EXHIBIT 10.15
FIRST AMENDED AND RESTATED REGISTRATION AGREEMENT
THIS FIRST AMENDED AND RESTATED REGISTRATION AGREEMENT (this
"AGREEMENT") is made as of January 28, 1999, by and among CompleTel LLC
(formerly known as CableTel Europe LLC), a Delaware limited liability company
(the "COMPANY"), Madison Dearborn Capital Partners II, L.P. ("MDCP"), XxXxxxxx
Holdings Limited Partnership ("XXXXXXXX HOLDINGS"), Xxxxx X. Xxxxx ("XXXXX"),
Xxxxx X. Xxxxxxx ("XXXXXXX"), Xxxxxx X. Xxxx ("XXXX"), Xxxx X. Xxxxx ("XXXXX"),
Dovey Company LLC ("DOVEY LLC"), Xxxxxxx X. Xxxxxxx ("PEARSON"), Xxxxxxx X.
Xxxxxxxxx ("XXXXXXXXX"), Xxxxx X. Xxxxx ("XXXXX"), and the other holders of
Registrable Securities listed on the signature pages attached hereto. MDCP,
XxXxxxxx Holdings, Xxxxx, Holland, Laub, and Xxxxx are referred to herein
collectively as the "INVESTORS" and individually as an "INVESTOR." Capitalized
terms used but not otherwise defined herein have the meanings set forth in
paragraph 8 hereof.
As of May 18, 1998, the Company and MDCP, Xxxxxxxx X. XxXxxxxx
("XXXXXXXX"), Xxxxx X. Xxxxx ("DOVEY"), Pearson, and Xxxxxxxxx entered into a
Registration Agreement (the "PRIOR AGREEMENT"). The parties hereto desire that,
effective as of the date hereof, the Prior Agreement shall be amended and
restated in its entirety as set forth herein.
NOW, THEREFORE, in consideration of the mutual promises made
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto, intending to be legally
bound, agree as follows:
1. DEMAND REGISTRATIONS.
(a) REQUESTS FOR REGISTRATION. At any time after the date
hereof and prior to the Company's Initial Public Offering, the holders of a
majority of the Purchaser Registrable Securities then outstanding may request
registration under the Securities Act of all or any portion of their Registrable
Securities on Form S-1 or any similar long-form registration (a "LONG-FORM
REGISTRATION"). After the Company's Initial Public Offering, (i) the holders of
a majority of the MDCP Registrable Securities then outstanding may request up to
two Long-Form Registrations, (ii) the holders of a majority of the XxXxxxxx
Registrable Securities then outstanding may request one Long-Form Registration,
and (iii) the holders of at least 10% of the Purchaser Registrable Securities
then outstanding may request registration under the Securities Act of all or any
portion of their Registrable Securities on Form S-3 or any similar short-form
registration ("SHORT-FORM REGISTRATIONS") if available; PROVIDED that the
aggregate offering value of the Registrable Securities requested to be
registered in any registration under this paragraph 1(a) (any "DEMAND
REGISTRATION") must equal at least $30 million if the registration is the
Company's Initial Public Offering, at least $15 million in any other Long-Form
Registration, and at least $5 million in any Short-Form Registration.
All requests for Demand Registrations shall be made by giving
written notice to the Company (the "DEMAND NOTICE"). Each Demand Notice shall
specify the approximate number of
- 1 -
Registrable Securities requested to be registered and the anticipated per share
price range for such offering. Within ten days after receipt of any Demand
Notice, the Company shall give written notice of such requested registration to
all other holders of Registrable Securities and, subject to the provisions of
paragraph 1(d) below, shall include in such registration all Registrable
Securities with respect to which the Company has received written requests for
inclusion therein within 15 days after the receipt of the Company's notice.
(b) EXPENSES; WITHDRAWAL. The Company shall pay all
Registration Expenses of all holders of Registrable Securities in all Demand
Registrations. A registration shall not count as one of the permitted Long-Form
Registrations until both (i) it has become effective and (ii) the holders of
Registrable Securities initially requesting such registration are able to
register and sell at least 90% of the Registrable Securities requested to be
included in such registration; PROVIDED that the Company shall in any event pay
all Registration Expenses in connection with any registration initiated as a
Demand Registration whether or not it has become effective and whether or not
such registration has counted as one of the permitted Long-Form Registrations.
All Long-Form Registrations shall be underwritten registrations unless otherwise
requested by the holders of a majority of the Registrable Securities included in
the applicable Long-Form Registration.
(c) SHORT-FORM REGISTRATIONS. Demand Registrations shall be
Short-Form Registrations whenever the Company is permitted to use any applicable
short form. After the Company has become subject to the reporting requirements
of the Securities Exchange Act, the Company shall use its best efforts to make
Short-Form Registrations on Form S-3 (or any successor form) available for the
sale of Registrable Securities.
(d) PRIORITY ON DEMAND REGISTRATIONS. The Company shall not
include in any Demand Registration any securities which are not Registrable
Securities without the prior written consent of the holders of a majority of the
Registrable Securities included in such registration. If a Demand Registration
is an underwritten offering and the managing underwriters advise the Company in
writing that in their opinion the number of Registrable Securities and, if
permitted hereunder, other securities requested to be included in such offering
exceeds the number of Registrable Securities and other securities, if any, which
can be sold in an orderly manner in such offering within a price range
acceptable to the holders of a majority of the Registrable Securities initially
requesting registration, the Company shall include in such registration the
number which can be so sold in the following order of priorities: (i) first, the
Purchaser Registrable Securities requested to be included in such registration,
pro rata among the holders of such Purchaser Registrable Securities on the basis
of the number of shares owned by each such holder, (ii) second, the other
Registrable Securities requested to be included in such registration, pro rata
among the holders of such Registrable Securities on the basis of the number of
shares owned by each such holder, and (ii) third, other securities requested to
be included in such registration.
(e) RESTRICTIONS ON LONG-FORM REGISTRATIONS. The Company shall
not be obligated to effect any Demand Registration which is a Long-Form
Registration within 180 days after the effective date of a previous Demand
Registration which was a Long-Form Registration or a previous registration in
which the holders of Registrable Securities were given piggyback rights pursuant
to paragraph 2 and in which such holders were able to register and sell at least
90% of the
- 2 -
number of Registrable Securities requested to be included therein. The Company
may preempt any request for a Demand Registration in order to effect an
underwritten primary registration on behalf of the Company, PROVIDED that (i)
such preempting underwritten primary registration must become effective within
90 days after the date such preempted Demand Registration is requested, (ii) the
holders of Registrable Securities initially requesting the preempted Demand
Registration must have piggyback rights pursuant to paragraph 2 with respect to
the preempting primary registration and must be able to register and sell
pursuant to such piggyback rights in such primary registration at least 90% of
the Registrable Securities initially requested to be included in the preempted
Demand Registration, (iii) the Company shall pay all Registration Expenses in
connection with any such preempting primary registration, and (iv) the preempted
Demand Registration shall not count as one of the permitted Demand Registrations
hereunder. The Company may preempt a Demand Registration hereunder only once in
any 12-month period. The Company may postpone for up to 180 days the filing or
the effectiveness of a registration statement for a Demand Registration if the
Company's board of directors determines in its reasonable good faith judgment
that such Demand Registration would reasonably be expected to have a material
adverse effect on any proposal or plan by the Company or any of its direct or
indirect subsidiaries to engage in any acquisition of assets (other than in the
ordinary course of business) or any merger, consolidation, tender offer,
reorganiza tion or similar transaction; PROVIDED that in such event, the holders
of Registrable Securities initially requesting such Demand Registration shall be
entitled to withdraw such request and, if such request is withdrawn, such Demand
Registration shall not count as one of the permitted Demand Registrations
hereunder and the Company shall pay all Registration Expenses in connection with
such withdrawn registration. The Company may delay a Demand Registration
hereunder only once in any twelve-month period.
(f) SELECTION OF UNDERWRITERS. Subject to the approval rights
granted to the holders of Purchaser Registrable Securities under the Equity
Purchase Agreement, the Board shall select the investment banker(s) and
manager(s) to administer the offering.
(g) OTHER REGISTRATION RIGHTS. Except as provided in this
Agreement, the Company shall not grant to any Persons the right to request the
Company to register any equity securities of the Company, or any securities
convertible or exchangeable into or exercisable for such securities, without the
prior written consent of the holders of a majority of the Purchaser Registrable
Securities (or, if none, the Registrable Securities) then outstanding; PROVIDED
that the Company may grant rights to other Persons to participate in Piggyback
Registrations so long as such rights are subordinate to the rights of the
holders of Registrable Securities with respect to such Piggyback Registrations;
AND PROVIDED FURTHER that the Company may grant rights to other Persons to
request registrations so long as the holders of Registrable Securities are
entitled to participate in any such registrations with such Persons pro rata on
the basis of the number of shares owned by each such holder.
2. PIGGYBACK REGISTRATIONS.
(a) RIGHT TO PIGGYBACK. Whenever the Company proposes to
register any of its securities under the Securities Act (other than pursuant to
a Demand Registration) and the registration form to be used may be used for the
registration of Registrable Securities (a "PIGGYBACK
- 3 -
REGISTRATION"), the Company shall give prompt written notice (in any event
within three business days after its receipt of notice of any exercise of demand
registration rights other than under this Agreement) to all holders of
Registrable Securities of its intention to effect such a registration and shall,
subject to the provisions of paragraph 2(c) below, include in such registration
all Registrable Securities with respect to which the Company has received
written requests for inclusion therein within 20 days after the receipt of the
Company's notice.
(b) PIGGYBACK EXPENSES. The Registration Expenses of the
holders of Registrable Securities shall be paid by the Company in all Piggyback
Registrations.
(c) PRIORITY ON PRIMARY REGISTRATIONS. If a Piggyback
Registration is an underwritten primary registration on behalf of the Company,
and the managing underwriters advise the Company in writing that in their
opinion the number of securities requested to be included in such registration
exceeds the number which can be sold in an orderly manner in such offering
within a price range acceptable to the Company, the Company shall include in
such registration (i) first, the securities the Company proposes to sell, (ii)
second, the Purchaser Registrable Securities requested to be included in such
registration, pro rata among the holders of such Purchaser Registrable
Securities on the basis of the number of shares owned by each such holder, (iii)
third, the other Registrable Securities requested to be included in such
registration, pro rata among the holders of such Registrable Securities on the
basis of the number of shares owned by each such holder, and (iv) fourth, other
securities requested to be included in such registration.
(d) PRIORITY ON SECONDARY REGISTRATIONS. If a Piggyback
Registration is an underwritten secondary registration on behalf of holders of
the Company's securities, and the managing underwriters advise the Company in
writing that in their opinion the number of securities requested to be included
in such registration exceeds the number which can be sold in an orderly manner
in such offering within a price range acceptable to the holders initially
requesting such registration, the Company shall include in such registration (i)
first, the securities requested to be included therein by the holders requesting
such registration and the Registrable Securities requested to be included in
such registration, pro rata among the holders of any such securities on the
basis of the number of securities so requested to be included therein owned by
each such holder, and (ii) second, other securities requested to be included in
such registration.
(e) SELECTION OF UNDERWRITERS. If any Piggyback Registration
is an underwritten offering, subject to the approval rights granted to the
holders of Purchaser Registrable Securities under the Equity Purchase Agreement,
the Board shall select the investment banker(s) and man ager(s) to administer
the offering.
(f) OTHER REGISTRATIONS. If the Company has previously filed a
registration statement with respect to Registrable Securities pursuant to
paragraph 1 or pursuant to this paragraph 2, and if such previous registration
has not been withdrawn or abandoned, the Company shall not file or cause to be
effected any other registration of any of its equity securities or securities
convert ible or exchangeable into or exercisable for its equity securities under
the Securities Act (except on Form S-8 or any successor form), whether on its
own behalf or at the request of any holder or holders
- 4 -
of such securities, until a period of at least 180 days has elapsed from the
effective date of such previous registration.
3. HOLDBACK AGREEMENTS.
(a) HOLDERS OF REGISTRABLE SECURITIES. Each holder of
Registrable Securities shall not effect any public sale or distribution
(including sales pursuant to Rule 144) of equity securities of the Company, or
any securities convertible into or exchangeable or exercisable for such
securities, during the seven days prior to and the 180-day period beginning on
the effective date of any underwritten Demand Registration or any underwritten
Piggyback Registration in which Registrable Securities are included (in each
case, except as part of such underwritten registration), unless in each case the
underwriters managing the registered public offering otherwise agree.
(b) THE COMPANY. The Company (i) shall not effect any public
sale or distribution of its equity securities, or any securities convertible
into or exchangeable or exercisable for such securities, during the seven days
prior to and during the 180-day period beginning on the effective date of any
underwritten Demand Registration or any underwritten Piggyback Registration
(except as part of such underwritten registration or pursuant to registrations
on Form S-8 or any successor form), unless the underwriters managing the
registered public offering otherwise agree, and (ii) shall cause each holder of
its Common Stock, or any securities convertible into or exchange able or
exercisable for Common Stock, purchased from the Company at any time after the
date of this Agreement (other than in a registered public offering or pursuant
to Rule 144) to agree not to effect any public sale or distribution (including
sales pursuant to Rule 144) of any such securities during such period (except as
part of such underwritten registration, if otherwise permitted), unless the
underwriters managing the registered public offering otherwise agree.
4. REGISTRATION PROCEDURES. Whenever the holders of
Registrable Securities have requested that any Registrable Securities be
registered pursuant to this Agreement, the Company shall use its best efforts to
effect the registration and the sale of such Registrable Securities in
accordance with the intended method of disposition thereof, and pursuant thereto
the Company shall as expeditiously as possible:
(a) prepare and file with the Securities and Exchange
Commission a registration statement with respect to such Registrable Securities
and use its best efforts to cause such registration statement to become
effective (provided that before filing a registration statement or prospectus or
any amendments or supplements thereto, the Company shall furnish to the counsel
selected by the holders of a majority of the Registrable Securities covered by
such registration statement copies of all such documents proposed to be filed,
which documents shall be subject to the review and comment of such counsel);
(b) notify each holder of Registrable Securities of the
effectiveness of each registration statement filed hereunder and prepare and
file with the Securities and Exchange Commission such amendments and supplements
to such registration statement and the prospectus used in connection therewith
as may be necessary to keep such registration statement effective for a period
of not less than 180 days and comply with the provisions of the Securities Act
with respect
- 5 -
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;
(c) furnish to each seller of Registrable Securities such
number of copies of such registration statement, each amendment and supplement
thereto, the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such seller;
(d) use its best efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws of such
jurisdictions as any seller reasonably requests and do any and all other acts
and things which may be reasonably necessary or advisable to enable such seller
to consummate the disposition in such jurisdictions of the Registrable
Securities owned by such seller (provided that the Company shall not be required
to (i) qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subparagraph, (ii) subject itself
to taxation in any such jurisdiction or (iii) consent to general service of
process in any such jurisdiction);
(e) notify each seller of such Registrable Securities, at any
time when a prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement contains an untrue statement
of a material fact or omits any fact necessary to make the statements therein
not misleading, and, at the request of any such seller, the Company shall
prepare a supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus
shall not contain an untrue statement of a material fact or omit to state any
fact necessary to make the statements therein not misleading;
(f) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed and, if not so listed, to be listed on the Nasdaq and, if listed on the
Nasdaq, use its best efforts to secure designation of all such Registrable
Securities covered by such registration statement as a Nasdaq "national market
system security" within the meaning of Rule 11Aa2-1 of the Securities and
Exchange Commission or, failing that, to secure Nasdaq authorization for such
Registrable Securities and, without limiting the generality of the foregoing, to
arrange for at least two market makers to register as such with respect to such
Registrable Securities with the National Association of Securities Dealers (the
"NASD");
(g) provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of such registration
statement;
(h) enter into such customary agreements (including
underwriting agreements in customary form) and take all such other actions as
the holders of a majority of the Registrable Securities being sold or the
underwriters, if any, reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities (including effecting a stock split, a
combination of shares, or other recapitalization);
- 6 -
(i) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent retained by
any such seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, directors, employees and independent accountants to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement;
(j) otherwise use its best efforts to comply with all
applicable rules and regulations of the Securities and Exchange Commission, and
make available to its security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least twelve months beginning with
the first day of the Company's first full calendar quarter after the effective
date of the registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(k) permit any holder of Registrable Securities which holder,
in its sole and exclusive judgment, might be deemed to be an underwriter or a
controlling person of the Company, to participate in the preparation of such
registration or comparable statement and to require the insertion therein of
material, furnished to the Company in writing, which in the reasonable judgment
of such holder and its counsel should be included;
(l) in the event of the issuance of any stop order suspending
the effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any Common Stock included in such registration statement for sale in any
jurisdiction, the Company shall use its best efforts promptly to obtain the
withdrawal of such order;
(m) obtain a cold comfort letter from the Company's
independent public accountants in customary form and covering the matters
customarily covered by cold comfort letters as the holders of a majority of the
Registrable Securities being sold reasonably request; and
(n) use its best efforts to cause such Registrable Securities
covered by such registration statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary to enable the
sellers thereof to consummate the disposition of the Registrable Securities.
5. REGISTRATION EXPENSES.
(a) EXPENSES. All expenses incident to the Company's
performance of or compliance with this Agreement, including without limitation
all registration and filing fees, fees and expenses of compliance with
securities or blue sky laws, printing expenses, messenger and delivery expenses,
fees and disbursements of custodians, and fees and disbursements of counsel for
the Company and all independent certified public accountants, underwriters
(excluding discounts and commissions) and other Persons retained by the Company
(all such expenses being herein called "REGISTRATION EXPENSES"), shall be borne
as provided in this Agreement, except that the Company
- 7 -
shall, in any event, pay its internal expenses (including, without limitation,
all salaries and expenses of its officers and employees performing legal or
accounting duties), the expense of any annual audit or quarterly review, the
expense of any liability insurance and the expenses and fees for listing the
securities to be registered on each securities exchange on which similar
securities issued by the Company are then listed or on the Nasdaq.
(b) REIMBURSEMENT OF COUNSEL. In connection with each Demand
Registration and each Piggyback Registration, the Company shall reimburse the
holders of Registrable Securities included in such registration (i) for the
reasonable fees and disbursements (not to exceed $20,000 for any one
registration) of one counsel chosen by the holders of a majority of the
Purchaser Registrable Securities (or, if none, Registrable Securities) included
in such registration and (ii) for the reasonable fees and disbursements (not to
exceed $5,000 per additional counsel for any one registration) of each
additional counsel retained by any holder of Registrable Securities solely for
the purpose of rendering a legal opinion to underwriters on behalf of such
holder in connection with any underwritten Demand Registration or Piggyback
Registration.
(c) PAYMENT OF CERTAIN EXPENSES BY HOLDERS OF REGISTRABLE
SECURITIES. Underwriting discounts and commissions and transfer taxes relating
to the Registrable Securities included in any registration hereunder, and all
fees and expenses of counsel for any holder of Registrable Securities (other
than fees and expenses to be reimbursed by the Company as set forth in paragraph
(b) above) shall be borne and paid by the holders of such Registrable
Securities.
6. INDEMNIFICATION.
(a) The Company agrees to indemnify, to the extent permitted
by law, each holder of Registrable Securities, its officers and directors and
each Person that controls such holder (within the meaning of the Securities Act)
against all losses, claims, damages, liabilities and expenses caused by any
untrue or alleged untrue statement of material fact contained in any
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading, except insofar as the same are caused by or contained in any
information furnished in writing to the Company by such holder expressly for use
therein or by such holder's failure to deliver a copy of the registration
statement or prospectus or any amendments or supplements thereto after the
Company has furnished such holder with a sufficient number of copies of the
same. In connection with an underwritten offering, the Company shall indemnify
such underwriters, their officers and directors and each Person who controls
such underwriters (within the meaning of the Securities Act) to the same extent
as provided above with respect to the indemnification of the holders of
Registrable Securities.
(b) In connection with any registration statement in which a
holder of Registrable Securities is participating, each such holder shall
furnish to the Company in writing such information and affidavits as the Company
reasonably requests for use in connection with any such registration statement
or prospectus and, to the extent permitted by law, shall indemnify the Company,
its directors and officers and each Person who controls the Company (within the
meaning of the Securities Act) against any losses, claims, damages, liabilities
and expenses resulting from any
- 8 -
untrue or alleged untrue statement of material fact contained in the
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading, but only to the extent that such untrue statement or omission is
contained in any information or affidavit so furnished in writing by such
holder; provided that the obligation to indemnify shall be individual, not joint
and several, for each holder and shall be limited to the net amount of proceeds
received by such holder from the sale of Registrable Securities pursuant to such
registration statement.
(c) Any Person entitled to indemnification hereunder shall (i)
give prompt written notice to the indemnifying party of any claim with respect
to which it seeks indemnification (provided that the failure to give prompt
notice shall not impair any Person's right to indemnification hereunder to the
extent such failure has not prejudiced the indemnifying party) and (ii) unless
in such indemnified party's reasonable judgment a conflict of interest between
such indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is assumed,
the indemnifying party shall not be subject to any liability for any settlement
made by the indemnified party without its consent (but such consent shall not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim shall not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim.
(d) The indemnification provided for under this Agreement
shall remain in full force and effect regardless of any investigation made by or
on behalf of the indemnified party or any officer, director or controlling
Person of such indemnified party and shall survive the transfer of securities.
The Company also agrees to make such provisions, as are reasonably requested by
any indemnified party, for contribution to such party in the event the Company's
indemnification is unavailable for any reason such that such provisions provide
the same obligations and benefits to the indemnified party as those which would
have been applicable had the indemnification provisions in paragraphs 6(a) and
(b) been available taking into account all of the limitations set forth in
paragraphs 6(a) and (b).
7. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No Person may
participate in any registration hereunder which is underwritten unless such
Person (i) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or 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; PROVIDED that no
holder of Registrable Securities included in any underwritten registration shall
be required to make any representations or warranties to the Company or the
underwriters (other than representations and warranties regarding such holder
and such holder's intended method of distribution) or to undertake any
indemnification obligations to the Company with respect thereto, except as
otherwise provided in paragraph 6(b) hereof, or to the
- 9 -
underwriters with respect thereto, except to the extent of the indemnification
being given to the Company and its controlling persons in paragraph 6(a) hereof.
8. DEFINITIONS.
"AGREEMENT" has the meaning set forth with respect thereto in
the preamble.
"XXXXX" has the meaning set forth with respect thereto in the
preamble.
"BOARD" means the board of managers of the Company or, if the
Company is hereafter converted into a corporation or other entity form, the
board of directors or comparable governing body of the Company.
"XXXXXXXXX" has the meaning set forth with respect thereto in
the preamble.
"COMMON STOCK" means the Common Units and, in the event the
Company has hereafter converted into a corporation or other entity form, the
common stock or other comparable common equity securities of the Company.
"COMMON UNITS" means the Common Units of the Company, having
the rights and preferences set forth with respect thereto in the LLC Agreement.
"COMPANY" has the meaning set forth with respect thereto in
the preamble.
"XXXXXXXX" has the meaning set forth with respect thereto in
the preamble.
"XXXXXXXX HOLDINGS" has the meaning set forth with respect
thereto in the preamble.
"XXXXXXXX REGISTRABLE SECURITIES" means Registrable Securities
derived from or relating to the Preferred Units issued to XxXxxxxx under the
Equity Purchase Agreement.
"DEMAND NOTICE" has the meaning set forth with respect thereto
in Section 1(a).
"DEMAND REGISTRATION" has the meaning set forth with respect
thereto in Section 1(a).
"DOVEY" has the meaning set forth with respect thereto in the
preamble.
"DOVEY LLC" has the meaning set forth with respect thereto in
the preamble.
"EQUITY PURCHASE AGREEMENT" means that certain equity purchase
agreement dated the date of the Prior Agreement (and amended and restated as of
the date hereof), by and between the Company, the Investors, and the other
Persons listed on the signature pages thereto, as amended from time to time in
accordance with its terms.
- 10 -
"EXECUTIVE SECURITIES AGREEMENTS" has the meaning set forth
with respect thereto in the Equity Purchase Agreement.
"HOLLAND" has the meaning set forth with respect thereto in
the preamble.
"XXXXX" has the meaning set forth with respect thereto in the
preamble.
"INVESTOR" and "INVESTORS" have the meaning set forth with
respect thereto in the preamble.
"INITIAL PUBLIC OFFERING" means a sale of Common Stock to the
public registered under the Securities Act on Form S-1 or any similar form.
"LACEY" has the meaning set forth with respect thereto in the
preamble.
"XXXX" has the meaning set forth with respect thereto in the
preamble.
"LLC AGREEMENT" means that certain limited liability company
agreement governing the affairs of the Company, by and among the Investors and
the other holders of unit membership interests in the Company, as amended from
time to time in accordance with its terms.
"LONG-FORM REGISTRATION" has the meaning set forth with
respect thereto in Section 1(a).
"MDCP" has the meaning set forth with respect thereto in the
preamble.
"MDCP REGISTRABLE SECURITIES" means Registrable Securities
derived from or relating to the Preferred Units issued to MDCP under the Equity
Purchase Agreement.
"NASD" has the meaning set forth with respect thereto in
Section 4(f).
"PERFORMANCE VESTING AGREEMENT" means that certain performance
vesting agreement dated the date of the Prior Agreement (and amended and
restated as of the date hereof), by and between the Company, the Investors, and
the other Persons listed on the signature pages thereto, as amended from time to
time in accordance with its terms.
"PERSON" means an individual, a partnership, a corporation, a
limited liability company, an association, a joint stock company, a trust, a
joint venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"PIGGYBACK REGISTRATION" has the meaning set forth with
respect thereto in Section 2(a).
"PREFERRED UNITS" means the Preferred Units of the Company,
having the rights and preferences set forth with respect thereto in the LLC
Agreement.
- 11 -
"PRIOR AGREEMENT" has the meaning set forth with respect
thereto in the preamble.
"PURCHASER REGISTRABLE SECURITIES" means Registrable
Securities derived from or relating to the Preferred Units issued to the
Investors and the other purchasers under the Equity Purchase Agreement.
"REGISTRABLE SECURITIES" means (i) any Common Stock issued
upon conversion of any Preferred Units issued under the Equity Purchase
Agreement, (ii) any Common Stock issued under the Executive Securities
Agreements (other than any Un-Performance-Vested Securities), (iii) any Common
Stock issued or issuable with respect to the securities referred to in clauses
(i) and (ii) by way of a stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization, or upon conversion or exercise of any such securities, and (iv)
any other Common Stock of the Company (other than any Un-Performance-Vested
Securities) held by any holder of Registrable Securities; PROVIDED that with
respect to any Registrable Securities, such securities shall cease to be
Registrable Securities when they have been (A) effectively registered under the
Securities Act and disposed of in accordance with the registration statement
covering them, (B) distributed to the public through a broker, dealer or market
maker pursuant to Rule 144 under the Securities Act (or any similar rule
promulgated by the Securities and Exchange Commission then in force), or (C)
repurchased or otherwise acquired by the Company (or its assignees) or forfeited
pursuant to the terms of the Performance Vesting Agreement. For purposes of this
Agreement, a Person shall be deemed to be the holder of Registrable Securities,
and the Registrable Securities shall be deemed to be outstanding and in
existence, whenever such Person has the right to acquire such Registrable
Securities upon conversion of preferred stock, Preferred Units, or similar
securities held by such Person, whether or not such acquisition has actually
been effected, and such Person shall be entitled to exercise the rights of a
holder of such Registrable Securities hereunder.
"REGISTRATION EXPENSES" has the meaning set forth with respect
thereto in Section 5(a).
"SECURITIES ACT" means the Securities Act of 1933, as amended
from time to time.
"SECURITYHOLDERS AGREEMENT" means that certain securityholders
agreement dated the date of the Prior Agreement (and amended and restated as of
the date hereof) by and between the Company and certain of its securityholders,
as amended from time to time in accordance with its terms.
"SHORT-FORM REGISTRATIONS" has the meaning set forth with
respect thereto in Section 1(a).
"SUBSIDIARY INITIAL PUBLIC OFFERING" has the meaning set forth
with respect thereto in Section 9(b)(ii).
"UN-PERFORMANCE-VESTED SECURITIES" means any Company
securities which are subject to performance vesting, but have not yet
performance vested, pursuant to the provisions of the Performance Vesting
Agreement.
- 12 -
9. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. The Company shall not
hereafter enter into any agreement with respect to its securities which is
inconsistent with or violates the rights granted to the holders of Registrable
Securities in this Agreement.
(b) ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES;
APPLICABILITY OF RIGHTS TO SUBSIDIARIES OF THE COMPANY.
(i) The Company shall not take any action, or permit
any change to occur, with respect to its securities which would
materially and adversely affect the ability of the holders of
Registrable Securities to include such Registrable Securities in a
registration undertaken pursuant to this Agreement or which would
materially and adversely affect the marketability of such Registrable
Securities in any such registration (including, without limitation,
effecting a stock split or a combination of shares).
(ii) In the event that (A) any direct or indirect
subsidiary of the Company proposes to sell any of its common equity
securities to the public in a registered offering on Form S-1 under the
Securities Act (or any similar form) (a "SUBSIDIARY INITIAL PUBLIC
OFFERING"), or (B) the holders of a majority of the Purchaser
Registrable Securities then outstanding request a Subsidiary Initial
Public Offering, then each holder of Registrable Securities shall vote
all such holder's Registrable Securities and any other voting
securities of the Company or its subsidiaries over which such holder
has voting control and shall take all other necessary or desirable
actions within such holder's control (whether in such holder's capacity
as a securityholder, director, representative, member of a board
committee, officer of the Company or otherwise, and including, without
limitation, attendance at meetings in person or by proxy for purposes
of obtaining a quorum and execution of written consents in lieu of
meetings), and the Company shall take all necessary or desirable
actions within its control (including, without limitation, calling
special board and securityholder meetings and voting the securities of
its direct and indirect subsidiaries), in each case in the manner
determined by the holders of a majority of the Purchaser Registrable
Securities, so that each of the holders of Registrable Securities shall
be able to exercise and obtain the benefit of its rights hereunder
(including Demand Registration and Piggyback Registration rights) with
respect to such subsidiary (including with respect to such Subsidiary
Initial Public Offering and other registered public offerings of such
subsidiary's common equity securities) as if such subsidiary were the
Company.
(c) REMEDIES. Any Person having rights under any provision of
this Agreement shall be entitled to enforce such rights specifically, to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement.
- 13 -
(d) AMENDMENTS AND WAIVERS. Except as otherwise provided
herein, the provisions of this Agreement may be amended or waived only upon the
prior written consent of the Company and the holders of a majority of the
Purchaser Registrable Securities then outstanding; PROVIDED that if any such
amendment or waiver would adversely affect any holder of Registrable Securities
relative to the holders of Registrable Securities voting in favor of such
amendment or waiver, such amendment or waiver shall also require the approval of
the holders of a majority of the Registrable Securities held by all holders so
adversely affected; AND PROVIDED FURTHER that if any such amendment or waiver is
to a provision in this Agreement that requires a specific vote to take an action
thereunder or to take an action with respect to the matters described therein,
such amendment or waiver shall not be effective unless such vote is obtained
with respect to such amendment or waiver.
(e) SUCCESSORS AND ASSIGNS. All covenants and agreements in
this Agreement by or on behalf of any of the parties hereto shall bind and inure
to the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not. In addition, whether or not any express assignment
has been made, the provisions of this Agreement which are for the benefit of
purchasers or holders of Registrable Securities are also for the benefit of, and
enforceable by, any subsequent holder of Registrable Securities.
(f) SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
(g) COUNTERPARTS. This Agreement may be executed
simultaneously in two or more counterparts, any one of which need not contain
the signatures of more than one party, but all such counterparts taken together
shall constitute one and the same Agreement. Any management or other key
employee of the Company or its subsidiaries who purchases securities pursuant to
an Executive Securities Agreement may at any time after the date hereof, with
the written approval of the Company, become a party to this Agreement by
executing a counterpart to this Agreement agreeing to be bound by the provisions
hereof as if such Person were an original signatory hereto (which joinder shall
not constitute an amendment, modification, or waiver hereof).
(h) DESCRIPTIVE HEADINGS; INTERPRETATION; NO STRICT
CONSTRUCTION. The descriptive headings of this Agreement are inserted for
convenience only and do not constitute a substantive part of this Agreement.
Whenever required by the context, any pronoun used in this Agreement shall
include the corresponding masculine, feminine or neuter forms, and the singular
forms of nouns, pronouns, and verbs shall include the plural and vice versa.
Reference to any agreement, document, or instrument means such agreement,
document, or instrument as amended or otherwise modified from time to time in
accordance with the terms thereof, and if applicable hereof. The use of the
words "include" or "including" in this Agreement shall be by way of example
rather than by limitation. The use of the words "or," "either" or "any" shall
not be exclusive. The parties hereto have participated jointly in the
negotiation and drafting of this Agreement. If an ambiguity or question of
intent or interpretation arises, this Agreement shall be construed as if drafted
jointly by
- 14 -
the parties hereto, and no presumption or burden of proof shall arise favoring
or disfavoring any party by virtue of the authorship of any of the provisions of
this Agreement.
(i) GOVERNING LAW. ALL ISSUES AND QUESTIONS CONCERNING THE
CONSTRUCTION, VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS AGREEMENT AND THE
EXHIBITS AND SCHEDULES HERETO SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO ANY CHOICE OF
LAW OR CONFLICT OF LAW RULES OR PROVISIONS (WHETHER OF THE STATE OF DELAWARE OR
ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY
JURISDICTION OTHER THAN THE STATE OF DELAWARE.
(j) NOTICES. All notices, demands or other communications to
be given or delivered under or by reason of the provisions of this Agreement
shall be in writing and shall be deemed to have been given when (a) delivered
personally to the recipient, (b) telecopied to the recipient (with hard copy
sent to the recipient by reputable overnight courier service (charges prepaid)
that same day) if telecopied before 5:00 p.m. Chicago, Illinois time on a
business day, and otherwise on the next business day, or (c) one business day
after being sent to the recipient by reputable overnight courier service
(charges prepaid). Such notices, demands and other communications shall be sent
to the Company at the address set forth below and to any holder of Registrable
Securities at such address as indicated by the Company's records, or at such
address or to the attention of such other person as the recipient party has
specified by prior written notice to the sending party. The Company's address
is:
0000 Xxxxxxxx Xxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Chief Executive Officer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
(k) BUSINESS DAYS. If any time period for giving notice or
taking action hereunder expires on a day which is a Saturday, Sunday or legal
holiday in the State of Colorado, the Republic of France, or the jurisdiction in
which the Company's principal office is located, the time period shall
automatically be extended to the business day immediately following such
Saturday, Sunday or legal holiday.
(l) DELIVERY BY FACSIMILE. This Agreement, the agreements
referred to herein, and each other agreement or instrument entered into in
connection herewith or therewith or contemplated hereby or thereby, and any
amendments hereto or thereto, to the extent signed and delivered by means of a
facsimile machine, shall be treated in all manner and respects as an original
agreement or instrument and shall be considered to have the same binding legal
effect as if it were the original signed version thereof delivered in person. At
the request of any party hereto or to any such agreement or instrument, each
other party hereto or thereto shall reexecute original forms thereof and deliver
them to all other parties. No party hereto or to any such agreement or
instrument
- 15 -
shall raise the use of a facsimile machine to deliver a signature or the fact
that any signature or agreement or instrument was transmitted or communicated
through the use of a facsimile machine as a defense to the formation or
enforceability of a contract and each such party forever waives any such
defense.
(m) EFFECTIVENESS OF AGREEMENT. This Agreement shall be valid,
binding, and effective against each holder of Registrable Securities when it has
been signed by such holder. Pursuant to Section 9(d) of the Prior Agreement,
this Agreement amending and restating the Prior Agreement shall be valid,
binding, and effective against all holders of Registrable Securities when it has
been signed by the holders of a majority of the Purchaser Registrable
Securities.
* * * * *
- 16 -
IN WITNESS WHEREOF, the parties hereto have executed this
First Amended and Restated Registration Agreement as of the date first written
above.
COMPLETEL, LLC
By /s/ Xxxxx X. Xxxxx
-----------------------------------------------------
Xxxxx X. Xxxxx, its Chairman and CEO
XXXXXXXX HOLDINGS LIMITED PARTNERSHIP
BY LPL INVESTMENT GROUP, INC., ITS GENERAL PARTNER
By /s/ Xxxxxxxx X. XxXxxxxx
-----------------------------------------------------
Xxxxxxxx X. XxXxxxxx, its Chairman
MADISON DEARBORN CAPITAL PARTNERS II, L.P.
By Madison Dearborn Partners II, L.P., its general partner
By Madison Dearborn Partners, Inc., its general partner
By /s/ Xxxx X. Xxxxxxxx
-----------------------------------------------------
Its Managing Director
---------------------------------------------------
/s/ Xxxxx X. Xxxxx
--------------------------------------------------------
Xxxxx X. Xxxxx
/s/ Xxxxx X. Xxxxxxx
--------------------------------------------------------
Xxxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxx
--------------------------------------------------------
Xxxxxx X. Xxxx
(Signature page for First Amended and Restated Registration Agreement)
/s/ Xxxx X. Xxxxx
--------------------------------------------------------
Xxxx X. Xxxxx
DOVEY FAMILY PARTNERS LLLP
By /s/ Xxxxx X. Xxxxx
----------------------------------------------------
Xxxxx X. Xxxxx, its general partner
DOVEY COMPANY LLC
By /s/ Xxxxx X. Xxxxx
----------------------------------------------------
Xxxxx X. Xxxxx, its manager
/s/ Xxxxx X. Xxxxx
--------------------------------------------------------
Xxxxx X. Xxxxx
/s/ Xxxxxxx X. Xxxxxxx
--------------------------------------------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------------------------------
Xxxxxxx X. Xxxxxxxxx
/s/ Xxxxx X. Xxxxx
--------------------------------------------------------
Xxxxx X. Xxxxx
(Signature page for First Amended and Restated Registration Agreement)
OTHER PERSONS (SIGNATURES OF WHOM ARE
NOT INCLUDED) WHO ARE PARTY TO THIS
AGREEMENT PURSUANT TO THEIR EXECUTIVE
SECURITIES AGREEMENTS (AND/OR JOINDER
AGREEMENTS ENTERED INTO IN CONNECTION
THEREWITH):
---------------------------------------------
XXXXXXX XXXXXXX
XXXX XXXXXX
XXXX-XXXXX LE MONZE
XXXXXXX XXXXXXX
XXXX XXXXX
XXXXXXXXX XXXXXXXXXX
XXXXXXX XXXXXXX
XXXXXX XXXXXXX
MICHEL XXXXXXXXXX
XXXXX LAUTERSLAGER
XXXX XXXX
XXXXXX X. XXXXX, XX.
XXX XXXXXXXXX
PIERRE WATTELIER
XXXXXXXX XXXXXX
XXX XXXXXX
XXXX-XXXXXXXX XXXXXX
XXXXXX XX XXXXX
XXXXXXX XXXXXXXX
XXXXXXX XXXXX
XXXXX XXXXXX
XXXX-XXXXXXXXX XXXXXXX
XXXXXXX XXXXX
XXXXX-XXXXXXXXX XXXXXX
VAN-XXXX XXXXXXXX
XXXXXXXX XXXXXX
XXXXXX XXXXXXX
XXXXXXX BURLINCHON
XXXXXX AFFRET
XXXX XXXXXXXXX
XXXXXXXXX XXXXXXXX
XXXXXXX XXXXXXXXXX
XXXXXXXX XXXXXX
(Signature page for First Amended and Restated Registration Agreement)
