EXHIBIT 10.21
11 3/4% SENIOR SUBORDINATED NOTES DUE 2007
REGISTRATION RIGHTS AGREEMENT
Dated July 10, 1997
by and among
PRICE COMMUNICATIONS WIRELESS, INC.,
as the Company,
and
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SECURITIES, INC.,
NATWEST CAPITAL MARKETS LIMITED,
▇▇▇▇▇▇ BROTHERS, INC.,
and
PAINEWEBBER INCORPORATED
as Purchasers
This Registration Rights Agreement is made and entered into this July 10, 1997,
by and between Price Communications Wireless, Inc., a Delaware corporation
(the "Company"), and ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation
("DLJ"), on behalf of itself and ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Securities, Inc.
("▇▇▇▇▇▇▇▇▇▇▇"), NatWest Capital Markets Limited ("NatWest"), ▇▇▇▇▇▇ Brothers
("▇▇▇▇▇▇"), and PaineWebber Incorporated (together with DLJ, ▇▇▇▇▇▇▇▇▇▇▇,
NatWest, and ▇▇▇▇▇▇, the "Purchasers").
This Agreement is made pursuant to the Purchase Agreement, dated July
3, 1997, among the Company, Price Communications Corporation and the Purchasers
(the "Purchase Agreement"), relating to the Notes. In order to induce the
Purchasers to enter into the Purchase Agreement, the Company has agreed to
provide the registration rights provided for in this Agreement to the Purchasers
and their respective direct and indirect transferees. The execution of this
Agreement is a condition to the closing of the transactions contemplated by the
Purchase Agreement.
The parties hereby agree as follows:
1. Definitions
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As used in this Agreement, the following terms shall have the
following meanings:
Advice: As defined in the last paragraph of Section 5 hereof.
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Affiliate of any specified person shall mean any other person directly
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or indirectly controlling or controlled by or under direct or indirect common
control with such specified person. For the purposes of this definition,
"control," when used with respect to any person, means the power to direct the
management and policies of such person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise, and the terms
"affiliated," "controlling" and "controlled" have meanings correlative to the
foregoing.
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Agreement: This Registration Rights Agreement, as the same may be
---------
amended, supplemented or modified from time to time in accordance with the terms
hereof.
Business Day: Any day except Saturday, Sunday and any day which shall
------------
be a legal holiday or a day on which banking institutions in the State of New
York generally are authorized or required by law or other government actions to
close.
Company: Price Communications Wireless, Inc., a Delaware corporation,
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and any successor corporation thereto.
Consummate or consummate: When used to qualify the term "Exchange
------------------------
Offer" shall mean validly and lawfully to issue and deliver the Exchange Notes
pursuant to the Exchange Offer for all Transfer Restricted Securities validly
tendered and not validly withdrawn pursuant thereto in accordance with the terms
of this Agreement.
Consummation Date: The date that is 30 days immediately following the
-----------------
date that a Registration Statement relative to an Exchange Offer, commenced
pursuant to this Agreement, shall have been declared effective by the SEC.
Effective Date: The date that is 150 days immediately following the
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date of this Agreement.
Effectiveness Period: As defined in Section 3 hereof.
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Event Date: As defined in Section 4(a) hereof.
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Exchange Act: The Securities Exchange Act of 1934, as amended, and
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the rules and regulations promulgated by the SEC pursuant thereto.
Exchange Date: As defined in Section 2(d) hereof.
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Exchange Notes: The 11 3/4% Senior Subordinated Notes due 2007 of
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the Company that are identical to the Notes in all material respects, except
that the provisions regarding restrictions on transfer shall be modified, as
appropriate, and the issuance thereof pursu-
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`ant to the Exchange Offer shall have been registered pursuant to an effective
Registration Statement in compliance with the Securities Act.
Exchange Offer: An offer to issue, in exchange for any and all of the
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Transfer Restricted Securities, a like aggregate principal amount of Exchange
Notes, which offer shall be made by the Company pursuant to Section 2 hereof.
Holder: Each registered holder of any Transfer Restricted Securities.
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Indemnified Person: As defined in Section 7(a) hereof.
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Indenture: The Indenture, dated the date hereof, between the Company
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and the Trustee thereunder, pursuant to which the Notes are being issued, as
amended or supplemented from time to time in accordance with the terms thereof.
Liquidated Damages: As defined in Section 4(a) hereof.
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Notes: The $175,000,000 aggregate principal amount of 11 3/4% Senior
-----
Subordinated Notes due 2007 of the Company being issued pursuant to the
Indenture.
Participating Broker-Dealer: As defined in Section 2(d) hereof.
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Paying Agent: As defined in the Indenture.
------------
Proceeding: An action, claim, suit or proceed ing (including, without
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limitation, an investigation or partial proceeding, such as a deposition),
whether commenced or threatened.
Prospectus: The prospectus included in any Registration Statement
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(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 Transfer
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Restricted Securities or the Exchange Notes covered by such Registration
Statement, and all other amendments and supplements to any such prospectus,
including post-effective amendments, and all material incorporated by refer
ence or deemed to be incorporated by reference, if any, in such prospectus.
Purchasers: As defined in the preamble hereof.
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Registration Statement: Any registration statement of the Company
----------------------
that covers any of the Notes or the Exchange Notes pursuant to the provisions of
this Agreement, including the Prospectus, amendments and supplements to such
registration statement or Prospectus, including pre- and post-effective
amendments, all exhibits thereto, and all material incorporated by reference
or deemed to be incorporated by reference, if any, in such registration
statement.
Rule 144: Rule 144 promulgated by the SEC pursuant to the Securities
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Act, as such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
Rule 144A: Rule 144A promulgated by the SEC pursuant to the
---------
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the SEC as a replacement thereto
having substantially the same effect as such Rule.
Rule 158: Rule 158 promulgated by the SEC pursuant to the Securities
--------
Act, as such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
Rule 174: Rule 174 promulgated by the SEC pursuant to the Securities
--------
Act, as such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the SEC as a replacement there to having
substantially the same effect as such Rule.
Rule 415: Rule 415 promulgated by the SEC pursuant to the Securities
--------
Act, as such Rule may be amended from time to time, or any similar rule or
regula-
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tion hereafter adopted by the SEC as a replacement thereto having substantially
the same effect as such Rule.
Rule 424: Rule 424 promulgated by the SEC pursuant to the Securities
--------
Act, as such Rule may be amended form time to time, or any similar rule or
regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
SEC: The Securities and Exchange Commission.
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Securities Act: The Securities Act of 1933, as amended, and the rules
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and regulations promulgated by the SEC thereunder.
Shelf Registration: As defined in Section 3 hereof.
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Special Counsel: Any special counsel to the Holders of Transfer
---------------
Restricted Securities, for which Holders of Transfer Restricted Securities will
be reimbursed pursuant to Section 6.
TIA: The Trust Indenture Act of 1939, as amended.
---
Transfer Restricted Securities: The Notes, upon original issuance
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thereof, and at all times subsequent thereto, until, in the case of any such
Note, (i) the date on which such Note has been exchanged for an Exchange Note
pursuant to the Exchange Offer, (ii) the date on which such Note has been
registered effectively pursuant to the Securities Act and disposed of in accor-
dance with the Registration Statement relating to it, (iii) the date on which
such Note is distributed to the public pursuant to Rule 144 (or any similar
provisions then in effect) or is saleable pursuant to Rule 144(k) promulgated by
the SEC pursuant to the Securities Act or (iv) the date on which such Note
ceases to be outstanding.
Trustee: Bank of Montreal Trust Company, the trustee under the
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Indenture.
underwritten registration or underwritten offering: A registration in
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connection with which securities of the Company are sold to an underwriter for
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reoffering to the public pursuant to an effective Registration Statement.
2. Exchange Offer
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(a) To the extent not prohibited by applicable law or interpretation
of the Staff of the SEC, the Company shall use its reasonable best efforts to
file with the SEC a Registration Statement relating to the Exchange Offer and
have declared effective by the SEC such Registration Statement no later than
on or prior to the Effective Date. The offer and sale of the Exchange Notes
pursuant to the Exchange Offer shall be registered pursuant to the Securities
Act on the appropriate form and duly registered or qualified under all
applicable state securities or Blue Sky laws and will comply with all applicable
tender offer rules and regulations of the Exchange Act and state securities or
Blue Sky laws. The Exchange Offer shall not be subject to any condition, other
than that the Exchange Offer does not violate any applicable law or
interpretation of the Staff of the SEC. No securities shall be included in the
Registration Statement covering the Exchange Offer other than the Notes and the
Exchange Notes.
(b) The Company may require each Holder of Transfer Restricted
Securities as a condition to its participation in the Exchange Offer to
represent to the Company and its counsel in writing (which may be contained in
the applicable letter of transmittal) that at the time of the consummation of
the Exchange Offer (i) any Exchange Notes received by such holder will be
acquired in the ordinary course of its business, (ii) such holder will have no
arrangement or understanding with any person to participate in the distribution
of the Notes or the Exchange Notes within the meaning of the Securities Act,
(iii) if the holder is not a broker-dealer or is a broker-dealer but will not
receive Exchange Notes for its own account in exchange for Notes, neither the
holder nor any such other person is engaged in or intends to participate in a
distribution of the Exchange Notes and (iv) that such holder is not an Affiliate
of the Company. If the Holder is a broker-dealer that will receive Exchange
Notes for its own account in exchange for Notes, it will represent that the
Notes to be exchanged for the Exchange Notes were acquired by it as a result of
market-making activities or other trading activities, and acknowledge
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that it will deliver a prospectus meeting the requirements of the Act in
connection with any resale of such Exchange Notes. It is understood that by
acknowledging that it will deliver and by delivering a prospectus meeting the
requirements of the Act in connection with any resale of such Exchange Notes,
the Holder is not admitting that it is an "underwriter" within the meaning of
the Act.
(c) Unless the Exchange Offer would not be permitted by any applicable
law or interpretation of the Staff of the SEC, the Company shall commence the
Exchange Offer (within the time periods set forth herein) by mailing the related
exchange offer prospectus and appropriate accompanying documents to each
Holder of Transfer Restricted Securities providing, in addition to such other
disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Agreement
and that all Notes validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (the "Exchange Date"),
which date shall in no event be later than the Consummation Date;
(iii) that Holders of Transfer Restricted Securities electing to have
a Note exchanged pursuant to the Exchange Offer will be required to
surrender such Note or $1,000 integral multiple portion thereof, together
with the enclosed letters of transmittal, to the institution and at the
address (located in the Borough of Manhattan, The City of New York)
specified in the notice prior to the close of business on the Exchange
Date; and
(iv) that Holders of Transfer Restricted Securities that do not
tender all such securities pursuant to the Exchange Offer will no longer
have any registration rights hereunder with respect to securities not
tendered.
Promptly after the Exchange Date, the Company shall:
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(i) accept for exchange all Notes or portions thereof validly
tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Notes or portions thereof so accepted for exchange by the
Company, and issue, or cause the Trustee under the Indenture to
authenticate and mail to each holder, an Exchange Note equal in principal
amount to the principal amount of the Notes surrendered by such holder.
(d) The Company and each Purchaser acknowledges that the Staff of
the SEC has taken the position that any broker-dealer that owns Exchange Notes
that were received by such broker-dealer for its own account in the Exchange
Offer (a "Participating Broker-Dealer") may be deemed to be an "underwriter"
within the meaning of the Securities Act and must deliver a prospectus meeting
the requirements of the Securities Act in connection with any resale of such
Exchange Notes (other than a resale of an unsold allotment resulting from the
original placement of the Notes).
The Company and each Purchaser also acknowledges that it is the SEC
Staff's position that if the Prospectus contained in the Registration
Statement includes a plan of distribution containing a statement to the above
effect and the means by which Participating Broker-Dealers may resell the
Exchange Notes, without naming the Participating Broker-Dealers or specifying
the amount of Exchange Notes owned by them, such Prospectus may be delivered by
Participating Broker-Dealers to satisfy their prospectus delivery obligations
under the Securities Act in connection with resales of Exchange Notes for
their own accounts, so long as the Prospectus otherwise meets the requirements
of the Securities Act.
In light of the above, notwithstanding the other provisions of this
Agreement, the Company agrees that the provisions of this Agreement as they
relate to a Shelf Registration shall also apply to an Exchange Offer to the
extent, and with such reasonable modifications thereto as may be reasonably
requested by any Participating Broker-Dealer or the Company, in each case as
provided in clause (ii) below, as appropriate to expedite or facilitate the
disposition of any Exchange Notes by
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Participating Broker-Dealers consistent with the positions of the Staff recited
in this Section 2(d); provided that:
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(i) the Company shall not be required to amend or supplement the
Prospectus contained in the Registration Statement, as would otherwise be
contemplated by this Agreement, for a period exceeding 90 days after the
Consummation Date (as such period may be extended pursuant to the terms of
this Agreement relating to a Shelf Registration) and Participating Broker-
Dealers shall not be authorized by the Company to deliver and shall not
deliver such Prospectus after such period in connection with the resales
contemplated by this Section 2(d); and
(ii) the application of the Shelf Registration procedures set forth in
this Section 2(d) of this Agreement to an Exchange Offer, to the extent not
otherwise required by the positions of the Staff of the SEC or the
Securities Act, will be in conformity with the reasonable request to the
Company by anyone who certifies to the Company in writing in a reasonably
timely manner that they anticipate that they will be a Participating
Broker-Dealer; and provided, further, that in connection with such
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application of the Shelf Registration procedures set forth in Section 3 to
an Exchange Offer, the Company shall be obliged (x) to deal only with one
entity representing the Participating Broker-Dealers, which shall be DLJ
unless it elects not to act as such representative, (y) to pay the fees and
expenses of only one counsel representing the Participating Broker-Dealers
and (z) to cause to be delivered, if requested, customary "cold comfort"
letters with respect to the Prospectus in the form existing on the Exchange
Date and with respect to any subsequent amendment or supplement, if any,
effected during the period specified in clause (i) above.
(e) The Purchasers shall have no liability to any person with respect
to any request made pursuant to Section 2(d).
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3. Shelf Registration
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(a) If the Company determines not to effect the Exchange Offer as
contemplated by Section 2 hereof or if, prior to the 90th day after the date of
this Agreement, any Holder of Transfer Restricted Securities shall notify the
Company in writing that, based on the advice of counsel, it is not eligible to
participate in the Exchange Offer (other than because it has an understand ing
or arrangement with any person to participate in a distribution of the Exchange
Notes) and such Holder has not received a written opinion from counsel to the
Company, reasonably acceptable to such Holder, to the effect that such Holder
is legally permitted to participate in the Exchange Offer, the Company shall
cause to be filed with the SEC pursuant to Rule 415 a shelf registration
statement, which may be an amendment to a registration statement filed in
connection with the Exchange Offer, relating to all such Transfer Restricted
Securities the Holders of which have provided the information required pursuant
to Section 3(b) hereof, and shall use its best efforts to have such Registration
Statement declared effective by the SEC on or prior to the Effective Date. In
such circumstances, the Company shall use its reasonable best efforts to keep
the Shelf Registration continuously effective under the Securities Act, until
(A) 36 months following the date on which the Shelf Registration was initially
declared effective (subject to extension pursuant to the last paragraph of
Section 5 hereof) or (B) if sooner, the date immediately following the date that
all Transfer Restricted Securities covered by the Shelf Registration have been
sold pursuant thereto (the "Effectiveness Period"); provided that the
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Effectiveness Period shall be extended to the extent required to permit dealers
to comply with the applicable prospectus delivery requirements of Rule 174 and
as otherwise provided herein
(b) No Holder of Transfer Restricted Securities may include any of
its Transfer Restricted Securities in any Shelf Registration Statement
pursuant to this Agreement unless and until such Holder furnishes to the Company
in writing, within 20 Business Days after receipt of a request therefor, such
information as the Company may reasonably request for use in connection with any
Shelf Registration Statement or Prospectus or preliminary prospectus included
therein. No Holder of Transfer
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Restricted Securities shall be entitled to liquidated damages pursuant to
Section 4 hereof unless and until such Holder shall have provided all such
reasonably requested information. Each Holder as to which any Shelf Registration
Statement is being effected agrees to furnish promptly to the Company all
information required to be disclosed in order to make the information previously
furnished to the Company by such Holder not materially misleading.
4. Liquidated Damages
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(a) The parties hereto agree that the Holders of Transfer Restricted
Securities will suffer damages if the Company fails to fulfill its obligations
pursuant to Section 2 or Section 3, as applicable, and that it would not be
feasible to ascertain the extent of such damages. Accordingly, if (i) the
applicable Registration Statement referred to in either Section 2 or Section 3
has not been declared effective by the SEC on or prior to the Effective Date
or (ii) either (A) the Exchange Offer has not been consummated on or prior to
the later of the Consummation Date or 180 days immediately following the date
of this Agreement, or (B) at any time prior to the end of the Effectiveness
Period the Shelf Registration shall have ceased to be continuously effective
without being succeeded within 30 days by an additional Shelf Registration
having been filed with and declared effective by the SEC (each such event
referred to in clauses (i) and (ii), an "Event Date"), then the Company agrees
to pay, as liquidated damages, and not as a penalty, to each Holder of a
Transfer Restricted Security, an additional amount (the "Liquidated Damages")
equal to (a) during the first 90-day period beginning on, and including, the
Event Date, $0.05 per calendar week (or partial calendar week), per $1,000
principal amount of Transfer Restricted Securities held by such Holder and (b)
during each subsequent 90-day period immediately following the final day of the
prior 90-day period, an additional $0.05 per calendar week (or partial calendar
week) per $1,000 principal amount of Transfer Restricted Securities held by such
Holder, up to a maximum amount of Liquidated Damages of $0.25 per calendar week
(or partial calendar week) per $1,000 principal amount of Transfer Restricted
Securi ties, and, in all cases, ending on, but excluding, (x) in the case of
clause (i) above, the date on which the Registration Statement is declared
effective, (y) in the
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case of clause (ii)(A) above, the date on which the Exchange Offer is
consummated and (z) in the case of clause (ii)(B) above, the date the Shelf
Registration again becomes effective under the Securities Act.
(b) The Company shall notify the Trustee and Paying Agent under the
Indenture immediately upon the happening of each and every Event Date. The
Company shall pay the Liquidated Damages due on the Transfer Restricted
Securities by depositing with the Paying Agent (which shall not be the Company
for these purposes), in trust, for the benefit of the holders thereof, at least
one Business Day prior to the next interest payment date specified by the
Indenture, sums sufficient to pay the Liquidated Damages then due. The
Liquidated Damages due shall be payable on each interest payment date specified
by the Indenture to the record holder entitled to receive the interest payment
to be made on such date. Each obligation to pay Liquidated Damages shall be
deemed to accrue from and including the applicable Event Date.
(c) The parties hereto agree that the Liquidated Damages provided for
in this Section 4 constitute a reasonable estimate of the damages that will be
suffered by Holders of Transfer Restricted Securities by reason of the failure
of the Exchange Offer to be consummated or the Shelf Registration to remain
effective, as the case may be, in accordance with this Agreement.
5. Registration Procedures
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In connection with the Company's registration obligations hereunder,
the Company shall effect such registrations on the appropriate form available
for the sale of the Transfer Restricted Securities or Exchange Notes, as
applicable, to (i) permit the sale of Exchange Notes and (ii) in the case of a
Shelf Registration, permit the sale of Transfer Restricted Securities in
accordance with the method or methods of disposition thereof specified by the
Holders of a majority in aggregate principal amount of Transfer Restricted
Securities, and pursuant thereto the Company shall as expeditiously as possible:
(a) In the case of a Shelf Registration, no fewer than five Business
Days prior to the initial filing of a Registration Statement or Prospectus and
no fewer
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than two Business Days 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 Transfer
Restricted Securities, their Special Counsel 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, their Special Counsel and such
underwriters, if any, and cause the officers and directors of the Company,
counsel to the Company and independent certified public accountants to the
Company to respond to such 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; provided,
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however, that the Company shall not be deemed to have kept a Registration
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Statement effective during the applicable period if it voluntarily takes or
fails to take any action that results in selling Holders of the Transfer
Restricted Securities covered thereby not being able to sell such Transfer
Restricted Securities pursuant to Federal securities laws during that period
(and the time period during which such Registration Statement is required to
remain effective hereunder shall be extended by the number of days during which
such selling Holders of Transfer Restricted Securities are not able to sell
Transfer Restricted Securities). The Company shall not file any such Shelf
Registration Statement or related Prospectus or any amendments or supplements
thereto to which the Holders of a majority of the Transfer Restricted
Securities, their Special Counsel, or the managing underwriters, if any, shall
reasonably object on a timely basis;
(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; cause the related Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424
(or any similar provisions then in force) 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
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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 Transfer Restricted Securities to be sold
or, in the case of an Exchange Offer, tendered for, their Special Counsel and
the managing underwriters, if any, promptly (and in the case of an event
specified by clause (i)(A) of this paragraph in no event fewer than two Business
Days prior to such filing), 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
Registra tion Statement or any post-effective amendment, when the same has
become effective, (ii) in the case of a Shelf Registration, 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 of any stop order, order
or injunction suspending or enjoining the use or the effectiveness of a
Registration Statement or the initiation of any proceedings for that purpose,
(iv) if at any time any of the representations and warranties of either the
Company contained in any agreement (including any underwriting agreement)
contemplated hereby cease to be true and correct in all material respects, (v)
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 Transfer
Restricted Securities or Exchange Notes for sale in any jurisdiction, or the
initiation or threatening of any proceeding for such purpose, and (vi) in the
case of a Shelf Registration, of the happening of any event that makes any
statement made in such Registration Statement or related Prospectus or any
document incorporated or deemed to be incorporated therein by reference untrue
in any material respect or that requires the making of any changes in such
Registration Statement, Prospectus or documents so that, in the case of the
Registration Statement, 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, not misleading, and that in the case
of the Prospectus, it will not contain any untrue statement of a material fact
or omit to state
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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 or
effectiveness of a Registration Statement or the lifting of any suspension of
the qualification (or exemption from qualification) of any of the Transfer
Restricted Securities or Exchange Notes for sale in any jurisdiction, at the
earliest practicable moment;
(e) If a Shelf Registration is filed pursuant to Section 3 and if
requested by the managing underwriters, if any, or the Holders of a majority
in aggregate principal amount of the Transfer Restricted Securities being sold
in connection with such offering, (i) promptly incorporate in a Prospectus
supplement or post-effective amendment such information as the managing
underwriters, if any, and such Holders agree should be included therein, and
(ii) make all required filings of such Prospectus supplement or such post-
effective amendment 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
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required to take any action pursuant to this Section 5(e) that would, in the
opinion of counsel for the Company, violate applicable law;
(f) Furnish to each Holder of Transfer Restricted Securities and
Exchange Notes, their Special Counsel and each managing underwriter, if any,
without charge, at least one conformed copy of each 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 by each Holder (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 Transfer Restricted Securities and
Exchange Notes, their Special Counsel, and the underwriters, if any, without
charge, as many copies of the Prospectus or Prospectuses (including
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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 Transfer Restricted Securities and the underwriters, if any, in
connection with the offering and sale of the Transfer Restricted Securities
covered by such Prospectus and any amendment or supplement thereto;
(h) Prior to any public offering of Transfer Restricted Securities and
prior to the consummation of the Exchange Offer, use its reasonable best efforts
to register or qualify or cooperate with the Holders of Transfer Restricted
Securities to be sold or tendered for, the underwriters, if any, and their
respective counsel in connection with the registration or qualification (or
exemption from such registration or qualification) of such Transfer Restricted
Securities or Exchange Notes for offer and sale under the securities or Blue Sky
laws of such jurisdictions within the United States as any 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 and do any and all other acts or things
necessary or advisable to enable the disposition in such jurisdictions of the
Transfer Restricted Securities or Exchange Notes covered by the applicable
Registration Statement; provided, however, that the Company shall not be
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required to qualify generally to do business in any jurisdiction where they are
not then so qualified or to take any action that would subject them to general
service of process in any such jurisdiction where they are not then so subject
or subject the Company to any tax in any such jurisdiction where it is not then
so subject;
(i) In connection with any sale or transfer of Transfer Restricted
Securities that will result in such securities no longer being Transfer
Restricted Securities, cooperate with the Holders and the managing under
writers, if any, to facilitate the timely preparation and delivery of
certificates representing Transfer Restricted Securities or Exchange Notes 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 Transfer Restricted Securities or Exchange Notes to be in such
denominations and regis-
17
tered in such names as the managing underwriters, if any, or Holders may request
at least two Business Days prior to any sale of Transfer Restricted Securities
or Exchange Notes;
(j) Use its reasonable best efforts to cause the offering of the
Transfer Restricted Securities and Exchange Notes covered by the Registration
Statement to be registered with or approved by such other governmental agencies
or authorities within the United States, except as may be required as a
consequence of the nature of such selling Holder's business, in which case the
Company will cooperate in all reasonable respects with the filing of such
Registration Statement and the granting of such approvals as may be necessary to
enable the seller or sellers thereof or the underwriters, if any, to consummate
the disposition of such Transfer Restricted Securities and Exchange Notes;
provided, however, that the Company shall not be required to register the
-------- -------
Transfer Restricted Securities and Exchange Notes in any jurisdiction that
would subject them to general service of process in any such jurisdiction
where it is not then so subject or subject the Company to any tax in any such
jurisdiction where it is not then so subject or to require the Company to
qualify to do business in any jurisdiction where it is not then so qualified;
(k) Upon the occurrence of any event contemplated by Paragraph
5(c)(vi), 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 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 light of the
circumstances under which they were made, not misleading;
(l) Prior to the effective date of the first Registration Statement
relating to the Transfer Restricted Securities or Exchange Notes, as applicable,
to provide a CUSIP number for the Transfer Restricted Securities and Exchange
Notes, as applicable;
18
(m) If a Shelf Registration is filed pursuant to Section 3, 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, or the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities being sold) in
order to expedite or facilitate the disposition of such Transfer Restricted
Securities, and in such connection, whether or not an underwriting agreement is
entered into and whether or not the registration is an underwritten
registration, (i) make such representations and warranties to the Holders of
such Transfer Restricted Securities and the underwriters, 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) 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, if any, and Special Counsel to the Holders of the Transfer
Restricted Securities being sold), addressed to each selling Holder of Transfer
Restricted Securities and each of the underwriters, if any, covering the matters
customarily covered in opinions requested in underwritten offerings and such
other matters as may be reasonably requested by such Special Counsel and
underwriters; (iii) use its 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 business which may hereafter be acquired by the Company for
which financial statements and financial data are required to be included in the
Registration Statement), addressed (where reasonably possible) to each selling
Holder of Transfer Restricted Securities and each of the underwriters, 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
19
contain indemnification provisions and procedures no less favorable to the
selling holders and the underwriters, if any, than those set forth in Section 7
hereof (or such other provisions and procedures acceptable to Holders of a
majority in aggregate principal amount of Transfer Restricted Securities covered
by such Registration Statement and the managing underwriters); and (v) deliver
such documents and certificates as may be reasonably requested by the Holders of
a majority in aggregate principal amount of the Transfer Restricted Securities
being sold, their Special Counsel and the managing underwriters, if any, to
evidence the continued validity of the representations and warranties made
pursuant to clause 5(m)(i) above and to evidence compliance with any customary
conditions contained in the underwriting agreement or other agreement entered
into by the Company;
(n) In the case of a Shelf Registration, make available for
inspection by a representative of the Holders of Transfer Restricted Securities
being sold, any underwriter participating in any such disposition of Transfer
Restricted Securities, if any, and any attorney, consultant or accountant
retained by such selling Holders or underwriter, at the offices where normally
kept, during reasonable business hours, all financial and other records,
pertinent corporate documents and properties of the Company and its subsidiaries
(including with respect to business 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 business 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 Shelf
Registration, 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
20
the filing of any Registration Statement or the use of any prospectus referred
to in this Agreement), (iii) such information becomes generally available to the
public other than as a result of a disclosure or failure to safeguard by such
Person or (iv) such information becomes available to such Person from a source
other than the Company and such source is not bound by a confidentiality
agreement;
(o) Provide an indenture trustee for the Transfer Restricted
Securities and the Exchange Notes, as the case may be, and cause the Indenture
to be qualified under the TIA not later than the effective date of the first
Registration Statement relating to the Transfer Restricted Securities or the
Exchange Notes, as applicable; and in connection therewith, cooperate with the
trustee under the Indenture and the Holders of the Transfer Restricted
Securities and the Exchange Notes, to effect such changes to the Indenture as
may be required for such Indenture to be so qualified in accordance with the
terms of the TIA; and execute, and use its reasonable efforts to cause such
trustee to execute, all customary documents as may be required to effect such
changes, and all other forms and documents required to be filed with the SEC to
enable the Indenture to be so qualified in a timely manner;
(p) Comply with all applicable rules and regulations of the SEC and
make generally available to their securityholders earning statements satisfying
the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder
(or any similar rule promulgated 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 Transfer Restricted 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; and
(q) If an Exchange Offer is to be consummated, upon delivery of the
Transfer Restricted Securities by such Holders to the Company in exchange for
the Exchange
21
Notes, the Company shall ▇▇▇▇, or caused to be marked, on such Transfer
Restricted Securities that such Transfer Restricted Securities are being
cancelled in exchange for the Exchange Notes; in no event shall such Transfer
Restricted Securities be marked as paid or otherwise satisfied.
The Company may require each seller of Transfer Restricted Securities
as to which any registration is being effected to furnish to the Company such
information regarding the distribution of such Transfer Restricted Securities as
is required by law to be disclosed in the applicable Registration Statement and
the Company may exclude from such registration the Transfer Restricted
Securities of any seller who unreasonably fails to furnish such information
within a reasonable time after receiving such request.
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 (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 in any amendment or supplement to the Registration
Statement filed or prepared subsequent to the time that such reference ceases to
be required.
In the case of a Shelf Registration pursuant to Section 3 hereof, each
Holder of Transfer Restricted Securities agrees by acquisition of such Transfer
Restricted Securities that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 5(c)(ii), 5(c)(iii),
5(c)(v) or 5(c)(vi) hereof, such Holder will forthwith discontinue disposition
of such Transfer Restricted Securities covered by such Registration Statement
or Prospectus until such Holder's receipt of the copies of the supplemented
22
or amended Prospectus contemplated by Section 5(k) 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 seller of Transfer Restricted Securities covered by
such Registration Statement shall have received (x) the copies of the
supplemented or amended Prospectus contemplated by Section 5(k) 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.
6. Registration Expenses
---------------------
(a) All fees and expenses incident to the performance of or
compliance with this Agreement by the Company shall be borne by them whether or
not any Registration Statement is filed or becomes effective and whether or not
any securities are issued or sold pursuant to any Registration Statement. The
fees and expenses referred to in the foregoing sentence shall include, without
limitation, (i) all registration and filing fees (including, without limitation,
fees and expenses (A) with respect to filings required to be made with the
National Association of Securities Dealers, Inc. and (B) in compliance with
securities or Blue Sky laws (including, without limitation and in addition to
that provided for in (b) below, fees and disbursements of counsel for the
underwriters or Holders in connection with Blue Sky qualifications of the
Transfer Restricted Securities or Exchange Notes and determination of the
eligibility of the Transfer Restricted Securities or Exchange Notes for
investment under the laws of such jurisdictions as the managing underwriters, if
any, or Holders of a majority in aggregate principal amount of Transfer
Restricted Securities may designate), (ii) printing expenses (including, without
limitation, expenses of printing certificates for Transfer Restricted Securities
or Exchange Notes in a form eligible for deposit with The Depository Trust
Company and of printing Prospectuses if the printing of Prospectuses is
requested by the managing under-
23
writers, if any, or by the Holders of a majority in principal amount of the
Transfer Restricted Securities included in or tendered for in connection with
any Registration Statement), (iii) messenger, telephone and delivery expenses,
(iv) fees and disbursements of counsel for the Company and Special Counsel for
the Holders (plus any local counsel, deemed appropriate by the Holders of a
majority in aggregate principal amount of the Transfer Restricted Securities),
in accordance with the provisions of Section 6(b) hereof, (v) fees and
disbursements of all independent certified public accountants referred to in
Section 5(m)(iii) (including, without limitation, the expenses of any special
audit and "cold comfort" letters required by or incident to such performance),
(vi) Securities Act liability insurance, if the Company so desires such
insurance, and (vii) fees and expenses of all other persons retained by the
Company. In addition, the Company shall pay its internal expenses (including,
without limitation, all salaries and expenses of their officers and employees
performing legal or accounting duties), the expense of any annual audit, and the
fees and expenses incurred in connection with the listing of the securities to
be registered on any securities exchange. Notwithstanding the foregoing or
anything in this Agreement to the contrary, each Holder shall pay all
underwriting discounts and commissions of any underwriters with respect to any
Notes or Exchange Notes sold by it.
(b) In connection with any Registration hereunder, the Company shall
reimburse the Holders of the Transfer Restricted Securities being registered or
tendered for in such registration for the reasonable fees and disbursements of
not more than one firm of attorneys representing the selling Holders (in
addition to any local counsel) chosen by the Holders of a majority in aggregate
principal amount of the Transfer Restricted Securities.
7. Indemnification
---------------
(a) The Company agrees to indemnify and hold harmless (i) each of the
Purchasers, each Holder of Transfer Restricted Securities, each holder of
Exchange Notes, each Participating Broker-Dealer and (ii) each person, if any,
who controls (within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act) any of the foregoing (any of the persons referred to in
24
this clause (ii) being hereinafter referred to as a "controlling person"), and
(iii) the respective officers, directors, partners, employees, representatives
and agents of the Purchasers, each Holder of Transfer Restricted Securities,
each holder of Exchange Notes, each Participating Broker-Dealer or any
controlling person (any person referred to in clause (i), (ii) or (iii) may
hereinafter be referred to as an "Indemnified Person"), from and against any and
------------------
all losses, claims, damages, liabilities and judgments caused by any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement, Prospectus or form of Prospectus or in any amendment or
supplement thereto or in any preliminary Prospectus, or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein (in the case of any
Prospectus or form of Prospectus or supplement thereto, in light of the
circumstances under which they were made) not misleading, except insofar as such
losses, claims, damages, liabilities or judgments are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to any Indemnified Person furnished in writing to the
Company by or on behalf of such Indemnified Person expressly for use therein;
provided that the foregoing indemnity with respect to any preliminary prospectus
--------
shall not inure to the benefit of any Indemnified Person from whom the person
asserting such losses, claims, damages, liabilities and judgments purchased
securities if such untrue statement or omission or alleged untrue statement or
omission made in such preliminary prospectus is eliminated or remedied in the
Prospectus and a copy of the Prospectus shall not have been furnished to such
person in a timely manner due to the wrongful action or wrongful inaction of
such Indemnified Person.
(b) In case any action shall be brought against any Indemnified
Person, based upon any Registration Statement or any such Prospectus or any
amendment or supplement thereto and with respect to which indemnity may be
sought against the Company, such Indemnified Person shall promptly notify the
Company in writing and the Company shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to such Indemnified Person and
payment of all fees and expenses. Any Indemnified Person shall have the right to
employ
25
separate counsel in any such action and participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of such
Indemnified Person, unless (i) the employment of such counsel shall have been
specifically authorized in writing by the Company, (ii) the Company shall have
failed to assume the defense and employ counsel or (iii) the named parties to
any such action (including any impleaded parties) include both such Indemnified
Person and the Company and such Indemnified Person shall have been advised by
counsel that there may be one or more legal defenses available to it which are
different from or additional to those available to the Company (in which case
the Company shall not have the right to assume the defense of such action on
behalf of such Indemnified Person, it being understood, however, that the
Company shall not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable fees
and expenses of more than one separate firm of attorneys (in addition to any
local counsel) for all such Indemnified Persons, which firm shall be designated
in writing by such Indemnified Persons, and that all such fees and expenses
shall be reimbursed as they are incurred). The Company shall not be liable for
any settlement of any such action effected without its written consent but if
settled with the written consent of the Company, the Company agrees to indemnify
and hold harmless any Indemnified Person from and against any loss or liability
by reason of such settlement. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any pending
or threatened proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
(c) In connection with any Registration Statement in which a Holder
of Transfer Restricted Securities is participating, such Holder of Transfer
Restricted Securities agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, its officers and any person controlling the
Company within the meaning of Section 15 of the Act or Section 20 of the
26
Exchange Act, to the same extent as the foregoing indemnity from the Company to
each Indemnified Person but only with reference to information relating to such
Indemnified Person furnished in writing by or on behalf of such Indemnified
Person expressly for use in such Registration Statement. In case any action
shall be brought against the Company, any of its directors, any such officer or
any person controlling the Company based on such Registration Statement and in
respect of which indemnity may be sought against any Indemnified Person, the
Indemnified Person shall have the rights and duties given to the Company (except
that if the Company shall have assumed the defense thereof, such Indemnified
Person shall not be required to do so, but may employ separate counsel therein
and participate in defense thereof but the fees and expenses of such counsel
shall be at the expense of such Indemnified Person), and the Company, its
directors, any such officers and any person controlling the Company shall have
the rights and duties given to the Indemnified Person, by Section 7(b) hereof.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party in respect of any losses, claims, damages,
liabilities or judgments referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims,
damages, liabilities and judgments (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and each
Indemnified Person on the other hand from the offering of the Notes or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
each such Indemnified Person in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities or judgments, as
well as any other relevant equitable considerations. The relative fault of the
Company and each such Indemnified Person shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission to state a material fact relates to information supplied by
the Company or such Indemnified Person and the parties' relative intent,
knowledge, access to infor-
27
mation and opportunity to correct or prevent such statement or omission. The
Company and the Purchasers agree that it would not be just and equitable if
contribution pursuant to this Section 7(d) were determined by pro rata
allocation (even if the Indemnified Person were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, no Indemnified Person shall be
required to contribute any amount in excess of the amount by which the total net
profit received by it in connection with the sale of the Notes pursuant to this
Agreement exceeds the amount of any damages which such Indemnified Person has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Indemnified Persons' obligations to contribute pursuant
to this Section 7(d) are several in proportion to the respective amount of Notes
included in any such Registration Statement by each Indemnified Person and not
joint.
8. Rules 144 and 144A
------------------
The Company shall use its best efforts to file the reports required to
be filed by it under the Securities Act and the Exchange Act in a timely
manner and, if at any time 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 of Transfer Restricted Securities, make available other
information as required by, and so long as necessary to permit, sales of its
Transfer Restricted Securities pursuant to Rule 144A. Notwithstanding the
foregoing, nothing in this Section 8 shall be deemed to require the Company to
register any of its securities pursuant to the Exchange Act.
28
9. Underwritten Registrations
--------------------------
If any of the Transfer Restricted Securities covered by any Shelf
Registration are to be sold in an underwritten offering, the investment banker
or investment bankers and manager or managers that will administer the offering
will be selected by the Holders of a majority in aggregate principal amount of
such Transfer Restricted Securities included in such offering, subject to the
consent of the Company (which will not be unreasonably withheld or delayed).
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted
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.
10. Miscellaneous
-------------
(a) Remedies. In the event of a breach by the Company, or by a Holder
--------
of Transfer Restricted Securities, of any of their obligations under this
Agreement, each Holder of Transfer Restricted Securities or the Company, as the
case may be, in addition to being entitled to exercise all rights granted by
law, including recovery of damages, will be entitled to specific performance of
its rights under this Agreement. Subject to Section 4 hereof, the Company and
each Holder of Transfer Restricted Securities agree that monetary damages would
not be adequate compensation for any loss incurred by reason of a breach by it
of any of the provisions of this Agreement and 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. The Company will not enter into any
--------------------------
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders of Transfer Restricted Securities in this Agreement or
otherwise conflicts with the provisions hereof. The Company has not previously
entered into any
29
agreement granting any registration rights with respect to any of its debt
securities to any person except for agreements with holders of registration
rights granted prior to the date hereof (from whom all necessary consents or
waivers have been obtained). Without limiting the generality of the foregoing,
without the written consent of the Holders of a majority in aggregate principal
amount of the then outstanding Transfer Restricted Securities, the Company shall
not grant to any person the right to request it to register any of its debt
securities under the Securities Act unless the rights so granted are subject in
all respects to the prior rights of the Holders of Transfer Restricted
Securities set forth herein, and are not otherwise in conflict or inconsistent
with the provisions of this Agreement.
(c) No Piggyback on Registrations. The Company shall not grant to
-----------------------------
any of its securityholders (other than the Holders of Transfer Restricted
Securities in such capacity) the right to include any securities of either of
them in any Shelf Registration or Exchange Offer other than Transfer Restricted
Securities.
(d) 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, unless they have obtained the written consent of the Holders
of a majority of the then outstanding aggregate principal amount of Transfer
Restricted Securities; provided, however, that, for the purposes of this
-------- -------
Agreement, Transfer Restricted Securities that are owned, directly or
indirectly, by either of them or an Affiliate of either of them are not deemed
outstanding. 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 of Transfer Restricted Securities whose securities are being
sold pursuant to a Registration Statement and that does not directly or
indirectly affect the rights of other Holders of Transfer Restricted Securities
may be given by Holders of a majority in aggregate principal amount of the
Transfer Restricted 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
30
except in accordance with provisions of the immediately preceding sentence.
(e) 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 facsimile:
(i) if to the Company, as provided in the Purchase Agreement,
(ii) if to the Purchasers, as provided in the Purchase
Agreement, or
(iii) if to any other person who is then the registered Holder
of any Transfer Restricted Securities, to the address of
such Holder as it appears in the Note register of the
Company.
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; 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.
(f) Successors and Assigns. This Agreement shall inure to the benefit
----------------------
of and be binding upon the successors and permitted assigns of each of the
parties and shall inure to the benefit of each Holder of Transfer Restricted
Securities. The Company may not assign its rights or obligations hereunder
without the prior written consent of each Holder of any Transfer Restricted
Securities. Notwithstanding the foregoing, no transferee shall have any of the
rights granted under this Agreement until such transferee shall acknowledge its
rights and obligations hereunder by a signed written statement of such
transferee's acceptance of such rights and obligations.
(g) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and, all of
31
which taken together shall constitute one and the same Agreement.
(h) Governing Law; Submission to Jurisdiction; Waiver of Jury Trial.
---------------------------------------------------------------
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 HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN 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 IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT
OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID
COURTS.
(i) 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.
(j) 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.
(k) Attorneys' Fees. In any action or proceeding brought to enforce
---------------
any provision of this Agree-
32
ment, or where any provision hereof or thereof is validly asserted as a defense,
the prevailing party, as determined by the court, shall be entitled to recover
reasonable attorneys' fees in addition to any other available remedy.
33
IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed as of the date first written above.
PRICE COMMUNICATIONS WIRELESS INC.,
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Name:
Title:
▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION, on behalf of
and as Representative of the Purchasers
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name:
Title:
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