EXHIBIT 4.3
REGISTRATION RIGHTS AGREEMENT
Dated as of March 22, 2000
By and Among
PINNACLE HOLDINGS INC.,
as Issuer,
and
DEUTSCHE BANK SECURITIES INC.,
BANC OF AMERICA SECURITIES LLC,
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED,
▇▇▇▇▇▇▇ ▇▇▇▇▇ & ASSOCIATES, INC.
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.,
as Initial Purchasers
5.5% Convertible Senior Notes Due 2007
TABLE OF CONTENTS
Page
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1. Definitions...........................................................1
2. Shelf Registration....................................................4
(a) Shelf Registration.............................................4
(b) Subsequent Shelf Registrations.................................5
(c) Supplements and Amendments.....................................5
3. Liquidated Damages....................................................5
4. Registration Procedures...............................................7
5. Registration Expenses................................................13
6. Indemnification......................................................14
7. Rules 144 and 144A...................................................17
8. Underwritten Registrations...........................................18
9. Miscellaneous........................................................18
(a) No Inconsistent Agreements....................................18
(b) Adjustments Affecting Registrable Securities..................18
(c) Amendments and Waivers........................................18
(d) Notices.......................................................19
(e) Successors and Assigns........................................20
(f) Counterparts..................................................20
(g) Headings......................................................20
(h) Governing Law.................................................20
(i) Severability..................................................20
(j) Securities Held by the Company or Its Affiliates..............21
(k) Third Party Beneficiaries.....................................21
(l) Entire Agreement..............................................21
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is dated
as of March 22, 2000, by and among PINNACLE HOLDINGS INC., a Delaware
corporation (the "Company"), DEUTSCHE BANK SECURITIES INC., BANC OF AMERICA
SECURITIES LLC, ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED, ▇▇▇▇▇▇▇
▇▇▇▇▇ & ASSOCIATES, INC. and ▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC. (individually, an
"Initial Purchaser," and together, the "Initial Purchasers").
This Agreement is entered into in connection with the Purchase
Agreement, dated as of March 15, 2000 (the "Purchase Agreement"), by and among
the Company and the Initial Purchasers, which provides for the sale by the
Company to the Initial Purchasers of $200,000,000 aggregate principal amount of
the Company's 5.5% Convertible Subordinated Notes Due 2007 (the "Firm Notes"),
which are convertible into Common Stock of the Company, par value $.001 per
share (the "Underlying Shares"), plus up to an additional $30,000,000 aggregate
principal amount of the same which the Initial Purchasers may subsequently elect
to purchase pursuant to the terms of the Purchase Agreement (the "Additional
Notes" and together with the Firm Notes, the "Convertible Notes"). The Notes are
being issued pursuant to an indenture dated as of the date hereof (the
"Indenture"), between the Company and The Bank of New York, as trustee.
In order to induce the Initial Purchasers to enter into the
Purchase Agreement, the Company has agreed to provide the registration rights
set forth in this Agreement for the benefit of the Initial Purchasers and any
subsequent holder or holders of the Convertible Notes or Underlying Shares as
provided herein. The execution and delivery of this Agreement is a condition to
the Initial Purchasers' obligation to purchase the Firm Notes under the Purchase
Agreement.
The parties hereby agree as follows:
1. Definitions.
As used in this Agreement, the following terms shall have the
following meanings:
Agreement: See the first introductory paragraph hereto.
Amount of Registrable Securities: (a) With respect to
Convertible Notes constituting Registrable Securities, the aggregate principal
amount of all such Convertible Notes outstanding, (b) with respect to Underlying
Shares constituting Registrable Securities, the aggregate number of such
Underlying Shares outstanding multiplied by the Conversion Price (as defined in
the Indenture relating to the Convertible Notes upon the conversion of which
such Underlying Shares were issued) in effect at the time of computing the
Amount of Registrable Securities or, if no such Convertible Notes are then
outstanding, the last Conversion Price that was in effect under such Indenture
when any such Convertible Notes were last outstanding,
and (c) with respect to combinations thereof, the sum of (a) and (b) for the
relevant Registrable Securities.
Business Day: Any day that is not a Saturday, Sunday or a day
on which banking institutions in New York are authorized or required by law to
be closed.
Closing Date: March 22, 2000.
Company: See the first introductory paragraph hereto.
Convertible Notes: See the second introductory paragraph
hereto.
Damages Payment Date: See Section 3(c) hereof.
Depositary: The Depository Trust Company until a successor is
appointed by the Company.
Effectiveness Date: The 180th day after the Closing Date.
Effectiveness Period: See Section 2(a) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
Filing Date: The 90th day after the Closing Date.
Holder: Any holder of Registrable Securities.
Indemnified Holder: See Section 6 hereof.
Indemnified Person: See Section 6 hereof.
Indemnifying Person: See Section 6 hereof.
Indenture: See the second introductory paragraph hereto.
Initial Purchasers: See the first introductory paragraph
hereto.
Initial Shelf Registration: See Section 2(a) hereof.
Inspectors: See Section 4(n) hereof.
Liquidated Damages: See Section 3(a) hereof.
NASD: See Section 4(q) hereof.
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Person: An individual, partnership, corporation, limited
liability company, unincorporated association, trust or joint venture, or a
governmental agency or political subdivision thereof.
Prospectus: The prospectus included in any Registration
Statement (including, without limitation, any prospectus subject to completion
and a prospectus that includes any information previously omitted from a
prospectus filed as part of an effective registration statement in reliance upon
Rule 430A promulgated under the Securities Act), as amended or supplemented by
any prospectus supplement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
Purchase Agreement: See the second introductory paragraph
hereto.
QIU: See Section 4(q) hereof.
Records: See Section 4(n) hereof.
Registrable Securities: All Convertible Notes and all
Underlying Shares upon original issuance thereof and at all times subsequent
thereto until the earliest to occur of (i) a Registration Statement covering
such Convertible Notes and Underlying Shares having been declared effective by
the SEC and such Convertible Notes and Underlying Shares having been disposed of
in accordance with such effective Registration Statement, (ii) such Convertible
Notes and Underlying Shares having been sold in compliance with Rule 144 or
could (except with respect to affiliates of the Company within the meaning of
the Securities Act) be sold in compliance with Rule 144(k), or (iii) such
Convertible Notes and any Underlying Shares ceasing to be outstanding.
Registration Default: See Section 3(a) hereof.
Registration Statement: Any registration statement of the
Company filed with the SEC pursuant to the provisions of this Agreement,
including the Prospectus, amendments and supplements to such registration
statement, including post-effective amendments, all exhibits and all material
incorporated by reference or deemed to be incorporated by reference in such
registration statement.
Rule 144: Rule 144 promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule (other than Rule
144A) or regulation hereafter adopted by the SEC providing for offers and sales
of securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
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Rule 144A: Rule 144A promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule (other than Rule
144) or regulation hereafter adopted by the SEC.
Rule 415: Rule 415 promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, and
the rules and regulations of the SEC promulgated thereunder.
Shelf Registration: See Section 2(b) hereof.
Shelf Registration Statement: See Section 2(b) hereof.
Subsequent Shelf Registration: See Section 2(b) hereof.
TIA: The Trust Indenture Act of 1939, as amended, and the
rules and regulations of the SEC promulgated thereunder.
Trustee: The Trustee under the Indenture.
Underlying Shares: See the second introductory paragraph
hereto.
Underwritten registration or underwritten offering: A
registration in which securities of the Company are sold to an underwriter for
reoffering to the public.
2. Shelf Registration
(a) Shelf Registration. The Company shall use its reasonable
best efforts to file with the SEC a Registration Statement for an offering to be
made on a continuous basis pursuant to Rule 415 covering all of the Registrable
Securities (the "Initial Shelf Registration") on or prior to the Filing Date.
The Initial Shelf Registration shall be on Form S-3 or another appropriate form
permitting registration of such Registrable Securities for resale by Holders in
the manner or manners designated by them (including, without limitation, one or
more underwritten offerings). The Company shall not permit any securities other
than the Registrable Securities to be included in the Initial Shelf Registration
or any Subsequent Shelf Registration (as defined below).
The Company shall use its reasonable best efforts to cause the
Initial Shelf Registration to be declared effective under the Securities Act on
or prior to the Effectiveness Date and to keep such Initial Shelf Registration
continuously effective under the Securities Act until the date that is two years
from the Closing Date (as it may be shortened pursuant to clause (i) or clause
(ii) immediately following, the "Effectiveness Period"), or such shorter
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period ending when (i) all the shares of Registrable Securities covered by the
Initial Shelf Registration have been sold in the manner set forth and as
contemplated in the Initial Shelf Registration, (ii) the date on which all the
Registrable Securities (x) held by Persons who are not affiliates of the Company
may be resold pursuant to Rule 144(k) under the Securities Act or (y) cease to
be outstanding, or (iii) a Subsequent Shelf Registration covering all of the
Registrable Securities has been declared effective under the Securities Act.
(b) Subsequent Shelf Registrations. If the Initial Shelf
Registration or any Subsequent Shelf Registration ceases to be effective for any
reason at any time during the Effectiveness Period (other than because of the
sale of all of the securities registered thereunder), the Company shall use its
reasonable best efforts to obtain the prompt withdrawal of any order suspending
the effectiveness thereof, and in any event shall within 45 days of such
cessation of effectiveness amend the Initial Shelf Registration in a manner to
obtain the withdrawal of the order suspending the effectiveness thereof, or file
an additional "shelf" Registration Statement pursuant to Rule 415 covering all
of the Registrable Securities (a "Subsequent Shelf Registration"). If a
Subsequent Shelf Registration is filed, the Company shall use its reasonable
best efforts to cause the Subsequent Shelf Registration to be declared effective
under the Securities Act as soon as practicable after such filing and to keep
such Registration Statement continuously effective for a period equal to the
number of days in the Effectiveness Period less the aggregate number of days
during which the Initial Shelf Registration or any Subsequent Shelf Registration
was previously continuously effective. As used herein the term "Shelf
Registration" means the Initial Shelf Registration and any Subsequent Shelf
Registration and the term "Shelf Registration Statement" means any Registration
Statement filed in connection with a Shelf Registration.
(c) Supplements and Amendments. The Company shall promptly
supplement and amend the Shelf Registration if required by the rules,
regulations or instructions applicable to the registration form used for such
Shelf Registration, if required by the Securities Act, or if reasonably
requested by the Holders of the majority in Amount of Registrable Securities
covered by such Registration Statement or by any underwriter of such Registrable
Securities.
3. Liquidated Damages
(a) The Company and the Initial Purchasers agree that the
Holders of Registrable Securities will suffer damages if the Company fails to
fulfill its obligations under Section 2 hereof and that it would not be feasible
to ascertain the extent of such damages with precision. Accordingly, the Company
agrees to pay liquidated damages on the Registrable Securities ("Liquidated
Damages") under the circumstances and to the extent set forth below (each of
which shall be given independent effect; each a "Registration Default"):
(i) if the Initial Shelf Registration is not filed on or prior
to the Filing Date, then commencing on the day after the Filing Date,
Liquidated Damages shall accrue on the Registrable Securities at a rate of
0.50% per annum on the Amount of Registra-
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ble Securities for the first 90 days immediately following the Filing
Date, such Liquidated Damages increasing by an additional 0.50% per annum
at the beginning of each subsequent 90-day period;
(ii) if the Company fails to use all reasonable efforts and
the Initial Shelf Registration is not declared effective by the SEC on or
prior to the Effectiveness Date, then commencing one day after the
Effectiveness Date, Liquidated Damages shall accrue on the Registrable
Securities at a rate of 0.50% per annum on the Amount of Registrable
Securities for the first 90 days immediately following the day after such
Effectiveness Date, such Liquidated Damages increasing by an additional
0.50% per annum at the beginning of each subsequent 90-day period; and
(iii) if a Shelf Registration has been declared effective and
such Shelf Registration ceases to be effective at any time during the
Effectiveness Period (other than as permitted under Section 3(b)), then
Liquidated Damages shall accrue on the Registrable Securities at a rate of
0.50% per annum on the Amount of Registrable Securities for the first 90
days commencing on the day such Shelf Registration ceases to be effective,
such Liquidated Damages increasing by an additional 0.50% per annum at the
beginning of each such subsequent 90-day period;
provided, however, that Liquidated Damages on the Registrable Securities may not
accrue under more than one of the foregoing clauses (i), (ii) or (iii) at any
one time and at no time shall the aggregate amount of Liquidated Damages
accruing exceed in the aggregate 1.0% per annum of the Amount of Registrable
Securities; provided, further, however, that (1) upon the filing of the Shelf
Registration as required hereunder (in the case of clause (a)(i) of this Section
3), (2) upon the effectiveness of the Shelf Registration as required hereunder
(in the case of clause (a)(ii) of this Section 3), or (3) upon the effectiveness
of a Shelf Registration which had ceased to remain effective (in the case of
(a)(iii) of this Section 3), Liquidated Damages on the Registrable Securities as
a result of such clause (or the relevant subclause thereof), as the case may be,
shall cease to accrue. It is understood and agreed that, notwithstanding any
provision to the contrary, so long as any Registrable Security is then covered
by an effective Shelf Registration Statement, no Liquidated Damages shall accrue
on such Registrable Security.
(b) Notwithstanding paragraph (a) of this Section 3, the
Company shall be permitted to suspend the effectiveness of a Shelf Registration
for any reason whatsoever for up to 30 consecutive days in any 90 day period,
for a total of not more than 60 days in any calendar year, without paying
Liquidated Damages.
(c) So long as Convertible Notes remain outstanding, the
Company shall notify the Trustee within two Business Days after each and every
date on which an event occurs in respect of which Liquidated Damages is required
to be paid. Any amounts of Liquidated Damages due pursuant to (a)(i), (a)(ii) or
(a)(iii) of this Section 3 will be payable in cash semi-annually on each March
15 and September 15 (each a "Damages Payment Date"),
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commencing with the first such date occurring after any such Liquidated Damages
commences to accrue, to Holders to whom regular interest is payable on such
Damages Payment Date with respect to Convertible Notes that are Registrable
Securities and to Persons that are registered Holders 15 days prior to such
Damages Payment Date with respect to Underlying Shares that are Registrable
Securities. The amount of Liquidated Damages for Registrable Securities will be
determined by multiplying the applicable rate of Liquidated Damages by the
Amount of Registrable Securities outstanding on the Damages Payment Date
following such Registration Default in the case of the first such payment of
Liquidated Damages with respect to a Registration Default (and thereafter at the
next succeeding Damages Payment Date until the cure of such Registration
Default), multiplied by a fraction, the numerator of which is the number of days
such Liquidated Damages rate was applicable during such period (determined on
the basis of a 360-day year comprised of twelve 30-day months and, in the case
of a partial month, the actual number of days elapsed), and the denominator of
which is 360.
4. Registration Procedures
In connection with the filing of any Registration Statement
pursuant to Section 2 hereof, the Company shall effect such registrations to
permit the sale of the securities covered thereby in accordance with the
intended method or methods of disposition thereof, and pursuant thereto and in
connection with any Registration Statement filed by the Company hereunder the
Company shall:
(a) Prepare and file with the SEC on or prior to the Filing
Date, a Registration Statement or Registration Statements as
prescribed by Section 2 hereof, and use its reasonable best efforts to
cause each such Registration Statement to become effective and remain
effective as provided herein; provided, however, -------- ------- that
before filing any Registration Statement or Prospectus or any
amendments or supplements thereto, the Company shall furnish to and
afford the Holders of the Registrable Securities covered by such
Registration Statement and the managing underwriters, if any, a
reasonable opportunity to review copies of all such documents proposed
to be filed (in each case, where possible, at least five Business Days
prior to such filing, or such later date as is reasonable under the
circumstances). The Company shall not file any Registration Statement
or Prospectus or any amendments or supplements thereto if the Holders
of a majority in Amount of Registrable Securities covered by such
Registration Statement or the managing underwriters, if any, shall
reasonably object.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Shelf Registration, as may be
necessary to keep such Registration Statement continuously effective
for the Effectiveness Period; cause the related Prospectus to be
supplemented by any Prospectus supplement required by applicable law,
and as so supplemented to be filed pursuant to Rule 424 (or any
similar provisions then in force) promulgated under the Securities
Act; and comply with the provisions of the Securities Act and the
Exchange Act applicable to it with respect to the disposition of all
securities covered by such Registration Statement as so amended or in
such Pro-
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spectus as so supplemented. The Company shall be deemed not to
have used its reasonable best efforts to keep a Registration Statement
effective during the Effectiveness Period if it voluntarily takes any
action that would result in selling Holders of the Registrable
Securities covered thereby not being able to sell such Registrable
Securities during that period unless such action is required by
applicable law or unless the Company complies with this Agreement,
including without limitation the provisions of Section 4(k) hereof.
(c) Notify the selling Holders of Registrable Securities and
the managing underwriters, if any, promptly (but in any event within
two Business Days), (i) when a Prospectus or any prospectus supplement
or post-effective amendment has been filed, and, with respect to a
Registration Statement or any post-effective amendment, when the same
has become effective under the Securities Act (including in such
notice a written statement that any Holder may, upon request, obtain,
at the sole expense of the Company, one conformed copy of such
Registration Statement or post-effective amendment including financial
statements and schedules, documents incorporated or deemed to be
incorporated by reference and exhibits), (ii) of the issuance by the
SEC of any stop order suspending the effectiveness of a Registration
Statement or of any order preventing or suspending the use of any
preliminary prospectus or the initiation of any proceedings for that
purpose, (iii) of the happening of any event, the existence of any
condition or any information becoming known that makes any statement
made in such Registration Statement or related Prospectus or any
document incorporated or deemed to be incorporated therein by
reference untrue in any material respect or that requires the making
of any changes in or amendments or supplements to such Registration
Statement, Prospectus or documents so that, in the case of the
Registration Statement, it will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading,
and that in the case of the Prospectus, it will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading and (iv) of the Company's determination that a
post-effective amendment to a Registration Statement would be
appropriate.
(d) Use its reasonable best efforts to prevent the issuance of
any order suspending the effectiveness of a Registration Statement or
of any order preventing or suspending the use of a Prospectus and, if
any such order is issued, to use its reasonable best efforts to obtain
the withdrawal of any such order at the earliest possible moment.
(e) If requested by the managing underwriter or underwriters
(if any) or the Holders of the majority in Amount of Registrable
Securities being sold in connection with an underwritten offering (i)
promptly incorporate in a prospectus supplement or post-effective
amendment such information as the managing underwriter or underwrit-
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ers (if any), or such Holders reasonably determine is necessary to be
included therein, (ii) make all required filings of such prospectus
supplement or such post-effective amendment as soon as reasonably
practicable after the Company has received notification of the matters
to be incorporated in such prospectus supplement or post-effective
amendment and (iii) supplement or make amendments to such Registration
Statement.
(f) Furnish to each selling Holder of Registrable Securities,
a single counsel to such Holders (chosen in accordance with Section
5(b)) and each managing underwriter, if any, at the sole expense of
the Company, one conformed copy of the Registration Statement or
Registration Statements and each post-effective amendment thereto,
including financial statements and schedules, and, if requested, all
documents incorporated or deemed to be incorporated therein by
reference and all exhibits.
(g) Deliver to each selling Holder of Registrable Securities,
a single counsel to such Holders (chosen in accordance with Section
5(b)) and the underwriters, if any, at the sole expense of the
Company, as many copies of the Prospectus (including each form of
preliminary prospectus) and each amendment or supplement thereto and
any documents incorporated by reference therein as such Persons may
reasonably request; and, subject to the second paragraph of Section
4(s) hereof, the Company hereby consents to the use of such Prospectus
and each amendment or supplement thereto by each of the selling
Holders of Registrable Securities and the underwriters or agents, if
any, and dealers (if any), in connection with the offering and sale of
the Registrable Securities covered by such Prospectus and any
amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, to
use its reasonable best efforts to register or qualify, to the extent
required by applicable law, and to cooperate with the selling Holders
of Registrable Securities and the managing underwriter or
underwriters, if any, in connection with the registration or
qualification (or exemption from such registration or qualification)
of such Registrable Securities or offer and sale under the securities
or Blue Sky laws of such jurisdictions within the United States as any
selling Holder, or the managing underwriter or underwriters, if any,
reasonably request; provided, however, that where Registrable
Securities are offered other than through an underwritten offering,
the Company agrees to cause the Company's counsel to perform Blue Sky
investigations and file registrations and qualifications required to
be filed pursuant to this Section 4(h); keep each such registration or
qualification (or exemption therefrom) effective during the period
such Registration Statement is required to be kept effective and do
any and all other acts or things reasonably necessary or advisable to
enable the disposition in such jurisdictions of the Registrable
Securities covered by the applicable Registration Statement; provided,
however, that the Company shall not be required to (A) qualify
generally to do business in any jurisdiction where it is not then so
qualified, (B) take any action that would subject it to general
service of process in any such jurisdiction where it is not then so
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subject or (C) subject itself to taxation in excess of a nominal
dollar amount in any such jurisdiction where it is not then so
subject.
(i) Cooperate with the selling Holders of Registrable
Securities and the managing underwriter or underwriters, if any, to
facilitate the timely preparation and delivery of certificates
representing shares of Registrable Securities to be sold, which
certificates shall not bear any restrictive legends and shall be in a
form eligible for deposit with The Depository Trust Company; and
enable such shares of Registrable Securities to be in such
denominations and registered in such names as the managing underwriter
or underwriters, if any, or Holders may reasonably request.
(j) Use its reasonable best efforts to cause the Registrable
Securities covered by any Shelf Registration Statement to be
registered with or approved by such other governmental agencies or
authorities as may be reasonably necessary to enable the seller or
sellers thereof or the underwriter or underwriters, if any, to
consummate the disposition of such Registrable Securities, except as
may be required solely as a consequence of the nature of such selling
Holder's business, in which case the Company will cooperate in all
reasonable respects with the filing of such Registration Statement and
the granting of such approvals.
(k) Upon the occurrence of any event contemplated by paragraph
4(c)(ii), 4(c)(iii) or 4(c)(iv) hereof, as promptly as practicable
prepare and (subject to Section 4(a) hereof) file with the SEC, at the
sole expense of the Company, a supplement or post-effective amendment
to the Registration Statement or a supplement to the related
Prospectus or any document incorporated or deemed to be incorporated
therein by reference, or file any other required document so that, as
thereafter delivered to the purchasers of the Registrable Securities
being sold thereunder, any such Prospectus will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading.
(l) Prior to the effective date of the first Registration
Statement relating to the Registrable Securities, (i) provide the
Trustee with certificates for the Registrable Securities in a form
eligible for deposit with The Depository Trust Company and (ii)
provide a CUSIP number for the Registrable Securities.
(m) In connection with any underwritten offering of
Registrable Securities pursuant to a Shelf Registration, enter into an
underwriting agreement as is customary in underwritten offerings of
securities similar to the Registrable Securities and take all such
other actions as are reasonably requested by the managing underwriter
or underwriters in order to expedite or facilitate the registration or
the disposition of such Registrable Securities and, in such
connection, (i) make such representations and warranties to, and
covenants with, the underwriters with respect to the business of the
Company and its subsidiaries (including any acquired business,
properties or entity, if
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applicable) and the Registration Statement, Prospectus and documents,
if any, incorporated or deemed to be incorporated by reference
therein, in each case, as are customarily made by issuers to
underwriters in underwritten offerings of securities similar to the
Registrable Securities and confirm the same in writing if and when
requested; (ii) obtain the written opinion of counsel to the Company
and written updates thereof in form, scope and substance reasonably
satisfactory to the managing underwriter or underwriters, addressed to
the underwriters covering the matters customarily covered in opinions
requested in underwritten offerings of securities similar to the
Registrable Securities and such other matters as may be reasonably
requested by the managing underwriter or underwriters; and (iii)
obtain "cold comfort" letters and updates thereof in form, scope and
substance reasonably satisfactory to the managing underwriter or
underwriters from the independent certified public accountants of the
Company (and, if necessary, any other independent certified public
accountants of any subsidiary of the Company or of any business
acquired by the Company for which financial statements and financial
data are, or are required to be, included or incorporated by reference
in the Registration Statement), addressed to each of the underwriters,
such letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with
underwritten offerings of securities similar to the Registrable
Securities and such other matters as reasonably requested by the
managing underwriter or underwriters as permitted by the Statement on
Auditing Standards No. 72. The above shall be done as and to the
extent required by such underwriting agreement.
(n) Make available for inspection by any selling Holder of
such Registrable Securities being sold, any underwriter participating
in any such disposition of Registrable Securities, if any, and any
attorney, accountant or other agent retained by any such selling
Holder, or underwriter (collectively, the "Inspectors"), at the
offices where normally kept, during reasonable business hours at such
time or times as shall be mutually convenient for the Company and the
Inspectors as a group, all financial and other records, pertinent
corporate documents and instruments of the Company and its
subsidiaries (collectively, the "Records") as shall be reasonably
necessary to enable them to exercise any applicable due diligence
responsibilities, and cause the officers, directors and employees of
the Company and its subsidiaries to supply all information reasonably
requested by any such Inspector in connection with such Registration
Statement. Records that the Company determines, in good faith, to be
confidential and any Records that it notifies the Inspectors are
confidential shall not be disclosed by any Inspector unless (i) the
disclosure of such Records is necessary to avoid or correct a material
misstatement or material omission in such Registration Statement, (ii)
the release of such Records is ordered pursuant to a subpoena or other
order from a court of competent jurisdiction, (iii) disclosure of such
information is, in the opinion of counsel for any Inspector, necessary
or advisable in connection with any action, claim, suit or proceeding,
directly involving or potentially involving such Inspector and arising
out of, based upon, relating to, or involving this Agreement or any
transactions contemplated hereby or arising hereunder or (iv) the
information in such Rec-
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ords has been made generally available to the public other than
through the acts of such Inspector; provided, however, that prior
notice shall be provided as soon as practicable to the Company of the
potential disclosure of any information by such Inspector pursuant to
clauses (ii) or (iii) of this sentence to permit the Company to obtain
a protective order (or waive the provisions of this paragraph (n)).
Each Inspector shall take such actions as are reasonably necessary to
protect the confidentiality of such information (if practicable) to
the extent such actions are otherwise not inconsistent with, an
impairment of or in derogation of the rights and interests of the
Holder or any Inspector, unless and until such information in such
Records has been made generally available to the public other than as
a result of a breach of this Agreement.
(o) Provide (i) the Holders of the Registrable Securities to
be included in such Registration Statement and not more than one
counsel for all the Holders of such Registrable Securities chosen in
accordance with Section 5(b), (ii) the underwriters (which term, for
purposes of this Registration Rights Agreement, shall include a Person
deemed to be an underwriter within the meaning of Section 2(11) of the
Securities Act), if any, thereof, (iii) the sales or placement agent,
if any, thereof, and (D) one counsel for such underwriters or agents,
reasonable opportunity to participate in the preparation of such
Registration Statement, each prospectus included therein or filed with
the SEC, and each amendment or supplement thereto.
(p) Comply with all applicable rules and regulations of the
SEC and make generally available to its securityholders earning
statements satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder (or any similar rule
promulgated under the Securities Act) no later than 45 days after the
end of any 12-month period (or 90 days after the end of any 12-month
period if such period is a fiscal year) (i) commencing at the end of
any fiscal quarter in which Registrable Securities are sold to
underwriters in a firm commitment or best efforts underwritten
offering and (ii) if not sold to underwriters in such an offering,
commencing on the first day of the first fiscal quarter of the Company
after the effective date of a Registration Statement, which statements
shall cover said 12-month periods.
(q) Cooperate with each seller of Registrable Securities
covered by any Registration Statement and each underwriter, if any,
participating in the disposition of such Registrable Securities and
their respective counsel in connection with any filings required to be
made with the National Association of Securities Dealers, Inc. (the
"NASD"), including, if the Conduct Rules of the NASD or any successor
thereto as amended from time to time so require, engaging a "qualified
independent underwriter" ("QIU") as contemplated therein and making
Records available to such QIU as though it were a participating
underwriter for the purposes of Section 4(n) and otherwise applying
the provisions of this Agreement to such QIU (including
indemnification) as though it were a participating underwriter.
-12-
(r) Cause the Indenture to be qualified under the TIA not
later than the effective date of the first Registration Statement
relating to the Registrable Securities; and in connection therewith,
cooperate with the Trustee and the Holders of the Registrable
Securities to effect such changes to the Indenture as may be required
for the Indenture to be so qualified in accordance with the terms of
the TIA; and execute, and use its reasonable best efforts to cause the
Trustee to execute, all documents as may be required to effect such
changes and all other forms and documents required to be filed with
the SEC to enable the Indenture to be so qualified in a timely manner.
(s) Use its reasonable best efforts to take all other steps
necessary or advisable to effect the registration of the Registrable
Securities covered by a Registration Statement contemplated hereby.
The Company may require each seller of Registrable Securities
as to which any registration is being effected to furnish to the Company such
information regarding such seller and the distribution of such Registrable
Securities as the Company may, from time to time, reasonably request to the
extent necessary or advisable to comply with the Securities Act. The Company may
exclude from such registration the Registrable Securities of any seller if such
seller fails to furnish such information within 20 Business Days after receiving
such request. Each seller as to which any Shelf Registration is being effected
agrees to furnish promptly to the Company all information required to be
disclosed so that the information previously furnished to the Company by such
seller is not materially misleading and does not omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances under which they were made.
Each Holder of Registrable Securities agrees by acquisition of
such Registrable Securities that, upon actual receipt of any notice from the
Company of the happening of any event of the kind described in Section 4(c)(ii),
4(c)(iii) or 4(c)(iv) hereof, such Holder will forthwith discontinue disposition
of such Registrable Securities covered by such Registration Statement or
Prospectus until such Holder's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 4(k) hereof, or until it is advised
in writing by the Company that the use of the applicable Prospectus may be
resumed, and has received copies of any amendments or supplements thereto.
5. Registration Expenses
(a) All fees and expenses incident to the performance of or
compliance with this Agreement by the Company shall be borne by the Company,
including, without limitation, (i) all registration and filing fees (including,
without limitation, (A) fees with respect to filings required to be made with
the NASD in connection with an underwritten offering and (B) fees and expenses
of compliance with state securities or Blue Sky laws (including, without
limitation, reasonable fees and disbursements of counsel in connection with Blue
Sky qualifications of the Registrable Securities and determination of the
eligibility of the Registrable Securities for investment under the laws of such
jurisdictions as provided in Sec-
-13-
tion 4(h) hereof), (ii) printing expenses, including, without limitation,
expenses of printing certificates for Registrable Securities in a form eligible
for deposit with The Depository Trust Company and of printing prospectuses if
the printing of prospectuses is requested by the managing underwriter or
underwriters, if any, or by the Holders of the majority in Amount of Registrable
Securities included in any Registration Statement, (iii) messenger, telephone
and delivery expenses, (iv) fees and disbursements of counsel for the Company
and reasonable fees and disbursements of one special counsel for the sellers of
Registrable Securities (subject to the provisions of Section 5(b) hereof), (v)
fees and disbursements of all independent certified public accountants referred
to in Section 4(m)(iii) hereof (including, without limitation, the expenses of
any special audit and "cold comfort" letters required by or incident to such
performance), (vi) Securities Act liability insurance, if the Company desires
such insurance, (vii) fees and expenses of all other Persons retained by the
Company, (viii) internal expenses of the Company (including, without limitation,
all salaries and expenses of officers and employees of the Company performing
legal or accounting duties), (ix) the expense of any annual audit, (x) the fees
and expenses incurred in connection with the listing of the securities to be
registered on any securities exchange, if applicable, and (xi) the expenses
relating to printing, word processing and distributing all Registration
Statements, underwriting agreements, securities sales agreements and any other
documents necessary in order to comply with this Agreement. Nothwithstanding
anything in this Agreement to the contrary, each Holder shall pay all
underwriting discounts and brokerage commissions with respect to any Registrable
Securities sold by it.
(b) The Company shall reimburse the Holders of the Registrable
Securities being registered in a Shelf Registration for the reasonable fees and
disbursements of not more than one counsel chosen by the Holders of a majority
in Amount of Registrable Securities to be included in such Registration
Statement.
6. Indemnification
The Company agrees to indemnify and hold harmless (i) each
Initial Purchaser, (ii) each Holder, (iii) each Person, if any, who controls
(within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act) any of the foregoing (any of the Persons referred to in this
clause (iii) being hereinafter referred to as a "controlling person"), (iv) the
respective officers, directors, partners, employees, representatives and agents
of the Initial Purchasers, the Holders (including predecessor Holders) or any
controlling person (any person referred to in clause (i), (ii), (iii) or (iv)
may hereinafter be referred to as an "Indemnified Holder"), from and against any
and all losses, claims, damages, liabilities and judgments (including, without
limitation, reasonable legal fees and other expenses incurred in connection with
any suit, action or proceeding or any claim asserted) caused by any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement or Prospectus, or any amendment or supplement thereto or
any related preliminary prospectus, or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any untrue statement or
omission or
-14-
alleged untrue statement or omission made in reliance upon and in conformity
with information relating to any Holder furnished to the Company in writing by
such Holder expressly for use in therein; provided, however, that the Company
shall not be liable to any Indemnified Holder under the indemnity agreement of
this paragraph with respect to any preliminary prospectus to the extent that any
such loss, claim, damage, liability, judgment or expense of such Indemnified
Holder results from the fact that such Indemnified Holder sold Registrable
Securities under a Registration Statement to a Person as to whom it shall be
established that there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Prospectus (or of the preliminary
prospectus as then amended or supplemented if the Company shall have furnished
such Indemnified Holder with such amendment or supplement thereto on a timely
basis), in any case where such delivery is required by applicable law and the
loss, claim, damage, liability or expense of such Indemnified Holder results
from an untrue statement or omission of a material fact contained in the
preliminary prospectus which was corrected in the Prospectus (or in the
preliminary prospectus as then amended or supplemented if the Company shall have
furnished such Indemnified Holder with such amendment or supplement thereto, as
the case may be, on a timely basis). The Company shall notify Indemnified Holder
promptly of the institution, threat or assertion of any claim, proceeding
(including any governmental investigation) or litigation in connection with the
matters addressed by this Agreement which involves the Company or such
Indemnified Holder.
Each Holder agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, officers and each Person who
controls the Company within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act to the same extent as the foregoing
indemnity from the Company to each Holder, but only with reference to such
losses, claims, damages or liabilities which are caused by any untrue statement
or omission or alleged untrue statement or omission made in reliance upon and in
conformity with information relating to a Holder furnished to the Company in
writing by such Holder expressly for use in any Registration Statement or
Prospectus, or any amendment or supplement thereto or any related preliminary
prospectus.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any Person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such Person (the "Indemnified Person") shall promptly
notify the Person or Persons against whom such indemnity may be sought (each an
"Indemnifying Person") in writing, and such Indemnifying Person, upon request of
the Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others entitled
to indemnification pursuant to this Section 6 that the Indemnifying Person may
designate in such proceeding and shall pay the fees and expenses of such counsel
related to such proceeding. In any such proceeding, any Indemnified Person shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Person unless (i) such
Indemnifying Person and the Indemnified Person shall have mutually agreed to the
contrary, (ii) such Indemnifying Person has failed within a reasonable time to
retain counsel reasonably satisfactory to such Indemnified Person or (iii) the
named parties in
-15-
any such proceeding (including any impleaded parties) include an Indemnifying
Person and an Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. It is understood that an Indemnifying Person shall not, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all Indemnified Persons, and that all such fees and
expenses shall be reimbursed as they are incurred. Any such separate firm for
the Indemnified Holders shall be designated in writing by the Holders of the
majority in Amount of Registrable Securities, and any such separate firm for the
Company, its directors, respective officers and such control Persons of the
Company shall be designated in writing by the Company. The Indemnifying Person
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, such Indemnifying Person agrees to indemnify any
Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. No Indemnifying Person shall, without the prior written
consent of the Indemnified Person, effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Person is or could
have been a party and indemnity could have been sought hereunder by such
Indemnified Person, unless such settlement includes an unconditional release of
such Indemnified Person from all liability on claims that are the subject matter
of such proceeding.
If the indemnification provided for in the first and second
paragraphs of this Section 6 is unavailable to an Indemnified Person or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount
paid or payable by such Indemnified Person as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Indemnifying Person on the one hand and the
Indemnified Person on the other hand pursuant to the Purchase Agreement or from
the offering of the Registrable Securities pursuant to any Shelf Registration or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Indemnifying Person on the one hand and the Indemnified Person on the other
in connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and any Indemnified Holder on the other shall be deemed to be in the same
proportion as the total net proceeds from the initial offering and sale of
Convertible Notes (before deducting expenses) received by the Company bear to
the total net proceeds received by such Indemnified Holder from sales of
Registrable Securities giving rise to such obligations. The relative fault of
the parties shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or such Indemnified Holder and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
-16-
Each of the Company and the Initial Purchasers agrees that it
would not be just and equitable if contribution pursuant to this Section 6 were
determined by pro rata allocation or by any other method of allocation that does
not take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an Indemnified Person as a
result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses incurred by such
Indemnified Person in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 6, in no event shall
any Holder be required to contribute any amount in excess of the amount by which
the net proceeds received by such Holder from the sale of the Registrable
Securities pursuant to a Shelf Registration Statement exceeds the amount of
damages which such Holder would have otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
Person guilty of fraudulent misrepresentation (within the meaning of Section
11(F) of the Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
The remedies provided for in this Section 6 are not exclusive
and shall not limit any rights or remedies that may otherwise be available to
any indemnified party at law or in equity.
The indemnity and contribution agreements contained in this
Section 6 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Holder or any Person controlling any Holder or by or on behalf of the
Company, its officers or directors or any other Person controlling any of the
Company and (iii) acceptance of and payment for any of the Registrable
Securities.
7. Rules 144 and 144A.
The Company covenants that it will file the reports required
to be filed by it under the Securities Act and the Exchange Act and the rules
and regulations adopted by the SEC thereunder in a timely manner in accordance
with the requirements of the Securities Act and the Exchange Act and, for so
long as any Registrable Securities remain outstanding, if at any time the
Company is not required to file such reports, it will, upon the request of any
Holder or beneficial owner of Registrable Securities, make available such
information necessary to permit sales pursuant to Rule 144A under the Securities
Act. The Company further covenants that, for so long as any Registrable
Securities remain outstanding, it will use its reasonable best efforts to take
such further action as any Holder of Registrable Securities may reasonably
request, all to the extent required from time to time to enable such holder to
sell Registrable Securities without registration under the Securities Act within
the limitation of the exemptions provided by (a) Rule 144(k) and Rule 144A under
the Securities Act, as such rules may be amended from time to time, or (b) any
similar rule or regulation hereafter adopted by the SEC. Notwithstanding the
foregoing, nothing in this Section 7 shall be deemed to require the Company to
register any of its securities pursuant to the Exchange Act.
-17-
8. Underwritten Registrations.
If any of the Registrable Securities covered by any Shelf
Registration are to be sold in an underwritten offering, the investment banker
or investment bankers and manager or managers that will manage the offering will
be selected by the Holders of the majority in Amount of Registrable Securities
to be included in such offering and be reasonably acceptable to the Company.
No Holder of Registrable Securities may participate in any
underwritten registration hereunder unless such Holder (a) agrees to sell such
Holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
9. Miscellaneous
(a) No Inconsistent Agreements. The Company has not, as of the
date hereof, and the Company shall not, after the date of this Agreement, enter
into any agreement with respect to any of its securities that is inconsistent
with the rights granted to the Holders of Registrable Securities in this
Agreement or otherwise conflicts with the provisions hereof. The Company has not
entered and will not enter into any agreement with respect to any of its
securities that will grant to any Person piggyback registration rights with
respect to a Registration Statement, except to the extent any existing right has
heretofore been waived.
(b) Adjustments Affecting Registrable Securities. The Company
shall not, directly or indirectly, take any action with respect to the
Registrable Securities as a class that would adversely affect the ability of the
Holders of Registrable Securities to include such Registrable Securities in a
registration undertaken pursuant to this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement
may not be amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, otherwise than with the
prior written consent of the Company and the Holders of not less than the
majority in Amount of Registrable Securities; provided, however, that Section 6
and this Section 9(c) may not be amended, modified or supplemented without the
prior written consent of the Company and each Holder (including, in the case of
an amendment, modification or supplement of Section 6, any Person who was a
Holder of Registrable Securities disposed of pursuant to any Registration
Statement). Notwithstanding the foregoing, a waiver or consent to depart from
the provisions hereof with respect to a matter that relates exclusively to the
rights of Holders of Registrable Securities whose securities are being sold
pursuant to a Registration Statement and that does not directly or indirectly
affect, impair, limit or compromise the rights of other Holders of Registrable
Securities may be given by Holders of at least a majority in Amount of the
Registrable Securities being sold by such Holders pursuant to such Registration
Statement.
-18-
(d) Notices. All notices and other communications (including
without limitation any notices or other communications to the Trustee) provided
for or permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day air courier or facsimile:
(1) if to a Holder of the Registrable Securities, at the most
current address of such Holder set forth on the records of the
registrar under the Indenture, in the case of Holders of Convertible
Notes, and the stock ledger of the Company, in the case of Holders of
common stock of the Company.
(2) if to the Initial Purchasers:
DEUTSCHE BANK SECURITIES INC.
BANC OF AMERICA SECURITIES LLC
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
▇▇▇▇▇▇▇ ▇▇▇▇▇ & ASSOCIATES, INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
c/o Deutsche Bank Securities Inc.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Equity Syndicate
with copies to:
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
(3) if to the Company, at the addresses as follows:
Pinnacle Holdings Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
-19-
with copies to:
Holland & Knight LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; one Business
Day after being timely delivered to a next-day air courier; and when the
addressor receives facsimile confirmation, if sent by facsimile.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties
hereto, including the Holders; provided, however, that this Agreement shall not
inure to the benefit of or be binding upon a successor or assign of a Holder
unless and except to the extent such successor or assign holds Registrable
Securities.
(f) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT
TO THE JURISDICTION OF THE FEDERAL AND NEW YORK STATE COURTS SITTING IN
MANHATTAN, NEW YORK CITY, THE STATE OF NEW YORK, IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(i) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restric-
-20-
tions without including any of such that may be hereafter declared invalid,
illegal, void or unenforceable.
(j) Securities Held by the Company or Its Affiliates. Whenever
the consent or approval of Holders of a specified percentage in Amount of
Registrable Securities is required hereunder, Registrable Securities held by the
Company or its affiliates (as such term is defined in Rule 405 under the
Securities Act) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
(k) Third Party Beneficiaries. Holders of Registrable
Securities are intended third party beneficiaries of this Agreement and this
Agreement may be enforced by such Persons.
(l) Entire Agreement. This Agreement, together with the
Purchase Agreement and the Indenture, is intended by the parties as a final and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein and therein and any and all prior
oral or written agreements, representations, or warranties, contracts,
understandings, correspondence, conversations and memoranda between the Initial
Purchasers on the one hand and the Company on the other, or between or among any
agents, representatives, parents, subsidiaries, affiliates, predecessors in
interest or successors in interest with respect to the subject matter hereof and
thereof are merged herein and replaced hereby.
-21-
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
PINNACLE HOLDINGS INC.
By:____________________________________
Name:
Title:
DEUTSCHE BANK SECURITIES INC.
BANC OF AMERICA SECURITIES LLC
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ &
▇▇▇▇▇ INCORPORATED
▇▇▇▇▇▇▇ ▇▇▇▇▇ & ASSOCIATES, INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
By: DEUTSCHE BANK SECURITIES INC.
By:____________________________________
Name:
Title:
convertible subordinated notes with additional notes feature
S-1