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EXHIBIT 4.13
EXECUTION COPY
IXC COMMUNICATIONS, INC.
7 1/4% JUNIOR CONVERTIBLE PREFERRED STOCK DUE 2007
(LIQUIDATION PREFERENCE $100 PER SHARE)
REGISTRATION RIGHTS AGREEMENT
March 25, 1997
Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, NY 10010
Dillon, Read & Co. Inc.
535 Madison Avenue
New York, NY 10022
Ladies and Gentlemen:
IXC Communications, Inc., a Delaware corporation (the "Company"), proposes
to issue and sell to Credit Suisse First Boston Corporation and Dillon, Read &
Co. Inc. (the "Initial Purchasers"), upon the terms set forth in a purchase
agreement of even date herewith (the "Purchase Agreement"), 1,000,000 shares of
its 7 1/4% Junior Convertible Preferred Stock Due 2007 (liquidation preference
$100 per share) (the "Convertible Preferred Stock"). The Convertible Preferred
Stock will be convertible into shares of Common Stock, par value $0.01 per
share, of the Company (the "Common Stock") at the conversion price set forth in
the Offering Circular dated March 25, 1997, subject to adjustment in accordance
with the Certificate of Designation of the Convertible Preferred Stock (the
"Certificate of Designation"). The Convertible Preferred Stock and the Common
Stock issuable upon conversion of the Convertible Preferred Stock are
collectively herein referred to as the "Securities" and each of them as held
singularly is herein referred to as a "Security". As an inducement to the
Initial Purchasers to enter into the Purchase Agreement and in satisfaction of a
condition to the Initial Purchasers' obligations thereunder, the Company agrees
with the Initial Purchasers, (i) for the benefit of the Initial Purchasers and
(ii) for the benefit of the holders of the
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Securities from time to time (each of the foregoing a "Holder" and together the
"Holders"), as follows:
1. Shelf Registration. So long as any Transfer Restricted Security
exists, the Company shall take the following actions:
(a) The Company shall, at its cost, prepare and, as promptly as
practicable, file with the Securities and Exchange Commission (the "Commission")
and thereafter shall use its best efforts to cause to be declared effective as
soon as practicable a registration statement on the appropriate form (the "Shelf
Registration Statement") covering the offer and sale of the Transfer Restricted
Securities (as defined in Section 5 hereof) by the Holders thereof from time to
time in accordance with the methods of distribution set forth in the Shelf
Registration Statement and Rule 415 under the Securities Act of 1933 (the
"Securities Act") (hereinafter, the "Shelf Registration").
(b) The Company shall use its best efforts to keep the Shelf Registration
Statement continuously effective, in order to permit the prospectus included
therein to be lawfully delivered by the Holders of the relevant Securities,
until such time as all the Securities covered by the Shelf Registration
Statement have been sold pursuant thereto or may be sold pursuant to Rule 144(k)
under the Securities Act (or any successor rule thereof), assuming for this
purpose that the Holders thereof are not affiliates of the Company (in any such
case, such period being called the "Shelf Registration Period"). The Company
shall be deemed not to have used its best efforts to keep the Shelf Registration
Statement effective during the requisite period if it voluntarily takes any
action that would result in Holders of Securities covered thereby not being able
to offer and sell such Securities during that period, unless (i) such action is
required by applicable law or (ii) upon the occurrence of any event contemplated
by paragraph 2(b)(v) below, such action is taken by the Company in good faith
and for valid business reasons and the Company thereafter promptly complies with
the requirements of paragraph 2(h) below if the Company has determined in good
faith that there are no material legal or commercial impediments in so doing.
(c) Notwithstanding any other provisions of this Agreement to the
contrary, the Company shall cause (other than information required to be
supplied by the selling Holders
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pursuant to this Agreement) (i) the Shelf Registration Statement and the
related prospectus and any amendment or supplement thereto to comply in all
material respects with the applicable requirements of the Securities Act and
the rules and regulations of the Commission thereunder, (ii) the Shelf
Registration Statement and any amendment thereto not to contain, when it
becomes effective, 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 not misleading and (iii) any prospectus forming a part of the Shelf
Registration Statement, and any amendment or supplement to such prospectus, not
to contain, as of the date of such prospectus or amendment or supplement, any
untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
(d) The Company shall, from time to time, cause the Shelf Registration
Statement to be amended to cover additional shares of Convertible Preferred
Stock issued in payment of dividends, if any, as permitted in accordance with
the terms of the Convertible Preferred Stock.
2. Registration Procedures. In connection with the Shelf Registration
contemplated by Section 1 hereof the following provisions shall apply so long as
any Transfer Restricted Security exists:
(a) The Company shall (i) furnish, without charge, to the Initial
Purchasers, prior to the filing thereof with the Commission, a copy of the Shelf
Registration Statement and each amendment thereof and each amendment or
supplement, if any, to the prospectus included therein and, in the event that
the Initial Purchasers (with respect to any portion of an unsold allotment from
the original offering) are participating in the Shelf Registration Statement,
shall use its best efforts to reflect in each such document, when so filed with
the Commission, such comments as such Initial Purchasers reasonably may propose,
(ii) include in each such document the names of the Holders who propose to sell
Transfer Restricted Securities pursuant to the Shelf Registration Statement as
selling security holders and (iii) file pursuant to Rule 424(b) under the
Securities Act an amendment to the Shelf Registration Statement or amend the
prospectus to cover new Holders of Securities upon written notice by such new
Holders to the effect.
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(b) The Company shall give written notice to the Initial Purchasers and
the Holders (which notice pursuant to clauses (ii)-(v) hereof shall be
accompanied by an instruction, if applicable, to suspend the use of the
prospectus until the requisite changes have been made):
(i) when the Shelf Registration Statement or any amendment thereto has
been filed with the Commission and when the Shelf Registration Statement or
any post-effective amendment thereto has become effective;
(ii) of any request by the Commission for amendments or supplements to
the Shelf Registration Statement or the prospectus included therein or for
additional information;
(iii) of the issuance by the Commission of any stop order suspending
the effectiveness of the Shelf Registration Statement or the initiation of
any proceedings for that purpose;
(iv) of the receipt by the Company or its legal counsel of any
notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose; and
(v) of the happening of any event that requires the Company to make
changes in the Shelf Registration Statement or the prospectus in order that
the Shelf Registration Statement and the prospectus do not contain an
untrue statement of a material fact and do not omit to state a material
fact required to be stated therein or necessary to make the statements
therein (in the case of the prospectus, in light of the circumstances under
which they were made) not misleading, which written notice need not provide
any detail as to the nature of such event.
(c) The Company shall use reasonable commercial efforts to obtain the
withdrawal at the earliest possible time, of any order suspending the
effectiveness of the Shelf Registration Statement.
(d) The Company shall furnish to each Holder of Transfer Restricted
Securities included within the coverage of the Shelf Registration, without
charge, one copy of the Shelf
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Registration Statement and any post-effective amendment thereto, including
financial statements and schedules, and, if the Holder so requests in writing,
all exhibits thereto (other than those, if any, incorporated by reference).
(e) The Company shall, during the Shelf Registration Period, deliver to
each Holder of Transfer Restricted Securities included within the coverage of
the Shelf Registration Statement, without charge, as many copies of the
prospectus (including each preliminary prospectus) included in the Shelf
Registration Statement and any amendment or supplement thereto as such person
may reasonably request. The Company consents, subject to the provisions of this
Agreement, to the use of the then current prospectus or any amendment thereto,
together with any supplement thereto, by each of the selling Holders in
connection with the offering and sale of the Transfer Restricted Securities
covered by the prospectus, or any amendment or supplement thereto, included in
the Shelf Registration Statement.
(f) Prior to any public offering of the Securities pursuant to the Shelf
Registration Statement, the Company shall register or qualify or cooperate with
the Holders of the Transfer Restricted Securities included therein and their
respective counsel in connection with the registration or qualification of such
Securities for offer and sale under the securities or "blue sky" laws of such
states of the United States as any such Holder reasonably requests in writing
and do any and all other acts or things necessary or advisable to enable the
offer and sale in such jurisdictions of the Securities covered by the Shelf
Registration Statement; provided, however, that the Company shall not be
required to (i) qualify generally to do business in any jurisdiction where it is
not then otherwise required to be so qualified or (ii) take any action which
would subject it to general service of process or to taxation in any
jurisdiction where it is not then so subject.
(g) The Company shall cooperate with the Holders of the Transfer
Restricted Securities to facilitate the timely preparation and delivery of
certificates representing the Securities to be sold pursuant to the Shelf
Registration Statement free of any restrictive legends and in such denominations
and registered in such names as the Holders may request a reasonable period of
time prior to sales of the Securities pursuant to the Shelf Registration
Statement.
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(h) Upon the occurrence of any event contemplated by paragraphs (ii)
through (v) of Section 2(b) above during the period for which the Company is
required to maintain an effective Shelf Registration Statement, the Company
shall promptly prepare and file a post-effective amendment to the Shelf
Registration Statement or an amendment or supplement to the related prospectus
and any other required document so that, as thereafter delivered to Holders or
purchasers of Securities, the prospectus will not contain an untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. If the Company notifies the Initial
Purchasers or the Holders, in accordance with paragraphs (ii) through (v) of
Section 2(b) above, to suspend the use of the prospectus until the requisite
changes to the prospectus have been made, then the Initial Purchasers and the
Holders shall suspend use of such prospectus.
(i) Not later than the effective date of the Shelf Registration Statement,
the Company will provide CUSIP numbers for the Convertible Preferred Stock and
the Common Stock issuable upon conversion thereof registered under the Shelf
Registration Statement, and provide printed certificates for such Convertible
Preferred Stock or Common Stock, in form eligible for deposit with The
Depository Trust Company.
(j) The Company will comply with all rules and regulations of the
Commission to the extent and so long as they are applicable to the Shelf
Registration and will make generally available to its security holders (or
otherwise provide in accordance with Section 11(a) of the Securities Act) an
earnings statement satisfying the provisions of Section 11(a) of the Securities
Act, no later than 45 days after the end of a 12-month period (or 90 days, if
such period is a fiscal year) beginning with the first month of the Company's
first fiscal quarter commencing after the effective date of the Shelf
Registration Statement, which statement shall cover such 12-month period.
(k) The Company may require each Holder of Securities to be sold pursuant
to the Shelf Registration Statement to furnish to the Company such information
regarding the Holder and the distribution of the Securities by such Holder as
the Company may from time to time reasonably require for inclusion in the Shelf
Registration Statement, and the Company may exclude from such registration the
Securities of any Holder that fails to furnish such information within a
reasonable time after receiving such request.
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(l) The Company shall (i) make reasonably available for inspection by the
Holders of the Transfer Restricted Securities and any attorney, accountant or
other agent retained by the Holders of the Securities all relevant financial and
other records, pertinent corporate documents and properties of the Company and
(ii) cause the Company's officers, directors, employees, accountants and
auditors to supply all relevant information reasonably requested by the Holders
of the Securities or any such attorney, accountant or agent in connection with
the Shelf Registration Statement, in each case, as shall be reasonably necessary
to enable such persons to conduct a reasonable investigation within the meaning
of Section 11 of the Securities Act; provided, however, that the foregoing
inspection and information gathering (i) shall be coordinated by you and, on
behalf of the other parties, by one counsel (the "Designated Counsel")
designated by the Holders of a majority in principal amount of the Securities
covered by the Shelf Registration Statement (provided that Holders of Common
Stock issued upon the conversion of the Convertible Preferred Stock shall be
deemed to be Holders of the aggregate number of Convertible Preferred Stock from
which such Common Stock was converted) and (ii) shall not be available for any
such Holder that is a competitor of the Company, and provided further that such
Holders shall keep the information so received confidential.
(m) The Company, if requested by the Designated Counsel, shall cause (i)
its counsel to deliver an opinion and updates thereof relating to the Transfer
Restricted Securities in customary form, with customary limitations,
qualifications and exceptions, addressed to such Holders, and dated, in the case
of the initial opinion, the effective date of such Shelf Registration Statement
(it being agreed that the matters to be covered by such opinion shall include
the due incorporation and good standing of the Company and its subsidiaries; the
qualification of the Company and its subsidiaries to transact business as
foreign corporations; the due authorization, execution and issuance, and the
validity and enforceability, of the applicable Securities; other than as
disclosed, the absence of material legal or governmental proceedings involving
the Company and its subsidiaries; other than as disclosed, the absence of
governmental approvals required to be obtained in connection with the Shelf
Registration Statement, or the offering
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and sale of the applicable Securities; the compliance as to form of such Shelf
Registration Statement and any documents incorporated by reference therein;
and, as of the date of the opinion and as of the effective date of the Shelf
Registration Statement or most recent post-effective amendment thereto, as the
case may be, the absence from such Shelf Registration Statement and the
prospectus included therein, as then amended or supplemented, and from any
documents incorporated by reference therein, of an untrue statement of a
material fact or the omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading (in
the case of any such documents, in the light of the circumstances existing at
the time that such documents were filed with the Commission under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"))), (ii) its
officers to execute and deliver all customary documents and certificates and
updates thereof requested by the Designated Counsel and (iii) its independent
public accountants and the independent public accountants with respect to any
other entity for which financial information is provided in the Shelf
Registration Statement to provide to the selling Holders of the applicable
Securities a comfort letter in customary form and covering matters of the type
customarily covered in comfort letters in connection with primary underwritten
offerings, subject to receipt of appropriate documentation as contemplated, and
only if permitted, by Statement of Auditing Standards No. 72.
(n) The Company will use its best efforts to cause the Common Stock
relating to such Shelf Registration Statement to be listed on each securities
exchange, if any, on which any shares of Common Stock are then listed.
(o) The Company shall use reasonable commercial efforts to take all other
steps necessary to effect the registration of the Transfer Restricted Securities
covered by the Shelf Registration Statement contemplated hereby.
3. Registration Expenses. The Company shall bear all fees and expenses
incurred in connection with the performance of its obligations under Sections 1
through 2 hereof, whether or not the Shelf Registration Statement is filed or
becomes effective, and shall bear or reimburse the Holders of the Securities
covered by the Shelf Registration for the reasonable fees and disbursements of
the Designated Counsel (provided that Holders of Common Stock issued upon the
conversion of the Convertible
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Preferred Stock shall be deemed to be Holders of the aggregate number of
Convertible Preferred Stock from which such Common Stock was converted) to act
as counsel for the Holders in connection therewith.
4. Indemnification. (a) The Company agrees to indemnify and hold
harmless each Holder and each person, if any, who controls such Holder within
the meaning of the Securities Act or the Exchange Act (each Holder and such
controlling persons are referred to collectively as the "Indemnified Parties")
from and against any losses, claims, damages or liabilities, joint or several,
or any actions in respect thereof (including any losses, claims, damages,
liabilities or actions relating to purchases and sales of the Securities) to
which each Indemnified Party becomes subject under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, claims, damages, liabilities
or actions arise out of or are based upon, any untrue statement or alleged
untrue statement of a material fact contained in the Shelf Registration
Statement or prospectus or in any amendment or supplement thereto or in any
preliminary prospectus relating to the Shelf Registration, or arise out of, or
are based upon, the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and subject to subsection (c) below, shall reimburse, as
incurred, the Indemnified Parties for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action in respect thereof; provided, however, that
the Company shall not be liable in any such case to the extent that such loss,
claim, damage, liability, or action in respect thereof arises out of or is based
upon (x) the use of any prospectus in violation of the last sentence of Section
2(h), or (y) any untrue statement or alleged untrue statement or omission or
alleged omission made in the Shelf Registration Statement or prospectus or in
any amendment or supplement thereto or in any preliminary prospectus relating to
the Shelf Registration in reliance upon, and in conformity with, written
information pertaining to such Holder and furnished to the Company by or on
behalf of such Holder specifically for inclusion therein; provided further,
however, that this indemnity agreement will be separate from any liability which
the Company may otherwise have to such Indemnified Party; provided further,
however, that with respect to any untrue statement or alleged untrue statement
in or omission or alleged omission from any prospectus, the indemnity agreement
contained in this subsection (a) shall not inure to the
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benefit of any Holder that sold the Securities concerned to the person
asserting any such losses, claims, damages or liabilities, to the extent that
any such loss, claim, damage or liability of such Holder results from the fact
that there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Securities to such person, a copy of the
prospectus if the Company had previously furnished copies thereof to such
Holder and such prospectus corrected such untrue statement or omission or
alleged untrue statement or omission.
(b) Each Holder, severally and not jointly, will indemnify and hold
harmless the Company and each person, if any, who controls the Company within
the meaning of the Securities Act or the Exchange Act from and against any
losses, claims, damages or liabilities or any actions in respect thereof, to
which the Company or any such controlling person becomes subject under the
Securities Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in a Shelf
Registration Statement or prospectus or in any amendment or supplement thereto
or in any preliminary prospectus relating to a Shelf Registration, or arise out
of, or are based upon the omission or alleged omission to state therein a
material fact necessary to make the statements therein not misleading, but in
each case only to the extent that the untrue statement or omission or alleged
untrue statement or omission was made in reliance upon and in conformity with
written information pertaining to such Holder and furnished to the Company by or
on behalf of such Holder specifically for inclusion therein; and, subject to the
limitation set forth immediately preceding this clause, and to subsection (c)
below, shall reimburse, as incurred, the Company for any legal or other expenses
reasonably incurred by the Company or any such controlling person in connection
with investigating or defending any loss, claim, damage, liability or action in
respect thereof; provided, however, that such Holder shall not have any
liability under this clause (b) in excess of the aggregate purchase price paid
by such Holder for the shares of Convertible Preferred Stock purchased by such
Holder. This indemnity agreement will be separate from any liability which such
Holder may otherwise have to the Company or any of its controlling persons.
(c) Promptly after receipt by an indemnified party under this Section 4 of
notice of the commencement of any action or proceeding (including a governmental
investigation), such
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indemnified party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 4, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not, in any event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation provided in
subsections (a) or (b) above. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof the indemnifying party will not be liable to such
indemnified party under this Section 4 for any legal or other expenses, other
than reasonable costs of investigation, subsequently incurred by such
indemnified party in connection with the defense thereof. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action.
(d) If the indemnification provided for in this Section 4 is unavailable
or insufficient to hold harmless an indemnified party under subsections (a) or
(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to in subsections (a) or
(b) above (i) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the registration of the Securities, pursuant
to the Shelf Registration, or (ii) if the allocation provided by the foregoing
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the indemnifying party or parties
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on the one hand and the indemnified party on the other, in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault of the parties 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 the Company on the one
hand or such Holder or such other indemnified party, as the case may be, on the
other, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid
by an indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim which is the subject of this subsection (d). Notwithstanding any other
provision of this subsection (d), the Holders shall not be required to
contribute any amount in excess of the amount by which the net proceeds
received by such Holders from the sale of the Securities pursuant to the Shelf
Registration Statement exceeds the amount of damages which such Holders have
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this paragraph (d), each person,
if any, who controls such indemnified party within the meaning of the
Securities Act or the Exchange Act shall have the same rights to contribution
as such indemnified party and each person, if any, who controls the Company
within the meaning of the Securities Act or the Exchange Act shall have the
same rights to contribution as the Company.
(e) The agreements contained in this Section 4 shall survive the sale of
the Securities pursuant to the Shelf Registration Statement and shall remain in
full force and effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of any indemnified party.
5. Additional Dividends Under Certain Circumstances. (a) Additional
dividends (the "Additional Dividends") with
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respect to the shares of Convertible Preferred Stock which are Transfer
Restricted Securities shall accrue as follows if any of the following events
occur (each such event in clauses (i) and (ii) below being herein called a
"Registration Default"):
(i) if by August 31, 1997, the Shelf Registration Statement has not
been declared effective by the Commission; or
(ii) if after the Shelf Registration Statement is declared effective
(A) the Shelf Registration Statement thereafter ceases to be effective; or
(B) the Shelf Registration Statement or the related prospectus ceases to be
usable (in each case except as permitted in paragraph (b) below) in
connection with resales of Transfer Restricted Securities in accordance
with and during the periods specified herein because either (1) any event
occurs as a result of which the related prospectus forming part of such
Shelf Registration Statement would include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they were
made not misleading, or (2) it shall be necessary to amend such Shelf
Registration Statement or supplement the related prospectus, to comply with
the Securities Act or the Exchange Act or the respective rules thereunder.
Additional Dividends shall accrue on the shares of Convertible Preferred
Stock which are Transfer Restricted Securities from and including the date on
which any such Registration Default shall occur, to but excluding the date on
which all such Registration Defaults have been cured, at a rate of 7 3/4% per
annum.
(b) A Registration Default referred to in Section 5(a)(ii) shall be deemed
not to have occurred and be continuing in relation to the Shelf Registration
Statement or the related prospectus if (i) such Registration Default has
occurred solely as a result of (x) the filing of a post-effective amendment to
the Shelf Registration Statement to incorporate annual audited financial
information with respect to the Company where such post-effective amendment is
not yet effective and needs to be declared effective to permit Holders to use
the related prospectus or (y) other material events, with respect to the Company
that would need to be described in the Shelf
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Registration Statement or the related prospectus and (ii) in the case of clause
(y), the Company proceeds promptly and in good faith to amend or supplement the
Shelf Registration Statement and related prospectus to describe such events if
the Company has determined in good faith that there are no material legal or
commercial impediments in so doing; provided, however, that in any case if such
Registration Default occurs for a continuous period in excess of 45 days,
Additional Dividends shall be payable in accordance with the above paragraph
from the day such Registration Default initially occurs until such Registration
Default is cured.
(c) Any amounts of Additional Dividends due pursuant to clause (a)(i) or
(a)(ii) of this Section 5 or pursuant to the proviso contained in Section 5(b)
will be payable on the regular dividend payment dates with respect to the
Convertible Preferred Stock on the same terms and conditions and subject to the
same limitations as pertain at such time for the payment of regular dividends.
The amount of Additional Dividends will be determined by multiplying the
applicable Additional Dividends rate by the aggregate liquidation preference of
the outstanding shares of Convertible Preferred Stock, multiplied by a fraction,
the numerator of which is the number of days such Additional Dividend rate was
applicable during such period (determined on the basis of a 360-day year
comprised of twelve 30-day months), and the denominator of which is 360.
(d) "Transfer Restricted Securities" means each Security (including
additional shares of Convertible Preferred Stock issued in payment of dividends
on the Convertible Preferred Securities, if any, as permitted in accordance with
the terms of the Convertible Preferred Stock) until (i) the date on which such
Security has been effectively registered under the Securities Act and disposed
of in accordance with the Shelf Registration Statement or (ii) the date on which
such Security is distributed to the public pursuant to Rule 144 under the
Securities Act or is saleable pursuant to Rule 144(k) under the Securities Act
(or any successor rule thereof) or would be saleable pursuant to Rule 144(k)
under the Securities Act had it not been held by, or had never been held by, an
affiliate of the Company.
6. Rules 144 and 144A. So long as any Transfer Restricted Security
exists, the Company shall use its best efforts to file the reports required to
be filed by it under the Securities Act and the Exchange Act in a timely manner
and, if at
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any time the Company is not required to file such reports, it will, upon the
request of any Holder of Transfer Restricted Securities, make publicly
available other information so long as necessary to permit sales of its
securities pursuant to Rules 144 and 144A. The Company covenants that, if in
the event the Company is no longer subject to Sections 13 or 15(d) of the
Exchange Act, it will take such further action as any Holder of Transfer
Restricted Securities may reasonably request, all to the extent required from
time to time to enable such Holder to sell Transfer Restricted Securities
without registration under the Securities Act within the limitation of the
exemptions provided by Rules 144 and 144A (including the requirements of Rule
144A(d)(4)). The Company will provide a copy of this Agreement to prospective
purchasers of Securities identified to the Company by the Initial Purchasers
upon request. Notwithstanding the foregoing, nothing in this Section 6 shall
be deemed to require the Company to register any of its securities pursuant to
the Exchange Act.
7. Miscellaneous. (a) Amendments and Waivers. The provisions of this
Agreement may not be amended, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given, except by the Company
and the written consent of the Holders of a majority of the Transfer Restricted
Securities (provided that Holders of Common Stock issued upon conversion of
Convertible Preferred Stock shall be deemed to be Holders of the aggregate
number of Convertible Preferred Stock from which such Common Stock was
converted) affected by such amendment, modification, supplement, waiver or
consents.
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first-class mail,
facsimile transmission, or air courier which guarantees overnight delivery:
(1) if to the Holders, at the most current address given by the Holders
of record to the Company in accordance with the provisions of this Section
7(b), which address initially is, with respect to each Holder, the address
of such Holder to which confirmation of the sale of the
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Convertible Preferred Stock to such Holder was first sent by the Initial
Purchasers, with a copy in like manner to you as follows:
Credit Suisse First Boston Corporation
Dillon, Read & Co. Inc.
c/o Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, NY 10010-3629
Fax No.: (212) 325-8728
Attention: Transactions Advisory Group
with a copy to:
Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019
Fax No.: (212) 474-3700
Attention: Kris F. Heinzelman, Esq.
(2) if to the Company, at its address as follows:
IXC Communications, Inc.
5000 Plaza on the Lake, Suite 200
Austin, TX 78746
Fax No.: (512) 329-4717
Attention: Chief Financial Officer
with a copy to:
Riordan & McKinzie
695 Town Center Drive, Suite 1500
Costa Mesa, CA 92626
Fax No.: (714) 549-3244
Attention: Michael P. Whalen, Esq.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; three business
days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged by recipient's facsimile machine operator, if sent by facsimile
transmission; and on the day delivered, if sent by overnight air courier
guaranteeing next day delivery.
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(c) No Inconsistent Agreements; Damages. The Company has not, as of the
date hereof, entered into, nor shall it, on or after the date hereof, enter
into, any agreement with respect to its securities that is inconsistent with the
rights granted to the Holders herein or otherwise conflicts with the provisions
hereof. Notwithstanding anything to the contrary contained in this Agreement,
it is hereby acknowledged and agreed that the Company shall have no liability
for monetary damages to the Initial Purchasers or any Holder for any breaches,
failures to comply or violations by it of Section 1 or 2 of this Agreement
except as expressly provided in Section 4 or 5 hereof; provided, however, in the
event that the Company breaches, fails to comply or violates the provisions of
Section 1 or 2 hereof, the Holders shall be entitled to, and the Company shall
not oppose the granting of, equitable relief, including injunction and specific
performance.
(d) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties,
including, without the need for an express assignment or any consent by the
Company thereto, subsequent Holders of Transfer Restricted Securities. The
Company hereby agrees to extend the benefits of this Agreement to any Holder of
Transfer Restricted Securities and any such Holder may specifically enforce the
provisions of this Agreement as if an original party hereto.
(e) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS.
By the execution and delivery of this Agreement, the Company submits to the
nonexclusive jurisdiction of any federal or state court in the State of New
York.
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(h) Severability. If any one or more of the provisions contained herein,
or the application thereof in any circumstance, is held invalid, illegal or
unenforceable, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions contained herein shall
not be affected or impaired thereby.
(i) Securities Held by the Company. Whenever the consent or approval of
Holders of a specified percentage of Transfer Restricted Securities is required
hereunder, Securities held by the Company or its affiliates (other than
subsequent Holders of Transfer Restricted Securities if such subsequent Holders
are deemed to be affiliates solely by reason of their holdings of such
Securities and other than the Trustees of General Electric Pension Trust and
other than certain individuals that purchased in the aggregate 24,000 shares of
Convertible Preferred Stock directly from the Initial Purchasers) shall not be
counted in determining whether such consent or approval was given by the Holders
of such required percentage.
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If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement among
the Initial Purchasers and the Company in accordance with its terms.
Very truly yours,
IXC COMMUNICATIONS, INC.
By /s/ JOHN J. WILLINGHAM
------------------------------------
Name: John J. Willingham
Title: Senior Vice President and
Chief Financial Officer
The foregoing Registration
Rights Agreement is hereby confirmed
and accepted as of the date first
above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ J. PETER BECKETT
--------------------------------
Name: J. Peter Beckett
Title: Director
DILLON, READ & CO. INC.
By: /s/ JOHN FREDERICK STECKEL
--------------------------------
Name: John Frederick Steckel
Title: Vice President
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