to provide notice
pursuant to Section 4.3(f) or (g) to the Holders, without unreasonable delay,
prepare and furnish to each Holder a reasonable number of copies of a Prospectus
supplemented or amended so that, as thereafter delivered to purchasers of
Securities covered by such Prospectus, such Prospectus shall confirm in all
material respects to the applicable requirements of the Securities Act and the
TIA and the rules and regulations of the Commission thereunder and shall not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or
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necessary to make the statements therein not misleading in light of the
circumstances then existing;
(i) use its best efforts to (i) register or qualify the Registrable
Securities to be included in the Registration Statement under such other
securities or blue sky laws of such jurisdictions in the United States as
Purchaser (or, if after the Resale Date, the Required Holders) or the
underwriters, if any, request, (ii) keep such registrations or qualifications in
effect and comply with such laws so as to permit the continuance of offers,
sales and dealings therein in such jurisdictions during the period the
Registration Statement is required to remain effective under Section 2(a), 2(b),
2(c), 3.1 or 3.2, as applicable, and for so long as may be necessary to enable
the Holders of Registrable Securities included in such Registration Statement
or, if an Underwritten Offering, the underwriters, to complete their
distribution of Registrable Securities pursuant to the Registration Statement
and (iii) take any and all other actions as may be reasonably necessary or
advisable to enable the Holders to consummate the disposition of the Registrable
Securities; provided that the Company will not be required to (A) qualify
generally to do business in any jurisdiction where it would not otherwise be
required to qualify but for this paragraph (i), (B) subject itself to taxation
in any such jurisdiction or (C) consent to general service of process in any
jurisdiction;
(j) if requested by the managing underwriter or underwriters or a
Holder of Registrable Securities being sold in connection with an Underwritten
Offering, promptly incorporate in a Prospectus supplement or post-effective
amendment such information as the managing underwriters and Purchaser (or, if
after the Resale Date, the Required Holders) agree should be included therein
relating to the plan of distribution with respect to such Registrable
Securities, including, without limitation, information with respect to the
number of Registrable Securities being sold to such underwriters, the purchase
price being paid therefor by such underwriters and with respect to any other
terms of the Underwritten (or best efforts underwritten) Offering of the
Registrable Securities to be sold in such offering; and make all required
filings of such Prospectus supplement or post-effective amendment as soon as
practicable after being notified of the matters to be incorporated in such
Prospectus supplement or post-effective amendment;
(k) make available for inspection by Purchaser, the Holders of
Registrable Securities, any underwriter participating in any disposition
pursuant to such Registration Statement and any attorney, accountant or other
professional retained by Purchaser, such Holders or such underwriter
(collectively, the "Inspectors"), all financial and other records, pertinent
corporate documents and properties of the Company (collectively, the "Records")
as shall be reasonably necessary to enable them to exercise their due diligence
responsibility, and cause appropriate officers, directors and employees of the
Company to make available all information reasonably requested by any Inspectors
in connection with such Registration Statement. Records which the Company
determines, in good faith, to be confidential and which it notifies the
Inspectors are confidential shall not be disclosed by the Inspectors unless (i)
the disclosure of such Records is necessary to avoid or correct a misstatement
or omission in such Registration Statement or (ii) the release of such records
is ordered pursuant to a subpoena or other order from a court of competent
jurisdiction. Each Holder agrees that information obtained by it as a result of
such inspections shall be deemed confidential and, upon the reasonable request
of the
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Company, shall execute a confidentiality agreement with the Company in form and
substance reasonably satisfactory to the Company and the Holder, and shall not
be used by it as the basis for any market transactions in the securities of the
Company or its Affiliates unless and until such is made generally available to
the public;
(l) furnish to each selling Holder of Registrable Securities and the
underwriters, if any, without charge, one executed copy and as many conformed
copies as they may reasonably request, of the Registration Statement and any
amendment or post-effective amendment thereto, including financial statements
and schedules, all documents incorporated therein by reference and all exhibits
(including those incorporated by reference);
(m) deliver to each selling Holder of Registrable Securities and the
underwriters, if any, without charge, as many copies of the Prospectus
(including each preliminary Prospectus) and any amendment or supplement thereto
as such Persons may reasonably request (it being understood that the Company
consents to the use of the Prospectus or any amendment or supplement thereto by
each of the selling Holders of Registrable Securities and the underwriters, if
any, in connection with the offering and sale of the Registrable Securities
covered by the Prospectus or any amendment or supplement thereto) and such other
documents as such selling Holder may reasonably request in order to facilitate
the disposition of the Registrable Securities by such Holder;
(n) cooperate with the selling Holders of Registrable Securities and
the underwriter, if any, to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold and not bearing any
restrictive legends; and enable such Registrable Securities to be in such
denominations and registered in such names as the underwriters may request;
(o) use its best efforts to cause the Registrable Securities covered
by the applicable Registration Statement to be registered with or approved by
such other governmental agencies or authorities as may be necessary to enable
the seller or sellers thereof or the underwrites, if any, to consummate the
disposition of such Registrable Securities;
(p) not later than the Effective Time of the applicable Registration
Statement, provide a CUSIP number for all Registrable Securities and provide the
applicable transfer agent with printed certificates for the Registrable
Securities which are in a form eligible for deposit with The Depository Trust
Company;
(q) make such representations and warranties to the Holders of
Registrable Securities being registered, and the underwriters or agents, if any,
in form, substance and scope as are customarily made by issuers in primary
underwritten public offerings;
(r) enter into such customary agreements (including underwriting
agreements) and take all such other appropriate actions as (and, in the case of
the Market Making Shelf Registration Statement, in a form approved by Purchaser)
or the underwriters, if any, reasonably request in order to expedite or
facilitate the registration and disposition of such Registrable Securities;
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(s) obtain for delivery to the Holders of Registrable Securities
being registered and to the underwriters, if any, an opinion or opinions from
counsel for the company in customary form, scope and substance covered in
opinions in comparable offerings, which counsel and opinions shall be reasonably
satisfactory to such Holders, underwriters or agents and their respective
counsel;
(t) obtain for delivery to the Company and the underwriters, if any,
with copies to the Holders of Registrable Securities, a cold comfort letter from
the Company's independent certified public accountants in customary form and
covering such matters of the type customarily covered by cold comfort letters as
the underwriters or reasonably request, dated the Effective Time of the
Registration Statement and brought down to the closing date;
(u) cooperate with each seller of Registrable Securities and each
underwriter, if any, participating in the disposition of such Registrable
Securities and their respective counsel in connection with any filings required
to be made with the NASD;
(v) use its best efforts to comply with all applicable rules and
regulations of the Commission and make generally available to its
securityholders, as soon as reasonably practicable (but not more than fifteen
months) after the effective time of the Registration statement, an earnings
statement satisfying the provisions of Section 11(a) of the Securities Act and
the rules and regulations promulgated thereunder;
(w) provide and cause to be maintained a transfer agent and registrar
for all Registrable Securities covered by such Registration Statement from and
after a date not later than the Effective Time of such Registration Statement;
(x) use best efforts to cause all Registrable Securities covered by
the Registration Statement to be listed on each securities exchange on which any
of the Company's securities are then listed or quoted and on each inter-dealer
quotation system on which any of the Company's securities are then quoted; and
(y) use reasonable efforts to make available the senior executive
officers of the Company to participate in the customary "road show"
presentations that may be reasonably requested by the Holders and the
underwriters in any Underwritten Offering; provided that the participation of
such senior executive officers shall not unreasonably interfere with the conduct
of their duties to the Company.
The Company may require the Holders including of Registrable
Securities in the Registration Statement to promptly furnish in writing to the
Company such information regarding the distribution of the Registrable
Securities as the Company may from time to time reasonably request and such
other information as may be legally required in connection with such
registration.
The Holders agree that, upon receipt of any notice from the Company
of the happening of any event of the kind described in Section 4.3(f) or (g)
hereof, the Holders will forthwith discontinue disposition of any Registrable
Securities pursuant to the Registration
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Statement covering such Registrable Securities until the Holders' receipt of the
copies of the supplemented or amended Prospectus contemplated by Section 4.3(h)
hereof, and, if so directed by the Company, the Holders will deliver to the
Company all copies, other than permanent file copies then in such Holders'
possession, of the most recent Prospectus covering such Registrable Securities
at the time of receipt of such notice. In the event the Company shall give such
notice, the Company shall extend the period during which such Registration
Statement shall be maintained effective pursuant to Section 2(b), 2(c), 3.1 or
3.2 hereof, as applicable, by the number of days during the period from and
including the date of the giving of notice pursuant to Section 4.3(f) or (g)
hereof to the date when the Company shall make available to the Holder a
Prospectus supplemented or amended to conform with the requirements of Section
4.3(h) hereof.
4.4 Holdback Agreement. The Company and its affiliates agree (i) not to
effect any public sale or distribution of any Registrable Securities or any
securities similar to the Registrable Securities, or any securities convertible
into or exchangeable or exercisable for Registrable Securities or any securities
similar to the Registrable Securities, during the 14 days prior to, and during
the 90-day period beginning on, or (in each case) such shorter period of time as
may be required by the managing underwriter in an Underwritten Offering, the
Effective Time of any Registration Statement filed pursuant to Section 2(a),
2(b), 2(c), 3.1 or 3.2 of this Agreement with respect to an underwritten public
offering of any such securities (except as part of such Registration Statement
where the Holders consents) or the commencement of a public distribution of
Registrable Securities; and (ii) to use their best efforts to ensure that any
agreement entered into after the date of the agreement pursuant to which the
Company issues or agrees to issue any privately placed securities shall contain
a provision under which holders of such securities agree not to effect any
public sale or distribution of any such securities during the periods described
in (i) above, in each case including a sale pursuant to Rule 144 under the
Securities Act (except as part of any such registration, if permitted);
provided, however, that the provisions of this paragraph shall not prevent the
(x) conversion or exchange of any securities pursuant to their terms into or for
other securities, (y) the issuance of securities pursuant to the Company's
employee benefit plans, (z) sale or distribution of securities in connection
with any merger or consolidation by the Company, or the acquisition by the
Company of the capital stock or substantially all of the assets of any other
Person.
4.5 Specific Enforcement. The Company and each of the Holders acknowledge
that remedies at law for the enforcement of this Section 4 may be inadequate and
intend that this Section 4 shall be specifically enforceable in accordance with
Section 10(b) hereof.
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Section 5. Registration Expenses
All Expenses incident to the Company's performance of or compliance
with this Agreement will be paid by the Company, regardless of whether the
Registration Statement becomes effective (unless it does not become effective as
a result of any act or omission on the part of any Holder whose Registrable
Securities are included therein, in which case such Expenses shall be paid by
such Holder and, upon payment of such Expenses, if the registration was a Demand
Registration, such registration shall not count as a Demand Registration for
purposes of the Holders' demand registration rights under Section 3.1 hereof),
including without limitation (i) all registration and filing fees, and any other
fees and expenses associated with filings required to be made with the
Commission or the NASD (including, if applicable, the fees and expenses of any
"qualified independent underwriter" and its counsel as may be required by the
rules and regulations of the NASD), (ii) all fees and expenses of compliance
with state securities or Blue Sky laws (including fees and disbursements or
counsel for the underwriters or selling Holders in connection with Blue Sky
qualifications of the Registrable Securities and determination of their
eligibility for investment under the laws of such jurisdictions as the managing
underwriters or Holders of a majority of the Registrable Securities being sold
may designate), (iii) all printing, messenger, telephone and delivery expenses
(including expenses of printing certificates for the Registrable Securities in a
form eligible for deposit with The Depository Trust Company and of printing
Prospectuses), (iv) all fees and disbursements incurred in connection with the
listing of the Registrable Securities on any securities exchange or quotation of
the Registrable Securities on any inter-dealer quotation system, including all
rating agency fees, (vii) all reasonable fees and disbursements of one counsel
selected by Purchaser (and, if after the Resale Date, the Required Holders),
(viii) all fees and disbursements of underwriters customarily paid by the
issuers or sellers of securities, excluding underwriting discounts and
commissions and transfer taxes, if any, attributable to the sale of Registrable
Securities and the fees and expenses of counsel to the underwriters other than
as provided in clause (ii) above, (ix) all fees and expense of accountants to
the Holders of Registrable Securities being sold and (x) fees and expenses of
other Persons retained by the Company (all such expenses being herein called
"Registration Expenses"). The Company will, in any event, pay its internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expense of
any audit and the fees and expenses (including, without limitation, all salaries
and expenses of its officers and employees performing legal or accounting
duties), the expense of any audit and the fees and expenses of any Person,
including special experts, retained by the Company.
Section 6. Indemnification and Contribution.
(a) In connection with each Registration Statement relating to the
disposition of the Registrable Securities, the Company shall indemnify and hold
harmless each of the Holders, each underwriter of Registrable Securities, each
partner, officer, director or employee of each of the Holders or any such
underwriter and each Person, if any, who controls (within the meaning of either
the Securities Act or the Exchange Act) any of the Holders or any such
underwriter against all losses, claims, damages, liabilities, joint or several,
to which any of the Holders, such underwriter or any such Person may be subject
to arising out of or based upon (A) any untrue statement or alleged untrue
statement of a material fact contained in such Registration Statement
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or the Prospectus included therein (or any supplement or amendment thereto) or a
preliminary Prospectus, or (B) any omission or alleged omission to state therein
or necessary to make the statements therein not misleading, and the Company
shall reimburse each of the Holders and each of such other Persons for any
reasonable legal or other expenses incurred in connection with the investigation
or defense thereof (any such reimbursement to be made as such expenses are
incurred upon presentation of any requested documentation); provided, however,
that the Company shall not be liable in any such instance to the extent that any
such loss, claim, damage or liability arises out of or is based upon any untrue
statement or omission or alleged untrue statement or omission made in any such
Registration Statement, preliminary Prospectus, or Prospectus (or amendment or
supplement) in reliance upon and in conformity with information relating to any
Person referred to above who would be indemnified by the Company pursuant to
this Section 6(a) furnished in writing to the Company by such Person expressly
for use therein. Notwithstanding the foregoing provisions of this Section 6(a),
the Company will not be liable to any Holder of Registrable Securities (or any
partner, officer, director or employee thereof), any underwriter or any other
Person, if any, who controls (within the meaning of the Securities Act or the
Exchange Act) any of the Holders or any such underwriter, under the
indemnification obligations in this Section 6(a) for any such loss, claim,
damage, liability (or action or proceeding in respect thereof) or expense that
arises out of such Holder's or other Person's failure to send or deliver a copy
of the final Prospectus to the person asserting an untrue statement or alleged
untrue statement or omission or alleged omission at or prior to the written
confirmation of the sale of the Registrable Securities to such person if such
statement or omission was corrected in such final Prospectus and the Company had
previously furnished copies thereof to such Holder or such other Person in
accordance with this Agreement.
(b) In connection with each registration relating to the disposition
of Registrable Securities, each Holder shall furnish to the Company in writing
such information, including the name and address of, and the amount of
Registrable Securities held by, such Holder, as the Company reasonably requests
for use in such Registrable Securities or the related Prospectus. The Company
may require, as a condition to including any Registrable Securities in any Shelf
Registration filed pursuant to Section 2(b), 3.1 or 3.2 hereof and to entering
into any underwriting agreement with respect thereto, that the Company shall
have received an undertaking reasonably satisfactory to it from the Selling
Holders and from each underwriter named in any such underwriting agreement,
severally and not jointly, to (i) indemnify and hold harmless the Company, and
all other Holders of Registrable Securities, against any losses, claims, damages
or liabilities to which the Company, or such other Holders of Registrable
Securities may become subject, under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in such Registration Statement, or any preliminary,
final or summary Prospectus contained therein or furnished by the Company to any
such Holder or underwriter, or any amendment or supplement thereto, 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, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company by such Holder or underwriter expressly for use
therein, and (ii) reimburse the Company for any legal or other expenses
reasonably incurred by the
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Company in connection with investigating or defending any such action or claim
as such expenses are incurred. The maximum liability of any Holder under this
Section 6(b) shall be limited to the aggregate amount of all sales proceeds
actually received by such Holder upon the sale of such Holder's Registrable
Securities in connection with such registration.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any Person in respect of which indemnity may be
sought pursuant to subsections (a) or (b) of this Section 6, such person the
(the "indemnified party") shall promptly notify the Person against whom such
indemnity may be sought (the "indemnifying party") in writing of the
commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it wishes, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party, and after notice from the indemnifying
part to such indemnified of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under these
indemnification provisions for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof, unless in the reasonable judgment of any
indemnified party a conflict of interest is likely to exist, based on the
written opinion of counsel, between such indemnified party will be obligated to
pay the reasonable fees and expenses of such additional counsel. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its prior written consent (which shall not be unreasonably
withheld) but if settlement with such consent, the indemnifying party agrees to
indemnify the indemnified part from and against any loss or liability by reason
of such settlement. No indemnifying party shall, without the prior written
consent (which shall not be unreasonably withheld) of the indemnified party,
effect any settlement of any pending or threatened proceeding in respect of
which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
arising out of such proceeding.
(d) If the indemnification provided for in this Section 6 is
unavailable to the indemnified parties in respect of any losses, claims, damages
or liabilities referred to herein, then each such 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, claims, damages or
liabilities as between the Company on the one hand and the respective Holder or
underwriter on the other, in such proportion as is appropriate to reflect the
relative fault of the Company on the one hand and such Holder or underwriter on
the other in connection with the statements or omissions which resulted in such
loses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company on the one hand and of the
respective Holder or underwriter on the other shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by such party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and each Holder agree that it would not be just and
equitable if contribution pursuant to this Section 6(d) were determined by pro
rata allocation or by any other
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method of allocation which does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages or
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6(d), (i) no Holder shall be required to contribute
any amount in excess of the amount of all sales proceeds actually received by
such Holder upon the sale of such Holder's Registrable Securities in connection
with such registration and (ii) no underwriter shall be required to contribute
any amount in excess of the amount of the underwriting discount or commission
applicable to the Registrable Securities underwritten by it. 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.
(e) The obligations of the Company under this Section 6 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each officer, director and partner of
Purchaser, each Holder, agent and underwriter and each person, if any, who
controls Purchaser, any Holder, agent or underwriter within the meaning of the
Securities Act.
Section 7. Representations and Warranties.
The Company represents and warrant to, and agrees with, Purchaser and
each of the Holders from time to time of Registrable Securities that:
(a) Each Registration Statement covering Registrable Securities,
Securities or Exchange Securities and each Prospectus (including any preliminary
or summary Prospectus) contained therein or furnished pursuant to Section 4.2 or
4.3 hereof and any further amendments or supplements to any such Registration
Statement or Prospectus, when it becomes effective or is filed with the
Commission, as the case may be, and, in the case of an underwritten offering of
Registrable Securities, Securities or Exchange Securities, at the time of the
closing under the underwriting agreement relating thereto, will conform in all
material respects to the requirements of the Securities Act and the TIA and the
rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading;
and at all times subsequent to the applicable Effective Time when a Prospectus
would be required to be delivered under the Securities Act, other than (A) from
(i) such time as a notice has been given to Holders of Registrable Securities or
Purchaser, as applicable, pursuant to Section 4.2(c) or 4.3(f) or (g) hereof
until (ii) such time as the Company furnishes an amended or supplemented
Prospectus pursuant to Section 4.2(d) or 4.3(h) hereof or (B) during any
suspension of offering and sale pursuant to Section 4.2(c) or 4.3(f) or (g)
hereof, each such Registration Statement, and each Prospectus (including any
summary Prospectus) contained therein or furnished pursuant to Section 4.2(d) or
4.3(h) hereof, as then amended or supplemented, will conform in all material
respects to the requirements of the Securities Act and the TIA and the rules and
regulations of the Commission of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances then
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existing; provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by a Holder of Registrable
Securities or Purchaser, as applicable, expressly for use therein.
(b) The compliance by the Company with all of the provisions of this
Agreement and the consummation of the transactions herein contemplated will not
conflict with or result in a breach of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
sale/leaseback agreement, loan agreement or other agreement or instrument to
which the Company or any subsidiary of the Company is a party or by which the
Company or any subsidiary of the Company is bound or to which any of the
property or assets of the Company or any subsidiary of the Company is subject
nor will such action result in any violation of the provisions of the
Certificate of Incorporation or Bylaws of the Company or any of its Subsidiaries
or any statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any of its Subsidiaries
or any of their properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental agency
or body is required for the consummation by the Company of the transactions
contemplated by this Agreement, except such as have been obtained or as may be
required in connection with the registration under the Securities Act of the
Registrable Securities, Securities or Exchange Securities, qualification of the
Indenture under the TIA, filings of reports by the Company under the Exchange
Act and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws in
connection with the offering and distribution of the Registrable Securities,
Securities or Exchange Securities.
(c) This Agreement has been duly authorized, executed and delivered by
the Company and, assuming due authorization, execution and delivery by
Purchaser, constitutes the valid and legally binding obligation of the Company,
enforceable against the Company in accordance with its terms, except to the
extent that enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or laws of general
applicability relating to or affecting creditors' rights and to general equity
principles.
Section 8. Underwritten Offerings.
(a) Selection of Underwriters. If any of the Registrable Securities in a
Demand Registration are to be sold pursuant to an Underwritten Offering, the
managing underwriter or underwriters thereof shall be designated by Purchaser
(and, if after the Resale Date, the Required Holders) to be included in such
offering, provided that such designated managing underwriter or underwriters is
or are reasonably acceptable to the Company.
(b) Participation by Holders. Each Holder of Registrable Securities
hereby agrees with each other such Holder that no such Holder may participate in
any Underwritten Offering hereunder unless such Holder (i) agrees to sell such
Holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
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attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
Section 9. Rule 144.
The Company covenants to the Holders of Registrable Securities, that to
the extent it shall be required to do so under the Exchange Act, the Company
shall timely file the reports required to be filed by it under the Exchange Act
or the Securities Act (including the reports under Sections 13 and 15(d) of the
Exchange Act and the information referred to in subparagraph (c)(1) of Rule 144
adopted by the Commission under the Securities Act) and the rules and
regulations adopted by the Commission thereunder, and shall take such further
action as any Holder of Registrable Securities, may reasonably request, all to
the extent required from time to time to enable such Holder to sell Registrable
Securities or Exchange Securities without registration under the Securities Act
within the limitations of the exemption provided by Rule 144 under the
Securities Act, as such rule may be amended from time to time, or any similar or
successor rule or regulation hereafter adopted by the Commission. Upon the
written request of any Holder of Registrable Securities or Purchaser in
connection with that Holder's sale pursuant to Rule 144, the Company shall
deliver to such Holder or Purchaser a written statement as to whether it has
complied with such requirements.
Section 10. Miscellaneous.
(a) No Inconsistent Agreements. The Company represents, warrants,
covenants and agrees that it has not granted, and shall not grant, registration
rights with respect to Registrable securities, Securities or Exchange Securities
or any other securities which would be inconsistent with the terms contained in
this Agreement.
(b) Specific Performance. The parties hereto acknowledge that there
would be no adequate remedy at law if the Company fails to perform any of its
obligations hereunder and that Purchaser and the Holders from time to time of
the Registrable Securities may be irreparably harmed by any such failure, and
accordingly agree that Purchaser and such Holders, in addition to any other
remedy to which they may be entitled at law or in equity, shall be entitled to
compel specific performance of the obligations of the Company under this
Agreement in accordance with the terms and conditions of Agreement, in any court
of the United States or any State thereof having jurisdiction.
(c) Notices. All notices, requests, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered by hand, if delivered personally or by courier, or
three days after being deposited in the mail (registered or certified mail,
postage prepaid, return receipt requested) or when sent by facsimile (with oral
confirmation) as follows:
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If to the Company:
Net2000 Communications, Inc.
0000 Xxx Xxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Chief Financial Officer and Treasurer
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
with a copy to:
Piper & Marbury, LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx Xxxxxx, Esq.
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
If to Purchaser:
Nortel Networks Inc. Nortel Networks Inc.
0 Xxxxxxx Xxxxxx GMS 991 15 A40
Xxxxxxxxx, Xxxxxxxxxxxxx 00000 0000 Xxxxxxxx Xxxxxxxxx
Attention: Vice President, Finance Xxxxxxxxxx, Xxxxx 00000
Carrier Packet Networks Attention: Vice President, Customer
Telecopy: (000) 000-0000 Finance North America
Telephone: (000) 000-0000 Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Nortel Networks Inc.
XX Xxx 000000
Xxxxxxxxxx, Xxxxx 00000-0000
Mail Stop 04D/02/A40
Attention: Xxxxxxxx Xxx, Loan
Administration
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
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with a copy to:
Xxxxx, Day, Xxxxxx & Xxxxx
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxxxxxxx Xxxxx, Esq.
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
If to a Holder:
at the address of such Holder set forth in the security register or
other records of the Company,
or to such other address as any party may have furnished to the other in writing
in accordance herewith.
(d) Parties in Interest. All the terms and provisions of this
Agreement shall be binding upon, shall inure to the benefit of and shall be
enforceable by the parties hereto and the Holders from time to time of the
Registrable Securities and their respective successors and assigns. In the event
that any transferee of any Holder of Registrable Securities shall acquire
Registrable Securities, in any manner, whether by gift, bequest, purchase,
operation of law or otherwise, such transferee shall, without any further
writing or action of any kind, be deemed a beneficiary hereof for all purposes
and such Registrable Securities shall be held subject to all of the terms of
this Agreement, and by taking and holding such Registrable Securities such
transferee shall be entitled to receive the benefits of, and be conclusively
deemed to have agreed to be bound by all of the applicable terms and provisions
of this Agreement. If the Company shall so request, any such successor, assign
or transferee shall agree in writing to acquire and hold the Registrable
Securities subject to all of the applicable terms hereof.
(e) Survival. The respective indemnities, agreements,
representations, warranties and each other provision set forth in this Agreement
or made pursuant hereto shall remain in full force and effect regardless of any
investigation (or statement as to the results thereof) made by or on behalf of
Purchaser or any Holder of Registrable Securities, any director, officer or
partner of Purchaser or such Holder, any agent or underwriter or any director,
officer or partner thereof, or any controlling person of any of the foregoing,
and shall survive delivery of and payment for the Securities pursuant to the
Purchase Agreement and the transfer and registration of Securities by such
Holder or Purchaser and the consummation of an Exchange Offer.
(f) Governing Law. This agreement shall be governed by and
construed in accordance with the laws of the State of New York without giving
effect to its conflicts of laws principles.
(g) Submission to Jurisdiction; Waivers. The Company hereby
irrevocably and unconditionally:
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(1) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the securities, or for recognition and
enforcement of any judgment in respect thereof, to the non-exclusive general
jurisdiction of the courts of the States of New York and Texas and the courts of
the United States of America for the Southern District of New York and the
Northern District of Texas, and appellate courts from any thereof;
(2) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(3) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail (or
any substantially similar form of mail), postage prepaid, to its address set
forth under its signature below or at such other address of which the Purchaser
shall have been notified; and
(4) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the right
to xxx in any other jurisdiction.
(h) Headings. The descriptive headings of the several Sections and
paragraphs of Agreement are inserted for convenience only, do not constitute a
part of this Agreement and shall not affect in any way the meaning or
interpretation of this Agreement.
(i) Entire Agreement; Amendments. This Agreement and the other writings
referred to herein (including the Purchase Agreement, the Indenture and the form
of Securities) or delivered pursuant hereto which form a part hereof contain the
entire understanding of the parties with respect to its subject matter. This
Agreement supersedes all prior agreements and understandings between the parties
with respect to its subject matter. 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) only by a written
instrument duly executed by the Company and Purchaser (and, if after the Resale
Date, the Required Holders). Each Holder of any Registrable Securities at the
time or thereafter outstanding shall be bound by any amendment or waiver
effected pursuant to this Section 8(h), whether or not any notice, writing or
marking indicating such amendment or waiver appears on such Registrable
Securities or is delivered to such Holder.
(j) Counterparts. This Agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered on this 30th day of July, 1999.
NET2000 COMMUNICATIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
----------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: President and CEO
NORTEL NETWORKS INC.
By: /s/ Xxx X. Xxxxxxxxxx
---------------------------------
Name: Xxx X. Xxxxxxxxxx
Title: Director, Customer Finance
30
