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EXHIBIT 4.2
IXC COMMUNICATIONS, INC.
2,700,000 DEPOSITARY SHARES EACH REPRESENTING 1/20 OF A SHARE OF
6-3/4% CUMULATIVE CONVERTIBLE PREFERRED STOCK
(LIQUIDATION PREFERENCE $50 PER SHARE)
REGISTRATION RIGHTS AGREEMENT
March 30, 1998
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.,
Credit Suisse First Boston Corporation
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
As representatives of the several Purchasers
named in Schedule I hereto
c/o Goldman, Sachs & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
IXC Communications, Inc., a Delaware corporation (the "Company"),
proposes to sell to the Purchasers named in Schedule I hereto (the
"Purchasers"), upon the terms set forth in a purchase agreement dated March 25,
1998 (the "Purchase Agreement"), 2,700,000 Depositary Shares (each a "Depositary
Share" and collectively, the "Depositary Shares"). Each Depositary Share
represents ownership of 1/20 of a share of 6-3/4% Cumulative Convertible
Preferred Stock, $.01 par value per share (liquidation preference $1,000 per
share) (the "Convertible Preferred Stock"), deposited under the Deposit
Agreement dated as of March 30, 1998, among the Company, BankBoston, N.A., as
Depositary (the "Depositary"), and all holders from time to time of depositary
receipts issued thereunder (the "Depositary Receipts"). The Depositary Shares
will be convertible into shares of Common Stock, par value $.01 per share, of
the Company (the "Common Stock") as set forth in the Offering Circular dated
March 25, 1997, subject to adjustment in accordance with the Certificate of
Designation of the Convertible Preferred Stock (the "Certificate"). The
Depositary Shares, the Convertible Preferred Stock and the Common Stock issuable
upon conversion of the Convertible Preferred Stock, or paid as dividends
thereon, are collectively herein referred to as the "Securities" and each of
them as held singularly is herein referred to as a "Security". As an inducement
to the Purchasers to enter into the Purchase Agreement and in satisfaction of a
condition to the Purchasers' obligations thereunder, the Company agrees with the
Purchasers, (i) for the benefit of the Purchasers and (ii) for the benefit of
the holders of the Securities from time to time (each of the foregoing a
"Holder" and together the "Holders"), as follows:
1. Shelf Registration. So long as any Transfer Restricted Security
(as defined in Section 5 hereof) exists, the Company shall take the following
actions:
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(a) The Company shall, at its cost, prepare and, on or before May 14,
1998, file with the Securities and Exchange Commission (the "Commission") and
thereafter shall use its best efforts to cause to be declared effective on or
prior to June 26, 1998 a registration statement on the appropriate form (the
"Shelf Registration Statement") covering the offer and sale of the Transfer
Restricted Securities by the Holders thereof from time to time in accordance
with the methods of distribution set forth in the Shelf Registration Statement
and Rule 415 under the Securities Act of 1933 (the "Securities Act")
(hereinafter, the "Shelf Registration").
(b) The Company shall use its best efforts to keep the Shelf
Registration Statement continuously effective, in order to permit the prospectus
included therein to be lawfully delivered by the Holders of the relevant
Securities, until such time as all the Securities covered by the Shelf
Registration Statement have been sold pursuant thereto or may be sold pursuant
to Rule 144(k) under the Securities Act (or any successor rule thereof),
assuming for this purpose that the Holders thereof are not affiliates of the
Company (in any such case, such period being called the "Shelf Registration
Period"). The Company shall be deemed not to have used its best efforts to keep
the Shelf Registration Statement effective during the requisite period if it
voluntarily takes any action that would result in Holders of Securities covered
thereby not being able to offer and sell such Securities during that period,
unless (i) such action is required by applicable law or (ii) upon the occurrence
of any event contemplated by paragraph 2(b)(v) below, such action is taken by
the Company in good faith and for valid business reasons and the Company
thereafter promptly complies with the requirements of paragraph 2(h) below if
the Company has determined in good faith that there are no material legal or
commercial impediments in so doing.
(c) Notwithstanding any other provisions of this Agreement to the
contrary, the Company shall cause (other than information required to be
supplied by the selling Holders pursuant to this Agreement) (i) the Shelf
Registration Statement and the related prospectus and any amendment or
supplement thereto to comply in all material respects with the applicable
requirements of the Securities Act and the rules and regulations of the
Commission thereunder, (ii) the Shelf Registration Statement and any amendment
thereto not to contain, when it becomes effective, 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 (iii) any prospectus
forming a part of the Shelf Registration Statement, and any amendment or
supplement to such prospectus, not to contain, as of the date of such prospectus
or amendment or supplement, any untrue statement of a material fact or omit to
state 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.
(d) The Company shall, from time to time, cause the Shelf
Registration Statement to be amended to cover additional shares of Common Stock
issued in payment of dividends, if any, as permitted in accordance with the
terms of the Convertible Preferred Stock.
2. Registration Procedures. In connection with the Shelf
Registration contemplated by Section 1 hereof the following provisions shall
apply so long as any Transfer Restricted Security exists:
(a) The Company shall (i) furnish, without charge, to the Purchasers,
prior to the filing thereof with the Commission, a copy of the Shelf
Registration Statement and each amendment thereof and each amendment or
supplement, if any, to the prospectus included therein and, in the event that
the Purchasers (with respect to any portion of an unsold allotment from the
original offering) are participating in the Shelf Registration Statement, shall
use its best efforts to reflect in each such document, when so filed with the
Commission, such comments as such Purchasers reasonably may propose, (ii)
include in each such document the names of the Holders who propose to sell
Transfer Restricted Securities pursuant to the Shelf Registration
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Statement as selling security holders and (iii) file pursuant to Rule 424(b)
under the Securities Act an amendment to the Shelf Registration Statement or
amend the prospectus to cover new Holders of Securities upon written notice by
such new Holders to the effect.
(b) The Company shall give written notice to the Purchasers and the
Holders (which notice pursuant to clauses (ii)-(v) hereof shall be accompanied
by an instruction, if applicable, to suspend the use of the prospectus until the
requisite changes have been made):
(i) when the Shelf Registration Statement or any amendment
thereto has been filed with the Commission and when the Shelf
Registration Statement or any post-effective amendment thereto has
become effective;
(ii) of any request by the Commission for amendments or
supplements to the Shelf Registration Statement or the prospectus
included therein or for additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by the Company or its legal counsel of any
notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose; and
(v) of the happening of any event that requires the Company to
make changes in the Shelf Registration Statement or the prospectus in
order that the Shelf Registration Statement and the prospectus do not
contain an untrue statement of a material fact and do not omit to state
a material fact required to be stated therein or necessary to make the
statements therein (in the case of the prospectus, in light of the
circumstances under which they were made) not misleading, which written
notice need not provide any detail as to the nature of such event.
(c) The Company shall use reasonable commercial efforts to obtain the
withdrawal at the earliest possible time, of any order suspending the
effectiveness of the Shelf Registration Statement.
(d) The Company shall furnish to each Holder of Transfer Restricted
Securities included within the coverage of the Shelf Registration, without
charge, one copy of the Shelf Registration Statement and any post-effective
amendment thereto, including financial statements and schedules, and, if the
Holder so requests in writing, all exhibits thereto (other than those, if any,
incorporated by reference).
(e) The Company shall, during the Shelf Registration Period, deliver
to each Holder of Transfer Restricted Securities included within the coverage of
the Shelf Registration Statement, without charge, as many copies of the
prospectus (including each preliminary prospectus) included in the Shelf
Registration Statement and any amendment or supplement thereto as such person
may reasonably request. The Company consents, subject to the provisions of this
Agreement, to the use of the then current prospectus or any amendment thereto,
together with any supplement thereto, by each of the selling Holders in
connection with the offering and sale of the Transfer Restricted Securities
covered by the prospectus, or any amendment or supplement thereto, included in
the Shelf Registration Statement.
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(f) Prior to any public offering of the Securities pursuant to the
Shelf Registration Statement, the Company shall register or qualify or cooperate
with the Holders of the Transfer Restricted Securities included therein and
their respective counsel in connection with the registration or qualification of
such Securities for offer and sale under the securities or "blue sky" laws of
such states of the United States as any such Holder reasonably requests in
writing and do any and all other acts or things necessary or advisable to enable
the offer and sale in such jurisdictions of the Securities covered by the Shelf
Registration Statement; provided, however, that the Company shall not be
required to (i) qualify generally to do business in any jurisdiction where it is
not then otherwise required to be so qualified or (ii) take any action which
would subject it to general service of process or to taxation in any
jurisdiction where it is not then so subject.
(g) The Company shall cooperate with the Holders of the Transfer
Restricted Securities to facilitate the timely preparation and delivery of
certificates representing the Securities to be sold pursuant to the Shelf
Registration Statement free of any restrictive legends and in such denominations
and registered in such names as the Holders may request a reasonable period of
time prior to sales of the Securities pursuant to the Shelf Registration
Statement.
(h) Upon the occurrence of any event contemplated by paragraphs (ii)
through (v) of Section 2(b) above during the period for which the Company is
required to maintain an effective Shelf Registration Statement, the Company
shall promptly prepare and file a post-effective amendment to the Shelf
Registration Statement or an amendment or supplement to the related prospectus
and any other required document so that, as thereafter delivered to Holders or
purchasers of Securities, the prospectus will not contain an untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. If the Company notifies the Purchasers or
the Holders, in accordance with paragraphs (ii) through (v) of Section 2(b)
above, to suspend the use of the prospectus until the requisite changes to the
prospectus have been made, then the Purchasers and the Holders shall suspend use
of such prospectus.
(i) The Company will comply with all rules and regulations of the
Commission to the extent and so long as they are applicable to the Shelf
Registration and will make generally available to its security holders (or
otherwise provide in accordance with Section 11(a) of the Securities Act) an
earnings statement satisfying the provisions of Section 11(a) of the Securities
Act, no later than 45 days after the end of a 12-month period (or 90 days, if
such period is a fiscal year) beginning with the first month of the Company's
first fiscal quarter commencing after the effective date of the Shelf
Registration Statement, which statement shall cover such 12-month period.
(j) The Company may require each Holder of Securities to be sold
pursuant to the Shelf Registration Statement to furnish to the Company such
information regarding the Holder and the distribution of the Securities by such
Holder as the Company may from time to time reasonably require for inclusion in
the Shelf Registration Statement, and the Company may exclude from such
registration the Securities of any Holder that fails to furnish such information
within a reasonable time after receiving such request.
(k) The Company shall (i) make reasonably available for inspection by
the Holders of the Transfer Restricted Securities and any attorney, accountant
or other agent retained by the Holders of the Securities all relevant financial
and other records, pertinent corporate documents and properties of the Company
and (ii) cause the Company's officers, directors, employees, accountants and
auditors to supply all relevant information reasonably requested by the Holders
of the Securities or any such attorney, accountant or agent in connection with
the Shelf Registration Statement, in each case, as shall be reasonably necessary
to
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enable such persons to conduct a reasonable investigation within the meaning of
Section 11 of the Securities Act; provided, however, that the foregoing
inspection and information gathering (i) shall be coordinated by you and, on
behalf of the other parties, by one counsel (the "Designated Counsel")
designated by the Holders of a majority in principal amount of the Securities
covered by the Shelf Registration Statement (provided that Holders of Depositary
Shares representing shares of Convertible Preferred Stock shall be deemed to be
Holders of the aggregate number of Convertible Preferred Stock which may be
obtained upon surrender of all of Holders' Depositary Shares, provided further
that Holders of Common Stock issued upon the conversion of the Convertible
Preferred Stock shall be deemed to be Holders of the aggregate number of
Convertible Preferred Stock from which such Common Stock was converted) and (ii)
shall not be available for any such Holder that is a competitor of the Company,
and provided further that such Holders shall keep the information so received
confidential.
(l) The Company will use its best efforts to cause the Common Stock
relating to such Shelf Registration Statement to be listed on the Nasdaq
National Market.
(m) The Company shall use reasonable commercial efforts to take all
other steps necessary to effect the registration of the Transfer Restricted
Securities covered by the Shelf Registration Statement contemplated hereby.
3. Registration Expenses. The Company shall bear all fees
and expenses incurred in connection with the performance of its obligations
under Sections 1 through 2 hereof, whether or not the Shelf Registration
Statement is filed or becomes effective.
4. Indemnification. (a) The Company agrees to indemnify and hold
harmless each Holder and each person, if any, who controls such Holder within
the meaning of the Securities Act or the Securities Exchange Act of 1934 (the
"Exchange Act") (each Holder and such controlling persons are referred to
collectively as the "Indemnified Parties") from and against any losses, claims,
damages or liabilities, joint or several, or any actions in respect thereof
(including any losses, claims, damages, liabilities or actions relating to
purchases and sales of the Securities) to which each Indemnified Party becomes
subject under the Securities Act, the Exchange Act or otherwise, insofar as such
losses, claims, damages, liabilities or actions arise out of or are based upon,
any untrue statement or alleged untrue statement of a material fact contained in
the Shelf Registration Statement or prospectus or in any amendment or supplement
thereto or in any preliminary prospectus relating to the Shelf Registration, or
arise out of, or are based upon, the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and subject to subsection (c) below, shall
reimburse, as incurred, the Indemnified Parties for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action in respect thereof; provided,
however, that the Company shall not be liable in any such case to the extent
that such loss, claim, damage, liability, or action in respect thereof arises
out of or is based upon (x) the use of any prospectus in violation of the last
sentence of Section 2(h), or (y) any untrue statement or alleged untrue
statement or omission or alleged omission made in the Shelf Registration
Statement or prospectus or in any amendment or supplement thereto or in any
preliminary prospectus relating to the Shelf Registration in reliance upon, and
in conformity with, written information pertaining to such Holder and furnished
to the Company by or on behalf of such Holder specifically for inclusion
therein; provided further, however, that this indemnity agreement will be
separate from any liability which the Company may otherwise have to such
Indemnified Party; provided further, however, that with respect to any untrue
statement or alleged untrue statement in or omission or alleged omission from
any prospectus, the indemnity agreement contained in this subsection (a) shall
not inure to the benefit of any Holder that sold the Securities concerned
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to the person asserting any such losses, claims, damages or liabilities, to the
extent that any such loss, claim, damage or liability of such Holder results
from the fact that there was not sent or given to such person, at or prior to
the written confirmation of the sale of such Securities to such person, a copy
of the prospectus if the Company had previously furnished copies thereof to such
Holder and such prospectus corrected such untrue statement or omission or
alleged untrue statement or omission.
(b) Each Holder, severally and not jointly, will indemnify and hold
harmless the Company and each person, if any, who controls the Company within
the meaning of the Securities Act or the Exchange Act from and against any
losses, claims, damages or liabilities or any actions in respect thereof, to
which the Company or any such controlling person becomes subject under the
Securities Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in a Shelf
Registration Statement or prospectus or in any amendment or supplement thereto
or in any preliminary prospectus relating to a Shelf Registration, or arise out
of, or are based upon the omission or alleged omission to state therein a
material fact necessary to make the statements therein not misleading, but in
each case only to the extent that the untrue statement or omission or alleged
untrue statement or omission was made in reliance upon and in conformity with
written information pertaining to such Holder and furnished to the Company by or
on behalf of such Holder specifically for inclusion therein; and, subject to the
limitation set forth immediately preceding this clause, and to subsection (c)
below, shall reimburse, as incurred, the Company for any legal or other expenses
reasonably incurred by the Company or any such controlling person in connection
with investigating or defending any loss, claim, damage, liability or action in
respect thereof; provided, however, that such Holder shall not have any
liability under this clause (b) in excess of the aggregate purchase price paid
by such Holder for the Depositary Shares purchased by such Holder. This
indemnity agreement will be separate from any liability which such Holder may
otherwise have to the Company or any of its controlling persons.
(c) Promptly after receipt by an indemnified party under this Section
4 of notice of the commencement of any action or proceeding (including a
governmental investigation), such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 4,
notify the indemnifying party of the commencement thereof; but the omission so
to notify the indemnifying party will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than the
indemnification obligation provided in subsections (a) or (b) above. In case any
such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof the
indemnifying party will not be liable to such indemnified party under this
Section 4 for any legal or other expenses, other than reasonable costs of
investigation, subsequently incurred by such indemnified party in connection
with the defense thereof. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action.
(d) If the indemnification provided for in this Section 4 is
unavailable or insufficient to hold harmless an indemnified party under
subsections (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages
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or liabilities (or actions in respect thereof) referred to in subsections (a) or
(b) above (i) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the registration of the Securities, pursuant
to the Shelf Registration, or (ii) if the allocation provided by the foregoing
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the indemnifying party or parties on the
one hand and the indemnified party on the other, in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault of the parties shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company on the one hand or
such Holder or such other indemnified party, as the case may be, on the other,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid by
an indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim which is
the subject of this subsection (d). Notwithstanding any other provision of this
subsection (d), the Holders shall not be required to contribute any amount in
excess of the amount by which the net proceeds received by such Holders from the
sale of the Securities pursuant to the Shelf Registration Statement exceeds the
amount of damages which such Holders have otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For purposes
of this paragraph (d), each person, if any, who controls such indemnified party
within the meaning of the Securities Act or the Exchange Act shall have the same
rights to contribution as such indemnified party and each person, if any, who
controls the Company within the meaning of the Securities Act or the Exchange
Act shall have the same rights to contribution as the Company.
(e) The agreements contained in this Section 4 shall survive the sale
of the Securities pursuant to the Shelf Registration Statement and shall remain
in full force and effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of any indemnified party.
5. Liquidated Damages Under Certain Circumstances. (a) Liquidated
Damages (the "Liquidated Damages") shall accrue with respect to the Depositary
Shares (and the corresponding Convertible Preferred Stock) which are Transfer
Restricted Securities upon the occurrence of any of the following events (each
such event in clauses (i), (ii) and (iii) below being herein called a
"Registration Default"):
(i) if by May 14, 1998, the Shelf Registration Statement
has not been filed with the Commission;
(ii) if by June 26, 1998, the Shelf Registration Statement
has not been declared effective by the Commission; or
(iii) if after the Shelf Registration Statement is declared
effective (A) the Shelf Registration Statement thereafter ceases to be
effective; or (B) the Shelf Registration Statement or the related
prospectus ceases to be usable (in each case except as permitted in
paragraph (c) below) in connection with resales of Transfer Restricted
Securities in accordance with and during the periods
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specified herein because either (1) any event occurs as a result of
which the related prospectus forming part of such Shelf Registration
Statement would include any untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein in
the light of the circumstances under which they were made not
misleading, or (2) it shall be necessary to amend such Shelf
Registration Statement or supplement the related prospectus, to comply
with the Securities Act or the Exchange Act or the respective rules
thereunder.
(b) Liquidated Damages shall accrue with respect to the Depositary
Shares (and the corresponding Convertible Preferred Stock) which are Transferred
Restricted Securities from and including the date on which any such Registration
Default shall occur until all such Registration Defaults have been cured
according to the following:
(i) with respect to the first 45-day period following the
occurrence of such Registration Default, at a rate of $0.25 per year per
Depositary Share ($5.00 per year per $1,000 in liquidation preference of
the Convertible Preferred Stock); and
(ii) with respect to any period beyond 45 days following
the occurrence of such Registration Default, at a rate of an additional
$0.125 per year per Depositary Share (an additional $2.50 per year per
$1,000 in liquidation preference of the Convertible Preferred Stock).
The amount of Liquidated Damages for each Depositary Share (and each
corresponding share of Convertible Preferred Stock) shall be determined by
multiplying the applicable Liquidated Damages rate, specified above, by a
fraction, the numerator of which is the number of days such Liquidation Damages
rate was applicable during such period (determined on the basis of a 360-day
year comprised of twelve 30-day months), and the denominator of which is 360.
(c) A Registration Default referred to in Section 5(a)(iii) shall be
deemed not to have occurred and be continuing in relation to the Shelf
Registration Statement or the related prospectus if (i) such Registration
Default has occurred solely as a result of one of the following, each of which
is referred to herein as a "Permitted Interruption:" (x) the filing of a
post-effective amendment to the Shelf Registration Statement to incorporate
annual audited financial information with respect to the Company where such
post-effective amendment is not yet effective and needs to be declared effective
to permit Holders to use the related prospectus or (y) material business
developments, with respect to the Company that would need to be described in the
Shelf Registration Statement or the related prospectus to make such Shelf
Registration Statement or related prospectus accurate and complete and (ii) in
the case of clause (y), the Company proceeds promptly and in good faith to amend
or supplement the Shelf Registration Statement and related prospectus to
describe such events if the Company has determined in good faith that there are
no material legal or commercial impediments in so doing; provided, however, that
a Permitted Interruption shall expire and will not prevent a Registration
Default from occurring or continuing to the extent it exceeds 45 days for a
single period. Multiple Permitted Interruptions shall not exceed 60 days for
more than one period in any calender year or 120 days in the aggregate.
Liquidated Damages shall accrue in accordance with the foregoing sentence from
the date that such Permitted Interruption expires until such Registration
Default is cured.
(d) Any amounts of Liquidated Damages due pursuant to this Section 5
will be payable in such form and on such terms and conditions as provided in the
Certificate with respect to the Convertible Preferred Stock. In addition to the
Liquidated Damages with respect to the Depositary Shares (and the corresponding
Convertible Preferred Stock) Holders may receive Liquidated Damages with respect
to Common
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Stock issued by the Company as dividends. The Liquidated Damages amount per
share of Common Stock will be equal to the Liquidated Damages per Depositary
Share multiplied by 20 and then divided by the conversion rate of Convertible
Preferred Stock then applicable pursuant to the Certificate. Notwithstanding
anything to the contrary contained in this Section 5, the Company will not be
required to pay Liquidated Damages with respect to more than one Registration
Default during any single period.
(e) "Transfer Restricted Securities" means each Security (including
additional shares of Convertible Preferred Stock issued in payment of dividends
on the Convertible Preferred Securities, if any, as permitted in accordance with
the terms of the Convertible Preferred Stock) until (i) the date on which such
Security has been effectively registered under the Securities Act and disposed
of in accordance with the Shelf Registration Statement or (ii) the date on which
such Security is saleable pursuant to Rule 144(k) under the Securities Act (or
any successor rule thereof) or would be saleable pursuant to Rule 144(k) under
the Securities Act had it not been held by, or had never been held by, an
affiliate of the Company.
6. Rules 144 and 144A. So long as any Transfer Restricted Security
exists, the Company shall use its best efforts to file the reports required to
be filed by it under the Securities Act and the Exchange Act in a timely manner
and, if at any time the Company is not required to file such reports, it will,
upon the request of any Holder of Transfer Restricted Securities, make publicly
available other information so long as necessary to permit sales of its
securities pursuant to Rules 144 and 144A. The Company covenants that, if in the
event the Company is no longer subject to Sections 13 or 15(d) of the Exchange
Act, it will take such further action as any Holder of Transfer Restricted
Securities may reasonably request, all to the extent required from time to time
to enable such Holder to sell Transfer Restricted Securities without
registration under the Securities Act within the limitation of the exemptions
provided by Rules 144 and 144A (including the requirements of Rule 144A(d)(4)).
The Company will provide a copy of this Agreement to prospective purchasers of
Securities identified to the Company by the Purchasers upon request.
Notwithstanding the foregoing, nothing in this Section 6 shall be deemed to
require the Company to register any of its securities pursuant to the Exchange
Act.
7. Miscellaneous. (a) Amendments and Waivers. The provisions of this
Agreement may not be amended, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given, except by the Company
and the written consent of the Holders of a majority of the Transfer Restricted
Securities (provided that Holders of Depositary Shares representing shares of
Convertible Preferred Stock shall be deemed to be Holders of the aggregate
number of Convertible Preferred Stock which may be obtained upon surrender of
all of Holders' Depositary Shares, provided further that Holders of Common Stock
issued upon conversion of Convertible Preferred Stock shall be deemed to be
Holders of the aggregate number of Convertible Preferred Stock from which such
Common Stock was converted) affected by such amendment, modification,
supplement, waiver or consents.
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first-class mail,
facsimile transmission, or air courier which guarantees overnight delivery:
(1) if to the Holders, at the most current address given by
the Holders of record to the Company in accordance with the provisions
of this Section 7(b), which address initially is, with respect
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to each Holder, the address of such Holder to which confirmation of the
sale of the Depositary Shares to such Holder was first sent by the
Purchasers, with a copy in like manner to you as follows:
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.,
Credit Suisse First Boston Corporation
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
c/o Goldman, Sachs & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
with a copy to:
Shearman & Sterling
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇, Esq.
(2) if to the Company, at its address as follows:
IXC Communications, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
with a copy to:
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; three business
days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged by recipient's facsimile machine operator, if sent by facsimile
transmission; and on the day delivered, if sent by overnight air courier
guaranteeing next day delivery.
(c) No Inconsistent Agreements; Damages. The Company has not, as of
the date hereof, entered into, nor shall it, on or after the date hereof, enter
into, any agreement with respect to its securities that is inconsistent with the
rights granted to the Holders herein or otherwise conflicts with the provisions
hereof. Notwithstanding anything to the contrary contained in this Agreement, it
is hereby acknowledged and agreed
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that the Company shall have no liability for monetary damages to the Purchasers
or any Holder for any breaches, failures to comply or violations by it of
Section 1 or 2 of this Agreement except as expressly provided in Section 4 or 5
hereof; provided, however, in the event that the Company breaches, fails to
comply or violates the provisions of Section 1 or 2 hereof, the Holders shall be
entitled to, and the Company shall not oppose the granting of, equitable relief,
including injunction and specific performance.
(d) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
including, without the need for an express assignment or any consent by the
Company thereto, subsequent Holders of Transfer Restricted Securities. The
Company hereby agrees to extend the benefits of this Agreement to any Holder of
Transfer Restricted Securities and any such Holder may specifically enforce the
provisions of this Agreement as if an original party hereto.
(e) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
By the execution and delivery of this Agreement, the Company submits to
the nonexclusive jurisdiction of any federal or state court in the State of New
York.
(h) Severability. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal
or unenforceable, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
(i) Securities Held by the Company. Whenever the consent or approval
of Holders of a specified percentage of Transfer Restricted Securities is
required hereunder, Securities held by the Company or its affiliates shall not
be counted in determining whether such consent or approval was given by the
Holders of such required percentage.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the Purchasers and the Company in accordance with its terms.
Very truly yours,
IXC COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Accounting Officer
The foregoing Registration
Rights Agreement is hereby confirmed
and accepted as of the date first
above written.
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
Credit Suisse First Boston Corporation
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
By: /s/ ▇▇▇▇▇▇▇, SACHS & CO.
------------------------------------
(▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.)
On behalf of each of the Purchasers
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SCHEDULE I
Purchasers
▇▇▇▇▇▇▇, Sachs & Co.
Credit Suisse First Boston Corporation
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated