EXHIBIT 6
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REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made
and entered into as of ___________, 2007, by and among SunCom Wireless
Holdings, Inc., a Delaware corporation (the "COMPANY"), and the purchasers
signatory hereto (each a "PURCHASER" and collectively, the "PURCHASERS").
This Agreement is made pursuant to that certain Exchange
Agreement, dated as of January 31, 2007, among the Company, SunCom Wireless,
Inc. (f/k/a Triton PCS, Inc.) ("WIRELESS"), SunCom Wireless Investment Company
LLC, a Delaware limited liability company ("SUNCOM INVESTMENT"), and the
Purchasers (the "EXCHANGE AGREEMENT"), pursuant to which the Company is
delivering up to 48,304,431 shares of its Class A common stock, par value $0.01
per share ("COMMON STOCK"), to SunCom Investment, which will in turn be
exchanged by SunCom Investment for an aggregate of $302,115,000 principal
amount of 9-3/8% Senior Subordinated Notes due 2011 and $377,139,000 principal
amount of 8-3/4% Senior Subordinated Notes due 2011 of SunCom Wireless, Inc.,
our indirect wholly-owned subsidiary, which are currently held by the
Purchasers, upon the terms and subject to the conditions set forth therein.
The Company and the Purchasers hereby agree as follows:
1. DEFINITIONS. Capitalized terms used and not otherwise defined
herein that are defined in the Exchange Agreement shall have the meanings given
such terms in the Exchange Agreement. As used in this Agreement, the following
terms shall have the respective meanings set forth in this SECTION 1:
"ADVICE" shall have the meaning set forth in SECTION 5(A).
"AGREEMENT" shall have the meaning set forth in the Preamble.
"BUSINESS DAY" shall mean any day except Saturday, Sunday or
any other day on which commercial banks in the Commonwealth of Pennsylvania
and/or the State of New York are authorized by law or other governmental action
to close.
"COMMISSION" means the Securities and Exchange Commission.
"COMMON STOCK" shall have the meaning set forth in the
Preamble.
"COMPANY" shall have the meaning set forth in the Preamble.
"DISCLOSURE PACKAGE" means, with respect to any offering of
securities, (i) the preliminary prospectus, (ii) each Free Writing Prospectus
and (iii) all other information, in each case, that is deemed under Rule 159
promulgated under the Securities Act to have been conveyed to purchasers of
securities at the time of sale of such securities (including a contract of
sale).
"EFFECTIVE DATE" means the date that the Registration Statement
filed pursuant to SECTION 2(A) or 2(B) is first declared effective by the
Commission.
"EFFECTIVENESS DATE" means (a) with respect to the initial
Registration Statement required to be filed pursuant to SECTION 2(A), the
earlier of: (a)(i) the 120th day following the Closing Date and (ii) the fifth
Trading Day following the date on which the Company is notified by the
Commission that the initial Registration Statement will not be reviewed or is
no longer subject to further review and comments, and (b) with respect to any
additional Registration Statements that may be required pursuant to SECTION
2(B), the 120th day following the date on which the Company first knows, or
reasonably should have known, that such additional Registration Statement is
required under such Section; PROVIDED, HOWEVER, that in the event the Company
shall have entered into a definitive agreement with respect to a Sale
Transaction or such Sale Transaction has become "probable" (within the meaning
Regulation S-X) prior to the effectiveness of an initial Registration Statement
pursuant to SECTION 2(A) and before the Effectiveness Date, the Effectiveness
Date shall be extended by an additional 60 days.
"EFFECTIVENESS PERIOD" shall have the meaning set forth in
SECTION 2(A).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"EXCHANGE AGREEMENT" shall have the meaning set forth in the
Preamble.
"FILING DATE" means (a) with respect to the initial
Registration Statement required to be filed pursuant to SECTION 2(A), the 20th
day following the Closing Date, and (b) with respect to any additional
Registration Statements that may be required pursuant to SECTION 2(B), the 30th
day following the date on which the Company first knows, or reasonably should
have known, that such additional Registration Statement is required under such
Section; PROVIDED, HOWEVER, that in the event the Company shall have entered
into a definitive agreement with respect to a Sale Transaction or such Sale
Transaction has become "probable" (within the meaning Regulation S-X) prior to
the filing of an initial Registration Statement pursuant to SECTION 2(A) and
before the Filing Date, the Filing Date shall be extended by an additional 60
days.
"FREE WRITING PROSPECTUS" means any "free writing prospectus"
as defined in Rule 405 promulgated under the Securities Act.
"INDEMNIFIED PARTY" shall have the meaning set forth in SECTION
5(C).
"INDEMNIFYING PARTY" shall have the meaning set forth in
SECTION 5(C).
"LOSSES" shall have the meaning set forth in SECTION 5(A).
"PROCEEDING" means an action, claim, suit, investigation or
proceeding (including, without limitation, an investigation or partial
proceeding, such as a deposition), whether commenced or threatened.
"PROSPECTUS" means (i) the prospectus included in a
Registration Statement (including, without limitation, a prospectus that
includes any information previously omitted from a prospectus filed as part of
an effective registration statement in reliance upon Rule 430A promulgated
under the Securities Act) or (ii) a Free Writing Prospectus, as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Registrable Securities covered by such
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Registration Statement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
"PURCHASER" and "PURCHASERS" shall have the meaning set forth
in the Preamble.
"REGISTRABLE SECURITIES" means as to each Purchaser: (i) the
Shares held by such Purchaser and (ii) any securities issued or issuable upon
any stock split, dividend or other distribution, recapitalization or similar
event with respect to any of the securities referenced in (i) above.
"REGISTRATION STATEMENT" means the initial registration
statement required to be filed in accordance with SECTION 2(A) and any
additional registration statement(s) required to be filed under SECTION 2(B),
including (in each case) the Prospectus, amendments and supplements to such
registration statements or Prospectus, including pre- and post-effective
amendments, all exhibits thereto, and all material incorporated by reference or
deemed to be incorporated by reference in such registration statements.
"RULE 144" means Rule 144 promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
"RULE 415" means Rule 415 promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
"RULE 424" means Rule 424 promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SELLING HOLDER QUESTIONNAIRE" shall have the meaning set forth
in SECTION 2(C).
"SHARES" means the shares of Common Stock beneficially owned by
the Purchasers, including shares of Common Stock issued or issuable to the
Purchasers pursuant to the Exchange Agreement.
"SUNCOM INVESTMENT" shall have the meaning set forth in the
Preamble.
"SUSPENSION PERIOD" shall have the meaning set forth in SECTION
6(E)(II).
"TRADING DAY" means a day on which the principal national
securities exchange or automated quotation system in the United States on which
the Company's Common Stock is listed or quoted or admitted to trading is open
for the transaction of business or, if the Company's Common Stock is not listed
or quoted or admitted to trading on any national securities exchange or
automated quotation system in the United States, any Business Day.
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"TRADING MARKET" means whichever of the New York Stock
Exchange, the American Stock Exchange, The NASDAQ Global Select Market, The
NASDAQ Global Market or The NASDAQ Capital Market, on which the Common Stock is
listed or quoted for trading on the date in question.
2. REGISTRATION.
(a) On or prior to the Filing Date, the Company shall
prepare and file with the Commission a Registration Statement covering the
resale of all Registrable Securities. The Registration Statement shall be on
Form S-3 (except if the Company is not then eligible to register for resale the
Registrable Securities on Form S-3, in which case such registration shall be on
another appropriate form for such purpose). The Company shall use its
commercially reasonable efforts to cause the Registration Statement to be
declared effective under the Securities Act no later than the Effectiveness
Date, and shall use its commercially reasonable efforts to keep the
Registration Statement continuously effective under the Securities Act until
the date which is the earlier of (i) three (3) years after the Effective Date,
(ii) such time as all of the Registrable Securities have been publicly sold by
the Purchasers, or (iii) such time as all of the Registrable Securities may be
sold pursuant to Rule 144(k) (the "EFFECTIVENESS PERIOD"). The Company will use
its commercially reasonable efforts, consistent with the terms of this
Agreement, to remain eligible to use Form S-3 registration or a similar
short-form registration.
(b) If for any reason the Commission does not permit all of
the Registrable Securities to be included in the Registration Statement filed
pursuant to SECTION 2(A), or for any other reason any Registrable Securities
are not included in a Registration Statement filed under this Agreement, or if
the Registration Statement ceases to be effective before the expiration of the
Effectiveness Period, then the Company shall prepare and file as soon as
possible after the date on which the Commission shall indicate as being the
first date or time that such filing may be made, but in any event by its Filing
Date, an additional Registration Statement covering the resale of all
Registrable Securities not already covered by an existing and effective
Registration Statement for an offering to be made on a continuous basis
pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible
to register for resale the Registrable Securities on Form S-3, in which case
such registration shall be on another appropriate form for such purpose). The
Company shall use its commercially reasonable efforts to cause each such
Registration Statement to be declared effective under the Securities Act as
soon as possible but, in any event, no later than its Effectiveness Date, and
shall use its commercially reasonable efforts to keep such Registration
Statement continuously effective under the Securities Act during its entire
Effectiveness Period.
(c) Each Purchaser agrees to furnish to the Company a
completed Questionnaire in the form attached to this Agreement as ANNEX A (a
"SELLING HOLDER QUESTIONNAIRE"). The Company shall not be required to include
the Registrable Securities of a Purchaser in a Registration Statement who fails
to furnish to the Company a fully completed Selling Holder Questionnaire at
least six Trading Days prior to the Filing Date (subject to the requirements
set forth in SECTION 3(A)).
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3. REGISTRATION PROCEDURES
In connection with the Company's registration obligations
hereunder, the Company shall:
(a) Not less than five Trading Days prior to the filing of
a Registration Statement or any related Prospectus or any amendment or
supplement thereto furnish to the Purchasers and Purchasers' counsels copies of
such documents as proposed to be filed, which documents will be subject to the
review of the Purchasers, except for any amendment or supplement or document (a
copy of which has been previously furnished to the Purchasers) which counsel to
the Company shall advise the Company is required to be filed sooner in order to
comply with applicable law, rules and regulations.
(b) (i) Subject to SECTION 6(E), prepare and file with
the Commission such amendments, including post-effective amendments, to each
Registration Statement and the Prospectus used in connection therewith as may
be necessary to keep such Registration Statement continuously effective as to
the applicable Registrable Securities for the Effectiveness Period and prepare
and file with the Commission such additional Registration Statements in order
to register for resale under the Securities Act all of the Registrable
Securities; (ii) cause the related Prospectus to be amended or supplemented by
any required Prospectus supplement, and as so supplemented or amended to be
filed pursuant to Rule 424; (iii) respond reasonably promptly to any comments
received from the Commission with respect to each Registration Statement or any
amendment thereto and, as promptly as reasonably possible provide the
Purchasers true and complete copies of all correspondence from and to the
Commission relating to such Registration Statement that would not result in the
disclosure to the Purchasers of material and non-public information concerning
the Company; and (iv) comply in all material respects with the provisions of
the Securities Act and the Exchange Act with respect to the Registration
Statements and the disposition of all Registrable Securities covered by each
Registration Statement. Additionally, upon the written request of the holders
of at least 15% of the Registrable Securities held by the Purchasers, the
Company shall file such amendments, including post-effective amendments, to
each Registration Statement, or file such Prospecuts supplements as are
required to permit an underwritten offering of the Registrable Securities. Such
underwritten offering shall be on reasonable and customary terms to be agreed
to by the Purchasers and the Company; PROVIDED, that the Purchasers shall have
the right to select the underwriters for such offering, subject to the
agreement of the Company, not to be unreasonably withheld, delayed or
conditioned.
(c) Notify the Purchasers as promptly as reasonably
possible (and, in the case of (i)(A) below, not less than three Trading Days
prior to such filing): (i)(A) when a Prospectus or any Prospectus supplement or
post-effective amendment to a Registration Statement is proposed to be filed;
(B) when the Commission notifies the Company whether there will be a "review"
of such Registration Statement and whenever the Commission comments in writing
on such Registration Statement (the Company shall provide true and complete
copies thereof and all written responses thereto to the Purchasers that would
not result in the disclosure to the Purchasers of material and non-public
information concerning the Company, unless the Purchasers are willing to enter
into a confidentiality agreement covering such non-public information); and (C)
with respect to each Registration Statement or any post-effective amendment,
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when the same has become effective; (ii) of any request by the Commission or
any other Federal or state governmental authority for amendments or supplements
to a Registration Statement or Prospectus or for additional information; (iii)
of the issuance by the Commission of any stop order suspending the
effectiveness of a Registration Statement covering any or all of the
Registrable Securities or the initiation of any Proceedings for that purpose;
(iv) of the receipt by the Company of any notification with respect to the
suspension of the qualification or exemption from qualification of any of the
Registrable Securities for sale in any jurisdiction, or the initiation or
threatening of any Proceeding for such purpose; (v) of the occurrence of any
event or passage of time that makes the financial statements included in a
Registration Statement ineligible for inclusion therein or any statement made
in such Registration Statement or Prospectus or any document incorporated or
deemed to be incorporated therein by reference untrue in any material respect
or that requires any revisions to such Registration Statement, Prospectus or
other documents so that, in the case of such Registration Statement or the
Prospectus, as the case may be, it will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading; and (vi) of the existence of any
fact or the happening of any event, during the Effectiveness Period, that makes
any statement of a material fact made in the Registration Statement, the
Prospectus, any amendment or supplement thereto, untrue, or that requires the
making of additions to or changes in the Registration Statement or the
Prospectus in order to make the statements therein not misleading.
(d) Use its commercially reasonable efforts to avoid the
issuance of, or, if issued, obtain the withdrawal of, (i) any order suspending
the effectiveness of a Registration Statement, or (ii) any suspension of the
qualification (or exemption from qualification) of any of the Registrable
Securities for sale in any jurisdiction.
(e) Upon written request, furnish to each of the
Purchasers, without charge, at least one conformed copy of each Registration
Statement and each amendment thereto and all exhibits promptly after the filing
of such documents with the Commission.
(f) Promptly deliver to each of the Purchasers, without
charge, as many copies of each Prospectus or Prospectuses (including each form
of prospectus) and each amendment or supplement thereto as the Purchasers may
reasonably request. The Company hereby consents to the use of such Prospectus
and each amendment or supplement thereto by the Purchasers in connection with
the offering and sale of the Registrable Securities covered by such Prospectus
and any amendment or supplement thereto.
(g) Prior to any public offering of Registrable Securities,
use its commercially reasonable efforts to register or qualify or cooperate
with the Purchasers in connection with the registration or qualification (or
exemption from such registration or qualification) of such Registrable
Securities for offer and sale under the securities or Blue Sky laws of all
jurisdictions within the United States reasonably requested by a Purchaser
proposing to sell securities in such jurisdiction, to keep each such
registration or qualification (or exemption therefrom) effective during the
Effectiveness Period and to 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 Registration Statements; PROVIDED, that the Company
shall not be required to (i) qualify generally to do business in any
jurisdiction where it is not then so qualified or subject the Company to any
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material tax in any such jurisdiction where it is not then so subject or (ii)
file a general consent to service of process in any such jurisdiction, except
in such jurisdictions where the Company is already subject to service of
process.
(h) Cooperate with the Purchasers to facilitate the timely
preparation and delivery of certificates representing Registrable Securities to
be delivered to a transferee pursuant to the Registration Statements, which
certificates shall be free, to the extent permitted by the Exchange Agreement,
of all restrictive legends, and to enable such Registrable Securities to be in
such denominations and registered in such names as the Purchasers may request.
(i) Upon the occurrence of any event contemplated by
SECTION 3(C)(V), as promptly as reasonably possible, prepare a supplement or
amendment, including a post-effective amendment, to the affected Registration
Statements or a supplement to the related Prospectus or any document
incorporated or deemed to be incorporated therein by reference, and file any
other required document so that, as thereafter delivered, no Registration
Statement nor any Prospectus will contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(j) If requested by the Purchasers, the Company shall cause
the appropriate officers of the Company to (i) prepare and make presentations
at any "road shows" and before analysts and rating agencies, as the case may
be, (ii) take other reasonable actions to obtain ratings for any Registrable
Securities and (iii) otherwise use their reasonable efforts to cooperate as
requested by the underwriters in the offering, marketing or selling of the
Registrable Securities.
(k) The Company shall cause to be furnished to each
Purchaser and to each such underwriter, if any, a signed counterpart, addressed
to such Purchaser or underwriter, of (i) an opinion or opinions of counsel to
the Company and (ii) a comfort letter or comfort letters from the Company's
independent public accountants, each in customary form and covering such
matters of the kind customarily covered by opinions or comfort letters, as the
case may be, as a majority of such Purchasers or the managing underwriter
therefor reasonably requests.
4. REGISTRATION EXPENSES. All fees and expenses incident to the
performance of or compliance with this Agreement by the Company shall be borne
by the Company whether or not any Registrable Securities are sold pursuant to a
Registration Statement. The fees and expenses referred to in the foregoing
sentence (the "REGISTRATION EXPENSES") shall include, without limitation, (i)
all registration and filing fees (including, without limitation, fees and
expenses (A) with respect to filings required to be made with any Trading
Market on which the Common Stock is then listed for trading, and (B) in
compliance with applicable state securities or Blue Sky laws, including
reasonable fees and disbursements of counsel in connection with Blue Sky
qualifications of the securities registered), (ii) fees and disbursements of
counsel for the Company, (iii) fees and expenses of all other Persons retained
by the Company in connection with the consummation of the transactions
contemplated by this Agreement, including and fees and expenses for independent
certified public accountants retained by the Company (including the expenses
relating to any comfort letters or costs associated with the delivery by
independent certified public accountants of any comfort letters requested
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pursuant to Section 3(k)), (iv) expenses in connection with the preparation,
printing, mailing and delivery of any registration statements, prospectuses and
other documents in connection therewith and any amendments or supplements
thereto, (v) security engraving and printing expenses, (vi) fees and expenses
of any special experts retained by the Company in connection with such
registration, (vii) reasonable fees and expenses of one counsel for all of the
Purchasers participating in the offering selected by the Purchasers, (viii)
fees and expenses in connection with any review by the NASD of any underwriting
arrangements or other terms of the offering, and all reasonable fees and
expenses of any "qualified independent underwriter," including the fees and
expenses of any counsel thereto, (ix) reasonable fees and disbursements of
underwriters customarily paid by issuers or sellers of securities, but
excluding any underwriting fees, discounts and commissions attributable to the
sale of Registrable Securities, (x) costs of printing and producing any
agreements among underwriters, underwriting agreements, any "blue sky" or legal
investment memoranda and any selling agreements and other documents in
connection with the offering, sale or delivery of the Registrable Securities,
(xi) transfer agents' and registrars' fees and expenses and the fees and
expenses of any other agent or trustee appointed in connection with such
offering, (xii) reasonable expenses relating to any analyst or investor
presentations or any "road shows" undertaken in connection with the
registration, marketing or selling of the Registrable Securities, and (xiii)
fees and expenses payable in connection with any ratings of the Registrable
Securities, including expenses relating to any presentations to rating
agencies. In addition, the Company shall be responsible for all of its internal
expenses incurred in connection with the consummation of the transactions
contemplated by this Agreement (including, without limitation, all salaries and
expenses of its officers and employees performing legal or accounting duties),
the expense of any annual audit and the fees and expenses incurred in
connection with the listing of the Registrable Securities on any securities
exchange as required hereunder. Notwithstanding anything to the contrary
contained herein, in the event of an underwritten offering of the Registrable
Securities, the Purchasers shall be responsible for any underwriting discounts
or commissions in connection with such offering.
5. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. The Company shall,
notwithstanding any termination of this Agreement, indemnify and hold harmless
the Purchasers, the officers, directors, agents, investment advisors, partners,
members and employees of each of them, each Person who controls any such
Purchaser (within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act) and the officers, directors, agents and employees of each
such controlling Person, to the fullest extent permitted by applicable law,
from and against any and all losses, claims, damages, liabilities, costs
(including, without limitation, reasonable costs of preparation and reasonable
attorneys' fees) and expenses (collectively, "LOSSES"), as incurred, arising
out of or relating to any untrue or alleged untrue statement of a material fact
contained in any Registration Statement, any Prospectus or any form of
prospectus or in any amendment or supplement thereto or in any preliminary
prospectus or otherwise included in the Disclosure Package, or arising out of
or relating to any omission or alleged omission of a material fact required to
be stated therein or necessary to make the statements therein (in the case of
any Prospectus or form of prospectus or supplement thereto, in light of the
circumstances under which they were made) not misleading, except to the extent,
but only to the extent, that (1) such untrue statements or omissions are based
solely upon information regarding such Purchaser furnished in writing to the
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Company by such Purchaser expressly for use therein, or to the extent that such
information relates to such Purchaser or such Purchaser's proposed method of
distribution of Registrable Securities, such Prospectus or such form of
Prospectus or in any amendment or supplement thereto or (2) in the case of an
occurrence of an event of the type specified in SECTION 3(C)(II)-(VI), the use
by such Purchaser of an outdated or defective Prospectus after the Company has
notified such Purchaser in writing that the Prospectus is outdated or defective
and prior to the receipt by such Purchaser of advice in writing (the "ADVICE")
from the Company that the use of the applicable Prospectus may be resumed or an
amended or supplemented Prospectus, but only if and to the extent that
following the receipt of the Advice or the amended or supplemented Prospectus
the misstatement or omission giving rise to such Loss would have been
corrected. The Company shall notify the Purchasers promptly of the institution,
threat or assertion of any Proceeding of which the Company is aware in
connection with the transactions contemplated by this Agreement. The Company
also agrees to indemnify any underwriters of the Registrable Securities, their
directors, officers, employees, stockholders, general partners, limited
partners, members, advisory directors, managing directors and Affiliates (and
directors, officers, employees, stockholders, general partners, limited
partners, members, advisory directors, managing directors and controlling
persons thereof) on substantially the same basis as that of the indemnification
of the Purchasers provided in this Section 5(a) or otherwise on commercially
reasonable terms negotiated on an arm's-length basis with such underwriters
(b) INDEMNIFICATION BY THE PURCHASERS. Each Purchaser shall
indemnify and hold harmless the Company, its directors, officers, agents and
employees, each Person who controls the Company (within the meaning of Section
15 of the Securities Act and Section 20 of the Exchange Act), and the
directors, officers, agents or employees of such controlling Persons, to the
fullest extent permitted by applicable law, from and against all Losses, as
incurred, to the extent arising out of or to the extent based upon: (x) the
Purchaser's failure to comply with the prospectus delivery requirements of the
Securities Act or (y) any untrue statement of a material fact contained in any
Registration Statement, any Prospectus, or any form of prospectus, or in any
amendment or supplement thereto or otherwise included in the Disclosure
Package, or to the extent arising out of or to the extent based upon any
omission of a material fact required to be stated therein or necessary to make
the statements therein (in the case of any Prospectus or form of prospectus or
supplement thereto, in light of the circumstances under which they were made)
not misleading to the extent, but only to the extent that, (1) such untrue
statements or omissions are based solely upon information regarding such
Purchaser furnished in writing to the Company by such Purchaser expressly for
use therein, or to the extent that such information relates to such Purchaser
or such Purchaser's proposed method of distribution of Registrable Securities
(it being understood that such Purchaser has approved ANNEX B hereto for this
purpose), or (2) in the case of an occurrence of an event of the type specified
in SECTION 3(C)(II)-(VI), the use by such Purchaser of an outdated or defective
Prospectus after the Company has notified such Purchaser in writing that the
Prospectus is outdated or defective and prior to the receipt by such Purchaser
of the Advice or an amended or supplemented Prospectus, but only if and to the
extent that following the receipt of the Advice or the amended or supplemented
Prospectus the misstatement or omission giving rise to such Loss would have
been corrected. In no event shall the liability of any selling Purchaser
hereunder be greater in amount than the dollar amount of the net proceeds
received by such Purchaser upon the sale of the Registrable Securities giving
rise to such indemnification obligation.
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(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. If any
Proceeding shall be brought or asserted against any Person entitled to
indemnity hereunder (an "INDEMNIFIED PARTY"), such Indemnified Party shall
promptly notify the Person from whom indemnity is sought (the "INDEMNIFYING
PARTY") in writing, and, if the Indemnifying Party so elects within a
reasonable time after receipt of such notice, the Indemnifying Party may assume
the defense of such Proceeding, including the employment of counsel reasonably
satisfactory to the Indemnified Party and the payment of all fees and expenses
incurred in connection with defense thereof; provided, that the failure of any
Indemnified Party to give such notice shall not relieve the Indemnifying Party
of its obligations or liabilities pursuant to this Agreement, except (and only)
to the extent that such failure shall have materially and adversely prejudiced
the Indemnifying Party.
An Indemnified Party shall have the right to employ separate
counsel in any such Proceeding and to participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of such
Indemnified Party or Parties unless: (1) the Indemnifying Party has agreed in
writing to pay such fees and expenses; (2) the Indemnifying Party shall have
failed promptly to assume the defense of such Proceeding and to employ counsel
reasonably satisfactory to such Indemnified Party in any such Proceeding; or
(3) the named parties to any such Proceeding (including any impleaded parties)
include both such Indemnified Party and the Indemnifying Party, and such
Indemnified Party shall have been advised in writing by counsel that a conflict
of interest is likely to exist if the same counsel were to represent such
Indemnified Party and the Indemnifying Party (in which case, if such
Indemnified Party notifies the Indemnifying Party in writing that it elects to
employ separate counsel at the expense of the Indemnifying Party, the
Indemnifying Party shall not have the right to assume the defense thereof and
such counsel shall be at the expense of the Indemnifying Party). The
Indemnifying Party shall not be liable for any settlement of any such
Proceeding effected without its written consent, which consent shall not be
unreasonably withheld. No Indemnifying Party shall, without the prior written
consent of the Indemnified Party, effect any settlement of any pending
Proceeding in respect of which any Indemnified Party is a party, unless such
settlement includes an unconditional release of such Indemnified Party from all
liability on claims that are the subject matter of such Proceeding.
All fees and expenses of the Indemnified Party (including
reasonable fees and expenses to the extent incurred in connection with
investigating or preparing to defend such Proceeding in a manner not
inconsistent with this Section) shall be paid to the Indemnified Party, as
incurred, within five Trading Days of written notice thereof to the
Indemnifying Party (regardless of whether it is ultimately determined that an
Indemnified Party is not entitled to indemnification hereunder; provided, that
the Indemnifying Party may require such Indemnified Party to undertake to
reimburse all such fees and expenses to the extent it is finally judicially
determined that such Indemnified Party is not entitled to indemnification
hereunder).
(d) CONTRIBUTION. If a claim for indemnification under
SECTION 5(A) or 5(B) is unavailable to an Indemnified Party (by reason of
public policy or otherwise), then each Indemnifying Party, in lieu of
indemnifying such Indemnified Party, shall contribute to the amount paid or
payable by such Indemnified Party as a result of such Losses, in such
proportion as is appropriate to reflect the relative fault of the Indemnifying
Party and Indemnified Party in connection with the actions, statements or
10
omissions that resulted in such Losses as well as any other relevant equitable
considerations. The relative fault of such Indemnifying Party and Indemnified
Party shall be determined by reference to, among other things, whether any
action in question, including any untrue or alleged untrue statement of a
material fact or omission or alleged omission of a material fact, has been
taken or made by, or relates to information supplied by, such Indemnifying
Party or Indemnified Party, and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such action, statement or
omission. The amount paid or payable by a party as a result of any Losses shall
be deemed to include, subject to the limitations set forth in SECTION 5(C), any
reasonable attorneys' or other reasonable fees or expenses incurred by such
party in connection with any Proceeding to the extent such party would have
been indemnified for such fees or expenses if the indemnification provided for
in this Section was available to such party in accordance with its terms.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this SECTION 5(D) were determined by pro
rata allocation or by any other method of allocation that does not take into
account the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this SECTION 5(D), no Purchaser
shall be required to contribute, in the aggregate, any amount in excess of the
amount by which the proceeds actually received by such Purchaser from the sale
of the Registrable Securities subject to the Proceeding exceeds the amount of
any damages that such Purchaser has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission.
The indemnity and contribution agreements contained in this
Section are in addition to any liability that the Indemnifying Parties may have
to the Indemnified Parties.
6. MISCELLANEOUS
(a) REMEDIES. In the event of a breach by the Company or by
a Purchaser of any of their obligations under this Agreement, each Purchaser or
the Company, as the case may be, in addition to being entitled to exercise all
rights granted by law and under this Agreement, including recovery of damages,
may seek (upon proper proof) specific performance of its rights under this
Agreement.
(b) NO PIGGYBACK ON REGISTRATIONS. Neither the Company nor
any of its security holders (other than the Purchasers in such capacity
pursuant hereto) may include securities of the Company in a Registration
Statement other than the Registrable Securities, and the Company shall not
during the Effectiveness Period enter into any agreement providing any such
right to any of its security holders.
(c) NO INCONSISTENT AGREEMENTS. The Company represents and
warrants that it has not granted to any Person the right to request or require
the Company to register any securities issued by the Company, other than the
rights granted to the Purchasers herein. The Company shall not enter into any
agreement with respect to its securities that is inconsistent with the rights
granted to the Purchasers in this Agreement or grant any additional
registration rights to any Person or with respect to any securities which are
not Registrable Securities which are prior in right to or inconsistent with the
rights granted in this Agreement.
11
(d) COMPLIANCE. Each Purchaser covenants and agrees that it
will comply with the prospectus delivery requirements of the Securities Act as
applicable to it in connection with sales of Registrable Securities pursuant to
the Registration Statement.
(e) DISCONTINUED DISPOSITION.
(i) Each Purchaser agrees by its acquisition of
such Registrable Securities that, upon receipt of a notice from the
Company of the occurrence of any event of the kind described in SECTION
3(C)(II)-(VI), such Purchaser will forthwith discontinue disposition of
such Registrable Securities under the Registration Statement until such
Purchaser's receipt of the copies of the supplemented or amended
Prospectus and/or amended Registration Statement, or until such
Purchaser's receipt of the Advice, and, in either case, has received
copies of any additional or supplemental filings that are incorporated
or deemed to be incorporated by reference in such Prospectus or
Registration Statement. The Company may provide appropriate stop orders
to enforce the provisions of this paragraph.
(ii) Notwithstanding the foregoing, the Company may
suspend the effectiveness of the Registration Statement by written
notice to the Purchasers for a period not to exceed an aggregate of 30
days in any 90-day period (each such period a "SUSPENSION PERIOD") if:
(1) an event occurs and is continuing as a
result of which the Registration Statement, the Prospectus, any
amendment or supplement thereto, or any document incorporated by
reference therein would, in the Company's reasonable judgment, 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
(2) the Company determines in good faith,
after consultation with external legal counsel, that the disclosure of
such event at such time would be materially detrimental to the Company
and its subsidiaries;
provided that, in the event the disclosure relates to a
previously undisclosed proposed or pending material business
transaction, the disclosure of which the Board of Directors of the
Company determines in good faith would be reasonably likely to impede
the Company's ability to consummate such transaction, the Company may
extend a Suspension Period from 30 days to 45 days; provided, however,
that Suspension Periods shall not (i) exceed an aggregate of 90 days in
any 360-day period and (ii) occur more than three separate times in any
360-day period. The Company shall not be required to specify in the
written notice to the Purchasers the nature of the event giving rise to
the Suspension Period.
(iii) During the occurrence of any Suspension Period,
the Company shall use its commercially reasonable efforts to promptly
amend or supplement the Registration Statement on a post-effective
basis or to take such action as is necessary to permit resumed use of
the Registration Statement as soon as possible after the termination of
the Suspension Period.
12
(iv) Notwithstanding any provision herein to the
contrary, if the Company shall give notice of a Suspension Period
pursuant to SECTION 6(E)(II) with respect to any Registration
Statement, the Company agrees that it shall extend the Effectiveness
Period by the number of days during the period from the date of the
giving of notice of a Suspension Period to and including the date when
the Company provides written notice that the Suspension Period has
ended and copies of the supplemented or amended Prospectus necessary to
resume sales, with respect to each Suspension Period.
(f) PIGGY-BACK REGISTRATIONS. (i) If at any time during the
Effectiveness Period there is not an effective Registration Statement covering
all of the Registrable Securities and the Company shall determine to prepare
and file with the Commission a registration statement relating to an offering
for its own account or the account of others under the Securities Act of any of
its equity securities, other than on Form S-4 or Form S-8 (each as promulgated
under the Securities Act) or their then equivalents relating to equity
securities to be issued solely in connection with any acquisition of any entity
or business or equity securities issuable in connection with stock option or
other employee benefit plans, then the Company shall send to each Purchaser
written notice of such determination and, if within five Trading Days after
receipt of such notice, such Purchaser shall so request in writing, the Company
shall include in such registration statement all or any part of such
Registrable Securities such holder requests to be registered (the "Piggyback
Registration"). The Company shall be liable for and pay all Registration
Expenses in connection with each Piggyback Registration, regardless of whether
such registration is effected.
(ii) In a Piggyback Registration, if the managing
underwriter advises the Company that, in its view, the number of
Registrable Securities that the Company and all Purchasers propose to
include in such registration exceeds the largest number of Registrable
Securities that can be sold without having an adverse effect on such
offering, including the price at which such Registrable Securities can
be sold (the "PIGGYBACK MAXIMUM OFFERING SIZE"), the Company shall
include in such registration, in the following priority, up to the
Piggyback Maximum Offering Size:
1. first, such number of Registrable Securities
proposed to be offered for the account of the Company,
if any, as would not cause the offering to exceed the
Piggyback Maximum Offering Size,
2. second, all Registrable Securities requested to be
included in such offering by any Purchasers pursuant to
this Section 6(f) (the Registrable Securities
allocated, if necessary for the offering not to exceed
the Piggyback Maximum Offering Size, pro rata among the
Purchasers on the basis of the relative number of
Registrable Securities so requested to be included in
such offering by each Purchaser).
3. third, any securities proposed to be registered
for the account of any other Persons, with such
priorities among them as the Company shall determine.
13
(g) AMENDMENTS AND WAIVERS. The provisions of this
Agreement, including the provisions of this SECTION 6(G), may not be amended,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the same shall be in writing and
signed by the Company and Purchasers holding no less than a majority of the
then outstanding Registrable Securities. Notwithstanding the foregoing, a
waiver or consent to depart from the provisions hereof with respect to a matter
that relates exclusively to the rights of certain Purchasers and that does not
directly or indirectly affect the rights of other Purchasers may be given by
Purchasers holding no less than a majority of the then outstanding Registrable
Securities to which such waiver or consent relates. No waiver of any default
with respect to any provision, condition or requirement of this Agreement shall
be deemed to be a continuing waiver in the future or a waiver of any subsequent
default or a waiver of any other provision, condition or requirement hereof,
nor shall any delay or omission of either party to exercise any right hereunder
in any manner impair the exercise of any such right.
(h) NOTICES. Any and all notices or other communications or
deliveries required or permitted to be provided hereunder shall be in writing
and shall be deemed given and effective on the earliest of (i) the date of
transmission, if such notice or communication is delivered via facsimile at the
facsimile telephone number specified in this Section prior to 5:30 p.m. (New
York City time) on a Trading Day, (ii) the Trading Day after the date of
transmission, if such notice or communication is delivered via facsimile at the
facsimile telephone number specified in this Section on a day that is not a
Trading Day or later than 5:30 p.m. (New York City time) on any date and
earlier than 11:59 p.m. (New York City time) on a Trading Day, (iii) the
Trading Day following the date of mailing, if sent by nationally recognized
overnight courier service, or (iv) upon actual receipt by the party to whom
such notice is required to be given. The address for such notices and
communications shall be as follows:
If to the Company: SunCom Wireless Holdings, Inc.
ββββ βββββββ ββββ
ββββββ, ββββββββββββ βββββ
Attention: General Counsel
(βββ) βββ-ββββ (phone)
(βββ) βββ-ββββ(facsimile)
With a copy to: Weil, Gotshal & ββββββ LLP
βββ βββββ ββββββ
βββ ββββ, βββ ββββ βββββ
Attention: Simeon Gold
(βββ) βββ-ββββ (phone)
(βββ) βββ-ββββ (facsimile)
Weil, Gotshal & ββββββ LLP
βββ ββββββββ βββββ, βββββ βββ
ββββββ, βββββ βββββ
Attention: W. ββββββ βββ
(βββ) βββ-ββββ (phone)
(βββ) βββ-ββββ (facsimile)
14
If to a Purchaser: To the address set forth under such
Purchaser's name on the signature pages
hereto.
With a copy to: Wachtell, Lipton, βββββ & ββββ
ββ ββββ ββββ ββββββ
βββ ββββ, βββ ββββ βββββ
Attention: βββββ βββββββ, Esq.
(i) SUCCESSORS AND ASSIGNS. This Agreement shall inure to
the benefit of and be binding upon the successors and permitted assigns of each
of the parties and shall inure to the benefit of each Purchaser.
(j) EXECUTION AND COUNTERPARTS. This Agreement may be
executed in any number of counterparts, each of which when so executed shall be
deemed to be an original and, all of which taken together shall constitute one
and the same Agreement. In the event that any signature is delivered by
facsimile transmission, such signature shall create a valid binding obligation
of the party executing (or on whose behalf such signature is executed) the same
with the same force and effect as if such facsimile signature were the original
thereof.
(k) GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF
JURY TRIAL. All questions concerning the construction, validity, enforcement
and interpretation of this Agreement shall be governed by and construed and
enforced in accordance with the internal laws of the State of New York, without
regard to the principles of conflicts of law thereof. Each party hereto hereby
irrevocably waives personal service of process and consents to process being
served in any such Proceeding by mailing a copy thereof via registered or
certified mail or overnight delivery (with evidence of delivery) to such party
at the address in effect for notices to it under this Agreement and agrees that
such service shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way any right
to serve process in any manner permitted by law. By its execution and delivery
of this Agreement, each of the parties hereto hereby irrevocably and
unconditionally agrees for itself that any legal action, suit or proceeding
against it with respect to any matter under or arising out of or in connection
with this Agreement or for recognition or enforcement of any judgment rendered
in any such action, suit or proceeding, may be brought in either a state or
federal court of competent jurisdiction in the State of New York. By execution
and delivery of this Agreement, each of the parties hereto hereby irrevocably
accepts and submits itself to the nonexclusive jurisdiction of each such court,
generally and unconditionally, with respect to any such action, suit or
proceeding. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
(l) CUMULATIVE REMEDIES. The remedies provided herein are
cumulative and not exclusive of any remedies provided by law.
(m) SEVERABILITY. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to
be invalid, illegal, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions set forth herein shall remain in full
force and effect and shall in no way be affected, impaired or invalidated, and
15
the parties hereto shall use their reasonable efforts to find and employ an
alternative means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It is hereby
stipulated and declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions without
including any of such that may be hereafter declared invalid, illegal, void or
unenforceable.
(n) HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(o) INDEPENDENT NATURE OF PURCHASERS' OBLIGATIONS AND
RIGHTS. The obligations of each Purchaser under this Agreement are several and
not joint with the obligations of each other Purchaser, and no Purchaser shall
be responsible in any way for the performance of the obligations of any other
Purchaser under this Agreement. Nothing contained herein or in any other
document entered into in connection herewith, and no action taken by any
Purchaser pursuant thereto, shall be deemed to constitute the Purchasers as a
partnership, an association, a joint venture or any other kind of entity, or
create a presumption that the Purchasers are in any way acting in concert or as
a group with respect to such obligations or the transactions contemplated by
this Agreement or any other document entered into in connection herewith. Each
Purchaser acknowledges that no other Purchaser will be acting as agent of such
Purchaser in enforcing its rights under this Agreement. Each Purchaser shall be
entitled to independently protect and enforce its rights, including without
limitation the rights arising out of this Agreement, and it shall not be
necessary for any other Purchaser to be joined as an additional party in any
Proceeding for such purpose. The Company acknowledges that each of the
Purchasers has been provided with the same Registration Rights Agreement for
the purpose of closing a transaction with multiple Purchasers and not because
it was required or requested to do so by any Purchaser.
(p) NO RECOURSE. This Agreement may only be enforced
against, and any claims or causes of action that may be based upon, arise out
of or relate to this Agreement, or the negotiation, execution or performance of
this Agreement may only be made against the entities that are expressly
identified as parties hereto and no past, present or future affiliate,
director, officer, employee, incorporator, member, manager, partner,
stockholder, agent, attorney or representative of any party hereto shall have
any liability for any obligations or liabilities of the parties to this
Agreement or for any claim based on, in respect of, or by reason of, the
transactions contemplated hereby.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGES TO FOLLOW]
16
IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first written above.
SUNCOM WIRELESS HOLDINGS, INC.
By:
---------------------------
Name:
Title:
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE OF PURCHASERS TO FOLLOW]
IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first written above.
[PURCHASERS]
By: /s/
---------------------------
Name:
Title:
Address for Notice:
-------------------------------
-------------------------------
-------------------------------
ANNEX A
-------
SUNCOM WIRELESS HOLDINGS, INC.
SELLING STOCKHOLDER QUESTIONNAIRE
The undersigned beneficial holder of Class A common stock, par value $.01 per
share ("CLASS A COMMON STOCK"), of SunCom Wireless Holdings, Inc. (the
"REGISTRANT"), understands that the Registrant intends to file with the
Securities and Exchange Commission (the "COMMISSION") a registration statement
on Form S-3 (the "SHELF REGISTRATION STATEMENT") for the registration and
resale under Rule 415 of the Securities Act of 1933, as amended (the
"SECURITIES ACT"), of the undersigned's Class A Common Stock, in accordance
with that certain Registration Rights Agreement ("REGISTRATION RIGHTS
AGREEMENT"), dated as of ________, 2007, among the Registrant and the
Purchasers (as defined in the Registration Rights Agreement) party thereto.
In order to sell or otherwise dispose of any shares of Class A Common Stock
pursuant to the Shelf Registration Statement, the undersigned will be required
to be named as a selling stockholder in the related prospectus and deliver a
prospectus to purchasers of the undersigned's Class A Common Stock. Certain
legal consequences arise from being named as a selling stockholder in the Shelf
Registration Statement and the related prospectus. Accordingly, you are advised
to consult your own securities law counsel regarding the consequences of being
named as a selling stockholder in the Shelf Registration Statement and the
related prospectus.
The undersigned hereby provides the following information to the Registrant and
represents and warrants that such information is accurate and complete:
QUESTIONNAIRE
1. (a) Full Legal Name of Selling Stockholder: _____________________________
(b) Full Legal name of Registered Holder (if not the same as (a) above)
through which shares of Class A Common Stock Listed in Item 3 below
are held:
____________________________________________________________________________
(c) Full Legal Name of DTC participant (if applicable and if not the
same as (b) above) through which shares of Class A Common Stock
listed in Item 3 below are held:
____________________________________________________________________________
2. Address for Notices to Selling Stockholder:
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
Telephone: _____________________________________________________________________
Fax: ___________________________________________________________________________
Contact Person: _______________________________________________________________
3. Number of Shares of Class A Common Stock Beneficially Owned:
4. Beneficial Ownership of Other Securities of the Registrant.
EXCEPT AS SET FORTH BELOW IN THIS ITEM 4, THE UNDERSIGNED IS NOT THE
BENEFICIAL OR REGISTERED OWNER OF ANY SECURITIES OF THE REGISTRANT OTHER
THAN THE SHARES OF CLASS A COMMON STOCK LISTED ABOVE IN ITEM 3.
Type and Amount of Other Securities Beneficially Owned (including options,
warrants, etc.):
___________________________________________________________________________
___________________________________________________________________________
5. Relationships with the Registrant:
EXCEPT AS SET FORTH BELOW, NEITHER THE UNDERSIGNED NOR ANY OF ITS
AFFILIATES, OFFICERS, DIRECTORS OR PRINCIPAL EQUITY HOLDERS (5% OR MORE)
HAS HELD ANY POSITION OR OFFICE OR HAS HAD ANY OTHER MATERIAL RELATIONSHIP
WITH THE REGISTRANT (OR ITS PREDECESSORS OR AFFILIATES) DURING THE PAST
THREE YEARS.
State any exceptions here: _____________________________________________________
________________________________________________________________________________
6. Plan of Distribution:
EXCEPT AS SET FORTH BELOW, THE UNDERSIGNED (INCLUDING ITS DONEES, PLEDGEES
OR DISTRIBUTEES) INTENDS TO DISTRIBUTE THE CLASS A COMMON STOCK LISTED
ABOVE IN ITEM 3 PURSUANT TO THE SHELF REGISTRATION STATEMENT ONLY AS
FOLLOWS (IF AT ALL). SUCH SHARES OF CLASS A COMMON STOCK MAY BE SOLD FROM
TIME TO TIME DIRECTLY BY THE UNDERSIGNED OR, ALTERNATIVELY, THROUGH
UNDERWRITERS, BROKER-DEALERS OR AGENTS. IF SHARES OF CLASS A COMMON STOCK
ARE SOLD THROUGH UNDERWRITERS OR BROKER-DEALERS, THE SELLING STOCKHOLDER
WILL BE RESPONSIBLE FOR UNDERWRITING DISCOUNTS OR COMMISSIONS OR AGENT'S
COMMISSIONS. SUCH SHARES OF CLASS A COMMON STOCK MAY BE SOLD IN ONE OR
MORE TRANSACTIONS AT FIXED PRICES, AT PREVAILING MARKET PRICES AT THE TIME
OF SALE, AT VARYING PRICES DETERMINED AT THE TIME OF SALE, OR AT
NEGOTIATED PRICES. SUCH SALES MAY BE EFFECTED IN TRANSACTIONS (WHICH MAY
INVOLVE BLOCK TRANSACTIONS) (I) ON ANY NATIONAL SECURITIES EXCHANGE OR
QUOTATION SERVICE ON WHICH THE CLASS A COMMON STOCK MAY BE LISTED OR
QUOTED AT THE TIME OF SALE, (II) IN THE OVER-THE-COUNTER MARKET, (III) IN
TRANSACTIONS OTHERWISE THAN ON SUCH EXCHANGES OR SERVICES OR IN THE
OVER-THE-COUNTER MARKET, OR (IV) THROUGH THE WRITING OF OPTIONS. IN
CONNECTION WITH SALES OF CLASS A COMMON STOCK, THE UNDERSIGNED MAY ENTER
INTO HEDGING TRANSACTIONS WITH BROKER-DEALERS, WHICH MAY IN TURN ENGAGE IN
SHORT SALES OF THE CLASS A COMMON STOCK IN THE COURSE OF HEDGING POSITIONS
THEY ASSUME. THE UNDERSIGNED MAY ALSO SELL CLASS A COMMON STOCK SHORT AND
DELIVER CLASS A COMMON STOCK TO CLOSE OUT SHORT POSITIONS, OR LOAN OR
PLEDGE CLASS A COMMON STOCK TO BROKER-DEALERS THAT IN TURN MAY SELL SUCH
SECURITIES. THE UNDERSIGNED HAS NOT MADE ANY ARRANGEMENTS WITH ANY
UNDERWRITERS OR BROKER-DEALERS RELATING TO THE DISTRIBUTION OR SALE OF THE
SHARES OF COMMON STOCK BENEFICIALLY OWNED BY THE UNDERSIGNED.
State any exceptions here: _____________________________________________________
________________________________________________________________________________
NOTE: Except as set forth in the Registration Rights Agreement, in no event
will such methods of distribution take the form of an underwritten offering of
the Class A Common Stock without the prior agreement of the Registrant.
The undersigned acknowledges that it understands its obligation to comply with
the provisions of the Securities and Exchange Act of 1934, as amended, and the
rules thereunder relating to stock manipulation, particularly Regulation M
thereunder (or any successor rules or regulations), in connection with any
offering of Class A Common Stock pursuant to the Shelf Registration Statement.
The undersigned agrees that neither it nor any person acting on its behalf will
engage in any transaction in violation of such provisions.
The undersigned agrees to promptly notify the Registrant of any inaccuracies or
changes in the information provided herein that may occur subsequent to the
date hereof at any time while the Shelf Registration Statement remains
effective.
By signing below, the undersigned consents to the disclosure of the information
contained herein in its answers to Items 1 through 6 above and the inclusion of
such information in the Shelf Registration Statement and the related
prospectus. The undersigned understands that such information will be relied
upon by the Registrant in connection with the preparation or amendment of the
Shelf Registration Statement and the related prospectus.
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this
Questionnaire to be executed and delivered either in person or by its duly
authorized agent.
_______________________________________
Beneficial owner
By: ___________________________________
Name: _________________________________
Title: ________________________________
Dated: ________________________
ANNEX B
-------
PLAN OF DISTRIBUTION
The undersigned (including its donees, pledgees or distributees) intends to
distribute the Class A Common Stock listed in this Shelf Registration Statement
only as follows (if at all). Such shares of Class A Common Stock may be sold
from time to time directly by the undersigned or, alternatively, through
underwriters, broker-dealers or agents. If shares of Class A Common Stock are
sold through underwriters or broker-dealers, the Selling Stockholder will be
responsible for underwriting discounts or commissions or agent's commissions.
Such shares of Class A Common Stock may be sold in one or more transactions at
fixed prices, at prevailing market prices at the time of sale, at varying
prices determined at the time of sale, or at negotiated prices. Such sales may
be effected in transactions (which may involve block transactions) (i) on any
national securities exchange or quotation service on which the Class A Common
Stock may be listed or quoted at the time of sale, (ii) in the over-the-counter
market, (iii) in transactions otherwise than on such exchanges or services or
in the over-the-counter market, or (iv) through the writing of options. In
connection with sales of Class A Common Stock, the undersigned may enter into
hedging transactions with broker-dealers, which may in turn engage in short
sales of the Class A Common Stock in the course of hedging positions they
assume. The undersigned may also sell Class A Common Stock short and deliver
Class A Common Stock to close out short positions, or loan or pledge Class A
Common Stock to broker-dealers that in turn may sell such securities. The
undersigned has not made any arrangements with any underwriters or
broker-dealers relating to the distribution or sale of the shares of common
stock beneficially owned by the undersigned.