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EXHIBIT 10.1
REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
LEAP WIRELESS INTERNATIONAL, INC.
AND
THE PERSONS LISTED ON THE
SIGNATURE PAGES HEREOF
Dated as of August 16, 2004
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REGISTRATION RIGHTS AGREEMENT
THIS
REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT"), dated as of
August
16, 2004, by and among Leap Wireless
International, Inc., a Delaware corporation
(the "COMPANY"), and the Holders (as
hereinafter defined) of Registrable
Securities (as hereinafter defined) who are
parties to this Agreement, including
any Additional Holders (as hereinafter
defined) who subsequently become parties
to this Agreement.
RECITALS
A.
Subject to
and on the terms and conditions set forth in that certain
Fifth Amended Joint Plan of Reorganization
Under Chapter 11 of the Bankruptcy
Code, dated as of July 30, 2003 (the
"PLAN"), which Plan was confirmed on
October 22, 2003 by order of the United
States Bankruptcy Court for the Southern
District of California, as the same may be
amended, modified or supplemented
from time to time in accordance with the
terms thereof, the Holders will receive
from the reorganized Company shares of the
reorganized Company's new common
stock on the effective date of the
Plan.
B.
The
Company and the Holders are entering into this Agreement
pursuant to, and as authorized by, the
Bankruptcy Court order confirming the
Plan.
AGREEMENTS
In
consideration of the foregoing, and the agreements set forth below,
the
parties hereby agree with each other as
follows:
1. DEFINITIONS.
As used in
this Agreement, the following capitalized terms (in their
singular and plural forms, as applicable)
have the following meanings:
"Action"
has the meaning assigned to such term in Section 7.3 hereof.
"Additional Holders" means the Permitted Assignees of
Registrable
Securities who, from time to time, acquire
Registrable Securities and own
Registrable Securities at the relevant
time, agree to be bound by the terms
hereof and become Holders for purposes of
this Agreement.
"Adverse
Effect" has the meaning assigned to such term in Section 2.5
hereof.
"Affiliate" of a Person means any Person that, directly or
indirectly,
through one or more intermediaries,
controls or is controlled by, or is under
common control with, such other Person. For
purposes of this definition, the
term "control" (including the terms
"controlling," "controlled by" and "under
common control with") means the possession,
direct or indirect, of the power to
cause the direction of the management and
policies of a Person, whether through
the ownership of voting securities, by
contract or otherwise.
"Agreement" has the meaning assigned to such term in the
introductory
paragraph to this Agreement, as the same
may be amended, supplemented or
restated from time to time.
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"Business
Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking
institutions in the Borough of Manhattan,
The City of New York are authorized or
obligated by law or executive order to
close.
"Commission" means the United States Securities and Exchange
Commission
and any successor United States federal
agency or governmental authority having
similar powers.
"Common
Stock" means the authorized common stock, par value $0.0001 per
share, of the Company.
"Company"
has the meaning assigned to such term in the introductory
paragraph to this Agreement.
"Company
Indemnified Person" has the meaning assigned to such term in
Section 7.2 hereof.
"Company
Standstill Period" has the meaning assigned to such term in
Section 5.1 hereof.
"Demand
Registration" has the meaning assigned to such term in Section
2.1
hereof.
"Demand
Request" has the meaning assigned to such term in Section 2.1
hereof.
"Exchange
Act" means the Securities Exchange Act of 1934, as amended, or
any successor statute, and the rules and
regulations of the Commission
thereunder.
"Holder"
means any (i) Person who owns Registrable Securities at the
relevant time and is a party to this
Agreement or (ii) Additional Holder.
"Indemnified Person" has the meaning assigned to such term in
Section 7.1
hereof.
"Indemnitee" has the meaning assigned to such term in Section 7.3
hereof.
"Inspectors" has the meaning assigned to such term in Section
6.1(k)
hereof.
"Joining
Holder" has the meaning assigned to such term in Section 2.2
hereof.
"Loss" and
"Losses" have the meanings assigned to such terms in Section
7.1 hereof.
"Major
Holder" means any Person or group of Affiliated Persons that hold
a
minimum of 15% of the Registrable
Securities as of the effective date of the
Plan.
"Majority
Participating Holders" means, with respect to any registration
of Registrable Securities under this
Agreement, the Holder or Holders at the
relevant time of at least a majority of the
Registrable Securities to be
included in the registration statement in
question.
"Material
Disclosure Event" means, as of any date of determination, any
pending or imminent event relating to the
Company or any of its subsidiaries,
which, in the good faith determination of
the Company (i) requires disclosure of
material, non-public information
relating
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to such event in any registration statement
or related prospectus (including
documents incorporated by reference
therein) so that such registration statement
would 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 are made, not
misleading, (ii) is otherwise not required
to be publicly disclosed at that time
(e.g., on Forms 10-K, 8-K, or 10-Q) under
applicable federal or state securities
laws and (iii) if publicly disclosed at the
time of such event, could reasonably
be expected to have a material adverse
effect on the business, financial
condition or prospects of the Company and
its subsidiaries or would materially
adversely affect a pending or proposed
acquisition, merger, recapitalization,
consolidation, reorganization, financing or
similar transaction, or negotiations
with respect thereto.
"NASD" has
the meaning assigned to such term in Section 6.1(n) hereof.
"Participating Holder" means any Holder on whose behalf
Registrable
Securities are registered pursuant to
Sections 2, 3 or 4 hereof.
"Permitted
Assignee" means any (i) Affiliate of any Holder who acquires
Registrable Securities from such Holder or
its Affiliates or (ii) any other
Person who acquires at least 20%
(calculated at the time of such purchase) of
any Holder's Registrable Securities and who
shall have been designated as a
Permitted Assignee by such Holder in a
written notice to the Company; provided
that the rights of any Person designated as
a Permitted Assignee referred to in
the foregoing clause (ii) shall be limited
if, and to the extent, provided in
such notice.
"Person"
means any individual, corporation, partnership, limited
liability
company, joint venture, association,
joint-stock company, trust, unincorporated
organization, government or any agency or
political subdivision thereof or any
other entity.
"Plan" has
the meaning assigned to such term in the Recitals to this
Agreement.
"Records"
has the meaning assigned to such term in Section 6.1(k) hereof.
The terms
"register," "registered" and "registration" mean a registration
effected by preparing and filing with the
Commission a registration statement on
an appropriate form in compliance with the
Securities Act, and the declaration
or order of the Commission of the
effectiveness of such registration statement
under the Securities Act.
"Registrable Securities" means the Shares and any additional Common
Stock
issued with respect to Registrable
Securities by way of a stock dividend, stock
split or reverse stock split or in
connection with a combination of shares,
recapitalization, merger, consolidation or
otherwise, and any securities issued
in exchange for or in replacement of such
Registrable Securities; provided,
however, that as to any Registrable
Securities, such securities shall cease to
constitute "Registrable Securities" for
purposes of this Agreement if and when
(i) a registration statement with respect
to the sale of such securities shall
have been declared effective by the
Commission and such securities shall have
been sold pursuant thereto, or (ii) such
securities are sold or transferred in
accordance with the provisions of Rule 144,
or (iii) such securities are sold or
transferred (other than in a transaction
under clause (i) or (ii) above) by a
person in a transaction in which such
person's rights under this Agreement are
not assigned, or (iv) such securities
are
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no longer outstanding, or (v) such
securities may be sold or transferred by the
beneficial owner of such securities
pursuant to Rule 144(k).
"Requesting Holder" has the meaning assigned to such term in
Section 2.1
hereof.
"Required
Filing Date" has the meaning assigned to such term in Section
2.1 hereof.
"Required
Period" has the meaning assigned to such term in Section 4.2(a)
hereof.
"Rule 144"
means Rule 144 (or any similar provision then in force)
promulgated under the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended, or
any
successor statute, and the rules and
regulations of the Commission thereunder.
"Shares"
means the shares of Common Stock issued to the Holders under
the
Plan.
"Shelf
Filing Deadline" has the meaning assigned to such term in
Section
4.1 hereof.
"Shelf
Registration Statement" has the meaning assigned to such term
in
Section 4.1 hereof.
"Suspension Notice" has the meaning assigned to such term in
Section 5.2
hereof.
"Suspension Period" has the meaning assigned to such term in
Section 5.2
hereof.
The words
"include," "includes" and "including," when used in this
Agreement, shall be deemed to be followed
by the words "without limitation."
2. DEMAND REGISTRATION.
2.1
Request for Registration. Subject to the provisions contained in
this
Section 2.1 and in Sections 3.2(b), 5.2 and
5.3 hereof, any Major Holder may,
from time to time (but in no event earlier
than the date the Shelf Registration
Statement is required to be filed under
Section 4.1 hereof), request (each, a
"REQUESTING HOLDER") in writing (a "DEMAND
REQUEST") that the Company effect the
registration under the Securities Act of a
specified number of Registrable
Securities held by the Requesting Holders
(a "DEMAND REGISTRATION"); provided,
however, that the Company will in no event
be required to effect more than three
(3) Demand Registrations in total;
provided, further that the Company will in no
event be required to effect more than one
(1) Demand Registration in any
12-month period; provided, further, that,
subject to the Company's compliance
with its obligations under Article 3
hereof, the Company will not be obligated
to take any action to effect any Demand
Registration during the period
commencing with the Company's issuance of a
notice of a proposed registration of
an underwritten offering of equity
securities of the Company for its own account
(except pursuant to registrations on Form
S-4 or any successor form or on Form
S-8 or any successor form relating solely
to securities issued pursuant to any
benefit plan) to the Holders pursuant to
Section 3.1 hereof, continuing while
the Company uses reasonable best efforts to
pursue such registered underwritten
offering, and ending upon the earliest to
occur of: (i) 45 days immediately
following the Company's issuance
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of the notice of such proposed registered
underwritten offering pursuant to
Section 3.1 hereof, unless, within such
45-day period, the Company shall have
filed the registration statement for such
proposed underwritten offering, or
shall have issued a press release
disclosing such proposed underwritten offering
pursuant to Rule 135 (or its successor)
promulgated under the Securities Act
thereby enabling the Holders to sell their
Registrable Securities pursuant to
the Shelf Registration Statement; (ii) the
abandonment, cessation or withdrawal
of such proposed registered underwritten
offering; or (iii) 90 days immediately
following the effective date of the
registration statement pertaining to such
underwritten offering; and provided,
further, that the Company shall not be
obligated to effect any Demand Registration
if the Shelf Registration Statement
is then effective, and such Shelf
Registration Statement may be utilized by the
Requesting Holder for the offering and sale
of its Registrable Securities
without a requirement under the
Commission's rules and regulations for a
post-effective amendment thereto. Subject
to the provisions contained in this
Section 2.1 and in Sections 3.2(b), 5.2 and
5.3 hereof, upon receipt of a Demand
Request, the Company will cause to be
included in a registration statement on an
appropriate form under the Securities Act,
filed with the Commission as promptly
as practicable but in any event not later
than 60 days after receiving a Demand
Request (the "REQUIRED FILING DATE"), such
Registrable Securities as may be
requested by such Requesting Holders in
their Demand Request together with any
other Registrable Securities of the same
class as requested by Joining Holders
joining in such request pursuant to Section
2.2 hereof. The Company shall use
its reasonable efforts to cause any such
registration statement to be declared
effective by the Commission as promptly as
possible after such filing. If the
Company issues a notice of a proposed
underwritten public offering of equity
securities of the Company for its own
account pursuant to Section 3.1 hereof and
subsequently abandons, ceases or withdraws
such offering, the Company will not
issue a notice of a subsequent proposed
registration of an underwritten offering
of equity securities of the Company for its
own account pursuant to Section 3.1
hereof until the Shelf Registration
Statement is first declared effective.
2.2
Joining Holders. If at any time the Company proposes to
register
Registrable Securities for the account of
the Requesting Holders pursuant to
Section 2.1 hereof, then (i) the Company
shall give, or cause to be given,
written notice of such proposed filing to
all the Holders as soon as practicable
(but in no event less than 30 days before
the anticipated filing date). Upon the
written request of any Holder, received by
the Company no later than the 10th
Business Day after receipt by such Holder
of the notice sent by the Company
(each such Holder, a "JOINING HOLDER"), to
register, on the same terms and
conditions as the securities otherwise
being sold pursuant to such Demand
Registration, any of its Registrable
Securities of the same class as the
securities otherwise being sold pursuant to
such Demand Registration, the
Company will use its reasonable best
efforts to cause such Registrable
Securities to be included in the
registration statement proposed to be filed by
the Company on the same terms and
conditions as any securities of the same class
included therein.
2.3
Effective Registration. A registration will not count as a
Demand
Registration (i) unless the related
registration statement has been declared
effective and has remained effective until
such time as all of such Registrable
Securities covered thereby have been
disposed of in accordance with the intended
methods of disposition by the Participating
Holders (but in no event for a
period of more than 180 days after such
registration statement becomes effective
not including any Suspension Period); it
being understood that if, after it has
become effective, an offering of
Registrable Securities pursuant to a
registration statement is terminated by any
stop
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order, injunction, or other order of the
Commission or other governmental agency
or court, such registration pursuant
thereto will be deemed not to have been
effected and will not count as a Demand
Registration for purposes of Section
2.1, or (ii) if pursuant to Section 2.5
hereof, the Requesting Holders and Joint
Holders are cut back to fewer than 75% of
the Registrable Securities requested
to be registered and at the time of the
request there was not in effect a Shelf
Registration Statement.
2.4
Selection of Underwriters. With respect to any offering of
Registrable
Securities pursuant to a Demand
Registration in the form of an underwritten
offering, the Company shall select an
investment banking firm of national
standing to be the managing underwriter for
the offering, which firm shall be
reasonably acceptable to the Majority
Participating Holders.
2.5
Priority on Demand Registrations. With respect to any offering
of
Registrable Securities pursuant to a Demand
Registration in the form of an
underwritten offering, no securities to be
sold for the account of any Person
(including the Company) other than the
Requesting Holders and Joining Holders
shall be included in a Demand Registration
unless the managing underwriter
advises the Requesting Holders in writing
that the inclusion of such securities
will not adversely affect the price or
success of the offering (an "ADVERSE
EFFECT"). Furthermore, in the event that
the managing underwriter advises the
Requesting Holders in writing that the
amount of Registrable Securities proposed
to be included in such Demand Registration
by Requesting Holders and Joining
Holders is sufficiently large (even after
exclusion of all securities of any
other Person pursuant to the immediately
preceding sentence) to cause an Adverse
Effect, the number of Registrable
Securities to be included in such Demand
Registration shall be allocated among all
such Requesting Holders and Joining
Holders pro rata based on the ratio that
the number of Registrable Securities
that each such Holder requested to be
included in such Demand Registration bears
to the total number of Registrable
Securities that all Requesting Holders and
Joining Holders requested to be included in
such Demand Registration; provided
that if, as a result of such pro-ration,
any Requesting Holder or Joining Holder
shall not be entitled to include in a
registration all Registrable Securities of
the class that such Holder had requested to
be included, such Holder may elect
to withdraw its request to include such
Registrable Securities in such
registration or may reduce the number
requested to be included; provided,
however, that (a) such request must be made
in writing prior to the earlier of
the execution of the underwriting agreement
or the execution of the custody
agreement with respect to such registration
and (b) such withdrawal or reduction
shall be irrevocable.
2.6
Cancellation of Registration. A majority in interest of the
participating Holders shall the right to
cancel a proposed Demand Registration
of Registrable Securities pursuant to this
Article 2 when the request for
cancellation is based upon material adverse
information relating to the Company
that is different from the information
known to the participating Holders at the
time of the Demand Request. Such
cancellation of a registration shall not be
counted as one of the three (3) Demand
Registrations and notwithstanding
anything to the contrary in the Agreement,
the Company shall be responsible for
the expenses of the participating Holders
incurred in connection with the
registration through the date that is seven
days after the time such information
became known to the participating Holders,
to the extent such expenses are as
described in clauses (i) through (x) of the
first sentence of Section 8 hereof.
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3. PIGGYBACK REGISTRATIONS.
3.1 Holder
Piggyback Registration. If the Company proposes to file a
registration statement under the Securities
Act with respect to an offering of
any equity securities (except pursuant to
registrations on Form S-4 or any
successor form or on Form S-8 or any
successor form relating solely to
securities issued pursuant to any benefit
plan) on a form that would permit
registration of Registrable Securities for
sale to the public under the
Securities Act, then the Company shall give
written notice of such proposed
filing to the Holders not less than 21 days
before the anticipated filing date,
describing in reasonable detail the
proposed registration (including the number
and class of securities proposed to be
registered, the proposed date of filing
of such registration statement, any
proposed means of distribution of such
securities, any proposed managing
underwriter of such securities and a good
faith estimate by the Company of the
proposed maximum offering price of such
securities as such price is proposed to
appear on the facing page of such
registration statement), and offering such
Holders the opportunity to register
such number of Registrable Securities of
the same class as those being
registered by the Company as each such
Holder may request. Upon the written
request of any Holder, received by the
Company no later than 10 Business Days
after receipt by such Holder of the notice
sent by the Company, to register, on
the same terms and conditions as the
securities otherwise being sold pursuant to
such registration, any of such Holder's
Registrable Securities of the same class
as those being registered (which request
shall state the intended method of
disposition thereof if the securities
otherwise being sold are being sold by
more than one method of disposition), the
Company will use its reasonable
efforts to cause such Registrable
Securities as to which registration shall have
been so requested to be included in the
registration statement proposed to be
filed by the Company on the same terms and
conditions as the securities
otherwise being sold pursuant to such
registration; provided, however, that,
notwithstanding the foregoing, the Company
may at any time, in its sole
discretion, without the consent of any
other Holder, delay or abandon the
proposed offering in which any Holder had
requested to participate pursuant to
this Section 3.1 or cease the filing (or
obtaining or maintaining the
effectiveness) of or withdraw the related
registration statement or other
governmental approvals, registrations or
qualifications. In such event, the
Company shall so notify each Holder that
had notified the Company in accordance
with this Section 3.1 of its intention to
participate in such offering and the
Company shall incur no liability for its
failure to complete any such offering.
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3.2
Priority on Piggyback Registrations.
(a) If the managing underwriter for the related underwritten
offering advises the Company in writing
that the inclusion of such Registrable
Securities would cause an Adverse Effect,
and the Company notifies the
requesting Holders in writing of such
advice, then the Company will be obligated
to include in such registration statement
only that number of Registrable
Securities which, in the judgment of the
managing underwriter, would not have an
Adverse Effect; provided, however, that no
such reduction shall reduce the
aggregate amount of Registrable Securities
included in such registration
statement for the benefit of the requesting
Holders to less than (i) prior to
such time as the Shelf Registration
Statement is first declared effective, all
of the Registrable Securities requested by
the Holders to be included in such
registration statement (subject to the
maximum amount of the securities to be
sold in the related underwritten offering),
and (ii) after such time as the
Shelf Registration Statement is first
declared effective, fifty percent (50%) of
the total number of securities that are
included in each such registration
statement thereafter. Any partial reduction
in the number of Registrable
Securities to be included in a registration
statement pursuant to the
immediately preceding sentence shall be
affected pro rata based on the ratio
that the number of Registrable Securities
that each such Holder requested to be
included in such registration statement
bears to the total number of Registrable
Securities that all Holders requested to be
included in such registration
statement.
(b) Subject to the Company's compliance with its obligations
under
this Article 3, if after a Demand Request
by the Holders pursuant to Section 2.1
hereof the Company initiates a proposal to
register an underwritten offering of
equity securities for its own account
pursuant to this Article 3 and the Holders
will be afforded the right (whether or not
exercised by the Holders) to include
Registrable Securities in such underwritten
offering in accordance with and
subject to the provisions of this Article
3, then the proposed registration for
the account of the Company pursuant to this
Article 3 shall be given priority in
all respects.
(c) Subject to the Company's compliance with its obligations
under
this Article 3, if prior to the filing or
effectiveness of the Shelf
Registration Statement the Company
initiates a proposal to register an
underwritten offering of equity securities
for its own account pursuant to this
Article 3 and the Holders will be afforded
the right (whether or not exercised
by the Holders) to include Registrable
Securities in such underwritten offering
in accordance with and subject to the
provisions of this Article 3, then the
proposed registration for the account of
the Company pursuant to this Article 3
shall be given priority in all
respects.
(d) Notwithstanding the foregoing, until the nine month
anniversary
of the date that the Shelf Registration
Statement is first declared effective,
the Company will not initiate a proposal to
register or otherwise conduct an
underwritten public offering of equity
securities of the Company for its own
account unless the aggregate public
offering price of such equity securities
(including any Registrable Securities
included in such offering) is at least
$125.0 million.
3.3
Withdrawals. Each Holder shall have the right to withdraw its
request
for inclusion of its Registrable Securities
in any registration statement
pursuant to this Article 3 by giving
written notice to the Company of its
request to withdraw; provided, however,
that (i) such
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request must be made in writing prior to
the earlier of the execution of the
underwriting agreement or the execution of
the custody agreement with respect to
such registration and (ii) such withdrawal
shall be irrevocable.
3.4
Underwritten Offerings.
(a) In connection with the exercise of any registration rights
granted to Holders pursuant to this Article
3, if the registration is to be
effected by means of an underwritten
offering, the Company may condition
participation in such registration by any
such Holder upon inclusion of the
Registrable Securities being so registered
in such underwriting and such
Holder's entering into an underwriting
agreement pursuant to Section 6.2(d)
hereof.
(b) With respect to any offering of Registrable Securities
pursuant
to this Article 3 in the form of an
underwritten offering, the Company shall
select an investment banking firm of
national standing to be the managing
underwriter for the offering.
4. SHELF REGISTRATION.
4.1 Shelf
Registration Filing. Subject to the provisions contained in
this
Section 4.1 and in Sections 3.2(c), 5.2 and
5.3 hereof, within thirty (30) days
following the issuance by the Company's
independent public accountants of their
audit report covering the Company's
post-emergence "fresh-start" financial
statements (the "SHELF FILING DEADLINE"),
the Company shall file with the
Commission a registration statement (the
"SHELF REGISTRATION STATEMENT")
relating to the offer and sale of all
Registrable Securities by the Holders to
the public, from time to time, on a delayed
or continuous basis. The Company
shall use its reasonable best efforts to
cause the Company's independent public
accountants to issue their audit report
covering the Company's post-emergence
"fresh-start" financial statements as soon
as practicable after the effective
date of the Plan and, subject to the
provisions contained in this Section 4.1
and in Sections 3.2(c), 5.2 and 5.3 hereof,
to cause the Shelf Registration
Statement to be declared effective by the
Commission as soon as practicable
after the filing thereof with the
Commission. The Shelf Registration Statement
shall specify the intended method of
distribution of the subject Registrable
Securities substantially in the form of
Exhibit A attached hereto. The Company
shall file the Shelf Registration Statement
on Form S-3 or, if the Company or
the offering of the Registrable Securities
does not satisfy the requirements for
use of such form, such other form as may be
appropriate; provided, that if the
Shelf Registration Statement is not filed
on Form S-3, the Company shall,
promptly upon meeting the requirements for
use of such form, file an appropriate
amendment to the Shelf Registration
Statement to convert it to Form S-3.
Notwithstanding the foregoing, subject to
the Company's compliance with its
obligations under Article 3 hereof, (x) the
Company will not be obligated to
take any action to effect the Shelf
Registration Statement during the period
commencing with the Company's issuance of a
notice of a proposed registration of
an underwritten offering of equity
securities of the Company for its own account
(except pursuant to registrations on Form
S-4 or any successor form or on Form
S-8 or any successor form relating solely
to securities issued pursuant to any
benefit plan) to the Holders pursuant to
Section 3.1 hereof, continuing while
the Company uses reasonable best efforts to
pursue such registered underwritten
offering, and ending upon the earliest to
occur of: (i) 45 days immediately
following the Company's issuance of the
notice of such proposed registered
underwritten offering pursuant to Section
3.1 hereof, unless, within such 45-day
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period, the Company shall have filed the
registration statement for such
proposed underwritten offering, or shall
have issued a press release disclosing
such proposed underwritten offering
pursuant to Rule 135 (or its successor)
promulgated under the Securities Act
thereby enabling the Holders to sell their
Registrable Securities pursuant to the
Shelf Registration Statement; (ii) the
abandonment, cessation or withdrawal of
such proposed registered underwritten
offering; or (iii) 90 days immediately
following the effective date of the
registration statement pertaining to such
underwritten offering; and (y) the
Company will not be obligated to take any
action to effect any amendment to the
Shelf Registration Statement during the
period commencing on the effective date
of a registration statement for an
underwritten offering of equity securities of
the Company for its own account (except
pursuant to registrations on Form S-4 or
any successor form or on Form S-8 or any
successor form relating solely to
securities issued pursuant to any benefit
plan) and ending 90 days immediately
following the effective date of the
registration statement pertaining to such
underwritten offering. If the Company
issues a notice of a proposed underwritten
public offering of equity securities of the
Company for its own account pursuant
to Section 3.1 hereof and subsequently
abandons, ceases or withdraws such
offering, the Company will not issue a
notice of a subsequent proposed
registration of an underwritten offering of
equity securities of the Company for
its own account pursuant to Section 3.1
hereof until the Shelf Registration
Statement is first declared effective.
4.2
Required Period and Shelf Registration Procedures. The Company
shall
(i) cause the Shelf Registration Statement
to include a resale prospectus
intended to permit each Holder to sell, at
such Holder's election, all or part
of the Registrable Securities held by such
Holder without restriction, (ii) use
its reasonable efforts to prepare and file
with the Commission such supplements,
amendments and post-effective amendments to
the Shelf Registration Statement as
may be necessary to keep the Shelf
Registration Statement continuously effective
(subject to Section 3.2(c) and to any
Suspension Period(s) referred to below)
for so long as the securities registered
thereunder constitute Registrable
Securities (the "REQUIRED PERIOD"), and
(iii) use its reasonable efforts to
cause the resale prospectus to be
supplemented by any required prospectus
supplement (subject to Section 3.2(c) and
to any Suspension Period(s) referred
to below).
5. STANDSTILL AND SUSPENSION PERIODS.
5.1
Company Standstill Period. In the event of an underwritten
public
offering of Registrable Securities on a
firm commitment basis pursuant to
Section 2.1 hereof, the Company agrees not
to, without the prior written consent
of the managing underwriter, offer, pledge,
sell, contract to sell, grant any
option, right or warrant to purchase, or
otherwise transfer or dispose of,
directly or indirectly, any securities
(except securities that may be held by
the Company for its own account under the
relevant registration statement) that
are the same as, or similar to, the
Registrable Securities, or any securities
convertible into, or exchangeable or
exercisable for, any securities of the
Company that are the same as, or similar
to, the Registrable Securities (except
pursuant to registrations on Form S-4 or
any successor form, or otherwise in
connection with the acquisition of a
business or assets of a business, a merger,
or an exchange offer for the securities of
the issuer or another entity, or
pursuant to a Company dividend reinvestment
plan, or for issuances of securities
pursuant to the conversion, exchange or
exercise of then-outstanding convertible
or exchangeable securities, options, rights
or warrants, or pursuant to
registrations on Form S-8 or any successor
form or otherwise relating solely to
securities offered pursuant to any benefit
plan), during t
