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Exhibit 10.41
Execution Copy
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 ").
R E C I T
A L S :
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.
(e)&nb
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