EXHIBIT 4.4
SHELF REGISTRATION RIGHTS AGREEMENT
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November 28, 1997
To The Purchasers listed on
the signature pages hereof
Gentlemen:
▇▇▇▇▇▇ Communications, Inc., a Delaware corporation (the
"Company"), proposes to issue and sell to ▇▇. ▇▇▇ ▇▇▇▇, Group Plc, Bear,
▇▇▇▇▇▇▇ & Co., Inc. and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
(collectively, the "Purchasers"), upon the terms set forth in an agreement
of even date herewith for the sale and purchase of all of the issued share
capital of Rapid Deployment Group Limited (the "Purchase Agreement"),
768,726 shares of Common Stock, par value $0.001 per share, of the Company
(the "Common Stock"). Pursuant to the terms of this Agreement, the Company
has agreed to cause a Shelf Registration Statement (as defined below) to
be filed covering 105,000 of the shares of Common Stock issued to the
Purchasers pursuant to the Purchase Agreement (such number of the shares
of Common Stock being referred to herein as the "Securities"). As an
inducement to the Purchasers to enter into the Purchase Agreement and in
accordance with the terms thereof, the Company agrees with the Purchasers,
(i) for the benefit of the Purchasers and (ii) for the benefit of the
holders of the Securities from time to time until such time as such
Securities have been sold pursuant to a Shelf Registration Statement (each
of the foregoing a "Holder" and together the "Holders"), as follows:
1. Shelf Registration. The Company shall take the following
actions:
(a) The Company shall, at its cost, prepare and, as promptly
as practicable, file with the United States Securities and Exchange
Commission (the "Commission") and thereafter shall use its best efforts to
cause to be declared effective as soon as practicable but in any case
within 90 days of the Completion Date under the Purchase Agreement, a
registration statement on Form S-3 (the "Shelf Registration Statement")
covering the offer and sale of the Transfer Restricted Securities (as
defined below) by the Holders thereof from time to time in accordance with
the methods of distribution elected by such Holders and set forth in the
Shelf Registration Statement and Rule 415 under the Securities Act of
R:\74807\0019\1821\LTR0147R.34D
1933, as amended (the "Securities Act") (hereinafter, the "Shelf
Registration"); provided, however, that no Holder (other than a Purchaser)
shall be entitled to have the Securities held by it covered by such Shelf
Registration Statement unless such Holder agrees in writing to be bound by
all the provisions of this Agreement applicable to such Holder. "Transfer
Restricted Securities" means each Security until (i) the date on which
such Security has been effectively registered under the Securities Act and
disposed of in accordance with the Shelf Registration Statement or (ii)
the date on which such Security is distributed to the public pursuant to
Rule 144 under the Securities Act or is saleable pursuant to Rule 144
under the Securities Act.
(b) The Company shall use its best efforts to keep the Shelf
Registration Statement continuously effective, in order to permit the
prospectus included therein to be lawfully delivered by the Holders of the
relevant Securities, until the earlier of such time as all the Securities
covered by the Shelf Registration Statement have been sold pursuant
thereto or the first anniversary of the Completion Date under the Purchase
Agreement, provided, however, that such period shall be extended beyond
such date by the number of days (if any) use of the prospectus was
suspended during such period pursuant to Section 2(h) (in any case, such
period being called the "Shelf Registration Period"). The Company shall be
deemed not to have used its best efforts to keep the Shelf Registration
Statement effective during the requisite period if it voluntarily takes
any action that would result in Holders of Securities covered thereby not
being able to offer and sell such Securities during that period, unless
(i) such action is required by applicable law or (ii) upon the occurrence
of any event contemplated by paragraph 2(b)(v) below, such action is taken
by the Company in good faith and for valid business reasons (not including
avoidance of the Company's obligations hereunder) and the Company
thereafter complies with the requirements of paragraph 2(h) below.
(c) Notwithstanding any other provisions of this Agreement to
the contrary, the Company shall cause (other than information required to
be supplied by the selling Holders pursuant to this Agreement) (i) the
Shelf Registration Statement and the related prospectus and any amendment
or supplement thereto comply in all material respects with the applicable
requirements of the Securities Act and the rules and regulations of the
Commission thereunder, (ii) the Shelf Registration Statement and any
amendment thereto not to contain, when it becomes effective, an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading and (iii) any prospectus forming a part of the Shelf
Registration Statement, and any amendment or supplement to such
prospectus, not to contain, as of the date of such prospectus or amendment
or supplement, any untrue statement of a material fact or omit to state a
material fact required to be
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stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
2. Registration Procedures. In connection with the Shelf
Registration contemplated by Section 1 hereof the following provisions
shall apply:
(a) The Company shall (i) furnish to each Purchaser, prior to
the filing thereof with the Commission, a copy of the Shelf Registration
Statement and each amendment thereof and each amendment or supplement, if
any, to the prospectus included therein and (ii) include the names of the
Holders who propose to sell Securities pursuant to the Shelf Registration
Statement, as selling security holders, and the manner of distribution
they have elected.
(b) The Company shall give written notice to the Purchasers
and the Holders (which notice pursuant to clauses (ii)-(v) hereof shall be
accompanied by an instruction to suspend the use of the prospectus until
the requisite changes have been made):
(i) when the Shelf Registration Statement or any amendment
thereto has been filed with the Commission and when the Shelf
Registration Statement or any post-effective amendment thereto
has become effective;
(ii) of any request by the Commission for amendments or
supplements to the Shelf Registration Statement or the
prospectus included therein or for additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration
Statement or the initiation of any proceedings for that
purpose;
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(iv) of the receipt by the Company or its legal counsel of any
notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction
or the initiation or threatening of any proceeding for such
purpose; and
(v) of the happening of any event that requires the Company to
make changes in the Shelf Registration Statement or the
prospectus in order that the Shelf Registration Statement or
the prospectus do not contain an untrue statement of a
material fact nor omit to state a material fact required to be
stated therein or necessary to make the statements therein (in
the case of the prospectus, in light of the circumstances
under which they were made) not misleading, which written
notice need not provide any detail as to the nature of such
event.
(c) The Company shall use best reasonable commercial efforts
to obtain the withdrawal at the earliest possible time, of any order
suspending the effectiveness of the Shelf Registration Statement.
(d) The Company shall furnish to each Holder of Securities
included within the coverage of the Shelf Registration, without charge, at
least one copy of the Shelf Registration Statement and any post-effective
amendment thereto, including financial statements and schedules, and, if
the Holder so requests in writing, all exhibits thereto (including those
incorporated by reference).
(e) The Company shall, during the Shelf Registration Period,
deliver to each Holder of Securities included within the coverage of the
Shelf Registration Statement, without charge, as many copies of the
prospectus (including each preliminary prospectus) included in the Shelf
Registration Statement and any amendment or supplement thereto as such
person may reasonably request. The Company consents, subject to the
provisions of this Agreement, to the use of the prospectus or any
amendment or supplement thereto by each of the selling Holders in
connection with the offering and sale of the Securities covered by the
prospectus, or any amendment or supplement thereto, included in the Shelf
Registration Statement.
(f) Prior to any public offering of the Securities pursuant to
the Shelf Registration Statement, the Company shall register or qualify or
cooperate with the Holders of the Securities included therein and their
respective counsel in connection with the registration or qualification of
such Securities for offer and sale under the securities or "blue sky" laws
of such states of the United States as any such Holder reasonably requests
in writing and do any and all other acts or
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things necessary or advisable to enable the offer and sale in such
jurisdictions of the Securities covered by the Shelf Registration
Statement; provided, however, that the Company shall not be required to
(i) qualify generally to do business in any jurisdiction where it is not
then so qualified or (ii) take any action which would subject it to
general service of process or to taxation in any jurisdiction where it is
not then so subject.
(g) The Company, at its own expense, shall cooperate with the
Holders of the Securities to facilitate the timely preparation and
delivery of certificates representing the Securities to be sold pursuant
to the Shelf Registration Statement free of any restrictive legends and in
such denominations and registered in such names as the Holders may request
a reasonable period of time prior to sales of the Securities pursuant to
the Shelf Registration Statement.
(h) Upon the occurrence of any event contemplated by
paragraphs (ii) through (v) of Section 2(b) above during the period for
which the Company is required to maintain an effective Shelf Registration
Statement, the Company shall as promptly as practicable prepare and file a
post-effective amendment to the Shelf Registration Statement or an
amendment or supplement to the related prospectus and any other required
document so that, as thereafter delivered to Holders or purchasers of
Securities, the prospectus will not contain an untrue statement of a
material fact or omit to state any material fact required to be stated
herein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, provided in the
case of paragraph (v) of Section 2(b) the Company's obligations pursuant
to this paragraph (h) may be suspended for one or more periods of up to 30
days in aggregate if the Board of Directors of the Company has determined
in good faith and using reasonable judgment that disclosure of information
sufficient to ensure that the Shelf Registration Statement and related
prospectus contain no such misstatement or omission would be significantly
and materially disadvantageous to the Company's financial condition,
business or prospects. If the Company notifies the Purchasers or the
Holders in accordance with paragraphs (ii) through (v) of Section 2(b)
above to suspend the use of the prospectus until the requisite changes to
the prospectus have been made, then the purchasers and the Holders shall
suspend use of such prospectus.
(i) The Company will comply with all rules and regulations of
the Commission to the extent and so long as they are applicable to the
Shelf Registration and will make generally available to its security
holders (or otherwise provide in accordance with Section 11(a) of the
Securities Act) an earnings statement satisfying the provisions of Section
11(a) of the Securities Act, no later than 45 days after the end of a
12-month period (or 90 days, if such period is a fiscal year) beginning
with the first month of the Company's first fiscal quarter
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commencing after the effective date of the Shelf Registration Statement,
which statement shall cover such 12-month period.
(j) The Company may require each Holder of Securities to be
sold pursuant to the Shelf Registration Statement to furnish to the
Company such information regarding the Holder and the distribution of the
Securities as the Company may from time to time reasonably require for
inclusion in the Shelf Registration Statement, and the Company may exclude
from such registration the Securities of any Holder that fails to furnish
such information within a reasonable time after receiving such request.
3. Registration Expenses. The Company shall bear all fees and
expenses incurred in connection with the performance of its obligations
under Sections 1 and 2 hereof, whether or not the Shelf Registration
Statement is filed or becomes effective, provided that the Holders of the
Securities covered by the Shelf Registration shall bear the fees and
disbursements of their counsel.
4.(a) Indemnification. (a) The Company agrees to indemnify and
hold harmless each Holder and each person, if any, who controls such
Holder within the meaning of the Securities Act or the Exchange Act (each
Holder and such controlling persons are referred to collectively as the
"Indemnified Parties") from and against any losses, claims, damages or
liabilities, joint or several, or any actions in respect thereof
(including, but not limited to, any losses, claims, damages, liabilities
or actions relating to purchases and sales of the Securities) to which
each Indemnified Party becomes subject under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, claims, damages,
liabilities or actions arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the Shelf
Registration Statement or prospectus or in any amendment or supplement
thereto or in any preliminary prospectus relating to the Shelf
Registration, or arise out of, or are based upon, the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and subject to
subsection (c) below, shall reimburse, as incurred, the Indemnified
Parties for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action in respect thereof; provided, however, that the
Company shall not be liable in any such case to the extent that such loss,
claim, damage or liability arises out of or is based upon (x) the use of
any prospectus in violation of the last sentence of Section 2(h) provided
that the Company is in compliance with its obligations pursuant to such
Section, or (y) any untrue statement or alleged untrue statement or
omission or alleged omission made in the Shelf Registration Statement or
prospectus or in any amendment or supplement thereto or in any preliminary
prospectus relating to the Shelf Registration made in reliance upon and in
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conformity with written information pertaining to such Holder and
furnished to the Company by or on behalf of such Holder specifically for
inclusion therein.
(b) Each Holder, severally and not jointly, will indemnify and
hold harmless the Company and each person, if any, who controls the
Company within the meaning of the Securities Act or the Exchange Act from
and against any losses, claims, damages or liabilities or any actions in
respect thereof, to which the Company or any such controlling person
becomes subject under the Securities Act, the Exchange Act or otherwise,
insofar as such losses, claims, damages, liabilities or actions arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in a Shelf Registration Statement or prospectus or
in any amendment or supplement thereto or in any preliminary prospectus
relating to a Shelf Registration, or arise out of or are based upon the
omission or alleged omission to state therein a material fact necessary to
make the statements therein not misleading, but in each case only to the
extent that the untrue statement or omission or alleged untrue statement
or omission was made in reliance upon and in conformity with written
information pertaining to such Holder and furnished to the Company by or
on behalf of such Holder specifically for inclusion therein; and, subject
to the limitation set forth immediately preceding this clause, and to
subsection (c) below, shall reimburse, as incurred, the Company for any
legal or other expenses reasonably incurred by the Company or any such
controlling person in connection with investigating or defending any loss,
claim, damage, liability or action in respect thereof. This indemnity
agreement will be in addition to any liability which such Holder may
otherwise have to the Company or any of its controlling persons.
(c) Promptly after receipt by an indemnified party under this
Section 4 of notice of the commencement of any action or proceeding
(including a governmental investigation), such indemnified party will, if
a claim in respect thereof is to be made against the indemnifying party
under this Section 4, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not, in
any event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation provided in
subsections (a) or (b) above. In case any such action is brought against
any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any
other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party
(who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party if the representation of both such
parties by the same counsel would constitute a conflict of interest).
Notwithstanding the foregoing, if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall
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have reasonably concluded that there exists a conflict of interest between
the indemnifying party and any indemnified party or that there may be
legal defenses available to it and other indemnified parties which are
different from or additional to, and inconsistent or in conflict with,
those available to the indemnifying party, the indemnified party or
parties shall have the right to select separate counsel to assert such
legal defenses and to otherwise participate in the defense of such action
on behalf of such indemnified party or parties. After notice from the
indemnifying party to such indemnified party of its election so to assume
the defense thereof the indemnifying party will not be liable to such
indemnified party under this Section 4 for any legal or other expenses,
other than reasonable costs of investigation, subsequently incurred by
such indemnified party in connection with the defense thereof unless (i)
the indemnified party shall have employed separate counsel in accordance
with the preceding sentence, (ii) the indemnifying party shall not have
employed counsel reasonably satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
commencement of the action, or (iii) the indemnifying party has authorized
the employment of counsel for the indemnified party at the expense of the
indemnifying party, and except that, if clause (i) or (iii) is applicable,
such liability shall be only in respect of the counsel referred to in such
clause (i) or (iii). No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any
pending or threatened action 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 any claims that
are the subject matter of such action.
(d) If the indemnification provided for in this Section 4 is
unavailable or insufficient to hold harmless an indemnified party under
subsections (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to in subsections (a) or (b) above (i) in such
proportion as is appropriate to reflect the relative fault of the
indemnifying party or parties on the one hand and the indemnified party on
the other in connection with the statements or omissions that resulted in
such losses, claims, damages or liabilities (or actions in respect
thereof) as well as any other relevant equitable considerations. The
relative fault of the parties shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates
to information supplied by the Company on the one hand or such Holder or
such other indemnified party, as the case may be, on the other, and the
parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages or
liabilities referred
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to in the first sentence of this subsection (d) shall be deemed to include
any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any action or claim which is
the subject of this subsection (d). Notwithstanding any other provision of
this Section 4(d), the Holders shall not be required to contribute any
amount in excess of the amount by which the net proceeds received by such
Holders from the sale of the Securities pursuant to the Shelf Registration
Statement exceeds the amount of damages which such Holders have 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 Securities
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. For purposes of this paragraph (d),
each person, if any, who controls such indemnified party within the
meaning of the Securities Act or the Exchange Act shall have the same
rights to contribution as such indemnified party and each person, if any,
who controls the Company within the meaning of the Securities Act or the
Exchange Act shall have the same rights to contribution as the Company.
(e) The agreements contained in this Section 4 shall survive
the sale of the Securities pursuant to the Shelf Registration Statement
and shall remain in full force and effect, regardless of any termination
or cancellation of this Agreement or any investigation made by or on
behalf of any indemnified party.
5. Rules 144 and 144A. The Company shall file the reports
required to be filed by it under the Securities Act and the Exchange Act
in a timely manner and it will, take such further action as any Holder of
Transfer Restricted Securities shall reasonably request to enable such
holder to sell such securities without registration, including, without
limitation, making publicly available the information necessary to permit
sales of their securities pursuant to Rules 144 and 144A. Notwithstanding
the foregoing, nothing in this Section 5 shall be deemed to require the
Company to register any of its securities pursuant to the Exchange Act.
The Company shall upon written request of a Holder of Registrable
Securities deliver to such Holder a written statement as to its compliance
with such request.
6. Miscellaneous. (a) Amendments and Waivers. The provisions
of this Agreement may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be
given, except by the Company and the written consent of the Holders of a
majority affected by such amendment, modification, supplemented, waiver or
consents.
(b) Notices. All notices and other communications provided for
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or permitted hereunder shall be made in writing by hand delivery,
first-class mail, facsimile transmission, or air courier which guarantees
overnight delivery:
(1) if to a Holder, at the most current address given by such
Holder to the Company in accordance with the provisions of
this Section 6(b), which address initially is, with respect to
each Purchaser, the address set forth in the Purchase
Agreement.
(2) if to the Company, at its address as follows:
▇▇▇▇▇▇ Communications, Inc.
Two Democracy Center
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: Chief Financial Officer
with a copy to:
Weil, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered;
three business days after being deposited in the mail, postage prepaid, if
mailed; when receipt is acknowledged by recipient's facsimile machine
operator, if sent by facsimile transmission; and on the day delivered, if
sent by overnight air courier guaranteeing next day delivery.
(c) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties and each Holder's registration rights are transferable to and may
be exercised by any person to whom Transfer Restricted Securities have
been transferred subject to Section 1(a) hereof.
(d) 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.
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(e) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(f) 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 OF CONFLICTS OF LAWS.
By the execution and delivery of this Agreement, the Company
submits to the nonexclusive jurisdiction of any federal or state court in
the State of New York.
(g) Severability. If any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.
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If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a
binding agreement among the Purchasers and the Company in accordance with
its terms.
Very truly yours,
▇▇▇▇▇▇ COMMUNICATIONS, INC.
By: /s/ A. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: A. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Financial Officer
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The foregoing Shelf Registration Rights Agreement is hereby confirmed and
accepted as of the date first above written.
THE PURCHASERS:
/s/ ▇▇▇ ▇▇▇▇
---------------------------------
▇▇▇ ▇▇▇▇
3i GROUP Plc
By: /s/ ▇.▇. ▇▇▇▇▇
------------------------------
Name: ▇.▇. ▇▇▇▇▇
Title: Director
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
By: /s/ Davies ▇. ▇▇▇▇▇▇
------------------------------
Name: Davies ▇. ▇▇▇▇▇▇
Title: Senior Managing Director
▇▇▇▇▇▇▇ LYNCH, PIERCE,
▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
Title: Managing Director
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