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EXHIBIT 99.4
AMENDED AND RESTATED REGISTRATION AGREEMENT
THIS AMENDED AND RESTATED REGISTRATION AGREEMENT (this
"AGREEMENT") is made as of September 13, 1999, by and among Allegiance Telecom,
Inc. ("ALLEGIANCE"), and the stockholders listed on the signature pages hereto.
Capitalized terms used but not otherwise defined herein have the meanings set
forth in paragraph 8 hereof.
WHEREAS, Allegiance and the investors listed on Exhibit A
attached hereto are parties to a Registration Agreement dated as of August 13,
1997, as amended on April 9, 1999 (the "REGISTRATION AGREEMENT").
WHEREAS, the parties hereto wish to amend and restate the
Registration Agreement in its entirety in connection with the purchase of shares
of Allegiance's common stock by Vulcan Ventures Incorporated ("VULCAN") pursuant
to the Common Stock Purchase and Option Agreement dated as of August 3, 1999
(the "VULCAN PURCHASE AGREEMENT").
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 - Original Registrable
Securities. At any time after the date hereof, (i) the holders of a majority of
the Frontenac Registrable Securities then outstanding, the holders of a majority
of the MDCP Registrable Securities then outstanding, and the holders of a
majority of the MSCP Registrable Securities then outstanding may each request up
to two registrations of Registrable Securities on Form S-1 or any similar
long-form registration statement (a "LONG-FORM REGISTRATION"), (ii) the holders
of a majority of the BV Registrable Securities then outstanding and the holders
of a majority of the Management Registrable Securities then outstanding may each
request one Long-Form Registration, and (iii) the holders of at least 5% of the
Original Registrable Securities then outstanding may request registration under
the Securities Act of all or any portion of their Original Registrable
Securities on Form S-3 or any similar short-form registration ("Short-Form
Registration") if available; provided that the aggregate offering value of the
Original Registrable Securities requested to be registered in any registration
under this paragraph 1(a) must be at least $20 million in any Long-Form
Registration, and at least $5 million in any Short-Form Registration.
(b) Requests for Registration - Vulcan Registrable Securities.
At any time after September 13, 2000, the holders of a majority of the Vulcan
Registrable Securities then outstanding may request one Long-Form Registration
and up to two Short-Form Registrations; provided that the aggregate offering
value of the Vulcan Registrable Securities requested to be registered in any
registration under this paragraph 1(b) must be at least $5 million in any such
registration.
(c) Procedures. All requests for registration under paragraphs
1(a) and 1(b) above are referred to herein as "DEMAND REGISTRATIONS." All
requests for Demand Registrations
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shall be made by giving written notice to Allegiance (the "DEMAND NOTICE"). Each
Demand Notice shall specify the approximate number of 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, Allegiance shall
give written notice of such requested registration to all other holders of
Registrable Securities and, subject to the provisions of paragraph 1(f) below,
shall include in such registration all Registrable Securities with respect to
which Allegiance has received written requests for inclusion therein within 15
days after the receipt of Allegiance's notice.
(d) Expenses; Withdrawal. Allegiance 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 it has become effective or if the holders of Original
Registrable Securities initially requesting such registration are not able to
register and sell at least 90% of the Original Registrable Securities requested
to be included in such registration; provided that Allegiance 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 Original Registrable Securities
included in the applicable Long-Form Registration.
(e) Short-Form Registrations. Demand Registrations shall be
Short-Form Registrations whenever Allegiance is permitted to use any applicable
short form. After Allegiance has become subject to the reporting requirements of
the Securities Exchange Act, Allegiance 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.
(f) Priority on Demand Registrations. Allegiance 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 Allegiance 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, Allegiance shall include in such registration the
number which can be so sold in the following order of priorities:
(i) first, the 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 of Registrable Securities owned
by each such holder, and
(ii) second, other securities requested to be included in
such registration.
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(g) Restrictions on Long-Form Registrations. Allegiance 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 there was no reduction in the number of Registrable
Securities requested to be included. Allegiance may postpone for up to 180 days
the filing or the effectiveness of a registration statement for a Demand
Registration if Allegiance'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 Allegiance or any
of its subsidiaries to engage in any acquisition of assets (other than in the
ordinary course of business) or any merger, consolidation, tender offer,
reorganization 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 Allegiance shall pay all Registration Expenses in connection with
such withdrawn registration. Allegiance may delay a Demand Registration
hereunder only once in any twelve-month period.
(h) Selection of Underwriters. The Board shall select the
investment banker(s) and manager(s) to administer the offering.
(i) Other Registration Rights. Except as provided in this
Agreement, Allegiance shall not grant to any Persons the right to request
Allegiance to register any of its equity securities, 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 total Investor
Registrable Securities and Vulcan Registrable Securities (or, if none,
Registrable Securities) then outstanding; provided that Allegiance 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.
2. PIGGYBACK REGISTRATIONS.
(a) Right to Piggyback. Whenever Allegiance 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 Registration"), Allegiance
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 include in such registration all
Registrable Securities with respect to which Allegiance has received written
requests for inclusion therein within 20 days after the receipt of Allegiance's
notice.
(b) Piggyback Expenses. The Registration Expenses of the
holders of Registrable Securities shall be paid by Allegiance in all Piggyback
Registrations.
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(c) Priority on Primary Registrations. If a Piggyback
Registration is an underwritten primary registration on behalf of Allegiance,
and the managing underwriters advise Allegiance 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 Allegiance, Allegiance shall include in such
registration:
(i) first, the securities Allegiance proposes to sell,
(ii) second, the 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 of Registrable Securities owned
by each such holder, and
(iii) third, 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
Allegiance's securities, and the managing underwriters advise Allegiance 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, Allegiance 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, the selection of the investment banker(s) and
manager(s) to administer such offering shall be approved by the Board.
(f) Other Registrations. If Allegiance 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, Allegiance shall not file or cause to be
effected any other registration of any of its equity securities or securities
convertible 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 of such securities, until
a period of at least 180 days has elapsed from the effective date of such
previous registration.
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(g) Piggyback Rights Not Applicable. Notwithstanding anything
herein to the contrary, the piggyback rights set forth in Section 2 of this
Agreement shall not apply to Allegiance's registration of its 12 7/8% senior
notes due 2008, Allegiance's registration of its 11 3/4% senior discount notes
due 2008 nor Allegiance's registration of the exercise of its warrants pursuant
to that certain Warrant Registration Rights Agreement dated as of February 3,
1998.
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 Allegiance, or
any securities convertible into or exchangeable or exercisable for such
securities, during the seven days prior to and the 90-day period beginning on
the effective date of any other 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) Allegiance. Allegiance:
(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, Form S-4 or any
successor form), unless the underwriters managing the
registered public offering otherwise agree, and
(ii) shall use its reasonable best efforts to cause each
holder of 5% or more its Common Stock, or any securities
convertible into or exchangeable or exercisable for Common
Stock, purchased from Allegiance 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, Allegiance 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
Allegiance shall as expeditiously as possible:
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(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, Allegiance 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 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 Allegiance 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, Allegiance 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 Allegiance 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
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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 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 or
a combination of shares);
(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 Allegiance, and cause Allegiance'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 Allegiance'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 Allegiance, to participate in the preparation of such
registration or comparable statement and to require the insertion therein of
material, furnished to Allegiance 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, Allegiance shall use its best efforts promptly to obtain the
withdrawal of such order;
(m) obtain a cold comfort letter from Allegiance's independent
public accountants in customary form and covering such matters of the type
customarily covered by cold comfort letters as the holders of a majority of the
Registrable Securities being sold reasonably request; and
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(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 Allegiance'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
Allegiance and all independent certified public accountants, underwriters
(excluding discounts and commissions) and other Persons retained by Allegiance
(all such expenses being herein called "Registration Expenses"), shall be borne
as provided in this Agreement, except that Allegiance 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 Allegiance are
then listed or on the Nasdaq.
(b) Reimbursement of Counsel. In connection with each Demand
Registration and each Piggyback Registration, Allegiance shall reimburse the
holders of Registrable Securities included in such registration for the
reasonable fees and disbursements of one counsel chosen by the holders of a
majority of the total Investor Registrable Securities and Vulcan Registrable
Securities (or, if none, Registrable Securities) included in such registration
and for the reasonable fees and disbursements 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 Allegiance as set forth in paragraph
(b) above) shall be borne and paid by the holders of such Registrable
Securities.
6. INDEMNIFICATION.
(a) Allegiance 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 Allegiance by such holder
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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 Allegiance has furnished such holder with a sufficient number of copies of
the same. In connection with an underwritten offering, Allegiance 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 Allegiance in writing such information and affidavits as Allegiance
reasonably requests for use in connection with any such registration statement
or prospectus and, to the extent permitted by law, shall indemnify Allegiance,
its directors and officers and each Person who controls Allegiance (within the
meaning of the Securities Act) against any losses, claims, damages, liabilities
and expenses resulting from any 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.
Allegiance also agrees to make such provisions, as are reasonably requested by
any indemnified party, for contribution to such party in the event Allegiance'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
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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
Allegiance 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 Allegiance with respect thereto,
except as otherwise provided in paragraph 6(b) hereof, or to the underwriters
with respect thereto, except to the extent of the indemnification being given to
Allegiance and its controlling persons in paragraph 6(a) hereof.
8. DEFINITIONS.
"BV Registrable Securities" means Registrable Securities held
by Battery Ventures IV, L.P. and Battery Investment Partners IV, LLC or their
respective successors and assigns.
"Common Stock" means Allegiance's Common Stock, par value $.01
per share.
"Frontenac Registrable Securities" means Registrable
Securities held by Frontenac VII Limited Partnership and Frontenac Masters VII
Limited Partnership or their respective successors and assigns.
"Investor Registrable Securities" means collectively, the BV
Registrable Securities, the Frontenac Registrable Securities, the MDCP
Registrable Securities, and the MSCP Registrable Securities.
"Management Registrable Securities" means Registrable
Securities held by the management stockholders listed in Exhibit A hereto.
"MDCP Registrable Securities" means Registrable Securities
held by Madison Dearborn Capital Partners II, L.P. or its successor and assigns.
"MSCP Registrable Securities" means Registrable Securities
held by Xxxxxx Xxxxxxx Capital Partners III, L.P., MSCP III 892 Investors, L.P.
and Xxxxxx Xxxxxxx Capital Investors, L.P. or their respective successors and
assigns.
"Original Registrable Securities" means collectively, the
Investor Registrable Securities and the Management Registrable Securities.
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"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.
"Registrable Securities" means (i) any Common Stock issued by
Allegiance to the stockholders listed on Exhibit A hereto pursuant to the Stock
Purchase Agreement dated as of August 13, 1997 by and among Allegiance and the
investor parties thereto or in consideration of any securities purchased
thereunder, or pursuant to an Executive Purchase Agreement between Allegiance
and any employee stockholder of Allegiance or in consideration of any securities
purchased thereunder, or pursuant to the Vulcan Purchase Agreement, as
applicable, (ii) any Common Stock acquired by any Person who holds any Common
Stock described in clause (i) above who was an affiliate of Allegiance at the
time such Person acquired the additional shares of Common Stock sought to be
covered by this clause (ii) and (iii) any Common Stock issued or issuable with
respect to the securities referred to in clauses (i) or (ii) by way of a stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization; provided that
with respect to any Registrable Securities, such securities shall cease to be
Registrable Securities when they have been distributed to the public pursuant to
an offering registered under the Securities Act or sold to the public through a
broker, dealer or market maker in compliance with Rule 144 under the Securities
Act (or any similar rule promulgated by the Securities Exchange Commission then
in force) or, solely in the case of Common Stock held by limited partners or
non-managing members of any private equity fund that has done a distribution of
Common Stock, at such point as the Registrable Securities are eligible to be
sold by such limited partners or non-managing members or their transferees
pursuant to Rule 144(k) under the Securities Act (or any similar rule
promulgated by the Securities Exchange Commission then in force).
"Securities Act" means the Securities Act of 1933, as amended
from time to time.
"Securities Exchange Act" means the Securities Exchange Act of
1934, as amended from time to time.
"Vulcan Registrable Securities" means Registrable Securities
held by Vulcan or its successors and assigns.
9. MISCELLANEOUS.
(a) No Inconsistent Agreements. Allegiance 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. Allegiance
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).
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12
(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.
(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 Allegiance and the holders of a majority of the
Investor Registrable Securities, the holders of a majority of the Management
Registrable Securities and the holders of a majority of the Vulcan Registrable
Securities; provided that if any such amendment or waiver would adversely affect
any holder of Registrable Securities relative to the holders of Investor
Registrable Securities, Management Registrable Securities or Vulcan 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.
(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. Notwithstanding
the foregoing, shares of Common Stock purchased by Vulcan pursuant to the Vulcan
Purchase Agreement shall be "Vulcan Registrable Securities" for purposes of this
Agreement and not "Investor Registrable Securities". Each of the parties hereto
agrees to be bound by Section 9 of the Vulcan Purchase Agreement.
(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.
(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
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Amended and Restated Registration Agreement Final
13
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. In
the event an ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by 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. THE CORPORATE LAW OF THE STATE OF DELAWARE
SHALL GOVERN ALL ISSUES AND QUESTIONS CONCERNING THE RELATIVE RIGHTS OF
ALLEGIANCE AND ITS STOCKHOLDERS. ALL OTHER 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 (i) delivered
personally to the recipient, (ii) 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 (iii) 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 Allegiance at the address set forth below and to any holder of Registrable
Securities at such address as indicated by Allegiance'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. Allegiance's address is:
0000 X. Xxxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With a copy to: Xxxx X. Xxxxxxxxxx
Senior Vice President and General Counsel
0 Xxxxxxxxx Xxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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Amended and Restated Registration Agreement Final
14
(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 in which Allegiance's chief-executive 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 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.
* * * * *
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Amended and Restated Registration Agreement Final
15
IN WITNESS WHEREOF, the parties hereto have executed this
Amended and Restated Registration Agreement as of the date first written above.
ALLEGIANCE TELECOM, INC.
By /s/ XXXX X. XXXXXXXXXX
------------------------------------------------
Name Xxxx X. Xxxxxxxxxx
----------------------------------------------
Its Senior Vice President, General Counsel,
-----------------------------------------------
and Secretary
-----------------------------------------------
/s/ C. XXXXXX XXXX
------------------------------------------------
C. Xxxxxx Xxxx
/s/ XXXXX X. XXXXXXX
------------------------------------------------
Xxxxx X. Xxxxxxx
XXXXX X. XXXXXXX FAMILY LIMITED PARTNERSHIP
By /s/ XXXXX X. XXXXXXX
------------------------------------------------
Xxxxx X. Xxxxxxx, its general partner
/s/ XXXXXX X. XXXX
------------------------------------------------
Xxxxxx X. Xxxx (individually, and on behalf of
Xxxxx X. Xxxx and Xxxxx X. Xxxx)
BATTERY VENTURES IV, L.P.
By Battery Partners IV, L.P., its general partner
By /s/ XXXXXXX XXXXXXX
------------------------------------------------
Name Xxxxxxx Xxxxxxx
----------------------------------------------
Its Member Manager
-----------------------------------------------
16
[Continuation of Signature Page to Amended and Restated Registration Agreement]
BATTERY INVESTMENT PARTNERS IV, LLC
By /s/ XXXXXXX XXXXXXX
------------------------------------------------
Name Xxxxxxx Xxxxxxx
----------------------------------------------
Its Member Manager
-----------------------------------------------
FRONTENAC VII LIMITED PARTNERSHIP
By Frontenac Company VII, LLC, its general partner
By /s/ XXXXX X. XXXXXXXX, III
------------------------------------------------
Name Xxxxx X. Xxxxxxxx, III
----------------------------------------------
Its Member
-----------------------------------------------
FRONTENAC MASTERS VII LIMITED PARTNERSHIP
By Frontenac Company VII, LLC, its general partner
By /s/ XXXXX X. XXXXXXXX, III
------------------------------------------------
Name Xxxxx X. Xxxxxxxx, III
----------------------------------------------
Its Member
-----------------------------------------------
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. XXXXXX
------------------------------------------------
Name Xxxx X. Xxxxxx
----------------------------------------------
Its Chief Financial Officer
-----------------------------------------------
17
[Continuation of Signature Page to Amended and Restated Registration Agreement]
XXXXXX XXXXXXX CAPITAL PARTNERS III, L.P.
By MSCP III, L.P., its general partner
By Xxxxxx Xxxxxxx Capital Partners III, Inc., its
general partner
By /s/ XXXX X. XXXXXXXX
------------------------------------------------
Name Xxxx X. Xxxxxxxx
----------------------------------------------
Its Chairman, CEO and Director
-----------------------------------------------
By /s/ XXXX X. XXXXXXXXXX
------------------------------------------------
Name Xxxx X. XxxxxXxxxx
----------------------------------------------
Its Principal
-----------------------------------------------
MSCP III 892 INVESTORS, L.P.
By MSCP III, L.P., its general partner
By Xxxxxx Xxxxxxx Capital Partners III, Inc., its
general partner
By /s/ XXXX X. XXXXXXXX
------------------------------------------------
Name Xxxx X. Xxxxxxxx
----------------------------------------------
Its Chairman, CEO and Director
-----------------------------------------------
By /s/ XXXX X. XXXXXXXXXX
------------------------------------------------
Name Xxxx X. XxxxxXxxxx
----------------------------------------------
Its Principal
-----------------------------------------------
18
[Continuation of Signature Page to Amended and Restated Registration Agreement]
XXXXXX XXXXXXX CAPITAL INVESTORS, L.P.
By MSCP III, L.P., its general partner
By Xxxxxx Xxxxxxx Capital Partners III, Inc., its
general partner
By /s/ XXXX X. XXXXXXXX
------------------------------------------------
Name Xxxx X. Xxxxxxxx
----------------------------------------------
Its Chairman, CEO and Director
-----------------------------------------------
By /s/ XXXX X. XXXXXXXXXX
------------------------------------------------
Name Xxxx X. XxxxxXxxxx
----------------------------------------------
Its Principal
-----------------------------------------------
VULCAN VENTURES INCORPORATED
By /s/ XXXXXXX X. XXXXX
------------------------------------------------
Name Xxxxxxx X. Xxxxx
----------------------------------------------
Its Vice President
-----------------------------------------------
