1
Exhibit 10.3
REGISTRATION RIGHTS AGREEMENT
-----------------------------
REGISTRATION RIGHTS AGREEMENT ("Agreement") dated as of November 17,
1999, among PHONETEL TECHNOLOGIES, INC., an Ohio corporation (the "Company"),
and the parties hereto identified on Exhibit A, as may be amended from time to
time (the "Shareholders").
WHEREAS, in connection with the proposed Joint Reorganization Plan of
the Company and Cherokee Communications, Inc. (the "Plan"), the Company has
agreed to issue, upon confirmation of the Plan, to the holders of its 12% Senior
Notes due 2003 (the "Note Holders") shares of its common stock, $0.01 par value
per share ("Common Stock");
WHEREAS, certain of the Note Holders are anticipated to be Shareholders
following the issuance to them of Common Stock as referenced above;
WHEREAS, as an inducement to approve the Plan the Shareholders have
required, and the Company has agreed to grant, registration rights with respect
to those shares of Common Stock to be issued in connection with the Plan; and
WHEREAS, the parties hereto deem it to be in their respective best
interest to set forth the respective rights and obligations of the parties in
connection with public offerings and sales of the Common Stock held by the
Shareholders.
NOW, THEREFORE, in consideration of the premises and mutual covenants
and obligations hereinafter set forth, the parties hereby agree as follows:
SECTION 1. DEFINITIONS. As used in this Agreement, the following terms
shall have the following meanings:
"Commission" shall mean the Securities and Exchange Commission or any
other successor federal agency having similar powers.
"Effective Date" shall mean the date of Plan confirmation.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any successor Federal statute, and the rules and regulations of the
Commission promulgated thereunder, all as the same shall be in effect from time
to time.
"Other Shares" shall mean at any time those shares of Common Stock
which do not constitute Primary Shares or Registrable Shares.
1
2
"Primary Shares" shall mean at any time the authorized but unissued
shares of Common Stock or shares of Common Stock held by the Company in its
treasury.
"Registrable Shares" shall mean the shares of Common Stock held by the
Shareholders which constitute Restricted Shares.
"Restricted Shares" shall mean the shares of Common Stock which are
held by a Shareholder and which have not theretofore been sold to the public
pursuant to a registration statement under the Securities Act or sold pursuant
to Rule 144 or an exemption from registration under the Securities Act.
"Rule 144" shall mean Rule 144 promulgated under the Securities Act or
any successor rule thereto.
"Securities Act" shall mean the Securities Act of 1933 or any successor
Federal statute, and the rules and regulations of the Commission thereunder, all
as the same shall be in effect from time to time.
"Transfer" shall mean any disposition of any Restricted Shares or of
any interest therein which would constitute a sale thereof within the meaning of
the Securities Act other than any such disposition pursuant to an effective
registration statement under the Securities Act and complying with all
applicable state securities and blue sky laws.
SECTION 2. DEMAND REGISTRATION. On and after the Effective Date, if the
Company shall be requested by holders of at least five percent (5%) of the
outstanding Common Stock of the Company to effect the registration under the
Securities Act of all or a part of their Registrable Shares, then the Company
shall, within 10 days of such request, deliver a written notice of such proposed
registration to all holders of outstanding Registrable Shares and shall offer to
include in such proposed registration any Registrable Shares requested to be
included in such proposed registration by the holders of Registrable Shares who
or which shall respond in writing to the Company's notice within 15 days after
delivery thereof. The Company shall promptly thereafter use its best efforts to
effect such registration under the Securities Act of the Registrable Shares
which the Company has been so requested to register; provided, however, that the
Company shall not be obligated to effect any registration under the Securities
Act except in accordance with the following provisions:
(a) The Company shall not be obligated to use its best efforts
to file and cause to become effective (i) more than two (2)
registration statements initiated pursuant to this Section 2 or (ii)
any registration statement during any period in which any other
registration statement (other than on Form S-4 or Form S-8 promulgated
under the Securities Act or any successor forms thereto) pursuant to
which Primary Shares are to be or were sold has been filed and not
withdrawn or has been declared effective within the prior 90 days;
2
3
(b) With respect to any registration pursuant to this Section
2, the Company may include in such registration any Primary Shares or
Other Shares; provided, however, that if the managing underwriter, in
consultation with a majority-in-interest of the Shareholders, advises
the Company, in writing, that the inclusion of all Registrable Shares,
Primary Shares and Other Shares proposed to be included in such
registration would interfere with the successful marketing (including
pricing) of the Registrable Shares proposed to be included in such
registration, then the number of Registrable Shares, Primary Shares
and/or Other Shares proposed to be included in such registration shall
be included in the following order:
(i) first, the Registrable Shares requested to be
included in such registration by the Shareholders (in such
proportion as such participating Shareholders shall agree);
(ii) second, the Primary Shares; and
(iii) third, the Other Shares, in such proportion as
shall be determined by the Company.
(c) REGISTRATION STATEMENT FORM. Each registration requested
pursuant to this Section shall be effected by the filing of a
registration statement on Form S-1, Form S-2 or Form S-3 (or any other
form which includes substantially the same information as would be
required to be included in a registration statement on such forms as
presently constituted), unless the use of a different form is (i)
required by law or (ii) permitted by law and agreed to in writing by
holders holding at least a majority (by number of shares) of the
Registrable Securities as to which registration has been requested
pursuant to this Section. At any time after the Company has issued and
sold any shares of its capital stock registered under an effective
registration statement under the Securities Act, or after the Company
shall have registered any class of equity securities pursuant to
Section 12 of the Exchange Act, it will use its best efforts to qualify
for registration on Form S-2 or Form S-3 (or any other comparable form
hereinafter adopted).
SECTION 3. PIGGYBACK REGISTRATION. On and after the Effective Date, if
the Company at any time proposes for any reason to register Primary Shares or
Other Shares under the Securities Act (other than on Form S-4 or Form S-8
promulgated under the Securities Act or any successor forms thereto), then each
such time it shall promptly give written notice to all holders of outstanding
Registrable Shares of its intention so to register the Primary Shares or Other
Shares and, upon the written request, given within 30 days after receipt of any
such notice by the Company, of the holders of Registrable Shares to include in
such registration Registrable Shares held by such holders (which request shall
specify the number of Registrable Shares proposed to be included in such
registration), the Company shall use its best efforts to cause all such
Registrable Shares to be included in such registration on the same terms and
conditions as the securities otherwise being sold in such registration;
provided, however that if the managing underwriter, in consultation with a
majority of in-interest of the Shareholders, advises the Company, in writing,
that the inclusion of all such Registrable Shares, or Other Shares proposed to
be included in such registration would interfere with the successful marketing
(including pricing) of Primary Shares proposed to be registered by the
3
4
Company, then the number of Primary Shares, Registrable Shares, and Other Shares
proposed to be included in such registration shall be included in the following
order:
(i) first, the Primary Shares; and
(ii) second, the Registrable Shares requested to be
included in such registration by the Shareholders (pro rata
based upon the number of Registrable Shares requested to be
included in such registration by each such Shareholder); and
(iii) third, the Other Shares in such proportion as
shall be determined by the Company.
SECTION 4. HOLDBACK AGREEMENT. On and after the Effective Date , if the
Company at any time shall register shares of Common Stock under the Securities
Act (including any registration pursuant to Sections 2 or 3) for sale to the
public, the Shareholders shall not sell publicly, make any short sale of, grant
any option for the purchase of, or otherwise dispose publicly of, any Restricted
Shares (other than those shares of Common Stock included in such registration
pursuant to Sections 2 or 3) without the prior written consent of the Company
for a period designated by the Company in writing to the holders of Registrable
Shares, which period shall not begin more than ten (10) days prior to the
effectiveness of the registration statement pursuant to which such public
offering shall be made and shall not last more than 180 days after the effective
date of such registration statement.
SECTION 5. PREPARATION AND FILING. If and whenever the Company is under
an obligation pursuant to the provisions of this Agreement to use its best
efforts to effect the registration of any Registrable Shares, the Company shall,
as expeditiously as practicable:
(a) Prepare and file with the Commission as soon as
practicable, but not later than ninety (90) days after receipt of a
request pursuant to Section 2 or Section 3 of this Agreement, as the
case may be, use its best efforts to cause a registration statement
that registers such Registrable Shares to become and remain effective
for a period of 180 days or until all of such Registrable Shares have
been disposed of (if earlier);
(b) furnish, at least ten business days before filing a
registration statement that registers such Registrable Shares, a
prospectus relating thereto or any amendments or supplements relating
to such a registration statement or prospectus (including any documents
proposed to be incorporated by reference and any exhibits thereto), to
one counsel selected by the holders of a majority in interest of
Registrable Shares (the "Shareholders' Counsel"), copies for review and
comment during such ten days of all such documents proposed to be filed
(it being understood that such ten-business-day period need not apply
to successive drafts of the same document proposed to be filed so long
as such successive drafts are supplied to the Shareholders' Counsel in
advance of the proposed filing by a period of time that is customary
and reasonable under the circumstances);
(c) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith and such other
4
5
documents as may be necessary to keep such registration statement
effective for at least a period of 180 days or until all of such
Registrable Shares have been disposed of (if earlier) and to comply
with the provisions of the Securities Act with respect to the sale or
other disposition of such Registrable Shares and promptly furnish
copies, without charge, of all such amendments, supplements and other
related documents to Shareholders' Counsel;
(d) notify in writing the Shareholders' Counsel promptly (i)
of the receipt by the Company of any notification with respect to any
comments by the Commission relating to such registration statement or
prospectus or any amendment or supplement thereto or any request by the
Commission for the amendment or supplement thereof or for additional
information with respect thereto, (ii) of the receipt by the Company of
any notification with respect to the issuance by the Commission of any
stop order suspending the effectiveness of such registration statement
or prospectus or any amendment or supplement thereto or the initiation
or threatening of any proceeding for that purpose and (iii) of the
receipt by the Company of any notification with respect to the
suspension of the qualification of such Registrable Shares for sale in
any jurisdiction or the initiation or threatening of any proceeding for
such purposes and furnish copies of all such notices to Shareholders'
Counsel;
(e) use all reasonable efforts to cause the Commission to
terminate any stop order as soon as possible;
(f) use its best efforts to register or qualify such
Registrable Shares under such other securities or blue sky laws of such
jurisdictions as the Stockholders reasonably request and do any and all
other acts and things which may be reasonably necessary or advisable to
enable the holders of Registrable Shares to consummate the disposition
in such jurisdictions of such Registrable Shares; provided, however,
that the Company will not be required to qualify generally to do
business, subject itself to general taxation or consent to general
service of process in any jurisdiction where it would not otherwise be
required to do so but for this paragraph (f);
(g) furnish to the holders of Registrable Shares such number
of copies of a registration statement, summary prospectus or other
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as the
holders of Registrable Shares may reasonably request in order to
facilitate the public sale or other disposition of such Registrable
Shares;
(h) use its best efforts to cause such Registrable Shares to
be registered with or approved by such other governmental agencies or
authorities as may be necessary by virtue of the business and
operations of the Company to enable the holders of Registrable Shares
to consummate the disposition of such Registrable Shares;
(i) notify each holder of Registrable Securities covered by
such registration statement (i) if such registration statement, at the
time it or any amendment thereto became effective, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and,
5
6
as promptly as practicable, prepare and file with the Commission a
post-effective amendment to such registration statement and use best
efforts to cause such post-effective amendment to become effective such
that such registration statement, as so amended, shall 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 not misleading, and (ii) at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, if the
prospectus included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state a
material required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading, and, as promptly as is practicable, prepare and
furnish to such holder a reasonable number of copies of a supplement to
or an amendment of such prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such securities, such
prospectus shall not include 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 light of the circumstances
under which they were made, not misleading;
(j) make available for inspection by the holders of
Registrable Shares, any underwriter participating in any disposition
pursuant to such registration statement and any attorney, accountant or
other agent retained by the holders of Registrable Shares or any
underwriter (collectively, the "Inspectors"), all pertinent financial
and other records, pertinent corporate documents and properties of the
Company (collectively, the "Records"), as shall be reasonably necessary
to enable them to exercise their due diligence responsibility, and
cause the Company's officers, directors and employees to supply all
information , whether in writing or by consultation, (together with the
Records, the "Information") reasonably requested by any such holders of
Registrable Shares or the Inspectors in connection with such
registration statement. Any of the Information which the Company
determines in good faith to be confidential, and of which determination
the Inspectors are so notified, shall not be disclosed by the
Inspectors unless (i) the disclosure of such Information is necessary
to avoid or correct a misstatement or omission in the registration
statement, (ii) the release of such Information is ordered pursuant to
a subpoena or other order from a court of competent jurisdiction or
(iii) such Information has been made generally available to the public.
The holders of Registrable Shares agree that they will, upon learning
that disclosure of such Information is sought in a court of competent
jurisdiction, give notice to the Company and allow the Company, at the
Company's expense, to undertake appropriate action to prevent
disclosure of the Information deemed confidential;
(k) use its best efforts to obtain from its independent
certified public accountants who issued an audit report on the
Company's financial statements included the registration statement
comfort letters, addressed to the Shareholders, in customary form and
at customary times and covering matters of the type customarily covered
by comfort letters;
(l) use its best efforts to obtain from counsel experienced in
securities laws matters an opinion or opinions in customary form, dated
as of the effective date and addressed to the Shareholders;
6
7
(m) provide a transfer agent and registrar (which may be the
same entity and which may be the Company) for such Registrable Shares;
(n) issue to any underwriter to which the holders of
Registrable Shares may sell shares in such offering certificates
evidencing such Registrable Shares;
(o) list such Registrable Shares on the national securities
exchange, if any on which any shares of the Common Stock are listed;
(p) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission and make available
to its securityholders, as soon as reasonably practicable, earnings
statements (which need not be audited) covering a period of 12 months
beginning within three months after the effective date of the
registration statement, which earnings statements shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 under
the Securities Act; and
(q) use its best efforts to take all other steps necessary to
effect the registration of such Registrable Shares contemplated hereby.
SECTION 6. EXPENSES. All expenses incurred by the Company in complying
with Section 5, including, without limitation, all registration and filing fees
(including all expenses incident to filing with the National Associations of
Securities Dealers, Inc.), fees and expenses of complying with securities and
blue sky laws, printing expenses, fees and expenses of the Company's counsel and
accountants and fees and expenses of the Shareholders' Counsel, shall be paid by
the Company; provided, however, that all underwriting discounts and selling
commissions applicable to the Registrable Shares shall not be borne by the
Company but shall be borne by the holders of Registrable Shares in proportion to
the number of Registrable Shares sold by each of them.
SECTION 7. INDEMNIFICATION. In connection with any registration of any
Registrable Shares under the Securities Act pursuant to this Agreement, the
Company shall indemnify and hold harmless the holders of Registrable Shares,
their directors, officers and employees each underwriter, broker or any other
person acting on behalf of the holders of Registrable Shares and each other
person, if any, who controls any of the foregoing persons within the meaning of
the Securities Act against any losses, claims, damages or liabilities, joint or
several (or actions in respect thereof), to which any of the foregoing persons
may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon: (i) an untrue statement or alleged untrue statement of a
material fact contained in the registration statement under which such
Registrable Shares were registered under the Securities Act, any preliminary
prospectus, final prospectus or summary prospectus contained therein or
otherwise filed with the Commission, any amendment or supplement thereto or any
document incident to registration or qualification of any Registrable Shares, or
(ii) arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated in any such registration
statement, preliminary prospectus, final prospectus, summary prospectus,
amendment or supplement or any documents incident to registration or
qualification of any Registrable Shares or necessary to make the statements
therein not misleading or, with respect to any prospectus,
7
8
necessary to make the statements therein in light of the circumstances under
which they were made not misleading, or (iii) any violation by the Company of
the Securities Act or state securities or blue sky laws applicable to the
Company and relating to action or inaction required of the Company in connection
with such registration or qualification under such state securities or blue sky
laws; and shall reimburse the holders of Registrable Shares, such underwriter,
such broker or such other person acting on behalf of the holders of Registrable
Shares and each such controlling person for any legal or other expenses
reasonably incurred by any of them in connection with investigating or defending
any such loss, claim, damage, liability or action; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage, liability or action arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
said registration statement, preliminary prospectus, final prospectus,
amendment, supplement or document incident to registration or qualification of
any Registrable Shares in reliance upon and in conformity with written
information furnished to the Company through an instrument duly executed by the
holders of Registrable Shares or underwriter. specifically for use in the
preparation thereof.
In connection with any registration of Registrable Shares under the
Securities Act pursuant to this Agreement, each holder of Registrable Shares
shall indemnify and hold harmless (in the same manner and to the same extent as
set forth in the preceding paragraph of this Section 7) the Company, each
director of the Company, each officer of the Company who shall sign such
registration statement, each underwriter, broker or other person acting on
behalf of the holders of Registrable Shares and each person who controls any of
the foregoing persons within the meaning of the Securities Act with respect to
any statement or omission from such registration statement, any preliminary
prospectus or final prospectus contained therein or otherwise filed with the
Commission, any amendment or supplement thereto or any document incident to
registration or qualification of any Registrable Shares, if such statement or
omission was made in reliance upon and in conformity with written information
furnished to the Company or such underwriter through an instrument duly executed
by such holder of Registrable Shares specifically for use in connection with the
preparation of such registration statement, preliminary prospectus, final
prospectus, amendment, supplement or document; provided, however, that the
maximum amount of liability in respect of such indemnification shall be limited,
in the case of each seller of Registrable Shares, to an amount equal to the net
proceeds actually received by such seller from the sale of Registrable Shares
effected pursuant to such registration.
Promptly after receipt by an indemnified party of notice of the
commencement of any action involving a claim referred to in the preceding
paragraphs of this Section 7, such indemnified party will, if a claim in respect
thereof is made against an indemnifying party, give written notice to the latter
of the commencement of such action. In case any such action is brought against
an indemnified party, the indemnifying party will be entitled to participate in
and to assume the defense thereof, jointly with any other indemnifying party
similarly notified 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 shall not be responsible for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof; provided, however, that if any indemnified party shall have
reasonably concluded that there may be one or more legal or equitable
8
9
defenses available to such indemnified party which are additional to or conflict
with those available to the indemnifying party, or that such claim or litigation
involves or could have an effect upon matters beyond the scope of the indemnity
agreement provided in this Section 7, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party
and such indemnifying party shall reimburse such indemnified party and any
person controlling such indemnified party for that portion of the fees and
expenses of any counsel retained by the indemnified party which is reasonably
related to the matters covered by the indemnity agreement provided in this
Section 7. The indemnifying party shall not be liable to indemnify any
indemnified party for any settlement or consent to judgment effected without the
indemnifying party's consent (but such consent will not be unreasonably
withheld).
If the indemnification provided for in this Section 7 is held by a
court of competent jurisdiction to be unavailable to an indemnified party with
respect to any loss, claim, damage, liability or action referred to herein, then
the indemnifying party, in lieu of indemnifying such indemnified party
hereunder, shall contribute to the amounts paid or payable by such indemnified
party as a result of such loss, claim, damage, liability or action in such
proportion as is appropriate to reflect 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 loss, claim, damage,
liability or action as well as any other relevant equitable considerations. The
relative fault of the indemnifying party and of the indemnified party 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.
SECTION 8. UNDERWRITING AGREEMENT. Notwithstanding the provisions of
Sections 4, 5, 6 and 7 to the extent that the holders of Registrable Shares
shall enter into an underwriting or similar agreement, which agreement contains
provisions covering one or more issues addressed in such Sections, the
provisions contained in such Sections addressing such issue or issues shall be
of no force or effect with respect to such registration.
SECTION 9. INFORMATION BY HOLDER. Each of the holders of Registrable
Shares proposing to sell the same pursuant to a registration to which this
Agreement relates shall furnish to the Company such written information
regarding the holders of Registrable Shares and the distribution proposed by
such holders of Registrable Shares as the Company may reasonably request in
writing and as shall be reasonably required in connection with any registration,
qualification or compliance referred to in this Agreement.
SECTION 10. RULE 144; LEGENDED SECURITIES; ETC. If the company shall
have filed a registration statement pursuant to Section 12 of the Exchange Act
or a registration statement pursuant to the Securities Act relating to any class
of equity securities, the Company 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 Commission thereunder (or, if the Company is not required to file
such reports, it will, upon the request of any holder of Registrable Shares,
make publicly available such information as necessary to permit sales pursuant
to Rule 144), and will take such further action as
9
10
any holder of Registrable Shares may reasonably request, all to the extent
required from time to time to enable such holder to sell shares of Registrable
Shares without registration under the Securities Act within the limitation of
the exemptions provided by Rule 144. The Company will issue new certificates for
Registrable Shares with a legend restricting further transfer unless such shares
have been (i) sold to the public pursuant to an effective registration statement
under the Securities Act or sold to a non-affiliate pursuant to Rule 144, or
(ii) the transferee or holder of the shares has expressly requested in writing
the removal of the legend and such removal is otherwise permitted under the
Securities Act.
SECTION 11. NO CONFLICT OF RIGHTS. The Company represents and warrants
to the holders of Registrable Shares that the registration rights granted
hereunder to the holders of Registrable Shares do not conflict with any other
registration rights granted by the Company. The Company shall not, after the
date hereof, grant any registration rights which conflict with or impair the
registration rights granted hereby.
SECTION 12. TERMINATION. The registration rights provided in Section 2
hereof shall expire at the earlier of (i) three (3) years following the
Effective Date or (ii) such time as the Registrable Shares may be freely sold by
the Shareholders in compliance with the Securities Act without registration
thereunder and without restriction, including pursuant to the provisions of
Section 4(1) of the Securities Act or Rule 144 promulgated thereunder or any
successor exemption.
SECTION 13. SUCCESSORS AND ASSIGNS. This Agreement shall bind and inure
to the benefit of the Company and the holders of Registrable Shares and, subject
to Section 14, the respective successors and assigns of the Company and holders
of Registrable Shares.
SECTION 14. ASSIGNMENT. Each holder of Registrable Shares may assign
its rights hereunder to any purchaser or transferee of Restricted Shares holding
at least 1% or more of all outstanding Common Stock at the date of assignment;
PROVIDED, HOWEVER, that such purchaser or transferee shall, as a condition to
the effectiveness of such assignment, be required to execute a counterpart to
this Agreement agreeing to be treated as a seller or transferor hereunder
whereupon such purchaser or transferee shall have the benefits of, and shall be
subject to the restrictions contained in, this Agreement.
SECTION 15. ENTIRE AGREEMENT. This Agreement, and the other writings
referred to therein or delivered pursuant thereto, contain the entire agreement
among the parties with respect to the subject matter hereof and supersede all
prior and contemporaneous arrangements or understandings with respect thereto.
SECTION 16. NOTICES. All notices and other communications in connection
with this Agreement shall be in writing. Any notice or other communication in
connection herewith shall be deemed duly given to any party (a) two business
days after it is sent by express, registered or certified mail, return receipt
requested, postage prepaid or (b) one business day after it is sent by overnight
courier, in each case, to the address of such party set forth beneath its name
on Schedule A hereto, or to such other address as such party may have designated
to the company in writing, and if to the Company to the following address:
10
11
PhoneTel Technologies, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: Corporate Secretary
With a copy to:
▇▇▇▇ ▇▇▇▇▇▇ & Parks LLP
▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: F. ▇▇▇▇▇▇ ▇'▇▇▇▇▇, Esq.
or at such other address or addresses as the Company may have designated in
writing to each holder of Registrable Securities at the time outstanding. Copies
of any notice or other communication given under the Agreement shall also be
given to:
Debevoise & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Any party may give any notice or other communication in connection herewith
using any other means (including, but not limited to, personal delivery,
messenger service, telecopy, telex or ordinary mail), but no such notice or
other communication shall be deemed to have been duly given unless and until it
is actually received by the individual for whom it is intended.
SECTION 17. MODIFICATIONS; AMENDMENTS; WAIVERS. The terms and
provisions of this Agreement may not be modified or amended, nor may any
provision be waived, except pursuant to a writing signed by (i) the Company and
(ii) the holders of at least a majority of the Registrable Shares then issued
and outstanding.
SECTION 18. COUNTERPARTS. This Agreement-may be executed in any number
of counterparts, and each such counterpart hereof shall be deemed to be an
original instrument, and all such counterparts taken together shall constitute
one and the same agreement.
SECTION 19. HEADINGS. The headings of the various sections of this
Agreement have been inserted for convenience of reference only and shall not
affect the meaning or interpretation of this Agreement.
SECTION 20. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the domestic laws of the State of Ohio without
giving effect to any choice or conflict of law provision or rule (whether in the
State of Ohio or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of Ohio.
11
12
SECTION 21. SEVERABILITY. If any provision of this Agreement is
inoperative or unenforceable for any reason, such circumstances shall not have
the effect of rendering the provision in question inoperative or unenforceable
in any other case or circumstance, or of rendering any other provision or
provisions herein contained invalid, inoperative, or unenforceable to any extent
whatsoever. The invalidity of any one or more phrases, sentences, clauses,
Sections or subsections of this Agreement shall not affect the remaining
portions of this Agreement.
SECTION 22. CONSENT TO JURISDICTION. Each party irrevocably submits to
the exclusive jurisdiction of (a) the Court of Common Pleas of Cuyahoga County,
Ohio, and (b) the United States District Court for the Northern District of
Ohio, for the purposes of any suit, action or other proceeding arising out of
this Agreement or any transaction contemplated hereby (and agrees not to
commence any such suit, action or proceeding except in such courts). Each party
further agrees that service of any process, summons, notice or document by U.S.
registered mail to such party's respective address set forth above shall be
effective service of process for any such suit, action or proceeding. Each party
irrevocably and unconditionally waives any objection to the laying of venue of
any such suit, action or proceeding in (i) the Court of Common Pleas of Cuyahoga
County, Ohio, and (ii) the United States District Court for the Northern
District of Ohio, that any such suit, action or proceeding brought in any such
court has been brought in an inconvenient forum.
SECTION 23. WAIVER OF JURY TRIAL. Each party hereby waives, to the
fullest extent permitted by applicable law, any right it may have to a trial by
jury in respect of any suit, action or proceeding arising out of this Agreement
or any transaction contemplated hereby. Each party (a) certifies that no
representative, agent or attorney of any other party has represented, expressly
or otherwise, that such other party would not, in the event of litigation, seek
to enforce the foregoing waiver and (b) acknowledges that it and the other
parties have been induced to enter into the Agreement by, among other things,
the mutual waivers and certifications in this Section.
12
13
IN WITNESS WHEREOF, the undersigned parties hereto hereby agree to the
terms and conditions of this Registration Rights Agreement as of the date first
written above.
PHONETEL TECHNOLOGIES, INC.
By: /s/ ▇. ▇▇▇▇▇▇
-------------------------------------
Its: SECRETARY
-----------------------------------
13
14
IN WITNESS WHEREOF, the undersigned parties hereto hereby agree to the
terms and conditions of this Registration Rights Agreement as of the date first
written above.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇, an individual
14
15
IN WITNESS WHEREOF, the undersigned parties hereto hereby agree to the
terms and conditions of this Registration Rights Agreement as of the date first
written above.
AXP Bond Fund, Inc.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------
Its: Vice President
----------------------------
15
16
IN WITNESS WHEREOF, the undersigned parties hereto hereby agree to the
terms and conditions of this Registration Rights Agreement as of the date first
written above.
High Yield Portfolio
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------
Its: Vice President
---------------------------
16
17
IN WITNESS WHEREOF, the undersigned parties hereto hereby agree to the
terms and conditions of this Registration Rights Agreement as of the date first
written above.
AXP Variable Portfolio - Bond Fund
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------
Its: Vice President
-----------------------------
17
18
IN WITNESS WHEREOF, the undersigned parties hereto hereby agree to the
terms and conditions of this Registration Rights Agreement as of the date first
written above.
AXP Variable Portfolio - Managed Fund
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------
Its: Vice President
--------------------------------
18
19
IN WITNESS WHEREOF, the undersigned parties hereto hereby agree to the
terms and conditions of this Registration Rights Agreement as of the date first
written above.
IDS Life Series Fund, Inc. - Income Portfolio
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Its: Vice President
----------------------------------------
19
20
IN WITNESS WHEREOF, the undersigned parties hereto hereby agree to the
terms and conditions of this Registration Rights Agreement as of the date first
written above.
IDS Life Series Fund, Inc.-Managed Portfolio
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Its: Vice President
---------------------------------------
20
21
IN WITNESS WHEREOF, the undersigned parties hereto hereby agree to the
terms and conditions of this Registration Rights Agreement as of the date first
written above.
AXP Variable Portfolio - Extra Income Fund
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------
Its: Vice President
-------------------------------------
21
22
EXHIBIT A
---------
SHAREHOLDERS
------------
▇▇▇▇▇ ▇. ▇▇▇▇
AXP Bond Fund, Inc.
High Yield Portfolio
AXP Variable Portfolio - Bond Fund
AXP Variable Portfolio - Managed Fund
IDS Life Series Fund, Inc. - Income Portfolio
IDS Life Series Fund, Inc. - Managed Portfolio
AXP Variable Portfolio - Extra Income Fund
22