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EXHIBIT 4.15
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made
and entered into as of this 8th day of July 1997, by and between IXC
Communications, Inc., a Delaware corporation (the "Company"), and each of the
shareholders listed on the signature page hereof: William G. Rodi, Gordon
Hutchins, Jr. and William F. Linsmeier (collectively, the "Shareholders").
R E C I T A L S
A. The Company, IXC Long Distance, Inc., a Delaware
corporation ("IXC-LD"), the Shareholders, Telecom One, Inc., a Delaware
corporation ("Telecom One"), and IXC-Telecom One Acquisition Corp., a Delaware
corporation, have entered into a Stock Acquisition Agreement and Plan of Merger
dated January 10, 1997 (the "Acquisition Agreement") pursuant to which IXC-LD, a
wholly owned subsidiary of IXC, is acquiring from the Shareholders all of the
issued and outstanding shares of capital stock of Telecom One (the "Telecom One
Stock").
B. Pursuant to the terms of the Acquisition Agreement, the
Company is obligated to issue to the Shareholders a number of shares of common
stock, $.01 par value, of the Company (the "IXC Shares") as part of the
consideration for the Telecom One Stock purchased by the Company, and the terms
of the Acquisition Agreement require the Company to provide the Shareholders
certain registration rights with respect to the IXC Shares.
C. The Company and the Shareholders desire to enter into this
Agreement which provides registration rights with respect to the Initial Share
Amount, as such term is defined in the Acquisition Agreement.
A G R E E M E N T
In consideration of the foregoing recitals and the mutual
covenants and conditions contained herein, the parties, intending to be legally
bound, agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Certain Defined Terms. For purposes of this Agreement, the
following terms shall have the following meanings:
"Act" shall mean the Securities Act of 1933, as
amended.
"Commission" shall mean the Securities and Exchange
Commission or any other federal agency at the time administering the Act.
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"Holder" shall mean the Shareholders and any person
beneficially owning Registerable Securities through permitted assignment thereof
in accordance with Article 5, below.
"Registerable Securities" for purposes of this
Agreement, shall mean the IXC Shares representing the Initial Share Amount (and
not the Final Share Amount) and any shares of the Company's common stock issued
as a dividend or other distribution with respect to, or in exchange for or in
replacement of the Initial Share Amount, excluding any Registerable Securities
sold by a person in a transaction in which its, his or her rights under this
Agreement are not assigned; provided further that shares which would otherwise
constitute Registerable Securities shall cease to be so once they have been sold
to the public.
"Register," "registered" and "registration" refer to
a registration effected by preparing and filing a registration statement in
compliance with the Act and the declaration or ordering of effectiveness of such
registration statement.
1.2 Other Defined Terms. All other capitalized terms used
herein but which are not otherwise defined shall have the meanings given to them
in the Acquisition Agreement.
ARTICLE 2
SHELF REGISTRATION
2.1 Shelf Registration. On or before July 31, 1997 or 30 days
after the Actual Closing Date, whichever is later, (such date is referred to as
the "Initial Filing Date"), the Company shall prepare and file with the
Commission, a registration statement on any appropriate form under the Act for
an offering to be made on a continuous basis covering all of the Registerable
Securities (the "Shelf Registration"). The Company shall use commercially
reasonable efforts to cause the Shelf Registration to become effective under the
Act on or about the date 45 days following the Initial Filing Date and, subject
to Permitted Interruptions and/or Necessary Interruptions, the Company shall use
its best efforts to keep the Shelf Registration continuously effective for the
lesser of (a) a period of two years from the date on which the Shelf
Registration becomes effective under the Act (the "Two Year Period"), (b) a
period ending on the date upon which all Registerable Securities covered by the
Shelf Registration have been sold, (c) a period ending on the date after which
restrictions on sales of securities by persons other than affiliates pursuant to
Commission Rule 144 (or any successor provision) terminate, or (d) a period
ending on the date after which the Holders no longer own any of the Registerable
Securities. The Company shall also, subject to Permitted Interruptions and/or
Necessary Interruptions, supplement or make amendments to the Shelf Registration
if required by the rules, regulations or instructions applicable to the
registration form used by the Company or if otherwise required by the Act. Each
of the Holders agrees to provide the Company with at least five business days
notice prior to selling any Registrable Securities while the Shelf Registration
remains effective.
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2.2 Limitations on Rights. The Company shall not be required
to prepare and file a registration statement with respect to the Registerable
Securities pursuant to Section 2.1, above, which is effected more than two years
after the date of this Agreement.
ARTICLE 3
REGISTRATION PROCEDURES
3.1 General. If and when the Company is required by the
provisions of this Agreement to effect, or use its best efforts to effect, the
registration of shares of Registerable Securities, the Company shall:
(a) Subject to Permitted Interruptions and/or Necessary
Interruptions, prepare and file with the Commission, within the time period
specified herein, a registration statement with respect to such shares and use
its best efforts to cause such registration statement to become and remain
effective for the periods provided herein;
(b) Subject to Permitted Interruptions and/or Necessary
Interruptions, prepare and file with the Commission such amendments and
post-effective amendments to each registration statement as may be necessary to
keep such registration statement continuously effective for the applicable
period; and cause the related prospectus to be supplemented by any required
prospectus supplement;
(c) Use its best efforts to notify the Holders promptly (i)
when a prospectus or any prospectus supplement or post-effective amendment
related to such Registerable Securities has been filed, and, with respect to
Registerable Securities, when the same has become effective, (ii) of the receipt
of any comments from the Commission, (iii) of any request by the Commission for
amendments or supplements to a registration statement or related prospectus or
for additional information, (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of a registration statement of the initiation
of any proceeding for that purpose, (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification or exemption
from qualification of any of the Registerable Securities for sale in any
jurisdiction of the United States of America or the initiation or threatening of
any proceeding for such purpose, (vi) of the happening of any event (the nature
and pendency of which need not be disclosed during a Permitted Interruption
and/or Necessary Interruption) which makes any statement made in such
registration statement or related prospectus or any document incorporated or
deemed to be incorporated therein by reference untrue or which requires the
making of changes in a registration statement or related prospectus so that such
documents will not contain any untrue statement of 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, and (vii) of the Company's reasonable determination that a
post-effective amendment to a registration statement would be appropriate;
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(d) Use its best efforts to obtain the withdrawal of any order
suspending the effectiveness of a registration statement, or the lifting of any
suspension of the qualification (or exemption from qualification) of any of the
Registerable Securities for sale in any jurisdiction of the United States of
America, at the earliest possible moment;
(e) If reasonably requested by any Holder of Registerable
Securities covered by a registration statement, (i) promptly incorporate in a
prospectus supplement or post-effective amendment such information as such
Holder reasonably requests to be included therein or as may be required by
applicable law, (ii) make all required filings of such prospectus supplement or
such post-effective amendment as soon as the Company has received notification
of the matters to be incorporated in such prospectus supplement or
post-effective amendment, and (iii) supplement or make amendments to any
registration statement if reasonably requested by any Holder of Registerable
Securities covered by such registrations statement or as may be required by
applicable law;
(f) Furnish to the Holders of Registerable Securities covered
by the registration statement, without charge, at least one signed copy of the
registration statement or statements and any post-effective amendment thereto,
including financial statements and schedules, all documents incorporated therein
by reference and all exhibits (including those previously furnished or
incorporated by reference), at the earliest practicable time under the
circumstances after the filing of such document;
(g) Deliver to each Holder of Registerable Securities covered
by a registration statement, without charge, as many copies of the prospectus or
prospectuses (including each preliminary prospectus) and any amendment or
supplement thereto as such person may reasonably request; the Company consents
to the use of such prospectus or any amendment or supplement thereto by each of
such Holders in connection with the offering and sale of Registerable Securities
covered by such prospectus or any amendment or supplement thereto;
(h) Prior to any public offering of Registerable Securities,
to use its best efforts to register or qualify or cooperate with the Holders of
Registerable Securities in connection with the registration or qualification (or
exemption from such registration or qualification) of such Registerable
Securities for offer and sale under the securities or blue sky laws of such
state or local jurisdictions as any seller reasonably requests in writing;
subject to the provisions herein regarding Permitted Interruptions and/or
Necessary Interruptions, keep such registration or qualification (or exemption
therefrom) effective during the period such registration statement is required
to be kept effective and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdiction of the Registerable
Securities covered by the applicable registration statement; provided, however,
the Company shall not be required to (i) qualify generally to do business in any
jurisdiction where it is not then so qualified, (ii) take any action which could
subject it to general service of process in any such jurisdiction where it is
not then so subject, or (iii) subject itself to taxation in any such
jurisdiction;
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(i) Cooperate with the selling Holders of Registerable
Securities to facilitate the timely preparation and delivery of certificates
representing Registerable Securities to be sold, which certificates shall not
bear any restrictive legends;
(j) Subject to Permitted Interruptions and/or Necessary
Interruptions, cause the Registerable Securities covered by the applicable
registration statement to be registered with or approved by such other federal,
state and local governmental regulatory agencies or authorities in the United
States as may be necessary to enable the seller or sellers thereof to consummate
the disposition of such Registerable Securities; and
(k) Subject to Permitted Interruptions and/or Necessary
Interruptions, upon the occurrence of any event contemplated by Section
3(c)(iii), 3(c)(vi) or 3(c)(vii), above, as promptly as practicable thereafter,
prepare and file with the Commission a supplement or post-effective amendment to
the applicable registration statement or a supplement to the related prospectus
of any document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of the Registerable
Securities being sold thereunder, such prospectus will 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 were made, not misleading.
3.2 Registration Expenses. Except as provided below, all of
the expenses incurred by the Company in effecting any registration requested
pursuant to Section 2.1, above, including, without limitation, all registration
and filing fees, printing expenses, expenses of compliance with Blue Sky laws
(including, without limitation, fees and disbursements of underwriters counsel
relating thereto), fees and disbursements of counsel for the Company, and
expenses of any audits incidental to or required by any such registration
("Registration Expenses") shall be paid by the Company. In either event,
notwithstanding anything in this Section 3.2 to the contrary, the Company shall
have no obligation to pay or otherwise bear (a) any underwriting discounts or
brokerage fees or commissions relating to the sale of Registerable Securities by
the Holders, or (b) any Registration Expenses if the payment of such expenses by
the Company is prohibited by the laws of a state in which such offering is
qualified and only to the extent so prohibited, or (c) any expenses of any
compliance with Blue Sky laws which pertains only to an individual Holder, or
(d) any fees and disbursements of counsel for the Holders.
ARTICLE 4
INDEMNIFICATION
4.1 Indemnification by the Company. The Company will
indemnify, hold harmless and defend each Holder, its officers, directors,
partners, legal counsel and accountants, and each person who controls a Holder
within the meaning of Section 15 of the Act, against any and all expenses,
claims, losses, damages and liabilities (or actions in
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respect thereof), including any of the foregoing incurred in settlement of any
litigation, commenced or threatened, arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained in any
registration statement, prospectus, offering circular or other document, or any
amendment or supplement thereof, incident to any registration or qualification
of the Registrable Securities, or which arise out of or are based on any
omission (or alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, or any violation by the
Company of any rule or regulation promulgated under the Act or any state
securities laws applicable to the Company and relating to action or inaction
required of the Company in connection with any such registration, qualification
or compliance, and will reimburse each such indemnified party for any legal and
any other expenses reasonably incurred by them in connection with investigating,
preparing or defending any such claim, loss, damage, liability or action. The
Company also shall indemnify any underwriter of the Registrable Securities,
their officers, directors, partners, members and agents and each person who
controls such underwriters on substantially the same basis as that of the
indemnification of the Holders provided in this Section 4.1.
The indemnity agreement contained in this Section 4.1 shall
not apply to amounts paid in settlement of any such loss, claim, damage or
liability or any action in respect thereof if such settlement is effected
without the consent of the Company, which consent shall not be unreasonably
withheld, nor shall the Company be liable to any Holder or its officers,
directors, partners, members or agents in any such case for any loss, claim,
damage, liability or any action in respect thereof to the extent that it arises
solely from or is based solely upon and is in conformity with written
information relating to such Holder furnished expressly for use in connection
with such registration by such Holder or its agents, nor shall the Company be
liable to any Holder for any such loss, claim, damage or liability or any action
in respect thereof to the extent it arises solely from or is based solely upon
(a) any untrue statement or alleged untrue statement of a material fact
contained in any registration statement or prospectus relating to the
Registrable Securities delivered by such Holder after the Company had provided
written notice to such Holder that such registration statement or prospectus
contained such untrue statement or alleged untrue statement of a material fact,
(b) any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading
after the Company had provided written notice to such Holder that such
registration statement or prospectus contained such omission or alleged
omission, or (c) the failure of such Holder to deliver any preliminary or final
prospectus, or any amendments or supplements thereto, required under applicable
securities laws, including the Act, to be so delivered, provided that a
sufficient number of copies thereof had been timely provided by the Company to
such Holder.
4.2 Indemnification by the Holders. Each Holder will, if
Registrable Securities held by such Holder are included in the securities as to
which such registration, qualification or compliance is being effected,
indemnify the Company, and each of its
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officers, directors, legal counsel and accountants, and each person who controls
the Company within the meaning of Section 15 of the Act, against all claims,
losses, damages and liabilities (or actions in respect thereof) arising out of
or based on any untrue statement (or alleged untrue statement) of a material
fact contained in any such registration statement, prospectus, offering circular
or other document, or any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or any violation by the Holder of any rule or regulation
promulgated under the Act or any state securities laws applicable to the Holder
and relating to action or inaction required by the Holder in connection with any
such registration, qualification or compliance, and will reimburse each such
indemnified person for any legal or any other expenses reasonably incurred in
connection with investigating or defending any such claim, loss, damage,
liability or action, in each case to the extent, but only to the extent, that
such untrue statement (or alleged omission) is made in such registration
statement, prospectus, offering circular or other document in reliance upon and
in conformity with written information furnished to the Company by an instrument
duly executed by or on behalf of such Holder and stated to be specifically for
use therein. Each Holder shall also indemnify and hold harmless any underwriter
of the Registrable Securities, their officers, directors, partners, members and
agents and each person who controls such underwriters on substantially the same
basis as that of the indemnification of the Company provided in this Section
4.2; provided, however, that in no event shall any indemnity obligation under
this Section 4.2 exceed the dollar amount of the net proceeds actually received
by such Holder from the sale of Registrable Securities which gave rise to such
indemnification obligations under such registration statement or prospectus.
4.3 Indemnification Procedures. Each person to be indemnified
pursuant to this Article 4 (the "Indemnified Party") will, promptly after its
receipt of written notice of the commencement of any action against such
Indemnified Party in respect of which indemnity may be sought from an
indemnifying person under this Article 4 (the "Indemnifying Party") notify the
Indemnifying Party in writing of the commencement thereof, provided, however,
that the failure of any person to give notice as provided herein shall not
relieve the Indemnifying Party of its obligations under this Agreement except to
the extent that such Indemnifying Party is actually materially and adversely
prejudiced by such failure to give notice. If any such action shall be brought
against any Indemnified Party and it shall notify an Indemnifying Party of the
commencement thereof, the Indemnifying Party will be entitled to participate
therein and, to the extent it may desire, jointly with any other Indemnifying
Party similarly notified, to assume the defense thereof with counsel
satisfactory to such Indemnified 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 Article 4 for any legal or other expenses subsequently incurred by
such Indemnified Party in connection with the defense thereof other than
reasonable costs of investigation unless (a) the Indemnified Party shall have
employed counsel in an action in which the Indemnified Party and Indemnifying
Party are both defendants and there is a conflict of interest between such
parties that would prevent counsel from adequately representing both parties,
(b) the Indemnifying Party shall not have
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employed counsel satisfactory within the exercise of reasonable judgment of the
Indemnified Party to represent the Indemnified Party within a reasonable time
after the notice of the commencement of the action, or (c) the Indemnifying
Party has authorized the employment of counsel for the Indemnified Party at the
expense of the Indemnifying Party. The undertaking contained in this Section 4.3
shall be in addition to any liabilities which the Indemnifying Party may have
pursuant to law.
4.4 Contribution Obligations. If the indemnification provided
for in this Article 4 is held by a court of competent jurisdiction to be
unavailable to an Indemnified Party with respect to any loss, liability, claim,
damage or expense referred to therein, then the Indemnifying Party, in lieu of
indemnifying such Indemnified Party thereunder, shall contribute to the amount
paid or payable by such Indemnified Party as a result of such loss, liability,
claim, damage or expense in such proportion as is appropriate to reflect the
relative fault of the Indemnifying Party on the one hand and of the Indemnified
Party on the other in connection with the statements, actions or omissions which
resulted in such loss, liability, claim, damage or expense as well as any other
relevant equitable considerations. The relative fault of the Indemnifying Party
and of the Indemnified Party shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
Indemnifying Party or by the Indemnified Party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
ARTICLE 5
TRANSFER OF REGISTRATION RIGHTS
The rights to cause the Company to register securities granted to a
Holder under Articles 2, above, may be transferred or assigned by such Holder to
a transferee or assignee in connection with any transfer or assignment of
Registerable Securities, provided that: (a) such transfer or assignment may
otherwise be effected in accordance with applicable securities laws, (b) prompt
written notice of such transfer or assignment is given to the Company, and (c)
such transferee or assignee expressly agrees in a writing delivered to the
Company to be bound by the provisions of this Agreement.
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ARTICLE 6
DISCONTINUANCE OF DISPOSITION OF REGISTERABLE SECURITIES
6.1 Certain Discontinuances. Each Holder of Registrable
Securities agrees by acquisition of such Registrable Securities that, upon
receipt of any notice from the Company of the happening of any event of the kind
described in Section 3(c)(iii), 3(c)(iv), 3(c)(v), 3(c)(vi) or 3(c)(vii), above,
or a Permitted Interruption and/or Necessary Interruption, such Holder will
forthwith discontinue disposition of any Registrable Securities covered by a
registration statement or prospectus until such Holder's receipt of the copies
of the supplemented or amended prospectus contemplated by Section 3(k), above,
or until it is advised in writing (the "Advice") by the Company that the use of
the applicable prospectus may be resumed, and has received copies of any
additional or supplemental filings which are incorporated or deemed to be
incorporated by reference in such prospectus.
6.2 Permitted Interruptions and Necessary Interruptions.
Anything in this Agreement to the contrary notwithstanding, it is understood and
agreed that the Company shall not be required to prepare or file a registration
statement, amendment or post-effective amendment thereto or prospectus
supplement or to supplement or amend any registration statement or otherwise
facilitate the resale of Registrable Securities, and it shall be free
voluntarily to take or omit to take any other action that would result in the
impracticality of any such filing, supplement or amendment if such action is
taken or omitted to be taken by the Company in good faith and for valid business
reasons, including, without limitation, matters relating to acquisitions or
divestitures, so long as the Company shall, as promptly as practicable
thereafter, make such filing, supplement or amendment and, so long as the
Company shall as promptly as is practicable thereafter, comply with the
requirements of Section 3(k), above, if applicable (any period described in this
Section 6.2 (other than a Necessary Interruption (defined below)) during which
Holders of Registrable Securities are not able to sell such Registrable
Securities under a registration statement is herein called a "Permitted
Interruption"). The period between Permitted Interruptions shall not be less
than 30 days; provided, however, that if any event occurs which would make the
Registration Statement then in effect materially incorrect or misleading, the
Company shall not be required to keep the Registration Statement effective as of
such date and continuing for five business days thereafter and the Holders of
Registrable Securities shall not sell such securities during such period (each
such period is referred to as a "Necessary Interruption"). The Company hereby
agrees to notify each of the Holders of Registrable Securities of the occurrence
of, and the termination of, each Permitted Interruption and/or Necessary
Interruption (the nature and pendency of which need not be disclosed during such
Permitted Interruption and/or Necessary Interruption). Permitted Interruptions
shall not extend beyond 45 days during the first year of the Two Year Period and
60 days during the second year of the Two Year Period. Notwithstanding the
foregoing, there shall be no Permitted Interruptions during the 30-day period
immediately following the date the Shelf Registration initially becomes
effective.
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6.3 Standoff or Lock-Up Agreement. Each Holder of Registerable
Securities agrees in connection with any firmly underwritten public offering of
the Company's common stock that, upon request of the Company or the underwriters
managing any underwritten offering of the Company's securities, such Holder
shall not sell, make any short sale of, loan, grant any option for the purchase
of, or otherwise dispose of any Registerable Securities (other than those
included in the registration) without the prior written consent of the Company
or such underwriters, as the case may be, during the 14 days prior to, and
during the 90-day period (the "Lock-up Period") beginning on, the effective date
of the registration statement relating to such offering (except as part of such
registration statement). In order to enforce the foregoing covenant, the Company
may impose stop-transfer instructions with respect to the Registerable
Securities until the end of such period. In the event any of Ralph J. Swett,
John J. Willingham, Kenneth F. Hinther or John R. Fleming have entered into a
lock-up agreement with such underwriters relating to such offering with a
lock-up period longer than one day and shorter than 90 days, then such shorter
period shall be the Lock-up Period. The Company shall not be required to keep
any registration statement effective during any Lock-up Period.
ARTICLE 7
TERMINATION OF REGISTRATION RIGHTS
Notwithstanding any provision in this Agreement to the contrary, in no
event shall any Holder be entitled to request registration or inclusion in any
registration pursuant to Article 2, above, after the date on which all
Registrable Securities held by such Holder may be sold under Commission Rule 144
during any 90-day period.
ARTICLE 8
MISCELLANEOUS
8.1 Amendment. Any modification, amendment or waiver of this
Agreement or any provision hereof shall be effective only if in writing and
executed by the Holders of at least a majority of the Registrable Securities and
the Company.
8.2 Governing Law. This Agreement shall be governed in all
respects by the laws of the State of California without regard to its conflicts
of laws principles.
8.3 Successors and Assigns. Except as otherwise expressly
provided herein, the provisions hereof shall inure to the benefit of, and be
binding upon, the successors, permitted assigns, heirs, executors and
administrators of the parties hereto.
8.4 Notices. All notices and other communications required or
permitted hereunder shall be made in accordance with the Acquisition Agreement.
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8.5 Severability. If any provision of this Agreement shall be
judicially determined to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions of this Agreement shall
not in any way be affected or impaired thereby.
8.6 Entire Agreement. This Agreement, the Registration Rights
Agreement with respect to the Final Share Amount and the Acquisition Agreement
constitute the full and entire understanding and agreement between the parties
with regard to the subject matter hereof.
8.7 Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, each of the parties has executed this Agreement as
of the date first set forth above.
IXC COMMUNICATIONS, INC.,
a Delaware corporation
By: /s/ James F. Guthrie
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Its: Executive Vice President
THE "SHAREHOLDERS":
/s/ William G. Rodi
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William G. Rodi
/s/ Gordon Hutchins, Jr.
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Gordon Hutchins, Jr.
/s/ William F. Linsmeier
- -------------------------------------
William F. Linsmeier
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