EXHIBIT 4.8
STOCK RESTRICTION AND REGISTRATION RIGHTS AGREEMENT
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THIS STOCK RESTRICTION AND REGISTRATION RIGHTS AGREEMENT (this "Agreement")
is made and entered into as of April 22, 1998, by and among Premiere
Technologies, Inc., a corporation ("Premiere"), and those shareholders of
American Teleconferencing Services, Ltd., a Missouri corporation ("ATS"),
appearing as signatories hereto (each, an "Investor" and collectively, the
"Investors").
R E C I T A L S
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WHEREAS, pursuant to the terms of an Agreement and Plan of Merger, dated as
of April 22, 1998 (as the same may be amended, the "Acquisition Agreement"), by
and between Premiere, PTEK Missouri Acquisition Corp. ("Sub") and ATS, ATS shall
be merged with and into Sub (the "Acquisition"), with the result that each of
outstanding shares of $.0125 par value common stock of ATS ("ATS Common Stock")
will be converted into the right to receive cash and shares of the $.01 par
value common stock of Premiere ("Premiere Common Stock"); and
WHEREAS, Premiere has agreed, as a condition precedent to ATS's obligations
under the Acquisition Agreement, to grant the Investors certain registration
rights; and
WHEREAS, Premiere and the Investors desire to define such registration
rights on the terms and subject to the conditions herein set forth.
NOW, THEREFORE, in consideration of the foregoing premises and for other
good and valuable consideration, the parties hereby agree as follows:
1. DEFINITIONS
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As used in this Agreement, the following terms have the respective meanings
set forth below:
Commission: shall mean the Securities and Exchange Commission or any other
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federal agency at the time administering the Securities Act;
Cowan: shall mean Robert A. Cowan.
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Effective Date: shall mean the date on which the Acquisition is
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consummated;
Exchange Act: shall mean the Securities Exchange Act of 1934, as amended;
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Holder: shall mean any holder of Registrable Securities;
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Jaffe: shall mean Louis I. Jaffe;
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Other Stockholders: shall mean Persons who, by virtue of an agreement with
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Premiere, are entitled to include their Securities in any registration effected
under Section 3;
Person: shall mean an individual, partnership, joint stock company,
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corporation, trust or unincorporated organization, and a government or agency or
political subdivision thereof;
register, registered and registration: shall mean a registration effected
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by preparing and filing a registration statement in compliance with the
Securities Act (and any post-effective amendments filed or required to be filed)
and the declaration or ordering of effectiveness of such registration statement;
Registrable Securities: shall mean (A) one-half (1/2) of the aggregate of
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the shares of Premiere Common Stock issued to Cowan under the Acquisition
Agreement, (B) the aggregate of the shares of Premiere Common Stock issued to
the Investors (other than Cowan) under the Acquisition Agreement and (C) any
securities of Premiere issued as a dividend or other distribution with respect
to, or in exchange for or in replacement of, the shares of Premiere Common Stock
referred to in clause (A) and (B); provided, that Registrable Securities shall
not include (i) securities with respect to which a registration statement with
respect to the sale of such securities has become effective under the Securities
Act and all such securities have been disposed of in accordance with such
registration statement, (ii) such securities as are actually sold pursuant to
Rule 144 (or any successor provision thereto) under the Securities Act ("Rule
144"), or are eligible for sale pursuant to Rule 144, (iii) such securities as
are acquired by Premiere or any of its subsidiaries or (iv) the shares of
Premiere Common Stock issued to the Investors under the Acquisition Agreement
that are held by the escrow agent under that certain Escrow Agreement, dated of
even date hereof, by and among Premiere, the Investors and SunTrust Bank,
Atlanta;
Registration Expenses: shall mean all expenses incurred by Premiere in
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compliance with Sections 3(a) and (b) hereof, including, without limitation, all
registration and filing fees, printing expenses, fees and disbursements of
counsel for Premiere, fees and expenses of one counsel for all the Holders, blue
sky fees and expenses and the expense of any special audits incident to or
required by any such registration (but excluding the compensation of regular
employees of Premiere, which shall be paid in any event by Premiere);
Restricted Securities: shall mean the shares of Premiere Common Stock
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issued to the Investors under the Acquisition Agreement;
Security, Securities: shall have the meaning set forth in Section 2(1) of
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the Securities Act;
Securities Act: shall mean the Securities Act of 1933, as amended; and
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Selling Expenses: shall mean all underwriting discounts and selling
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commissions applicable to the sale of Registrable Securities and all fees and
disbursements of counsel for each of the Holders other than fees and expenses of
one counsel for all the Holders.
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Shareholder Representative: shall have the meaning given that term in the
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Acquisition Agreement.
Shelf Filing Date: shall mean the date that is ninety (90) days following
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the Effective Date.
2. RESTRICTIONS ON TRANSFER
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(a) Prior to any proposed transfer of any Restricted Securities (other
than under the circumstances described in Section 3 hereof), the Holder thereof
shall give written notice to Premiere of its intention to effect such transfer.
Each such notice shall describe the manner of the proposed transfer and, if
requested by Premiere, shall be accompanied by an opinion of counsel reasonably
satisfactory to Premiere to the effect that the proposed transfer may be
effected without registration under the Securities Act, whereupon such Holder
shall be entitled to transfer the Restricted Securities in accordance with the
terms of its notice. Each certificate or instrument transferred as above
provided shall bear the legend set forth in Section 2(b), except that such
certificate or instrument shall not bear such legend if (i) such transfer is in
accordance with the provisions of Rule 144 (or any other rule permitting public
sale without registration under the Securities Act) or (ii) the opinion of
counsel referred to above is to the further effect that the transferee and any
subsequent transferee would be entitled to transfer such Restricted Securities
in a public sale without registration under the Securities Act. Notwithstanding
anything herein to the contrary, in no event shall Jaffe, during the period
commencing on the date hereof and ending on the one (1) year anniversary of the
date hereof, transfer in any three (3) month period a number of shares of
Registrable Securities in excess of twenty-five percent (25%) of the Registrable
Securities held by Jaffe as of the Effective Date except pursuant to a Premiere
Registration pursuant to Section 3(a) below; provided that the limitations
provided by this sentence shall cease to apply (a) upon the occurrence of a
"change of control" of Premiere reportable under Item 1 of Form 8-K under the
Exchange Act, (b) upon the closing of a Commission Rule 145 transaction unless
the stockholders of Premiere immediately prior to such transaction continue to
hold more than 50% of the shares of the surviving entity immediately following
such transaction, and (c) in the event that the closing stock price of Premiere
Common Stock, as reported by The Wall Street Journal, is less than 66% of the
Average Closing Price (as defined in the Acquisition Agreement) for three
consecutive trading days.
(b) Each certificate evidencing Restricted Securities issued to any Holder
in connection with the Acquisition shall bear a legend in substantially the
following form:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
OR ANY STATE SECURITIES ACTS AND MAY NOT BE TRANSFERRED OR OTHERWISE DISPOSED
OF UNLESS THEY HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND ANY
APPLICABLE STATE SECURITIES ACTS OR AN EXEMPTION FROM SUCH REGISTRATION IS
AVAILABLE."
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(c) In the event that any Restricted Securities shall cease to be subject
to the restrictions on transfer set forth in this Agreement, Premiere shall,
upon the written request of the Holder thereof, issue to such Holder a new
certificate evidencing such Restricted Securities without the legend required by
Section 2(b) hereof endorsed thereon.
3. REGISTRATION RIGHTS
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(a) Premiere Registration.
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(i) If Premiere shall determine to register at any time prior to the
one (1) year anniversary of the date of this Agreement any of its equity
securities either for its own account or for the account of Other Stockholders,
other than a registration relating solely to benefit plans, or a registration
relating solely to a Commission Rule 145 transaction, or a registration covering
any method of distribution which is not an underwritten public offering, or a
registration on any registration form which does not permit secondary sales or
does not include substantially the same information as would be required to be
included in a registration statement covering the sale of Registrable
Securities, Premiere will:
(A) promptly give to each of the Holders a written notice thereof
(which shall include a list of the jurisdictions in which Premiere intends to
attempt to qualify such securities under the applicable blue sky or other
state securities laws); and
(B) include in such registration (and any related qualification
under blue sky laws or other compliance), and in any underwriting involved
therein, all the Registrable Securities specified in a written request or
requests, made by any Holder within ten (10) business days after the giving
of the written notice from Premiere described in clause (i) above, except as
set forth in Section 3(a)(ii) below. Such written request shall specify the
amount of Registrable Securities intended to be disposed of by a Holder and
may specify all or a part of the Holders' Registrable Securities.
Notwithstanding the foregoing, if, at any time after giving such written notice
of its intention to effect such registration and prior to the effective date of
the registration statement filed in connection with such registration, Premiere
shall determine for any reason not to register such equity securities Premiere
may, at its election, give written notice of such determination to the Holders
and thereupon Premiere shall be relieved of its obligation to register such
Registrable Securities in connection with the registration of such equity
securities (but not from its obligation to pay Registration Expenses to the
extent incurred in connection therewith as provided herein).
Notwithstanding anything to the contrary set forth in this Agreement, no Holder
shall have any right to include any Registrable Securities in any registration
statement filed pursuant to any of the following: the 5-3/4% Convertible
Subordinated Notes Due 2004 Registration Rights Agreement dated as of June 15,
1997, by and among Premiere and Robertson, Stephens & Company LLC, Alex. Brown &
Sons Incorporated and Donaldson, Lufkin & Jenrette Securities Corporation; the
Stock Restriction and Registration Rights Agreement dated April 30, 1997 by and
among Premiere, and those Stockholders of Voice-Tel Enterprises, Inc. ("VTE"),
VTN, Inc. and the
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stockholders of franchisees of VTE appearing as signatories thereto; or the
Stock Restriction and Registration Rights Agreement dated September 30, 1997 by
and among Premiere and those shareholders of VoiceCom Holdings, Inc. appearing
as signatories thereto.
(ii) Underwriting. The right of each of the Holders to registration
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pursuant to this Section 3(a) shall be conditioned upon such Holders'
participation in such underwriting and the inclusion of such Holders'
Registrable Securities in the underwriting to the extent provided herein. The
Holders whose shares are to be included in such registration shall (together
with Premiere and the Other Stockholders distributing their securities through
such underwriting) enter into an underwriting agreement in customary form with
the representative of the underwriter or underwriters selected for the
underwriting by Premiere or such Other Stockholders, as the case may be. Such
underwriting agreement will contain such representations and warranties by
Premiere and such other terms and provisions as are customarily contained in
underwriting agreements with respect to secondary distributions, including,
without limitation, indemnities and contribution to the effect and to the extent
provided in Section 3(e) hereof and the provision of opinions of counsel and
accountants' letters to the effect and to the extent provided in Section 3(f),
and the representations and warranties by, and the other agreements on the part
of, Premiere to and for the benefit of such underwriters shall also be made to
and for the benefit of the Holders whose shares are to be included in such
registration. Notwithstanding any other provision of this Section 3, if the
representative determines that marketing factors require a limitation on the
number of shares to be underwritten, Premiere shall so advise all holders of
securities requesting registration, and the number of shares of securities that
are entitled to be included in the registration and underwriting shall be
allocated by Premiere in its sole discretion, subject to agreements between
Premiere and the Other Stockholders. If any of the Holders or any officer,
director or Other Stockholder disapproves of the terms of any such underwriting,
he or she may elect to withdraw therefrom by written notice to Premiere and the
underwriter. Any Registrable Securities or other securities excluded or
withdrawn from such underwriting shall be withdrawn from such registration.
(b) Shelf Registration.
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(i) On or before the Shelf Filing Date Premiere shall file a
"shelf" registration statement pursuant to Rule 415 under the Securities Act
(the "Shelf Registration") with respect to the Registrable Securities to be
issued under the Acquisition Agreement; provided, however, Premiere shall not be
required to file or effect, or take any action to file or effect, any Shelf
Registration pursuant to this Section 3(b) if all of the Registrable Securities
are or were included in, or are or were eligible for sale under, any such
registration pursuant to Section 3(a) hereof. Premiere shall, subject to Section
3(g) hereof, use its reasonable best efforts to cause the Shelf Registration to
become effective as soon as practicable after the date of filing thereof, and
shall use its reasonable best efforts to keep the Shelf Registration
continuously effective from the date such Shelf Registration is effective until
the first anniversary of the Effective Date in order to permit the prospectus
forming a part thereof to be usable by Holders during such period. The Shelf
Registration may include securities of Premiere other than Registrable
Securities. The Registrable Securities may be included in another Shelf
Registration that otherwise meets the requirements set forth herein.
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(ii) Subject to Section 3(g) hereof, Premiere shall supplement or
amend the Shelf Registration, (A) as required by the registration form utilized
by Premiere or by the instructions applicable to such registration form or by
the Securities Act or the rules and regulations promulgated thereunder and (B)
to include in such Shelf Registration any additional securities that become
Registrable Securities by operation of the definition thereof.
(iii) The Holders may, at their election and upon written notice by
the Shareholder Representative to Premiere, effect offers and sales under the
Shelf Registration by means of one or more offerings (provided that Premiere
shall not be required to effect any underwritten offering); provided, however,
that Premiere shall not be obligated to effect, or take any action to effect,
any such registration:
(A) In any particular jurisdiction in which Premiere would be
required to execute a general consent to service of process in effecting
such registration, qualification or compliance, unless Premiere is already
subject to service in such jurisdiction and except as may be required by the
Securities Act or applicable rules or regulations thereunder.
(B) Other than pursuant to a registration statement on Form S-3.
If Other Stockholders request inclusion in any such registration under
Section 3(b)(iii), the Holders shall offer to include the securities of such
Other Stockholders and may condition such offer on their acceptance of the
further applicable provisions of this Section 3. Notwithstanding any other
provision of this Section 3(b)(iii), if a recognized national independent
investment banking firm advises the Holders in writing that marketing factors
require a limitation on the number of shares to be included in the registration,
the Shareholder Representative shall so advise Premiere and the securities of
Premiere held by Other Stockholders shall be excluded from such registration to
the extent so required by such limitation. No Registrable Securities or any
other securities excluded from the underwriting by reason of the underwriter's
marketing limitation shall be included in such registration.
(c) Expenses of Registration. All Registration Expenses incurred in
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connection with any registration, qualification or compliance pursuant to this
Section 3 (including all Registration Expenses incurred in connection with the
Shelf Registration and any supplements or amendments thereto, whether or not it
becomes effective, and whether all, none or some of the Registrable Securities
are sold pursuant to the Shelf Registration) shall be borne by Premiere, and all
Selling Expenses shall be borne by the Holders of the securities so registered
pro rata on the basis of the number of their shares so registered.
(d) Registration Procedures. In the case of each registration
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effected by Premiere pursuant to this Section 3, Premiere will keep the Holders,
as applicable, advised in writing as to the initiation of each registration and
as to the completion thereof. At its expense, Premiere will:
(i) furnish to the Shareholder Representative, and to any
underwriter simultaneously with filing with the Commission, copies of any
registration statement
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(including all exhibits) for a registration in which the Holders have elected
to participate pursuant to Section 3(a) and any prospectus forming a part
thereof and any amendments and supplements thereto (including all documents
incorporated or deemed incorporated by reference therein prior to the
effectiveness of such registration statement and including each preliminary
prospectus, any summary prospectus or any term sheet (as such term is used in
Rule 434 under the Securities Act)) and any other prospectus filed under Rule
424 under the Securities Act;
(ii) furnish to the Shareholder Representative, and to any
underwriter before filing with the Commission, copies of any registration
statement (including all exhibits) for a Shelf Registration and any
prospectus forming a part thereof and any amendments and supplements thereto
(including all documents incorporated or deemed incorporated by reference
therein prior to the effectiveness of such registration statement and
including each preliminary prospectus, any summary prospectus or any term
sheet (as such term is used in Rule 434 under the Securities Act)), which
documents, other than documents incorporated or deemed incorporated by
reference, will be subject to the review of the Shareholder Representative
and any such underwriter for a period of at least five business days, and
Premiere shall not file any such registration statement or such prospectus or
any amendment or supplement to such registration statement or prospectus to
which the Shareholder Representative or any such underwriter shall reasonably
object within five business days after the receipt thereof; the Shareholder
Representative or such underwriters, if any, shall be deemed to have
reasonably objected to such filing only if the registration statement,
amendment, prospectus or supplement, as applicable, as proposed to be filed,
contains a material misstatement or omission;
(iii) furnish to the Shareholder Representative and to any
underwriter, such number of conformed copies of the applicable registration
statement and of each amendment and supplement thereto (in each case
including all exhibits) and such number of copies of the prospectus forming a
part of such registration statement (including each preliminary prospectus,
any summary prospectus or any term sheet (as such term is used in Rule 434
under the Securities Act)) and any other prospectus filed under Rule 424
under the Securities Act, in conformity with the requirements of the
Securities Act, and such other documents, including without limitation
documents incorporated or deemed to be incorporated by reference prior to the
effectiveness of such registration, as the Shareholder Representative or any
such underwriter, from time to time may reasonably request;
(iv) to the extent practicable, promptly prior to the filing of any
document that is to be incorporated by reference into any registration
statement or prospectus forming a part thereof subsequent to the
effectiveness thereof, and in any event no later than the date such document
is filed with the Commission, provide copies of such document to the
Shareholder Representative, if requested, and to any underwriter, and make
representatives of Premiere available for discussion of such document and
other customary due diligence matters, and include in such document prior to
the filing thereof such information as Shareholder Representative or any such
underwriter reasonably may request;
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(v) use its reasonable best efforts (x) to register or qualify all
Registrable Securities and other securities covered by such registration
under such other securities or blue sky laws of such States of the United
States of America where an exemption is not available and as the sellers of
Registrable Securities covered by such registration shall reasonably request,
(y) to keep such registration or qualification in effect for so long as the
applicable registration statement remains in effect, and (z) to take any
other action which may be reasonably necessary or advisable to enable such
sellers to consummate the disposition in such jurisdictions of the securities
to be sold by such sellers, except that Premiere shall not for any such
purpose be required to qualify generally to do business as a foreign
corporation in any jurisdiction where it is not so qualified, or to subject
itself to taxation in any such jurisdiction, or to execute a general consent
to service of process in effecting such registration, qualification or
compliance, unless Premiere is already subject to service in such
jurisdiction and except as may be required by the Securities Act or
applicable rules or regulations thereunder;
(vi) use its reasonable best efforts to cause all Registrable
Securities covered by such registration statement to be registered with or
approved by such other federal or state governmental agencies or authorities
as may be necessary in the opinion of counsel to Premiere and counsel to the
Holders of Registrable Securities to enable the Holders thereof to consummate
the disposition of such Registrable Securities;
(vii) subject to Section 3(g) hereof, promptly notify each Holder
of Registrable Securities covered by a registration statement (A) upon
discovery that, or upon the happening of any event as a result of which, the
prospectus forming a part of such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, (B) of the issuance by the Commission of any stop order
suspending the effectiveness of such registration statement or the initiation
of proceedings for that purpose, (C) of any request by the Commission for (1)
amendments to such registration statement or any document incorporated or
deemed to be incorporated by reference in any such registration statement,
(2) supplements to the prospectus forming a part of such registration
statement or (3) additional information, or (D) of the receipt by Premiere of
any notification with respect to the suspension of the qualification or
exemption from qualification of any of the Registrable Securities for sale in
any jurisdiction or the initiation of any proceeding for such purpose, and at
the request of any such Holder promptly prepare and furnish to it a
reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such securities, such prospectus shall not include 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 the light of
the circumstances under which they were made, not misleading;
(viii) use its reasonable best efforts to obtain the withdrawal of
any order suspending the effectiveness of any such registration, or the
lifting of any suspension of the
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qualification (or exemption from qualification) of any of the Registrable
Securities for sale in any jurisdiction;
(ix) if requested by the Shareholder Representative or any
underwriter, promptly incorporate in such registration statement or
prospectus, pursuant to a supplement or post effective amendment if
necessary, such information as the Shareholder Representative and any
underwriter may reasonably request to have included therein, including,
without limitation, information relating to the "plan of distribution" of the
Registrable Securities, information with respect to the principal amount or
number of shares of Registrable Securities being sold to such underwriter,
the purchase price being paid therefor and any other terms of the offering of
the Registrable Securities to be sold in such offering and make all required
filings of any such prospectus supplement or post-effective amendment as soon
as practicable after Premiere is notified of the matters to be incorporated
in such prospectus supplement or post effective amendment;
(x) in the event the offering is an underwritten offering, furnish
to the Holders, addressed to them, an opinion of counsel for Premiere, dated
the date of the closing under the underwriting agreement, if any, or the date
of effectiveness of the registration statement if such registration is not an
underwritten offering, and use its reasonable best efforts to furnish to the
Holders, addressed to them, a "cold comfort" letter signed by the independent
certified public accountants who have certified Premiere's financial
statements included in such registration, covering substantially the same
matters with respect to such registration (and the prospectus included
therein) and, in the case of such accountants' letter, with respect to events
subsequent to the date of such financial statements, as are customarily
covered in opinions of issuer's counsel and in accountants' letters delivered
to underwriters in underwritten public offerings of securities and such other
matters as the Shareholder Representative may reasonably request;
(xi) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the Commission, and make available to its
security holders, as soon as reasonably practicable, an earnings statement
covering the period of at least 12 months, but not more than 18 months,
beginning with the first full calendar month after the effective date of such
registration statement, which earnings statement shall satisfy the provisions
of Section 11(a) of the Securities Act and Rule 158 promulgated thereunder;
(xii) provide promptly to the Holders upon request any document
filed by Premiere with the Commission pursuant to the requirements of Section
13 and Section 15 of the Exchange Act; and
(xiii) use its reasonable best efforts to cause all Registrable
Securities included in any registration pursuant hereto to be listed on each
securities exchange on which securities of the same class are then listed,
or, if not then listed on any securities exchange, to be eligible for trading
in any over-the-counter market or trading system in which securities of the
same class are then traded.
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(e) Indemnification.
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(i) Premiere will indemnify each of the Holders, as applicable,
each of its officers, directors, members and partners, and each person
controlling each of the Holders, with respect to each registration which has
been effected pursuant to this Section 3, and each underwriter, if any, and each
person who controls any underwriter, 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 prospectus, offering circular or other document (including any related
registration statement, notification or the like) incident to any such
registration, qualification or compliance, or 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 not misleading, or any violation by
Premiere of the Securities Act or the Exchange Act or any rule or regulation
thereunder applicable to Premiere and relating to action or inaction required of
Premiere in connection with any such registration, qualification or compliance,
and will reimburse each of the Holders, each of its officers, directors, members
and partners, and each person controlling each of the Holders, each such
underwriter and each person who controls any such underwriter, for any legal and
any other expenses reasonably incurred in connection with investigating and
defending any such claim, loss, damage, liability or action, provided that
Premiere will not be liable in any such case to the extent that any such claim,
loss, damage, liability or expense arises out of or is based on any untrue
statement or omission based upon written information furnished to Premiere by
the Holders or underwriter and stated to be specifically for use therein.
(ii) Each of the Holders will, if Registrable Securities held by
it are included in the securities as to which such registration, qualification
or compliance is being effected, indemnify Premiere, each of its directors and
officers and each underwriter, if any, of Premiere's securities covered by such
a registration statement, each person who controls Premiere or such underwriter,
each Other Stockholder and each of their officers, directors, members and
partners, and each person controlling such Other Stockholder 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 made by such Holder, or any omission (or alleged omission) to
state therein a material fact required to be stated therein or necessary to make
the statements by such Holder therein not misleading, and will reimburse
Premiere and such Other Stockholders, directors, officers, partners, members,
persons, underwriters or control persons 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 untrue statement) or
omission (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 Premiere by such Holder and
stated to be specifically for use therein; provided, however, that the
obligations of each of the Holders hereunder and under clause (vi) below shall
be limited to an amount equal to the net proceeds to such Holder of securities
sold as contemplated herein.
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(iii) Each party entitled to indemnification under this Section
3(e) (the "Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought, and shall permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting therefrom; provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or any
litigation resulting therefrom, shall be approved by the Indemnified Party
(whose approval shall not unreasonably be withheld) and the Indemnified Party
may participate in such defense at such party's expense (unless the Indemnified
Party shall have reasonably concluded that there may be a conflict of interest
between the Indemnifying Party and the Indemnified Party in such action, in
which case the fees and expenses of one such counsel for all Indemnified Parties
shall be at the expense of the Indemnifying Party), and provided further that
the failure of any Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party of its obligations under this Section 3 unless
the Indemnifying Party is materially prejudiced thereby. No Indemnifying Party,
in the defense of any such claim or litigation shall, except with the consent of
each Indemnified Party (which consent shall not be unreasonably withheld or
delayed), consent to entry of any judgment or enter into any settlement which
does not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in respect
to such claim or litigation. Each Indemnified Party shall furnish such
information regarding itself or the claim in question as an Indemnifying Party
may reasonably request in writing and as shall be reasonably required in
connection with the defense of such claim and litigation resulting therefrom.
(iv) If the indemnification provided for in this Section 3(e) 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
herein, then the Indemnifying Party, in lieu of indemnifying such Indemnified
Party hereunder, 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 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 (or alleged 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.
(v) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with any underwritten public offering
contemplated by this Agreement are in conflict with the foregoing provisions,
the provisions in such underwriting agreement shall be controlling.
(vi) The foregoing indemnity agreement of Premiere and Holders is
subject to the condition that, insofar as they relate to any loss, claim,
liability or damage made in a preliminary prospectus but eliminated or remedied
in the amended prospectus on file with the
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Commission at the time the registration statement in question becomes effective
or the amended prospectus filed with the Commission pursuant to Commission Rule
424(b) (the "Final Prospectus"), such indemnity or contribution agreement shall
not inure to the benefit of any underwriter or Holder (but only if such Holder
was required to deliver such Final Prospectus) if a copy of the Final Prospectus
was furnished to the underwriter and was not furnished to the person asserting
the loss, liability, claim or damage at or prior to the time such action is
required by the Securities Act.
(f) Information by the Holders. Each of the Holders holding
--------------------------
securities included in any registration shall furnish to Premiere such
information regarding such Holder and the distribution proposed by such Holder
as Premiere may reasonably request in writing and as shall be reasonably
required in connection with any registration, qualification or compliance
referred to in this Section 3.
(g) Holdback Agreement; Postponement. Notwithstanding the provisions
--------------------------------
of Sections 3(a) and (b), if the Board of Directors of Premiere determines in
good faith that it is in the best interests of Premiere (A) not to disclose the
existence of facts surrounding any proposed or pending acquisition, disposition,
strategic alliance or financing transaction involving Premiere or (B) for any
reasonable purpose relating to the business of Premiere, to suspend the
registration rights set forth herein, Premiere may, by notice to the Shareholder
Representative in accordance with Section 6(a), (1) suspend the rights of the
Holders to make sales pursuant to any effective registration statement, and (2)
postpone any obligation of Premiere hereunder to take any action for such a
period of time as the Board of Directors may determine in its sole discretion;
provided, however, that such periods of suspension may not exceed 90 days in the
aggregate.
(h) Assignment. The registration rights set forth in Section 3 hereof
----------
may be assigned, in whole or in part, to any transferee of Registrable
Securities (who shall be considered thereafter to be a Holder (provided that any
transferee who is not an affiliate of Investor shall be a Holder only with
respect to such Registrable Securities so acquired and any stock of Premiere
issued as a dividend or other distribution with respect to, or in exchange for
or in replacement of, such Registrable Securities) and shall be bound by all
obligations and limitations of this Agreement).
4. RULE 144 REPORTING
------------------
With a view to making available the benefits of certain rules and
regulations of the Commission which may permit the sale of restricted securities
to the public without registration, Premiere agrees to:
(i) make and keep public information available (as those terms are
understood and defined in Rule 144) at all times;
(ii) use its reasonable best efforts to file with the Commission in a
timely manner all reports and other documents required of Premiere
under the Securities Act and the Exchange Act; and
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(iii) so long as there are outstanding any Registrable Securities, furnish
to each Holder, upon request, a written statement by Premiere as to
its compliance with the reporting requirements of Rule 144 and of the
Securities Act and the Exchange Act, a copy of the most recent annual
or quarterly report of Premiere, and such other reports and documents
so filed as such Holder may reasonably request in availing itself of
any rule or regulation of the Commission allowing such Holder to sell
any such securities without registration.
5. INTERPRETATION OF THIS AGREEMENT
--------------------------------
(a) Directly or Indirectly. Where any provision in this Agreement
----------------------
refers to action to be taken by any Person, or which such Person is prohibited
from taking, such provision shall be applicable whether such action is taken
directly or indirectly by such Person.
(b) Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the laws of the State of Georgia.
(c) Section Headings. The headings of the sections and subsections of
----------------
this Agreement are inserted for convenience only and shall not be deemed to
constitute a part thereof.
6. MISCELLANEOUS
-------------
(a) Notices.
-------
(i) All communications under this Agreement shall be in writing and
shall be delivered by facsimile or by hand or mailed by overnight courier or by
registered or certified mail, postage prepaid: .
(A) if to Premiere, to Premiere Technologies, Inc., The Lenox
Building, Suite 400, 3399 Peachtree Road, N.E., Atlanta, Georgia 30326,
Attention: Boland T. Jones, President and Chief Executive Officer, with a
required copy to Alston & Bird LLP, One Atlantic Center, 1201 West Peachtree
Street, Atlanta, Georgia 30309-3424, Attention: Janine Brown, Esq., or at such
other address as it may have furnished in writing to the Investors;
(B) if to the Investors, at the addresses listed on Schedule I
hereto, or at such other addresses as may have been furnished Premiere in
writing.
(C) if to the Shareholder Representative, to Cowan, 580 Sunny
Glen Ct., Woodland Park, Colorado 80863 and to Jaffe, 2677 :Larkin #104, San
Francisco, California 94109or at such other address as it may have furnished in
writing to Premiere.
(ii) Any notice so addressed shall be deemed to be given: if
delivered by hand, on the date of such delivery; if mailed by courier, on the
first business day following the date of
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such mailing; and if mailed by registered or certified mail, on the third
business day after the date of such mailing.
(b) Reproduction of Documents. This Agreement and all documents
-------------------------
relating thereto, including, without limitation, any consents, waivers and
modifications which may hereafter be executed may be reproduced by the Investor
by any photographic, photostatic, microfilm, microcard, miniature photographic
or other similar process and the Investors may destroy any original document so
reproduced. The parties hereto agree and stipulate that any such reproduction
shall be admissible in evidence as the original itself in any judicial or
administrative proceeding (whether or not the original is in existence and
whether or not such reproduction was made by the Investors in the regular course
of business) and that any enlargement, facsimile or further reproduction of such
reproduction shall likewise be admissible in evidence.
(c) Entire Agreement; Amendment and Waiver. This Agreement
--------------------------------------
constitutes the entire understanding of the parties hereto and supersedes all
prior understanding among such parties. This Agreement may be amended, and the
observance of any term of this Agreement may be waived, with (and only with) the
written consent of Premiere and the Holders of a majority of the then
outstanding Registrable Securities.
(d) Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
(e) No Inconsistent Agreements. Premiere will not hereafter enter
--------------------------
into any agreement with respect to its securities which is inconsistent with the
rights granted to the Holders of Registrable Securities in this Agreement.
(f) Remedies. Each Holder of Registrable Securities, in addition to
--------
being entitled to exercise all rights granted by law, including recovery of
damages, will be entitled to specific performance of its rights under this
Agreement. Premiere agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions
of this Agreement and hereby agrees to waive the defense in any action for
specific performance that a remedy at law would be adequate.
(g) Severability. In the event that any one or more of the provisions
------------
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions contained herein shall not be in any way impaired
thereby, it being intended and understood that all of the rights and privileges
of each of the Holders shall be enforceable to the fullest extent permitted by
law.
[Signatures on the following page.]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first set forth above.
PREMIERE TECHNOLOGIES, INC.
By: /s/ Jeffrey A. Allred
----------------------------------
Name: Jeffrey A. Allred
--------------------------------
Title: Executive Vice President of
------------------------------
Strategic Development
------------------------------
INVESTORS:
/s/ Robert A. Cowan (SEAL)
----------------------------
Robert A. Cowan
/s/ Louis I. Jaffe (SEAL)
----------------------------
Louis I. Jaffe
/s/ Richard L. Clark (SEAL)
----------------------------
Richard L. Clark
/s/ Norma L. Dukstein, (SEAL)
----------------------------
Norma L. Dukstein, Successor Trustee under
Agreement dated November 3, 1986
/s/ Elizabeth D. White (SEAL)
----------------------------
Elizabeth D. White
/s/ Richard L. Johnson (SEAL)
----------------------------
Richard L. Johnson
/s/ Robert Stewart
/s/ Kathryn Stewart (SEAL)
----------------------------
Robert Stewart & Kathryn Stewart, Trustees under
Living Trust Agreement dated December 18, 1995
/s/ Louis Jaffe (SEAL)
----------------------------
Louis Jaffe, Trustee of the Jaffe 1996 Irrevocable
Trust dated 12/2/96
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