EXHIBIT 4.8
TELESYSTEM INTERNATIONAL WIRELESS INC.
AS ISSUER
AND
THE HOLDERS
IDENTIFIED WITHIN
--------------------------------------------------------------------------------
SECOND AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
MARCH 17, 2004
--------------------------------------------------------------------------------
TABLE OF CONTENTS
PAGE
----
SECTION 1 AMENDMENT AND RESTATEMENT, DEFINITIONS 1
SECTION 2 U.S. AND CANADIAN DEMAND REGISTRATION RIGHTS 5
SECTION 3 PIGGYBACK REGISTRATION 7
SECTION 4 REGISTRATIONS ON FORM F-3 AND UNDER THE QUALIFYING
SHORT-FORM PROSPECTUS 9
SECTION 5 EXPENSES OF REGISTRATION 10
SECTION 6 REGISTRATION PROCEDURES 10
SECTION 7 INDEMNIFICATION 14
SECTION 8 INFORMATION BY THE HOLDERS 18
SECTION 9 RULE 144 REPORTING, ETC. 18
SECTION 10 NO CONFLICTS OF RIGHTS 19
SECTION 11 TERMINATION 19
SECTION 12 SUCCESSORS AND ASSIGNS 19
SECTION 13 ASSIGNMENT 19
SECTION 14 MERGERS, ETC. 20
SECTION 15 NOTICES 20
SECTION 16 ENTIRE AGREEMENT 22
SECTION 17 COUNTERPARTS; FACSIMILE SIGNATURES 22
SECTION 18 HEADINGS 22
SECTION 19 SEVERABILITY 22
SECTION 20 GOVERNING LAW 23
SECTION 21 LANGUAGE 23
SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT, dated as of March
17, 2004, among Telesystem International Wireless Inc. (the "ISSUER") and the
Holders (as defined below) (the "AGREEMENT")
WHEREAS certain shareholders of the Issuer and the Issuer are party to the
Amended and Restated Registration Rights Agreement, dated December 14, 2001 (the
"ORIGINAL REGISTRATION RIGHTS AGREEMENT");
WHEREAS one of those shareholders, Capital Communications CDPQ Inc., disposed of
all its shares in the Issuer on 25 September 2003;
WHEREAS pursuant to a Share Transfer Agreement by and among MobiFon Holdings
B.V, the Issuer and EEIF Melville B.V. dated 10 February 2004 and a Share Sale
and Purchase Agreement by and among the Issuer, Clearwave N.V., Emerging Europe
Infrastructure Fund C.V. and EEIF Czech N.V. dated 10 February 2004, EEIF
acquired, for valuable consideration, common shares of the Issuer;
WHEREAS, as a result of the foregoing transactions, the Issuer and the Holders
hereby desire to amend and restate the Original Registration Rights Agreement as
hereinafter set forth.
SECTION 1 AMENDMENT AND RESTATEMENT, DEFINITIONS
(a) With immediate effect, the Second Amended and Restated Registration Rights
Agreement is hereby amended and restated so that it will read and be construed
for all purposes as set out in this Agreement.
(b) As used in this Agreement, the following terms shall have the following
meanings:
"AFFILIATE" means, with respect to any Person, any Person that, directly or
indirectly, controls, is controlled by or is under common control with such
first-named Person. For purposes of the definition of Affiliate, the term
"control" (including the terms "controls", "controlled by", and "under common
control with") means the possession, direct or indirect, of the power to direct
or cause the direction of the management and policies of an entity, whether
through the ownership of voting securities, by contract or otherwise.
"BOARD" has the meaning ascribed to it in Section 2.6.
"CANADIAN SECURITIES LAWS" means all applicable securities laws, the respective
regulations, rules and orders made thereunder, and all applicable policy
statements and blanket rulings and orders promulgated by the Securities
Commissions.
"EEIF" means EEIF Melville B.V., Emerging Europe Infrastructure Fund C.V., and
EEIF Czech N.V. and their respective Affiliates and successors, acting
collectively.
1
"FINAL PROSPECTUS" has the meaning ascribed to it in Section 7.5.
"HOLDERS" means, collectively, (i) the Persons listed on Schedule 1 attached to
this Agreement and (ii) any Affiliate of any Person listed on Schedule 1
attached hereto.
"INDEMNIFIED PARTY" has the meaning ascribed to it in Section 7.3.
"INDEMNIFYING PARTY" has the meaning ascribed to it in Section 7.3.
"INITIATING HOLDER" has the meaning ascribed to it in Section 3.1.
"INSPECTOR" has the meaning ascribed to it in Section 6.3(i).
"ISSUER" has the meaning assigned to it in the preamble.
"▇▇ ▇▇▇▇▇▇" means ▇.▇. ▇▇▇▇▇▇ Partners (BCHA), L.P., JPMP TIW EH, L.P., AOF
Investment N.V., CEA Investment N.V. and CAIP Investment N.V., and any of their
Affiliates or successors, acting collectively.
"NASD" has the meaning ascribed to it in the definition of Registration
Expenses.
"NASDAQ" means the The Nasdaq Stock Market, Inc. (National Market and/or
SmallCap Market).
"OSA" means the Securities Act (Ontario), as amended.
"OTHER SHAREHOLDERS" means shareholders other than the Holders entitled to
piggyback registration rights under any contractual agreement of the Issuer,
including, without limitation, any Qualified Purchaser.
"OTHER SHARES" means shares of the Issuer, other than Registrable Securities,
subject to piggyback registration rights under any contractual agreement of the
Issuer.
"PERSON" means a natural person, partnership, limited liability partnership,
corporation, limited liability company, joint stock corporation, trust,
unincorporated association, joint venture or other entity or Governmental
Entity, and pronouns referring to a "Person" have a similarly extended meaning.
"PRIMARY OFFERING" has the meaning ascribed to it in Section 3.1.
"PRIMARY SHARES" has the meaning ascribed to it in Section 3.2(i).
"QUALIFIED PURCHASER" means each and every permitted successor to, or assignee
or transferee of, at least US$25,000,000 of Registrable Securities of any
Holder.
2
"QUALIFYING PROVINCE" means each of the provinces in Canada in which the Issuer
is a reporting issuer (or the equivalent).
"QUALIFYING SHORT-FORM PROSPECTUS REGIME" shall mean the short-form prospectus
regime under Canadian Securities Laws pursuant to National Instrument 44-101,
which is available for use in all Qualifying Provinces for all Registrable
Securities.
"RECORDS" has the meaning ascribed to it in Section 6.3(i).
The terms "REGISTER", "REGISTERED" and "REGISTRATION" refer, subject to the next
sentence hereof, to a registration effected by preparing and filing a
registration statement in compliance with the Securities Act (and any
post-effective amendments filed or required to be filed) and the declaration or
ordering of effectiveness of such registration statement. In addition, for
purposes hereof, unless inconsistent with the context:
(i) the term "REGISTRATION" and any references to the act of registering
includes the qualification under Canadian Securities Laws of a
prospectus for which a final receipt has been issued in respect of a
distribution or distribution to the public, as the case may be, of
Registrable Securities or Other Shares;
(ii) the term "REGISTERED" as applied to any Registrable Securities or Other
Shares includes a distribution or distribution to the public, as the
case may be, of any Registrable Securities or Other Shares;
(iii) the term "REGISTRATION STATEMENT" includes a prospectus filed under
Canadian Securities Laws in any Qualifying Province;
(iv) any references to a registration statement having become effective, or
similar references, shall include a prospectus filed under Canadian
Securities Laws in the Qualifying Provinces for which a final receipt
has been obtained from the relevant Canadian securities regulatory
authorities; and
(v) the provisions of this Agreement shall be applied, mutatis mutandis, to
any proposed distribution or distribution to the public, as the case
may be, of Registrable Securities or Other Shares hereunder in the
Qualifying Provinces or to which the prospectus requirements under any
of the Canadian Securities Laws shall otherwise apply.
"REGISTRABLE SECURITIES" shall mean the common shares of the Issuer owned by a
Holder (including shares acquired by conversion of series A, non-voting
participating preferred shares) from time to time and any securities issued as a
dividend or other distribution with respect to, or in exchange for or in
replacement of, or in any recapitalization, consolidation or split of, any such
securities owned by such Holder from time to time, provided, however, that any
such common share or other security of the Issuer shall only be treated as a
Registrable Security if and for so long as:
3
(i) it has not been (A) effectively registered for resale by such Holder
under the Securities Act or equivalent applicable Canadian Securities
Laws, (B) sold pursuant to Rule 144 under the Securities Act or
equivalent applicable Canadian Securities Laws, (C) to the extent such
Holder is not an Affiliate of the Issuer, saleable pursuant to Rule
144(k) under the Securities Act or equivalent applicable Canadian
Securities Laws, or (D) repurchased or otherwise acquired by the Issuer
or an Affiliate of the Issuer (other than such Holder), and
(ii) the sale would in the opinion of such Holder constitute a
"distribution" or "distribution to the public" or the equivalent under
applicable Canadian Securities Laws.
"REGISTRATION EXPENSES" shall mean all expenses incident to the Issuer's and the
Holder's performance of or compliance with its obligations under this Agreement,
including, without limitation, all SEC, National Association of Securities
Dealers ("NASD") and stock exchange, NASDAQ, Toronto Stock Exchange, the
Securities Commissions or other and applicable Canadian securities regulatory
authorities, in each case with respect to registration, listing and filing fees
and expenses, fees and expenses of compliance with applicable state securities
or "blue sky" laws or Canadian Securities Laws (including, without limitation,
all fees and disbursements of counsel for the underwriters in connection with
"blue sky" qualifications of Registrable Securities), printing expenses, escrow
fees, messenger and delivery expenses, fees and disbursements of counsel for the
Issuer and all independent certified public accountants or chartered accountants
(including where applicable the expenses of any annual audit and "cold comfort"
letters required by or incident to such performance and compliance), the
disbursements of underwriters customarily paid in connection with secondary
registered public sales of securities (including the fees and expenses of any
"qualified independent underwriter" required by the NASD), all fees of each
Holder's U.S. and Canadian Counsel, as the case may be (which fees of each
Holder's U.S. and Canadian Counsel shall not exceed US$ 20,000 in the aggregate
per registration), fees and expenses of any special experts retained by the
Issuer in connection with such registration, and fees and expenses of other
Persons retained by the Issuer (but not including any Selling Expenses).
"REGISTRATION STATEMENT" means any registration statement of the Issuer which
covers an offering of any of the Registrable Securities, 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.
"REPRESENTATIVE" has the meaning ascribed to it in Section 2.3.
"REQUESTING HOLDER" has the meaning ascribed to it in Section 2.1.
"SEC" means the United States Securities and Exchange Commission or any
successor entity.
"SECURITIES ACT" means the U.S. Securities Act of 1933, as amended.
"SECURITIES EXCHANGE ACT" means the U.S. Securities Exchange Act of 1934, as
amended.
4
"SECURITIES COMMISSIONS" means the Ontario Securities Commission, the Quebec
Autorite des marches financiers and all other applicable securities regulatory
authorities in the Qualifying Provinces.
"SELLING EXPENSES" shall mean all underwriting discounts and fees and selling
commissions and stock transfer taxes, if any, attributable to the sale of
Registrable Securities by the Holders or the Other Shareholders, as applicable.
"SUBSIDIARY" means a corporation controlled by the Issuer, as the term "control"
is defined in the Canada Business Corporations Act as in effect at the date
hereof and without reference to any amendments thereto after the date hereof,
but shall not include Dolphin Telecom plc and its Subsidiaries.
"TELESYSTEM" means Telesystem Ltd. and ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ Inc., and any of their
respective Affiliates or successors, acting collectively.
"TSE" means the Toronto Stock Exchange or any successor entity.
"UFI" means U.F. Investments (Barbados) Ltd. and any of its Affiliates or
successors.
SECTION 2 U.S. AND CANADIAN DEMAND REGISTRATION RIGHTS
1. If, at any time the Issuer shall be requested by a Holder (in such
capacity, the "REQUESTING HOLDER") either (i) to effect the
registration under the Securities Act of an offering of Registrable
Securities, or (ii) to effect the qualification under Canadian
Securities Laws for any distribution of Registrable Securities, it
shall promptly give written notice to the other Holders and the Other
Shareholders of its requirement to so register or qualify such offering
or such distribution of securities and, upon the written request, if
any, delivered to the Issuer within 10 days after delivery of any such
notice by the Issuer, of the other Holders or Other Shareholders to
include in such registration or qualification Registrable Securities or
Other Shares held by them, provided, that any such registration or
qualification demanded by such Requesting Holder must relate to an
amount of Registrable Securities having an aggregate anticipated gross
sales price of at least US$25,000,000 or constitute all Registrable
Securities then held by such Requesting Holder, the Issuer shall,
subject to Section 2.6 below, promptly use its best efforts to effect
such registration under the Securities Act or such qualification under
Canadian Securities Laws of an offering and/or distribution of the
Registrable Securities which the Issuer has been so requested to
register or qualify. The Holders shall not be entitled to have
Registrable Securities included in any registrations pursuant to this
Section 2 if, and for so long as, the Issuer is qualified to use Form
F-3 promulgated under the Securities Act, or any successor thereto, or
use the Qualifying Short-Form Prospectus Regime.
2. The Issuer shall not be obligated to (i) use its best efforts to file
and cause to become effective, or obtain a final receipt in respect of,
more than two Registration Statements per calendar year initiated by
the Holders, or (ii) (A) effect a registration under the
5
Securities Act if, at the time of such request, no equity securities of
the Issuer are listed on NASDAQ or any other nationally recognized U.S.
stock exchange or quotation system or (B) effect a registration under
the Canadian Securities Laws if, at the time of such request, no equity
securities of the Issuer are listed on the TSE or any other nationally
recognized Canadian stock exchange or quotation system.
3. The Requesting Holder, at its election, shall have the Registrable
Securities covered by its request distributed by means of an
underwritten public offering with a single or managing underwriter
selected by the Requesting Holder and reasonably acceptable to the
Issuer. The Requesting Holder and the Issuer shall (together with all
other Holders and Other Shareholders proposing to distribute their
securities through such underwriting) enter into an underwriting
agreement in usual and customary form with the representative of the
managing underwriter or underwriters selected for such underwriting
(the "REPRESENTATIVE").
4. With respect to any registration or qualification requested by a
Requesting Holder, the Issuer shall give notice of such registration or
qualification to the Holders who do not request registration or
qualification hereunder and the Issuer may include in such registration
or qualification any Registrable Securities or Other Shares; provided,
however that if the Representative advises the Issuer in writing that
marketing factors (including, without limitation, pricing of the
underwritten offering) require a limitation on the number of shares to
be underwritten, then the number of Registrable Securities and Other
Shares to be included in such registration or qualification shall be
included in the following order:
(a) first, the Registrable Securities requested to be registered or
qualified by all of the Holders, pro rata based upon the number of
Registrable Securities owned by each such Holder; and
(b) second, the Other Shares proposed to be registered or qualified
for distribution.
5. If the Representative has not limited the number of Registrable
Securities or other securities to be underwritten, the Issuer may
include its securities for its own account in such registration or
qualification if the Representative so agrees and if the number of
Registrable Securities which would otherwise have been included in such
registration or qualification and underwriting will not thereby be
limited.
6. Notwithstanding the foregoing, if the Issuer shall furnish to the
Holders and the participating Other Shareholders a certificate signed
by the President or Chief Executive Officer of the Issuer stating that,
in the good faith judgment of the Board of Directors of the Issuer (the
"BOARD"), it would, for a bona fide business or securities law reason
reasonably acceptable to the Requesting Holder, be materially
prejudicial to the Issuer or its shareholders for a registration or
qualification demanded by the Requesting Holder to be carried out, then
the Issuer shall have the right to defer proceeding with such
registration or qualification for a period of not more than 180 days
after the delivery of such certificate, provided that the Holders shall
not be required to accept such a deferral on more than one occasion.
6
7. At any time before the Registration Statement covering such Registrable
Securities becomes receipted or otherwise effective, the Requesting
Holders holding two-thirds of the Registrable Securities may request
the Issuer to withdraw or not to file the Registration Statement or to
remove the Requesting Holder's shares from the registration. In that
event, unless such request of withdrawal was caused by, or made in
response to, (a) a material adverse effect or a similar event related
to the business, properties, condition, or operations of the Issuer not
known (without imputing the knowledge of any other Person to such
Holders) by the Holders initiating such request at the time their
request was made, or other material facts not known to such Holders at
the time their request was made, or (b) a material adverse change in
the financial markets, the Holders shall be deemed to have used one of
their calendar year registration rights under Section 2.2 or Section 4;
provided, however, that such withdrawn registration shall not count as
a requested registration pursuant to Section 2.2 or Section 4 if the
Issuer shall have been reimbursed (pro rata by the Requesting Holders
holding two-thirds of the Registrable Securities requested to be
registered or in such other proportion as the Requesting Holders may
agree) for all out-of-pocket expenses incurred by the Issuer in
connection with such withdrawn registration.
8. A registration shall not count as a requested registration pursuant to
Section 2.2 or Section 4 until it has become effective. If, after it
has become effective, (a) such Registration Statement has not been kept
continuously effective for a period of at least 270 days (or such
shorter period which will terminate when all the Registrable Securities
covered by such Registration Statement have been sold pursuant
thereto), (b) such registration requested pursuant to Section 2.1 or
Section 4 becomes subject to any stop order, injunction or other order
or requirement of the SEC, Securities Commissions or other U.S. or
Canadian governmental agency or court for any reason, or (c) the
conditions to closing specified in the underwriting agreement entered
into in connection with such registration are not satisfied or waived,
other than by reason of some act or omission by the Requesting Holders,
such registration shall not count as a requested registration pursuant
to Section 2.2 or Section 4.
SECTION 3 PIGGYBACK REGISTRATION
1. If at any time or from time to time the Issuer shall determine to
register any of its equity securities (or securities convertible or
exchangeable into equity securities) either for its own account (a
"PRIMARY OFFERING") or for the account of any Holder (in such capacity,
the "INITIATING HOLDER") (other than, in the case of such equity
securities to be registered pursuant to a Registration Statement, a
registration on Form S-8 (or similar or successor form) relating solely
to stock option, stock purchase or other employee benefit plans, or a
registration on Form F-4 (or similar or successor form), or a
registration on any registration form which does not permit secondary
sales or does not include substantially the same information as would
be required to be included in a Registration Statement covering the
sale of Registrable Securities, or in any case a registration pursuant
Section 2 hereof), the Issuer will:
7
(a) promptly give to the Holders and the Other Shareholders a
written notice thereof (which shall include a list of the
jurisdictions in which the Issuer intends to attempt to
qualify such securities or the distribution thereof, as
applicable, under the applicable blue sky or other state
securities laws or Canadian Securities Laws, as applicable);
and
(b) subject to Section 3.2 below, include in such registration or
filing (and any related qualification under blue sky laws or
other compliance or Canadian Securities Laws or other
compliance, as applicable), and in any underwriting involved
therein, all the Registrable Securities or Other Shares, as
the case may be, specified in a written request or requests
made by the Holders or the Other Shareholders, as the case may
be, within ten (10) days after the date written notice as
described in Section 3.1(a) above is delivered by the Issuer.
Such written request may specify all or any part of the
Registrable Securities or Other Shares, as the case may be.
2. If the registration or qualification for which the Issuer gives notice
is for an underwritten public offering, the Issuer shall so advise the
Holders and the Other Shareholders as a part of the written notice
given pursuant to Section 3.1(a). In such event, the right of the
Holders and the Other Shareholders to registration or qualification
pursuant to this Section 3 shall be conditioned upon such Holder's or
the Other Shareholder's participation, as the case may be, in such
underwriting and the inclusion of such Holder's or Other Shareholder's
securities, as the case may be, in the underwriting to the extent
provided herein. If such registration or qualification is for a Primary
Offering, the underwriter shall be chosen by the Issuer in its sole
discretion. Any Holders that intend to include Registrable Securities
in such registration or qualification, shall (together with the Issuer
and any Other Shareholders distributing their securities through such
underwriting) enter into an underwriting agreement in customary form
with the Representative. Notwithstanding any other provision of this
Section 3, if the Representative advises the participating Holders,
Other Shareholders or the Issuer in writing that marketing factors
require a limitation on the number of securities to be underwritten,
then the number of securities to be included in such registration or
qualification in the following order:
(i) first, if such offering is a Primary Offering, the Issuer's
securities for its own account (such securities ,collectively,
"THE PRIMARY SHARES"); and
(ii) second, the Registrable Securities requested to be included by
the Holders in such registration, pro rata, based upon the
number of Registrable Securities owned by such Holders; and
(iii) third, the Registrable Securities requested to be included by
the Other Shareholders in such registration, pro rata based on
the number of Registrable Securities owned by such Other
Shareholders; and
(iv) fourth, Other Shares proposed to be registered.
If a participating Holder or Other Shareholder disapproves of the terms
of any such underwriting, it may elect to withdraw its securities
therefrom by written notice to the
8
Issuer and the Representative, such notice to be given a reasonable
period of time prior to the finalization of the underwriting
arrangements. Any securities excluded or withdrawn from such
underwriting shall not be included in such registration or
qualification. If, at any time after giving written notice of its
intention to register any securities and prior to the effective date of
the Registration Statement or preliminary prospectus filed in
connection with such registration, the Issuer (subject to Section 2.6
if such offering is not a Primary Offering) shall determine for any
reason either not to register or to delay registration of such
securities, the Issuer may, at its election, give written notice of
such determination to each holder of Registrable Securities and,
thereupon (i) in the case of a determination not to register, shall be
relieved of its obligation to register any Registrable Securities in
connection with such registration or qualification (but not from its
obligation to pay the expenses of such registration or qualification),
without prejudice, however, to the rights of any Holder or Holders of
Registrable Securities entitled to request that such registration be
effected pursuant to Section 2.1 or Section 4 of this Agreement and
(ii) in the case of a determination to delay registration or
qualification, shall be permitted to delay registration or
qualification any Registrable Securities, for the same period as the
delay in the registration of such Primary Shares and/or Other Shares.
3. The Holders shall be entitled to have Registrable Securities included
in an unlimited number of registrations or qualification pursuant to
this Section 3. The Issuer will pay all Registration Expenses in
connection with each registration or qualification pursuant to this
Section 3. No registration effected pursuant to this Section 3 shall
relieve the Issuer of its obligation to effect any registration upon
request under Section 2.1 or Section 4 hereof, nor shall any
registration hereunder be deemed to have been effected pursuant to
Section 2.1 or Section 4.
SECTION 4 REGISTRATIONS ON FORM F-3 AND UNDER THE QUALIFYING SHORT-FORM
PROSPECTUS
Anything contained in Section 2 to the contrary notwithstanding, at such time
and for so long as the Issuer shall have qualified for the use of Form F-3
promulgated under the Securities Act, or any successor form thereto, or of the
Qualifying Short-Form Prospectus Regime, the Holders of Registrable Securities
shall have the right to request three registrations per calendar year of
Registrable Securities on Form F-3, or its successor form, or the comparable
form under the Qualifying Short-Form Prospectus Regime, which request or
requests shall (i) specify the number of Registrable Securities intended to be
sold or disposed of and the holders thereof, (ii) state whether the intended
method of disposition of such Registrable Securities is an underwritten offering
and (iii) relate to Registrable Securities having an aggregate offering price
(before underwriting discounts and commissions) of at least US$25,000,000. A
requested registration on Form F-3 (or its successor form) or on a comparable
form under the Qualifying Short-Form Prospectus Regime shall be carried out in
coordination with and among all Holders who may wish to sell or dispose of
Registrable Securities. A requested registration on Form F-3 (or its successor
form) or on the comparable form under the Qualifying Short-Form Prospectus
Regime in compliance with this Section 4 shall not count as a Registration
Statement initiated pursuant to Section 2.1 but shall otherwise be subject to
the first sentence of Section 2.1 and the provisions of Section 2.4 through
Section 2.8.
9
SECTION 5 EXPENSES OF REGISTRATION
The Issuer shall pay all Registration Expenses incurred by the Issuer and the
Holders in connection with complying with their obligations pursuant to this
Agreement, provided, that such expenses shall not include Selling Expenses,
which Registration Expenses shall be borne by the Holders and Other Shareholders
pro rata on the basis of the number of each Holder's and Other Shareholders', as
the case may be, securities so registered and sold.
SECTION 6 REGISTRATION PROCEDURES
In the case of each registration of, or filing in respect of a qualification of
a distribution of, Registrable Securities to be effected by the Issuer pursuant
to any provisions of this Agreement, the Issuer will keep the Holders advised in
writing as to the initiation of each registration or qualification and as to the
completion thereof. In connection with any offering of Registrable Securities
registered or qualified pursuant to any provisions of this Agreement, the Issuer
shall, at its expense:
1. in respect of the registration of Registrable Securities pursuant to a
Registration Statement in the United States:
(a) Prepare and file with the SEC, as promptly as practical after
receipt of a request for registration pursuant to any
provisions of this Agreement, which, shall not be more than 60
days from the receipt of request (unless, the Issuer, in the
good faith judgment of the Board, and subject to Section 2.6,
has a material bona fide business or securities law reason for
delaying the filing that is reasonably acceptable to the
Holders in which event it may delay such filing for such
further reasonable period of time as will permit such reason
for delay to be resolved), a Registration Statement on any
form for which the Issuer then qualifies, and which form shall
be available for the sale of the Registrable Securities in
accordance with the intended methods of distribution thereof,
and use its best efforts to cause such Registration Statement
to become and remain effective as provided herein; provided,
that before filing with the SEC a Registration Statement or
prospectus or any amendments or supplements thereto, the
Issuer will (A) furnish to the Holders copies of all such
documents proposed to be filed for review and comment and (B)
notify the participating Holders of any stop order issued or
threatened by the SEC and take all reasonable actions required
to prevent the entry of such stop order or to remove it if
entered; and
10
(b) Prepare and file with the SEC such amendments and supplements
to such Registration Statement and the prospectus used in
connection therewith as may be necessary to keep such
Registration Statement effective for 270 days after the date
of effectiveness; provided, however, that the Issuer shall not
be obligated to keep any such Registration Statement effective
if such Holders have completed the distributions described in
the Registration Statement relating thereto (but not before
the expiration of the time periods referred to in Section 4(3)
of the Securities Act and Rule 174 promulgated thereunder, or
any successor provisions), and to comply with the provisions
of the Securities Act with respect to the sale or other
disposition of such Registrable Securities. If any such
Registration Statement refers to any holder of Registrable
Securities by name or otherwise as the holder of any
securities of the Issuer, then such Holder shall have the
right to require (i) the insertion therein of language, in
form and substance 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 Issuer's securities covered thereby
and that such holding does not imply that such Holder will
assist in meeting any future financial requirements of the
Issuer, or (ii) in the event that such reference to such
Holder by name or otherwise is not required by the Securities
Act or any similar federal statute then in force, the deletion
of the reference to such Holder;
2. in respect of the qualification of Registrable Securities pursuant to a
prospectus in accordance with Canadian Securities Laws:
(a) use its best efforts to resolve any regulatory comments and
satisfy any regulatory deficiencies in respect of the
preliminary prospectus and, as soon as reasonably practicable
after such comments or deficiencies have been resolved or
satisfied, will prepare and file, and use its best efforts to
obtain a receipt (or an equivalent document) in the Qualifying
Provinces for, and keep in effect for the statutory period,
the final prospectus, and will take all other steps and
proceedings necessary in order to qualify the distribution of
the Registrable Securities to the public as freely tradable
securities in the Qualifying Provinces;
(b) ensure that the prospectus contains the disclosure required
by, and conforms in all material respects to the requirements
of, all applicable provisions of Canadian Securities Laws and
furnish to the Holders copies of each of the preliminary
prospectus and Final Prospectus and such other documents as
they may reasonably request to facilitate the disposition of
Registrable Securities by them; and
(c) prepare and file with the Securities Commissions in the
Qualifying Provinces any amendments and supplements to the
prospectus that may be necessary to comply with Canadian
Securities Laws with respect to the distribution of all
securities qualified by such prospectus; and
3. in both cases:
11
(a) notify in writing each Holder's counsel (i) of the receipt by
the Issuer of any notification with respect to any comments by
the SEC or the Securities Commissions with respect to such
Registration Statement or prospectus or any amendment or
supplement thereto or any request by the SEC or the Securities
Commissions for the amending or supplementing thereof or for
additional information with respect thereto, (ii) of the
receipt by the Issuer of any notification with respect to the
issuance by the SEC or the Securities Commissions of any stop
order or equivalent order suspending the effectiveness of such
Registration Statement or prospectus or any amendment or
supplement thereto or the initiation or threatening of any
proceeding for that purpose and (iii) of the receipt by the
Issuer of any notification with respect to the suspension of
the qualification of such Registrable Securities for sale in
any jurisdiction or the initiation or threatening of any
proceeding for such purposes;
(b) furnish to each underwriter, if any, and the participating
Holders such number of copies of (i) in the case of a
Registration Statement, such Registration Statement, each
amendment and supplement thereto (in each case including all
exhibits thereto), and the prospectus included in such
Registration Statement (including each preliminary prospectus)
in conformity with the requirements of the Securities Act, and
(ii) in the case of a Prospectus receipted in accordance with
Canadian Securities Laws, such final prospectus, each
amendment and supplement thereto (in each case including all
exhibits thereto), and each preliminary prospectus in
conformity with the requirements of Canadian Securities Laws,
and such other documents incident thereto as the participating
Holders may reasonably request from time to time in order to
facilitate the disposition of the Registrable Securities;
(c) use its best efforts to register or qualify the Registrable
Securities under (i) the state securities or "blue sky" laws
of such states, and (ii) the Canadian Securities Laws of such
Qualifying Provinces, as the participating Holders or the
Representative reasonably request and do any and all other
acts and things that may be reasonably necessary or advisable
to enable the participating Holders and the underwriters to
consummate the disposition in such jurisdictions of the
Registrable Securities; provided, however that the Issuer will
not be required as a result thereof to (A) qualify generally
to do business in any jurisdiction where it would not
otherwise be required to qualify but for this clause
6.3(c)(A), (B) subject itself to taxation or regulation of its
business in any such jurisdiction in which it would not
otherwise be so subject or (C) consent to general service of
process in any jurisdiction in which it would not otherwise be
subject to general service of process;
(d) use its best efforts to cause the Registrable Securities
covered by such Registration Statement to be registered with
or approved by such other governmental agencies or authorities
as may be necessary by virtue of the business and operations
of the Issuer to enable the consummation of the disposition of
such Registrable Securities;
(e) immediately notify the Holders, at any time when a prospectus
relating thereto is required to be delivered under the
Securities Act or pursuant to Canadian Securities
12
Laws, of the happening of any event that comes to the Issuer's
attention, if as a result of such event any such prospectus,
including such Registration Statement or prospectus, contains
an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the
circumstances in which they were made; and the Issuer will
promptly prepare and furnish to the Holders a supplement or
amendment to such prospectus so that, as thereafter delivered
to the purchasers of such Registrable Securities, such
Registration Statement prospectus will not contain an untrue
statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading in light of the
circumstances in which they were made;
(f) use its best efforts to cause all such Registrable Securities
to be listed (i) on a national securities exchange in the
United States or quoted on the NASDAQ and (ii) on the TSE and
listed or quoted on each securities exchange or automated
quotation system on which similar securities issued by the
Issuer may then be listed or quoted, and enter into such
customary agreements including a listing application and
indemnification agreement in customary form, and, subject to
applicable law, to provide a transfer agent and registrar for
such Registrable Securities covered by such Registration
Statement no later than the effective date of such
Registration Statement;
(g) enter into and perform its obligations under such usual and
customary agreements (including an underwriting agreement or
qualified independent underwriting agreement, in each case, in
usual and customary form) and take all such other actions as
the Holders or the underwriter reasonably requests in order to
expedite or facilitate the disposition of such Registrable
Securities, including customary representations, warranties,
covenants, indemnities and agreements;
(h) promptly issue to any underwriter to which the Holders holding
such Registrable Securities may sell securities in such
offering certificates evidencing such Registrable Securities;
(i) make available (after reasonable notice and execution of usual
and customary confidentiality agreements satisfactory to the
Issuer) for inspection, during business hours of the Issuer,
by a Holder or its Representatives (if it has requested
registration of Registrable Securities) and any underwriter
participating in any disposition pursuant to such Registration
Statement, to the extent provided in the applicable
underwriting agreement (collectively, the "INSPECTORS"), all
financial and other records, pertinent corporate documents and
properties of the Issuer and its Subsidiaries (collectively,
"RECORDS"), if any, as shall be reasonably necessary to enable
them to exercise their due diligence responsibility, and cause
the Issuer's officers, directors, employees, counsel and
financial and accounting advisers and those of the Issuer's
Affiliates, to supply all information and respond to all
inquiries reasonably requested by any such Inspector in
connection with such Registration Statement or prospectus;
13
(j) use its best efforts to obtain a "cold comfort" letter (or the
Canadian equivalent thereof) from the Issuer's appointed
auditors in customary form and covering such matters of the
type customarily covered by "cold comfort" letters (or the
Canadian equivalent thereof) as the Representative reasonably
requests;
(k) otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC and the Securities
Commissions and all conditions imposed by relevant
governmental authorities or under applicable law including
Canadian Securities Laws, including, in the U.S. context,
making available to the Holders, as soon as reasonably
practicable, but not later than 18 months after the effective
date of the Registration Statement or prospectus, an earnings
statement covering a period of at least twelve months
beginning after the effective date of the Registration
Statement (as the term "effective date" is defined in Rule
158(c) under the Securities Act), which earnings statement
shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder; and
(l) cooperate and assist in any filings required to be made with
the NASD or the TSE and in the performance of any due
diligence investigation of the Holders (including any
"qualified independent underwriter" or the equivalent that is
required to be retained in accordance with the rules and
regulations of the NASD and applicable Canadian Securities
Laws and/or the rules of the TSE).
The Holders agree that, upon receipt of any notice from the Issuer of
the happening of any event of the kind described in Section 6.3(e)
hereof, the Holders will forthwith discontinue disposition of
Registrable Securities pursuant to any prospectus or Registration
Statement until the Holders' receipt of the copies of the supplemented
or amended prospectus contemplated by Section 6.3(e) hereof, and, if so
directed by the Issuer (at the Issuer's expense), the Holders will
deliver to the Issuer all copies (including, without limitation, any
and all drafts), other than permanent file copies, then in the Holder's
possession, of the prospectus covering such Registrable Securities
current at the time of receipt of such notice.
SECTION 7 INDEMNIFICATION
1. In the event of any registration or qualification of Registrable
Securities pursuant to this Agreement, the Issuer will indemnify and
hold harmless each Holder, its directors, officers and partners, each
Person who participates as an underwriter in the offering or sale of
such securities and each other Person, if any, who controls such Holder
or any such underwriter within the meaning of the Securities Act and
the OSA from and against any and all losses, claims, damages and
liabilities (or actions in respect thereof), joint or several, and
expenses (including any amounts paid in any settlement effected with
the Issuer's consent, which consent will not be unreasonably withheld
or delayed) to which such Holder, any such director or officer or any
such underwriter or controlling Person may become subject under the
Securities Act, the Securities Exchange Act, United States state
securities or "blue sky" laws, Canadian Securities Laws or the common
law or
14
otherwise, insofar as such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) or expenses arise out of or
are based upon (A) any untrue statement (or alleged untrue statement)
of any material fact contained in any Registration Statement,
prospectus, offering circular or other similar document, or any
amendment or supplement thereto incident to such registration,
qualification or compliance under which such securities were registered
under the Securities Act or in accordance with Canadian Securities
Laws, any final or summary prospectus contained therein, or any
amendment or supplement thereto, (B) any omission (or alleged omission)
to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances in which they were made, or (C) any violation (or alleged
violation) by the Issuer of any United States federal, state or common
law rule or regulation or any Canadian federal, provincial or common
law rule or regulation, in each case applicable to the Issuer and
relating to action required of or inaction by the Issuer in connection
with any such registration, qualification or compliance. The Issuer
will reimburse such Holder and each such director, officer, underwriter
and controlling Person for any legal and any other expenses reasonably
incurred in connection with investigating, preparing or defending any
such claim, loss, damage, liability or action, as such expenses are
incurred; provided, however that the Issuer shall not be liable in any
such case to the extent that any such claim, loss, damage, liability
(or action or proceeding in respect thereof) or expense arises out of
or is based on any untrue statement (or alleged untrue statement) or
omission (or alleged omission) made in such Registration Statement or
amendment or supplement thereto or in any such preliminary, final or
summary prospectus in reliance upon and in conformity with written
information furnished to the Issuer by the Holders or any such
director, officer, underwriter or controlling Person specifically
stating that it is for use therein; provided, further, however, that
the Issuer shall not be liable to any of the foregoing indemnities
pursuant to this Section 7 with respect to any untrue statement or
omission or alleged untrue statement or omission made in any
preliminary prospectus or the final prospectus or the final prospectus
as amended or supplemented, as the case may be, to the extent that any
such loss, claim, damage or liability of such indemnitee results from
the fact that such participating Holder or underwriter sold Registrable
Securities to a Person to whom there was a legal obligation, but was
not sent or given, at or prior to the written confirmation of such
sale, a copy of the final prospectus or of the final prospectus as then
amended or supplemented, whichever is most recent, if the Issuer has
previously furnished copies thereof to such Holders or underwriter and
such final prospectus, as then amended or supplemented, had corrected
any such misstatement or omission or after receipt of a notice pursuant
to Section 6.3(e) hereof (prior to the amendment or supplement
thereunder having been furnished).
The indemnity provided for herein shall remain in full force and effect
regardless of any investigation made by or on behalf of the Holders or
any such director, officer, underwriter or controlling Person and shall
survive the transfer of such securities by the Holders or such
underwriter.
15
2. Each Holder whose Registrable Securities are included in the securities
as to which any such registration, qualification or compliance is being
effected in accordance with the provisions hereof shall (x) indemnify
the Issuer, its directors, officers and controlling Persons, all other
prospective sellers, each Person who participates as an underwriter,
and their respective directors, officers and controlling Persons from
and against all claims, losses, damages and liabilities (or actions in
respect thereof) and expenses to which any such Person may become
subject under the Securities Act, the Securities Exchange Act, United
States state securities or "blue sky" laws, Canadian Securities Laws,
the common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) or expenses
arise out of or are based upon (A) any untrue statement (or alleged
untrue statement) of a material fact with respect to such Holder
contained in any such Registration Statement (including any final or
summary prospectus contained therein), or other prospectus or any
amendment or supplement thereto, in reliance on and in conformity with
written information furnished to the Issuer by such Holder specifically
for use therein, or (B) any omission (or alleged omission) to state
therein a material fact with respect to such Holder required to be
stated therein or necessary to make the statements made by such Holder
therein not misleading in light of the circumstances in which they were
made and (y) reimburse the Issuer and its directors, officers,
controlling Persons and all other prospective sellers, each Person who
participates as an underwriter, and their respective directors,
officers, and controlling Persons for any legal or any other expenses
reasonably incurred in connection with investigating or defending any
such claim, loss, damage, liability or action, in the case of both
clause (x) and clause (y), to the extent, and only to the extent, that
such untrue statement (or alleged untrue statement) or omission (or
alleged omission) is made in such Registration Statement or any,
preliminary, final or summary prospectus contained therein),
prospectus, offering circular, or any amendment or supplement thereto
in reliance upon and in conformity with written information furnished
to the Issuer by such Holder with respect to such Holder specifically
for use therein; provided, however that the obligations of each Holder
hereunder shall be several and not joint and limited to an amount equal
to the actual net proceeds to be received by such Holder from
securities sold by such Holder pursuant to such Registration Statement
or prospectus or offering circular.
The indemnity provided for herein shall remain in full force and effect
regardless of any investigation made by or on behalf of the Issuer or
any Holder, the underwriters or any of their respective directors,
officers, or controlling Persons and shall survive the transfer of such
securities by the Holders and such underwriters.
16
3. Each party entitled to indemnification under this Section 7 (an
"INDEMNIFIED PARTY") shall give notice to the party required to provide
indemnification (the "INDEMNIFYING PARTY") promptly after such
Indemnified Party has actual knowledge of any claim as to which
indemnity may be sought, and shall permit the Indemnifying Party to
assume the defense of any such claim or any litigation resulting
therefrom (it being understood that the Indemnifying Party shall not be
responsible for more than one counsel for all Indemnified Parties in
any single action or claim (or group of related actions or claims),
unless the Holders shall have reasonably concluded that any Holder may
have a conflict of interest with one or more other Indemnified Parties
with respect to any actions or claims). Counsel for the Indemnifying
Party, who shall conduct the defense of such claim or any litigation
resulting therefrom, shall be approved by the Indemnified Party (whose
approval shall not unreasonably be withheld or delayed). The
Indemnified Party may participate in such defense at the Indemnified
Party's expense (unless the Indemnified Party shall have reasonably
concluded that there may be a conflict of interest between the
Indemnifying Party and the Indemnified Party in such action, in which
case the reasonable fees and expenses of the Indemnified Party's
counsel shall be at the expense of the Indemnifying Party and shall be
reimbursed as they are incurred). The failure of any Indemnified Party
to give notice as provided herein shall not relieve the Indemnifying
Party of its obligations under this Section 7 except to the extent the
Indemnifying Party is actually materially prejudiced thereby. No
Indemnifying Party, in the defense of any such claim or litigation,
shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement which does not
include as a term thereof the giving by the claimant or plaintiff to
such Indemnified Party of an unconditional release from all liability
with respect to such claim or litigation. Each Indemnified Party shall
promptly furnish such information regarding itself or the claim in
question as an Indemnifying Party may reasonably request in writing and
as shall be reasonably required in connection with the defense of such
claim and litigation resulting therefrom.
4. In order to provide for just and equitable contribution in
circumstances in which the foregoing indemnities provided for in this
Section 7 are for any reason held to be unenforceable although
applicable in accordance with their terms, the Issuer and each Holder
shall contribute to the aggregate losses, liabilities, claims, damages
and expenses of the nature contemplated by such indemnities in such
proportion as shall be appropriate to reflect (A) the relative benefits
received by the Issuer, on the one hand, and such Holder, on the other
hand, from the offering of the Registrable Securities and any other
securities included in such offering, and (B) the relative fault of the
Issuer, on the one hand, and of such Holder, on the other hand, with
respect to the statements or omissions that resulted in such loss,
liability, claim, damage or expense, or action in respect thereof, as
well as any other relevant equitable considerations; provided, however
that no Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to a
contribution from any Person who was not guilty of such fraudulent
misrepresentation. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Issuer or such Holders, the
intent of the parties and their relative knowledge, access to
17
information and opportunity to correct or prevent such statement or
omission. The parties agree that it would not be just and equitable if
a contribution pursuant to this Section 7 were to be determined by pro
rata allocation or by any other method of allocation that does not take
into account the equitable considerations referred to herein.
Notwithstanding anything to the contrary contained herein, the parties
agree that any contribution required to be made by any Holder pursuant
to this Section 7 shall not exceed the actual net proceeds from the
offering of Registrable Securities received by such Holder with respect
to such offering. For purposes of this Section 7, each Person, if any,
who controls a Holder within the meaning of Section 15 of the
Securities Act or Section 1(3) of the OSA shall have the same rights to
contribution as such Holder, and each director of the Issuer, each
officer of the Issuer who signed the Registration Statement, and each
Person, if any, who controls the Issuer within the meaning of Section
15 of the Securities Act or Section 1(3) of the OSA shall have the same
rights to contribution as the Issuer.
5. The foregoing indemnities of the Issuer and the Holders are subject to
the condition that, insofar as they relate to any untrue statement (or
alleged untrue statement) of a material fact contained in a preliminary
prospectus, or any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the
statements contained therein not misleading in light of the
circumstances in which they were made, which was eliminated or remedied
in the amended prospectus on file with the SEC or the Securities
Commissions, as the case may be at the time the Registration Statement
in question became effective or the amended prospectus filed with the
SEC pursuant to Rule 424(b) under the Securities Act or applicable
Canadian Securities Laws (the "FINAL PROSPECTUS"), such indemnities
shall not inure to the benefit of any underwriter if a copy of the
Final Prospectus was furnished to the underwriter and was not furnished
to the Person asserting the loss, liability, claim or damage at or
prior to the time such action is required by the Securities Act.
SECTION 8 INFORMATION BY THE HOLDERS
Each Holder shall furnish to the Issuer such information regarding such Holder
and the distribution proposed by such Holder as the Issuer may reasonably
request in writing in connection with any registration or qualification of
Registrable Securities and as shall be reasonably required in connection with
any registration, qualification or compliance referred to in this Agreement.
Compliance with this Section shall be a condition to the availability of the
rights granted to the Holders pursuant to Section 2 and Section 3 hereunder.
SECTION 9 RULE 144 REPORTING, ETC.
With a view to making available the benefits of certain rules and regulations of
the SEC and applicable Canadian Securities Laws which may permit the sale of the
restricted securities to the public without registration, the Issuer agrees to:
(a) make and keep public information available as those terms are
understood and defined in Rule 144 under the Securities Act;
18
(b) use its best efforts to file with the SEC in a timely manner all
reports and other documents required of the Issuer under the Securities
Act and the Securities Exchange Act at any time when it is subject to
such reporting requirements;
(c) so long as the Holders own any Registrable Securities, furnish to the
Holders upon request a written statement by the Issuer as to its
compliance with the current information requirements of Rule 144 under
the Securities Act, a copy of the most recent annual or quarterly
report of the Issuer, and such other reports and documents filed with
the SEC pursuant to the reporting requirements of the Securities
Exchange Act as the Holders may reasonably request in availing itself
of any rule or regulation of the SEC allowing the Holders to sell any
such securities without registration; and
(d) maintain its status as a "reporting issuer" not in default of the
requirements under applicable Canadian Securities Laws.
SECTION 10 NO CONFLICTS OF RIGHTS
The Issuer represents and warrants to the Holders that the registration rights
granted to the Holders hereby do not conflict with any other registration rights
granted by the Issuer. The Issuer shall not, after the date hereof, grant any
registration rights which conflict with or impair, or have any priority over,
the registration rights granted hereby.
SECTION 11 TERMINATION
This Agreement shall terminate and be of no further force or effect when there
shall not be any Registrable Securities, provided, however that Section 5 and
Section 7 shall survive the termination of this Agreement. If the Second Amended
and Restated Investor Rights Agreement of even date herewith among the Issuer
and the Holders (the "▇▇▇") shall terminate, either as a whole or in respect of
a particular Holder, this Agreement shall continue (i) with respect to
Registrable Securities held by each Holder on the earlier of (A) the date of
termination of the ▇▇▇ as a whole, and (B) with respect to a Holder who has
ceased to be bound by the ▇▇▇ prior to its termination as a whole, the date such
Holder ceased to be so bound, and (ii) only to the extent such Holder's shares
in the Issuer continue to be "Registrable Securities" for US securities law
purposes within the meaning of clause (i) of the definition of "Registrable
Securities".
SECTION 12 SUCCESSORS AND ASSIGNS
This Agreement shall bind and inure to the benefit of the Issuer and the Holders
and, subject to Section 13, their respective successors and permitted assigns.
SECTION 13 ASSIGNMENT
Each Holder may assign its rights hereunder to any Affiliate or Qualified
Purchaser of such Holder; provided, however, that such Affiliate or Qualified
Purchaser shall, as a condition to the effectiveness of such assignment, be
required to execute a counterpart to this Agreement agreeing to be treated as
(i) in the case of such Affiliate, a Holder and (ii) in the case of such
Qualified Purchaser, an Other Shareholder, whereupon such Affiliate or Qualified
Purchaser shall have the benefits of, and shall be subject to the restrictions
contained in, this Agreement as
19
a Holder or Other Shareholder, as the case may be.
SECTION 14 MERGERS, ETC.
The Issuer shall not, directly or indirectly, enter into any merger,
consolidation or reorganization in which the Issuer shall not be the surviving
corporation unless the surviving corporation shall, prior to such merger,
consolidation or reorganization, agree in writing to assume the obligations of
the Issuer under this Agreement insofar as the Holders continue after any such
transaction to hold Registrable Securities; and for that purpose references
hereunder to "Registrable Securities" shall be deemed to include the shares of
common stock or other securities, if any, which the Holders would be entitled to
receive in exchange for Registrable Securities under any such merger,
consolidation or reorganization, provided that, to the extent the Holders
receive securities that are by their terms convertible into shares of common
stock of the issuer thereof, then any such shares of common stock as are issued
or issuable upon conversion of said convertible securities shall be included
within the definition of "Registrable Securities".
SECTION 15 NOTICES
Any notice, direction or other communication to be given under this Agreement
shall be in writing and given by delivering it or sending it by telecopy or
other similar form of recorded communication addressed:
(a) if to the Issuer, to it at:
1250 blvd. ▇▇▇▇-▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: The Vice President, Finance, and
the General Counsel and Secretary
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to UFI, to it at:
U.F. Investments (Barbados) Ltd.
The Ernst & Young Building
▇▇▇▇ ▇▇▇▇ Bay Street
Bridgetown, Barbados
Attention: The Managing Director
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇▇ Whampoa Limited
22nd Floor
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇: Company Secretary
Telephone: (▇▇▇) ▇▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇▇-▇▇▇▇
(c) if to ▇▇ ▇▇▇▇▇▇, to it at:
c/o ▇▇ ▇▇▇▇▇▇ Partners, LLC
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Official Notices Clerk
(FBO: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇)
Telephone: ▇▇▇ ▇▇▇-▇▇▇▇
Telecopier: ▇▇▇ ▇▇▇-▇▇▇▇
with a copy to:
O'Melveny & ▇▇▇▇▇ LLP
Times Square Tower
▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telephone: ▇▇▇ ▇▇▇-▇▇▇▇
Telecopier: ▇▇▇ ▇▇▇-▇▇▇▇
(d) if to Telesystem, to it at:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇
H3B 4W8
Attention: Chief Financial Officer, ▇▇▇▇▇▇ ▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
(e) if to EEIF, to it at:
Emerging Markets Partnership (Europe) Limited
▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Tel: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
Fax: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
21
With a copy to:
▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇-▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Tel: ▇▇▇ ▇▇ ▇▇▇▇-▇▇▇▇
Fax: ▇▇▇ ▇▇ ▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, Esq.
Any such communication shall be deemed to have been validly and effectively
given (i) if personally delivered, on the date of such delivery if such date is
a Business Day and such delivery was made prior to 4:00 p.m. (local time in the
place of the recipient) and otherwise on the next Business Day, or (ii) if
transmitted by telecopy or similar means of recorded communication on the
Business Day following the date of transmission. Any party may change its
address for service from time to time by notice given in accordance with the
foregoing and any subsequent notice shall be sent to such party at its changed
address.
SECTION 16 ENTIRE AGREEMENT
This Agreement , including the exhibits, schedules, and other documents referred
to herein which form a part hereof, contains the entire understanding of the
parties hereto with respect to the subject matter contained herein. This
Agreement supersedes all prior agreements and understandings between the parties
with respect to such subject matter.
SECTION 17 COUNTERPARTS; FACSIMILE SIGNATURES
This Agreement may be executed in any number of original or facsimile
counterparts, and each such counterpart hereof shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
SECTION 18 HEADINGS
The headings of the various sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed to be a part of this
Agreement.
SECTION 19 SEVERABILITY
It is the desire and intent of the parties that the provisions of this Agreement
be enforced to the fullest extent permissible under the law and public policies
applied in each jurisdiction in which enforcement is sought. Accordingly, if any
provision of this Agreement would be held in any jurisdiction to be invalid,
prohibited or unenforceable for any reason, such provision, as to such
jurisdiction, shall be ineffective, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of such
provision in any other jurisdiction.
22
Notwithstanding the foregoing, if such provision could be more narrowly drawn so
as not to be invalid, prohibited or unenforceable in such jurisdiction, it
shall, as to such jurisdiction, be so narrowly drawn, without invalidating the
remaining provisions of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction.
SECTION 20 GOVERNING LAW
THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE DOMESTIC
LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR
CONFLICTING PROVISION OR RULE (WHETHER OF THE STATE OF NEW YORK, OR ANY OTHER
JURISDICTION) THAT WOULD CAUSE THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE
OF NEW YORK TO BE APPLIED. IN FURTHERANCE OF THE FOREGOING, THE INTERNAL LAW OF
THE STATE OF NEW YORK WILL CONTROL THE INTERPRETATION AND CONSTRUCTION OF THIS
AGREEMENT, EVEN IF UNDER SUCH JURISDICTION'S CHOICE OF LAW OR CONFLICT OF LAW
ANALYSIS, THE SUBSTANTIVE LAW OF SOME OTHER JURISDICTION WOULD ORDINARILY APPLY.
ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY RELATED
DOCUMENT MAY BE BROUGHT EXCLUSIVELY IN EITHER THE COURTS OF THE STATE OF NEW
YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK OR IN THE
COURTS OF COMPETENT JURISDICTION OF THE PROVINCE OF QUEBEC AND, BY EXECUTION AND
DELIVERY OF THIS AGREEMENT, EACH PARTY HERETO HEREBY IRREVOCABLY ACCEPTS FOR
ITSELF AND IN RESPECT OF ITS PROPERTY AND ASSETS, GENERALLY AND UNCONDITIONALLY
THE JURISDICTION OF THE AFORESAID COURTS.
SECTION 21 LANGUAGE
The Parties acknowledge and are satisfied that this Agreement be drawn up in the
English language. Les parties aux presentes reconnaissent et acceptant que cette
entente soit redigee en Anglais.
23
IN WITNESS WHEREOF the parties have caused this Second Amended and Restated
Registration Rights Agreement to be executed by their respective duly authorized
officers.
TELESYSTEM INTERNATIONAL
WIRELESS INC.
By: ____________________________________
Authorized Signing Officer
By: ____________________________________
Authorized Signing Officer
U.F. INVESTMENTS (BARBADOS) LTD.
By: ___________________________________
Authorized Signing Officer
▇.▇. ▇▇▇▇▇▇ PARTNERS (BHCA), L.P.
By: JPMP Master Fund Manager, L.P.
its General Partner
By: JPMP Capital Corp.
its General Partner
By: ___________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
24
JPMP TIW EH, LP
By: JPMP TIW EH, GP, LLC
its General Partner
By: ▇.▇. ▇▇▇▇▇▇ Partners (BCHA), L.P.
its Sole Member
By: JPMP Master Fund Manager, L.P.
its General Partner
By: JPMP Capital Corp.
its General Partner
By: ___________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
AOF INVESTMENT N.V.
By:
By: ___________________________________
Name:
Title:
CEA INVESTMENT N.V.
By:
By: ___________________________________
Name:
Title:
CAIP INVESTMENT N.V.
By:
By: ___________________________________
Name:
Title:
25
EEIF MELVILLE B.V.
By: ___________________________________
Authorized Signing Officer
EEIF CZECH N.V.
By: ___________________________________
Authorized Signing Officer
EMERGING EUROPE INFRASTRUCTURE FUND C.V.
By: ___________________________________
Authorized Signing Officer
TELESYSTEM LTD.
By: ___________________________________
Authorized Signing Officer
▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ INC.
By: ___________________________________
Authorized Signing Officer
26
SCHEDULE 1
HOLDERS
UFI
U.F. Investments (Barbados) Ltd.
▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇ Partners (BHCA), L.P.
JPMP TIW EH, L.P.
AOF Investment N.V.
CEA Investment N.V.
CAIP Investment N.V.
TELESYSTEM
Telesystem Ltd.
▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ Inc.
EEIF
EEIF Melville B.V.
EEIF Czech N.V.
Emerging Europe Infrastructure Fund C.V.
27