TERREMARK WORLDWIDE,
INC.
REGISTRATION RIGHTS
AGREEMENT
This REGISTRATION
RIGHTS AGREEMENT (the “ Agreement ”), is made
and entered into as of January 5, 2007, by and between
Terremark Worldwide, Inc. (the “ Company ”) and
Credit Suisse International (the “ Purchaser
”).
A. The
Company and the Purchaser have entered into a Purchase Agreement
(“ Purchase Agreement ”), dated as of the date
hereof for (i) the purchase and sale of $4,000,000 principal
amount of the Company’s 0.50% Senior Subordinated Convertible
Notes due 2009 (the “ Notes ”) issued pursuant
to an Indenture between the Company and The Bank of New York Trust
Company, N.A., as trustee (the “ Indenture ”),
and (ii) the issuance of 145,985 shares (the “ Fee
Shares ”, and together with the shares of common stock
issuable upon conversion of the Notes, the “ Shares
”) of the Company’s common stock, par value $.001 (the
“ Common Stock ”).
B. As a
condition to closing of the Purchase Agreement, the parties have
agreed to enter into this Agreement.
NOW, THEREFORE, in
consideration of the above recitals and the mutual covenants,
representations, warranties and agreements set forth herein, and
for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto
intending to be legally bound do hereby agree as
follows:
1.
Defined Terms . Capitalized terms used but not otherwise
defined herein shall have the meanings assigned to such terms in
the Purchase Agreement.
2.
Representations of the Purchasers . The Purchaser represents
and warrants to the Company as follows:
(a) The
Purchaser acknowledges and agrees that the certificates
representing the Shares shall bear a legend in substantially the
form appearing below (unless subsequently registered under the Act)
in addition to any other legend required by a subordination
agreement or intercreditor agreement:
“THE
COMMON STOCK EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ SECURITIES
ACT ”), AND MAY NOT BE OFFERED, SOLD, PLEDGED,
HYPOTHECATED, ASSIGNED OR TRANSFERRED EXCEPT (i) PURSUANT TO A
REGISTRATION STATEMENT UNDER THE SECURITIES ACT THAT HAS BECOME
EFFECTIVE AND IS CURRENT WITH RESPECT TO THESE SECURITIES, OR
(ii) PURSUANT TO A SPECIFIC EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT BUT ONLY (EXCEPT IN THE CASE OF A TRANSFER MADE
PURSUANT TO RULE 144,
RULE 144A OR
REGULATION S PROMULGATED UNDER THE SECURITIES ACT) UPON THE COMPANY
FIRST HAVING OBTAINED THE WRITTEN OPINION OF COUNSEL TO THE
CORPORATION, OR OTHER COUNSEL REASONABLY ACCEPTABLE TO THE
CORPORATION, THAT THE PROPOSED DISPOSITION IS CONSISTENT WITH ALL
APPLICABLE PROVISIONS OF THE SECURITIES ACT AS WELL AS ANY
APPLICABLE “BLUE SKY” OR SIMILAR SECURITIES
LAWS.”
The Purchaser also
acknowledges that the Company may place a stop transfer order
against transfer of any of the Shares, if necessary in the
Company’s reasonable judgment, in order to assure compliance
by the Purchaser with the terms of the Purchase Agreement and this
Agreement.
(b) The
individual executing this Agreement has appropriate authority to
act on behalf of the Purchaser. This Agreement has been duly
executed and delivered by or on behalf of such Purchaser and
constitutes the valid and binding agreement of the Purchaser,
enforceable against the Purchaser in accordance with its terms
(except in all cases as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, or
similar laws affecting the enforcement of creditors’ rights
generally and except that the availability of the equitable remedy
of specific performance or injunctive relief is subject to the
discretion of the court before which any proceeding may be
brought).
3.
Representations and Warranties of the Company . The Company
represents and warrants to the Purchaser that the Company has full
right, power and authority to enter into this Agreement and this
Agreement has been duly authorized, executed and delivered by the
Company and constitutes the legal, valid and binding agreement of
the Company enforceable against the Company in accordance with its
terms (except in all cases as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, or
similar laws. affecting the enforcement of creditors’ rights
generally and except that the availability of the equitable remedy
of specific performance or injunctive relief is subject to the
discretion of the court before which any proceeding may be
brought).
4.
Covenants of the Purchaser . The Purchaser agrees and
covenants that it will not sell, transfer or make any disposition
of any securities of the Company after the effectiveness of any
registration statement relating to a primary public offering by the
Company for a period of time as required by the managing
underwriter of any such offering not to exceed 90 days;
provided that each director, executive officer and 5% or
greater shareholder of the Company shall have agreed to such
restrictions for the same time period.
5.
Registration and Listing of Shares . The Company hereby
agrees with the Purchasers that:
(a) (i)
(i) The Company shall use its commercially reasonable efforts
to file or cause to be filed, a registration statement (the “
Registration Statement ”) under the Securities Act, to
permit the resale by a holder thereof of the Shares and to have
such registration statement
2
declared
effective no later than 180 days following the Closing Date
(the “ Effectiveness Deadline ”).
(ii) The
Company shall use its commercially reasonable efforts to cause such
Registration Statement to remain effective until the earlier to
occur of (A) the date on which the shares are transferable
without registration pursuant to Rule 144(k) under the Securities
Act with respect to the Purchaser and (B) such time as all the
Shares covered by the Registration Statement have been sold or are
otherwise freely tradable without registration under the Securities
Act (the “ Effectiveness Period ”).
(b) In
connection with the foregoing, the Company will:
(i) Prepare
and file with the Securities and Exchange Commission (the “
Commission ”) a Registration Statement with respect to
such securities and use its commercially reasonable efforts to
cause such Registration Statement to become and remain
effective.
(ii) Prepare
and file with the Commission such amendments and supplements to
such Registration Statement and the prospectus used in connection
therewith as may be necessary to keep such Registration Statement
effective and to comply with the provisions of the Securities Act
with respect to the sale or other disposition of all securities
covered by such Registration Statement whenever the holder of such
securities shall desire to sell the same.
(iii) Furnish
to each holder of shares such number of copies of a summary
prospectus or other prospectus, including a preliminary prospectus,
in conformity with the requirements of the Securities Act, and such
other documents, as such holder may reasonably request in order to
facilitate the sale of the Common Stock owned by holder.
(iv) Use
its commercially reasonable efforts to register or qualify the
securities covered by such Registration Statement under applicable
blue sky laws, and do such other reasonable acts and things as may
be required in jurisdictions to which such blue sky laws apply;
provided , however , that the Company shall not be
obligated to file any general consent to service of process or
qualify as a foreign corporation in any jurisdiction.
(c) Deliver
such documents and certificates as may be reasonably requested by
such holder, including those to evidence compliance with Section
(b)(ii) hereof.
(d) If
requested, promptly include or incorporate in a prospectus
supplement or post-effective amendment to the Registration
Statement such information as such holder requests should be
included therein and to which the Company does not reasonably
object and shall make all required filings of such prospectus
supplement or post-effective amendment as soon as practicable after
it is notified of the matters to be included or incorporated in
such prospectus supplement or post-effective amendment.
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