Exhibit 4.2
PRICE COMMUNICATIONS CORPORATION
WARRANT REGISTRATION RIGHTS AGREEMENT
August 11, 1997
NATWEST CAPITAL MARKETS LIMITED
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SECURITIES
c/o NatWest Capital Markets Limited
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Ladies and Gentlemen:
Price Communications Corporation (the "Company"), a New York
corporation, proposes to issue and sell to Natwest Capital Markets Limited
("NatWest") and ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Securities, Inc. (together with NatWest,
the "Purchasers"), upon the terms set forth in a purchase agreement, dated
July 31, 1997 (the "Purchase Agreement") , among the Purchasers, Price
Communications Cellular Holdings, Inc. ("Holdings"), Price communications
Cellular Inc. and the Company, 153,400 units (the "Units") each consisting of
$1,000 principal amount at maturity of Holdings' 13 1/2% Senior Secured
Discount Notes due 2007 and warrants to purchase 527,696 shares of Common
Stock, $.01 par value per share, of the Company (such warrants, the "Warrants").
As an inducement to the Purchasers to enter into the Purchase Agreement and in
satisfaction of a condition to the obligations of the Purchasers thereunder,
the Company agrees with the Purchasers, (i) for the benefit of the Purchasers
and (ii) for the benefit of the holders from time to time of the Warrants and
the common shares for which such warrants are exercisable initially (the
"Warrant Shares"), as follows:
1. Definitions. Capitalized terms used herein without definition shall
have their respective meanings set forth in the Purchase Agreement. As used in
this Agreement, the following capitalized defined terms shall have the
following meanings:
Affiliate: Of any specified person means any other person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with such specified person. For purposes of this definition, control
of a person means the power, direct or indirect, to direct or cause the
direction of the management and policies of such person whether by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
Business Day: Any day except Saturday, Sunday and any day which shall
be a legal holiday or a day on which banking institutions in the State of New
York generally are authorized or required by law or other government actions to
close.
Commission: Means the United States Securities and Exchange Commission.
DTC: Means The Depository Trust Company.
Effective Date: Shall mean August 11, 1998.
Effectiveness Period: Means the period from the effectiveness of the
Shelf Registration Statement (as defined) , through and including the earlier
of (a) August 11, 2007 and (b) the date when, in the written opinion of
counsel to the Company, all outstanding Warrant Shares held by Persons who are
not affiliates of the Company may be resold without registration under the
Securities Act pursuant to Rule 144(k) thereunder or any successor provision
thereto.
Exchange Act: Means the Securities Exchange Act of 1934, as amended.
Holders: Means the Persons with a beneficial interest from time to
time in the Warrant Shares.
Issue Date: Means the date of issuance of the Warrants.
Majority Holders: Means the Holders of a majority of the aggregate
amount of outstanding Warrant Shares (or, if prior to the date any Warrants
have been exercised, the Holders of a majority of the outstanding Warrants).
Managing Underwriters: Means the investment banker or investment
bankers and manager or managers that shall administer an underwritten
offering, if any, as set forth in Section 6 hereof.
Officer's Certificate: Means a certificate signed by any one of the
Chairman, any vice Chairman, any Chief Executive Officer, any President, any
Senior Vice President, any Executive Vice President or the Chief Financial
Officer.
Person: Shall mean an individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
Prospectus: Means the prospectus included in any Shelf 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 under the Act), as amended
or supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Registrable Securities.
Registration Statement: Any registration statement of the Company that
covers any of the Warrant Shares pursuant to the provisions of this Agreement,
including the Prospectus, amendments and supplements to such registration
statement or Prospectus, including pre- and post-effective amendments, all
exhibits thereto, and all material incorporated by reference or deemed to be
incorporated by reference, if any, in such registration statement.
Rule 144: Rule 144 promulgated by the Commission pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission as a replacement
thereto having substantially the same effect as such Rule.
Rule 144A: Rule 144A promulgated by the Commission pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission as a replacement thereto
having substantially the same effect as such Rule.
Rule 158: Rule 158 promulgated by the Commission pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission as a replacement
thereto having substantially the same effect as such Rule.
Rule 174: Rule 174 promulgated by the Commission pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission as a replacement
thereto having substantially the same effect as such Rule.
Rule 415: Rule 415 promulgated by the Commission pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission as a replacement
thereto having substantially the same effect as such Rule.
Rule 424: Rule 424 promulgated by the commission pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission as a replacement
thereto having substantially the same effect as such Rule.
Securities Act: The Securities Act of 1933, as amended, and the rules
and regulations promulgated by the Commission thereunder.
Shelf Registration: As defined in Section 2 hereof.
Special Counsel: At any time, the special counsel to the Holders of
Transfer Restricted Securities, the fees and expenses of which will be
reimbursed to such Holders pursuant to this Agreement.
Shelf Registration Statement: Means the shelf registration statement
of the Company pursuant to the provisions of Section 2 hereof filed with the
Commission which covers some or all of the Warrant Shares, as applicable, on an
appropriate form under Rule 415 under the Securities Act, or any similar rule
that may be adopted by the Commission, amendments and supplements to such regis
tration statement, including post-effective amendments, in each case including
the Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
Transfer Restricted Securities: The Warrant Shares upon original
issuance thereof, and at all times subsequent thereto, until, in the case of
any such Warrant Share, (i) the date on which such Warrant Share has been
registered effectively pursuant to the Securities Act and disposed of in
accordance with the registration statement relating to it, (ii) the date on
which such Warrant Share is distributed to the public pursuant to Rule 144 (or
any similar provisions then in effect) or is saleable pursuant to Rule 144(k)
promulgated by the Commission pursuant to the Securities Act or (iii) the date
on which such Warrant Share ceases to be outstanding.
Underwriter: Means any underwriter of Registrable securities in
connection with an offering thereof under a Shelf Registration Statement.
2. Shelf Registration: (a) The Company shall (i) within 270 days
following the Issue Date, file with the Commission the Shelf Registration
Statement relating to the issuance and resale of the Warrant Shares (including
securities deemed registered pursuant to Rule 416 under the Securities Act) by
the Holders from time to time in accordance with the methods of distribution
elected by the Majority Holders and set forth in the Shelf Registration
Statement and, thereafter, (ii) use its reasonable best efforts to cause the
Shelf Registration Statement to be declared effective under the Securities Act
within 365 days following the Issue Date; provided, however, that no Holder
shall be entitled to have the Warrant Shares held by it covered by the Shelf
Registration Statement unless such Holder furnishes to the Company in writing,
within 15 Business Days after receipt of a request therefor, such information
as the Company may reasonably request for use in connection with any Shelf
Registration Statement or Prospectus or preliminary prospectus included
therein. Each Holder as to which any Shelf Registration Statement is being
effected agrees to furnish promptly to the Company all information required to
be disclosed in order to make the information previously furnished to the
Company by such Holder not materially misleading. The Company shall be deemed
not to have used its reasonable efforts to cause the Shelf Registration
Statement to be declared effective unless the Company determines in good faith
that any actions taken to do so (i) would violate any applicable law to which
it was then subject or (ii) would require the Company to disclose an otherwise
confidential, material financing, acquisition or other corporate transaction
and management shall have determined in good faith as evidenced by an
Officer's Certificate that such disclosure is not in the best interest of the
Company and its shareholders; provided, however, that no delay in
effectiveness pursuant to clause (i) or (ii) above may exceed 45 days.
(b) The Company shall use its reasonable efforts to cause the Shelf
Registration Statement to remain continuously effective until the earlier of
(i) such time as all Warrants have been exercised and (ii) the second
anniversary of the Issue Date.
(c) During any consecutive 365-day period, the Company may suspend the
availability of the Shelf Registration Statement for up to 60 consecutive days
(except for the 30 consecutive-day period immediately prior to August 8, 2007)
if the Board of Directors of the Company determines in the exercise of its
reasonable judgment that there is a valid business purpose for such suspension
and provides notice that such determination was made to the Holders; provided,
however, that in no event shall the Company be required to disclose the
business purpose for such suspension if the company determines in good faith
that such business purpose must remain confidential.
3. Registration Procedures. In connection with the Shelf Registration
Statement, the following provisions shall apply:
(a) No fewer than five Business Days prior to the initial filing of a
Registration Statement or Prospectus and no fewer than two Business Days
prior to the filing of any amendment or supplement thereto (including any
document that would be incorporated or deemed to be incorporated therein by
reference) , furnish to the Holders of the Transfer Restricted Securities,
their Special Counsel and the managing underwriters, if any, copies of all
such documents proposed to be filed, which documents (other than those
incorporated or deemed to be incorporated by reference) will be subject to
the review of such Holders, their special counsel and such underwriters, if
any, and cause the officers and directors of the Company, counsel to the
Company and independent certified public accountants to the Company to
respond to such inquiries as shall be necessary, in the opinion of
respective counsel to such Holders and such underwriters, to conduct a
reasonable investigation within the meaning of the Securities Act; provided,
however, that the Company shall not be deemed to have kept a Registration
Statement effective during the applicable period if it voluntarily takes or
fails to take any action that results in selling Holders of the Transfer
Restricted Securities covered thereby not being able to sell such Transfer
Restricted Securities pursuant to Federal securities laws during that
period. The Company shall not file any such Shelf Registration Statement or
related Prospectus or any amendments or supplements thereto to which the
Holders of a majority o-f the Transfer Restricted Securities, their Special
Counsel, or the managing underwriters, if any, shall reasonably object on a
timely basis;
(b) Prepare and file with the Commission such amendments, including
post-effective amendments, to each Registration Statement as may be
necessary to keep such Registration Statement continuously effective for the
applicable time period; cause the related Prospectus to be supplemented by
any required Prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 (or any similar provisions then in force) under the
Securities Act; and comply with the provisions of the Securities Act and the
Exchange Act with respect to the disposition of all securities covered by
such Registration Statement during such period in accordance with the
intended methods of disposition by the sellers thereof set forth in such
Registration Statement as so amended or in such Prospectus as so
supplemented;
(c) Notify the Holders of Transfer Restricted Securities to be sold,
their Special Counsel and the managing underwriters, if any, promptly (and
in the case of an event specified by clause (i) (A) of this paragraph in no
event fewer than two Business Days prior to such filing), and (if requested
by any such Person), confirm such notice in writing, (i) (A) when a
Prospectus or any Prospectus supplement or post-effective amendment is
proposed to be filed, and, (B) with respect to a Registration Statement or
any post-effective amendment, when the same has become effective, (ii) in
the case of a Shelf Registration, of any request by the Commission or any
other Federal or state governmental authority for amendments or supplements
to a Registration Statement or related Prospectus or for additional
information, (iii) of the issuance by the Commission, any state securities
commission, any other governmental agency or any court of any stop order,
order or injunction suspending or enjoining the use or the effectiveness of
a Registration Statement or the initiation of any proceedings for that
purpose, (iv) if at any time any of the representations and warranties of
either the Company contained in any agreement (including any underwriting
agreement) contemplated hereby 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 or exemption from qualification of
any of the Transfer Restricted Securities for sale in any jurisdiction, or
the initiation or threatening of any proceeding for such purpose, and (vi)
in the case of a Shelf Registration, of the happening of any event that
makes any statement made in such Registration Statement or related
Prospectus or any document incorporated or deemed to be incorporated therein
by reference untrue in any material respect or that requires the making of
any changes in such Registration Statement, Prospectus or documents so that,
in the case of the Registration Statement, it 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, not
misleading, and that in the case of the Prospectus, it 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;
(d) Use its reasonable best efforts to avoid the issuance of, or, if
issued, obtain the withdrawal of any order enjoining or suspending the use
or effectiveness of a Registration Statement or the lifting of any
suspension of the qualification (or exemption from qualification) of any of
the Transfer Restricted Securities for sale in any jurisdiction, at the
earliest practicable moment;
(e) If requested by the managing underwriters, if any, or the Holders of
a majority in aggregate principal amount of the Transfer Restricted
Securities being sold in connection with such offering, (i) promptly
incorporate in a Prospectus supplement or post-effective amendment such
information as the managing underwriters, if any, and such Holders agree
should be included therein, and (ii) make all required filings of such
Prospectus supplement or such post-effective amendment as soon as
practicable after the Company has received notification of the matters to be
incorporated in such Prospectus supplement or post-effective amendment;
provided, however, that the Company shall not be required to take any action
pursuant to this Section 3(e) that would, in the opinion of counsel for the
Company, violate applicable law;
(f) Furnish to each Holder of Transfer Restricted Securities, their
Special Counsel and each managing underwriter, if any, without ' charge, at
least one conformed copy of each Registration Statement and each amendment
thereto, including financial statements and schedules, all documents
incorporated or deemed to be incorporated therein by reference, and all
exhibits to the extent requested by each Holder (including those previously
furnished or incorporated by reference) as soon as practicable after the
filing of such documents with the Commission;
(g) Deliver to each Holder of Transfer Restricted Securities, their
Special Counsel, and the underwriters, if any, without charge, as many
copies of the Prospectus or Prospectuses (including each form of prospectus)
and each amendment or supplement thereto as such Persons reasonably request;
and the Company hereby consents to the use of such Prospectus and each
amendment or supplement thereto by each of the selling Holders of Transfer
Restricted Securities and the underwriters, if any, in connection with the
offering and sale of the Transfer Restricted Securities covered by such
Prospectus and any amendment or supplement thereto;
(h) Prior to any public offering of Transfer Restricted Securities, use
its reasonable best efforts to register or qualify or cooperate with the
Holders of Transfer Restricted Securities to be sold or tendered for, the
underwriters, if any, and their respective counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of such Transfer Restricted Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions within the
United States as any Holder or underwriter reasonably requests in writing;
keep each such registration or qualification (or exemption therefrom)
effective during the period such Registration Statement is required to be
kept effective and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of the Transfer
Restricted Securities covered by the Shelf Registration Statement; provided,
however, that the Company shall not be required to qualify generally to do
business in any jurisdiction where they are not then so qualified or to take
any action that would subject them to general service of process in any such
jurisdiction where they are not then so subject or subject the Company to
any tax in any such jurisdiction where it is not then so subject;
(i) In connection with any sale or transfer of Transfer Restricted
Securities that will result in such securities no longer being Transfer
Restricted securities, cooperate with the Holders and the managing
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing Transfer Restricted Securities to be sold, which
certificates shall not bear any restrictive legends and shall be in a form
eligible for deposit with The Depository Trust Company and to enable such
Transfer Restricted Securities to be in such denominations and registered in
such names as the managing underwriters, if any, or Holders may request at
least two Business Days prior to any sale of Transfer Restricted Securities;
(j) Use its reasonable best efforts to cause the offering of the Transfer
Restricted Securities covered by the Registration Statement to be registered
with or approved by such other governmental agencies or authorities within
the United States, except as may be required as a consequence of the nature
of such selling Holder's business, in which case the Company will cooperate
in all reasonable respects with the filing of such Registration Statement
and the granting of such approvals as may be necessary to enable the seller
or sellers thereof or the underwriters, if any, to consummate the
disposition of such Transfer Restricted securities; provided, however, that
the Company shall not be required to register the Transfer Restricted
Securities in any jurisdiction that would subject them to general service of
process in any such jurisdiction where it is not then so subject or subject
the Company to any tax in any such jurisdiction where it is not then so
subject or to require the Company to qualify to do business in any
jurisdiction where it is not then so qualified;
(k) Upon the occurrence of any event contemplated by Paragraph 3 (c) (vi)
, as promptly as practicable, prepare a supplement or amendment, including,
if appropriate, a post-effective amendment, to each Registration Statement
or a supplement to the related Prospectus or any document incorporated or
deemed to be incorporated therein by reference, and file any other required
document so that, as thereafter delivered, such Prospectus 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,
in light of the circumstances under which they were made, not misleading;
(1) Prior to the effective date of the first Registration Statement
relating to the Transfer Restricted Securities, as applicable, to provide a
CUSIP number for the Transfer Restricted Securities;
(m) Enter into such agreements (including an underwriting agreement in
form, scope and substance as is customary in underwritten offerings) and
take all such other reasonable actions in connection therewith (including
those reasonably requested by the managing underwriters, if any, or the
Holders of a majority in aggregate principal amount of the Transfer
Restricted securities being sold) in order to expedite or facilitate the
disposition of such Transfer Restricted Securities, and in such connection,
whether or not an underwriting agreement is entered into and whether or not
the registration is an underwritten registration, (i) make such
representations and warranties to the Holders of such Transfer Restricted
Securities and the underwriters, if any, with respect to the business of the
Company and its subsidiaries (including with respect to businesses or assets
acquired or to be acquired by any of them), and the Registration Statement,
Prospectus and documents, if any, incorporated or deemed to be incorporated
by reference therein, in each case, in form, substance and scope as are
customarily made by issuers to underwriters in underwritten offerings, and
confirm the same if and when requested; (ii) obtain opinions of counsel to
the Company and updates thereof (which counsel and opinions (in form, scope
and substance) shall be reasonably satisfactory to the managing
underwriters, if any, and Special Counsel to the Holders of the Transfer
Restricted Securities being sold), addressed to each selling Holder of
Transfer Restricted Securities and each of the underwriters, if any,
covering the matters customarily covered in opinions requested in
underwritten offerings and such other matters as may be reasonably requested
by such Special Counsel and underwriters; (iii) use its best efforts to
obtain customary "cold comfort" letters and updates thereof from the
independent certified public accountants of the Company (and, if necessary,
any other independent certified public accountants of any business which may
hereafter be acquired by the Company for which financial statements and
financial data are required to be included in the Registration Statement),
addressed (where reasonably possible) to each selling Holder of Transfer
Restricted Securities and each of the underwriters, if any, such letters to
be in customary form and covering matters of the type customarily covered in
"cold comfort" letters in connection with underwritten offerings; (iv) if an
underwriting agreement is entered into, the same shall contain
indemnification provisions and procedures no less favorable to the selling
holders and the underwriters, if any, than those set f ▇▇▇▇ in Section 8
hereof (or such other provisions and procedures acceptable to Holders of a
majority in aggregate principal amount of Transfer Restricted Securities
covered by such Registration Statement and the managing underwriters); and
(v) deliver such documents and certificates as may be reasonably requested
by the Holders of a majority in aggregate principal amount of the Transfer
Restricted Securities being sold, their Special Counsel and the managing
underwriters, if any, to evidence the continued validity of the
representations and warranties made pursuant to clause 3 (m) (i) above and
to evidence compliance with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Company;
(n) Make available for inspection by a representative of the Holders of
Transfer Restricted Securities being sold, any underwriter participating in
any such disposition of Transfer Restricted Securities, if any, and any
attorney, consultant or accountant retained by such selling Holders or
underwriter, at the offices where normally kept, during reasonable business
hours, all pertinent financial and other records, pertinent corporate
documents and properties of the Company and its subsidiaries (including with
respect to business and assets acquired or to be acquired to the extent that
such information is available to the Company) and cause its subsidiaries
(including with respect to business and assets acquired or to be acquired to
the extent that such information is ~available to the Company) to supply
such pertinent information in each case reasonably requested by any such
representative, underwriter, attorney, consultant or accountant in
connection with such Shelf Registration, provided, however, that such
Persons shall first agree in writing with the Company that any information
that is reasonably and in good faith designated by the Company in writing as
confidential at the time of delivery of such information shall be kept
confidential by such Persons, unless (i) disclosure of such information is
required by court or administrative order or is necessary to respond to
inquiries of regulatory authorities, (ii) disclosure of such information is
required by law (including any disclosure requirements pursuant to Federal
Securities Laws in connection with the filing of any Registration Statement
or the use of any prospectus referred to in this Agreement), (iii) such
information becomes generally available to the public other than as a result
of a disclosure or failure to safeguard by such Person or (iv) such
information becomes lawfully available to such Person from a source other
than the Company and such source obtained such information lawfully and is
not otherwise bound by a confidentiality agreement.
(o) The company will use its reasonable best efforts to cause the Warrant
Shares issuable upon exercise of the Warrants to be quoted or listed on any
exchange upon which the Company's Common Stock is then quoted or listed, on
or prior to the Effective Date.
(p) Comply with all applicable rules and regulations of the Commission and
make generally available to their securityholders earning statements
satisfying the provisions of Section 11(a) of the Securities Act and Rule
158 thereunder (or any similar rule promulgated under the Securities Act) ,
no later than 45 days after the end of any 12-month period (or 90 days after
the end of any 12-month period if such period is a fiscal year) (i)
commencing at the end of any fiscal quarter in which Transfer Restricted
Securities are sold to underwriters in a firm commitment or reasonable
efforts underwritten offering and (ii) if not sold to underwriters in such
an offering, commencing on the first day of the first fiscal quarter after
the effective date of a Registration Statement, which statement shall cover
said period, consistent with the requirements of Rule 158; and
(q) The company will use its reasonable best efforts to take all other
steps necessary to effect the registration, offering and sale of the Warrant
Shares covered by the Shelf Registration Statement.
The Company may require each seller of Transfer Restricted Securities
as to which any registration is being effected to furnish to the Company such
information regarding the distribution of such Transfer Restricted Securities
as is required by law to be disclosed in the applicable Registration Statement
and the Company may exclude from such registration the Transfer Restricted
Securities of any seller who unreasonably fails to furnish such information
within a reasonable time after receiving such request.
If any such 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 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 statute
then in force, the deletion of the reference to such holder in any amendment
or supplement to the Registration Statement filed or prepared subsequent to
the time that such reference ceases to be required.
Each Holder of Transfer Restricted securities agrees by acquisition of
such Transfer Restricted Securities that, upon receipt of any notice from the
Company of the happening of any event of the kind described in Section 3
(c)(ii), 3(c)(iii), 3(c)(v) or 3(c)(vi) hereof, such Holder will forthwith
discontinue disposition of such Transfer Restricted Securities covered by such
Registration Statement or Prospectus until such Holder's receipt of the copies
of the supplemented or amended Prospectus contemplated by Section 3(k) hereof,
or until it is advised in writing (the "Advice") by the Company that the use
of the applicable Prospectus may be resumed, and, in either case, has received
copies of any additional or supplemental filings that are incorporated or
deemed to be incorporated by reference in such Prospectus. If the Company
shall give any such notice, the Effectiveness Period shall be extended by the
number of days during such period from and including the date of the giving of
such notice to and including the date when each seller of Transfer Restricted
Securities covered by such Registration Statement shall have received (x) the
copies of the supplemented or amended Prospectus contemplated by Section 3(k)
hereof or (y) the Advice, and, in either case, has received copies of any
additional or supplemental filings that are incorporated or deemed to be
incorporated by reference in such Prospectus.
4. Registration Expenses. (a) All fees and expenses incident to the
performance of or compliance with this Agreement by the Company shall be borne
by it whether or not any Registration Statement is filed or becomes effective
and whether or not any securities are issued or sold pursuant to any
Registration Statement. The fees and expenses referred to in the foregoing
sentence shall include, without limitation, (i) all registration and filing
fees (including, without limitation, fees and expenses (A) with respect to
filings required to be made with the National Association of Securities
Dealers, Inc. and (B) in compliance with securities or Blue Sky laws
(including, without limitation and in addition to that provided for in (b)
below, fees and disbursements of counsel for the underwriters or Holders in
connection with Blue Sky qualifications of the Transfer Restricted Securities
and determination of the eligibility of the Transfer Restricted Securities for
investment under the laws of such jurisdictions as the managing underwriters,
if any, or Holders of a majority of Transfer Restricted securities may
designate) , (ii) printing expenses (including, without limitation, expenses
of printing certificates for Transfer Restricted securities in a form eligible
for deposit with The Depository Trust Company and of printing Prospectuses if
the printing of Prospectuses is requested by the managing underwriters, if
any, or by the Holders of a majority of the Transfer Restricted Securities
included in any Registration Statement), (iii) messenger, telephone and
delivery expenses, (iv) fees and disbursements of counsel for the Company and
Special Counsel for the Holders (plus any local counsel, deemed appropriate by
the Holders of a majority in aggregate principal amount of the Transfer
Restricted Securities) , in accordance with the provisions of Section 4(b)
hereof, (v) fees and disbursements of all independent certified public
accountants referred to in Section 3(m)(iii) (including, without limitation,
the expenses of any special audit and "cold comfort" letters required by or
incident to such performance) , (vi) Securities Act liability insurance, if
the Company so desires such insurance, and (vii) fees and expenses of all
other persons retained by the Company. In addition, the Company shall pay its
internal expenses (including, without limitation, all salaries and expenses of
their officers and employees performing legal or accounting duties), the
expense of any annual audit, and the fees and expenses incurred in connection
with the listing of the securities to be registered on any securities exchange.
Notwithstanding the foregoing or anything in this Agreement to the contrary,
each Holder shall pay all underwriting discounts and commissions of any
underwriters with respect to any Warrant Shares sold by it.
(b) In connection with any Registration hereunder, the Company shall
reimburse the Holders of the Transfer Restricted Securities being registered in
such registration for the reasonable fees and disbursements of not more than
one firm of attorneys representing the selling Holders (in addition to any
local counsel) chosen by the Holders of a majority of the Transfer Restricted
Securities.
5. Indemnification: (a) The Company agrees to indemnify and hold
harmless (i) each of the Purchasers, each Holder - of Transfer Restricted
Securities and (ii) each person, if any, who controls (within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act) any of the foregoing
(any of the persons referred to in this clause (ii) being hereinafter referred
to as a "controlling person"), and (iii) the respective officers, directors,
partners, employees, representatives and agents of the Purchasers, each Holder
of Transfer Restricted Securities, each Participating Broker-Dealer or any
controlling person (any person referred to in clause (i), (ii) or (iii) may
hereinafter be referred to as an "Indemnified Person") , from and against any
and all losses, claims, damages, liabilities and judgments caused by any
untrue statement or alleged untrue statement of a material fact contained in
any Registration Statement, Prospectus or form of Prospectus or in any
amendment or supplement thereto or in any preliminary Prospectus, or caused by
any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein (in the case of
any Prospectus or form of Prospectus or supplement thereto, in light of the
circumstances under which they were made) not misleading, except insofar as
such losses, claims, damages, liabilities or judgments are caused by any such
untrue statement or omission or alleged untrue statement or omission based
upon information relating to any Indemnified Person furnished in writing to
the Company by or on behalf of such Indemnified Person expressly for use
therein; provided that the foregoing indemnity with respect to any preliminary
prospectus shall not inure to the benefit of any Indemnified Person from whom
the person asserting such losses, claims, damages, liabilities and judgments
purchased securities if such untrue statement or omission or alleged untrue
statement or omission made in such preliminary prospectus is eliminated or
remedied in the Prospectus and a copy of the Prospectus shall not have been
furnished to such person in a timely manner due to the wrongful action or
wrongful inaction of such Indemnified Person.
(b) In case any action shall be brought against any Indemnified
Person, based upon any Registration Statement or any such Prospectus or any
amendment or supplement thereto and with respect to which indemnity may be
sought against the Company or Holdings, such Indemnified Person shall promptly
notify the Company in writing and the Company shall assume the defense thereof,
including the employment of counsel reasonably satisfactory to such Indemnified
Person and payment of all fees and expenses. Any Indemnified Person shall have
the right to employ separate counsel in any such action and participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of such Indemnified Person, unless (i) the employment of such counsel
shall have been specifically authorized in writing by the company, (ii) the
Company shall have failed to assume the defense and employ counsel or (iii)
the named parties to any such action (including any impleaded parties) include
both such Indemnified Person and the Company and such Indemnified Person shall
have been advised by counsel that there may be one or more legal defenses
available to it which are different from or additional to those available to
the Company (in which case the Company shall not have the right to assume the
defense of such action on behalf of such Indemnified Person, it being
understood, however, that the Company shall not, in connection with any one
such action or separate but substantially similar or related actions in the
same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys (in addition to any local counsel) for all such
Indemnified Persons, which firm shall be designated in writing by such
Indemnified Persons, and that all such fees and expenses shall be reimbursed
as they are incurred). The Company and Holdings shall not be liable for any
settlement of any such action effected without its written consent but if
settled with the written consent of the Company, the Company agrees to
indemnify and hold harmless any Indemnified Person from and against any loss or
liability by reason of such settlement. 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 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 on claims that are the
subject matter of such proceeding.
(c) In connection with any Registration Statement in which a Holder
of Transfer Restricted Securities is participating, such Holder of Transfer
Restricted Securities agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, its officers, employees, representatives
and agents and any person controlling the Company within the meaning of
section 15 of the Act or Section 20 of the Exchange Act, to the same extent as
the foregoing indemnity from the Company to each Indemnified Person but only
with reference to information relating to such Indemnified Person furnished in
writing by or on behalf of such Indemnified Person expressly for use in such
Registration Statement. In case any action shall be brought against the
Company, any of its directors, any such officer, employees, representatives or
agents or any person controlling the Company or Holdings based on such
Registration Statement and in respect of which indemnity may be sought against
any Indemnified Person, the Indemnified Person shall have the rights and
duties given to the Company (except that if the Company shall have assumed the
defense thereof, such Indemnified Person shall not be required to do so, but
may employ separate counsel therein and participate in defense thereof but the
fees and expenses of such counsel shall be at the expense of such Indemnified
Person), and the Company, its directors, any such officers, employees,
(representatives or agents) and any person controlling the Company shall have
the rights and duties given to the Indemnified Person, by Section 5(b) hereof.
(d) If the indemnification provided for in this Section 5 is
unavailable to an indemnified party in respect of any losses, claims, damages,
liabilities or judgments referred to therein, then each 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 and judgments (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company and Holdings on the one
hand and each Indemnified Person on the other hand from the offering of the
Warrants or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i)' above but also the
relative fault of the Company and Holdings and each such Indemnified Person in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative fault of the Company and Holdings and
each such Indemnified Person shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the omission to state a material fact relates to information supplied by -the
Company or Holdings or such Indemnified Person and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Purchasers agree that it would
not be just and equitable if contribution pursuant to this Section 5(d) were
determined by pro rata allocation (even if the Indemnified Person were treated
as one entity for such purpose) or by any other 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, liabilities or judgments
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 5, no Indemnified Person shall be required to contribute any amount in
excess of the amount by which the total net prof it received by it in
connection with the sale of the Notes pursuant to this Agreement exceeds the
amount of any damages which such Indemnified Person has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Indemnified Persons' obligations to contribute pursuant
to this Section 7(d) are several in proportion to the respective amount of
Warrant Shares included in any such Registration Statement by each Indemnified
Person and not joint.
6. Rules 144 and 144A. The Company shall use its reasonable best
efforts to file the reports required to be filed by it under the Securities
Act and the Exchange Act in a timely manner and, if at any time it is not
required to file such reports but in the past had been required to or did file
such reports, it will, upon the request of any Holder of Transfer Restricted
Securities, make available other information as required. by, and so long as
necessary to permit, sales of its Transfer Restricted Securities pursuant to
Rule 144A. Notwithstanding the foregoing, nothing in this Section 6 shall be
deemed to require the Company to register any of its securities pursuant to
the Exchange Act.
7. Underwritten Registrations. If any of the Transfer Restricted
Securities covered by any Shelf Registration Statement are to be sold in an
underwritten offering, the investment banker or investment bankers and manager
or managers that will administer the offering will be selected by the Holders
of a majority in aggregate principal amount of such Transfer Restricted
Securities included in such offering, subject to the consent of the Company
(which will not be unreasonably withheld or delayed).
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted
Securities on the basis reasonably provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and
(ii) completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents required under the
terms of such underwriting arrangements.
` 8. Miscellaneous.
(a) Remedies. In the event of a breach by the Company, or by
a Holder of Transfer Restricted Securities, of any of their obligations
under this Agreement, each Holder of Transfer Restricted Securities or the
Company, as the case may be, in addition to being entitled to exercise all
rights granted by law, including recovery of damages, will be entitled to
specific performance of its rights under this Agreement. The Company and
each Holder of Transfer Restricted Securities agree that monetary damages
would not be adequate compensation for any loss incurred by reason of a
breach by it of any of the provisions of this Agreement and hereby further
agrees that, in the event of any action for specific performance in
respect of such breach, it shall waive the defense that a remedy at law
would be adequate.
(b) No Inconsistent Agreements. The Company will not enter
into any agreement with respect to its securities that is inconsistent
with the rights granted to the Holders of Transfer Restricted Securities
in this Agreement or otherwise conflicts with the provisions hereof. The
Company has not previously entered into any agreement granting any
registration rights with respect to any of its equity securities to any
person except for agreements with holders of registration rights granted
prior to the date hereof (from whom all necessary consents or waivers have
been obtained). Without limiting the generality of the foregoing, without
the written consent of the Holders of a majority of the then outstanding
Transfer Restricted Securities, the Company shall not grant to any person
the right to request it to register' any of its equity securities under
the Securities Act unless the rights so granted are subject in all
respects to the prior rights of the Holders of Transfer Restricted
Securities set forth herein, and are not otherwise in conflict or
inconsistent with the provisions of this Agreement.
(c) No Piggyback on Registrations. The Company shall not
grant to any of its securityholders (other than the Holders of Transfer
Restricted Securities in such capacity) the right to include any
securities of the Company in any Shelf Registration other than Transfer
Restricted Securities.
(d) 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 they have obtained the written
consent of the Holders of a majority of the then outstanding Transfer
Restricted Securities; provided, however, that, for the purposes of this
Agreement, Transfer Restricted Securities that are owned, directly or
indirectly, by the Company or an Affiliate of the Company are not deemed
outstanding. Notwithstanding the foregoing, a waiver or consent to depart
from the provisions hereof with respect to a matter that relates
exclusively to the rights of Holders of Transfer Restricted Securities
whose securities are being sold pursuant to a Registration Statement and
that does not directly or indirectly affect the rights of other Holders of
Transfer Restricted Securities may be given by Holders of a majority in
amount of the Transfer Restricted Securities being sold by such Holders
pursuant to such Registration Statement; provided, however, that the
provisions of this sentence may not be amended, modified, or supplemented
except in accordance with the provisions of the immediately preceding
sentence.
(e) Notices. All notices and other communications provided for
herein shall be made in writing by hand delivery, next-day air courier,
certified first-class mail, return receipt requested, telex or facsimile:
(i) if to the Company, as provided in the Purchase
Agreement,
(ii) if to the Purchasers, as provided in the Purchase
Agreement, or
(iii) if to any other person who is then the registered
Holder of any Transfer Restricted Securities, to the address
of such Holder as it appears in the Share register of the
Company.
Except as otherwise provided in this Agreement, all such communications
shall be deemed to have been duly given: when delivered by hand, if personally
delivered; one business day after being timely delivered to a next-day air
courier; five business days after being deposited in the mail, postage
prepaid, if mailed; when answered back, if telexed; and when receipt is
acknowledged by the recipient's telecopier machine, if telecopied.
(f) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and permitted assigns of
each of the parties and shall inure to the benefit of each Holder of
Transfer Restricted securities. The Company may not assign its rights or
obligations hereunder without the prior written consent of each Holder of
any Transfer Restricted Securities. Notwithstanding the foregoing, no
transferee shall have any of the rights granted under this Agreement until
such transferee shall acknowledge its rights and obligations hereunder by
a signed written statement of such transferee's acceptance of such rights
and obligations.
(g) 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.
(h) Governing Law; Submission to Jurisdiction: Waiver of Jury
Trial. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND
PERFORMED WITHIN THE STATE OF NEW YORK. THE COMPANY AND HOLDINGS HEREBY
IRREVOCABLY SUBMIT TO THE JURISDICTION OF ANY NEW YORK STATE COURT SITTING
IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT
SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF
ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT, AND IRREVOCABLY ACCEPT FOR THEMSELVES AND IN RESPECT OF THEIR
PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID
COURTS.
(i) Severability. The remedies provided herein are cumulative
and not exclusive of any remedies provided by law. If any term, provision,
covenant or restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, illegal, void or unenforceable, the remainder
of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected,
impaired or invalidated, and the parties hereto shall use their reasonable
efforts to find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term,
provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the
remaining terms, provisions, covenants and restrictions without including
any of such that may be hereafter declared invalid, illegal, void or
unenforceable.
(j) Headings. The headings in this Agreement are for
convenience of reference only. and shall not limit or otherwise affect the
meaning hereof. All references made in this Agreement to "Section" and
"paragraph" refer to such Section or paragraph of this Agreement, unless
expressly stated otherwise.
(k) Attorneys' Fees. In any action or proceeding brought to
enforce any provision of this Agreement, or where any provision hereof or
thereof is validly asserted as a defense, the prevailing party, as
determined by the court, shall be entitled to recover reasonable
attorneys' fees in addition to any other available remedy.
Please confirm that the foregoing correctly sets forth the agreement
between the Company and you.
Very truly yours,
PRICE COMMUNICATIONS
CORPORATION
By:
------------------------
Name:
Title:
The foregoing Warrant Registration Rights Agreement is hereby
confirmed and accepted as of the date first above written.
NATWEST CAPITAL MARKETS LIMITED
on behalf of the Purchasers
By:
----------------------------------
Name:
Title:
Please confirm that the foregoing correctly sets forth the agreement
between the Company and you.
Very truly yours,
PRICE COMMUNICATIONS
CORPORATION
By:
------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: President
The foregoing Warrant Registration Rights Agreement is hereby
confirmed and accepted as of the date first above written.
NATWEST CAPITAL MARKETS LIMITED
on behalf of the Purchasers
By:
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
