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EQUITY REGISTRATION RIGHTS AGREEMENT
Dated as of June 6, 1997
PAGING NETWORK DO BRASIL among
S.A.
and
PAGING BRAZIL HOLDING CO., LLC,
as Issuers
WARBURG, ▇▇▇▇▇▇ VENTURES, L.P.,
PAGING NETWORK INTERNATIONAL N.V.,
IVP PAGING (CAYMAN) L.P.,
MULTIPONTO TELECOMUNICACOES LTDA.
and
TVA SISTEMA DE TELEVISAO S.A.
as Shareholders to the limited extent set forth herein
AND
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED,
BEAR, ▇▇▇▇▇▇▇ & CO. INC.,
and
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.,
as Initial Purchasers,
AND
▇▇▇▇▇ ▇▇▇▇▇▇ SHAREHOLDER SERVICES,
as Transfer Agent to the limited extent
set forth herein
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THIS EQUITY REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made
and entered into as of June 6, 1997, among Paging Network do Brasil S.A., a
Brazilian corporation (the "Company"), Paging Brazil Holding Co., LLC, a
Delaware limited liability company (the "LLC"; together with the Company, the
"Issuers"), Warburg, ▇▇▇▇▇▇ Ventures, L.P., a Delaware limited partnership
("WPV"), Paging Network International N.V., a Netherlands corporation ("PNNV"),
IVP Paging (Cayman) L.P., a Cayman Islands exempted limited partnership ("IVP"),
TVA Sistema de Televisao S.A., a Brazilian corporation ("TVA"), Multiponto
Telecomunicacoes Ltda., a Brazilian limited liability company ("MT"; together
with WPV, PNNV, IVP and TVA, the "Shareholders"), and ▇▇▇▇▇▇▇ Lynch, Pierce,
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co."), Bear, ▇▇▇▇▇▇▇ & Co. Inc.
and ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. (collectively, the "Initial Purchasers") and, as to
Sections 3.2 to 3.5 only, ▇▇▇▇▇ ▇▇▇▇▇▇ Shareholder Services (the "Transfer
Agent"). The Shareholders shall be deemed not to be a party to Sections 2.1,
2.2, 3.5, 3.6, 3.7, 4, 5 and 6 hereof.
This Agreement is made pursuant to the Purchase Agreement, dated as
of May 30, 1997, among the Company, the LLC and the Initial Purchasers (the
"Purchase Agreement"), relating to the sale by the Company and the LLC to the
Initial Purchasers of an aggregate of 125,000 Units, each Unit consisting of
US$1,000 principal amount of 13 1/2% Senior Notes due 2005 (the "Notes") of the
Company and one Non-Voting Class B Member Interest (each an "LLC Share") of the
LLC. Pursuant to an agreement between the Company and the LLC dated May 29, 1997
(the "Company-LLC Subscription Agreement"), 125,000 shares of common stock
(acoes ordinarias), with no par value, of the Company will be issued and
delivered by the Company to the LLC for the capital accounts of the holders of
LLC Shares issued as a part of the Units. In order to induce the Initial
Purchasers to enter into the Purchase Agreement, the Issuers have agreed to
provide to the Holders (as defined herein) the registration rights for the
Registrable Securities (as defined herein) set forth in this Agreement and the
Shareholders, for themselves and their Affiliates, and have agreed to provide
the Holders, among other things, the tag-along rights for the Shares (as defined
herein) and Registrable Securities set forth herein. The execution and delivery
of this Agreement by each of the parties hereto is a condition to the
obligations of the Initial Purchasers to purchase the Units under the Purchase
Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
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1. Definitions. As used in this Agreement, the following capitalized
defined terms shall have the following meanings:
"Advice" shall have the meaning ascribed to that term in the last
paragraph of Section 4.
"Affiliate" means, when used with reference to any Person, any other
Person directly or indirectly controlling, controlled by, or under direct
or indirect common control with, the referent Person or such other Person,
as the case may be. For the purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling,"
"controlled by," and "under common control with"), when used with respect
to any specified Person, means the power to direct or cause the direction
of management or policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise.
"Agreement" shall have the meaning ascribed to that term in the
preamble hereto.
"Black Out Period" shall have the meaning ascribed to that term in
Section 2.1(a).
"Business Day" shall mean a day that is not a Legal Holiday.
"Capital Stock" shall mean, with respect to any Person, any and all
shares or other equivalents (however designated) of capital stock,
partnership interests, member interests or any other participation, right
or other interest in the nature of an equity interest in such Person or
any option, warrant or other security convertible into or exercisable or
exchangeable for any of the foregoing.
"Change of Control" shall have the meaning ascribed to that term in
the Indenture dated as of June 1, 1997 between the Company and The Chase
Manhattan Bank, as Trustee, as in effect on the date hereof.
"Common Stock" shall mean the common stock (acoes ordinarias), with
no par value, of the Company, and any common stock equivalents,
participations or interests comparable to any of the foregoing and any
options, warrants, subscription bonds or security convertible into or
exercisable or exchangeable for any of the foregoing.
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"Company" shall have the meaning ascribed to that term in the
preamble hereto and shall also include the Company's successors.
"Company-LLC Subscription Agreement" shall have the meaning ascribed
to that term in the preamble hereto.
"Company Registrable Securities" means Registrable Securities issued
by the Company or any of its successors.
"Current Market Value" per share of Common Stock of the Company or
any other security at any date means (i) if the security is not registered
under the Exchange Act, the Fair Market Value of the security or (ii)(a)
if the security is registered under the Exchange Act, the average of the
daily market prices of the securities for the 20 consecutive trading days
immediately preceding such date, or (b) if the securities have been
registered under the Exchange Act for less than 20 consecutive trading
days before such date, then the average of the closing sales prices for
all of the trading days before such date for which closing sales prices
are available, in the case of each of (ii)(a) and (ii)(b), as certified to
the Holders by the President, any Vice President or the Chief Financial
Officer of the Company. The market price for each such trading day shall
be: (A) in the case of a security listed or admitted to trading on any
United States national securities exchange or quotation system, the
closing sales price, regular way on such day, or if no sale takes place on
such day, the average of the closing bid and asked prices on such day, (B)
in the case of a security not then listed or admitted to trading on any
national securities exchange or quotation system, the last reported sale
price on such day, or if no sale takes place on such day, the average of
the closing bid and asked prices on such day, as reported by a reputable
quotation source designated by the Company, (C) in the case of a security
not then listed or admitted to trading on any national securities exchange
or quotation system and as to which no such reported sale price or bid and
asked prices are available, the average of the reported high bid and low
asked prices on such day, as reported by a reputable quotation service, or
a newspaper of general circulation in the Borough of Manhattan, City and
State of New York, customarily published on each Business Day, designated
by the Company, or, if there shall be no bid and asked prices on such day,
the average of the high bid and low asked prices, as so reported, on the
most recent day (not more
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than 30 days prior to the date in question) for which prices have been so
reported and (D) if there are no bid and asked prices reported during the
30 days prior to the date in question, the Current Market Value shall be
determined as if the securities were not registered under the Exchange
Act.
"Definitive Certificate" refers to Shares that are not represented
by the Global Certificate and, instead, are issued in definitive
registered form.
"Demand Registration" shall have the meaning ascribed to that term
in Section 2.1(a).
"Depositary" means The Depository Trust Company, its nominees and
successors.
"Effectiveness Period" shall have the meaning ascribed to that term
in Section 2.1(a).
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Excluded Transfer" shall mean (i) a Transfer by a Shareholder or
any of its Affiliates to a Shareholder or an Affiliate of a Shareholder,
so long as such transferee agrees to be bound by the transferor's
obligations under this Agreement to the same extent as the transferor,
(ii) a Transfer pursuant to a registered public offering, in which holders
of Registrable Securities have available to them (without cut-back) the
rights provided under Section 2.2, (iii) a Transfer by one or more
Shareholders (other than Transfers pursuant to (i) or (ii)) of 10% or less
of the shares of Common Stock held by the Shareholders in the aggregate as
of the date hereof or (iv) a Transfer resulting in net proceeds to the
Selling Shareholder(s), of US$15,000,000 or less.
"Fair Market Value" shall mean the value of any securities as
determined (without any discount for lack of liquidity, the amount of such
securities proposed to be sold or the fact that such securities held by
any Holder of such security may represent a minority interest in a private
company) by an Independent Financial Expert selected by the Company for
the determination of such value.
"Fully Diluted Shares" shall mean the outstanding shares of Common
Stock of the Company, after giving effect
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to the exercise of all outstanding options, subscription bonds, warrants
or other rights or securities to acquire Common Stock.
"Global Certificate" refers to the initial form of Share
certificates which, unless otherwise instructed, will be issued in global
form and held by the Depositary.
"Holder" shall mean the Initial Purchasers, for so long as the
Initial Purchasers own any Registrable Securities, and their successors,
assigns and direct and indirect transferees who become registered owners
of Registrable Securities.
"Included Securities" shall have the meaning ascribed to that term
in the Section 3.3.
"Independent Financial Expert" means a United States investment
banking firm of international standing in the United States and Brazil (i)
which does not, and whose directors, officers and employees or Affiliates
do not, have a direct or indirect material financial interest for its
proprietary account in the Company or any of its Affiliates and (ii)
which, in the judgment of the Board of Directors of the Company, is
otherwise independent with respect to the Company and its Affiliates and
qualified to perform the task for which it is to be engaged.
"Initial Public Equity Offering" means a primary public offering
(whether or not underwritten, but excluding any offering pursuant to Form
S-8 under the Securities Act or any other publicly registered offering
pursuant to the Securities Act pertaining to an issuance of shares of
Common Stock of the Company or securities exercisable therefor under any
benefit plan, employee compensation plan, or employee or director stock
purchase plan) of Common Stock of the Company pursuant to an effective
registration statement under the Securities Act.
"Initial Purchasers" shall have the meaning ascribed to that term in
the preamble hereto.
"Issuers" shall have the meaning ascribed to that term in the
preamble hereto.
"Legal Holiday" shall mean a Saturday, a Sunday or a day on which
banking institutions in New York, New York or
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Sao Paulo, Brazil are required by law, regulation or executive order to
remain closed.
"Liquidation Event" shall have the meaning set forth in the LLC
Agreement.
"LLC Agreement" shall mean the Limited Liability Company Agreement
of the LLC.
"LLC Shares" shall have the meaning ascribed to that term in the
preamble hereto.
"Lock Up Period" shall have the meaning ascribed to that term in
Section 2.1(a).
"Notes" shall have the meaning ascribed to that term in the preamble
hereto.
"Participating Holder" shall have the meaning ascribed to that term
in Section 3.3(a).
"Person" shall mean an individual, partnership, corporation, trust
or unincorporated organization, or a government or agency or political
subdivision thereof.
"Piggy-Back Registration" shall have the meaning ascribed to that
term in Section 2.2.
"Proposed Purchaser" shall have the meaning ascribed to that term in
Section 3.3(a).
"Proposed Transfer Date" shall have the meaning ascribed to that
term in Section 3.3(a).
"Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A promulgated
pursuant to the Securities Act), 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 Registration
Statement, and all other amendments and supplements to any such
prospectus, including post-effective amendments, and all material
incorporated by reference or deemed to be incorporated by reference, if
any, in such prospectus.
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"Purchase Agreement" shall have the meaning ascribed to that term in
the preamble hereto.
"Purchase Election Date" shall have the meaning ascribed to that
term in Section 2.1(g).
"Purchase Offer" shall have the meaning ascribed to that term in
Section 2.1(g).
"Purchase Offer Payment Date" shall have the meaning ascribed to
that term in Section 2.1(g).
"Purchase Offer Securities" shall have the meaning ascribed to that
term in Section 2.1(g).
"Registrable Securities" shall mean any of (a) the Shares and (b)
any other securities issued or issuable with respect to or in exchange for
the Shares by way of stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization or otherwise. As to any particular Registrable Securities,
such securities shall cease to be Registrable Securities when (a) a
Registration Statement with respect to the offering of such securities by
the Holder thereof shall have been declared effective under the Securities
Act and such securities shall have been disposed of by such Holder
pursuant to such Registration Statement, (b) such securities have been
sold to the public pursuant to Rule 144(k) (or any similar provision then
in force, but not Rule 144A) promulgated under the Securities Act or are
eligible for sale in all respects to the public without volume or manner
of sale restrictions under Rule 144(k) (or any similar provision then in
force, but not Rule 144A) promulgated under the Securities Act, (c) such
securities shall have been otherwise transferred and new certificates for
such securities not bearing a legend restricting further transfer shall
have been delivered by the Company or the LLC, as the case may be, or its
transfer agent and subsequent disposition of such securities shall not
require registration or qualification under the Securities Act or any
similar state law then in force or (d) such securities shall have ceased
to be outstanding.
"Registration Expenses" shall mean all expenses incident to the
Company's performance of or compliance with this Agreement, including,
without limitation, all SEC and stock exchange or National Association of
Securities Deal-
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ers, Inc. registration and filing fees and expenses, fees and expenses of
compliance with securities or blue sky laws (including, without
limitation, in the event of an underwritten offering, reasonable fees and
disbursements of counsel for the underwriters in connection with blue sky
qualifications of the Registrable Securities), rating agency fees,
printing expenses, messenger, telephone and delivery expenses, fees and
disbursements of counsel for the Company and all independent certified
public accountants, and, in the event of an underwritten offering, the
fees and disbursements of underwriters customarily paid by issuers or
sellers of securities (but not including any underwriting discounts or
commissions or transfer taxes, if any, attributable to the sale of
Registrable Securities by Holders of such Registrable Securities).
"Registration Statement" shall mean any registration statement of
the Company which covers any of the Registrable Securities pursuant to the
provisions of this Agreement and all amendments and supplements to any
such Registration Statement, including post-effective amendments, in each
case including the Prospectus contained therein, all exhibits thereto and
all material incorporated by reference therein.
"Requisite Shares" shall mean a number of Registrable Securities
equivalent to not less than 35% of the Registrable Securities originally
issued to the LLC pursuant to the Company-LLC Subscription Agreement.
"Rule 144" shall mean Rule 144 under the Securities Act, as such
Rule may be amended from time to time, or any similar rule (other than
Rule 144A) or regulation hereafter adopted by the SEC providing for offers
and sales of securities made in compliance therewith resulting in offers
and sales by subsequent holders that are not affiliates of an issuer of
such securities being free of the registration and prospectus delivery
requirements of the Securities Act.
"Rule 144A" shall mean Rule 144A under the Securities Act, as such
Rule may be amended from time to time.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended
from time to time.
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"Shares" shall mean (a) the LLC Shares sold to the Initial
Purchasers as part of the Units pursuant to the Purchase Agreement,
whether held by any Initial Purchaser or any subsequent assignee or
transferee, (b) the Common Stock issued to the LLC in connection with the
transactions contemplated by the Purchase Agreement, whether held by the
LLC or any subsequent assignee or transferee and (c) any other securities
issued or issuable with respect to or in exchange for the foregoing by way
of stock dividend or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization or
otherwise.
"Tag-Along Notice" shall have the meaning ascribed to that term in
Section 3.3(a).
"Tag-Along Right" shall have the meaning ascribed to that term in
Section 3.3(a).
"Transfer" shall mean, with respect to Common Stock or LLC Shares,
any sale, assignment, gift, transfer, exchange, pledge or other
disposition.
"Transfer Agent" shall have the meaning ascribed to that term in the
preamble hereto and shall include any other transfer agent or registrar
for any of the Shares. The Issuers will be required to cause each such
transfer agent to become a party hereto for purposes of Sections 3.5 to
3.7.
"Transfer Notice" shall have the meaning ascribed to that term in
Section 3.3(a).
"Triggering Date" shall mean the day on which a bona fide
underwritten public offering of Common Stock is consummated, as a result
of which at least 20% of the outstanding shares of Common Stock of the
Company are listed on a national securities exchange or the Nasdaq
National Market System.
"Triggering Event" shall mean the occurrence of any of the
following: (a) the 90th day (or such earlier date as determined by the
Company in its sole discretion) following an Initial Public Equity
Offering or (b) the later to occur of (1) a Liquidation Event or (2) the
fifth anniversary of the date hereof.
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"Withdrawal Election" shall have the meaning ascribed to that term
in Section 2.3(c).
2. Registration Rights.
2.1. Demand Registration. (a) Request for Registration. At any time
on or after a Triggering Event, Holders owning, individually or in the
aggregate, at least the Requisite Shares may make two written requests for
registration under the Securities Act of their Company Registrable Securities (a
"Demand Registration"). Any such request will specify the number of Company
Registrable Securities proposed to be sold and will also specify the intended
method of disposition thereof. Subject to the other provisions of this Section
2.1, the Company shall give written notice of such registration request within
10 days after the receipt thereof to all other Holders. Within 30 days after
receipt of such notice by any Holder, such Holder may request in writing that
its Company Registrable Securities be included in such registration and the
Company shall include in the Demand Registration the Company Registrable
Securities of any such selling Holder requested to be so included. Each such
request by such other selling Holders shall specify the number of Company
Registrable Securities proposed to be sold and the intended method of
disposition thereof. Upon a demand, the Company will (i) prepare, file with the
SEC and use its reasonable best efforts to cause to become effective within 120
days of such demand a Registration Statement in respect of all the Company
Registrable Securities which Holders request for inclusion therein; provided
that if such demand occurs during a Black Out Period or a period (not to exceed
180 days) during which the Company is prohibited or restricted from issuing or
selling Common Stock pursuant to any underwriting or purchase agreement relating
to an underwritten public offering of Common Stock or securities convertible
into or exchangeable for Common Stock under Rule 144A or registered under the
Security Act or any agreement with a securityholder of the Company exercising
registration rights pursuant to an agreement in existence on the date hereof (a
"Lock Up Period"), the Company shall not be required to notify the Holders of
such demand or file such Registration Statement prior to the end of the Black
Out Period or Lock Up Period, as the case may be, in which event, the Company
will use its best efforts to cause such Registration Statement to become
effective no later than 45 days after the end of the Black Out Period or Lock Up
Period, as the case may be, and (ii) keep such Registration Statement
continuously effective for the shorter of (a) 180 days (the "Effectiveness
Period") and (b) such period of time as all of the Company Registrable
Securities included in such
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Registration Statement have been sold thereunder; provided, however, that the
Company may postpone the filing period, suspend the effectiveness of any
registration, suspend the use of any Prospectus and shall not be required to
amend or supplement the Registration Statement, any related Prospectus or any
document incorporated therein by reference (other than an effective registration
statement being used for an underwritten offering) in the event that, and for a
period, in the case of any particular Demand Registration, not to exceed an
aggregate of 45 days ("Black Out Period") if (i) an event or circumstance occurs
and is continuing as a result of which the Registration Statement, any related
Prospectus or any document incorporated therein by reference as then amended or
supplemented would, in the Company's good faith judgment, contain an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein (in the case of any Prospectus, in the light of
the circumstances under which they were made), not misleading, and (ii)(A) the
Company determines in its good faith judgment that the disclosure of such event
at such time would have a material adverse effect on the business, operations or
prospects of the Company or (B) the disclosure otherwise relates to a material
business transaction which has not yet been publicly disclosed; provided,
further, that the Effectiveness Period shall be extended by the number of days
in any Black Out Period. Subject to Section 2.1(b), the Company shall only be
required to register Registrable Securities pursuant to this Section 2.1 once.
In the event of the occurrence of any Black Out Period during an
Effectiveness Period or Lock Up Period, the Company will promptly notify the
Holders of Company Registrable Securities thereof in writing.
(b) Effective Registration. A registration will not be deemed to
have been effected as a Demand Registration, and thereby satisfy the obligation
hereunder, unless it has been declared effective by the SEC and the Company has
complied in all material respects with its obligations under this Agreement with
respect thereto; provided that if, after it has become effective, the offering
of Company Registrable Securities pursuant to such registration is or becomes
the subject of any stop order, injunction or other order or requirement of the
SEC or any other governmental or administrative agency, or if any court prevents
or otherwise limits the sale of Company Registrable Securities pursuant to the
registration (for any reason other than the act or omissions of the Holders) for
the period of time contemplated hereby, such registration will be deemed not to
have been effected. If (i) a registration requested
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pursuant to this Section 2.1 is deemed not to have been effected or (ii) the
registration requested pursuant to this Section 2.1 does not remain effective
for the Effectiveness Period, then the Company shall continue to be obligated to
effect an additional registration pursuant to this Section 2.1. The Holders of
Company Registrable Securities shall be permitted to withdraw all or any part of
the Company Registrable Securities from a Demand Registration at any time prior
to the effective date of such Demand Registration. If at any time a Registration
Statement is filed with the SEC pursuant to a Demand Registration, and
subsequently a sufficient number of the Company Registrable Securities are
withdrawn from the Demand Registration so that such Registration Statement does
not cover that number of Company Registrable Securities at least equal to 25% of
the Shares originally issued to the LLC, the Holders who have not withdrawn
their Company Registrable Securities shall have the opportunity to include an
additional number of Company Registrable Securities in the Demand Registration
so that such Registration Statement covers that number of Company Registrable
Securities at least equal to 25% of the Shares originally issued to the LLC. If
an additional number of Company Registrable Securities is not so included, the
Company may withdraw the Registration Statement. Such withdrawn Registration
Statement will not count as a Demand Registration and the Company shall continue
to be obligated to effect a registration pursuant to this Section 2.1; provided
the Holders that requested withdrawal shall be obligated to reimburse the
Company for all customary and reasonable out-of-pocket expenses incurred by it
in performing its obligations hereunder with respect to such withdrawn
Registration Statement.
(c) Priority in Demand Registrations Pursuant to Section 2.1. If a
Demand Registration pursuant to this Section 2.1 involves an underwritten
offering and the lead managing underwriter advises the Company in writing that,
in its view, the number of Company Registrable Securities requested by the
Holders to be included in such registration, together with any other securities
permitted to be included in such registration pursuant to Section 8(c) hereof
exceeds the number which, can be sold without adversely affecting the offering:
first, the securities other than the Company Registrable Securities of the
Holders included in such registration shall be reduced in their entirety before
any reduction of Company Registrable Securities; and second, to the extent the
reduction set forth in the immediately preceding clause is insufficient to
reduce the number of securities requested for inclusion in such registration to
a number, which, in the view of such lead managing underwriter, can be sold
without adversely affecting the offer-
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ing, the number of such Company Registrable Securities to be included in such
registration shall be allocated pro rata among all requesting Holders on the
basis of the relative number of Company Registrable Securities then held by each
such Holder (provided that any Company Registrable Securities thereby allocated
to any such Holder that exceed such Holder's request shall be reallocated among
the remaining requesting Holders in like manner). In the event that the number
of Company Registrable Securities requested to be included in such registration
is less than the number which, in the view of the lead managing underwriter, can
be sold without adversely affecting the offering, the Company may include in
such registration the securities the Company or any other Person proposes to
sell up to the number of securities that, in the view of the lead managing
underwriter, can be sold without adversely affecting the offering.
(d) Selection of Underwriter. If the Holders so elect, the offering
of such Company Registrable Securities pursuant to a Demand Registration shall
be in the form of an underwritten offering. The Company shall select one or more
nationally recognized firms of investment bankers (to whom a majority of Holders
making such Demand Registration shall not have reasonably objected) to act as
the managing underwriter or underwriters (and if more than one Managing
Underwriter is selected, the Company shall also name the lead managing
underwriter) in connection with such offering and shall select any additional
investment bankers and managers to be used in connection with the offering.
(e) Expenses. The Company will pay all Registration Expenses in
connection with the registration requested pursuant to Section 2.1(a). Each
Holder shall pay all underwriting discounts and commissions and transfer taxes,
if any, relating to the sale or disposition of such Holder's Company Registrable
Securities pursuant to a registration statement requested pursuant to this
Section 2.1.
(f) Ability of LLC Shareholders to Effect Rights. In the event that
the Initial Public Equity Offering occurs but a Liquidation Event has not
occurred, Holders of Registrable Securities of the LLC will be entitled to the
rights and privileges pertaining to Company Registrable Securities in accordance
with each such Holder's Percentage Interest (as defined in the Purchase
Agreement) with respect to the Company Registrable Securities held by the LLC
notwithstanding that a Liquidation Event has not occurred and Holders may cause
the LLC to
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deliver Company Registrable Securities for inclusion in a Demand Registration
pursuant to this Section 2.1.
2.2. Piggy-Back Registration. If at any time either of the Issuers
proposes to file a Registration Statement under the Securities Act with respect
to an offering by such Issuer for its own account or for the account of any of
its respective securityholders of any class of Common Stock (other than (i) a
registration statement on Form ▇-▇, ▇-▇ or F-4 (or any substitute form that may
be adopted by the SEC), (ii) a registration statement filed in connection with
an offer or offering of securities solely to such Issuer's existing
securityholders or (iii) a Demand Registration), then such Issuer shall give
written notice of such proposed filing to the Holders of Registrable Securities
as soon as practicable (but in no event less than 20 Business Days before the
anticipated filing date), and such notice shall offer such Holders the
opportunity to register such number of Registrable Securities as each such
Holder may request (which request shall specify the Registrable Securities
intended to be disposed of by such Holder (a "Piggy-Back Registration"). Such
Issuer shall use its reasonable best efforts to cause the managing underwriter
or underwriters of such proposed underwritten offering to permit the Registrable
Securities requested to be included in a Piggy-Back Registration to be included
on the same terms and conditions as any similar securities of such Issuer or any
other securityholder included therein and to permit the sale or other
disposition of such Registrable Securities in accordance with the intended
method of distribution thereof, provided, however, in no event shall such Issuer
be required to reduce the number of securities proposed to be sold by such
Issuer or alter the terms of the securities proposed to be sold by such Issuer
in order to induce the managing underwriter or underwriters to permit
Registrable Securities to be included. Any Holder shall have the right to
withdraw its request for inclusion of its Registrable Securities in any
Registration Statement pursuant to this Section 2.2 by giving written notice to
such Issuer of its request to withdraw prior to the effectiveness of the
Registration Statement. An Issuer may withdraw a Piggy-Back Registration at any
time prior to the time it becomes effective; provided that such Issuer shall
give prompt notice thereof to participating Holders. The Company will pay all
Registration Expenses in connection with each registration of Registrable
Securities requested pursuant to this Section 2.2, and each Holder shall pay all
underwriting discounts and commissions and transfer taxes, if any, relating to
the sale or disposition of such Holder's Registrable Securities pursuant to a
registration statement effected pursuant to this Section 2.2.
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No registration effected under this Section 2.2, and no failure to
effect a registration under this Section 2.2, shall relieve an Issuer of its
obligation to effect a registration upon the request of Holders pursuant to
Section 2.1, and no failure to effect a registration under this Section 2.2 and
to complete the sale of Registrable Securities in connection therewith shall
relieve an Issuer of any other obligation under this Agreement.
2.3. Reduction of Offering. (a) If the lead managing underwriter of
any underwritten offering described in Section 2.2 has informed, in writing, the
Holders of the Registrable Securities requesting inclusion in such offering that
it is its view that the total number of securities which an Issuer, the Holders
and any other Persons desiring to participate in such registration intend to
include in such offering is such as to materially and adversely affect the
success of such offering, including the price at which such securities can be
sold, then the number of Registrable Securities to be offered for the account of
such Holders and the number of such securities to be offered for the account of
all such other Persons (other than the Company) participating in such
registration shall be reduced or limited pro rata in proportion to the
respective number of securities requested to be registered to the extent
necessary to reduce the total number of securities requested to be included in
such offering to the number of securities, if any, recommended by such lead
managing underwriter; provided that if such offering is effected for the account
of any securityholder of the Company other than the Holders (either directly or
through the LLC), pursuant to the demand registration rights of any such
securityholder, then the number of securities to be offered for the account of
the Company (if any) and the Holders (but not such securityholders who have
exercised their demand registration rights) shall be reduced or limited pro rata
in proportion to the respective number of securities requested to be registered
to the extent necessary to reduce the total number of securities requested to be
included in such offering to the number of securities, if any, recommended by
such lead managing underwriter.
(b) If the lead managing underwriter of any underwritten offering
described in Section 2.2 notifies the Holders requesting inclusion of
Registrable Securities in such offering, that the kind of securities that such
Holders, the Company and any other Persons desiring to participate in such
registration intend to include in such offering is such as to materially and
adversely affect the success of such offering, (x) the Registrable Securities to
be included in such offering shall be
-16-
reduced as described in clause (i) above or (y) if a reduction in the
Registrable Securities pursuant to clause (i) above would, in the judgment of
the lead managing underwriter, be insufficient to substantially eliminate the
adverse effect that inclusion of the Registrable Securities requested to be
included would have on such offering, such Registrable Securities will be
excluded from such offering.
(c) If, as a result of the proration provisions of this Section 2.3,
any Holder shall not be entitled to include all Registrable Securities in a
Piggy-Back Registration that such Holder has requested to be included, such
Holder may elect to withdraw his request to include Registrable Securities in
such registration (a "Withdrawal Election"); provided that a Withdrawal Election
shall be made prior to the effectiveness of the Registration Statement and shall
be irrevocable and, after making a Withdrawal Election, a Holder shall no longer
have any right to include Registrable Securities in the registration as to which
such Withdrawal Election was made.
(d) Holders of Registrable Securities of the LLC will be entitled to
the rights and privileges pertaining to Company Registrable Securities in
accordance with each such Holder's Percentage Interest with respect to the
Company Registrable Securities held by the LLC notwithstanding that a
Liquidation Event has not occurred and Holders may cause the LLC to deliver
Company Registrable Securities for inclusion in a Piggy-Back Registration
pursuant to this Section 2.3.
3. Transfers.
3.1. Generally. All Shares and Registrable Securities at any time
and from time to time outstanding shall be held subject to the conditions and
restrictions set forth in this Section 3. All shares of Capital Stock of the
Issuers now or hereafter beneficially owned by the Shareholders and each of
their Affiliates shall be held subject to the conditions and restrictions set
forth in this Section 3. Each Holder of Shares and Registrable Securities and
each of the Shareholders by executing this Agreement or by accepting a
certificate representing Capital Stock or other indicia of ownership therefor
from an Issuer agree with each Issuer to such conditions and restrictions.
3.2. Restrictions on Transfer. (a) The LLC shall keep, at the office
or agency maintained by the LLC for such purpose in the City of New York,
Borough of Manhattan, a register or registers in which, subject to such
reasonable regula-
-17-
tions as it may prescribe, the LLC shall provide for the registration of, and
registration of transfer of, Shares of the LLC as provided in this Article. The
Company shall at all times maintain appropriate and customary arrangements
providing for the registration of, and registration of transfer of, Shares as
provided in this Article. Each person designated by an Issuer from time to time
as a person authorized to register the transfer and exchange of the Shares of
such Issuer is hereinafter called, individually and collectively, the "Transfer
Agent" and shall be required to agree to Sections 3.2 through 3.5 hereof;
provided, however, that Banco Itau shall not be required to agree to Section 3.5
to the extent such Section shall be inapplicable to Shares of the Company. The
LLC has initially appointed ▇▇▇▇▇ ▇▇▇▇▇▇ Shareholder Services as Transfer Agent
with respect to Shares of the LLC. The Company has initially appointed Banco
Itau S.A. as Transfer Agent with respect to Shares of the Company. The Company
shall, promptly following the execution of this Agreement, duly register this
Agreement and shall notify Banco Itau thereof. Upon written notice by any Issuer
to any acting Transfer Agent, such Issuer may appoint a successor Transfer Agent
for such purposes.
(b) Any Transfer made in violation of this Agreement by a
Shareholder or any of its Affiliates shall be deemed null and void and shall not
be recorded as a transfer upon the transfer books of the applicable Issuer. Each
certificate representing shares of Common Stock held by a Shareholder and each
of its Affiliates shall contain conspicuous notation on such certificate
indicating that the transfer of such shares is subject to the terms and
restrictions of this Agreement, and each of the Shareholders hereby consents to
the placement of such legend on the certificate or certificates representing the
shares of Common Stock beneficially owned by such party.
3.3. Tag-Along Rights. (a) In the event of any proposed direct or
indirect Transfer of beneficial ownership of Shares (whether now or hereafter
issued) by a Shareholder (the "Proposed Seller") or any of its Affiliates in any
transaction or series of related transactions (including any proposed direct or
indirect transfer of Common Stock by the LLC for the capital account of any
Shareholder or any Affiliate having an interest in the LLC) to any Person (other
than an Excluded Transfer or a Transfer of beneficial ownership of Common Stock
by the LLC to the Member of the LLC whose capital account is at such time
credited with such Common Stock upon the occurrence of a Liquidation Event)
(such other Person being hereinafter referred to as the "Proposed Purchaser") at
any time prior to the Triggering Date, the holders of Shares and Registrable Se-
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curities shall have the irrevocable right, but not the obligation (the
"Tag-Along Right"), to require the Proposed Purchaser to purchase from each of
them up to such number of Shares and Registrable Securities (the "Included
Securities") determined in accordance with Section 3.3(c). The Proposed Seller
shall give written notice (a "Transfer Notice") at least 30 days prior to the
date of the proposed Transfer (the "Proposed Transfer Date") to the holders of
Shares and Registrable Securities stating (i) the name and address of the
Proposed Purchaser, (ii) the proposed amount of consideration, terms and
conditions of payment offered by such Proposed Purchaser (if the proposed
consideration is not cash, the Transfer Notice shall describe the terms of the
proposed consideration) and the time and place of the closing for the proposed
Transfer, (iii) the number of shares of Common Stock and other securities
proposed to be directly or indirectly Transferred by the Proposed Seller and/or
its Affiliates and (iv) either that the Proposed Purchaser has been informed of
the Tag-Along Right and has agreed to purchase Shares and Registrable Securities
in accordance with the terms hereof or that the Proposed Seller or any of its
Affiliates will make such purchase. The Tag-Along Right shall be exercised by
any or all of the holders of Shares and Registrable Securities by giving written
notice to the Issuers of the Shares or Registrable Securities proposed to be
sold ("Tag-Along Notice"), within 15 days of receipt of the Transfer Notice,
indicating its election to exercise the Tag-Along Right (the "Participating
Holders"). The Tag-Along Notice shall state the amount of Shares and Registrable
Securities that such holder proposes to include in such Transfer to the Proposed
Purchaser. Failure by any holder to give such notice within the 15-day period
shall be deemed an election by such holder not to sell its Shares and
Registrable Securities pursuant to that Transfer. The closing with respect to
any sale to a Proposed Purchaser pursuant to this Section shall be held at the
time and place specified in the Transfer Notice but in any event within 60 days
of the Proposed Transfer Date; provided that if through the exercise of
reasonable efforts the Proposed Seller or any of its Affiliates is unable to
cause such transaction to close within 60 days, such period may be extended for
such reasonable period of time as may be necessary to close such transaction.
Consummation of the sale of Common Stock or other securities by the Proposed
Seller and/or its Affiliates to a Proposed Purchaser shall be conditioned upon
consummation of the sale by each Participating Holder to such Proposed Purchaser
(or the Proposed Seller) of the Included Securities, if any.
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(b) In the event that the Proposed Purchaser does not purchase
Included Securities from the holders on the same terms and conditions as
purchased from the Proposed Seller and its Affiliates, then the Proposed Seller
or such Affiliate shall purchase, or cause another Person to purchase, such
Included Securities if the Transfer occurs.
(c) Each holder of Shares and Registrable Securities shall have the
right to require the Proposed Purchaser to purchase from such holder up to a
percentage of the number of Shares and Registrable Securities owned by such
holder equaling the percentage derived by dividing the total number of shares of
Common Stock that the Proposed Seller and its Affiliates propose to directly or
indirectly Transfer by the total number of shares of Common Stock at the time
beneficially owned by the Proposed Seller and its Affiliates; provided that in
the event of any proposed Transfer, either at a time or as a result of which
there would result a Change of Control, each holder of Shares and Registrable
Securities shall have the right to require the Proposed Purchaser to purchase
all of the Shares and Registrable Securities owned by such holder.
(d) Any Shares and/or Registrable Securities purchased from the
Participating Holders pursuant to this Section 3.3 shall be paid for in the same
type of consideration and at the same price per share of Common Stock and upon
the same terms and conditions of such proposed Transfer of Common Stock by the
Proposed Seller and/or any of its Affiliates. If the Registrable Securities to
be purchased include securities or property other than Common Stock, the price
to be paid for such securities or property shall be the same price per share or
other denomination paid by the Proposed Purchaser for like securities purchased
from the Proposed Seller and/or its Affiliates or, if like securities are not
purchased from the Proposed Seller and/or its Affiliates by the Proposed
Purchaser, the Fair Market Value of such securities. The Proposed Seller shall
arrange for payment directly by the Proposed Purchaser to each Participating
Holder, upon delivery of the certificate or certificates representing the Shares
and/or Registrable Securities duly endorsed for transfer, together with such
other documents as the Proposed Purchaser may reasonably request.
(e) If at the end of 60 days following the Proposed Transfer Date,
or as otherwise extended pursuant to the provisions of Section 3.3(a), the sale
of Common Stock by the Proposed Seller and/or its Affiliates and the sale of the
Included Securities have not been completed in accordance with the terms of the
Proposed Purchaser's offer, all certificates represent-
-20-
ing the Included Securities shall be returned to the Participating Holders, and
all the restrictions on Transfer contained in this Agreement with respect to
Common Stock beneficially owned by the Proposed Seller and its Affiliates shall
remain in effect.
3.4. Obligation to Sell. If at any time prior to the Triggering Date
the Shareholders and/or any of their Affiliates determine to sell all of the
Common Stock of the Company then beneficially owned by the Shareholders and
their Affiliates to a Person other than an Affiliate of a Shareholder, the
Shareholders shall have the right to require the Holders of Registrable
Securities to sell such Registrable Securities to such transferee; provided that
(a) the consideration to be received by the Shareholders of Registrable
Securities shall be the same type of consideration received by the Shareholders
and their Affiliates and, in any event, shall be cash and/or securities
registered under the Securities Act and listed on a national securities exchange
or authorized for quotation on the Nasdaq National Market System, (b) after
giving effect to such transaction, the Shareholders and their Affiliates shall
not beneficially own, directly or indirectly, any Capital Stock or rights to
purchase Capital Stock of the Company and (c) the foregoing provisions shall not
apply to sales of Common Stock by the Company in a registered public offering
under the Securities Act or an offering pursuant to Rule 144A. Any Registrable
Securities purchased from the Holders pursuant to this Section 3.4 shall be paid
for at the same price per share of Common Stock and upon the same terms and
conditions of such proposed transfer of Common Stock by the Shareholders and
their Affiliates. If the Registrable Securities to be purchased include
securities other than Common Stock, the price to be paid for such securities
shall be the same price per share or other denomination paid by the Proposed
Purchaser for like securities purchased from the Shareholders and their
Affiliates or, if like securities are not purchased from the Shareholders and
their Affiliates, the Fair Market Value of such securities.
3.5. Registration of Transfers or Exchanges.
(a) Transfer or Exchange of Definitive Certificates. When Definitive
Certificates are presented to the Transfer Agent with a request from the holder:
(i) to register the transfer of the Definitive Certificates; or
-21-
(ii) to exchange such Definitive Certificates for an equal number of
Definitive Certificates of other authorized denominations,
the Transfer Agent shall register the transfer or make the exchange as requested
if the requirements under this Agreement as set forth in this Section 3.5 for
such transactions are met; provided, however, that the Definitive Certificates
presented or surrendered by a holder for registration of transfer or exchange:
(x) shall be duly endorsed or accompanied by a written instruction of
transfer or exchange in form satisfactory to the Company and the
Transfer Agent, duly executed by such holder or by his attorney,
duly authorized in writing; and
(y) in the case of Shares the offer and sale of which have not been
registered under the Securities Act and are presented for transfer
or exchange prior to (X) the date which is two years (or such
shorter period as may be prescribed by Rule 144(k) (or any successor
provision thereto)) after the later of the date of original issuance
of the Shares and the last date on which the Company or the LLC or
any or their affiliates was the owner of such Shares, or any
predecessor thereto, and (Y) such later date, if any, as may be
required by any subsequent change in applicable law (the "Resale
Restriction Termination Date"), such Shares shall be accompanied by
the following additional information and documents, as applicable:
(A) if such Shares are being delivered to the Transfer Agent by a
holder for registration in the name of such holder, without
transfer, a certification from such holder to that effect (in
substantially the form of Exhibit C hereto); or
(B) if such Shares are being transferred to a qualified
institutional buyer (as defined in Rule 144A under the
Securities Act) (a "QIB") in accordance with Rule 144A under
the Securities Act, a certification from the transferor to
that effect (in substantially the form of Exhibit C hereto);
or
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(C) if such Shares are being transferred to an institutional
"accredited investor" within the meaning of subparagraphs
(a)(1), (a)(2), (a)(3) or (a)(7) of Rule 501 under the
Securities Act (an "Institutional Accredited Investor"),
delivery by the transferor of a certification to that effect
(in substantially the form of Exhibit C hereto), and delivery
by the proposed transferee of a Transferee Certificate for
Institutional Accredited Investors (in substantially the form
of Exhibit D hereto); or
(D) if such Shares are being transferred in reliance on Regulation
S under the Securities Act, delivery by the transferor of a
certification to that effect (in substantially the form of
Exhibit C hereto), and a Certificate for Regulation S
Transfers in the form of Exhibit E hereto; or
(E) if such Shares are being transferred in reliance on Rule 144
under the Securities Act, delivery by the transferor of (i) a
certification from the transferor to that effect (in
substantially the form of Exhibit C hereto), and (ii) an
opinion of counsel reasonably satisfactory to the Company or
the LLC, as the case may be, to the effect that such transfer
is in compliance with the Securities Act; or
(F) if such Shares are being transferred in reliance on another
exemption from the registration requirements of the Securities
Act, a certification from the transferor to that effect (in
substantially the form of Exhibit C hereto) and an opinion of
counsel reasonably satisfactory to the Company or the LLC, as
the case may be, to the effect that such transfer is in
compliance with the Securities Act; provided that the Company
or the LLC, as the case may be, may, based upon the views of
its own counsel, instruct the Transfer Agent not to register
such transfer in any case where the proposed transferee is not
a QIB, non-U.S. Person (as defined in Regulation S) or
Institutional Accredited Investor.
(b) Restrictions on Transfer of a Definitive Certificate for a
Beneficial Interest in a Global Certificate. A Definitive Certificate may not be
transferred by a holder for a
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beneficial interest in a Global Certificate except upon satisfaction of the
requirements set forth below. Upon receipt by the Transfer Agent of a Definitive
Certificate, duly endorsed or accompanied by appropriate instruments of
transfer, in form satisfactory to the Transfer Agent, together with:
(A) certification from such holder (in substantially the form of
Exhibit C hereto) that such Definitive Certificate is being
transferred to a QIB in accordance with Rule 144A under the
Securities Act; and
(B) written instructions directing the Transfer Agent to make, or
to direct the Depositary to make, an endorsement on the Global
Certificate to reflect an increase in the aggregate amount of
the Shares represented by the Global Certificate,
then the Transfer Agent shall cancel such Definitive Certificate and cause, or
direct the Depositary to cause, in accordance with the standing instructions and
procedures existing between the Depositary and the Transfer Agent, the number of
Shares represented by the Global Certificate to be increased accordingly. If no
Global Certificate is then outstanding, the Company shall issue and the Transfer
Agent shall upon written instructions from the Company authenticate a new Global
Certificate in the appropriate amount.
(c) Transfer or Exchange of Global Certificates. The transfer or
exchange of Global Certificates or beneficial interests therein shall be
effected through the Depositary, in accordance with this Section 3.5, the
Private Placement Legend, this Agreement (including the restrictions on transfer
set forth herein) and the procedures of the Depositary therefor.
(d) Transfer or Exchange of a Beneficial Interest in a Global
Certificate for a Definitive Certificate.
(i) Any person having a beneficial interest in a Global Certificate may
transfer or exchange such beneficial interest for a Definitive
Certificate upon receipt by the Transfer Agent of written
instructions or such other form of instructions as is customary for
the Depositary from the Depositary or its nominee on behalf of any
person having a beneficial interest in a Global Certificate,
including a written order containing registration instructions and,
in the case of
-24-
any such transfer or exchange prior to the Resale Restriction
Termination Date, the following additional information and
documents:
(A) if such beneficial interest is being transferred to the person
designated by the Depositary as being the beneficial owner, a
certification from such person to that effect (in
substantially the form of Exhibit C hereto); or
(B) if such beneficial interest is being transferred to a QIB in
accordance with Rule 144A under the Securities Act, a
certification from the transferor to that effect (in
substantially the form of Exhibit C hereto); or
(C) if such beneficial interest is being transferred to an
Institutional Accredited Investor, delivery by the transferor
of a certification to that effect (in substantially the form
of Exhibit C hereto), and delivery by the proposed transferee
of a Transferee Certificate for Institutional Accredited
Investors (in substantially the form of Exhibit D hereto); or
(D) if such beneficial interest is being transferred in reliance
on Regulation S under the Securities Act, delivery by the
transferor of (i) a certification to that effect (in
substantially in the form of Exhibit C hereto), and (ii) a
Certificate for Regulation S Transfers in the form of Exhibit
E hereto; or
(E) if such beneficial interest is being transferred in reliance
on Rule 144 under the Securities Act, delivery by the
transferor of (i) a certification to that effect (in
substantially the form of Exhibit C hereto) and (ii) an
opinion of counsel reasonably satisfactory to the Company or
the LLC, as the case may be, to the effect that such transfer
is in compliance with the Securities Act; or
(F) if such beneficial interest is being transferred in reliance
on another exemption from the registration requirements of the
Securities Act, a certification from the transferor to that
effect (in substantially the form of Exhibit C hereto)
-25-
and an opinion of counsel reasonably satisfactory to the
Company or the LLC, as the case may be, to the effect that
such transfer is in compliance with the Securities Act;
provided that the Company or the LLC, as the case may be, may
instruct the Transfer Agent not to register such transfer in
any case where the proposed transferee is not a QIB, non-U.S.
Person or Institutional Accredited Investor;
then the Transfer Agent will cause, in accordance with the standing
instructions and procedures existing between the Depositary and the
Transfer Agent, the aggregate amount of the Global Certificate to be
reduced and, following such reduction, the Company will execute and,
upon receipt of an authentication order in the form of an officers'
certificate (a certificate signed by two officers of such company,
one of whom must be the principal executive officer, principal
financial officer or principal accounting officer) (an "Officers'
Certificate"), the Transfer Agent will authenticate and deliver to
the transferee a Definitive Certificate.
(ii) Definitive Certificates issued in exchange for a beneficial interest
in a Global Certificate pursuant to this Section 3.5(d) shall be
registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Transfer Agent in
writing. The Transfer Agent shall deliver such Definitive
Certificates to the persons in whose names such Shares are so
registered and adjust the Global Certificate pursuant to paragraph
(h) of this Section 3.5.
(e) Restrictions on Transfer or Exchange of Global Certificates.
Notwithstanding any other provisions of this Agreement (other than the
provisions set forth in subsection (f) of this Section 3.5), a Global
Certificate may not be transferred or exchanged as a whole except by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary.
(f) Authentication of Definitive Certificates in Absence of
Depositary. If at any time:
-26-
(i) the Depositary for the Global Certificates notifies the Company that
the Depositary is unwilling or unable to continue as Depositary for
the Global Certificate and a successor Depositary for the Global
Certificate is not appointed by the Company within 90 days after
delivery of such notice; or
(ii) the Company and, if prior to the occurrence of a Liquidation Event,
the LLC, notify the Transfer Agent in writing that it elects to
cause the issuance of Definitive Certificates for all Global
Certificates under this Agreement,
then the Company and, if applicable, the LLC, will execute, and the Transfer
Agent will, upon receipt of an Officers' Certificate requesting the
authentication and delivery of Definitive Certificates, authenticate and deliver
Definitive Certificates, in an aggregate number equal to the aggregate number of
Shares represented by the Global Certificate, in exchange for such Global
Certificate.
(g) Private Placement Legend. Upon the registration of transfer,
exchange or replacement of Share certificates not bearing the legend set forth
in the first paragraph of Exhibit A attached hereto (the "Private Placement
Legend"), the Transfer Agent shall deliver Share certificates that do not bear
the Private Placement Legend. Upon the registration of transfer, exchange or
replacement of Share certificates bearing the Private Placement Legend, the
Transfer Agent shall deliver Share certificates that bear the Private Placement
Legend unless, and the Transfer Agent is hereby authorized to deliver Share
certificates without the Private Placement Legend if, (i) the requested transfer
is not prior to the date which is two years (or such shorter period as may be
prescribed by Rule 144(k) (or any successor provision thereto) under the
Securities Act or any successor provision thereunder) after the later of the
original Issue Date of the Shares or the last day on which the Company or the
LLC, as the case may be, or any of its Affiliates was the owner of the Shares or
any predecessor security, (ii) there is delivered to the Transfer Agent an
opinion of counsel reasonably satisfactory to the Company and the Transfer Agent
to the effect that neither such legend nor the related restrictions on transfer
are required in order to maintain compliance with the provisions of the
Securities Act or (iii) the Shares to be transferred or exchanged represented by
such Share Certificates are being transferred or exchanged pursuant to an
effective registration statement under the Securities Act.
-27-
(h) Cancellation or Adjustment of a Global Certificate. At such time
as all beneficial interests in a Global Certificate have either been exchanged
for Definitive Certificates, redeemed, repurchased or cancelled, such Global
Certificate shall be returned to the Company or the LLC, as the case may be, or,
upon written order to the Transfer Agent in the form of an Officers' Certificate
from the Company or the LLC, as the case may be, retained and cancelled by the
Transfer Agent. At any time prior to such cancellation, if any beneficial
interest in a Global Certificate is exchanged for Definitive Certificates,
redeemed, repurchased or cancelled, the number of Shares represented by such
Global Certificate shall be reduced and an endorsement shall be made on such
Global Certificate by the Transfer Agent to reflect such reduction.
(i) Obligations with Respect to Transfers or Exchanges of Definitive
Certificates.
(i) To permit registrations of transfers or exchanges, the Company or
the LLC, as the case may be, shall execute, at the Transfer Agent's
request, and the Transfer Agent shall authenticate Definitive
Certificates and Global Certificates.
(ii) All Definitive Certificates and Global Certificates issued upon any
registration, transfer or exchange of Definitive Certificates or
Global Certificates shall be the valid obligations of the Company or
the LLC, as the case may be, entitled to the same benefits under
this Agreement as the Definitive Certificates or Global Certificates
surrendered upon the registration of transfer or exchange.
(iii) Prior to due presentment for registration of transfer of any Shares,
the Transfer Agent and the Company or the LLC, as the case may be,
may deem and treat the person in whose name any Shares are
registered as the absolute owner of such Shares, and neither the
Transfer Agent nor the Company or the LLC, as the case may be, shall
be affected by notice to the contrary.
(j) Compliance. Other than following the applicable terms and
requirements of this Agreement, the Transfer Agent shall have no additional duty
to monitor compliance with federal, state or other securities laws.
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3.6. Lost, Stolen, Destroyed, Defaced or Mutilated Share
Certificates. Upon receipt by the Company and the Transfer Agent (or any agent
of the Company or the Transfer Agent, if requested by the Company) of evidence
satisfactory to them of the loss, theft, destruction, defacement, or mutilation
of any Share certificate and of an indemnity bond satisfactory to them and, in
the case of mutilation or defacement, upon surrender thereof to the Transfer
Agent for cancellation, then, in the absence of notice to the Company or the
Transfer Agent that such Share certificate has been acquired by a bona fide
purchaser or holder in due course, the Company shall execute, and an authorized
signatory of the Transfer Agent shall manually authenticate and deliver, in
exchange for or in lieu of the lost, stolen, destroyed, defaced or mutilated
Share certificate, a new Share certificate representing a like number of Shares,
bearing a number or other distinguishing symbol not contemporaneously
outstanding. Upon the issuance of any new Share certificate under this Section
in a name other than the prior registered holder of the lost, stolen, destroyed,
defaced or mutilated Share certificate, the Company or the LLC, as the case may
be, may require the payment from the holder of such Share certificate of a sum
sufficient to cover any tax, stamp tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Transfer Agent) in connection therewith. Every substitute Share
certificate executed and delivered pursuant to this Section in lieu of any lost,
stolen or destroyed Share certificate shall constitute an additional contractual
obligation of the Company or the LLC, as the case may be, whether or not the
lost, stolen or destroyed Share certificate shall be at any time enforceable by
anyone, and shall be entitled to the benefits of (but shall be subject to all
the limitations of rights set forth in) this Agreement equally and
proportionately with any and all other Share certificates duly executed and
delivered hereunder. The provisions of this Section 3.6 are exclusive with
respect to the replacement of lost, stolen, destroyed, defaced or mutilated
Share certificates and shall preclude (to the extent lawful) any and all other
rights or remedies notwithstanding any law or statute existing or hereafter
enacted to the contrary with respect to the replacement of lost, stolen,
destroyed, defaced or mutilated Share certificates.
3.7. Separation of Shares and Notes. The Notes and the LLC Shares
will not be separately transferable until the Separability Date. "Separability
Date" shall mean the earliest to occur of: (i) six months after the offering,
(ii) the date on which a registration statement under the Securities Act,
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with respect to a registered exchange offer for the Notes or covering the sale
by holders of the Notes is declared effective under the Securities Act, (iii)
the occurrence of an Event of Default (as defined in the Indenture), (iv)
immediately prior to the occurrence of a Change of Control (as defined in the
Indenture) or (v) such earlier date as may be determined by ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
in its sole discretion and specified to the Company, the LLC, the Trustee, the
Transfer Agent and the Unit Agent in writing. Notwithstanding the foregoing, in
the event a Change of Control (as defined in the Indenture) is proposed and the
Company commences a Change of Control Offer (as defined in the Indenture) prior
to the Separability Date, as determined by the preceding sentence, the
Separability Date shall be such earlier date of commencement. The separation of
the Shares and the Notes is herein referred to as a "Separation."
4. Registration Procedures.
In connection with the obligations of the Company with respect to
any Registration Statement pursuant to Sections 2.1 and 2.2 hereof, the Company
shall:
(a) A reasonable period of time prior to the initial filing of a
Registration Statement or Prospectus and a reasonable period of time prior
to the filing of any amendment or supplement thereto (including any
document that would be incorporated or deemed to be incorporated therein
by reference), furnish to the Holders of the Registrable Securities
included in such Registration Statement, and the managing underwriters, if
any, copies of all such documents proposed to be filed, which documents
(other than those incorporated or deemed to be incorporated by reference)
will be subject to the review of such Holders, and such underwriters, if
any, and use reasonable commercial efforts to cause the officers and
directors of the Company, counsel to the Company and independent certified
public accountants to the Company to respond to such reasonable inquiries
as shall be necessary, in the opinion of respective counsel to such
Holders and such underwriters, to conduct a reasonable investigation
within the meaning of the Securities Act. The Company shall not file any
such Registration Statement or related Prospectus or any amendments or
supplements thereto to which the Holders of a majority of the Registrable
Securities included in such Registration Statement shall reasonably object
on a timely basis;
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(b) Prepare and file with the SEC such amendments, including
post-effective amendments, to each Registration Statement as may be
necessary to keep such Registration Statement continuously effective for
the applicable time period required hereunder (except for Black Out
Periods); cause the related Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed pursuant to Rule
424 under the Securities Act; and comply with the provisions of the
Securities Act and the Exchange Act with respect to the disposition of all
securities covered by such Registration Statement during such period in
accordance with the intended methods of disposition by the sellers thereof
set forth in such Registration Statement as so amended or in such
Prospectus as so supplemented;
(c) Notify the holders of Registrable Securities to be sold and the
managing underwriters, if any, promptly, and (if requested by any such
person), confirm such notice in writing, (i)(A) when a Prospectus or any
Prospectus supplement or post-effective amendment is proposed to be filed,
and (B) with respect to a Registration Statement or any post-effective
amendment, when the same has become effective, (ii) of any request by the
SEC or any other Federal or state governmental authority for amendments or
supplements to a Registration Statement or related Prospectus or for
additional information, (iii) of the issuance by the SEC, any state
securities commission, any other governmental agency or any court or any
stop order, order or injunction suspending or enjoining the use of a
Prospectus or the effectiveness of a Registration Statement 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, and (v) of the happening of any event
or information becoming known that makes any statement made in a
Registration Statement or related Prospectus untrue in any material
respect or that requires the making of any changes in such Registration
Statement or Prospectus so that, in the case of a Registration Statement,
it will not contain any untrue statement of a material
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fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and that in the
case of a Prospectus, it will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(d) Use its reasonable best efforts to avoid the issuance of or, if
issued, obtain the withdrawal of any order enjoining or suspending the use
of a Prospectus or the effectiveness of a Registration Statement or the
lifting of any suspension of the qualification (or exemption from
qualification) of any of the Registrable Securities for sale in any
jurisdiction described in Section 4(h), at the earliest practicable
moment;
(e) If requested by the managing underwriters, if any, (i) promptly
incorporate in a Prospectus supplement or post-effective amendment such
information as the managing underwriters, if any, reasonably believe
should be included therein, and (ii) make all required filings of such
Prospectus supplement or such post-effective amendment under the
Securities Act as soon as practicable after the Company has received
notification of the matters to be incorporated in such Prospectus
supplement or post-effective amendment; provided, however, that the
Company shall not be required to take any action pursuant to this Section
4(e) that would, in the opinion of counsel for the Company, violate
applicable law;
(f) Upon written request to the Company, furnish to each Holder of
Registrable Securities to be sold pursuant to a Registration Statement and
each managing underwriter, if any, without charge, at least one conformed
copy of such Registration Statement and each amendment thereto, including
financial statements and schedules, all documents incorporated or deemed
to be incorporated therein by reference, and all exhibits to the extent
requested (including those previously furnished or incorporated by
reference) as soon as practicable after the filing of such documents with
the SEC;
(g) Deliver to each Holder of Registrable Securities to be sold
pursuant to a Registration Statement, and the underwriters, if any,
without charge, as many copies of the Prospectus (including each form of
prospectus) and each amendment or supplement thereto as such persons
reasonably request; and the Company hereby consents to the use of such
Prospectus and each amendment or supplement thereto by each of the selling
holders of Registrable Securities and the underwriters, if any, in
connection with
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the offering and sale of the Registrable Securities covered by such
Prospectus and any amendment or supplement thereto;
(h) Prior to any public offering of Registrable Securities, use its
reasonable best efforts to register or qualify or cooperate with the
Holders of Registrable Securities to be sold, the underwriters, if any,
and their respective counsel 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 such jurisdictions as any such Holder or underwriter
reasonably requests in writing; keep each such registration or
qualification (or exemption therefrom) effective during the period such
Registration Statement is required to be kept effective hereunder and do
any and all other acts or things necessary or advisable to enable the
disposition in such jurisdictions of the Registrable Securities covered by
the applicable Registration Statement; provided, however, 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 (ii) take any action
which would subject it to general service of process or to taxation in any
jurisdiction where they are not so subject;
(i) In connection with any sale or transfer of Registrable
Securities that will result in such securities no longer being Registrable
Securities, cooperate with the Holders thereof and the managing
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold, which
certificates shall not bear any restrictive legends and shall be in a form
eligible for deposit with The Depository Trust Company and to enable such
Registrable Securities to be in such denominations and registered in such
names as the managing underwriters, if any, or such Holders may request at
least two Business Days prior to any sale of Registrable Securities;
(j) Upon the occurrence of any event contemplated by Section
4(c)(v), except during Black Out Periods as promptly as practicable,
prepare a supplement or amendment, including, if appropriate, a
post-effective amendment, to each Registration Statement or a supplement
to the related Prospectus or any document incorporated or deemed to be
incorporated therein by reference, and file
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any other required document so that, as thereafter delivered, such
Prospectus will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading;
(k) Enter into such agreements (including an underwriting agreement
in form, scope and substance as is customary in underwritten offerings)
and take all such other reasonable actions in connection therewith
(including those reasonably requested by the managing underwriters, if
any) in order to expedite or facilitate the disposition of such
Registrable Securities, and, whether or not an underwriting agreement is
entered into and whether or not the registration is an underwritten
registration, (i) make such representations and warranties to the
underwriters and selling Holders, if any, with respect to the business of
the Company and its subsidiaries (including with respect to businesses or
assets acquired or to be acquired by any of them), and the Registration
Statement, Prospectus and documents, if any, incorporated or deemed to be
incorporated by reference therein, in each case, in form, substance and
scope as are customarily made by issuers to underwriters in underwritten
offerings, and confirm the same if and when requested; (ii) in the case of
an underwritten offering, obtain opinions of counsel to the Company and
updates thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the managing underwriters, addressed
to each of the underwriters, and selling Holders), covering the matters
customarily covered in opinions requested in underwritten offerings and
such other matters as may be reasonably requested by such underwriters or
selling Holders; (iii) use their reasonable best efforts to obtain
customary "cold comfort" letters and updates thereof from the independent
certified public accountants of the Company (and, if necessary, any other
independent certified public accountants of any subsidiary of the Company
or of any business acquired by the Company for which financial statements
and financial data is, or is required to be, included in the Registration
Statement), addressed (where reasonably possible) to each of the
underwriters and selling Holders, if any, such letters to be in customary
form and covering matters of the type customarily covered in "cold
comfort" letters in connection with underwritten offerings; (iv) if an
underwriting agreement is entered into, the same shall contain
indemnification provisions
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and procedures no less favorable to the underwriters, if any, than those
set forth in Section 5 hereof (or such other provisions and procedures
acceptable to the managing underwriters, if any); and (v) deliver such
documents and certificates as may be reasonably requested by the managing
underwriters, if any, to evidence the continued validity of the
representations and warranties made pursuant to clause (i) above and to
evidence compliance with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Company;
(l) Make available for inspection by a representative of any
underwriter participating in any such disposition of Registrable
Securities, and any attorney, consultant or accountant retained by such
selling Holders or underwriter, at the offices where normally kept, during
reasonable business hours, all pertinent financial and other records,
corporate documents and properties of the Company and its subsidiaries
(including with respect to businesses and assets acquired or to be
acquired to the extent that such information is available to the Company),
and cause the officers, directors, agents and employees of the Company and
its subsidiaries (including with respect to businesses and assets acquired
or to be acquired to the extent that such information is available to the
Company) to supply all information in each case reasonably requested by
any such representative, underwriter, attorney, consultant or accountant
in connection with such Registration Statement; provided, however, that
such persons shall first agree in writing with the Company that any
information that is reasonably and in good faith designated by the Company
in writing as confidential at the time of delivery of such information
shall be kept confidential by such Persons, unless (i) disclosure of such
information is required by court or administrative order or is necessary
to respond to inquiries of regulatory authorities, (ii) disclosure of such
information is required by law (including any disclosure requirements
pursuant to Federal securities laws in connection with the filing of the
Registration Statement or the use of any Prospectus), (iii) such
information becomes generally available to the public other than as a
result of a disclosure or failure to safeguard such information by such
Person or (iv) such information becomes available to such Person from a
source other than the Company and its subsidiaries and such source is not
bound by a confidentiality agreement;
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(m) Comply with all applicable rules and regulations of the SEC and
make generally available to their securityholders earnings statements
satisfying the provisions of Section 11(a) of the Securities Act and Rule
158 under the Securities Act, no later than 45 days after the end of any
12-month period (or 90 days after the end of any 12-month period if such
period is a fiscal year) (i) commencing at the end of any fiscal quarter
in which Registrable Securities are sold to underwriters in a firm
commitment or reasonable efforts underwritten offering and (ii) if not
sold to underwriters in such an offering, commencing on the first day of
the first fiscal quarter after the effective date of a Registration
Statement, which statement shall cover said period, consistent with the
requirements of Rule 158 under the Securities Act; and
(n) Cooperate with each seller of Registrable Securities covered by
any Registration Statement and each underwriter, if any, participating in
the disposition of such Registrable Securities and their respective
counsel in connection with any filings required to be made with the
National Association of Securities Dealers, Inc.
The Company may require a Holder of Registrable Securities to be
included in a Registration Statement to furnish to the Company such information
regarding (i) the intended method of distribution of such Registrable Securities
(ii) such Holder and (iii) the Registrable Securities held by such Holder as is
required by law to be disclosed in such Registration Statement and the Company
may exclude from such Registration Statement the Registrable Securities of any
Holder who unreasonably fails to furnish such information within a reasonable
time after receiving such request. The Company shall not be required to provide
indemnification to any Underwriter or any other person relating to information
referred to in clauses (i) and (ii) provided to the Company in writing
specifically for inclusion in such Registration Statement.
If any such Registration Statement refers to any Holder by name or
otherwise as the Holder of any securities of the Company, then such Holder shall
have the right to require (i) the insertion therein of language, in form and
substance reasonably satisfactory to such Holder, to the effect that the holding
by such Holder of such securities is not to be construed as a recommendation by
such Holder of the investment quality of the Company's securities covered
thereby and that such holding does not imply that such Holder will assist in
meeting any future financial requirements of the Company, or
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(ii) in the event that such reference to such Holder by name or otherwise is not
required by the Securities Act, the deletion of the reference to such Holder in
any amendment or supplement to the Registration Statement filed or prepared
subsequent to the time that such reference ceases to be required.
Each Holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 4(c)(ii), 4(c)(iii),
4(c)(iv) or 4(c)(v) hereof, such Holder will forthwith discontinue disposition
of such Registrable Securities covered by such Registration Statement or
Prospectus until such Holder's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 4(j) hereof, or until it is advised
in writing (the "Advice") by the Company that the use of the applicable
Prospectus may be resumed, 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. If the Company shall give any such
notice, the Effectiveness Period shall be extended by the number of days during
such period from and including the date of the giving of such notice to and
including the date when each Holder of Registrable Securities covered by such
Registration Statement shall have received (x) the copies of the supplemented or
amended Prospectus contemplated by Section 4(j) hereof or (y) 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.
5. Indemnification and Contribution.
(a) Each Issuer agrees, jointly and severally, to indemnify and hold
harmless each Initial Purchaser, each Holder, each underwriter who participates
in an offering of Registrable Securities, their respective Affiliates, each
Person, if any, who controls any of such parties within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act and each of their
respective directors, officers, employees and agents, as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, joint or several, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement (or any amendment thereto), covering Registrable
Securities, including all documents incorporated therein by reference, or
the omission or alleged omission there-
-37-
from of a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in any Prospectus
(or any amendment or supplement thereto) or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, joint or several, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or
proceeding by any court or governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission;
provided that (subject to Section 5(d) below) any such settlement is
effected with the written consent of the Issuers; and
(iii) against any and all expenses whatsoever, as incurred
(including reasonable fees and disbursements of one counsel chosen by
▇▇▇▇▇▇▇ ▇▇▇▇▇), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any court or governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under subparagraph (i) or (ii) of this Section 5(a);
provided that this indemnity does not apply to any loss, liability, claim,
damage or expense to the extent arising out of an untrue statement or omission
or alleged untrue statement or omission (i) made in reliance upon and in
conformity with written information furnished to any Issuer by an Initial
Purchaser, such Holder or any underwriter in writing expressly for use in the
Registration Statement (or any amendment thereto) or any Prospectus (or any
amendment or supplement thereto) or (ii) contained in any preliminary prospectus
if such Initial Purchaser, such Holder or such underwriter failed to send or
deliver a copy of the Prospectus (in the form it was first provided to such
parties for confirmation of sales) to the Person asserting such losses, claims,
damages or liabilities on or prior to the delivery of written confirmation of
any sale of securities covered thereby to such Person in any case where
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such delivery is required by the Securities Act and such Prospectus would have
corrected such untrue statement or omission. Any amounts advanced by any Issuer
to an indemnified party pursuant to this Section 5 as a result of such losses
shall be returned to such Issuer if it shall be finally determined by such a
court in a judgment not subject to appeal or final review that such indemnified
party was not entitled to indemnification by any Issuer.
(b) By accepting the benefits of this Agreement, each Holder agrees,
severally and not jointly, to indemnify and hold harmless the Issuers, each
Initial Purchaser, each underwriter who participates in an offering of
Registrable Securities and the other selling Holders and each of their
respective directors, officers (including each officer of the Issuers who signed
the Registration Statement), employees and agents and each Person, if any, who
controls the Issuers, an Initial Purchaser through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for
use in the Offering Memorandum, any underwriter or any other selling Holder
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any and all loss, liability, claim, damage and
expense whatsoever described in the indemnity contained in Section 5(a) hereof,
as incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto) or any Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Issuers by such selling Holder expressly for use in the Registration Statement
(or any amendment thereto), or any such Prospectus (or any amendment or
supplement thereto).
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability hereunder to
the extent it is not materially prejudiced as a result thereof and in any event
shall not relieve it from any liability which it may have otherwise than on
account of this indemnity agreement. In the case of parties indemnified pursuant
to Section 5(a) above, counsel to the indemnified parties shall be selected by
▇▇▇▇▇▇▇ ▇▇▇▇▇ and, in the case of parties indemnified pursuant to Section 5(b)
above, counsel to the indemnified parties shall be selected by the Issuers.
Notwithstanding the foregoing sentence, 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
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participate therein and, to the extent it may wish, jointly with any other
indemnifying party similarly notified, unless such indemnified party shall have
one or more legal defenses available to it which are not available to the
indemnifying party, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party. After notice from the indemnifying party
to such indemnified party of its election as aforesaid to assume the defense
thereof and approval by such indemnified party of counsel appointed to defend
such action, the indemnifying party will not be liable to such indemnified party
under this Section 5 for any legal or other expenses other than reasonable costs
of investigation, subsequently incurred by such indemnified party in connection
with the defense thereof. An indemnifying party may participate at its own
expense in the defense of any such action; provided, however, that counsel to
the indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall the
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any Judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution could
be sought under this Section 5 (whether or not the indemnified parties are
actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 5(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying
-41-
party shall not have reimbursed such indemnified party in accordance with such
request prior to the date of such settlement.
(e) In order to provide for just and equitable contribution in
circumstances under which any of the indemnity provisions set forth in this
Section 5 is for any reason held to be unavailable to the indemnified parties
although applicable in accordance with its terms, the Issuers, each Initial
Purchaser and the Holders shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by such indemnity
agreement incurred by the Issuers, the Initial Purchasers and the Holders, as
incurred; provided that 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 that was not guilty of such fraudulent
misrepresentation. As between the Issuers, the Initial Purchasers and the
Holders, such parties shall contribute to such aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by such indemnity
agreement in such proportion as shall be appropriate to reflect the relative
fault of either of the Issuers, on the one hand, and the Initial Purchasers and
the Holders, on the other hand, with respect to the statements or omissions
which resulted in such loss, liability, claim, damage or expense, or action in
respect thereof, as well as any other relevant equitable considerations. The
relative fault of either of the Issuers, on the one hand, and of the Initial
Purchasers and the Holders, on the other hand, 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 either of the Issuers, on the one hand, or by
or on behalf of an Initial Purchaser or the Holders, on the other, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Issuers, the Initial
Purchasers and the Holders of the Registrable Securities agree that it would not
be just and equitable if contribution pursuant to this Section 5 were to be
determined by pro rata allocation or by any other method of allocation that does
not take into account the relevant equitable considerations. For purposes of
this Section 5, each Affiliate of each Initial Purchaser or a Holder, and each
director, officer, employee, agent and Person, if any, who controls an Initial
Purchaser or Holder or such Affiliate within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act shall have the same rights to
contribution as such Initial Purchaser or Holder, and each director of the any
Is-
-41-
▇▇▇▇, each officer of any Issuer who signed the Registration Statement, and
each Person, if any, who controls either Issuer within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act shall have the same
rights to contribution as the Issuers.
6. Rule 144A and Future IPOs
(a) The Company and the LLC shall use their respective 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 it is not required to file
such reports but in the past had been required to or did file such reports, it
will, upon the request of any holder or beneficial owner of Registrable
Securities, make available other information as required by, and so long as
necessary to permit, sales of Registrable Securities pursuant to Rule 144A.
Notwithstanding the foregoing, nothing in this Section 6 shall be deemed to
require the Company or the LLC to register any of its securities pursuant to the
Exchange Act.
(b) The Company hereby agrees not to make an Initial Public Equity
Offering of any class of Common Stock without amending, if necessary, the terms
of the Company's Estatutos to provide that the existing Common Stock is
convertible into such class of Common Stock on a share-for-share basis and that
the rights, conditions and privileges attaching to such class of Common Stock
are not adverse to holders of the existing Common Stock.
7. Underwritten Registrations
No Person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such Registrable Securities on the basis
reasonably provided in any underwriting arrangements approved by the Persons
entitled hereunder to approve such arrangements and (ii) completes and executes
all questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required under the terms of such underwriting arrangements.
8. Miscellaneous
(a) Remedies. In the event of a breach by the Company, the LLC, any
Shareholder or by a holder of Shares of any of its obligations under this
Agreement, each holder of Shares, the LLC, any Shareholder and the Company, in
addition to being entitled to exercise all rights granted by law, including re-
-42-
covery of damages, will be entitled to specific performance of its rights
under this Agreement. The Company, the LLC, any Shareholder and each holder of
Shares agree that monetary damages would not be adequate compensation for any
loss incurred by reason of a breach of any of the provisions of this Agreement
and each hereby further agrees that, in the event of any action for specific
performance in respect of such breach, it shall waive the defense that a remedy
at law would be adequate.
(b) No Inconsistent Agreements. Except for certain registration
rights granted to the Shareholders pursuant to the Registration Rights
Agreement, dated as of December 9, 1996, among the Company and the Shareholders,
the Company, the LLC and the Shareholders have not entered into and shall not
enter into any agreement that is inconsistent with the rights granted to the
holders of Shares and indemnified persons in this Agreement or otherwise
conflicts with the provisions hereof. Except for certain registration rights
granted to the Shareholders pursuant to the Registration Rights Agreement, dated
as of December 9, 1996, among the Company and the Shareholders, without the
written consent of the holders of a majority of the outstanding Shares
(including for this purpose the Percentage Interest of any holder of LLC
Shares), the Company, the LLC and the Shareholders have not granted and shall
not grant to any Person any rights which conflict with or are inconsistent with
the provisions of this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, otherwise than with the prior written consent of the holders
of not less than a majority of the then outstanding Shares and/or Registrable
Securities, as applicable (including for this purpose the Percentage Interest of
any holder of LLC Shares). Notwithstanding the foregoing, a waiver or consent to
depart from the provisions hereof with respect to a matter that relates
exclusively to the rights of Holders whose securities are being sold pursuant to
a Registration Statement and that does not directly or indirectly affect the
rights of other Holders may be given by Holders of a majority of the Registrable
Securities being sold by such Holders pursuant to such Registration Statement;
provided, however, that the provisions of this sentence may not be amended,
modified or supplemented except in accordance with the provisions of the
immediately preceding sentence. Notwithstanding the foregoing, no amendment,
modification, supplement, waiver or consent with respect to Section 5 shall be
made or given otherwise than with the prior
-43-
written consent of each Holder or former Holder affected thereby.
(d) Notices. All notices and other communications provided for
herein shall be made in writing by hand-delivery, next-day air courier,
certified first-class mail, return receipt requested, telex or telecopier:
(i) if to the Company, the LLC or the Initial Purchasers, as
provided in the Purchase Agreement,
(ii) if to the Shareholders, as follows:
Warburg, ▇▇▇▇▇▇ Ventures, L.P.
c/o ▇.▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co., Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Paging Network International N.V.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
IVP Paging (Cayman) L.P.
c/▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇
P.O. Box 309
▇▇▇▇▇▇ Town, Grand Cayman
Cayman Island, B.W.I.
TVA Sistema de Televisao ▇.▇.
▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
Sao Paulo, Brazil
Multiponto Telecomunicacoes Ltda.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇
▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇
(iii) if to any other Person who is then the registered holder of
Shares or Registrable Securities, to the address of such holder as it
appears in the register therefor of the Company or the LLC, as the case
may be.
Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given: when delivered by hand,
if personally delivered; one Business Day after being timely delivered to a
next-day air courier;
-44-
five Business Days after being deposited in the mail, postage prepaid, if
mailed; when answered back, if telexed; and when receipt is acknowledged by the
recipient's telecopier machine, if telecopied.
(e) 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 hereto and shall inure to the benefit of each holder of Shares and
Registrable Securities. Neither the Company nor the LLC may assign any of its
rights hereunder without the prior written consent of each holder of Shares and
Registrable Securities, provided that a merger or consolidation of the Company
with another Person pursuant to which the issuer or issuers of any securities
issued to holders of Shares or Registrable Securities in connection with such
merger or consolidation becomes obligated under this Agreement and each of the
Shareholders confirm their agreements with respect to the securities of such
issuer or issuers shall not be considered an assignment. Notwithstanding the
foregoing, no successor or assignee of the Company shall have any of the rights
granted under this Agreement until such Person shall acknowledge its rights and
obligations hereunder by a signed written statement of such Person's acceptance
of such rights and obligations. If any transferee of any holder shall acquire
Shares or Registrable Securities, in any manner, whether by operation of law or
otherwise, such Shares or Registrable Securities shall be held subject to all of
the terms of this Agreement, and by taking and holding such Shares or
Registrable Securities such person shall be conclusively deemed to have agreed
to be bound by and to perform all of the terms and provisions of this Agreement
and such person shall be entitled to receive the benefits hereof.
(f) Counterparts. This Agreement may be executed by manual or
facsimile signature in any number of counterparts and by the parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and, all of which taken together shall constitute one and the same
Agreement.
(g) Governing Law; Submission to Jurisdiction. THIS AGREEMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK.
THE COMPANY, THE LLC, THE SHAREHOLDERS AND THE INITIAL PURCHASERS HEREBY
IRREVOCABLY SUBMIT TO THE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN
THE BOROUGH OF MANHATTAN
-45-
IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN
IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT
OF OR RELATING TO THIS AGREEMENT, AND EACH IRREVOCABLY ACCEPTS FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE
AFORESAID COURTS.
(h) Severability. The remedies provided herein are cumulative and
not exclusive of any remedies provided by law. If any term, provision, covenant
or restriction of this Agreement is held by a court of competent jurisdiction to
be invalid, illegal, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions set forth herein shall remain in full
force and effect and shall in no way be affected, impaired or invalidated, and
the parties hereto shall use their 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.
(i) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof. All
references made in this Agreement to "Section" and "paragraph" refer to such
Section or paragraph of this Agreement, unless expressly stated otherwise.
(j) Agent for Service; Submission to Jurisdiction; Waiver of
Immunities. By the execution and delivery of this Agreement, each of the
Company, PNNV, IVP, TVA and MT (i) hereby designates and appoints CT Corporation
System, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ("CT Corporation System") (and any
successor entity), as its authorized agent upon which process may be served in
any suit or proceeding arising out of or relating to this Agreement that may be
instituted in any federal or state court in The City of New York, Borough of
Manhattan, State of New York or brought under federal or state securities laws,
and agrees to furnish to each other party hereto, promptly following the
execution hereof, satisfactory evidence that CT Corporation System has accepted
such designation, (ii) submits to the jurisdiction of any such court in any such
suit or proceeding and (iii) agrees that service of process upon CT Corporation
System and written notice of said service to the Company in accordance with
Section 8(d) shall be deemed in every respect effective service of process upon
each of the Issuers and the Shareholders, in any such suit or proceeding.
-46-
Each of the Issuers and the Shareholders further agrees to take any and all
action, including the execution and filing of any and all such documents and
instruments, as may be necessary to continue such designation and appointment of
CT Corporation System in full force and effect so long as any of the Units, the
Notes, the Exchange Notes or the Private Exchange Notes shall be outstanding;
provided that each of the Issuers and Shareholders may and to the extent CT
Corporation System ceases to be able to be served on the basis contemplated
herein shall, by written notice to the Initial Purchasers, designate such
additional or alternative agent for service of process under this Section 8(j)
that (i) maintains an office located in the Borough of Manhattan, City of New
York, State of New York and (ii) is either (x) counsel for such Issuer or
Shareholder or (y) a corporate service company which acts as agent for service
of process for other persons in the ordinary course of its business. Such
written notice shall identify the name of such agent for service of process and
the address of the office of such agent for service of process in the Borough of
Manhattan, City of New York, State of New York.
To the extent that any of the Issuers or Shareholders has or
hereafter may acquire any immunity from jurisdiction of any court of (i) any
jurisdiction in which they own or lease property or assets, (ii) the United
States or the State of New York or (iii) the Federative Republic of Brazil or
any political subdivision thereof or from any legal process (whether through
service of notice, attachment prior to judgment, attachment in aid of execution,
execution or otherwise) with respect to itself or its property and assets or
this Agreement or any of the Units, the Notes, Exchange Notes or Private
Exchange Notes (as those terms are defined in the Purchase Agreement) or actions
to enforce judgments in respect of any thereof, each of the Issuers and
Shareholders hereby irrevocably waives such immunity in respect of its
obligations under the above-referenced documents, to the extent permitted by
law.
-47-
IN WITNESS WHEREOF, the parties have caused this Equity Registration
Rights Agreement to be duly executed as of the date first written above.
PAGING NETWORK DO BRASIL S.A.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
PAGING BRAZIL HOLDING CO., LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Manager
WARBURG, ▇▇▇▇▇▇ VENTURES, L.P.
By Warburg, ▇▇▇▇▇▇ & Co.
its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Partner
PAGING NETWORK INTERNATIONAL N.V.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chairman and Chief
Executive Officer
-48-
IVP PAGING (Cayman) L.P.
By: IVP INTERNATIONAL VENTURE
PARTNERS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Partner
TVA SISTEMA DE TELEVISAO S.A.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ Giancarlo ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: Giancarlo ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Officers
MULTIPONTO TELECOMUNICACOES LTDA.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Dantas ▇▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Dantas ▇▇▇▇▇▇▇▇▇
Title: Attorney-in-fact
▇▇▇▇▇ ▇▇▇▇▇▇ Shareholder Services
as Transfer Agent with respect to
Sections 3.2 and 3.5 hereof only
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Assistant Vice President
-49-
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
By: ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
By: /s/ ▇▇▇▇ ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
EXHIBIT A
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR
OTHER SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS THE TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS
SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501(a)(1), (2), (3,) OR (7) UNDER THE SECURITIES ACT) (AN
"INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS
ACQUIRING THIS SECURITY IN AN "OFFSHORE TRANSACTION" PURSUANT TO
REGULATION S, (2) AGREES THAT IT WILL NOT PRIOR TO (X) THE DATE WHICH IS
TWO YEARS (OR SUCH SHORTER PERIOD AS MAY BE PRESCRIBED BY RULE 144(K) (OR
ANY SUCCESSOR PROVISION THEREOF) UNDER THE SECURITIES ACT) AFTER THE LATER
OF THE ORIGINAL ISSUE DATE HEREOF (OR OF ANY PREDECESSOR OF THIS SECURITY)
OR THE LAST DAY ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS
THE OWNER OF THIS SECURITY OR ANY PREDECESSOR OF THIS SECURITY AND (Y)
SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAWS (THE
"RESALE RESTRICTION TERMINATION DATE"), OFFER, SELL OR OTHERWISE TRANSFER
THIS SECURITY EXCEPT (A) TO THE ISSUER OR ANY OF ITS SUBSIDIARIES, (B)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE
UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE
FOR RESALE PURSUANT TO RULE ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO
OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE
A-1
UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT,
PURSUANT TO RULE 904 OF REGULATION S, (E) TO AN INSTITUTIONAL ACCREDITED
INVESTOR THAT IS ACQUIRING THE SECURITIES FOR ITS OWN ACCOUNT, OR FOR THE
ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH,
ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, (3) AGREES THAT IT SHALL BE BOUND, TO THE EXTENT
APPLICABLE, BY THE TERMS OF THE EQUITY REGISTRATION RIGHTS AGREEMENT DATED
AS OF [ ], 1997 AND (4) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM
THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER
THE RESALE RESTRICTION TERMINATION DATE. AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE
RESPECTIVE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES
ACT.
A-2
EXHIBIT B
FORM OF LEGEND FOR GLOBAL CERTIFICATE
Any Global Certificate authenticated and delivered hereunder shall
bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE
EQUITY REGISTRATION RIGHTS AGREEMENT HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE OF A DEPOSITORY OR A
SUCCESSOR DEPOSITORY. THIS SECURITY IS NOT EXCHANGEABLE FOR SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS
NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE EQUITY
REGISTRATION RIGHTS AGREEMENT, AND NO TRANSFER OF THIS SECURITY (OTHER
THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE DEPOSITORY TO A NOMINEE
OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR
ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE EQUITY REGISTRATION RIGHTS AGREEMENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
B-1
EXHIBIT C
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR
REGISTRATION OF TRANSFER OF SECURITIES
Re: PAGING NETWORK DO BRASIL S.A. (the "Company")
PAGING BRAZIL HOLDING CO., LLC (the "LLC")
Check the appropriate boxes in A or B below:
A. This Certificate relates to ____ Common Stock of the Company (the
"Common Stock") held in* ___ book-entry or* _______ certificated form by ______
(the "Transferor").
B. This Certificate relates to ____ Class B Holding Shares in the
LLC held in* ___ book-entry or*_______ certificated form by ______ (the
"Transferor").
The Common Stock or the Class B Holding Shares, as applicable, are
herein referred to as the "Securities".
The Transferor:*
|_| has requested the Transfer Agent by written order to deliver in
exchange for its beneficial interest in the Global Certificate held by the
Depositary, Securities in definitive, registered form of authorized
denominations and an aggregate number equal to its beneficial interest in such
Global Certificate (or the portion thereof indicated above); or
|_| has requested the Transfer Agent by written order to exchange or
register the transfer of Securities.
In connection with such request and in respect of such Securities,
the Transferor does hereby certify that Transferor is familiar with the Equity
Registration Rights Agreement relating to the above captioned Securities and the
restrictions on transfers thereof as provided in Section 3.5 of such Equity
Registration Rights Agreement, and that the transfer of the Securities does not
require registration under the Securities Act of 1933, as amended (the "Act")
because[*]:
C-1
|_| Such Securities are being acquired for the Transferor's own
account, without transfer (in satisfaction of Section 3.5(_) of the Equity
Registration Rights Agreement).
|_| Such Securities are being transferred to a qualified
institutional buyer (as defined in Rule 144A under the Act), in reliance on Rule
144A.
|_| Such Securities are being transferred to an institutional
"accredited investor" (within the meaning of subparagraphs (a)(1), (2), (3) or
(7) of Rule 501 under the Act).
|_| Such Securities are being transferred in reliance on Regulation
S under the Act.
|_| Such Securities are being transferred in accordance with Rule
144 under the Act.
|_| Such Securities are being transferred in reliance on and in
compliance with an exemption from the registration requirements of the Act.
------------------------------
[INSERT NAME OF TRANSFEROR]
By:
--------------------------
Date:
----------------------
*Check applicable box.
C-2
EXHIBIT D
Form of Certificate to Be
Delivered in Connection with
Transfers to Institutional Accredited Investors
-------------, ----
The Chase Manhattan Bank
New York, New York
Attention: Corporate Trust Department
Re: PAGING NETWORK DO BRASIL S.A. (the "Company")
PAGING BRAZIL HOLDING CO., LLC (the "LLC")
Check the appropriate boxes in A or B below:
A. This Certificate relates to ____ Common Stock of the Company (the
"Common Stock") held in* ___ book-entry or* _______ certificated form by ______
(the "Transferor").
B. This Certificate relates to ____ Class B Holding Shares in the
LLC held in*___ book-entry or*_______ certificated form by ______ (the
"Transferor").
The Common Stock or the Class B Holding Shares, as applicable, are
herein referred to as the "Securities".
Ladies and Gentlemen:
In connection with our proposed purchase of Securities we confirm
that:
(i) We have received such information as we deem necessary in order
to make our investment decision.
(ii) We understand that any subsequent transfer of the Securities is
subject to certain restrictions and conditions set forth in the Equity
Registration Rights Agreement and the undersigned agrees to be bound by, and not
to resell, pledge or otherwise transfer the Securities except in compli-
D-1
ance with, such restrictions and conditions and the Securities Act of 1933, as
amended (the "Securities Act").
(iii) We understand that the offer and sale of the Securities has
not been registered under the Securities Act, and that the Securities may not be
offered or sold within the United States or to, or for the account or benefit
of, U.S. persons except as permitted in the following sentence. We agree, on our
own behalf and on behalf of any accounts for which we are acting as hereinafter
stated, that if we should sell any Securities prior to (x) the date which is two
years after the later of the date of original issuance of the Securities (or
such shorter period as may be prescribed by Rule 144(k) under the Securities Act
or any successor provision thereto) or the last day on which the Company or any
affiliate of the Company was owner of such Securities, or any predecessor
thereto, and (y) such later date, if any, as may be required by applicable laws,
we will do so only (A) to the Company, (B) inside the United States in
accordance with Rule 144A under the Securities Act to a "qualified institutional
buyer" (as defined therein), (C) inside the United States to an institutional
"accredited investor" (as defined below) that, prior to such transfer, furnishes
(or has furnished on its behalf by a U.S. broker-dealer) to the Transfer Agent a
signed letter substantially in the form hereof, (D) outside the United States in
accordance with Regulation S under the Securities Act, (E) pursuant to the
exemption from registration provided by Rule 144 under the Securities Act (if
available) (F) pursuant to an effective registration statement under the
Securities Act or (G) pursuant to another available exemption under the
Securities Act, and we further agree to provide to any person purchasing
Securities from us a notice advising such purchaser that resales of the
Securities are restricted as stated herein.
(iv) We understand that, on any proposed resale of Securities, we
will be required to furnish to the Transfer Agent and the Company, such
certification, legal opinions and other information as the Transfer Agent and
the Company may reasonably require to confirm that the proposed sale complies
with the foregoing restrictions. We further understand that the Securities
purchased by us will bear a legend to the foregoing effect.
(v) We are an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and
have such knowledge and experi-
D-2
ence in financial and business matters as to be capable of evaluating the merits
and risks of our investment in the Securities, and we and any accounts for which
we are acting are each able to bear the economic risk of our or their
investment, as the case may be.
(vi) We are acquiring the Securities purchased by us for our account
or for one or more accounts (each of which is an institutional "accredited
investor") as to each of which we exercise sole investment discretion.
D-3
You and the Company and any counsel to the Company are entitled to
rely upon this letter and are irrevocably authorized to produce this letter or a
copy hereof to any interested party in any administrative or legal proceeding or
official inquiry with respect to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By:
---------------------------------
[Authorized Signatory]
Upon transfer the Securities would be registered in the name of the
new beneficial owner as follows:
Name:
------------------------------
Address:
---------------------------
Taxpayer ID Number:
----------------
D-4
EXHIBIT E
Form of Certificate to Be
Delivered in Connection
with Regulation S Transfers
---------------, ----
The Chase Manhattan Bank
New York, New York
Attention: Corporate Trust Department
Re: PAGING NETWORK DO BRASIL S.A. (the "Company")
PAGING BRAZIL HOLDING CO., LLC (the "LLC")
Check the appropriate boxes in A or B below:
A. This Certificate relates to ____ Common Stock of the Company (the
"Common Stock") held in* ___ book-entry or* _______ certificated form by ______
(the "Transferor").
B. This Certificate relates to ____ Class B Holding Shares in the
LLC held in*___ book-entry or*_______ certificated form by ______ (the
"Transferor").
The Common Stock or the Class B Holding Shares, as applicable, are
herein referred to as the "Securities".
Ladies and Gentlemen:
In connection with our proposed sale of Securities, we confirm that
such sale has been effected pursuant to and in accordance with Regulation S
under the Securities Act of 1933, as amended (the "Securities Act"), and,
accordingly, we represent that:
(1) the offer of the Securities was not made to a person in the
United States;
(2) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting on
our behalf reasonably believed
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that the transferee was outside the United States, or (b) the transaction
was executed in, on or through the facilities of a designated off-shore
securities market and neither we nor any person acting on our behalf knows
that the transaction has been pre-arranged with a buyer in the United
States;
(3) no directed selling efforts have been made in the United States
in contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S under the Securities Act, as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act;
(5) we have advised the transferee of the transfer restrictions
applicable to the Securities; and
(6) if the circumstances set forth in Rule 904(c) under the
Securities Act are applicable, we have complied with the additional
conditions therein, including (if applicable) sending a confirmation or
other notice stating that the Securities may be offered and sold during
the restricted period specified in Rule 903(c)(2) or (3), as applicable,
in accordance with the provisions of Regulation S; pursuant to
registration of the Securities under the Securities Act; or pursuant to an
available exemption from the registration requirements under the Act.
You and the Company and any counsel to the Company are entitled to
rely upon this letter and are irrevocably authorized to produce this letter or a
copy hereof to any interested party in any administrative or legal proceedings
or official inquiry with respect to the matters covered hereby. Defined terms
used herein without definition have the respective meanings provided in
Regulation S under the Securities Act.
Very truly yours,
[Name of Transferor]
By:
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[Authorized Signature]
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Upon transfer the Securities would be registered in the name of the
new beneficial owner as follows:
Name:
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Address:
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Taxpayer ID Number:
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