REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (the "AGREEMENT") dated as of October 2,
1996 by and between The Alpine Group, Inc., a Delaware corporation ("ALPINE"),
and Superior TeleCom Inc., a Delaware corporation (the "COMPANY").
This Agreement is being entered into in connection with the issuance
of certain shares of 6% Cumulative Preferred Stock, par value $1.00 per share
("SUPERIOR PREFERRED STOCK"), of Superior Telecommunications Inc., a Georgia
corporation, which by their terms will be exchangeable for shares of 6%
Cumulative Preferred Stock, par value $1.00 per share, of the Company ("TELECOM
PREFERRED STOCK");
In consideration of the foregoing, the parties hereby agree as
follows:
SECTION 1. DEFINITIONS.
As used in this Agreement, the following terms shall have the
following meanings:
"AFFILIATE" means, with respect to any specified Person, any other
Person who, directly or indirectly, controls, is controlled by, or is under
common control with such specified Person.
"BUSINESS DAY" means any day other than a day on which banks are
authorized or required to be closed in the State of New York.
"COMMISSION" means the Securities and Exchange Commission.
"COMPANY" shall have the meaning set forth in the preamble and shall
include the Company's successors by merger, acquisition, reorganization or
otherwise.
"CONTROLLING PERSONS" shall have the meaning set forth in Section
6(a).
"DAMAGES" shall have the meaning set forth in Section 6(a).
"DEMAND REGISTRATION" shall have the meaning set forth in Section
2(a).
"DEMAND REGISTRATION STATEMENT" shall have the meaning set forth in
Section 2(a).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended
from time to time, or any successor statute, and the rules and regulations of
the Commission promulgated thereunder.
"HOLDER" means Alpine and each Person (other than the Company and its
Affiliates) to whom Alpine or a Holder transfers Securities if such Person
acquires such Securities as Registrable Securities.
"HOLDERS' COUNSEL" means any counsel selected by Holders of a majority
in interest of the Registrable Securities.
"INSPECTORS" shall have the meaning set forth in Section 4(m).
"NASD" shall have the meaning set forth in Section 4(q).
"NASDAQ" shall have the meaning set forth in Section 4(o).
"OBJECTION NOTICE" shall have the meaning set forth in Section 4(a).
"OBJECTING PARTY" shall have the meaning set forth in Section 4(a).
"PERSON" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, limited liability company,
unincorporated organization or government or other agency or political
subdivision thereof.
"PIGGY-BACK REGISTRATION" shall have the meaning set forth in Section
3(a).
"PROSPECTUS" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
Registration Statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the Registrable
Securities covered by such Registration Statement, and all other amendments and
supplements to the prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by reference in
such prospectus.
"RECORDS" shall have the meaning set forth in Section 4(m).
"REGISTRABLE SECURITIES" means the Securities; PROVIDED, HOWEVER, that
any Securities shall cease to be Registrable Securities when (i) a Registration
Statement covering such Registrable Securities has been declared effective and
such Registrable Securities have been disposed of pursuant to such effective
Registration Statement, (ii) such Registrable Securities are transferred to any
Person other than a Holder pursuant to Rule 144 (or any similar provision then
in force, but not Rule 144A) under the Securities Act, including a sale pursuant
to the provisions of Rule 144(k), (iii) such Securities shall have ceased to be
outstanding or (iv) such Securities may be sold pursuant to Rule 144(k) (or a
successor provision then in force) under the Securities Act without reference to
volume or manner of sale restrictions, and the Company shall have delivered to
the transfer agent with respect to the Securities an opinion of counsel to such
effect and shall have taken such other actions as
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are necessary to enable the Holders to have legends restricting the transfer of
the Securities removed from the certificates representing the Securities prior
to or contemporaneously with any sale thereof by the Holders. Nothing herein
shall allow a Holder to register the same Registrable Securities on more than
one Registration Statement at any one time.
"REGISTRATION EXPENSES" shall have the meaning set forth in Section 5.
"REGISTRATION STATEMENT" means any registration statement of the
Company that covers any of the Registrable Securities pursuant to the provisions
of this Agreement (including any Demand Registration Statement), and all
amendments and supplements to any such registration statement, including post-
effective amendments, in each case including the Prospectus, all exhibits, and
all material incorporated by reference or deemed to be incorporated by reference
in such registration statement.
"SECURITIES" means the shares of TeleCom Preferred Stock (together
with any securities issued or issuable with respect to such shares by way of a
stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation, or other reorganization.)
"SECURITIES ACT" means the Securities Act of 1933, as amended from
time to time, or any successor statute, and the rules and regulations of the
Commission promulgated thereunder.
SECTION 2. DEMAND REGISTRATION.
(a) FILING, EFFECTIVENESS. Upon the request of Holders owning
at least 50 percent of the Registrable Securities delivered any time after the
initial delivery of the Securities to Alpine, but not earlier than October 31,
1997, and provided that such Holders have not previously participated in a
Piggy-Back Registration, the Company shall prepare and file with the Commission
a registration statement on the appropriate form for an offering under the
Securities Act covering the Registrable Securities owned by such Holders (the
"DEMAND REGISTRATION STATEMENT"), and the Company will use its best efforts to
effect the registration under the Securities Act of the Registrable Securities
permitting the public resale by such Holders or their transferees of the
Registrable Securities (a "DEMAND REGISTRATION"). The Company shall not be
required to effect more than one Demand Registration.
(b) SUPPLEMENTS; AMENDMENTS. The Company agrees, if necessary,
to supplement or amend the Demand Registration Statement, as required by the
rules, regulations or instructions applicable to the registration form used by
the Company for such Demand Registration Statement or by the Securities Act or
as requested (which request shall result in the filing of a supplement or
amendment) by any Holder of Registrable Securities to which such Demand
Registration Statement relates, and the Company agrees to furnish to the
Holders, Holders' Counsel and any managing underwriter copies of any such
supplement or amendment prior to its being used and/or filed with the
Commission.
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(c) EFFECTIVE REGISTRATION. A registration will not be deemed
to have been effected as a Demand Registration Statement unless the Demand
Registration Statement with respect thereto has been declared effective by the
Commission and the Company has complied in all material respects with its
obligations under this Agreement with respect thereto; PROVIDED, HOWEVER, that
if after it has been declared effective, the offering of Registrable Securities
pursuant to a Demand Registration Statement is interfered with by any stop
order, injunction or other order or requirement of the Commission or any other
governmental agency or court, such Demand Registration Statement will be deemed
not to have become effective during the period of such interference until the
offering of Registrable Securities pursuant to such Demand Registration
Statement may legally resume. If a registration requested pursuant to this
Section 2 is deemed not to have been effected, then the Company shall continue
to be obligated to effect a registration pursuant to this Section 2.
(d) SELECTION OF UNDERWRITER. If the Holders so elect, the
offering of Registrable Securities pursuant to a Demand Registration Statement
shall be in the form of an underwritten offering. If they so elect, the Holders
participating in such Demand Registration Statement shall select one or more
nationally recognized firms of investment bankers (reasonably acceptable to the
Company) to act as the book-running managing underwriter or underwriters in
connection with such offering and shall select any additional investment bankers
and managers to be used in connection with the offering.
SECTION 3. PIGGY-BACK REGISTRATION.
(a) REQUEST FOR REGISTRATION. Each time after the initial
delivery of the Securities to Alpine, but not earlier than October 31, 1997, the
Company proposes to file a registration statement under the Securities Act with
respect to an offering by the Company for its own account or for the account of
any of its security holders of any class of equity security (other than (i) a
registration statement on Form S-4 or S-8 (or any substitute form that is
adopted by the Commission) or (ii) a registration statement filed in connection
with an exchange offer or offering of securities solely to the Company's
existing security holders), and provided that the Holders have not previously
exercised their right to require the Company to effect a Demand Registration,
then the Company shall give written notice of such proposed filing to the
Holders of Registrable Securities as soon as practicable (but in no event less
than 30 days before the anticipated filing date), and such notice shall offer
such Holders the opportunity to register such number of shares of Registrable
Securities as each such Holder may request (which request shall specify the
Registrable Securities intended to be disposed of by such Holder and the
intended method of distribution thereof) (a "Piggy-Back Registration"). The
Company shall use its best efforts to cause the managing underwriter or
underwriters of a proposed underwritten offering to permit the Registrable
Securities requested to be included in a Piggy-Back Registration to be included
on the same terms and conditions as any similar securities of the Company or any
other security holder included therein and to permit the sale or other
disposition of such Registrable Securities in accordance with the intended
method of distribution thereof. Each Holder agrees (i) to enter into an
underwriting agreement, upon terms and conditions reasonably agreeable to such
Holder, as may be required by any managing underwriter in connection with a
Piggy-Back
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Registration and (ii) while the Piggy-Back Registration is in effect such Holder
will not effect sales, by use of the prospectus included in the Demand
Registration Statement, of shares that are also covered by the Piggy-Back
Registration. Any Holder shall have the right to withdraw its request for
inclusion of its Registrable Securities in any registration statement pursuant
to this Section 3 by giving written notice to the Company of such withdrawal.
The Company may withdraw a Piggy-Back Registration at any time prior to the time
it becomes effective, provided that the Company shall give immediate notice of
such withdrawal to the Holders of Registrable Securities requested to be
included in such Piggy-Back Registration and shall reimburse such Holders for
all reasonable out-of-pocket expenses (including counsel fees and expenses)
incurred prior to such withdrawal.
(b) REDUCTION OF OFFERING. In connection with an underwritten
offering where Piggy-Back Registration has been requested as provided in Section
3(a), the Company shall use its best efforts to cause all Registrable Securities
requested to be included in such Piggy-Back Registration to be included as
provided in Section 3(a). If the managing underwriter or underwriters of any
such underwritten offering have informed, in writing, the Holders of the
Registrable Securities requesting inclusion in such offering that it is their
opinion that the total number of shares which the Company, Holders of
Registrable Securities and any other Persons participating or requesting to
participate in such registration intend to include in such offering is such as
to materially and adversely affect the success of such offering, then the number
of shares to be offered for the account of all Persons (other than the Company)
participating in such registration shall be reduced or limited (to zero if
necessary) PRO RATA in proportion to the respective number of shares requested
to be registered by such Persons to the extent necessary to reduce the total
number of shares requested to be included in such offering to the number of
shares, if any, recommended by such managing underwriter or underwriters (except
to the extent otherwise provided in any other agreement entered into prior to
the date hereof (other than agreements with parties to the Acquisition
Agreements) between the Company and holders of its securities relating to
registration rights).
SECTION 4. REGISTRATION PROCEDURES.
In connection with the obligations of the Company to effect or cause
the registration of any Registrable Securities pursuant to the terms and
conditions of this Agreement, the Company shall use its best efforts to effect
the registration and sale of such Registrable Securities in accordance with the
intended method of distribution thereof as quickly as practicable, and in
connection therewith:
(a) The Company shall prepare and file with the Commission a
Registration Statement on the appropriate form under the Securities Act,
which form shall comply as to form in all material respects with the
requirements of the applicable form and include all financial statements
required by the Commission to be filed therewith, and use its best efforts
to cause such Registration Statement to become effective and remain
effective in accordance with the provisions of this Agreement; PROVIDED,
HOWEVER, that, at least five Business Days prior to filing a
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Registration Statement or Prospectus or any amendments or supplements
thereto, including documents incorporated by reference after the initial
filing of the Registration Statement, the Company shall furnish to the
Holders of the Registrable Securities covered by such Registration
Statement, Holders' Counsel and the underwriters, if any, draft copies of
all such documents proposed to be filed, which documents will be subject to
the review of Holders' Counsel and the underwriters, if any, and the
Company will not, unless required by law or this Agreement, file any
Registration Statement or amendment thereto or any Prospectus or any
supplement thereto to which Holders holding a majority in interest of the
Registrable Securities covered by such Registration Statement or the
underwriters with respect to such Securities, if any, shall object in good
faith as a result of perceived omissions or misstatements of material fact
in such document; PROVIDED, HOWEVER, that any such objection to the filing
of any Registration Statement or amendment thereto or any Prospectus or
supplement thereto shall be made by written notice (the "OBJECTION NOTICE")
delivered to the Company no later than five Business Days after the party
or parties asserting such objection (the "OBJECTING PARTY") receives draft
copies of the documents that the Company proposes to file. The Objection
Notice shall set forth the objections and the specific areas in the draft
documents where such objections arise. The Company shall have five
Business Days after receipt of the Objection Notice to correct such
deficiencies to the satisfaction of the Objecting Party, and will notify
each Holder of any stop order issued or threatened by the Commission in
connection therewith and shall use its best efforts to prevent the entry of
such stop order or to remove it if entered at the earliest possible moment.
(b) The Company shall promptly prepare and file with the
Commission such amendments and post-effective amendments to the
Registration Statement as may be necessary to keep such Registration
Statement effective for as long as such registration is required to remain
effective pursuant to the terms hereof; shall 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 shall comply with the provisions of the Securities Act applicable to it
with respect to the disposition of all Registrable Securities covered by
such Registration Statement during the applicable period in accordance with
the intended methods of disposition by the Holders set forth in such
Registration Statement or supplement to the Prospectus.
(c) The Company shall promptly furnish to any Holder and the
underwriters, if any, without charge, such number of conformed copies of
such Registration Statement and any post-effective amendment thereto and
such number of copies of the Prospectus (including each preliminary
Prospectus) and any amendments or supplements thereto, any documents
incorporated by reference therein and such other documents as such Holder
or underwriter may request in order to facilitate the public sale or other
disposition of the Registrable Securities being sold by such Holder.
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(d) The Company shall, on or prior to the date on which a
Registration Statement is declared effective, (i) use its best efforts to
register or qualify the Registrable Securities covered by such Registration
Statement under the securities or "blue sky" laws of each of the 00 xxxxxx
xx xxx Xxxxxx Xxxxxx; (ii) do any and all other acts and things which may
be reasonably necessary or reasonably advisable to enable such Holder to
consummate the disposition of such Registrable Securities owned by such
Holder; (iii) use its best efforts to keep each such registration or
qualification (or exemption therefrom) effective during the period in which
the Registration Statement is required to be kept effective; and (iv) use
its best efforts to do any and all other acts or things reasonably
necessary or reasonably advisable to enable the disposition in such
jurisdictions of such Registrable Securities; PROVIDED, HOWEVER, that the
Company shall not be required (x) to qualify to do business in any
jurisdiction where it would not otherwise be required to qualify but for
this Section 4(d) or (y) to file any general consent to service of process.
(e) The Company shall use its best efforts to cause the
Registrable Securities covered by a Registration Statement to be registered
with or approved by such other governmental agencies or authorities as may
be necessary by virtue of the business and operations of the Company to
enable the Holders to consummate the disposition of such Registrable
Securities.
(f) The Company shall promptly notify each Holder, Holders'
Counsel and any underwriter and (if requested by any such Person) confirm
such notice in writing, (i) when a Prospectus or any Prospectus supplement
or post-effective amendment has been filed and, with respect to a
Registration Statement or any post-effective amendment, when the same has
become effective, (ii) of any request by the Commission or any state
securities authority for amendments and supplements to a Registration
Statement and Prospectus or for additional information after the
Registration Statement has become effective, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of a Registration
Statement or the initiation or threatening of any proceedings for that
purpose, (iv) of the issuance by any state securities commission or other
regulatory authority of any order suspending the qualification or exemption
from qualification of any of the Registrable Securities under state
securities or "blue sky" laws or the initiation of any proceedings for that
purpose, (v) if, between the effective date of a Registration Statement and
the closing of any sale of Registrable Securities covered thereby, the
representations and warranties of the Company contained in any underwriting
agreement, securities sales agreement or other similar agreement, if any,
relating to the offering cease to be true and correct in all material
respects, and (vi) of the happening of any event which makes any statement
of a material fact made in a Registration Statement or related Prospectus
untrue or which requires the making of any changes in such Registration
Statement or Prospectus so that they will not contain any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein in light of the
circumstances under which they were made not misleading; and, as promptly
as
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practicable thereafter, prepare and file with the Commission and furnish a
supplement or amendment to such Prospectus so that, as thereafter
deliverable to the purchasers of such Registrable Securities, such
Prospectus will not contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading.
(g) The Company shall make generally available to the Holders an
earnings statement satisfying the provisions of Section 11(a) of the
Securities Act no later than 45 days after the end of the 12-month period
beginning with the first day of the Company's first fiscal quarter
commencing after the effective date of a Registration Statement, which
earnings statement shall cover said 12-month period, and which requirement
will be deemed to be satisfied if the Company timely files complete and
accurate information on Forms 10-Q, 10-K and 8-K under the Exchange Act and
otherwise complies with Rule 158 under the Securities Act.
(h) The Company shall promptly use its best efforts to prevent
the issuance of any order suspending the effectiveness of a Registration
Statement and, if one is issued, shall use its best efforts to obtain the
withdrawal of any order suspending the effectiveness of a Registration
Statement at the earliest possible moment.
(i) The Company shall, if requested by the managing underwriter
or underwriters, if any, Holders' Counsel, or any Holder, promptly
incorporate in a Prospectus supplement or post-effective amendment such
information as such managing underwriter or underwriters or Holder or
Holders' Counsel reasonably requests to be included therein, including,
without limitation, with respect to the Registrable Securities being sold
by such Holder to such underwriter or underwriters, the purchase price
being paid therefor by such underwriter or underwriters and any other terms
of an underwritten offering of the Registrable Securities to be sold in
such offering, and the Company shall promptly make all required filings of
such Prospectus supplement or post-effective amendment.
(j) The Company shall, as promptly as practicable after filing
with the Commission of any document which is incorporated by reference into
a Registration Statement (in the form in which it was incorporated),
deliver a copy of each such document to each of the Holders and to Holders'
Counsel.
(k) The Company shall cooperate with the Holders and the
managing underwriter or underwriters, if any, to facilitate the timely
preparation and delivery of certificates (which shall not bear any
restrictive legends unless required under applicable law) representing
securities sold under a Registration Statement, and enable such securities
to be in such denominations and registered in such names as the managing
underwriter or underwriters, if any, or such Holders may request and keep
available and make available to the Company's transfer agent prior to the
effectiveness of such Registration Statement a supply of such certificates.
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(l) The Company shall enter into such customary agreements
(including, if applicable, an underwriting agreement in customary form) and
take such other actions as the Holders or the underwriters retained by the
Holders participating in an underwritten public offering, if any, may
request in order to expedite or facilitate the disposition of Registrable
Securities (the Holders may, at their option, require that any or all of
the representations, warranties and covenants of the Company to or for the
benefit of any underwriters also be made to and for the benefit of the
Holders).
(m) The Company shall promptly make available to each Holder,
any underwriter participating in any disposition pursuant to a Registration
Statement, and any attorney, accountant or other agent or representative
retained by any such Holder or 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 the Company's officers, directors and
employees to supply all information requested by any such Inspector in
connection with such Registration Statement; PROVIDED that, unless the
disclosure of such Records is necessary to avoid or correct a misstatement
or omission in such registration statement or the release of such Records
is ordered pursuant to a subpoena or other order from a court of competent
jurisdiction, the Company shall not be required to provide any information
under this paragraph, (1) if the Company believes, after consultation with
counsel for the Company and counsel for the Holders, that to do so would
cause the Company to forfeit an attorney-client privilege that was
applicable to such information or (2) if either (i) the Company has
requested and been granted from the Commission confidential treatment of
such information contained in any filing with the Commission or documents
provided supplementally or otherwise or (ii) the Company reasonably
determines in good faith that such Records are confidential and so notifies
the Inspectors in writing unless prior to furnishing any such information
with respect to (i) or (ii) such Holder requesting such information agrees
to enter into a confidentiality agreement in customary form and subject to
customary exceptions; and provided, further, that each such Holder agrees
that it will, upon learning that disclosure of such Records is sought in a
court of competent jurisdiction, give notice to the Company and allow the
Company, at its expense, to undertake appropriate action to prevent
disclosure of the Records deemed confidential (it being understood that in
any event such Holder shall be entitled to disclose any Records to the
extent such Holder in good faith believes that such disclosure is required
in response to a request or investigation by a court or other governmental
agency or body).
(n) The Company shall furnish to each Holder and to each
underwriter, if any, a signed counterpart, addressed to such Holder or
underwriter, of (i) an opinion or opinions of counsel to the Company, and
(ii) a comfort letter or comfort letters from the Company's independent
public accountants, each in customary form and covering such matters of the
type customarily covered by opinions or comfort letters, as the case may
be, as the Holders of Registrable
9
Securities included in such offering or the managing underwriter therefor
reasonably requests.
(o) The Company shall use its best efforts to cause the
Registrable Securities included in a Registration Statement to be (i)
listed on each securities exchange, if any, on which similar securities
issued by the Company are then listed, or (ii) authorized to be quoted
and/or listed, as applicable, on the National Association of Securities
Dealers, Inc. Automated Quotation ("NASDAQ") or the National Market System
of NASDAQ if the Registrable Securities so qualify.
(p) The Company shall provide a CUSIP number for all Registrable
Securities covered by a Registration Statement not later than the effective
date of such Registration Statement.
(q) The Company shall cooperate with each Holder and each
underwriter participating in the disposition of Registrable Securities and
their respective counsel in connection with any filings required to be made
with the National Association of Securities Dealers, Inc. ("NASD").
(r) The Company shall, during the period when the Prospectus is
required to be delivered under the Securities Act, promptly file all
documents required to be filed with the Commission pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act.
(s) The Company shall appoint a transfer agent and registrar for
all Registrable Securities covered by a Registration Statement not later
than the effective date of such Registration Statement.
(t) In connection with an underwritten offering, the Company
will participate, to the extent reasonably requested by the managing
underwriter for the offering or the Holders, in customary efforts to sell
the securities under the offering, including without limitation,
participating in "road shows."
(u) If the Registrable Securities are of a class of securities
that is listed on a national securities exchange, the Company will file
copies of any Prospectus with such exchange in compliance with Rule 153
under the Securities Act so that the Holders shall benefit from the
prospectus delivery procedures described therein.
If any Registration Statement refers to any Holder by name or
otherwise as the holder of any securities of the Company, then such Holder shall
have the right to require (i) the insertion therein of language, in form and
substance reasonably satisfactory to such Holder, to the effect that the holding
by such Holder of such securities is not to be construed as a recommendation by
such Holder of the investment quality of the Company's securities covered
thereby and that such holding does not imply that such Holder will assist in
meeting
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any future financial requirements of the Company, or (ii) in the event that such
reference to such Holder by name or otherwise is not required by the Securities
Act or any similar Federal or state "blue sky" statute and the rules and
regulations thereunder then in force. the deletion of the reference to such
Holder.
SECTION 5. REGISTRATION EXPENSES. Any and all expenses incident
to the Company's performance of or compliance with this Agreement, including
without limitation, all Commission and securities exchange, NASDAQ or NASD
registration and filing fees, all fees and expenses incurred in connection with
compliance with state securities or "blue sky" laws (including reasonable fees
and disbursements of counsel for any underwriters or Holders in connection with
"blue sky" qualifications of the Registrable Securities), printing expenses,
messenger and delivery expenses, internal expenses (including, without
limitation, all salaries and expenses of the Company's officers and employees
performing legal or accounting duties), all expenses for word processing,
printing and distributing any Registration Statement, any Prospectus, any
amendments or supplements thereto, any underwriting agreements, securities sales
agreements and other documents relating to the performance of and compliance
with this Agreement, the fees and expenses incurred in connection with the
listing of the Registrable Securities, the fees and disbursements of counsel for
the Company and of the independent certified public accountants of the Company
(including the expenses of any comfort letters or costs associated with the
delivery by independent certified public accountants of a comfort letter or
comfort letter requested pursuant to Section 4(n)), Securities Act liability
insurance (if the Company elects to obtain such insurance), the reasonable fees
and expenses of any special experts or other Persons retained by the Company in
connection with any registration, Counsel Fees (as hereinafter defined) and
disbursements of Holders' Counsel (which counsel, it is understood, shall be a
single firm representing all of the Holders) and any reasonable out-of-pocket
expenses of the Holders and their agents, including any reasonable travel costs,
but excluding underwriting discounts and commissions and transfer taxes, if any
(which shall be paid by the Holders, pro rata in accordance with the number of
Shares sold in the offering), relating to the sale or disposition of Registrable
Securities (all such expenses being herein called "Registration Expenses"), will
be borne by the Company whether or not the Demand Registration Statement or
Piggy-Back Registration to which such expenses relate becomes effective. As
used herein, Counsel Fees means the reasonable fees and disbursements of
Holders' Counsel for representation of the Holders in connection with the review
of a Registration Statement, which fees shall be supported by detail; PROVIDED,
HOWEVER, that the maximum amount of Counsel Fees for which the Company shall be
obligated to reimburse the Holders is $7,500 for a particular Registration
Statement.
SECTION 6. INDEMNIFICATION AND CONTRIBUTION.
(a) INDEMNIFICATION BY THE COMPANY. The Company agrees to
indemnify and hold harmless, to the full extent permitted by law, each Holder,
its partners, officers, directors, trustees, stockholders, employees, agents and
investment advisers, and each Person who controls such Holder within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act, or
is under common control with, or is
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controlled by, such Holder, together with the partners, officers, directors,
trustees, stockholders, employees, agents and investment advisors of such Person
(collectively, the "Controlling Persons"), from and against all losses, claims,
damages, liabilities and expenses (including without limitation any legal or
other fees and expenses incurred by any Holder or any such Controlling Person in
connection with defending or investigating any action or claim in respect
thereof) (collectively, the "Damages") to which such Holder, its partners,
officers, directors, trustees, stockholders, employees, agents and investment
advisers, and any such Controlling Person, may become subject under the
Securities Act or otherwise, insofar as such Damages (or proceedings in respect
thereof) arise out of or are based upon any untrue or alleged untrue statement
of material fact contained in any Registration Statement (or any amendment
thereto) pursuant to which Registrable Securities were registered under the
Securities Act, including all documents incorporated therein by reference, or
caused by any omission or alleged omission to state therein a material fact
necessary to make the statements therein in light of the circumstances under
which they were made not misleading, or caused by any untrue statement or
alleged untrue statement of a material fact contained in any Prospectus (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to state
therein a material fact necessary to make the statements therein in light of the
circumstances under which they were made not misleading, except insofar as such
Damages arise out of or are based upon any such untrue statement or omission
based upon information relating to such Holder furnished in writing to the
Company by such Holder expressly for use therein; PROVIDED, HOWEVER, that the
Company shall not be liable to any Holder under this Section 6(a) to the extent
that any such Damages were caused by the fact that such Holder sold Securities
to a Person as to whom it shall be established that there was not sent or given,
or deemed sent or given pursuant to Rule 153 under the Securities Act, at or
prior to the written confirmation of such sale, a copy of the Prospectus as then
amended or supplemented if, and only if, (i) the Company has previously
furnished copies of such amended or supplemented Prospectus to such Holder and
(ii) such Damages were caused by any untrue statement or omission or alleged
untrue statement or omission contained in the Prospectus so delivered which was
corrected in such amended or supplemented Prospectus. In connection with an
underwritten offering, the Company will indemnify the underwriters thereof,
their officers and directors and each Person who controls such underwriters
(within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act) to the same extent as provided above with respect to the
indemnification of the Holders of Registrable Securities except with respect to
information provided by the underwriter specifically for inclusion therein.
(b) INDEMNIFICATION BY THE HOLDERS. Each Holder agrees,
severally and not jointly, to indemnify and hold harmless the Company, its
directors, officers, stockholders, employees and agents and each Person, if any,
who controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, or is under common control
with, or is controlled by, the Company, together with the partners, officers,
directors, stockholders, employees and agents of such Person, to the same extent
as the foregoing indemnity from the Company to such Holder, but only with
reference to (i) information relating to such Holder furnished to the Company in
writing by such
12
Holder expressly for use in any Registration Statement (or any amendment
thereto) or any Prospectus (or any amendment or supplement thereto) or (ii) the
failure of a Holder to deliver a Prospectus as described in the proviso to the
preceding paragraph (a); PROVIDED, HOWEVER, that such Holder shall not be
obligated to provide such indemnity to the extent that such Damages result from
the failure of the Company to promptly amend or take action to correct or
supplement any such Registration Statement or Prospectus on the basis of
corrected or supplemental information provided in writing by such Holder to the
Company expressly for such purpose. In no event shall the liability of any
Holder of Registrable Securities hereunder be greater in amount than the amount
of the proceeds received by such Holder upon the sale of the Registrable
Securities giving rise to such indemnification obligation.
(c) INDEMNIFICATION PROCEDURES. In case any proceeding
(including any governmental investigation) shall be instituted involving any
Person in respect of which indemnity may be sought pursuant to either paragraph
(a) or (b) above, such Person (the "indemnified party") shall promptly notify
the Person against whom such indemnity may be sought (the "indemnifying party")
in writing and the indemnifying party, upon request of the indemnified party,
shall retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceedings and shall pay the fees and disbursements of such
counsel relating to such proceeding. The failure of an indemnified party to
notify the indemnifying party with respect to a particular proceeding shall not
relieve the indemnifying party from any obligation or liability (i) which it may
have pursuant to this Agreement if the indemnifying party is not substantially
prejudiced by the failure to notify or (ii) which it may have otherwise than
pursuant to this Agreement. In any such proceeding, any indemnified party shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel, or (ii) the indemnifying party fails promptly to
assume the defense of such proceeding or fails to employ counsel reasonably
satisfactory to such indemnified party or parties, or (iii) (A) the named
parties to any such proceeding (including any impleaded parties) include both
such indemnified party or parties and any indemnifying party or an Affiliate of
such indemnified party or parties or of any indemnifying party, (B) there may be
one or more defenses available to such indemnified party or parties or such
Affiliate of such indemnified party or parties that are different from or
additional to those available to any indemnifying party or such Affiliate of any
indemnifying party and (C) such indemnified party or parties shall have been
advised by such counsel that there may exist a conflict of interest between or
among such indemnified party or parties or such Affiliate of such indemnified
party or parties and any indemnifying party or such Affiliate of any
indemnifying party, in which case, if such indemnified party or parties notifies
the indemnifying party or parties in writing that it elects to employ separate
counsel of its choice at the expense of the indemnifying parties, the
indemnifying parties shall not have the right to assume the defense thereof and
such counsel shall be at the expense of the indemnifying parties, it being
understood, however, that unless there exists a conflict among indemnified
parties, the indemnifying parties shall not, in connection with any one such
proceeding or separate but substantially similar or related
13
proceedings in the same jurisdiction, arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than
one separate firm of attorneys (together with appropriate local counsel) at any
time for such indemnified party or parties. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written consent
but, if settled with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified party or
parties from and against any loss or liability by reason of such settlement or
judgment. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which such indemnified party is 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 on claims
that are the subject matter of such proceeding, with no payment by such
indemnified party of consideration.
(d) CONTRIBUTION. If the indemnification from the indemnifying
party provided for in this Section 6 is found, in a final judicial determination
not subject to final appeal, to be unavailable to an indemnified party hereunder
in respect of any losses, claims, damages, liabilities or expenses referred to
therein, then the 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, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and indemnified parties in connection with the actions which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative fault of such indemnifying
party and indemnified parties shall be determined by reference to, among other
things, whether any action in question, including any untrue or alleged untrue
statement of a material fact, has been made by, or relates to information
supplied by, such indemnifying party or indemnified parties, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such action. The amount paid or payable by a party as a result of the
losses, claims, damages, liabilities and expenses referred to above shall be
deemed to include, subject to the limitations set forth in Section 6(c), any
reasonable legal or other fees or expenses reasonably incurred by such party in
connection with any investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 6(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 6(d), no underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Registrable Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission, and no selling Holder
shall be required to contribute any amount in excess of the amount by which the
total proceeds received by such selling Holder with respect to Registrable
Securities sold exceeds the amount of any damages which such selling Holder has
otherwise been required to pay by reason of such untrue statement or
14
omission. Each Holder's obligation to contribute pursuant to this Section 6(d)
is several in the proportion that the proceeds of the offering received by such
Holder bears to the total proceeds of the offering received by all the Holders
and not joint. 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.
If indemnification is available under this Section 6, the indemnifying
parties shall indemnify each indemnified party to the full extent provided in
Sections 6(a) and (b) without regard to the relative fault of said indemnifying
party or indemnified party or any other equitable consideration provided for in
this Section 6(d).
SECTION 7. RULE 144. The Company covenants that it will file any
reports required to be filed by it under the Securities Act and the Exchange Act
(or, if the Company is not required to file such reports, it will, upon the
request of any Holder, make publicly available other information so long as
necessary to permit sales under Rule 144 under the Securities Act), and it will
take such further action as any Holder may request, all to the extent required
from time to time to enable such Holder to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by (a) Rule 144 under the Securities Act, as such Rule may be amended
from time to time, or (b) any similar rule or regulation hereafter adopted by
the Commission. Upon the request of any Holder, the Company will deliver to
such Holder a written statement as to whether it has complied with such
requirements.
SECTION 8. RULE 144A. The Company covenants that it will file all
reports required to be filed by it under the Securities Act and the Exchange
Act, and the rules and regulations adopted by the Commission thereunder (or if
the Company is not required to file such reports, it will, upon the request of
any Holder, make available other information so long as necessary to permit
sales of the Registrable Securities pursuant to Rule 144A under the Securities
Act), all to the extent as may be required from time to time to enable such
Holder to sell the Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by (a) Rule
144A, as such rule may be amended from time to time, or (b) any similar rule or
regulation hereafter adopted by the Commission, in each case to the extent that
the Registrable Securities were not when issued of the same class as securities
listed on a national securities exchange or quoted in a U.S. automated
interdealer quotation system.
SECTION 9. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. The Company has not entered
into nor will the Company on or after the date of this Agreement enter into any
agreement which is inconsistent with the rights granted to the Holders of
Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not in any
way conflict with and are not inconsistent with the rights
15
granted to the holders of the Company's other issued and outstanding securities
under any such agreements.
(b) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of Holders
of at least a majority in interest of the outstanding Registrable Securities
affected by such amendment, modification, supplement, waiver or consent;
PROVIDED, HOWEVER, that, no amendment, modification, supplement, waiver or
consent to any departure from the provisions of Section 4 hereof (other than any
immaterial amendment, modification, supplement, waiver or consent) shall be
effective as against any Holder of Registrable Securities unless consented to in
writing by such Holder.
(c) NOTICES. All notices and other communications provided for
or permitted hereunder shall be in writing and shall be deemed to have been duly
given if delivered personally or sent by telecopier, registered or certified
mail (return receipt requested), postage prepaid or courier to the parties at
their respective addresses set forth on the signature pages hereof (or at such
other address for any party as shall be specified by like notice, provided that
notices of a change of address shall be effective only upon receipt thereof).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; by confirmed
receipt of transmission, if telecopied; and on the next Business Day if timely
delivered to a courier guaranteeing overnight delivery.
(d) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of each
of the parties, including, without limitation and without the need for an
express assignment, subsequent Holders. If any transferee of any Holder shall
acquire Registrable Securities in any manner, whether by operation of law or
otherwise, such Registrable Securities shall be held subject to all of the terms
of this Agreement, and by taking and holding such Registrable Securities such
person shall be conclusively deemed to have agreed to be bound by and to perform
all of the terms and provisions of this Agreement and such person shall be
entitled to receive the benefits hereof.
(e) COUNTERPARTS. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
16
(g) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without regard to
principles or rules of conflicts of law.
(h) SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be in any way
impaired thereby, it being intended that all of the rights and privileges of the
Holders shall be enforceable to the fullest extent permitted by law,
(i) ENTIRE AGREEMENT. This Agreement is intended by the parties
as a final expression of their agreement and is intended to be the complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
(j) ATTORNEYS' FEES. In any action or proceeding brought to
enforce any provision of this Agreement or where any provision hereof is validly
asserted as a defense, the successful party shall, to the extent permitted by
applicable law, be entitled to recover reasonable attorneys' fees in addition to
any other available remedy.
(k) FURTHER ASSURANCES. Each party shall cooperate and take
such action as may be reasonably requested by another party in order to carry
out the provisions and purposes of this Agreement and the transactions
contemplated hereby.
(l) REMEDIES. In the event of a breach or a threatened breach
by any party to this Agreement of its obligations under this Agreement, any
party injured or to be injured by such breach will be entitled to specific
performance of its rights under this Agreement or to injunctive relief, in
addition to being entitled to exercise all rights provided in this Agreement and
granted by law. The parties agree that the provisions of this Agreement shall
be specifically enforceable, it being agreed by the parties that remedies at law
for violations hereof, including monetary damages, are inadequate and that the
right to object in any action for specific performance or injunctive relief
hereunder on the basis that a remedy at law would be adequate is waived.
17
IN WITNESS WHEREOF. the parties have executed this Agreement as of the
date first written above.
THE ALPINE GROUP, INC.
By:/s/ Xxxxxxx X. Xxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President and
Secretary
Address for notices:
The Alpine Group, Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
SUPERIOR TELECOM INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxx
Title: Secretary
Address for notices:
Superior TeleCom Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
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