EXHIBIT (4)(i)(e)
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT, dated as of April 1, 2002 (this
Agreement), is by and among US Unwired Inc., a Louisiana corporation ("Issuer"),
and the following:
Investcorp IWO Limited Partnership, Ballet Limited, Denary Limited, Gleam
Limited, Highlands Limited, Noble Limited, Outrigger Limited, Quill Limited,
Radial Limited, Shoreline Limited, Zinnia Limited, Investcorp Investment Equity
Limited, Xxxxxxx Limited, Xxxxxxxx Limited, Frankfort Limited, Paugus Limited,
Wireless International Limited, Wireless Equity Limited, Wireless Holdings
Limited, Wireless Investments Limited, IWO Equity Limited, IWO Investments
Limited, Cellular Equity Limited, Mobile Holdings Limited, Wireless IIP Limited,
Equity IWO Limited, New IWO Equity Limited, New Wireless IIP Limited and New
Equity IWO Limited (collectively, "Investcorp");
Odyssey Investment Partners Fund, LP and Odyssey Coinvestors, LLC
(collectively, "Odyssey");
Paribas North America Inc., TCW/Crescent Mezzanine Trust II, TCW/Crescent
Mezzanine Partners II, LP, TCW/Crescent Leveraged Income Trust, LP, TCW/Crescent
Leveraged Income Trust II, LP and TCW/Crescent Leveraged Income Trust IV, LP
(collectively, the "Financial Investors");
Xxxxx Xxxxxx, X.X. Xxxx III, Xxxxxx Xxxxxxx, Delhi PCS Inc., Dry Brook
Holdings LLC, MTC North Inc., Newport PCS Inc., Finger Lakes Technologies Group
Inc., Adirondack Capital LLC, Cerberus Investments LP and Xxxxxxx Xxxx
(collectively, "IWO Founders"); and
the Xxxxxxx Family Members, as defined herein.
WHEREAS, Issuer is a party to an Agreement and Plan of Merger, dated as of
December 19, 2001 (the "Merger Agreement"), by and among Issuer, Merger Sub (as
defined in the Merger Agreement) and IWO Holdings, Inc., a Delaware corporation
("IWO"), which provides for the merger of Merger Sub with and into IWO (the
"Merger"); and
WHEREAS, as a condition to the Merger, Issuer has agreed to provide certain
registration rights as set forth herein.
NOW THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties to this Agreement hereby agree as follows:
1. Definitions. As used in this Agreement, the following terms shall have the
following respective meanings:
"best efforts" shall mean reasonable best efforts.
"1818 Fund" shall mean The 1818 Fund III, L.P., a Delaware limited
partnership and its successors.
"1818 RRA" shall mean the Registration Rights Agreement between the Issuer
and 1818 Fund dated as of October, 29, 1999, as amended by a First Amendment
dated as of February 15, 2000, and a Second Amendment dated as of June 9, 2000,
and as further amended from time to time.
"1818 RRA Parties" means, collectively, 1818 Fund and the other parties
which have registration rights pursuant to the 1818 RRA (not including any
future amendment thereof).
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
or any similar federal statute then in effect, and a reference to a particular
section thereof shall be deemed to include a reference to the comparable
section, if any, of any such similar federal statute.
"Governmental Entity" shall mean any court, department, body, board,
bureau, administrative agency or commission or other governmental authority or
instrumentality.
"Holders" means, as of any date of determination, the holders of
Registrable Securities, provided that the rights of Transferees of the Holders
shall be limited as provided in Section 8(h).
"Issuer Common Stock" shall mean the Class A Common Stock, the Class B
Common Stock and each other class of capital stock of the Issuer that does not
have a preference over any other class of capital stock of the Company as to
dividends or upon liquidation, dissolution or winding up of the Company and, in
each case, shall include any other class of capital stock of the Company into
which such stock is reclassified or reconstituted.
"Issuer Common Stock Equivalents" shall mean any stock, warrants, rights,
calls, options, debt or other securities exchangeable or exercisable for or
convertible into Issuer Common Stock.
"Issuer Founders" means Xxxxxxx X. Xxxxxxx, Xxxx X. Xxxxxxx, Xxxxxxx X.
Xxxxxxx, Xx., Xxxx X. Xxxxxxx and Xxxxxx X. Xxxxxxx (collectively, "Xxxxxxx
Family Members") and the descendents of each of them; Xxxxxx X. Xxxxxxx; any
trustee (including without limitation Xxxxx Xxxxxxxx, as trustee of the Xxxxxxx
X. Xxxxxxx Grantor Retained Annuity Trust and the Xxxx X. Xxxxxxx Grantor
Retained Annuity Trust), custodian, guardian or other similar fiduciary holding
securities for the benefit of any one or more Xxxxxxx Family Members and/or
their descendants; and Cameron Communications Corporation.
"Person" shall mean an individual, corporation, limited liability company,
association, partnership, group (as defined in Section 13(d)(3) of the Exchange
Act), trust, joint venture, business trust or unincorporated organization, or a
Governmental Entity or any other entity of any nature whatsoever.
"Registrable Securities" shall mean: (a) shares of Issuer Common Stock that
are issued to Investcorp, Odyssey, the Financial Investors and the IWO Founders
in the Merger or pursuant to any Issuer Common Stock Equivalent that is issued
to any of them in the Merger or pursuant to the Merger Agreement; (b) shares of
Issuer Common Stock owned by the Issuer Founders as of the date of this
Agreement or acquired by any of them from any other of them thereafter; and (c)
up to 5,500,000 shares of Issuer Common Stock that are issued (or issuable with
respect to any Common Stock Equivalents that are issued) pursuant to the
transaction described in Schedule A to this Agreement and, in each such case
described in (a), (b) or (c), any securities issued or distributed in respect
thereof, or in substitution therefor, in connection with any stock split,
dividend, spin-off or combination, or any reclassification, recapitalization,
merger, consolidation, share exchange or other similar reorganization or
business combination. As to any particular Registrable Securities, once issued,
such Registrable Securities shall cease to be Registrable Securities when (i) a
registration statement with respect to the sale by the applicable Holder of such
securities has become effective under the Securities Act and such securities
have been disposed of in accordance with such registration statement; (ii) such
securities have been distributed to the public pursuant to Rule 144 or 145 (or
any successor provision) under the Securities Act; (iii) with respect to any
Holder, (A) such Holder is permitted to sell all such Registrable Securities
held by such Holder to the public at one time in a transaction that is exempt
under Section 4 of the Securities Act or any successor provision (including,
without limitation, by operation of Rule 144 or 145 or any successor provision
under that Act) from registration or further registration under that Act, and
(B) at least one year has elapsed from the Effective Time of the Merger; or (iv)
such securities have ceased to be outstanding.
"Registration Expenses" shall mean all expenses incident to Issuer's
performance of or compliance with this Agreement, including, without limitation,
all SEC and stock exchange or National Association of Securities Dealers, Inc.
(the "NASD") registration and filing fees and expenses, fees and expenses of
compliance with securities or blue sky laws (including, without limitation,
reasonable fees and disbursements of counsel for any underwriters in connection
with blue sky qualifications of the Registrable Securities), rating agency fees,
printing expenses, messenger, telephone and delivery expenses, the fees and
expenses incurred in connection with the listing of the securities to be
registered on any securities exchange or national market system, fees and
disbursements of counsel for Issuer and all independent certified public
accountants for Issuer (including the expenses of any annual audit, special
audit and cold comfort letters required by or incident to such performance and
compliance), securities laws liability insurance (if Issuer so desires), the
fees and disbursements of underwriters (including, without limitation, all fees
and expenses of any qualified independent underwriter required by the rules of
the NASD) customarily paid by issuers or sellers of securities in public equity
offerings (excluding, for the sake of clarity, the fees and expenses of counsel
for the
Underwriters or any qualified independent underwriter), the reasonable fees and
expenses of any special experts retained by Issuer in connection with such
registration, fees and expenses of other persons retained by Issuer, and the
reasonable fees and expenses of one counsel to the selling Holders selected by
Holders of a majority of the shares to be included in such registration
("Selling Holders Counsel"); provided, however, that the term Registration
Expenses shall not include any underwriting discounts or commissions or transfer
taxes, if any, attributable to the sale of Registrable Securities or the
out-of-pocket expenses of any Holder (including, without limitation, the fees
and expenses of counsel for such Holder other than as expressly provided above),
all of which shall be borne by the Holder who or which incurs them.
"SEC" shall mean the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act or the Exchange Act.
"Securities Act" shall mean the Securities Act of 1933, as amended, or any
similar federal statute then in effect, and a reference to a particular section
thereof shall be deemed to include a reference to the comparable section, if
any, of any such similar federal statute.
"shares" means the shares or other units into which equity securities are
divided.
"Transferee" shall mean any Person to whom Registrable Securities are
transferred, other than a transfer pursuant to Rule 144 or 145 or to a sale that
is registered under the Securities Act.
2. Demand Registration.
(a) Underwritten Offering. Upon the written demand of Investcorp, timely
made as provided below, requesting that Issuer effect the registration under the
Securities Act of an underwritten offering having an aggregate market value on
the date of such demand of at least $50 million of which at least $25 million
shall consist of Registrable Securities (based on the closing trading price of
the Issuer's Common Stock on the trading day before the date of such demand)
(the "Underwritten Offering"), Issuer will (i) notify each Holder of such
request and afford each Holder the opportunity to include such Holder's
Registrable Securities in such registration in such amount (up to the full
amount of such Holder's Registrable Securities, subject to the provisions of
this Agreement) as may be specified by written notice to the Issuer and
Investcorp within 15 days of receipt of the notice from the Issuer and (ii) use
its best efforts to effect the registration under the Securities Act of such
Underwritten Offering including to the extent set forth in this Agreement the
Registrable Securities requested by Holders. Investcorp and Issuer shall consult
with one another prior to, and throughout, the registration and offering process
to coordinate the timing of the proposed offering taking into consideration,
among other things, the existence of any material business combination
discussions that may be ongoing or other material non-public information
affecting Issuer the disclosure of which could, in the reasonable judgment of
Issuer's management, adversely affect such discussions or Issuer's business.
Issuer shall have no obligation to file such registration
statement unless the demand for filing is made in sufficient time to reasonably
permit the securities covered thereby to be priced and sold not later than 120
days after the Effective Time (as defined in the Merger Agreement) of the
Merger, and Issuer shall be entitled, in its sole discretion, to terminate such
offering and deregister all shares covered thereby which have not been sold
within such number of days after the Effective Time of the Merger as is equal to
120 plus any number of days the offering has been delayed due to timing
considerations described in the preceding sentence or in Section 7(c). Adequate
procedures shall be used to ensure that all Holders shall have an opportunity to
elect to have shares included in the Underwritten Offering to the extent
permitted by this Agreement.
(b) Additional Request for Registration. In addition to the Underwritten
Offering, at any time on or after either January 1, 2003 if the Underwritten
Offering has been consummated or 180 days after the Effective Time (as defined
in the Merger Agreement) if the Underwritten Offering has not been consummated,
upon the written demand of a Requesting Party (defined below) made within four
years after the Effective Time of the Merger, demanding that Issuer effect the
registration under the Securities Act of all of the Registrable Securities held
by the Requesting Party and the other Holders, or of any part thereof, and
specifying the intended method of disposition thereof, Issuer will use its best
efforts to effect the registration under the Securities Act of such Registrable
Securities (which registration may also include any additional number of shares
of Issuer Common Stock which Issuer or any other shareholder of Issuer (as
determined by it) proposes to include therein, except that any such additional
shares may be included in any underwritten offering only to the extent and
subject to the limitations and priorities provided in Section 2(e)). Promptly
after receipt of such request, Issuer shall notify the Holders of its intent to
make such request and afford such Holders the opportunity to include Registrable
Securities in such request. The Requesting Party and Issuer shall consult with
one another prior to, and throughout, the registration process to coordinate the
timing of the proposed offering taking into consideration, among other things,
the existence of any material business combination discussions that may be
ongoing or other material non-public information affecting Issuer the disclosure
of which could, in the reasonable judgment of Issuer's management, adversely
affect such discussions or Issuer's business. Issuer shall not be required to
effect more than one registration pursuant to this Section 2(b) if the
Underwritten Offering is consummated under Section 2(a), and shall not be
required to effect more than two registrations pursuant to this Section 2(b) if
the Underwritten Offering is not consummated under Section 2(a). Notwithstanding
the foregoing, in no event shall Issuer have any obligation to effect an
underwritten public offering under this Section 2(b) unless the amount of the
Registrable Securities to be included in such offering would result in aggregate
proceeds (determined at the time of the initial filing of the registration
statement relating thereto) in excess of $25 million; and in no event shall
Issuer have any obligation to include in a non-underwritten offering under this
Section 2(b) any Registrable Securities that are included in the registration
statement described in Section 2(i), unless the method of distribution chosen
for such Registrable Securities cannot be effected pursuant to such registration
statement described in Section 2(i). For purposes of this Section 2(b),
"Requesting Party" means: (i) Investcorp, as long as it continues to own at
least 25% of the
Registrable Securities held by it immediately after the Effective Time of the
Merger; (ii) if Investcorp no longer qualifies as the Requesting Party, then
Odyssey, but only as long as Odyssey, Investcorp and the Financial Investors
continue to own in the aggregate at least 25% of the Registrable Securities held
by them in the aggregate immediately after the Effective Time of the Merger;
(iii) if neither Investcorp nor Odyssey qualifies as the Requesting Party, then
Holders of at least 51% of the Registrable Securities held by the IWO Founders;
and (iv) if no party or parties are entitled to be the Requesting Party pursuant
to clauses (i), (ii) or (iii) above, then Holders of at least 51% of the
Registrable Securities.
(c) Registration Statement Form. If any registration requested pursuant to
this Section 2 which is proposed by Issuer to be effected by the filing of a
registration statement on Form S-3 (or any successor or similar short-form
registration statement) shall be in connection with an underwritten public
offering, and if the managing underwriter shall advise Issuer in writing that,
in its opinion, the making of additional disclosures required by another form of
registration statement is of material importance to the success of such proposed
offering, then Issuer shall cooperate with the managing underwriters to provide
such additional disclosures. Issuer agrees to include in any registration
statement all information which, in the reasonable opinion of counsel to the
underwriters (or the Requesting Holder, in the case of a registration demanded
under Section 2(b) that is not an underwritten offering) is required to be
included.
(d) Effective Registration Statement. A registration requested pursuant to
Section 2(a) or 2(b) shall not be deemed to have been effected:
(i) unless a registration statement with respect thereto has become
effective and remained effective in compliance with the provisions of the
Securities Act until such time (not later than 120 days after the effective
date of the registration statement) as all of such Registrable Securities
have been disposed of in accordance with the intended methods of
disposition thereof set forth in such registration statement, other than
primarily as a result of acts or omissions of any selling Holder or any
authorized agent thereof;
(ii) if, after it has become effective, such registration is
interfered with by any stop order, injunction or other order or requirement
of the SEC or other Governmental Entity for any reason not attributable to
any selling Holder or any of its Affiliates (as defined in the Merger
Agreement), and such interference prevents the disposition of the
Registrable Securities covered by such registration statement; or
(iii) if the conditions to closing specified in the underwriting
agreement, if any, entered into in connection with such registration are
not satisfied or waived, unless any failure to satisfy such a condition is
attributable to any selling Holder or any of its Affiliates (as defined in
the Merger Agreement).
(e) Priority in Requested Registrations. If a requested registration
pursuant to Section 2(a) or 2(b) is the Underwritten Offering or involves an
underwritten offering and
the managing underwriter (in consultation with the underwriter appointed by the
Requesting Holder pursuant to Section 2(h) below) advises Issuer and the Holders
whose shares are included therein in writing that, in its opinion, the number of
equity securities requested to be included in such registration exceeds the
largest number of shares (such amount, the "Maximum Shares" for purposes of
Section 2) which can be sold without reasonably expecting to have an adverse
effect on such offering, including the price at which such equity securities can
be sold, the number of such equity securities to be included in such
underwritten offering shall be reduced, and Issuer shall include in such
underwritten offering a number of equity securities in accordance with the
following order of priority:
(i) The first priority shall include two categories, as follows:
(A) The first category shall cover 85% of the Maximum Shares, and
the shares available to this category shall be allocated among
Investcorp, Odyssey, each of the Financial Investors, and the Holders
of Registrable Securities referred to in clause (c) of the definition
of Registrable Securities ("Other Investors" and, together with
Investcorp, Odyssey, and the Financial Investors, the "First Category
Holders") prorata, in the proportion that the Applicable Shares
(defined below) owned (defined below) by each of them who has
requested that shares be included in such registration bears to the
total Applicable Shares owned by all of them who have requested that
shares be included in such registration. If the number of shares so
allocated to any such person exceeds the number which such person has
requested to be included, such excess shall be reallocated to the
remainder of such persons according to the same principles, which
shall continue to be applied until all shares available to this
category have been allocated.
(B) The second category shall cover 15% of the Maximum Shares,
and the shares available to this category shall be allocated among
each Holder (other than First Category Holders) as follows: 50% of the
second category shares shall be allocated to the Issuer Founders in
accordance with any method of allocation determined by Holders of a
majority in interest of Registrable Securities then held by the
Xxxxxxx Family Members, and the remaining 50% shall be allocated to
the IWO Founders prorata, in the proportion that the Applicable Shares
(defined below) owned by each of them who has requested that shares be
included in such registration bears to the total Applicable Shares
owned by all of them who have requested that shares be included in
such registration. If the number of shares so allocated to any such
person exceeds the number which such person has requested to be
included, such excess shall be reallocated to the remainder of such
persons according to the same principles, which shall continue to be
applied until all shares available to this category have been
allocated.
As used in Section 2(e), shares are "owned" by the person who has
direct investment power with respect to them; and "Applicable Shares" means
the number of Registrable Securities then owned by a Holder. The total
shares included in an underwritten offering in accordance with this clause
(i) are the "First Priority Shares." Notwithstanding the foregoing, it
shall be a condition of the inclusion of shares by each of the Issuer
Founders (other than the Xxxxxxx Family Members) and the Other Investors
that such person shall have delivered to Issuer an instrument in writing
(in a form reasonably acceptable to Issuer) by which such person agrees in
writing to be bound by all provisions of this Agreement applicable to
"Holders" and provides an address for notices.
(ii) If the Maximum Shares exceed the First Priority Shares, the
excess shall be allocated (A) to Issuer and any other selling shareholders,
as Issuer shall determine, and, if following such allocation there remain
any shares available for allocation, then (B) to all persons whose shares
are being included in the underwritten offering, in proportion to the
number of shares to be included by each of them after applying all of the
limitations and priorities provided by clauses (i) and (ii).
To the extent that the number of Registrable Securities which Holders have
requested to include is, in the aggregate, less than the Maximum Shares which
Issuer has been advised can be sold in such offering without having the adverse
effect referred to above, then Issuer and other shareholders of Issuer (as
determined by it) shall be entitled to include that number of equity securities
which result in the underwritten offering not exceeding the Maximum Shares that
would cause the effect referred to above. If any Holder advises the managing
underwriter of any underwritten offering that the Registrable Securities and
other equity securities covered by the registration statement cannot be sold in
such offering within a price range acceptable to such Holder, then such Holder
shall have the right to exclude its Registrable Securities from registration.
Shares so excluded shall be reallocated in accordance with the above priorities
unless, in the opinion of Issuer or the managing underwriters, such reallocation
would cause unreasonable delay or expense.
(f) Limitations on Registration on Request. Notwithstanding anything in
this Section 2 to the contrary, (i) the Holders shall be entitled to only one
Underwritten Offering pursuant to Section 2(a), and (ii) Issuer shall not be
required to effect more than one registration pursuant to Section 2(b) if the
Underwritten Offering is consummated under Section 2(a), and shall not be
required to effect more than two registrations pursuant to Section 2(b) if the
Underwritten Offering is not consummated under Section 2(a).
(g) Expenses. Issuer will pay all Registration Expenses that otherwise
would be allocable to Holders in connection with the registrations requested
pursuant to this Section 2, except that each of the Issuer Founders shall, if
Issuer so requires, pay his or her prorata share of the Registration Expenses
based on the proportion that the number of shares included in the registration
by such Saints Founder bears to the total number of shares included therein.
(h) Selection of Underwriters. In the Underwritten Offering, and in any
requested registration pursuant to Section 2(b) if the Requesting Holder
requests that such registration shall be in the form of an underwritten
offering, Issuer, in consultation with the Requesting Holder (which shall mean
Investcorp in the case of the Underwritten Offering and the Requesting Party in
the case of an offering pursuant to Section 2(b)),
shall have the right to select (with the approval of the Requesting Holder, not
to be unreasonably withheld) any investment bank(s) of national standing to act
as book-running manager(s) of the offering, and the Requesting Holder, in
consultation with Issuer, shall have the right to select (with the approval of
Issuer, not to be unreasonably withheld) an investment bank of national standing
to act as joint book runner. Issuer and all participating Holders and other
shareholders shall enter into an underwriting agreement in customary form with
the underwriter or underwriters selected for such underwriting, as well as all
other documents customary in similar offerings, including, without limitation,
underwriting agreements, custody agreements, powers of attorney, and
indemnification agreements.
(i) Shelf Registration. By the date that is four months after the Effective
Date of the Merger, Issuer shall, if requested by Investcorp or Odyssey, file an
"evergreen" shelf registration statement pursuant to Rule 415 under the
Securities Act (the "Shelf Registration") on Form S-3 (or any successor form)
with respect to Registrable Securities issued in the Merger to the initial
Holders thereof and, to the extent provided in the following sentence, their
Transferees (provided that, from and after the time that an "Investcorp Client
Distribution" has occurred, as defined in Section 1.05 of the Standstill
Agreement dated as of December 19, 2001 by and among the Issuer, Investcorp IWO
Limited Partnership and the other Stockholders named therein, the Investcorp
Client Stockholders listed on Schedule A to such Standstill Agreement and their
Transferees shall not be entitled to participate as selling stockholders in the
Shelf Registration). A Transferee of Registrable Securities who acquires such
Registrable Securities in a private transfer complying with Section 8(h) from a
Holder of Registrable Securities included in the Shelf Registration shall not be
entitled to be named as a selling shareholder in the Shelf Registration if doing
so would require an amendment to the Shelf Registration; provided that such a
Transferee shall be entitled to be so included (if SEC rules and policy then
permit such inclusion) in any amendment to the Shelf Registration (other than an
amendment that is deemed to result from the filing by Issuer of a report or
other document that is incorporated by reference into the Shelf Registration)
otherwise filed by the Issuer subsequent to Issuer's receipt of (i) written
notice from such Transferee requesting that such Transferee be included in the
Shelf Registration, and (ii) the information which such Transferee is required
by Section 7(a) to provide to Issuer; and, provided further that the Issuer
shall file an amendment to the Shelf Registration to include any such
Transferees (if SEC rules and policy then permit such inclusion) which have
provided such notice and information and have not previously been included, but
the Issuer shall not be required to file such an amendment sooner than 12 months
following the date on which it filed any previous amendment to the Shelf
Registration (other than an amendment that is deemed to result from the filing
by Issuer of a report or other document that is incorporated by reference into
the Shelf Registration). Issuer shall use its best efforts to have the Shelf
Registration declared effective as soon as practicable after such filing, and
shall use its best efforts to keep the Shelf Registration effective and updated,
subject to Sections 7(b) and 7(c), from the date such Shelf Registration is
declared effective until the earlier of (i) such time as all of the Registrable
Securities shall cease to be Registrable Securities, and (ii) the date that is
three years after the effective date of such registration statement. A Shelf
Registration pursuant to this Section 2(i)
shall not be deemed to have been effected (A) unless a Shelf Registration has
become effective and remained effective in compliance with the provisions of the
Securities Act with respect to the disposition of all Registrable Securities
until the time provided in the preceding sentence or (B) if after it has become
effective and during the period it is required to remain effective, the Shelf
Registration is interfered with by any stop order, injunction or other order or
requirement of the Commission or other governmental agency or court for any
reason not attributable to the holders of Registrable Securities and such order
or injunction prevents the disposition of the Registrable Securities covered by
such registration statement for a period that exceeds 120 days (less any period
during which sales under such registration statement are suspended pursuant to
Section 7(b) or 7(c)) during any 12-month period. The plan of distribution
provided for in a Shelf Registration pursuant to this Section 2(i) shall not
include an underwritten public offering.
(j) Investcorp. The rights of Investcorp to demand an Underwritten Offering
under Section 2(a) hereof, to demand a registration under Section 2(b) hereof
and to request a Shelf Registration under Section 2(i) hereof shall be
exercisable on behalf of Holders included within the definition of Investcorp by
Investcorp Investment Equity Limited, a Cayman Islands company.
3. Incidental Registration.
(a) Rights to Include Registrable Securities. If Issuer proposes to file
under the Securities Act (other than pursuant to Section 2 hereof or to the 1818
RRA), during the three-year period following the Effective Time of the Merger, a
registration statement that pertains to any of its equity securities (other than
a registration on Form X-0, X-0 or any successor or similar forms), whether or
not for sale for its own account, then Issuer will each such time during such
three year period, subject to the provisions of Section 3(b) hereof (and subject
to the 1818 RRA as modified by a written instrument signed by 1818 Fund and/or
the 1818 RRA Parties), give prompt written notice to the Holders of its
intention to do so and of Holders' rights under this Section 3, at least 15
business days prior to the anticipated filing date of the registration statement
relating to such registration. Such notice shall offer the Holders the
opportunity to include in such registration statement such number of Registrable
Securities as each Holder may request, subject to section 3(b) and the rights of
any third party. Upon the written request of any Holder made within 10 business
days after the receipt of Issuer's notice (which request shall specify the
number of Registrable Securities intended to be disposed of by such Holder),
Issuer shall use its best efforts to effect the proposed registration under the
Securities Act of all Registrable Securities which Issuer has been so requested
to register by such Holder; provided that (i) if such registration involves an
underwritten offering, any such Holder must sell its Registrable Securities to
the underwriters selected by Issuer (or by any other person who may be entitled
to make such selection) on the same terms and conditions as apply to Issuer
(except that indemnification obligations of any such Holder shall be limited to
those obligations set forth in Section 6 hereof) and (ii) if, at any time after
giving written notice of its intention to register any securities pursuant to
this Section 3(a) and prior to the effective date of the registration statement
filed in
connection with such registration, Issuer shall determine for any reason not to
register such securities, Issuer shall give written notice to each such Holder
and, thereupon, shall be relieved of its obligation to register any Registrable
Securities in connection with such registration. If a registration pursuant to
this Section 3(a) involves an underwritten public offering, any such Holder may
elect, in writing no less than three days prior to the effective date of the
registration statement filed in connection with such registration, not to
register such securities in connection with such registration. No registration
effected under this Section 3 shall relieve Issuer of its obligations to effect
registrations upon request under Section 2 hereof. Issuer will pay all
Registration Expenses otherwise allocable to Holders in connection with each
registration of Registrable Securities requested pursuant to this Section 3,
except that each of the Issuer Founders shall, if Issuer so requires, pay his or
her prorata share of the Registration Expenses based on the proportion that the
number of shares included in the registration by such Saints Founder bears to
the total number of shares included therein.
(b) Priority in Incidental Registrations. If a registration to which this
Section 3 applies involves an underwritten offering and the managing underwriter
advises Issuer in writing that, in its opinion, the number of equity securities
(including all Registrable Securities) which Issuer, the Holders and any other
persons intend to include in such registration exceeds the largest number of
shares (such amount, the "Maximum Shares" for purposes of this Section 3(b))
which can be sold without having an adverse effect on such offering, including
the price at which such equity securities can be sold, the number of such equity
securities to be included in such registration shall be reduced, and Issuer will
include in such registration a maximum number of equity securities as follows:
(A) first, such number of shares which Issuer proposes to sell for its own
account in such registration; (B) second, to the extent the Maximum Shares
exceeds the shares allocated to the first priority, such number of shares as are
requested for inclusion therein by the Holders of Registrable Securities in
accordance with the priorities and allocations set forth in Section 2(e)(i) (but
using the Section 3 Maximum Shares amount) (provided, however, that, in the
event that such registration is one in which one or more of the 1818 RRA Parties
are also entitled to incidental registration rights, such excess shall be
allocated between the 1818 RRA Parties so entitled, on the one hand, and the
Holders of Registrable Securities hereunder, on the other hand, on the basis of
the number of shares requested for (and so entitled to) inclusion in such
registration, with the sub-allocation to and among the 1818 RRA Parties
otherwise governed by the 1818 RRA and the sub-allocation to and among the
Holders of Registrable Securities hereunder determined in accordance with the
priorities and allocations set forth in Section 2(e)(i) (but using the Section 3
Maximum Shares amount)); and (C) third, to the extent the Maximum Shares exceed
the shares allocated to the first and second priorities, such excess will be
allocated in accordance with Section 2(e)(ii) (but using the Section 3 Maximum
Shares amount). It is understood and agreed that Holders under this Agreement
will have no right to participate in any demand or shelf registration under the
1818 RRA, and the 1818 RRA Parties shall have no right to participate in any
registration pursuant to Section 2 hereof.
4. Holdback Agreements.
(a) Restrictions on Sale by the Holders. If any registration of Issuer
Common Stock shall be in connection with an underwritten public offering in
which a Holder has a right to include shares pursuant to Section 2 or 3 hereof
(it being understood and agreed that, with respect to any registration statement
that is filed during the first year following the Effective Time of the Merger,
the determination of such right shall, with respect to a Holder which has
requested to have shares included in such underwritten public offering, be made
prior to the operation of Section 2(e) or 3(b) as applicable), such Holder
agrees not to effect any sale or distribution, including any sale pursuant to
Rule 144 under the Securities Act, of any Registrable Securities, and not to
effect any such sale or distribution of other equity securities of Issuer or of
any securities convertible into or exchangeable or exercisable for any other
equity securities of Issuer (in each case, other than as part of such
underwritten public offering) during the period of up to 90 days (as requested
by the managing underwriter) following the pricing of such underwritten
offering, except that this Section 4(a) shall not apply to sales being made by
any Issuer Founder pursuant to a plan adopted under Exchange Act Rule 10b5-1 (or
any successor rule) prior to the date on which the registration statement was
initially filed. Each Holder to whom or which this Section 4(a) is applicable
will execute and deliver such instrument as the managing underwriter may request
confirming the provisions of this Section.
(b) Restrictions on Sale by Issuer and Others. If any registration of
Registrable Securities shall be made in connection with an underwritten public
offering effected pursuant to Section 2(a) or 2(b), Issuer agrees, if the
managing underwriter so requests, not to effect any public sale or distribution
of any Issuer Common Stock, Issuer Common Stock Equivalents or other equity
securities or of any security convertible into or exchangeable or exercisable
for any Issuer Common Stock, Issuer Common Stock Equivalents or other equity
securities of Issuer (other than in connection with an employee stock option or
other benefit plan or a business combination) during the 15 days prior to, and
for up to 90 days (as requested by such underwriter) beginning on, the date of
pricing such underwritten offering (except as part of such registration). Issuer
further agrees that any agreement entered into after the date of this Agreement
pursuant to which Issuer issues or agrees to issue any privately placed Issuer
Common Stock, Issuer Common Stock Equivalents or other equity securities shall
contain a provision under which holders of such securities agree that, if the
underwritten public offering is an offering requested under Section 2(a) or
2(b), such holders will not effect any sale or distribution of any such
securities during the period referred to in the foregoing clause (i), including
any sale pursuant to Rule 144 under the Securities Act (except as part of such
registration, if permitted).
5. Registration Procedures. If and whenever Issuer is required to use its
best efforts to effect or cause the registration of any Registrable Securities
under the Securities Act as provided in this Agreement, Issuer will, as
expeditiously as possible (but subject in each case to Section 7(c)):
(a) In the case of a registration as provided in Section 2(a) or 2(b)
of this Agreement, use its best efforts to prepare and file with the SEC
within 30 days after receipt of a request for registration with respect to
such Registrable Securities, a
registration statement on any form for which Issuer then qualifies or which
counsel for Issuer shall deem appropriate, and which form shall be
available for the sale of the Registrable Securities in accordance with the
intended method of distribution thereof, and use its best efforts to cause
such registration statement to become and remain effective as promptly as
practicable, subject to the right of Investcorp to defer Issuer's request
for the acceleration of effectiveness of any such registration statement
filed pursuant to Section 2(a) as may be necessary to accommodate the
anticipated timetable for such offering and subject to the provisions of
Section 2(a) and 2(b), as applicable, with respect to timing of the
offering. Prior to filing with the SEC a registration statement or
prospectus or any amendments or supplements thereto pursuant to this
Agreement, Issuer will (i) furnish to the selling Holders copies of the
form of preliminary prospectus proposed to be filed and furnish to Selling
Holders Counsel copies of all such documents proposed to be filed, which
documents will be subject to the review of such counsel and shall not be
filed unless and until consideration has been given to the changes
reasonably and timely requested by such counsel, and (ii) notify the
selling Holders of any stop order issued or threatened by the SEC and take
all reasonable actions required to prevent the entry of such stop order or
to remove it if entered.
(b) prepare and file with the SEC 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 120 days or such shorter period which will
terminate when all Registrable Securities covered by such registration
statement have been sold or, with respect to the Shelf Registration, as
provided in Section 2(i), and comply with the provisions of the Securities
Act with respect to the disposition of all securities covered by such
registration statement during whichever period is required by this Section
5(b) in accordance with the intended method of disposition by the sellers
thereof set forth in such registration statement;
(c) promptly furnish to each Holder and each underwriter, if any, of
Registrable Securities covered by such registration statement such number
of copies of such registration statement, each amendment and supplement
thereto (in each case including all financial statements, schedules and
exhibits thereto), the prospectus included in such registration statement
(including each preliminary prospectus), in conformity with the
requirements of the Securities Act, copies of any correspondence with the
SEC or its staff relating to the registration statement and such other
documents as any Holder or underwriter may reasonably request in order to
facilitate the disposition of the Registrable Securities;
(d) use its best efforts to register or qualify such Registrable
Securities under the securities or blue sky laws of such jurisdictions as
any Holder or underwriter, if any, reasonably requests and do any and all
other acts and things which may be reasonably necessary or advisable to
enable such Holder and each underwriter, if any, to consummate the
disposition in such jurisdictions of the Registrable Securities; provided
that Issuer will 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 paragraph (d), (ii) subject
itself to taxation in any such jurisdiction or (iii) consent to general
service of process in any such jurisdiction;
(e) immediately notify the selling Holders (which Holders shall
immediately cease selling under the registration statement upon receiving
such notice, as provided in Section 7(b), and shall keep confidential the
facts prompting such notification and, except to the extent necessary to
cease selling as provided above, the fact that such notification was given)
at any time when a prospectus relating thereto is required to be delivered
under the Securities Act, of the happening of any event which comes to
Issuer's attention if as a result of such event the prospectus included in
such registration statement contains an untrue statement of a material fact
or omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and Issuer will
promptly prepare and furnish to the selling Holders a supplement or
amendment to such prospectus so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus will not contain
an untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading (whereupon, subject to Section 7(c), the Holders may resume
selling under the registration statement);
(f) use its best efforts to prevent the issuance of and obtain the
withdrawal of any stop order suspending the effectiveness of a registration
statement relating to the Registrable Securities or of any order preventing
or suspending the use of any preliminary or final prospectus at the
earliest practicable moment;
(g) if requested by the managing underwriter or underwriters or any
Holder, promptly incorporate in a prospectus supplement or post-effective
amendment such information as the managing underwriters and each applicable
selling Holder agree should be included therein relating to the plan of
distribution with respect to such Registrable Securities, including,
without limitation, information with respect to the number of Registrable
Securities being sold to such underwriters, the purchase price being paid
therefor by such underwriters and with respect to any other terms of the
underwritten (or best efforts underwritten) offering of the Registrable
Securities to be sold in such offering; and make all required filings of
such prospectus supplement or post- effective amendment as soon as
practicable after being notified of the matters to be incorporated in such
prospectus supplement or post-effective amendment;
(h) cooperate with the Holders and the managing underwriters, if any,
to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold and not bearing any
restrictive legends; and enable such Registrable Securities to be in such
denominations and registered in such names as the managing underwriters may
request prior to any sale of the Registrable Securities to the
underwriters;
(i) use its best efforts to cause all such Registrable Securities to
be listed on a national securities exchange or quotation system, and on
each securities exchange or quotation system on which similar securities
issued by Issuer are then listed, and enter
into such customary agreements including a listing application and
indemnification agreement in customary form, provided that the applicable
listing requirements are satisfied, and to provide a transfer agent and, if
mandated by listing requirements, registrar for such Registrable Securities
covered by such registration statement no later than the effective date of
such registration statement;
(j) enter into such customary agreements (including an underwriting
agreement in customary form) and take all such other actions as a selling
Holder or the underwriters, if any, reasonably request in order to expedite
or facilitate the disposition of such Registrable Securities, including
customary indemnification and supporting Holders' efforts to execute block
trades with institutional buyers, including without limitation, making
appropriate members of senior management of Issuer available (subject to
consulting with them in advance as to schedule) in connection with an
underwritten offering pursuant to Section 2(a) or 2(b) for customary
participation in telephonic or in-person conferences or road show
presentations to potential investors;
(k) make available for inspection by the selling Holders, any
underwriter participating in any disposition pursuant to such registration
statement, and any attorney, accountant or other agent retained by any
Holder or underwriter (collectively, the Inspectors), all financial and
other records, pertinent corporate documents and properties of Issuer and
its subsidiaries, if any, as shall be reasonably necessary to enable them
to exercise their due diligence responsibility, and cause Issuer's and its
subsidiaries' officers, directors and employees to supply all information
and respond to all inquiries reasonably requested by any such Inspector in
connection with such registration statement, in each case subject to
reasonable confidentiality agreements if requested by Issuer;
(l) use its best efforts to obtain in connection with an underwritten
offering (i) an opinion or opinions of counsel to Issuer and (ii) a cold
comfort letter or letters from Issuer's independent public accountants in
customary form and covering such matters of the type customarily covered by
opinions and cold comfort letters as the selling Holders or the underwriter
requests;
(m) otherwise use its best efforts to comply with all applicable rules
and regulations of the SEC, and make available to its security holders an
earnings statement covering a period of at least twelve months, ending on
the last day of Issuer's first fiscal quarter that ends twelve full months
or more after the effective date of the registration statement (as the term
effective date is defined in Rule 158(c) under the Securities Act), which
earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder or any successor provisions thereto;
(n) promptly prior to the filing of any document which is to be
incorporated by reference into the registration statement or the prospectus
(after initial filing of the registration statement), provide copies of
such document to Selling Holders Counsel and to the managing underwriters,
if any, subject in either case to a confidentiality agreement reasonably
acceptable to Issuer and complying with Regulation FD, make Issuer's
representatives available for discussion of such document and give due
consideration to
changes in such document prior to the filing thereof as such counsel may
reasonably propose in sufficient tine for such consideration to be given
prior to the due date of such document;
(o) promptly notify the selling Holders, Selling Holders Counsel and
the managing underwriter or agent, (i) when the registration statement, or
any post-effective amendment to the registration statement, shall have
become effective, or any supplement to the prospectus or any amendment to
the prospectus shall have been filed, (ii) of the receipt of any comments
from the SEC, (iii) of any request of the SEC to amend the registration
statement or amend or supplement the prospectus or for additional
information, and (iv) of the issuance by the SEC of any stop order
suspending the effectiveness of the registration statement or of any order
preventing or suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the registration statement for offering
or sale in any jurisdiction, or of the institution or threatening of any
proceedings for any of such purposes;
(p) cooperate with the selling Holders and each underwriter or agent
participating in the disposition of such Registrable Securities and their
respective counsel in connection with any filings required to be made with
any securities exchange or national market system and/or the NASD.
6. Indemnification.
(a) Indemnification by Issuer. In the event of any registration of
Registrable Securities under the Securities Act pursuant to Section 2 or 3
hereof, Issuer will, and it hereby does, indemnify and hold harmless, to the
full extent permitted by law, each Holder, its directors, officers, employees,
stockholders, general partners, limited partners, members, advisory directors,
managing directors and each other person, if any, who controls, is controlled by
or is under common control with such Holder against any and all losses, claims,
damages or liabilities, joint or several, and expenses (including any amounts
paid in any settlement effected with Issuer's prior written consent) to which
such Holder, director, officer, employee, stockholder, general partner, limited
partner, member, advisory director, managing director or other person may become
subject under the Securities Act, Exchange Act, state securities or blue sky
laws, common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) or expenses arise out
of or are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained, on the effective date thereof, in any registration
statement under which such Registrable Securities were registered under the
Securities Act, any preliminary, final or summary prospectus contained therein,
or any amendment or supplement thereto or (ii) any omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading (in light of the circumstances under
which they are made), and Issuer will reimburse each Holder and each such
director, officer, employee, stockholder, general partner, limited partner,
member, advisory director, managing director or other person for any legal or
any other expenses reasonably incurred by them as such expenses are incurred in
connection with investigating or defending such loss, claim, liability,
action or proceeding; provided that Issuer shall not be liable in any such case
to the extent that any such loss, claim, damage, liability (or action or
proceeding in respect thereof) or expense arises out of or is based upon any
untrue statement or alleged untrue statement or omission or alleged omission
made in such registration statement or amendment or supplement thereto or in any
such preliminary, final or summary prospectus in reliance upon and in conformity
with written information furnished to Issuer by or in behalf of such Holder for
use in the preparation thereof; provided, further, however, that Issuer shall
not be required to indemnify any such indemnified Person to the extent that such
loss, claim, damage, liability, expense, action or proceeding arises out of or
is based upon an untrue statement or omission or alleged untrue statement or
omission that was corrected in the final prospectus or any amendment or
supplement thereto and it is established that such Holder failed to deliver or
provide a copy of the final prospectus (as amended or supplemented) to the
claimant with or prior to the sale of such Registrable Securities sold to such
claimant, unless such failure to deliver or provide a copy of the final
prospectus (as amended or supplemented) was as a result of the failure of Issuer
to provide such final prospectus or such amendment or supplement thereto on a
timely basis as required by this Agreement.
(b) Indemnification by Holders. In the event of any registration pursuant
to Section 2 or Section 3 hereof, each Holder participating as a selling
stockholder therein will, and hereby does, indemnify and hold harmless (in the
same manner and to the same extent as set forth in Section 6(a)) Issuer and its
directors, officers, employees, stockholders, advisory directors and each other
Person, if any, who controls, is controlled by or is under common control with
Issuer (collectively "Issuer Indemnified Persons") and each other seller
(including, without limitation, other Holders) whose shares are included in the
registration statement and such seller's directors, officers, employees,
stockholders, general partners, limited partners, members, advisory directors
and managing directors and the persons who control, are controlled by or are
under common control with such seller (collectively, "Seller Indemnified
Persons" and, together with the Issuer Indemnified Persons, the "Indemnified
Persons") against any and all losses, claims, damages or liabilities, joint or
several, and expenses (including any amounts paid in any settlement effected
with the prior written consent of such Holder) to which any of such Indemnified
Persons become subject under the Securities Act, Exchange Act, state securities
or blue sky laws, common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) or
expenses arise out of or are based upon (i) any untrue statement or alleged
untrue statement of any material fact contained, on the effective date thereof,
in any registration statement under which securities of Issuer or such other
seller were registered under the Securities Act, any preliminary, final or
summary prospectus contained therein, or any amendment or supplement thereto or
(ii) any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading
(in light of the circumstances under which they are made), and such Holder will
reimburse each such Indemnified Person for any legal or any other expenses
reasonably incurred by such Person as such expenses are incurred in connection
with investigating or defending such loss, claim, liability, action or
proceeding; provided that such Holder shall only be liable in any such case to
the extent that such loss, claim, damage, liability
(or action or proceeding in respect thereof) or expense arises out of or is
based upon any untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement or amendment or supplement
thereto or in any such preliminary, final or summary prospectus in reliance upon
and in conformity with written information furnished to Issuer by or in behalf
of such Holder for use in the preparation thereof; provided, further, however,
that such Holder shall not be required to indemnify any such Indemnified Person
to the extent that such loss, claim, damage, liability, expense, action or
proceeding arises out of or is based upon an untrue statement or omission or
alleged untrue statement or omission that was corrected in the final prospectus
or any amendment or supplement thereto and it is established that Issuer (in the
case of Issuer and the Issuer Indemnified Persons) or any such other seller (in
the case of such other seller whose shares are included in the Registration
Statement and the Seller Indemnified Persons related to it) failed to deliver or
provide a copy of the final prospectus (as amended or supplemented) to the
claimant with or prior to the sale of such Registrable Securities sold to such
claimant. Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of Issuer or any other seller or Indemnified
Person. No Holder shall be liable under this Section 6 for any amounts exceeding
the product of the purchase price per Registrable Security and the number of
Registrable Securities being sold pursuant to such registration statement or
prospectus by such Holder.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified party
hereunder of written notice of the commencement of any action or proceeding with
respect to which a claim for indemnification may be made pursuant to this
Section 6, such indemnified party shall, if a claim in respect thereof is to be
made against an indemnifying party, promptly give written notice to the latter
of the commencement of such action; provided that the failure of any indemnified
party to give notice as provided herein shall not relieve the indemnifying party
of its obligations under the preceding subsections of this Section 6, except to
the extent that the indemnifying party is actually materially prejudiced by such
failure to give notice. In case any such action is brought against an
indemnified party, unless in such indemnified party's reasonable judgment a
conflict of interest between such indemnified and indemnifying parties may exist
in respect of such claim, the indemnifying party will be entitled to participate
in and, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, to the extent that it may wish, with counsel reasonably
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such indemnified party for
any legal or other expenses subsequently incurred by the latter in connection
with the defense thereof, unless in such indemnified party's reasonable judgment
a conflict of interest between such indemnified and indemnifying parties exists
or the indemnifying party is not adequately defending such action or proceeding.
An indemnifying party will not be subject to any liability for any settlement
made without its consent (which consent shall not be unreasonably withheld). No
indemnifying party will consent to entry of any judgment or enter into any
settlement of any pending or threatened proceeding which (i) does not include as
an unconditional term thereof the giving by the claimant or plaintiff to all
indemnified parties of a release from all liability
in respect to such claim or litigation, (ii) involves the imposition of
equitable remedies or the imposition of any non-financial obligations on such
indemnified party or (iii) otherwise adversely affects such indemnified party
other than as a result of the imposition of financial obligations for which such
indemnified party is entitled to be indemnified hereunder. Notwithstanding
anything to the contrary contained herein, an indemnifying party will not be
obligated to pay the fees and expenses of more than one counsel (together with
appropriate local counsel) for all parties indemnified by such indemnifying
party with respect to such claim.
(d) Contribution. If the indemnification provided for in this Section 6 is
unavailable to an indemnified party under Section 6(a) or Section 6(b) hereof
(other than by reason of exceptions provided in those Sections) in respect of
any losses, claims, damages, liabilities or expenses referred to therein, then
each applicable indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative benefits received by the
indemnifying party on the one hand and the indemnified party on the other, and
the relative fault of the indemnifying party on the one hand and of the
indemnified party on the other in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities (or actions or
proceedings in respect thereof) or expenses, as well as any other relevant
equitable considerations. The relative fault of the indemnifying party on the
one hand and of the indemnified party on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the indemnifying party or by the indemnified
party and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid or
payable by a party as a result of the losses, claims, damages, liabilities and
expenses referred to above shall be deemed to include, subject to the
limitations set forth in Sections 6(a) and 6(b), any legal or other fees or
expenses reasonably incurred by such party in connection with investigating or
defending any action or claim. Issuer and the Holders agree that it would not be
just and equitable if contribution pursuant to this Section 6(d) were determined
by pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 6(d), no Holder shall
be required to contribute any amount in excess of the amount by which the total
price at which the Registrable Securities sold by such Holder and distributed to
the public were offered to the public exceeds the amount of any damages which
such Holder has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
(e) Non-Exclusivity. The obligations of the parties under this Section 6
shall be in addition to any liability which any party may otherwise have to any
other party.
(f) Indemnification Payments. The indemnification and contribution required
by Sections 6(a), 6(b) and 6(d) shall be made by periodic payments of the amount
thereof during the course of the investigation or defense, as and when bills are
received or expense, loss, damage or liability is incurred.
7. Certain Obligations of the Holders; Blackout Periods.
(a) Providing Information. It shall be a condition precedent to the
obligation of Issuer to take any action pursuant to this Agreement in respect of
the Registrable Securities which are to be registered at the request of any
Holder that such Holder shall furnish to Issuer such information regarding the
Registrable Securities held by such Holder and the intended method of
disposition thereof as Issuer shall reasonably request in connection with such
registration, including (without limitation) the information specified by Items
507 and 508 of Regulation S-K under the Securities Act and including sufficient
information to ascertain the number of Registrable Shares "owned" by such Holder
for purposes of Section 2(e)(i). Issuer shall be entitled to rely on such
information in allocating priorities pursuant to Section 2(e) or 3(b) and shall
have no liability to any other Holder with respect to allocations thus made.
(b) Discontinuing Dispositions. Each Holder agrees that, upon receipt of
any notice from Issuer of the happening of any event of the kind described in
Section 5(e) hereof, such Holder will forthwith discontinue disposition of
Registrable Securities pursuant to the registration statement covering such
Registrable Securities until such Holder receives the copies of the prospectus
supplement or amendment contemplated by Section 5(e) hereof, and, if so directed
by Issuer, such Holder will deliver to Issuer (at Issuer's expense) all copies,
other than permanent file copies, then in such Holder's possession, of the
prospectus covering such Registrable Securities current at the time of receipt
of such notice. In the event Issuer shall give any such notice, the period
mentioned in Section 5(b) hereof shall be extended by the greater of 30 days or
the number of days during the period from and including the date of the giving
of such notice pursuant to Section 5(e) hereof to and including the date when
such Holder shall have received the copies of the prospectus supplement or
amendment contemplated by Section 5(e) hereof.
(c) Blackout Periods. Notwithstanding any other provision of this
Agreement, Issuer may delay filing a registration statement, and may withhold
efforts to cause the registration statement to become effective or to supplement
or amend any prospectus, in each such case if Issuer determines in good faith
that such filing or efforts would (1) interfere with or affect the negotiation
or completion of any transaction that is being contemplated by Issuer (whether
or not a final decision has been made to undertake such transaction) at the time
the right to delay is exercised, or (2) involve initial or continuing disclosure
obligations that would not be in the best interest of Issuer's stockholders;
provided, however, that Issuer shall not postpone such filings, supplements,
amendments or post-effective amendments for more than an aggregate of 105 days
in any twelve month period. In the event Issuer postpones the filing of a
registration statement, the Requesting Holder of Registrable Securities
requesting registration thereof pursuant
to Section 2 shall have the right to withdraw the request for registration by
giving written notice thereof to Issuer within 10 days after receipt of notice
of postponement and, in the event of such withdrawal, such request shall not be
counted for purposes of the requests for registration to which Holders of
Registrable Securities are entitled pursuant to Section 2. Issuer shall promptly
notify the Holders whose Registrable Securities are included, or are to be
included, in such registration statement of Issuer's determination to invoke any
such delay, of the general reasons therefor (but not including any material
nonpublic information), and of the approximate time range of the delay.
(d) Notice of Inclusion. Each Holder who is invited to include shares in a
registration statement pursuant to this Agreement and wishes to include shares
therein will notify Issuer of the number of shares requested to be included (and
any other information reasonably requested by Issuer in connection with such
invitation) within 10 business days (or such longer period as is specified by
Issuer) after such Holder's receipt of such invitation.
8. Miscellaneous.
(a) Remedies. Issuer and each Holder acknowledge and agree that in the
event of any breach of this Agreement by any of them (other than a breach cause
solely by failure to pay a sum of money), the Holders and Issuer would be
irreparably harmed and could not be made whole by monetary damages. Each party
accordingly agrees to waive the defense in any action for specific performance
that a remedy at law would be adequate and that the parties, in addition to any
other remedy to which they may be entitled at law or in equity, shall be
entitled to compel specific performance of this Agreement.
(b) Entire Agreement. This Agreement and the Merger Agreement (and all
agreements referred to therein as being executed and delivered in connection
with the Merger Agreement ("Related Agreements")) constitute the entire
agreement and understanding of the parties hereto in respect of the subject
matter contained herein and therein, and there are no restrictions, promises,
representations, warranties, covenants, or undertakings with respect to the
subject matter hereof or thereof, other than those expressly set forth or
referred to herein or therein. This Agreement supersedes all prior agreements
and understandings among the parties hereto with respect to the subject matter
hereof (other than the Merger Agreement and the Related Agreements) and
supercedes all prior registration rights or other agreements between IWO and any
of such parties with respect to the registration of securities issued or
issuable by IWO.
(c) Notices. Any notice, request, instruction or other document to be given
hereunder by any party hereto to another party hereto shall be in writing, and
shall be delivered personally or sent by facsimile or certified or registered
mail, postage prepaid, return receipt requested, or by Federal Express or other
overnight delivery service, to the address of the party set forth below or to
such other address as the party to whom notice is to be given may provide in a
written notice to the others.
(i) If to Issuer, to:
US Unwired Inc.
Xxxx Xxxxxx Xxx 0000
Xxxx Xxxxxxx, Xxxxxxxxx 00000
Facsimilie: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, General Counsel
With a copy to each of:
US Unwired Inc.
000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxxxx, Xxxxxxxxx 00000
Facsimilie: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, General Counsel
and
Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx, L.L.P.
000 Xx. Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Facsimilie: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
(ii) If to Investcorp, as provided in Schedule B to this Agreement,
With a copy to:
Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx LLP
Facsimile: (000) 000-0000
Attention: E. Xxxxxxx Xxxxxxx, Esq.
(iii) If to Odyssey, to:
Odyssey Investment Partners, LLC
000 Xxxx Xxxxxx
Xxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxx
(iv) If to the Financial Investors, or any of them, as provided in Schedule
B to this Agreement.
(v) If to the IWO Founders, or any of them, as provided in Schedule C to
this Agreement.
(vi) If to the Xxxxxxx Family Members, or any of them, as provided in
Schedule D to this Agreement,
With a copy to:
US Unwired Inc.
000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxxxx, Xxxxxxxxx 00000
Facsimilie: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
(d) Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Delaware, without giving
effect to any choice or conflict of law provision or rule (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. Each of the parties
hereto hereby irrevocably and unconditionally consents to submit to the
exclusive jurisdiction of the courts of the State of Delaware and of the United
States of America located in Wilmington, Delaware (the "Delaware Courts"), for
any litigation arising out of or relating to this Agreement (and agrees not to
commence any litigation relating thereto except in such Delaware Courts),
consents to service of process by notice as provided in Section 9(c) of this
Agreement, waives any objection to the laying of venue of any such litigation in
the Delaware Courts and agrees not to plead or claim in any Delaware Court that
such litigation brought therein has been brought in an inconvenient forum. The
preceding sentence shall not apply following any final determination by all
available Delaware Courts that jurisdiction is lacking or will not be accepted.
(e) MUTUAL WAIVER OF JURY TRIAL. THE PARTIES HERETO WAIVE ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING BROUGHT TO ENFORCE OR DEFEND ANY
RIGHTS OR REMEDIES UNDER THIS AGREEMENT.
(f) Severability. The invalidity, illegality or unenforceability of one or
more of the provisions of this Agreement in any jurisdiction shall not affect
the validity, legality or enforceability of the remainder of this Agreement in
such jurisdiction or the validity, legality or enforceability of this Agreement,
including any such provision, in any other jurisdiction, it being intended that
all rights and obligations of the parties hereunder shall be enforceable to the
fullest extent permitted by law.
(g) Other Agreements. Nothing contained in this Agreement shall be deemed
to be a waiver of, or release from, any obligations any party hereto may have
under, or any restrictions on the transfer of Registrable Securities or other
securities of Issuer imposed by, any other agreement.
(h) Successors; Assigns; Transferees; Jointly Exercised Rights. The
provisions of this Agreement shall be binding upon and accrue to the benefit of
the parties hereto, the Issuer Founders and the Other Investors and their
respective heirs, successors and permitted assigns, except that no assignment of
this Agreement may be made by a Holder except in accordance with the following
sentence. A Holder shall be permitted to assign by a written instrument
delivered promptly to Issuer any or all of such Holder's rights (subject to its
correlative obligations) under this Agreement to any Transferee of Registrable
Securities which agrees in writing (in a form reasonably acceptable to Issuer)
to be bound by all provisions of this Agreement applicable to "Holders" and to
such transferor and provides an address for notices. No such Transferee shall
acquire rights greater than those of its transferor. If rights are transferred
in part, and in any other circumstance where a right under this Agreement is
exercisable by more than one Person, such right shall be exercised only as
determined by a majority of the Registrable Securities held by all of the
persons holding such right.
(i) Amendments, Waivers. This Agreement may not be amended, modified or
supplemented and no waivers of or consents to departures from the provisions
hereof may be given unless consented to in writing by Issuer and the then
Holders of at least 66 2/3% of the Registrable Securities.
(j) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same Agreement.
(k) Rule 144. Issuer covenants that it will file any reports required to be
filed by it under the Exchange Act and will take such further action as any
Holder may reasonably request, so as to enable such Holder to sell Registrable
Securities under the exemption from registration provided by (a) Rule 144 under
the Securities Act, as such Rule may be amended from time to time, or (b) any
similar rule or regulation hereafter adopted by the SEC. Upon the request of any
Holder, Issuer will deliver to such Holder a written statement as to whether it
has complied with such requirements. Issuer's obligations under this Section
8(k) will expire two years after the Effective Date of the Merger.
(l) Other Registration Rights.
(i) Issuer covenants that it will not hereafter grant any right of
registration under the Securities Act relating to any shares of Issuer
Common Stock or Issuer Common Stock Equivalents or other equity securities
to any person unless each of the Holders shall be entitled to have included
in any registration effected pursuant to Section 2 hereof all Registrable
Securities requested by it to be so included prior to the inclusion of any
securities requested to be registered by the persons entitled to any such
other registration rights. This subsection will terminate at the earlier of
the date which is three years after the date of this Agreement or the
earliest date by which there are no Registrable Securities.
(ii) Issuer covenants that it will not grant any right of registration
under the Securities Act relating to any of its shares of Issuer Common
Stock or Issuer Common Stock Equivalents or other equity securities to any
Person pursuant to any provision providing registration rights comparable
to those contained in Section 2 hereof without providing that the exercise
of such rights will only be permitted following either (a) the date that is
120 days after the Effective Date of the Merger or (b) if the Underwritten
Offering is consummated, the date that is 90 days after such consummation.
This subsection will terminate at the earlier of the date which is three
years after the date of this Agreement or the earliest date by which there
are no Registrable Securities.
(iii) Each Holder acknowledges that Issuer has granted registration
rights to the 1818 RRA Parties pursuant to the 0000 XXX. The Holders
acknowledge that such registration rights may, among other things, entitle
1818 Fund to participate in an offering requested hereby and may affect the
priority of registration as set forth herein, unless otherwise agreed by
the 1818 RRA Parties.
(m) Headings. The headings and captions contained herein are for
convenience of reference only and shall not control or affect the meaning or
construction of any provision hereof.
IN WITNESS WHEREOF, the parties hereto have executed this
Registration Rights Agreement as of the date first written above.
"ISSUER":
US Unwired Inc.
By: /s/ Xxxxxx Xxxxx
-----------------------------
Name: Xxxxxx Xxxxx
Title: President
"INVESTCORP":
Investcorp IWO Limited Partnership
By: /s/ Xxxxxxx X. X. Xx Xxxxx
------------------------------------
Name: Xxxxxxx X. X. Xx Xxxxx
Title: Authorized Representative
Ballet Limited
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Representative
Denary Limited
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Authorized Representative
Gleam Limited
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Authorized Representative
Highlands Limited
By: /s/ Xxxxx Xxxx
------------------------------------
Name: Xxxxx Xxxx
Title: Authorized Representative
Noble Limited
By: /s/ Xxxxxx Xxxxx
------------------------------------
Name: Xxxxxx Xxxxx
Title: Authorized Representative
Outrigger Limited
By: /s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Representative
Quill Limited
By: /s/ Xxxxxxx X. X. Xx Xxxxx
------------------------------------
Name: Xxxxxxx X. X. Xx Xxxxx
Title: Authorized Representative
Radial Limited
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx
Title: Authorized Representative
Shoreline Limited
By: /s/ Xxxxx Xxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxx
Title: Authorized Representative
Zinnia Limited
By: /s/ Xxxx Xxxxxx
-------------------------------------
Name: Xxxx Xxxxxx
Title: Authorized Representative
Investcorp Investment Equity Limited
By: /s/ Sydney X. Xxxxxxx
------------------------------------
Name: The Director Ltd.
Title: Director
Xxxxxxx Limited
By: /s/ [signature illegible]
------------------------------------
Name: Martonmere Services Ltd.
Title: Director
Xxxxxxxx Limited
By: /s/ [signature illegible]
------------------------------------
Name: Martonmere Services Ltd.
Title: Director
Frankfort Limited
By: /s/ [signature illegible]
------------------------------------
Name: Martonmere Services Ltd.
Title: Director
Paugus Limited
By: /s/ [signature illegible]
------------------------------------
Name: Martonmere Services Ltd.
Title: Director
Wireless International Limited
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Director
Wireless Equity Limited
By: /s/ Xxx Xxxxx
------------------------------------
Name: Xxx Xxxxx
Title: Director
Wireless Holdings Limited
By: /s/ Xxx Xxxxx
-------------------------------------------
Name: Xxx Xxxxx
Title: Director
Wireless Investments Limited
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Director
IWO Equity Limited
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Director
IWO Investments Limited
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Director
Cellular Equity Limited
By: /s/ Xxxx Xxxxxx
-------------------------------------------
Name: Xxxx Xxxxxx
Title: Director
Mobile Holdings Limited
By: /s/ Xxxx Xxxxxx
-------------------------------------------
Name: Xxxx Xxxxxx
Title: Director
Wireless IIP Limited
By: /s/ Xxx Xxxxx
-------------------------------------------
Name: Xxx Xxxxx
Title: Director
Equity IWO Limited
By: /s/ Xxx Xxxxx
-------------------------------------------
Name: Xxx Xxxxx
Title: Director
New IWO Equity Limited
By: /s/ Xxxx Xxxxxx
-------------------------------------------
Name: Xxxx Xxxxxx
Title: Director
New Wireless IIP Limited
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Director
New Equity IWO Limited
By: /s/ Xxx Xxxxx
-------------------------------------------
Name: Xxx Xxxxx
Title: Director
"ODYSSEY":
Odyssey Investment Partners Fund, LP
By: Odyssey Capital Partners, LLC,
its general partner
By: /s/ Xxxxx Xxxxx
------------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Odyssey Coinvestors, LLC
By: Odyssey Investment Partners, LLC,
as Managing Member
By: /s/ Xxxxx Xxxxx
------------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
"FINANCIAL INVESTORS":
Paribas North America Inc.
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Chief Financial Officer
TCW/Crescent Mezzanine Partners II, L.P. and
TCW/Crescent Mezzanine Trust II
By: TCW/Crescent Mezzanine II, L.L.C.
its Investment Manager
By: TCW/Crescent Mezzanine, L.L.C.
As its Managing Owner
By: /s/ Xxxxx X. Xxxxxxx, Xx.
----------------------------------------------
Name: Xxxxx X. Xxxxxxx, Xx.
Title: Senior Vice President
TCW Leveraged Income Trust, L.P.
By: TCW Advisers (Bermuda), Ltd.
as its General Partner
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
By: TCW Investment Management Company
as Investment Adviser
By: /s/ Xxxx-Xxxx Xxxxxx
----------------------------------------------
Name: Xxxx-Xxxx Xxxxxx
Title: Managing Director
TCW Leveraged Income Trust II, L.P.
By: TCW (XXXX XX), L.P.
as its General Partner
By: TCW Advisers (Bermuda), Ltd.
its General Partner
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
By: TCW Investment Management Company
as Investment Adviser
By: /s/ Xxxx-Xxxx Xxxxxx
----------------------------------------
Name: Xxxx-Xxxx Xxxxxx
Title: Managing Director
TCW Leveraged Income Trust IV, L.P.
By: TCW Asset Management Company
As its Investment Advisor
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
AND
By: TCW Asset Management Company
As its Managing Member of TCW
(XXXX XX) L.L.C., the General Partner
By: /s/ Xxxx-Xxxx Xxxxxx
----------------------------------------
Name: Xxxx-Xxxx Xxxxxx
Title: Managing Director
"IWO FOUNDERS":
/s/ Xxxxx Xxxxxx
--------------------------------------
Xxxxx Xxxxxx
/s/ X.X. Xxxx III
--------------------------------------
X.X. Xxxx III
/s/ Xxxxxx Xxxxxxx
--------------------------------------
Xxxxxx Xxxxxxx
Delhi PCS Inc.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Dry Brook Holdings LLC
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Manager
MTC North Inc.
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Officer
Newport PCS Inc.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
Finger Lakes Technologies Group Inc.
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
Adirondack Capital LLC
By: /s/ X.X. Xxxx III
-----------------------------------
Name: X.X. Xxxx III
Title: Manager
Cerberus Investments LP
By: /s/ Xxxxxxx Xxxx
-----------------------------------
Name: Xxxxxxx Xxxx
Title: General Partner
/s/ Xxxxxxx Xxxx
-----------------------------------------
Xxxxxxx Xxxx
"XXXXXXX FAMILY MEMBERS":
/s/ Xxxxxxx X. Xxxxxxx, Xx.
---------------------------------------
Xxxxxxx X. Xxxxxxx, Xx.
/s/ Xxxx X. Xxxxxxx
---------------------------------------
Xxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx, Xx.
---------------------------------------
Xxxxxxx X. Xxxxxxx, Xx.
/s/ Xxxx X. Xxxxxxx
---------------------------------------
Xxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Xxxxxx X. Xxxxxxx
SCHEDULE A
The acquisition by US Unwired Inc. of Georgia PCS Management, LLC, as
described in Item 2 to the Form 8-K/A filed by US Unwired Inc. on March 22,
2002.
SCHEDULE B
Addresses for Notices to Investcorp and the Financial Investors
Investcorp
Investcorp Investment Equity Limited
West Wind Building, Harbour Drive
P.O. Box 1111
Xxxxxx Town, Grand Cayman
Cayman Islands, B.W.I.
Ballet Limited
West Wind Building, Harbour Drive
P.O. Box 2197
Xxxxxx Town, Grand Cayman
Cayman Islands, B.W.I.
Denary Limited
West Wind Building, Harbour Drive
P.O. Box 2197
Xxxxxx Town, Grand Cayman
Cayman Islands, B.W.I.
Gleam Limited
West Wind Building, Harbour Drive
P.O. Box 2197
Xxxxxx Town, Grand Cayman
Cayman Islands, B.W.I.
Highlands Limited
West Wind Building, Harbour Drive
P.O. Box 2197
Xxxxxx Town, Grand Cayman
Cayman Islands, B.W.I.
Noble Limited
West Wind Building, Harbour Drive
P.O. Box 2197
Xxxxxx Town, Grand Cayman
Cayman Islands, B.W.I.
Outrigger Limited
West Wind Building, Harbour Drive
P.O. Box 2197
Xxxxxx Town, Grand Cayman
Cayman Islands, B.W.I.
Quill Limited
West Wind Building, Harbour Drive
P.O. Box 2197
Xxxxxx Town, Grand Cayman
Cayman Islands, B.W.I.
Radial Limited
West Wind Building, Harbour Drive
P.O. Box 2197
Xxxxxx Town, Grand Cayman
Cayman Islands, B.W.I.
Shoreline Limited
West Wind Building, Harbour Drive
P.O. Box 2197
Xxxxxx Town, Grand Cayman
Cayman Islands, B.W.I.
Zinnia Limited
West Wind Building, Harbour Drive
P.O. Box 2197
Xxxxxx Town, Grand Cayman
Cayman Islands, B.W.I.
Investcorp IWO Limited Partnership
West Wind Building, Harbour Drive
P.O. Box 1111
Xxxxxx Town, Grand Cayman
Cayman Islands, B.W.I.
Xxxxxxx Limited
West Wind Building, Harbour Drive
P.O. Box 2197
Xxxxxx Town, Grand Cayman
Cayman Islands, B.W.I.
Xxxxxxxx Limited
West Wind Building, Harbour Drive
P.O. Box 2197
Xxxxxx Town, Grand Cayman
Cayman Islands, B.W.I.
Frankfort Limited
West Wind Building, Harbour Drive
P.O. Box 2197
Xxxxxx Town, Grand Cayman
Cayman Islands, B.W.I.
Paugus Limited
West Wind Building, Harbour Drive
P.O. Box 2197
Xxxxxx Town, Grand Cayman
Cayman Islands, B.W.I.
Wireless International Limited
West Wind Building, Harbour Drive
P.O. Box 1111
Xxxxxx Town, Grand Cayman
Cayman Islands, B.W.I.
Wireless Equity Limited
West Wind Building, Harbour Drive
P.O. Box 1111
Xxxxxx Town, Grand Cayman
Cayman Islands, B.W.I.
Wireless Holdings Limited
West Wind Building, Harbour Drive
P.O. Box 1111
Xxxxxx Town, Grand Cayman
Cayman Islands, B.W.I.
Wireless Investments Limited
West Wind Building, Harbour Drive
P.O. Box 1111
Xxxxxx Town, Grand Cayman
Cayman Islands, B.W.I.
IWO Equity Limited
West Wind Building, Harbour Drive
P.O. Box 1111
Xxxxxx Town, Grand Cayman
Cayman Islands, B.W.I.
IWO Investments Limited
West Wind Building, Harbour Drive
P.O. Box 1111
Xxxxxx Town, Grand Cayman
Cayman Islands, B.W.I.
Cellular Equity Limited
West Wind Building, Harbour Drive
P.O. Box 1111
Xxxxxx Town, Grand Cayman
Cayman Islands, B.W.I.
Mobile Holdings Limited
West Wind Building, Harbour Drive
P.O. Box 1111
Xxxxxx Town, Grand Cayman
Cayman Islands, B.W.I.
Wireless IIP Limited
West Wind Building, Harbour Drive
P.O. Box 1111
Xxxxxx Town, Grand Cayman
Cayman Islands, B.W.I.
Equity IWO Limited
West Wind Building, Harbour Drive
P.O. Box 1111
Xxxxxx Town, Grand Cayman
Cayman Islands, B.W.I.
New IWO Equity Limited
West Wind Building, Harbour Drive
P.O. Box 1111
Xxxxxx Town, Grand Cayman
Cayman Islands, B.W.I.
New Wireless IIP Limited
West Wind Building, Harbour Drive
P.O. Box 1111
Xxxxxx Town, Grand Cayman
Cayman Islands, B.W.I.
New Equity IWO Limited
West Wind Building, Harbour Drive
P.O. Box 1111
Xxxxxx Town, Grand Cayman
Cayman Islands, B.W.I.
Financial Investors
Paribas North America, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
TCW/Crescent Mezzanine Trust II
x/x XXX/Xxxxxxxx Xxxxxxxxx, LLC
00000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxx Xxxxxxxxxx
TCW/Crescent Mezzanine Partners II, LP
x/x XXX/Xxxxxxxx Xxxxxxxxx, LLC
00000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxx Xxxxxxxxxx
TCW/Crescent Leveraged Income Trust, LP
x/x XXX/Xxxxxxxx Xxxxxxxxx, LLC
00000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxx Xxxxxxxxxx
TCW/Crescent Leveraged Income Trust II, LP
x/x XXX/Xxxxxxxx Xxxxxxxxx, LLC
00000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxx Xxxxxxxxxx
TCW/Crescent Leveraged Income Trust IV, LP
x/x XXX/Xxxxxxxx Xxxxxxxxx, LLC
00000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxx Xxxxxxxxxx
SCHEDULE C
Addresses for Notices to the IWO Founders
Xxxxx Xxxxxx
000 Xxxxxxx Xxxx
Xxxxxxxxxxx, Xxx Xxxxxx 00000
X. X. Xxxx III
c/x Xxxx and Xxxx LLC
000 Xxxxxxxxx Xxxxxx
Xxxxx, Xxx Xxxx 00000
Xxxxxx X. Xxxxxxx
c/o Independent Wireless One Corporation
00 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Delhi PCS Inc.
X.X. Xxx 000
000 Xxxx Xxxxxx
Xxxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx
Dry Brook Holdings LLC
c/o Margaretville Telephone Company
X.X. Xxx 000
00 Xxxxx Xxxxxx
Xxxxxxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
MTC North Inc.
c/o Margaretville Telephone Company
X.X. Xxx 000
00 Xxxxx Xxxxxx
Xxxxxxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx
Newport PCS Inc.
X.X. Xxx 000
Xxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx
Finger Lakes Technologies Group Inc.
00 Xxxxxxx Xxxxx
Xxxxx 00
Xxxxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxx
Adirondack Capital LLC
c/o Hage and Xxxx LLC
000 Xxxxxxxxx Xxxxxx
Xxxxx, Xxx Xxxx 00000
Attention: X. X. Xxxx III
Cerberus Investments L.P.
c/o Applebee Group, Inc.
000 Xxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxx
Xxxxxxx Xxxx
c/x Xxxxxxxx Group, Inc.
000 Xxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxx, Xxx Xxxx 00000
SCHEDULE D
Addresses for Notices to the Xxxxxxx Family Members
Xxxxxxx X. Xxxxxxx
000 X. Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Xxxx X. Xxxxxxx
000 X. Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Xxxx X. Xxxxxxx
000 X. Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Xxxxxxx X. Xxxxxxx, Xx.
Xxxx Xxxxxx Xxx 0000
Xxxx Xxxxxxx, Xxxxxxxxx 00000
Xxxxxx X. Xxxxxxx
Xxxx Xxxxxx Xxx 0000
Xxxx Xxxxxxx, Xxxxxxxxx 00000
