REGISTRATION RIGHTS AGREEMENT By and Among MetroPCS Communications, Inc. and The Stockholders, as defined herein Dated as of ___, 2007
Exhibit 10.2
By and Among
MetroPCS Communications, Inc.
and
The Stockholders, as defined herein
Dated as of ___, 2007
TABLE OF CONTENTS
| Page | ||||
ARTICLE 1 GENERAL |
1 | |||
Section 1.1 Construction of Terms |
1 | |||
Section 1.2 Number of Shares of Stock |
2 | |||
Section 1.3 Defined Terms |
2 | |||
Section 1.4 Effectiveness of this Agreement |
4 | |||
ARTICLE 2 REGISTRATION RIGHTS |
4 | |||
Section 2.1 Demand Registration |
4 | |||
Section 2.2 Incidental Registration |
7 | |||
Section 2.3 Registration Procedures |
8 | |||
Section 2.4 Underwritten Offerings |
12 | |||
Section 2.5 Preparation: Reasonable Investigation |
13 | |||
Section 2.6 Limitations, Conditions and Qualifications to Obligations Under Registration
Covenants |
13 | |||
Section 2.7 Indemnification |
13 | |||
Section 2.8 Registration Expenses |
17 | |||
Section 2.9 Certain Rights of Stockholders if Named in a Registration Statement |
18 | |||
Section 2.10 Rule 144 |
18 | |||
Section 2.11 Registration Rights |
18 | |||
Section 2.12 Assignment of Rights |
18 | |||
ARTICLE 3 GENERAL |
19 | |||
Section 3.1 Amendments, Waivers and Consent |
19 | |||
Section 3.2 Governing Law |
19 | |||
Section 3.3 Section Headings |
19 | |||
Section 3.4 Effectiveness; Binding Effect |
19 | |||
Section 3.5 Additional Parties |
19 | |||
Section 3.6 Notices and Demands |
20 | |||
Section 3.7 Remedies; Severability |
21 | |||
Section 3.8 Integration |
21 | |||
Section 3.9 Termination |
21 | |||
Section 3.10 Confidential Information |
21 | |||
SCHEDULES AND EXHIBITS |
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Schedule 1 - Stockholders |
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Exhibit A - Form of Stockholder Joinder Agreement |
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i
THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made as of the ___day of
2007 by and among (i) MetroPCS Communications, Inc. (the “Company”), a Delaware
corporation, (ii) the stockholders listed on Schedule 1 hereto (together with any
stockholders who join as Parties pursuant to Section 3.5 of this Agreement, the
“Stockholders’’).
WHEREAS, the Stockholders and the Company are parties to that certain Second Amended and
Restated Stockholders Agreement, dated as of August 30, 2005, as amended (the “Stockholders
Agreement”);
WHEREAS, pursuant to Section 7.10 of the Stockholders Agreement, certain provisions thereof
are terminated effective upon an Initial Public Equity Offering (as defined in the Stockholders
Agreement);
WHEREAS, the Company has filed a registration statement on Form S-1 for the initial public
offering of its Common Stock (the “IPO”), which will constitute an Initial Public Equity
Offering for purposes of the Stockholders Agreement;
WHEREAS, the Company and the Stockholders desire to amend and restate the Stockholders
Agreement in its entirety effective upon the consummation of the IPO in order to (i) eliminate the
provisions that would terminate upon the consummation of the IPO in accordance with Section 7.10 of
the Stockholders Agreement, (ii) rename the Stockholders Agreement a “Registration Rights
Agreement” and (iii) make certain other amendments to the Stockholders Agreement; and
WHEREAS, this Agreement, which constitutes an amendment to the Stockholders Agreement, has
been approved by the joint written consent of (i) a majority of the directors of the Board of the
Company, (ii) Stockholders holding a majority of the shares of Common Stock (as defined herein) of
the Stockholders, and (iii) Preferred Stockholders (as defined
herein) holding not less than
662/3%
of the shares of Common Stock issued or issuable upon conversion of the Preferred Stock (as defined
herein) held by such Preferred Stockholders voting together as a single class;
NOW THEREFORE, in consideration of the foregoing and the mutual covenants and agreements
hereinafter set forth, the parties hereto, intending to be legally bound, hereby agree as follows:
ARTICLE 1 GENERAL
Section 1.1 Construction of Terms. As used herein, the masculine, feminine or
neuter gender, and the singular or plural number, shall be deemed to be or to include the other
genders or number, as the case may be, whenever the context so indicates or requires.
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Section 1.2 Number of Shares of Stock. Whenever any provision of this Agreement
calls for any calculation based on a number of shares of Common Stock held by a Stockholder, the
number of shares deemed to be held by a Stockholder for each purpose shall be the total number of
shares of Common Stock then owned by such Stockholder, plus the total number of shares of Common
Stock issuable upon conversion of any series of preferred stock (as if conversion occurred on such
date), or other convertible securities or exercise of any vested options, warrants or subscription
rights then owned by such Stockholder.
Section 1.3 Defined Terms. The following capitalized terms, as used in this
Agreement, shall have the meanings set forth below.
“Affiliate” means, at any time, and with respect to any Person, any other Person that at such
time directly or indirectly through one or more intermediaries Controls, or is Controlled by, or is
under common Control with, such first Person.
“Board” or “Board of Directors” means the Board of Directors of the Company.
“Business Day” means any day other than a Saturday, a Sunday or a day on which commercial
banks in New York, New York are required or authorized to be closed.
“Common Stock” means the Common Stock, par value $0.0001 per share, of the Company.
“Common Stockholder” means any holder of Common Stock as of the date immediately preceding the
IPO, and any Transferee who receives Registrable Securities from a Common Stockholder and who
executes a Joinder Agreement in accordance with Section 2.12.
“Control” (including the terms “Controlled by” and “under common Control with”) means the
possession, directly or indirectly, or as trustee or executor, of the power to direct or cause the
direction of the management policies of a Person, whether through the ownership of stock, as
trustee or executor, by contract or credit arrangement or otherwise.
“FCC” means the Federal Communications Commission and any successor federal agency performing
similar regulatory functions.
“Governmental Authority” means
(i) the government of the United States of America or any State or other political subdivision
thereof, or
(ii) the government of any jurisdiction in which the Company or any of its Subsidiaries
conducts all or any part of its business, or which asserts jurisdiction over any properties of the
Company or any of its Subsidiaries, or
(iii) any entity exercising executive, legislative, judicial, regulatory or administrative
functions of, or pertaining to, any such government.
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“Investors” means (i) Madison Dearborn Capital Partners IV, L.P., and its Affiliates and (ii)
TA Associates, Inc, and its Affiliates.
“Investor Registrable Securities” means the Registrable Securities deemed held by the
Investors as a result of their purchase of the Purchased Shares.
“Person” means an individual, partnership, corporation, limited liability company,
association, trust, unincorporated organization, or a government or agency or political subdivision
thereof.
“Preferred Stock” means the Series D Preferred Stock and the Series E Preferred Stock.
“Preferred Stockholders” means any holder of Preferred Stock as of the date immediately
preceding the IPO, and any Transferee who receives Registrable Securities from a Preferred
Stockholder and who executes a Joinder Agreement in accordance with Section 2.12.
“Registrable Securities” means (i) any shares of Common Stock held by a Stockholder as of the
effective time of the IPO, (ii) any shares of Common Stock acquired upon conversion of the shares
of Preferred Stock and (iii) any securities issued and issuable with respect to any such shares
described in clauses (i) or (ii) above by way of a stock dividend or stock split or in connection
with a combination of stock, recapitalization, merger, consolidation or other reorganization;
provided, however, that, notwithstanding anything to the contrary contained herein,
''Registrable Securities” shall not include at any time securities (i) sold in a registered sale
pursuant to an effective registration statement under the Securities Act, (ii) sold to the public
pursuant to Rule 144 under the Securities Act or (iii) which could then be sold in their entirety
pursuant to Rule 144(k) under the Securities Act.
“SEC” means the United States Securities and Exchange Commission and any successor federal
agency performing similar regulatory functions.
“Securities Act” means the Securities Act of 1933, as amended from time to time, and the rules
and regulations promulgated thereunder.
“Series D Preferred Stock” means the Series D Convertible Preferred Stock, par value $0.0001
per share, of the Company.
“Series E Preferred Stock” means the Series E Convertible Preferred Stock, par value $0.0001
per share, of the Company.
“Stockholders Agreement” has the meaning set forth in the recitals to this Agreement.
“Subsidiary” means with respect to any Person, any corporation, partnership, limited liability
company, association, joint venture or other business entity of which more than 50% of the total
voting power of shares of stock or other ownership interests entitled (without regard to the
occurrence of any contingency) to vote in the election of the Person or Persons (whether
directors, managers, trustees or other Persons performing similar functions) having the power
to direct or cause the direction of the management and policies thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that
3
Person or a combination thereof; provided, in determining the percentage of ownership interests of
any Person controlled by another Person, no ownership interest in the nature of a “qualifying
share” of the former Person shall be deemed to be outstanding.
“Transfer” means any direct or indirect transfer, donation, sale, assignment, pledge,
hypothecation, grant of a security interest in or other disposal or attempted disposal of all or
any portion of a security or of any rights; “Transferred” means the accomplishment of a Transfer.
“Transferee” means the recipient of a Transfer.
Section 1.4 Effectiveness of this Agreement. This Agreement amends and restates in
its entirety the Stockholders Agreement and shall become effective only upon the consummation of
the IPO. In the event that the IPO is not consummated on or prior to December 31, 2007, this
Agreement shall automatically terminate and be of no further force and effect and the Stockholders
Agreement shall remain unmodified and in full force and effect.
ARTICLE
2 REGISTRATION RIGHTS
Section 2.1
Demand Registration
(a) Stockholder Requests
(i) Registration of Registrable Securities. Subject to the provisions
of this Section 2.1 and Section 2.13, the Stockholders (other than
the Investors) shall have up to three demand rights exercisable by the request of
Stockholders (other than the Investors) holding at least 15% of the outstanding
Registrable Securities (other than Investor Registrable Securities) that the Company
effect the registration under the Securities Act of (A) all Registrable Securities
(other than Investor Registrable Securities) or (B) shares of Common Stock (other
than Investor Registrable Securities) that represent at least 15% of the Registrable
Securities (other than Investor Registrable Securities) originally issued to such
Stockholders if Stockholders are requesting registration of less than all of their
Registrable Securities (other than Investor Registrable Securities);
provided, in the case of (A) and (B), that anticipated gross proceeds
(before underwriting discounts and commissions) from the sale of the Registrable
Securities be at least $20 million. Thereupon, the Company will (A) notify all
other holders of record of Registrable Securities that the Company has received a
demand for registration of the Registrable Securities and (B) use its best efforts
to effect the registration under the Securities Act of the Registrable Securities
which
the Company has been requested to register by all participating Stockholders
who elect to participate in the registration within ten (10) business days of the
notice referenced in (A) of this sentence.
(ii) Registration of Other Securities. Except as set forth in
Section 2.1(g) below, whenever the Company shall effect a registration made
pursuant to Section 2.1(a), no securities other than Registrable Securities
shall be included among the securities covered by such registration unless (i) the
managing underwriter of such offering shall have advised the Stockholders in
4
writing
that the inclusion of such other securities would not adversely affect such offering
or (ii) the holders of a majority of the Registrable Securities electing to include
shares in the registration shall have consented in writing to the inclusion of such
other securities.
(b) Investor Request.
(i) Registration of Investor Registrable Securities. Subject to the
provisions of this Section 2.1 and Section 2.13, the holders of the
Investor Registrable Securities shall have the right to demand that the Company
effect one registration under the Securities Act of shares of Common Stock that
represent at least 15% of the Investor Registrable Securities; provided that
anticipated gross proceeds (before underwriting discounts and commissions) from the
sale of the Investor Registrable Securities be at least $50 million. Thereupon, the
Company will (A) notify all other holders of record of Investor Registrable
Securities that the Company has received a demand for registration of the Investor
Registrable Securities and (B) use its best efforts to effect the registration under
the Securities Act of the Investor Registrable Securities which the Company has been
requested to register by all participating holders of Investor Registrable
Securities who elect to participate in the registration within ten (10) Business
Days of the notice referenced in (A) of this sentence.
(ii) Registration of Other Securities. Except as set forth in
Section 2.1(g) below, whenever the Company shall effect a registration
pursuant to a demand made in accordance with Section 2.1(b) no securities
other than Investor Registrable Securities shall be included among the securities
covered by such registration unless (i) the managing underwriter of such offering
shall have advised the Investors in writing that the inclusion of such other
securities would not adversely affect such offering or (ii) the holders of a
majority of the Investor Registrable Securities electing to include shares in the
registration shall have consented in writing to the inclusion of such other
securities.
(c) Registration Statement Form. Registrations under this Section 2.1 shall
be on such appropriate registration form of the SEC (i) as shall be selected by the Company and as
shall be reasonably acceptable to the Stockholders and (ii) as shall permit the disposition of such
Registrable Securities in accordance with the intended method or methods of disposition. The
Company agrees to include in any such registration statement all information which, in the opinion
of counsel to the Stockholders and counsel to the Company, is required to be included.
(d) Effective Registration Statement. A registration requested pursuant this
Section 2.1 shall not be deemed to have been effected and will not be considered one of the
three demand registrations which may be requested by the Stockholders or the demand registration
which may be requested by the Investors (i) if a registration statement with respect thereto has
not become effective, (ii) if after it has become effective, it does not remain effective for a
period of at least 180 days (unless the Registrable Securities registered thereunder have been sold
or disposed of prior to the expiration of such 180 day period) or such registration is interfered
with by any stop order, injunction or other order or requirement of the SEC or other governmental
5
agency or court for any reason and has not thereafter become effective for a period of at least 180
days, or (iii) if the conditions to closing specified in any underwriting agreement entered into in
connection with such registration are not satisfied or waived other than by reason of the failure
or refusal of the Stockholders to satisfy or perform a condition to such closing.
(e) Priority in Demand Registrations. If a demand registration pursuant to this
Section 2.1 involves an underwritten offering, the Stockholders demanding such registration
pursuant to Section 2.1(a)(i) or 2.1(b)(i) (the “Demand Rights
Stockholders’’) shall cause the managing underwriter to advise the Company in writing (with a
copy sent to each participating Stockholder) as to the number of securities that can be included in
such registration within a price range acceptable to the Demand Rights Stockholders (the
“Maximum Offering Amount”). Such registration will include only up to that number of
Registrable Securities which does not exceed the Maximum Offering Amount, drawn pro rata from the
Demand Rights Stockholders on the percentage that the Registrable Securities held by each
Stockholder is of the total number of Registrable Securities which all Stockholders hold. If any
Demand Rights Stockholder determines to include less than its pro rata share of the Maximum
Offering Amount in such offering, such difference shall be divided pro rata among the other Demand
Rights Stockholders in proportion to the respective holdings of Registrable Securities of all such
Demand Rights Stockholders desiring to include additional Registrable Securities.
(f) Number and Size of Demand Registrations; Other Limitations. Notwithstanding
anything in this Section 2.1 to the contrary, the Company shall not be required to effect
more than four demand registrations (other than registrations pursuant to Section 2.1(h)
hereof) at the request of the Stockholders pursuant to Section 2.1 of this Agreement,
without regard to any subsequent Transfer of any Registrable Securities by a Stockholder and the
assignment of any rights hereunder pursuant to Section 2.12. A registration shall not
count as one of the permitted demand registrations hereunder unless the Demand Rights Stockholders
are able to register and sell at least 80% of the Registrable Securities requested to be included
in such registration. The Company shall not be required to effect more than one registration
pursuant to Sections 2.1(a), (b) or (h) hereof during any 12-month period.
Moreover, no Stockholder shall be allowed to participate in any registration pursuant to
Sections 2.1(a), (b) or (h) hereof if the Common Stock is admitted to
trading or is listed on a national securities exchange, the Nasdaq Global Market or NASDAQ and such
Stockholder is eligible to sell its Registrable Securities without volume limitations and without
an effective registration statement.
(g) Incidental Company Registration. If the Stockholders make a request for a
registration pursuant to Section 2.1(a) or (b), the Company may determine to
include securities of the same class sought to be registered by the Stockholders for sale for the
Company’s own account by giving written notice thereof to the Stockholders specifying the number of
shares or amount of interests the Company wishes to have registered, but only to the extent that the
number of shares or amount of interests the Company seeks to include does not, when aggregated with
the number of Registrable Securities requested to be registered by the Stockholders, exceed the
Maximum Offering Amount, and subject to the limitations of Section 2.1(a)(ii) or
(b)(ii), as applicable.
(h) Form S-3 Demand Registration. Notwithstanding the foregoing, if the Company at
any time qualifies to register Common Stock under the Securities Act by registration
6
on Form S-3
and such registration of Common Stock is expected to generate gross proceeds (before underwriting
discounts and commissions) in an amount equal to or exceeding $20 million:
(i) the Stockholders shall then be entitled to request the registration under
the Securities Act of the Registrable Securities (other than Investor Registrable
Securities) from time to time without regard to number, pursuant to the notice and
other applicable provisions of this Section 2.1, with Registration Expenses
for the first three of such registrations on Form S-3 to be paid by the Company; and
(ii) the Investors shall then be entitled to request the registration under the
Securities Act of the Investor Registrable Securities from time to time without
regard to number, but not to exceed two registrations in any twelve-month period,
pursuant to the notice and other applicable provisions of this Section 2.1,
with Registration Expenses for the first three of such registrations on Form S-3 to
be paid by the Company.
Section 2.2 Incidental Registration.
(a) Right to Include the Registrable Securities. If the Company at any time proposes
to register securities under the Securities Act by registration on Forms ▇-▇, ▇-▇ or S-3 or any
successor or similar form(s) (except registrations on Forms S-4 or S-8 or any successor or similar
forms), whether for sale for its own account or pursuant to another demand for registration granted
any other Person, it will give prompt written notice each such time to the Stockholders of its
intention to do so and of the Stockholders’ rights under this Section 2.2. Upon the
written request of any Stockholder (specifying the Registrable Securities intended to be disposed
of and the intended method of disposition thereof), made within fifteen (15) Business Days after
the receipt of any such notice, the Company will use its best efforts to effect the registration
under the Securities Act of all Registrable Securities which the Company has been so requested to
register by the Stockholders to the extent requisite to permit the disposition (in accordance with
the intended methods thereof as aforesaid) of such Registrable Securities to be so registered (any
Stockholder if giving notice following receipt of such a notice from the Company being herein
referred to as a “Participating Stockholder”). If the Company thereafter determines for
any reason not to register or to delay registration of such securities, the Company, by act of its
Board of Directors, may, at its election, give written notice of such determination to each
Participating Stockholder and, thereupon (i) in the case of a determination not to register,
shall be relieved of the obligation to register such Registrable Securities in connection with
such registration (but not from any obligation of the Company to pay the Registration Expenses in
connection therewith, as provided in Section 2.8), without prejudice, however, to the
rights (if any) of a Stockholder to request that such registration be effected as a registration
under Section 2.1, and (ii) in the case of a determination to delay registration, shall be
permitted to delay registering any Registrable Securities, for the same period as the delay in
registration of such other securities. The Company will pay all Registration Expenses in
connection with registration of Registrable Securities requested pursuant to this Section
2.2.
7
(b) Priority in Incidental Registration Rights in Connection with Registrations for
Company Account. If the registration referred to in Section 2.2(a) is to be an
underwritten primary registration on behalf of the Company, and the managing underwriter(s) advises
the Company in writing that in their good faith opinion such offering would be materially and
adversely affected by the inclusion therein of the total number of Registrable Securities requested
to be included therein by Participating Stockholders under this Agreement, the Company shall
include in such registration: (i) first, all securities the Company proposes to sell for its own
account or, if such registration is pursuant to Section 2.1, all Registrable Securities
requested to be included by the Demand Rights Stockholders, (ii) second, up to the full number of
Registrable Securities requested to be included in such registration by the Preferred Stockholders,
pro rata based on the number of Registrable Securities held by each Preferred Stockholder relative
to the number of Registrable Securities held by all Preferred Stockholders requesting registration,
and (iii) third, up to the full number of Registrable Securities requested to be included in such
registration by the Common Stockholders, pro rata based on the number of Registrable Securities
held by each Common Stockholder relative to the number of Registrable Securities held by all Common
Stockholders requesting registration.
(c) Limitations; Exceptions. The Company shall not be required to effect any
registration of Registrable Securities under this Section 2.2 incidental to the
registration of any of its securities in connection with mergers, acquisitions, exchange offers,
subscription offers, dividend reinvestment plans or stock option or other employee benefit plans.
No Participating Stockholder shall be allowed to participate in any registration pursuant to this
Section 2.2 hereof if the Common Stock is admitted to trading or listed on a national
securities exchange, the Nasdaq Global Market or NASDAQ and such Stockholder is eligible to sell
its Registrable Securities without volume limitations and without an effective registration
statement. No registration of Registrable Securities effected under this Section 2.2 shall
relieve the Company of its obligation to effect registrations of Registrable Securities pursuant to
Section 2.1 hereof.
Section 2.3 Registration Procedures. In connection with the Company’s obligations
pursuant to Sections 2.1 and 2.2 hereof, the Company will use its best efforts to
effect such registrations to permit the sale of Registrable Securities in accordance with the
intended method or methods of disposition thereof, and pursuant thereto the Company will as
expeditiously as possible:
(a) prepare (within ninety (90) days after a request for registration is made to the Company
in the case of a registration pursuant to Section 2.1(a) or (b) and in any event as
soon as possible) and file with the SEC, a registration statement or registration statements on any
appropriate form under the Securities Act, which form shall be available for the sale of the
Registrable Securities by the holders thereof in accordance with the intended method or methods of
distribution thereof, and use its best efforts to cause such registration statement to become
effective and to remain continuously effective for a period of 180 days following the date on which
such registration statement is declared effective, provided that the Company shall have no
obligation to maintain the effectiveness of such registration statement after the sale of all
Registrable Securities registered thereunder;
(b) prepare and file with the SEC such amendments and post-effective amendments to a
registration statement as may be necessary to keep such registration statement
8
effective for the
applicable period, cause the related prospectus to be supplemented by any required prospectus
supplement and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and
comply with the provisions of the Securities Act with respect to the disposition of all securities
covered by such registration statement during the applicable period in accordance with the intended
methods of disposition by a Stockholder or a Participating Stockholder set forth in such
registration statement or supplement to such prospectus;
(c) notify each Stockholder or a Participating Stockholder whose Registrable Securities are to
be covered by the registration statement and the managing underwriters, if any, promptly, and (if
requested by any such Person) confirm such advice in writing, (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, (ii) of
any request by the SEC for amendments or supplements to a registration statement or related
prospectus or for additional information, (iii) of the issuance by the SEC of any stop order
suspending the effectiveness of a registration statement or the initiation of any proceedings for
that purpose, (iv) if at any time the representations and warranties of the Company made as
contemplated by paragraph (l) below cease to be true and correct, (v) of the receipt by the Company
of any notification with respect to the suspension of the qualification of any of the Registrable
Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such
purpose, (vi) of the happening of any event which requires the making of any changes in a
registration statement or related prospectus so that such documents 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 (vii) of the Company’s reasonable
determination that a post-effective amendment to a registration statement would be appropriate;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the
effectiveness of a registration statement, or the lifting of any suspension of the qualification of
any of the Registrable Securities for sale in any jurisdiction, at the earliest possible moment;
(e) if requested by the managing underwriters, a Stockholder or a Participating Stockholder,
immediately incorporate in a prospectus supplement or post-effective amendment such information as
the managing underwriters, the Stockholders and the Participating Stockholders agree should be
included therein relating to the sale and distribution of Registrable Securities, including,
without limitation, information with respect to the number of Registrable Securities being sold to
such underwriters, the purchase price being paid therefor
by such underwriters and with respect to any other terms of the underwritten (or best efforts)
offering of the Registrable Securities to be sold in such offering; make all required filing of
such prospectus supplement or post-effective amendment as soon as notified of the matters to be
incorporated in such prospectus supplement or post-effective amendment; and supplement or make
amendments to any registration statement if requested by a Stockholder, a Participating Stockholder
or any underwriter of such Registrable Securities;
(f) furnish to each Stockholder and each Participating Stockholder whose Registrable
Securities are covered by the Registration Statement and each managing underwriter, without charge,
at least one conformed copy of the registration statement or statements and any
9
post-effective
amendment thereto, including financial statements and schedules, all documents incorporated therein
by reference and all exhibits (including those incorporated by reference);
(g) deliver to each Stockholder whose Registrable Securities are covered by the registration
statement, each other Participating Stockholder and the underwriters, if any, without charge, as
many copies of the prospectus or prospectuses (including each preliminary prospectus) and any
amendment or supplement thereto and such other documents as such Persons may reasonably request;
and consents to the use of such prospectus or any amendment or supplement thereto by each
Stockholder, Participating Stockholder and the underwriters, if any, in connection with the
offering and sale of the Registrable Securities covered by such prospectus or any amendment or
supplement thereto;
(h) prior to any public offering of Registrable Securities, use its best efforts to register
or qualify or cooperate with each Stockholder whose Registrable Securities are covered by such
registration statement, each other Participating Stockholder, the underwriters, if any, and their
respective counsel in connection with the registration or qualification of such Registrable
Securities for offer and sale under the securities or blue sky laws of such jurisdictions as each
Stockholder, each Participating Stockholder, or any underwriter reasonably requests in writing;
keep each such registration or qualification effective during the period such registration
statement is required to be kept effective and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by
the applicable registration statement; provided that the Company will not be required to qualify
generally to do business in any jurisdiction where it is not then so qualified or to take any
action which would subject it to general service of process in any such jurisdiction where it is
not then so subject;
(i) cooperate with each Stockholder whose Registrable Securities are covered by such
registration statement, each Participating Stockholder and the managing underwriters, if any, to
facilitate the timely preparation and delivery of certificates representing Registrable Securities
to be sold and not bearing any restrictive legends unless required by applicable law; and enable
such Registrable Securities to be in such denominations and registered in such names as the
managing underwriters may request at least two Business Days prior to any sale of Registrable
Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable
registration statement to be registered with or approved by, and to cause the transaction
contemplated by the registration to be approved by, such other Governmental
Authorities (including, where necessary, the FCC) as may be necessary to consummate the
disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(vi) above, prepare
a supplement or post-effective amendment to the applicable registration statement or related
prospectus or any document 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, such prospectus will not contain any untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein not misleading;
10
(l) enter into such agreements (including an underwriting agreement) and take all such other
actions in connection therewith in order to expedite or facilitate the disposition of such
Registrable Securities and in such connection, whether or not an underwriting agreement is entered
into and whether or not the registration is an underwritten registration, (i) make such
representations and warranties to each Stockholder whose Registrable Securities are covered by such
registration statement and each other Participating Stockholder with respect to the registration
statement, prospectus and documents incorporated by reference, if any, in form, substance and scope
as are customarily made by issuers to underwriters in underwritten offerings and confirm the same
if and when requested; (ii) furnish to each such Stockholder and each other Participating
Stockholder an opinion of counsel for the Company addressed to each such Stockholder and dated the
date of the closing under the underwriting agreement (if any) (or if such offering is not
underwritten, dated the effective date of the registration statement), and (iii) use its best
efforts to furnish to each such Stockholder and each other Participating Stockholder a “cold
comfort” letter addressed to each such Stockholder and signed by the independent public accountants
who have audited the Company’s financial statements included in such registration statement, in
each such case covering substantially the same matters with respect to such registration statement
(and the prospectus included therein) as are customarily covered in opinions of issuer’s counsel
and in accountants’ letters delivered to underwriters in underwritten public offerings of
securities and such other matters as each such Stockholder and each other Participating Stockholder
may reasonably request and, in the case of such accountants’ letter, with respect to events
subsequent to the date of such financial statements; and (vi) the Company shall deliver such
documents and certificates as may be requested by each such Stockholder, each Participating
Stockholder and the managing underwriters, if any, to evidence compliance with this clause (l) and
with any customary conditions contained in the underwriting agreement or other agreement entered
into by the Company; all of the above to be done at each closing under such underwriting or similar
agreement or as and to the extent required thereunder;
(m) otherwise use its best efforts to comply with all applicable rules and regulations of the
SEC and make generally available to its security holders earnings statements satisfying the
provisions of Section 11(a) of the Securities Act, as soon as reasonably practicable after the end
of any 12-month period (i) commencing at the end of any fiscal quarter in which Registrable
Securities are sold to underwriters in a firm or best efforts underwritten offering and (ii)
beginning with the first day of the Company’s first fiscal quarter next succeeding each sale of
Registrable Securities after the effective date of a registration statement, which statements shall
cover said 12-month periods; and
(n) use its best efforts to cause all Registrable Securities covered by each registration to
be listed on each securities exchange and inter-dealer quotation system on which a class of common
equity securities of the Company is then listed and to pay all fees and expenses in connection
therewith.
The Company may require each Stockholder whose Registrable Securities are covered by a registration
statement and each other Participating Stockholder to furnish to the Company such information
regarding itself and the distribution of such Registrable Securities as the Company may from time
to time reasonably request in writing in order to comply with the Securities Act, and each such
Person agrees to notify the Company as promptly as practicable of any inaccuracy or change in
information it has previously furnished to the Company in writing or of the
11
happening of any event,
in either case as a result of which any prospectus relating to such registration contains an untrue
statement of a material fact regarding such Person or the distribution of such Registrable
Securities or omits to state any material fact regarding such Person or the distribution of such
Registrable Securities required to be stated therein or necessary to make the statement therein not
misleading in light of the circumstances then existing, and to promptly furnish to the Company any
additional information required to correct and update any previously furnished information or
required such that such prospectus shall not contain, with respect to such Person or the
distribution of such Registrable Securities, any 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 in light of the circumstances then existing. Each such Stockholder and each
Participating Stockholder agrees that, upon receipt of any notice from the Company of the happening
of any event of the kind described in Sections 2.3(c)(ii), (iii), (v),
(vi) or (vii) hereof, such Stockholder will forthwith discontinue disposition of
such Registrable Securities covered by such registration statement or prospectus until such
Stockholder’s receipt of the copies of the supplemented or amended prospectus relating to such
registration statement or prospectus, 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 additional or
supplemental filings which are incorporated by reference in such prospectus, and, if so directed by
the Company, such Stockholder will deliver to the Company (at the Company’s expense) all copies,
other than permanent file copies then in such Person’s possession, of the prospectus covering the
Registrable Securities current at the time of receipt of such notice.
Section 2.4 Underwritten Offerings.
(a) Demand Underwritten Offerings. In any offering pursuant to a registration
requested under Section 2.1 which is to be effected as a firm commitment underwritten
offering, sales shall be made through a nationally recognized investment banking firm (or syndicate
managed by such a firm) selected by the holders of a majority of the Registrable Securities of the
Stockholders participating in such registration and reasonably satisfactory to the Board of
Directors. The Company shall enter into an underwriting agreement which shall be reasonably
satisfactory in form and substance to the holders of a majority of the Registrable Securities held
by the Stockholders participating in such registration and which shall contain representations,
warranties and agreements (including indemnification agreements to the effect and to the extent
provided in Section 2.7) as are customarily included by an issuer in
underwriting agreements with respect to secondary distributions. The Stockholders
participating in such registration shall be parties to such underwriting agreement and the
representations and warranties by, and the other agreements on the part of, the Company to and for
the benefit of such underwriters shall also be made to and for the benefit of such Stockholders.
The Stockholders shall not be required to make any representations or warranties to or agreements
with the Company or the underwriters other than representations, warranties or agreements regarding
such Person, such Person’s Registrable Securities and its intended method of distribution and any
other representation required by law.
(b) Incidental Underwritten Offerings. If the Company at any time proposes to
register any of its securities under the Securities Act as contemplated by Section 2.2 and
such securities are to be distributed by or through one or more underwriters, the Company will, if
requested by a Participating Stockholder as provided in
Section 2.2 and subject to the provisions
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of Section 2.2(b), use its best efforts to arrange for such underwriters to
include all the Registrable Securities to be offered and sold by the Participating Stockholders
among the securities to be distributed by underwriters. The Participating Stockholders
participating in the registration shall be party to the underwriting agreement between the Company
and such underwriters and the representations and warranties by, and the other agreements on the
part of, the Company to and for the benefit of such underwriters shall also be made to and for the
benefit of the Participating Stockholders. Except as provided in this sentence, the Participating
Stockholders shall not be required to make any representations or warranties to or agreements with
the Company or the underwriters other than representations, warranties or agreements regarding such
Person, such Person’s Registrable Securities and the intended method of distribution and any other
representation required by law.
Section 2.5 Preparation: Reasonable Investigation. In connection with the
preparation and filing of each registration statement under the Securities Act pursuant to this
Agreement, the Company will give each Stockholder participating in the registration, its
underwriters, and its counsel and accountants and each Participating Stockholder, the opportunity
to participate in the preparation of such registration statement, each prospectus included therein
or filed with the SEC, and each amendment thereof or supplement thereto, and will give each of them
such access to its books and records and such opportunities to discuss the business of the Company
with its officers and the independent public accountants who have certified its financial
statements as shall be necessary, in the opinion of each such Stockholder, each Participating
Stockholder and such underwriters’ counsel, to conduct a reasonable investigation within the
meaning of the Securities Act.
Section 2.6 Limitations, Conditions and Qualifications to Obligations Under
Registration Covenants. The obligations of the Company to cause the Registrable Securities to
be registered under the Securities Act are subject to each of the following limitations, conditions
and qualifications: The Company, by act of its Board of Directors, shall be entitled to postpone
for a reasonable period of time (but not exceeding ninety (90) days during any 12-month period) the
filing or effectiveness of any registration statement otherwise required to be prepared and filed
by it pursuant to Section 2.1 if the Board of Directors of the Company determines, in its
reasonable
judgment, that (a) the Company is in possession of material information that has not been disclosed
to the public and the Board of Directors of the Company reasonably deems it to be advisable not to
disclose such information at such time in a registration statement or (b) such registration and
offering would interfere with any financing, acquisition, corporate reorganization or other
material transaction involving the Company and its Subsidiaries, taken as a whole, and, in any such
case, the Company promptly gives each Stockholder written notice of such determination containing a
general statement of the reasons for such postponement and an approximation of the anticipated
delay. If the Company shall so postpone the filing of a registration statement, the holders of a
majority of the Registrable Securities covered by such registration statement shall have the right
to withdraw the request for registration by giving written notice of withdrawal and, in the event
of such withdrawal, such demand for registration related to the withdrawn registration statement
shall not be counted for purposes of the demands for registration to which the Stockholders are
entitled pursuant to Section 2.1 hereof.
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Section 2.7 Indemnification.
(a) Indemnification by the Company. In the event of any registration of any
Registrable Securities under the Securities Act, the Company will, and hereby does, indemnify and
hold harmless, to the fullest extent permitted by law, the Stockholders and the Participating
Stockholders, their respective directors, officers, agents, Affiliates, each other Person who
participates as an underwriter in the offering or sale of such securities and each other Person, if
any, who controls a Stockholder, a Participating Stockholder or any such underwriter within the
meaning of the Securities Act, against any and all judgments, fines, penalties, charges, costs,
amounts paid in settlement, losses, claims, damages, liabilities, expenses, or attorney fees, joint
or several, incurred in investigating, preparing or defending any action, claim, suit, inquiry,
proceeding, investigation or appeal taken from the foregoing by or before any court or
governmental, administrative or other regulatory agency, body or SEC, whether pending or
threatened, whether or not an indemnified party is or may be a party thereto, including interest on
the foregoing (“Indemnified Damages”), to which they or any of them may become subject
under the Securities Act or any other statute or common law, insofar as any such Indemnified
Damages arise out of or are based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in the registration statement relating to the sale of such securities or
any post-effective amendment thereto or in any filing made in connection with the qualification of
the offering under blue sky or other securities laws of jurisdictions in which the Registrable
Securities are offered (“Blue Sky Filing”), or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not misleading or (ii) any
untrue statement or alleged untrue statement of a material fact contained in any preliminary
prospectus, if used prior to the effective date of such registration statement (unless such
statement is corrected in the final prospectus and the Company has previously furnished copies
thereof to any Stockholder or Participating Stockholder seeking such indemnification and the
underwriters), or contained in the final prospectus (as amended or supplemented if the Company
shall have filed with the SEC any amendment thereof or supplement thereto) if used within the
period during which the Company is required to keep the registration statement to which such
prospectus relates current, or the omission or alleged omission to state therein (if so used) a
material fact
necessary in order to make the statements therein, in light of the circumstances under which
they were made, not misleading; provided, however, that the indemnification
agreement contained herein shall not apply to such Indemnified Damages to a particular Person to be
indemnified hereunder arising out of, or based upon, any such untrue statement or alleged untrue
statement, any such omission or alleged omission, if such statement or omission was made in
reliance upon and in conformity with written information furnished to the Company by such Person
stating that it is for use in connection with preparation of the registration statement, any
preliminary prospectus or final prospectus contained in the registration statement, any such
amendment or supplement thereto or any Blue Sky Filing.
Such indemnity shall remain in full force and effect regardless of any investigation made by
or on behalf of a Stockholder, a Participating Stockholder or any such director, officer, agent,
Affiliate, underwriter or controlling Person and shall survive the Transfer of such securities by a
Stockholder or Participating Stockholder.
(b) Indemnification by a Stockholder. The Company may require, as a condition to
including the Registrable Securities of a Stockholder or a Participating Stockholder in any
registration statement filed pursuant to Section 2.1 or 2.2, that the Company shall
have
14
received an undertaking satisfactory to it from such Stockholder or such Participating
Stockholder severally and not jointly (in the same manner and to the same extent as each other
Stockholder or Participating Stockholder) to indemnify and hold harmless (in the same manner and to
the same extent as set forth in subdivision (a) of this Section 2.7) the Company, its
officers and directors and each officer of the Company and each other Person, if any, who controls
the Company within the meaning of the Securities Act with respect to any untrue statement or
alleged untrue statement in, or omission or alleged omission from, such registration statement, any
preliminary prospectus or final prospectus contained therein, or any amendment or supplement
thereto, if such statement or omission was made in reliance upon and in conformity with written
information such Stockholder or such Participating Stockholder furnished to the Company through an
instrument duly executed by him specifically stating that it is for use in the preparation of such
registration statement, preliminary prospectus, final prospectus, amendment or supplement, provided
that such Stockholder or Participating Stockholder shall not indemnify the Company with respect to
any such untrue statement or alleged untrue statement or omission or alleged omission which was
subsequently corrected with information (contained in a writing in compliance with the requirements
of this paragraph timely delivered to the Company) to be included in an amendment or supplement to
such registration statement, preliminary prospectus or final prospectus, if such amendment or
supplement would have avoided the liability otherwise subject to indemnification by such
Stockholder or Participating Stockholder and the Company failed to deliver such amendment or
supplement as necessary to avoid such liability. Such indemnity shall remain in full force and
effect, regardless of any investigation made by or on behalf of the Company or any such director,
officer or controlling Person and shall survive the Transfer of such securities by the Stockholder
or the Participating Stockholder to whom it relates. In no event shall any indemnity paid by a
Stockholder or a Participating Stockholder to the Company or any other Person indemnified pursuant
to Section 2.7(b) (or to whom contribution is paid pursuant to Section 2.7(e)), or
otherwise, exceed individually or in the aggregate the proceeds (net of all applicable fees paid by
such indemnifying party) received by such indemnifying party in such offering.
(c) Notices of Claims, etc. Promptly after receipt by an indemnified party of notice
of the commencement of any action or proceeding involving a claim referred to in the preceding
subdivisions of this Section 2.7, such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party, give written notice to the latter of the
commencement of such action, provided that the failure of any indemnified party to give notice as
provided herein shall not relieve the indemnifying party of its obligations under the preceding
subdivisions of this Section 2.7, except to the extent that the indemnifying party is
actually prejudiced by such failure to give notice. In case any such action is brought against an
indemnified party, the indemnifying party shall be entitled to participate in and, unless in such
indemnified party’s reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim, 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 liable to such indemnified party for any legal or other expenses subsequently incurred
by the latter in connection with the defense thereof other than reasonable costs of investigation.
If, in the reasonable judgment of the counsel to the indemnified party, having common counsel with
an indemnifying party could result in a conflict of interest because of
15
different or additional
defenses that may be available to the indemnified party, then such indemnified party may employ at
the indemnifying party’s expense separate counsel to represent or defend such indemnified party in
such action, it being understood, however, that the indemnifying party shall not be liable for the
reasonable fees and expenses of more than one separate firm of attorneys at any time for all such
indemnified parties (in addition to local counsel) in such action or group of related actions
arising out of the same facts or circumstances. In the event that the indemnifying party advises
an indemnified party that it will contest a claim for indemnification hereunder, or fails, within
30 days of receipt of any indemnification notice to notify, in writing, such person of its election
to defend, settle or compromise, at its sole cost and expense, any action, proceeding or claim (or
discontinues its defense at any time after it commences such defense), then the indemnified party
may, at its option, defend, settle or otherwise compromise or pay such action or claim. In any
event, unless and until the indemnifying party elects in writing to assume and does so assume the
defense of any such claim, proceeding or action, the indemnified party’s costs and expenses arising
out of the defense, settlement or compromise of any such action, claim or proceeding shall be
losses subject to indemnification hereunder. The indemnified party shall cooperate fully with the
indemnifying party in connection with any negotiation or defense of any such action or claim by the
indemnifying party and shall furnish to the indemnifying party all information reasonably available
to the indemnified party which relates to such action or claim. The indemnifying party shall keep
the indemnified party fully apprised at all times as to the status of the defense or any settlement
negotiations with respect thereto. If the indemnifying party elects to defend any such action or
claim, then the indemnified party shall be entitled to participate in such defense with counsel of
its choice at its sole cost and expense. If the indemnifying party does not assume such defense,
the indemnified party shall keep the indemnifying party apprised at all times as to the status of
the defense; provided, however, that the failure to keep the indemnifying party so
informed shall not affect the obligations of the indemnifying party hereunder. Except as provided
above with respect to contested indemnification claims and failures by an indemnifying party to
act, no indemnifying party shall be liable for any settlement of any action, claim or
proceeding effected without its written consent, provided, however, that the
indemnifying party shall not unreasonably withhold, delay or condition its consent. No
indemnifying party shall, without the consent of the indemnified party (which consent shall not be
unreasonably withheld, delayed or conditioned), consent to entry of any judgment or enter into any
settlement or other compromise which does not include as an unconditional term thereof the giving
by the claimant or plaintiff to such indemnified party of a release from all liability in respect
to such claim or litigation. Following indemnification as provided for hereunder, the indemnifying
party shall be subrogated to all rights of the indemnified party with respect to all third
parties, firms or corporations relating to the matter for which indemnification has been made.
(d) Indemnification Payments. The indemnification required by this Section
2.7 shall be made by periodic payments of the amount thereof during the course of the
investigation or defense, as and when bills are received or Indemnified Damages are incurred.
(e) Contribution. If the indemnification provided for in this Section 2.7,
shall for any reason be held by a court to be unavailable to an indemnified party under
subparagraph (a) or (b) hereof in respect of any Indemnified Damages, then, in lieu
of the amount paid or payable under subparagraph (a) or (b) hereof, the indemnified
party and the indemnifying party under subparagraph (a) or (b) hereof shall
contribute to the aggregate Indemnified Damages, in
16
such proportion as is appropriate to reflect
the relative fault of the indemnifying party and the indemnified party with respect to the
statements or omissions which resulted in such Indemnified Damages, as well as any other relevant
equitable considerations. 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 obligations of Stockholders and Participating
Stockholders to contribute as provided in this subparagraph (e) are several in proportion
to the relative value of their respective Registrable Securities covered by such registration
statement, and are not joint. In addition, no person shall be obligated to contribute hereunder
any amounts in payment for any settlement of any action or claim effected without such Person’s
consent, which consent shall not be unreasonably withheld, delayed or conditioned.
(f) Other Rights Liabilities. The indemnity agreements contained herein shall be in
addition to (i) any cause of action or similar right of the indemnified party against the
indemnifying party or others, and (ii) any liabilities the indemnifying party may be subject to
pursuant to the law.
(g) Other Indemnification and Contribution. Indemnification and contribution similar
to that specified in the preceding subdivisions of this Section 2.7 (with appropriate
modifications) shall be given by the Company and each Stockholder whose Registrable Securities
included in a registration and each other Participating Stockholder with respect to any required
registration or other qualification of Registrable Securities under any federal or state law or
regulation of any Governmental Authority other than the Securities Act.
Section 2.8 Registration Expenses. The Company will pay all Registration Expenses
(as defined below) in connection with (i) any demand registrations pursuant to Section
2.1(a) and (b), (ii) the first three registrations on Form
S-3 of Registrable Securities pursuant to Section 2.l(h)(i) and (iii) the first three
registrations on Form S-3 of Investor Registrable Securities pursuant to Section
2.1(h)(ii); provided that in the case where a registration statement under Section
2.2 fails to become effective or fails to become effective as provided in Section
2.1(d), the Company shall additionally pay the fees and expenses of the Participating
Stockholders’ counsel and of any other Person retained by them. Registration Expenses include all
expenses incident to the Company’s performance of or compliance with this Agreement, including,
without limitation, all registration and filing fees, including fees with respect to filings
required to be made with the SEC and the National Association of Securities Dealers, Inc., fees and
expenses of compliance with securities or blue sky laws, including, without limitation, reasonable
fees and disbursements of counsel for the underwriters, all word processing, duplicating and
printing expenses, messenger, telephone and delivery expenses, and fees and disbursements of
counsel of the Company, one counsel for the participating Stockholders (selected by the holders of
a majority of the Registrable Securities of such participating Stockholders) and of all independent
certified public accountants of the Company (including the expenses of any special audit and “cold
comfort” letters required by or incident to such performance), underwriters fees and disbursements
(excluding underwriting discounts and commissions, SEC or fees of underwriters, selling brokers,
dealer managers or similar securities industry professionals relating to the distribution of the
Registrable Securities) securities acts liability insurance if the Company so desires, fees and
expenses of other Persons retained by the Company (all such expenses being herein called
“Registration Expenses”). Registration
17
Expenses shall not include underwriting discounts
and commissions and transfer taxes, if any, and fees and expenses of any counsel to Participating
Stockholders and other expenses of Participating Stockholders. Except as otherwise provided above,
the Company will also pay its internal expenses (including, without limitation, all salaries and
expenses of its officers and employees performing legal or accounting duties), the expense of any
annual audit, the fees and expenses incurred in connection with the listing of the securities to be
registered on any securities exchange, rating agency fees and the fees and expenses of any Person,
including special experts, retained by the Company.
Section 2.9 Certain Rights of Stockholders if Named in a Registration Statement.
If any statement contained in a registration statement under the Securities Act refers to a
Stockholder or a Participating Stockholder by name or otherwise as the holder of any securities of
the Company, then a Stockholder or a Participating Stockholder shall have the right to require the
insertion therein of language, in form and substance reasonably satisfactory to it and the Company,
to the effect that its holdings do not necessarily make it a “controlling person” of the Company
within the meaning of the Securities Act and is not to be construed as a recommendation of the
investment quality of the Company’s securities covered thereby.
Section 2.10 Rule 144. If the Common Stock is admitted to trading or listed on a
national securities exchange, the Nasdaq National Market or NASDAQ, the Company shall take all
actions and file all such information, documents and reports as shall be required to enable a
Stockholder to sell its Registrable Securities without registration under the Securities Act within
the limitation of the exemptions provided by Rule 144 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.
Section 2.11 Registration Rights. The Company covenants that it will not grant any
right of registration under the Securities Act relating to any of its shares of capital stock or
other securities to any Person other than pursuant to this Agreement, unless (i) the rights so
granted to another Person do not limit or restrict the Stockholders’ right to request four demand
registrations as provided for in Section 2.1 hereof at such times and covering such amount
of Registrable Securities as the Stockholders determine (except as such timing or amount of
Registrable Securities may otherwise be limited by the express terms of this Agreement) and (ii)
the rights so granted to another Person do not limit or restrict the rights granted pursuant to
Section 2.1 or Section 2.2 hereof to a Stockholder to have such Registrable
Securities included in any registration by the Company under the Securities Act made pursuant to a
demand by the Stockholders or by the Company of its securities for its own account (except as such
rights are otherwise expressly limited by the terms of this Agreement).
Section 2.12 Assignment of Rights. The rights of the Stockholders set forth in
this ARTICLE 2 are transferable to each Transferee of shares of Registrable Securities.
Each such Transferee must consent in writing to be bound by the terms and conditions of this
Agreement in order to acquire the rights granted hereunder by executing a copy of the Joinder
Agreement.
Section 2.13 Limitations on Sale or Distribution. Each Stockholder hereby
agrees not to effect any public sale or distribution, including any sale pursuant to Rule 144 under
the Securities Act, of any Registrable Securities, and not to effect any such public sale or
distribution
18
of any other equity security of the Company or of any security convertible into or
exchangeable or exercisable for any equity security of the Company (other than as part of such
underwritten public offering) within 180 days after the effective date of the registration
statement related to the IPO. The Stockholders agree to execute any lockup agreement containing
the foregoing terms, and such other customary and reasonable restrictions on resale, as may be
required by such applicable underwriter.
ARTICLE 3 GENERAL
Section 3.1 Amendments, Waivers and Consent. For the purposes of this Agreement
and all agreements executed pursuant hereto, no course of dealing between or among any of the
parties hereto and no delay on the part of any party hereto in exercising any rights hereunder or
thereunder shall operate as a waiver of the rights hereof and thereof. This Agreement may not be
amended or modified or any provision hereof waived without the joint written consent of (a) the
Company, (b) Stockholders holding a majority of the shares of Common Stock, and (c) Preferred
Stockholders holding not less than 662/3% of the shares of Common Stock issued upon conversion of the
Preferred Stock then held by such Preferred Stockholders with the Preferred Stockholders voting
together as a single class; provided that any party may waive any provision hereof intended
for its benefit by written consent; provided, further, that the observance of any
term hereof relating to the rights of the
Investors may be amended, modified or waived (either retroactively or prospectively) with (and only
with) the written consent of the Investors.
Section 3.2 Governing Law. This Agreement shall be deemed to be a contract made
under, and shall be construed in accordance with, the laws of the State of Delaware, without giving
effect to conflict of laws principles thereof.
Section 3.3 Section Headings. The descriptive headings in this Agreement have been
inserted for convenience only and shall not be deemed to limit or otherwise affect the construction
of any provision thereof or hereof.
Section 3.4 Effectiveness; Binding Effect. This Agreement amends, restates and
replaces in its entirety the Stockholders Agreement and is binding on all the parties to the
Stockholders Agreement, and the failure of one or more parties to the Stockholders Agreement to
sign this Agreement shall not affect such effectiveness. Except as otherwise provided herein, this
Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties
hereto and their respective successors and permitted assigns.
Section 3.5 Additional Parties. Any person who purchases or otherwise acquires
Common Stock from the Company or a Stockholder prior to the consummation of the IPO, who has joined
as a party to the Stockholders Agreement by executing a signature page in the form attached
thereto for execution by Stockholders, shall be added to Schedule I and shall be considered a
Stockholder for purposes of this Agreement. In addition, any person who is the Transferee of
Registrable Securities and who executes a Joinder Agreement in accordance with Section 2.12 shall
be added to Schedule I and shall be considered a Stockholder for purposes of this Agreement.
19
Section 3.6 Notices and Demands. Any notice, demand or other communication which
is required or provided to be given under this Agreement shall be in writing and shall be deemed to
have been sufficiently given and received for all purposes when delivered by hand, electronic mail
transmission (including, without limitation, electronic mail attachment), telecopy, telex or other
method of facsimile, or five days after being sent by certified or registered mail, postage and
charges prepaid, return receipt requested, or two days after being sent by overnight delivery
providing receipt of delivery. Any such notice, demand, or other communication must be sent as
follows:
if to the Company, to:
MetroPCS Communications, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
email: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
email: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
and
MetroPCS Communications, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Legal Department
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
email: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Legal Department
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
email: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
with a copy to (which shall not constitute notice):
▇▇▇▇▇ ▇▇▇▇▇ L.L.P.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
email: ▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
email: ▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
if to a Stockholder, to:
the mailing address, telecopy number and/or email address for notice as set forth in
the books and records of the Company,
20
or, in the case of any party, at such other address, telecopy number and/or email address as such
party shall specify in a written notice delivered to all other parties to this Agreement in
accordance with this Section.
Section 3.7 Remedies; Severability. It is specifically understood and agreed that
any breach of the provisions of this Agreement by any Person subject hereto will result in
irreparable injury to the other parties hereto, that the remedy at law alone will be an inadequate
remedy for such breach, and that, in addition to any other remedies which they may have, such other
parties may enforce their respective rights by actions for specific performance (to the extent
permitted by law). The Company may refuse to recognize any unauthorized Transferee as one of its
stockholders for any purpose, including without limitation, for purposes of the registration rights
provided in this Agreement, until the relevant party or parties have complied with all applicable
provisions of this Agreement or the Stockholders Agreement (if the Transfer occurred prior to the
date this Agreement becomes effective). Whenever possible, each provision of this Agreement shall
be interpreted in such a
manner as to be effective and valid under applicable law, but if any provision of this Agreement
shall be deemed prohibited, invalid or illegal under such applicable law, such provision shall be
ineffective to the extent of such prohibition, invalidity or illegality, and such prohibition,
invalidity or illegality shall not invalidate the remainder of such provision or the other
provisions of this Agreement.
Section 3.8 Integration. This Agreement, including the exhibits, documents and
instruments referred to herein or therein, constitutes the entire agreement, and supersedes all
other prior and contemporary agreements and understandings, both written and oral, among the
parties with respect to the subject matter hereof and amends and restates in its entirety the
Stockholders Agreement.
Section 3.9 Termination. The provisions of this Agreement shall terminate and be
of no further force or effect upon the date which none of the Stockholders party to this Agreement
hold any shares of Registrable Securities or the parties mutually agree to terminate.
Section 3.10 Confidential Information.
(a) For the purposes of this Section 3.10, “Confidential Information” means all
information regarding the Company or any Subsidiary or Affiliate thereof or any other confidential
information, disclosed, provided, or made known to any Stockholder by the Company, its affiliates
or Subsidiaries or by a third party who has confidentiality obligations with the Company or its
Subsidiaries, provided that such term does not include information that (i) was publicly
known or otherwise known to such Stockholder prior to the time of such disclosure, (ii)
subsequently becomes publicly known through no act or omission by such Stockholder or any person
acting on such Stockholder’s behalf, or (iii) otherwise becomes known to such Stockholder other
than through disclosure by the Company or any Subsidiary or Affiliate thereof without a duty to
keep it confidential.
(b) Each Stockholder will maintain the confidentiality of such Confidential Information in
accordance with procedures adopted by it in good faith to protect confidential information of third
parties delivered to it, provided that such Stockholder may deliver or disclose Confidential
Information to (i) its directors, trustees, officers, employees, agents,
21
attorneys and Affiliates
on a need to know basis (to the extent such disclosure reasonably relates to the administration of
the investment represented by the shares of the Company’s capital stock held by such Stockholder),
(ii) its financial advisors, indemnitees, and other professional advisors who agree to hold
confidential the Confidential Information substantially in accordance with the terms of this
Section 3.10, (iii) any other Stockholder party to this Agreement, (iv) any Governmental
Authority having jurisdiction over such Stockholder and which has valid legal authority to demand
the Confidential Information, or (v) any other person to which such delivery or disclosure may be
necessary or appropriate (x) to effect compliance with any law, rule, regulation or order
applicable to such Stockholder, (y) in response to any subpoena or other legal process, or (z) in
connection with any litigation to which such Stockholder is a party.
[SIGNATURE PAGE FOLLOW]
22
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above
written.
| COMPANY: | ||||||||
| METROPCS COMMUNICATIONS, INC. | ||||||||
| By: | ||||||||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||||||
| Title: | President and Chief Executive Officer | |||||||
Signature Page To
Registration Rights Agreement
Registration Rights Agreement
| STOCKHOLDERS: | ||||||||
| Entities: | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| Individuals: | ||||||||
| By: | ||||||||
| Name: | ||||||||
Signature Page To
Registration Rights Agreement
Registration Rights Agreement
SCHEDULE I
STOCKHOLDERS
I-1