Exhibit 7
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT, dated as of
October 18, 1999 (this "Agreement"), is entered into by and among CONVERGENCE
COMMUNICATIONS, INC., a Nevada corporation (the "Company"), PEGASUS GROUP, L.P.,
("Pegasus"), FONDELEC ESSENTIAL SERVICES GROWTH FUND, L.P., a Cayman Islands
limited partnership ("FESGF"), INTERNEXUS S.A., an Argentine sociedad anonima
("Internexus"), TELEMATICA EDC, C.A., a Venezuelan compania anonima
("Telematica"), TCW/CCI HOLDING LLC, a Delaware limited liability company
("TCW"), INTERNATIONAL FINANCE CORPORATION, an international organization
established by Articles of Agreement among its member countries ("IFC"), GLACIER
LATIN-AMERICA LTD., a British Virgin Islands International Business Company
("Glacier"), and ▇▇▇▇▇ ▇'▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇'▇▇▇▇▇▇▇▇ and the ESTATE OF ▇▇▇▇▇▇ ▇.
▇'▇▇▇▇▇▇▇▇ (collectively, the "D'Ambrosios"). Pegasus, FESGF, Internexus,
Telematica, TCW, IFC and Glacier are collectively referred to herein as the
"Purchasers" and each may be singularly referred to herein as a "Purchaser."
WHEREAS, Pegasus, FESGF, Internexus and the D'Ambrosios currently hold
shares of the Common Stock of the Company and all such parties other than the
D'Ambrosios currently hold Original Warrants (as defined below) to acquire
additional shares of the Common Stock of the Company, all as more particularly
described on Schedule 1 hereto;
WHEREAS, pursuant to the terms of those certain Registration Rights
Agreements dated February 4, 1997, December 23, 1998, June 15, 1999, August 6,
1999, September 3, 1999 and October 1, 1999 (the "Original Agreements"), the
Company granted Pegasus, FESGF and Internexus certain rights relating to the
registration by the Company of the Common Stock to be acquired by them under
such Original Warrants;
WHEREAS, pursuant to the terms of that certain Participation Agreement
dated October 15, 1999 among the Company and the Purchasers other than Pegasus
(the "Participation Agreement"), the Purchasers other than FondElec and
Internexus have agreed to acquire shares of the Company's Series C Preferred
Stock, options to acquire additional shares of Series C Preferred Stock, and
Series C Warrants (as defined below) for cash, and FESGF and Internexus have
agreed to convert certain amounts due them by the Company into shares of the
Company's Series C Preferred Stock, options to acquire additional shares of the
Company's Series C Preferred Stock, Series C Warrants (as defined below) and
FondElec/Internexus Warrants (as defined below);
WHEREAS, it is a condition precedent to the acquisition of those
securities by such Purchasers under the Participation Agreement that the Company
provide certain registration rights to them in accordance with the terms hereof;
WHEREAS, to facilitate the consummation of the transactions
contemplated by the Participation Agreement, the Company also desires to grant
to the D'Ambrosios certain registration rights;
WHEREAS, the parties desire that Telematica, TCW, IFC and Glacier join
in the execution of, and be granted, the registration rights granted Pegasus,
FESGF and Internexus pursuant to the Original Agreements and that, in connection
therewith, this Agreement be substituted in the place of, and replace in their
entirety, the Original Agreements; and
WHEREAS, the parties intend that this Agreement constitute the
"Registration Rights Agreement," as defined in the Participation Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and for
other good and valuable consideration, the adequacy and receipt of which are
hereby acknowledged, the parties hereto hereby agree that the Original
Agreements are hereby amended and restated in their entirety as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1 Definitions. The following terms shall have the meanings ascribed to
them below:
"Agreement" means this Agreement, as amended, modified or supplemented
from time to time, in accordance with the terms hereof, together with any
exhibits, schedules or other attachments thereto.
"Business Day" means any day that is not a Saturday, Sunday or a day on
which banking institutions in New York, New York are authorized or obligated by
law, executive order or government decree to be closed.
"CCI Shareholders' Agreement" means the CCI Shareholders' Agreement, as
that term is defined in the Participation Agreement.
"Closing" has the meaning given it in the Participation Agreement.
"Closing Date" has the meaning given it in the Participation Agreement.
"Commission" means the United States Securities and Exchange Commission
or any other federal agency at the time administering the Securities Act.
"Common Stock" means the common stock, par value $.001 per share, of
the Company.
"Company" has the meaning ascribed thereto in the introduction hereof.
"Controlling Person" means a Controlling Person as defined in Section
4.1.
"Damages" means Damages as defined in Section 4.1.
"Demand Registration" means a Demand Registration as defined in Section
2.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder.
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"FESGF" has the meaning ascribed thereto in the introduction hereof.
"FondElec/Internexus Warrants" means the FondElec/Internexus Warrants,
as that term is defined in the Participation Agreement.
"Glacier" has the meaning ascribed thereto in the introduction hereof.
"Holder" means any Person who now holds or shall hereafter acquire and
hold Registrable Securities.
"IFC" has the meaning ascribed thereto in the introduction hereof.
"Indemnified Party" means an Indemnified Party as defined in Section
4.3.
"Indemnifying Party" means an Indemnifying Party as defined in Section
4.3.
"Internexus" has the meaning ascribed thereto in the introduction
hereof.
"Market Price" means, with respect to the shares of Common Stock, (a)
if the shares are listed or admitted for trading on any national securities
exchange or included in The Nasdaq National Market or Nasdaq SmallCap Market,
the last reported sales price as reported on such exchange or market; (b) if the
shares are not listed or admitted for trading on any national securities
exchange or included in The Nasdaq National Market or Nasdaq SmallCap Market,
the average of the last reported closing bid and asked quotation for the shares
as reported on the National Association of Securities Dealers Automated
Quotation System ("NASDAQ") or a similar service if NASDAQ is not reporting such
information; (c) if the shares are not listed or admitted for trading on any
national securities exchange or included in The Nasdaq National Market or Nasdaq
SmallCap Market or quoted by NASDAQ or a similar service, the average of the
last reported bid and asked quotation for the shares as quoted by a market maker
in the shares (or if there is more than one market maker, the bid and asked
quotation shall be obtained from two market makers and the average of the lowest
bid and highest asked quotation). In the absence of any available public
quotations for the Common Stock, the Board of Directors of the Company shall
determine in good faith the fair value of the Common Stock, which determination
shall be set forth in a certificate by the Secretary of the Company.
"New Registrable Securities" means (i) the shares of Common Stock
issued or issuable upon exercise of the FondElec/Internexus Warrants or Series C
Warrants or upon the conversion of the Series C Convertible Preferred Stock
(whether acquired by a Purchaser under the terms of the Participation Agreement
at the Closing or Subsequent Closing, pursuant to the Option, or pursuant to
Section 7 of the Participation Agreement), (ii) the shares of Common Stock held
by FondElec and Internexus as of the date hereof or acquired by either of them
in the exercise of the Original Warrants or options described in Schedule 1
hereto, and (iii) any shares of Common Stock acquired as a result of stock
splits, stock dividends, reclassifications, recapitalizations, or similar events
relating to the shares described in clauses (i) and (ii) above.
"Old Registrable Securities" means (i) any shares of Common Stock held
by a Holder, as of the date hereof other than New Registrable Securities, and
(ii) any shares of Common Stock acquired as a result of stock splits, stock
dividends, reclassifications, recapitalizations, or similar events relating to
the shares described in clause (i) above.
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"Option" means the nine month option to acquire Series C Preferred
Stock issued to Telematica, TCW, IFC, Glacier, FESGF and Internexus, as
described in the Participation Agreement.
"Original Warrants" means the warrants to acquire shares of Common
Stock issued to Pegasus, FESGF and Internexus in connection with the Original
Agreements.
"Pegasus" has the meaning ascribed thereto in the introduction hereof.
"Person" has the meaning given it in the Participation Agreement.
"Piggy-Back Registration" means a Piggy-Back Registration as defined in
Section 2.3.
"Prospectus" means the prospectus included in any Registration
Statement (including without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective Registration
Statement in reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by any prospectus supplement with respect to the terms
of the offering of any portion of the securities covered by such Registration
Statement, and all other amendments and supplements to the prospectus, including
post-effective amendments, and all material incorporated by reference or deemed
to be incorporated by reference in such prospectus.
"Purchase Agreement" has the meaning ascribed thereto in the
introduction hereof.
"Purchasers" has the meaning ascribed thereto in the introduction
hereof.
"Registrable Securities" means New Registrable Securities and Old
Registrable Securities, in each case until such time as (x) a Registration
Statement covering such shares of Common Stock has been declared effective by
the Commission and such shares of Common Stock have been disposed of pursuant to
such effective Registration Statement, or (y) such shares of Common Stock would
be saleable pursuant to Rule 144 under the Securities Act (or any similar
provisions then in force) without regard to the volume limitations set forth in
Rule 144(e), or (z) such shares of Common Stock have been otherwise transferred
and the Company has delivered a new certificate or other evidence of ownership
for such Common Stock not bearing a restrictive legend and not subject to any
stop transfer or similar restrictive order and all of such Common Stock may be
resold by the Person receiving such certificate without complying with the
registration requirements of the Securities Act.
"Registration Statement" means any registration statement of the
Company filed under the Securities Act which covers any of the Registrable
Securities pursuant to the provisions of this Agreement, including the
Prospectus, amendments and supplements to such registration statement, including
post-effective amendments, all exhibits and all material incorporated by
reference in such registration statement.
"Request" means a Request as defined in Section 2.1(a).
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"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Selling Holder" means a Holder who is selling Registrable Securities
pursuant to a Registration Statement under the Securities Act.
"Selling Holders' Counsel" means the counsel selected to represent the
Selling Holders as set forth in Section 3.1(c).
"Series C Preferred Stock" means the Series C Convertible Preferred
Stock, par value $.001 per share, of the Company.
"Series C Warrants" means the warrants to acquire shares of Series C
Preferred Stock issued to FESGF, Internexus, Telematica, TCW, IFC and Glacier
under the terms of the Participation Agreement.
"Shareholder Parties" has the meaning given that term in the CCI
Shareholders' Agreement.
"Subsequent Closing" has the meaning given it in the Participation
Agreement.
"TCW" has the meaning ascribed thereto in the introduction hereof.
"Telematica" has the meaning ascribed thereto in the introduction
hereof.
"Underwriter" means a securities dealer who purchases any Registrable
Securities as principal in an underwritten offering and not as part of such
dealer's market-making activities.
ARTICLE 2
REGISTRATION RIGHTS
SECTION 2.1 Performance Part of Series of Transactions. The Parties acknowledge
and agree that the performance provided for in this Agreement is part of a
series of transactions which, pursuant to the Participation Agreement, are
to occur simultaneously and subject to certain conditions precedent as
provided for therein, including the Closing and the execution of the CCI
Shareholders' Agreement which, among other things, provides for certain
restrictions on transfer of the Registrable Securities. The parties do not
intend that this Agreement diminish or otherwise modify the restrictions on
transfer set forth in the CCI Shareholders' Agreement, and this Agreement
shall be construed consistent with that intent.
SECTION 2.2 Demand Registration.
(a) Request for Registration. Subject to the limitations contained in this
Section 2.2(a), at any time after the first anniversary of the Closing Date
any Holder or Holders of an aggregate of New Registrable Securities
representing 20% or more of all the New Registrable Securities may make
written requests (individually, a
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"Request") on the Company for the registration of the offer and sale of
some or all of the Holders' New Registrable Securities under the Securities
Act (such registration being hereinafter referred to as a "Demand
Registration"). Subject to the penultimate sentence of Section 2.2(b), the
Company shall have no obligation to effect more than three (3) Demand
Registrations. Any Request will specify the number of New Registrable
Securities proposed to be sold and the intended method(s) of disposition
thereof and shall also state the intent of the Holder to offer New
Registrable Securities for sale. The Company shall give written notice of
such Request within 10 days after the receipt thereof to all other Holders.
Within 20 days after receipt of such notice by any such Holder, such Holder
may request in writing that all or any portion of its New Registrable
Securities be included in such Registration Statement and the Company shall
include in the Registration Statement for such Demand Registration the New
Registrable Securities of all Holders that requested to be so included.
Each such request by such other Holders shall specify the number of New
Registrable Securities proposed to be sold and the intended method(s) of
disposition thereof and shall also state the intent of the Holder to offer
New Registrable Securities for sale. Notwithstanding the foregoing, the
Company shall not be requested to effect a Demand Registration unless the
Request has been made at least 180 days since the last Registration
Statement (other than a shelf registration under Rule 415 of the Securities
Act or a Registration Statement on Form S-8) was filed by the Company.
(b) Effective Registration. A registration will not be deemed to have been
effected as a Demand Registration unless the Registration Statement
relating thereto has been declared effective by the Commission and the
Company has complied in all material respects with its obligations under
this Agreement with respect thereto; provided that if, after the
Registration Statement has become effective, the offering and/or sale of
New Registrable Securities pursuant to such Registration Statement is or
becomes the subject of any stop order, injunction or other order or
requirement of the Commission or any other governmental or administrative
agency, or if any court or other governmental or quasi-governmental agency
prevents or otherwise limits the offer and/or sale of the New Registrable
Securities pursuant to the Registration Statement, other than in each case
primarily as a result of acts or omissions of the Holder or any agent
thereof, such registration will be deemed not to have been effected. If (i)
a registration requested pursuant to this Section 2.2 is deemed not to have
been effected or (ii) the Registration Statement relating to a Demand
Registration requested pursuant to this Section 2.2 does not remain
effective for a period of at least 180 consecutive days beyond the
effective date thereof or, with respect to an underwritten offering of New
Registrable Securities, until 45 days after the commencement of the
distribution by the Holders of the New Registrable Securities included in
such Registration Statement, then the Company shall continue to be
obligated to effect such New Registration pursuant to this Section 2.2. The
Holders shall be permitted to withdraw all or any part of the New
Registrable Securities from a Registration Statement at any time prior to
the effective date of such Demand Registration Statement; provided that in
the event
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of such withdrawal, such Holders shall be responsible for the fees and
expenses referred to in Section 3.2(viii) hereof incurred by such Holders
with respect to such Demand Registration prior to such withdrawal.
(c) Limitations. At such time as the New Registrable Securities may be
registered on Form S-2 or Form S-3, as the case may be (or any similar form
or forms promulgated by the SEC), the Holders of New Registrable Securities
shall have unlimited rights to request registration of their shares on Form
S-2 or Form S-3, as the case may be, or any such similar form.
Registrations effected on Form S-2 and Form S-3 shall not be counted
towards the limit on Demand Registrations under Section 2.2(a).
(d) Selection of Underwriter. If a requested registration pursuant to this
Section 2.2 involves an underwritten offering, the managing Underwriter(s)
thereof shall be selected by the Selling Holders and shall be reasonably
acceptable to the Company unless the Company has theretofore sold shares of
Common Stock in an underwritten offering, in which case the managing
Underwriter(s) of a requested registration pursuant to this Section 2.2
shall be selected by the Company and shall be reasonably acceptable to the
Selling Holders.
(e) Deferral of Registration. Notwithstanding any other provision of this
Section 2, the Company shall not be obligated to effect the filing of a
Registration Statement pursuant to Section 2.2(a) hereof (i) during any
period when there exists an effective Registration Statement covering any
New Registrable Securities, or (ii) for a period not to exceed 90 days, if
the Company shall furnish to the Holders requesting a Registration
Statement under Section 2(a) hereof a certificate, signed by the Company,
stating that in the good faith judgment of the Board of Directors of the
Company it would be detrimental to the best interests of the Company and
its stockholders generally for such Registration Statement to be filed at
that time; provided that in such event, the Holders initiating the request
for registration will be entitled to withdraw such request.
SECTION 2.3 Piggy-Back Registration. If at any time after the first
anniversary of the Closing Date the Company proposes to file a Registration
Statement under the Securities Act with respect to an offering by the
Company for its own account (including for the purpose of effecting any
transaction approved by the Company's board of directors under the terms of
Section 6(b)(vi) or Section 6(c)(i) of the CCI Shareholders' Agreement, or
which the Shareholder Parties agree to proceed with under the terms of
Section 9 of the CCI Shareholders' Agreement, which the Company hereby
agrees to undertake) or for the account of any of its respective security
holders (other than a Registration Statement on Form S-4 or Form S-8 or on
any other form inappropriate for an underwritten public offering or related
solely to securities to be issued in a merger, acquisition of the stock or
assets of another entity or in a similar transaction (or any substitute
form that may be adopted by the Commission), including a Registration
Statement pursuant to a Demand Registration under Section 2.2), then the
Company shall give written notice of such proposed filing to the Holders as
soon as practicable (but in no event less than 30 days before the
anticipated filing date), and such notice shall offer such Holders the
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opportunity to register such number of New Registrable Securities as each
such Holder may request (which request shall specify the New Registrable
Securities intended to be disposed of by such Holder and shall also state
the intent of the Holder to offer New Registrable Securities for sale) (a
"Piggy-Back Registration"). The Company shall use all reasonable efforts to
cause the managing Underwriter or Underwriters of a proposed underwritten
offering to permit the New Registrable Securities requested to be included
in a Piggy-Back Registration to be included on the same terms and
conditions as any similar securities of the Company or any other security
holder included therein and to permit the sale or other disposition of such
New Registrable Securities in accordance with the intended method of
distribution thereof. Any Holder shall have the right to withdraw its
request for inclusion of its New Registrable Securities in any Registration
Statement pursuant to this Section 2.3 by giving written notice to the
Company of its request to withdraw, provided that in the event of such
withdrawal (other than pursuant to Section 2.5(c) hereof), such Holder
shall be responsible for the fees and expenses referred to in Section
3.2(viii) hereof incurred by such Holder prior to such withdrawal relating
to such Registration Statement. The Company may withdraw a Piggy-Back
Registration at any time prior to the time it becomes effective.
No registration effected under this Section 2.3, and no failure to
effect a registration under this Section 2.3, shall relieve the Company of
its obligation to effect a registration upon the request of Holders
pursuant to Section 2.2, and no failure to effect a registration under this
Section 2.3 and to complete the sale of New Registrable Securities in
connection therewith shall relieve the Company of any other obligation
under this Agreement (including, without limitation, the Company's
obligations under Sections 3.2 and 4.1).
SECTION 2.4 Special Registration. If at any time after the first anniversary of
the Closing Date the registration (whether pursuant to a Demand
Registration or a Piggy-Back Registration) of some or all of a Holder's Old
Registrable Securities under the Securities Act is required or advisable
for the Holders of the Old Registrable Securities to (i) effectuate any
transaction approved by the Company's board of directors under the terms of
Section 6(b)(vi) or Section 6(c)(i) of the CCI Shareholders' Agreement,
(ii) exercise their rights under the provisions of Section 3(b) of the CCI
Shareholders' Agreement, or (iii) effectuate any transaction that the
Shareholder Parties agree to proceed with under the provisions of Section 9
of the CCI Shareholders' Agreement, then the Company shall offer to the
Holders of such Old Registrable Securities (but in no event less than 30
days before the anticipated filing date) the ability to register such
number of Old Registrable Securities (subject to the limitations of clauses
(i), (ii) or (iii) above as such Holders may request (which request shall
specify the Old Registrable Securities intended to be disposed of by such
Holders and which shall state the firm intent of such Holders to offer such
Old Registrable Securities for sale). The Company shall use all reasonable
efforts to cause or permit such Old Registrable Securities to be included
on the same terms and conditions as any similar securities of the Company
or any other security holder included therein and to permit the
registration, sale or other disposition of such Old Registrable Securities
in accordance with the intended method of registration and distribution
thereof.
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SECTION 2.5 Reduction of Offering.
(a) Demand Registration. The Company may include in a Demand Registration
pursuant to Section 2.2 securities of the same class as the Registrable
Securities for the account of the Company and any other Persons who hold
securities of the same class as the Registrable Securities on the same
terms and conditions as the Registrable Securities to be included therein;
provided, however, that (i) if the managing Underwriter or Underwriters of
any underwritten offering described in Section 2.2 have informed the
Company in writing that it is their opinion that the total number of
Registrable Securities, and securities of the same class as the Registrable
Securities which Holders, the Company and any other Persons desiring to
participate in such registration intend to include in such offering is such
as to materially and adversely affect the success of such offering, then
the number of shares to be offered for the account of the Company and for
the account of all such other Persons (other than the Holders)
participating in such registration shall be reduced or limited pro rata in
proportion to the respective number of shares requested to be registered to
the extent necessary to reduce the total number of shares requested to be
included in such offering to the number of shares, if any, recommended by
such managing Underwriter or Underwriters, and (ii) if the offering is not
underwritten, no other Person, including the Company, shall be permitted to
offer securities under any such Demand Registration unless the Selling
Holders owning a majority-in-interest of Common Stock to be sold consent to
the inclusion of such shares therein.
(b) Piggy-Back Registration.
(i) Notwithstanding anything contained herein, if the managing Underwriter
or Underwriters of any underwritten offering described in Section 2.3
have informed, in writing, the Holders requesting inclusion in such
offering that it is their opinion that the total number of shares
which the Company, Holders and any other Persons holding securities of
the same class as the Registrable Securities desiring to participate
in such registration intend to include in such offering is such as to
materially and adversely affect the success of such offering, then,
the Company will include in such registration (A) first, all the
shares the Company offered for its own account, if any, (B) then, if
additional shares may be included in such registration without
materially and adversely affecting the success of such offering, the
shares offered by the holders of securities as a result of their
exercise of "demand" registration rights by such holders, if any, and
(C) then, if additional shares may be included in such registration
without materially and adversely affecting the success of such
offering, the number of shares offered by the Holders and such other
holders of securities of the same class as the Registrable Securities
whose piggy-back registration rights may not be reduced without
violating their contractual rights (provided such contractual rights
were in existence prior to the date of this Agreement), on a pro rata
basis in proportion to the relative number of Registrable Securities
of the holders (including the Holders) participating in such
registration.
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(ii) If the managing Underwriter or Underwriters of any underwritten
offering described in Section 2.3 notify the Holders requesting
inclusion in such offering that the kind of securities that the
Holders, the Company and any other Persons desiring to participate in
such registration intend to include in such offering is such as to
materially and adversely affect the success of such offering, (A) the
Registrable Securities to be included in such offering shall be
reduced as described in clause (i) above or (B) if such reduction
would, in the judgment of the managing Underwriter or Underwriters, be
insufficient to substantially eliminate the material adverse effect
that inclusion of the Registrable Securities requested to be included
would have on such offering, such Registrable Securities will be
excluded from such offering.
(c) Withdrawal. If, as a result of the proration provisions of this Section
2.5, any Holder shall not be entitled to include all Registrable Securities
in a Demand Registration or Piggy-Back Registration that such Holder has
requested to be included, such Holder may elect to withdraw his request to
include Registrable Securities in such registration; provided, however,
that if a Holder withdraws his request pursuant to this Paragraph 2.5(c),
the Company shall be responsible for the fees and expenses referred to in
Section 3.2(viii) hereof.
(d) Holdback Agreements. If any registration of Registrable Securities shall be
in connection with an underwritten public offering, each Holder agrees not
to effect any public sale or distribution, including any sale pursuant to
Rule 144 under the Securities Act, of any Registrable Securities, and not
to effect any such public sale or distribution of any other equity security
of the Company or of any security convertible into or exchangeable or
exercisable for any equity security of the Company (in each case, other
than as part of such underwritten public offering) during the seven (7)
days prior to, and during the one hundred eighty (180) day period beginning
on, the effective date of such Registration Statement (except as part of
such registration).
ARTICLE 3
REGISTRATION PROCEDURES
SECTION 3.1 Filings; Information. Whenever the Company is required to effect or
cause the registration of the offer and sale of Registrable Securities
pursuant to Section 2.2 or 2.3 hereof, including where such registration
shall be required in order to (i) effectuate any transaction approved by
the Company's board of directors under the terms of Section 6(b)(vi) or
Section 6(c)(i) of the CCI Shareholders' Agreement, or (ii) effectuate any
transaction that the Shareholder Parties agree to proceed with under the
provisions of Section 9 of the CCI Shareholders' Agreement, the Company
will use its best efforts to effect the registration of the offer and the
sale of such Registrable Securities in
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accordance with the intended method(s) of disposition thereof as quickly as
practicable, and in connection with any such request:
(a) Registration Filing. The Company will prepare and file with the Commission
a Registration Statement with respect to the offer and sale of such
securities and use its best efforts to cause such Registration Statement to
become and remain effective until the completion of the distribution
contemplated thereby; provided, however, the Company shall not be required
to keep such Registration Statement effective for more than 180 days (or
such shorter period which will terminate when all Registrable Securities
covered by such Registration Statement have been sold, but not prior to the
expiration of the applicable period referred to in Section 4(3) of the
Securities Act and Rule 174 thereunder, if applicable); provided, further,
that with respect to a Demand Registration, the Company shall use its best
efforts to file with the Commission a Registration Statement as soon as is
practicable after the date of the Request and in any event no later than 60
days after the date of the Request for the Demand Registration and shall
use its best efforts to cause such Registration Statement to be declared
effective as soon as is practicable after the date of filing and in any
event no later than 180 days after the date of such Request.
(b) Amendments. The Company will prepare and file with the Commission such
amendments and post-effective amendments to the Registration Statement as
may be necessary to keep such Registration Statement effective for as long
as such registration is required to remain effective pursuant to the terms
hereof; cause the Prospectus to be supplemented by any required Prospectus
supplement, and, as so supplemented, to be filed pursuant to Rule 424 under
the Securities Act; and comply with the provisions of the Securities Act
applicable to it with respect to the disposition of all Registrable
Securities covered by such Registration Statement during the applicable
period in accordance with the intended methods of disposition by the
Selling Holders set forth in such Registration Statement or supplement to
the Prospectus.
(c) Copies. The Company, at least ten (10) Business Days prior to filing a
Registration Statement or at least five (5) Business Days prior to filing a
Prospectus or any amendment or supplement to such Registration Statement or
Prospectus, will furnish to (i) each Selling Holder, (ii) not more than one
counsel representing all Selling Holders ("Selling Holders' Counsel"), to
be selected by a majority-in-interest of such Selling Holders, and (iii)
each Underwriter, if any, of the Registrable Securities covered by such
Registration Statement copies of such Registration Statement as proposed to
be filed, together with exhibits thereto, which documents will be subject
to review and approval by each of the foregoing within five (5) Business
Days after delivery (except that such review and approval of any Prospectus
or any amendment or supplement to such Registration Statement or Prospectus
must be within three (3) Business Days after delivery), and thereafter,
furnish to such Selling Holders, Selling Holders' Counsel and Underwriters,
if any, such number of conformed copies of such Registration Statement,
each amendment and supplement thereto (in each case including all
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exhibits thereto and documents incorporated by reference therein), the
Prospectus included in such Registration Statement (including each
preliminary Prospectus) and such other documents or information as such
Selling Holders, Selling Holders' Counsel or Underwriters may reasonably
request in order to facilitate the disposition of the Registrable
Securities (it being understood that the Company consents to the use of the
Prospectus and any amendment or supplement thereto by each Selling Holder
and the Underwriters, if any, in connection with the offering and sale of
the Registrable Securities covered by such Prospectus or any amendment or
supplement thereto).
(d) No Stop Orders. The Company will take all reasonable actions required to
prevent the entry of such stop order or to remove it at the earliest
possible moment if entered.
(e) Blue Sky Filings. On or prior to the date on which the Registration
Statement is declared effective, use its best efforts to register or
qualify such Registrable Securities under such other securities or "blue
sky" laws of such jurisdictions as any Selling Holder, Selling Holders'
Counsel or Underwriter reasonably requests and do any and all other acts
and things which may be necessary or advisable to enable such Selling
Holder to consummate the disposition in such jurisdictions of such
Registrable Securities owned by such Selling Holder; use its best efforts
to keep each such registration or qualification (or exemption therefrom)
effective during the period which the Registration Statement is required to
be kept effective; and use its best efforts to do any and all other acts or
things necessary or advisable to enable the disposition in such
jurisdictions of the Registrable Securities covered by the applicable
Registration Statement; provided that the Company will not be required to
(i) qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this paragraph (e), (ii) subject
itself to taxation in any such jurisdiction or (iii) consent to general
service of process in any such jurisdiction.
(f) Post-Effective Matters. The Company will notify each Selling Holder,
Selling Holders' Counsel and any Underwriter and (if requested by any such
Person) confirm such notice in writing, (i) when a Prospectus or any
Prospectus supplement or post-effective amendment has been filed and, with
respect to a Registration Statement or any post-effective amendment, when
the same has become effective, (ii) of the issuance by the Commission of
any stop order suspending the effectiveness of a Registration Statement or
the initiation or threatening of any proceedings for that purpose, (iii) of
the issuance by any state securities commission or other regulatory
authority of any order suspending the qualification or exemption from
qualification of any of the Registrable Securities under state securities
or "blue sky" laws or the initiation of any proceedings for that purpose,
and (iv) of the happening of any event which makes any statement made in a
Registration Statement or related Prospectus or any document incorporated
or deemed to be incorporated by reference therein untrue in a material
respect or which requires the making of any changes in such Registration
Statement, Prospectus or documents so that they will not contain any untrue
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statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements in the Registration
Statement and Prospectus not misleading in light of the circumstances in
which they were made; and, as promptly as practicable thereafter, prepare
and file with the Commission and furnish a supplement or amendment to such
Prospectus so that, as thereafter deliverable to the buyers of such
Registrable Securities, such Prospectus will not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading.
(g) Earning Statement. The Company will make generally available an earning
statement satisfying the provisions of Section 11(a) of the Securities Act
no later than 90 days after the end of the 12-month period beginning with
the first day of the Company's first fiscal quarter commencing after the
effective date of a Registration Statement, which earning statement shall
cover said 12-month period, and which requirement will be deemed to be
satisfied if the Company timely files complete and accurate information on
Forms 10-Q, 10-K and 8-K under the Exchange Act and otherwise complies with
Rule 158 under the Securities Act.
(h) Underwriting Agreement. The Company will enter into customary agreements
(including, if applicable, an underwriting agreement in customary form) and
take such other actions as are reasonably required in order to expedite or
facilitate the disposition of such Registrable Securities.
(i) Transfer Agent and Registrar. The Company will provide for a transfer agent
and registrar for all such Registrable Securities not later than the
effective date of such registration statement, and use its best efforts to
cause all such Registrable Securities to be listed on each securities
exchange on which similar securities issued by the Company are then listed
and, if not so listed, to be listed on the NASDAQ (or other national market
reasonably acceptable to the holders of 66 2/3% or more of the holders of
the Registrable Securities) and, if listed on the NASDAQ, use its best
efforts to secure designation of all such Registrable Securities covered by
such registration statement as a NASDAQ national market system security
within the meaning of Rule 11Aa2-1 of the Commission or, failing that, to
secure NASDAQ authorization for such Registrable Securities and, without
limiting the generality of the foregoing, to arrange for at least two
market makers to register as such with respect to such Registrable
Securities with the NASDAQ.
(j) Information Regarding Distribution. The Company, during the period when the
Prospectus is required to be delivered under the Securities Act, will file
all documents required to be filed with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act.
The Company may require each Selling Holder to promptly furnish in
writing to the Company such information regarding the distribution of the
Registrable Securities as
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the Company may from time to time reasonably request and such other
information as may be legally required in connection with such registration
including, without limitation, all such information as may be requested by
the Commission or the National Association of Securities Dealers, Inc.
Each Selling Holder agrees that, upon receipt of any notice from the
Company of the happening of any event of the kind described in Section
3.1(f) hereof, such Selling Holder will forthwith discontinue disposition
of Registrable Securities pursuant to the Registration Statement covering
such Registrable Securities until such Selling Holder's receipt of the
copies of the supplemented or amended Prospectus contemplated by Section
3.1(f) hereof, and, if so directed by the Company, such Selling Holder will
deliver to the Company all copies, other than permanent file copies then in
such Selling Holder's possession, of the most recent Prospectus covering
such Registrable Securities at the time of receipt of such notice. In the
event the Company shall give such notice, the Company shall extend the
period during which such Registration Statement shall be maintained
effective (including the period referred to in Section 3.1(a) hereof) by
the number of days during the period from and including the date of the
giving of notice pursuant to Section 3.1(f) hereof to the date when the
Company shall make available to the Selling Holders covered by such
Registration Statement a Prospectus supplemented or amended to conform with
the requirements of Section 3.1(f) hereof.
SECTION 3.2 Registration Expenses. The Company shall pay all expenses incident
to the Company's performance of or compliance with this Agreement
including, without limitation: (i) all registration and filing fees, (ii)
the fees and expenses of compliance with securities or blue sky laws
(including fees and disbursements of counsel in connection with blue sky
qualifications of the Registrable Securities), (iii) all printing,
messenger and delivery expenses, (iv) the Company's internal expenses
(including, without limitation, all salaries and expenses of its officers
and employees performing legal or accounting duties), (v) the fees and
expenses incurred in connection with the listing or quotation, as
appropriate, of the Registrable Securities, (vi) the fees and disbursements
of counsel for the Company and the fees and expenses for independent
certified public accountants retained by the Company (including the
expenses of any special audit or cold comfort letters), (vii) the fees and
expenses of any special experts retained by the Company in connection with
such registration, and (viii) the fees and expenses of the Selling Holders
Counsel, provided, however, that, notwithstanding the foregoing, any Holder
whose Registrable Securities are included in more than two registration
statements filed pursuant to the provisions of Section 2.2(a) hereof shall
pay his pro rata portion of all the foregoing expenses (based on the number
of shares included) with respect to the third registration statement in
which such Holders' shares are included. The Company shall have no
obligation to pay any underwriting fees, discounts or commissions
attributable to the sale of Registrable Securities and any of the expenses
incurred by Selling Holders which are not payable by the Company, such
costs to be borne by the Selling Holder or Selling Holders.
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ARTICLE 4
INDEMNIFICATION AND CONTRIBUTION
SECTION 4.1 Indemnification by the Company. The Company agrees to indemnify and
hold harmless, to the fullest extent permitted by law, each Selling Holder,
its partners, officers, directors, employees, advisors and agents, and each
Person, if any, who controls such Selling Holder within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act,
together with the partners, officers, directors, employees, advisors and
agents of such controlling Person (collectively, the "Controlling
Persons"), from and against any loss, claim, damage, liability, attorneys'
fees, cost or expense and costs and expenses of investigating and defending
any such claim (collectively, the "Damages") and any action in respect
thereof to which such Selling Holder, its partners, officers, directors,
employees, advisors and agents, and any such Controlling Person may become
subject under the Securities Act, the Exchange Act or otherwise, insofar as
such Damages (or proceedings in respect thereof) arise out of, or are based
upon, any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement or Prospectus or any preliminary
Prospectus, or arise out of, or are based upon, 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, except insofar as
the same are based upon information furnished in writing to the Company by
a Selling Holder expressly for use therein, and shall reimburse each
Selling Holder, its partners, officers, directors, employees, advisors and
agents, and each such Controlling Person for any legal and other expenses
reasonably incurred by that Selling Holder, its partners, officers,
directors, employees, advisors and agents, or any such Controlling Person
in investigating or defending or preparing to defend against any such
Damages or proceedings. The Company also agrees to indemnify any
Underwriters of the Registrable Securities, their officers and directors
and each Person who controls such Underwriters on substantially the same
basis as that of the indemnification of the Selling Holders provided in
this Section 4.1.
SECTION 4.2 Indemnification by Selling Holders. Each Selling Holder agrees,
severally but not jointly, to indemnify and hold harmless the Company, its
officers, directors, employees, advisors and agents and each Person, if
any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, together with the
partners, officers, directors, employees, advisors and agents of such
Controlling Person, to the same extent as the foregoing indemnity from the
Company to such Selling Holder, but only with reference to information
related to such Selling Holder, or its plan of distribution, furnished in
writing by such Selling Holder expressly for use in any Registration
Statement or Prospectus, or any amendment or supplement thereto, or any
preliminary Prospectus; provided, however, that such Selling Holder shall
not be liable in any such case to the extent that prior to the filing of
any such Registration Statement or Prospectus or amendment or supplement
thereto, such Selling Holder has furnished in writing to the Company
information expressly for use in such Registration Statement or Prospectus
or any amendment or supplement thereto which corrected or made not
misleading information previously furnished to the Company. In no event
shall the liability of any Selling Holder be greater in amount than the
dollar amount
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of the proceeds received by such Selling Holder upon the sale of the
Registrable Securities giving rise to such indemnification obligation.
SECTION 4.3 Conduct of Indemnification Proceedings. Promptly after receipt by
any Person in respect of which indemnity may be sought pursuant to Section
4.1 or 4.2 (an "Indemnified Party") of notice of any claim or the
commencement of any action, the Indemnified Party shall, if a claim in
respect thereof is to be made against the Person against whom such
indemnity may be sought (an "Indemnifying Party"), notify the Indemnifying
Party in writing of the claim or the commencement of such action; provided
that the failure to notify the Indemnifying Party shall not relieve it from
any liability which it may have to an Indemnified Party otherwise than
under Section 4.1 or 4.2 except to the extent of any actual prejudice
resulting therefrom. If any such claim or action shall be brought against
an Indemnified Party, and it shall notify the Indemnifying Party thereof,
the Indemnifying Party shall be entitled to participate therein, and, to
the extent that it wishes, jointly with any other similarly notified
Indemnifying Party, to assume the defense thereof with counsel reasonably
satisfactory to the Indemnified Party. After notice from the Indemnifying
Party to the Indemnified Party of its election to assume the defense of
such claim or action, the Indemnifying Party shall not be liable to the
Indemnified Party for any legal or other expenses subsequently incurred by
the Indemnified Party in connection with the defense thereof other than
reasonable costs of investigation; provided that the Indemnified Party
shall have the right to employ separate counsel to represent the
Indemnified Party and its Controlling Persons who may be subject to
liability arising out of any claim in respect of which indemnity may be
sought by the Indemnified Party against the Indemnifying Party, but the
fees and expenses of such counsel shall be for the account of such
Indemnified Party unless (i) the Indemnifying Party and the Indemnified
Party shall have mutually agreed to the retention of such counsel or (ii)
in the opinion of counsel to such Indemnified Party, representation of both
parties by the same counsel would be inappropriate due to actual or
potential conflicts of interest between them, it being understood, however,
that the Indemnifying Party shall not, in connection with any one such
claim or action or separate but substantially similar or related claims or
actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more
than one separate firm of attorneys (together with appropriate local
counsel) at any time for all Indemnified Parties. No Indemnifying Party
shall, without the prior written consent of the Indemnified Party, effect
any settlement of any claim or pending or threatened proceeding in respect
of which the 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 arising out of such claim or proceeding. Whether or not the
defense of any claim or action is assumed by the Indemnifying Party, such
Indemnifying Party will not be subject to any liability for any settlement
made without its consent, which consent will not be unreasonably withheld.
SECTION 4.4 Contribution. If the indemnification provided for in this Article 4
is unavailable to the Indemnified Parties in respect of any Damages
referred to herein, 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 Damages in
- 16 -
such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Selling Holders on the other from
the offering of the Registrable Securities, or if such allocation is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits but also the relative fault of the
Company on the one hand and the Selling Holders on the other in connection
with the statements or omissions which resulted in such Damages, as well as
any other relevant equitable considerations. The relative fault of the
Company on the one hand and of each Selling Holder on the other shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by such
party, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company and the Selling Holders agree that it would not be just
and equitable if contribution pursuant to this Section 4.4 were determined
by pro rata allocation 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 Damages 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 4.4, no Selling Holder shall
be required to contribute any amount in excess of the amount by which the
total price at which the Registrable Securities of such Selling Holder were
offered to the public exceeds the amount of any damages which such Selling
Holder has otherwise paid by reason of such untrue or alleged untrue
statement or omission or alleged omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any Person who was not guilty
of such fraudulent misrepresentation. Each Selling Holder's obligations to
contribute pursuant to this Section 4.4 is several in the proportion that
the proceeds of the offering received by such Selling Holder bears to the
total proceeds of the offering received by all the Selling Holders and not
joint.
ARTICLE 5
MISCELLANEOUS
SECTION 5.1 Participation in Underwritten Registrations. No Person may
participate in any underwritten registration hereunder unless such Person
(a) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Persons entitled hereunder to
approve such arrangements, and (b) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements
and other documents reasonably required under the terms of such
underwriting arrangements and these registration rights.
SECTION 5.2 Additional Rights. If subsequent to the date hereof the Company
grants to holders or prospective holders of its securities registration
rights which are more
- 17 -
favorable than the terms or provisions of this Agreement are to the Holders
of the New Registrable Securities, this Agreement shall be deemed to be
automatically amended (without the necessity of any action on the part of
the Company or the Holders) to grant to the Holders of the New Registrable
Securities such more favorable or additional rights, in addition to those
set forth herein.
SECTION 5.3 Rule 144 and 144A. The Company covenants that it will file any
reports required to be filed by it under the Securities Act and the
Exchange Act and that it will take such further action as any Holder may
reasonably request, all to the extent required from time to time to enable
Holders to sell Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by (a) Rule
144 or Rule 144A under the Securities Act, or (b) any similar rule or
regulation hereafter adopted by the Commission. Upon the request of any
Holder, the Company will deliver to such Holder a written statement as to
whether it has complied with such requirements.
SECTION 5.4 Amendment and Modification. Any provision of this Agreement may be
waived, provided that such waiver is set forth in a writing executed by the
party against whom the enforcement of such waiver is sought. This Agreement
may not be amended, modified or supplemented other than by a written
instrument signed by the holders of at least 66 2/3% of the Registrable
Securities (calculated with respect to the Series C Preferred Stock on an
as-converted basis in accordance with the terms and conditions for such
securities under the certificate establishing the Series C Preferred
Stock's rights and preferences); provided, however, that without the
consent of all the Holders, no amendment or modification which materially
and adversely affects any Holders' rights hereunder without the consent of
such Holders. No course of dealing between or among any Persons having any
interest in this Agreement will be deemed effective to modify, amend or
discharge any part of this Agreement or any rights or obligations of any
Person under or by reason of this Agreement.
SECTION 5.5 Successors and Assigns; Third Party Beneficiaries. This Agreement
and all of the provisions hereof shall be binding upon and inure to the
benefit of the parties hereto, each subsequent Holder and their respective
successors and assigns and executors, administrators and heirs. Holders are
intended third-party beneficiaries of this Agreement and this Agreement may
be enforced by such Holders.
SECTION 5.6 Entire Agreement. This Agreement sets forth the entire agreement and
understanding between the parties as to the subject matter hereof and
merges and supersedes all prior discussions, agreements and understandings
of any and every nature among them.
SECTION 5.7 Headings. Subject headings are included for convenience only and
shall not affect the interpretation of any provisions of this Agreement.
SECTION 5.8 Notices. Any notice, demand, request, waiver, or other communication
under this Agreement shall be in writing and shall be deemed to have been
duly given on the date of service if personally served or sent by telecopy,
on the business day after notice is delivered to a courier or mailed by
express
- 18 -
mail if sent by courier delivery service or express mail for next day
delivery and on the third day after mailing if mailed to the party to whom
notice is to be given, by first class mail, registered, return receipt
requested, postage prepaid and addressed as follows:
If to the Company to:
Convergence Communications, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Purchasers, at the address set forth next to such Purchaser's
name on the signature page hereto.
SECTION 5.9 Governing Law; Forum; Process. This Agreement shall be construed in
accordance with, and the rights of the parties shall be governed by, the
internal laws of the State of New York, including Section 5-1401 of the New
York General Obligations Law. All disputes arising under or relation to
this Agreement shall first be subject to conciliation in accordance with
the Rules of Conciliation of the International Chamber of Commerce and,
failing conciliation, be finally settled under the Rules of Arbitration of
the International Chamber of Commerce by three arbitrators appointed in
accordance with said Rules. The place of arbitration shall be New York, New
York. The language of the arbitration shall be English. In the event any
dispute under the Participation Agreement relates in any way to the
validity, performance or interpretation of this Agreement and an arbitral
tribunal is constituted pursuant to Section 11(n) of the Participation
Agreement, all parties to any dispute hereunder agree (i) to be joined to
the procedures initiated pursuant to Section 11(n) of the Participation
Agreement; (ii) to have any proceedings initiated hereunder consolidated
with proceedings initiated pursuant to Section 11(n) of the Participation
Agreement and (iii) to be bound by any ruling of the arbitral tribunal
constituted pursuant to Section 11(n) of the Participation Agreement or any
interim or final award thereof. Submission of disputes to arbitration
pursuant to the Rules of Arbitration of the International Chamber of
Commerce, in consolidation with any disputes submitted to arbitration
pursuant to Section 11(n) of the Participation Agreement as provided above,
shall be the sole method of resolving disputes between the Parties hereto.
Judgment upon an arbitration award may be entered in any court having
jurisdiction.
- 19 -
SECTION 5.10 Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original, and all of which together shall
constitute a single agreement.
SECTION 5.11 Severability. In the event that any one or more of the immaterial
provisions contained in this Agreement shall for any reason be held to be
invalid, illegal or unenforceable, the same shall not affect any other
provision of this Agreement, but this Agreement shall be construed in a
manner which, as nearly as possible, reflects the original intent of the
parties.
SECTION 5.12 No Prejudice. The terms of this Agreement shall not be construed in
favor of or against any party on account of its participation in the
preparation hereof.
SECTION 5.13 Words in Singular and Plural Form. Words used in the singular form
in this Agreement shall be deemed to import the plural, and vice versa, as
the sense may require.
SECTION 5.14 Remedy for Breach. The Company hereby acknowledges that in the
event of any breach or threatened breach by the Company of any of the
provisions of this Agreement, the Holder would have no adequate remedy at
law and could suffer substantial and irreparable damage. Accordingly, the
Company hereby agrees that, in such event, the Holder shall be entitled,
without the necessity of proving damages or posting bond, and
notwithstanding any election by any Holder to claim damages, to obtain a
temporary and/or permanent injunction, without proving a breach therefor,
to restrain any such breach or threatened breach or to obtain specific
performance of any such provisions, all without prejudice to any and all
other remedies which any Holder may have at law or in equity.
SECTION 5.15 Termination of Original Agreements. By executing this Agreement,
each of Pegasus, Internexus, FondElec and the Company acknowledge and agree
that the Original Agreements are superseded and replaced by this Agreement
in their entirety, that the Original Agreements are of no further force or
effect with respect to such parties, and that the rights of such parties
relating to the registration of their Registrable Securities will be
governed by this Agreement.
- 20 -
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
CONVERGENCE COMMUNICATIONS, INC.
By:__________________________________________
Name:_____________________________________
Title:____________________________________
Address: ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
PEGASUS FUND, L.P.
By: Pegasus Management Corp.
Its: General Partner
By:__________________________________________
Name:_____________________________________
Title:____________________________________
Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
FONDELEC ESSENTIAL SERVICES GROWTH
FUND, L.P.
By: FondElec E.S.G.P. Corp.
Its: General Partner
By:__________________________________________
Name:_____________________________________
Title:____________________________________
Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
INTERNEXUS S.A.
By:__________________________________________
Name:_____________________________________
Title:____________________________________
Address: ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇
Fax No.: ▇▇▇-▇▇▇▇-▇▇▇▇-▇▇▇▇
TELEMATICA EDC, C.A.
By:__________________________________________
Name:_____________________________________
Title:____________________________________
Address: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇-▇-▇▇▇▇▇▇▇▇▇
Fax No.: ▇▇▇-▇▇▇-▇▇▇-▇▇▇▇
TCW/CCI HOLDING LLC
By:__________________________________________
Name:_____________________________________
Title:____________________________________
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
INTERNATIONAL FINANCE CORPORATION
By:__________________________________________
Name:_____________________________________
Title:____________________________________
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇. ▇▇▇-▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
GLACIER LATIN-AMERICA LTD.
By:__________________________________________
Name:_____________________________________
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