EXHIBIT 10.3
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of April 18, 1999 among QWEST
COMMUNICATIONS INTERNATIONAL INC., a Delaware corporation (the "COMPANY"),
ANSCHUTZ COMPANY, a Delaware corporation ("ANSCHUTZ"), ANSCHUTZ FAMILY
INVESTMENT COMPANY LLC, a Colorado limited liability company ("AFIC"). Anschutz,
AFIC and their respective successors and assigns, are collectively referred to
as the "STOCKHOLDERS."
RECITALS
A. As of the date of this Agreement, Anschutz owns beneficially and of
record approximately 160,000,000 shares of Common Stock, par value $.001 per
share (the "COMPANY COMMON STOCK"), of the Company and AFIC owns beneficially
and of record a warrant (the "WARRANT") to acquire 8,600,000 shares of Company
Common Stock. All shares of Company Common Stock owned beneficially or of record
by the Stockholders from time to time are collectively referred to as the
"REGISTRABLE SHARES."
B. Each of the Company and the Stockholders desire to enter into this
Agreement to provide for, among other things, the registration under the
Securities Act of 1933, as amended (the "SECURITIES ACT"), of the disposition of
the Registrable Shares.
C. The Company may in the future enter into agreements similar to this
Agreement with one or more persons approved in writing by the Stockholders
(collectively, the "OTHER AGREEMENTS") to provide for, among other things, the
registration under the Securities Act of the disposition of shares of Company
Common Stock owned by such other persons. All such shares of Company Common
Stock are collectively referred to as "OTHER REGISTRABLE SHARES."
AGREEMENT
The parties agree as follows:
SECTION 1. DEMAND REGISTRATION RIGHTS.
(a) From and after the date of this Agreement and to and including the
date that is the 10th anniversary of the date of this Agreement, subject to
extension pursuant to Section 4 (as so extended from time to time, the
"TERMINATION DATE"), on one or more occasions when the Company shall have
received the written request of a Stockholder or holders of at least 2,500,000
Registrable Shares in the aggregate (as such number of shares may be adjusted in
the event of any change in the capital stock of the Company by reason of stock
dividends, split-ups, reverse split-ups, mergers, recapitalizations,
subdivisions, conversions, exchanges of shares or the like) that have been
acquired directly or indirectly from Stockholder and to which rights under this
Section 1 shall have been assigned pursuant to Section 14(a) (each such person,
when requesting registration under this Section 1 or under Section 2 and
thereafter in connection with any such registration, being hereinafter referred
to as a "REGISTERING STOCKHOLDER"), the Company shall give written notice of the
receipt of such request to each
potential Registering Stockholder, each person known by the Company to have
rights under Other Agreements with respect to the registration of the
disposition of shares of Company Common Stock (each such person, when requesting
registration under this Section 1 or Section 2, or similar provisions in the
Other Agreements, and thereafter in connection with any such registration, being
hereafter referred to as an "OTHER REGISTERING STOCKHOLDER") and each other
person known by the Company to have rights with respect to the registration
under the Securities Act of the disposition of securities of the Company. The
Company shall use reasonable best efforts as promptly as practicable to include
in a Registration Statement the Registrable Shares owned by the Registering
Stockholders and the Other Registrable Shares owned by the Other Registering
Stockholders (all such Registrable Shares and Other Registrable Shares,
collectively, "TRANSACTION REGISTRABLE SHARES") that in each case shall have
been duly specified by such Registering Stockholders and Other Registering
Stockholders by written notice received by the Company not later than 20
Business Days after the Company shall have given written notice to the
Registering Stockholders and the Other Registering Stockholders pursuant to this
Section 1(a).
(b) If the Registering Stockholders initiating a request for
registration of Registrable Shares pursuant to Section 1(a) shall state in such
written notice that they intend to distribute the Transaction Registrable Shares
covered by their request by means of an underwritten offering, the Company shall
include such information in the written notice delivered by the Company pursuant
to Section 1(a). If, on the one hand, at the time the Registering Stockholders
deliver such written notice to the Company, the Registering Stockholders are the
Beneficial Owners of 20% or more of the shares of the Company Common Stock, then
the Registering Stockholders shall select the managing underwriter of the
offering and any additional investment bankers and managers to be used in
connection with the offering, in each case with the consent of the Company,
which consent shall not be unreasonably withheld, conditioned or delayed. If, on
the other hand, at the time the Registering Stockholders deliver such written
notice to the Company, the Registering Stockholders are the Beneficial Owners of
less than 20% of the shares of the Company Common Stock, then the Company shall
select the managing underwriter for the offering and any additional investment
bankers and managers to be used in connection with the offering, in each case
with the consent of the Registering Stockholders and Other Registering
Stockholders holding a majority of the Transaction Registrable Shares, which
consent shall not be unreasonably withheld, conditioned or delayed.
(c) Notwithstanding anything herein to the contrary:
(1) The Company shall not be required to prepare and file pursuant
to this Section 1, and the Company shall be entitled not to file and,
if filed, to withdraw a Registration Statement including less than
2,500,000 Transaction Registrable Shares in the aggregate (as such
number of shares may be adjusted in the event of any change in the
capital stock of the Company by reason of stock dividends, split-ups,
reverse split-ups, mergers, recapitalizations, subdivisions,
conversions, exchanges of shares or the like);
(2) subject to the following clause (3) and Section 2(b), the
Company shall not be required to prepare and file pursuant to this
Section 1 more than eight
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(8) Registration Statements in the aggregate; provided that a
Registration Statement shall be deemed not to have been prepared and
filed if (A) the Registration Statement (i) is -------- withdrawn by
Registering Stockholders pursuant to Section 4(c) or (ii) does not
become effective for any other reason except (x) the withdrawal
therefrom of 30% or more of the Transaction Registrable Shares
requested to be included in such registration statement or the
determination by Registering Stockholders and Other Registering
Stockholders owning 30% or more of such Transaction Registrable Shares
not to proceed with the contemplated distribution of such Transaction
Registrable Shares or (y) the withdrawal of the Registration Statement
by the Company pursuant to Section 1(c)(1), (B) the Company fails to
use reasonable best efforts to cause the Registration Statement to
remain effective under the Securities Act and the Prospectus to remain
current during the entire period referred to in Section 3(e), as the
same may be extended pursuant to Section 4(d), or (C) the Company
withdraws the Registration Statement pursuant to Section 5 before the
Registering Stockholders have sold all the Transaction Registrable
Shares owned by them in accordance with the manner of distribution
contemplated by the Registration Statement with respect to such
Transaction Registrable Shares;
(3) the Company shall not be required to prepare and file a
Registration Statement pursuant to this Section 1 during the period
from the date of filing of a registration statement of the Company
involving an underwritten offering of any Equity Securities of the
Company to the date that is the earlier of (A) the date of the
withdrawal of the registration statement or the request to file the
registration statement by the security holder requesting the
registration and (B) the date that is 90 days following the effective
date of the registration statement;
(4) if a requested registration pursuant to this Section 1 shall
involve an underwritten offering, and if the managing underwriter shall
advise the Company, the Registering Stockholders and the Other
Registering Stockholders in writing that, in its opinion, the number of
Transaction Registrable Shares proposed to be included in the
registration is so great as to adversely affect the offering, including
the price at which the Transaction Registrable Shares could be sold,
the Company shall include in the registration the maximum number of
securities which it is so advised can be sold without the adverse
effect, allocated as follows:
(A) first, all Transaction Registrable Shares duly requested
to be included in the registration, allocated pro rata among all
Registering Stockholders and Other Registering Stockholders on
the basis of the relative number of Transaction Registrable
Shares that each Registering Stockholder or Other Registering
Stockholder shall have duly requested to be included in the
registration or such other basis as the Registering Stockholders
and the Other Registering Stockholders shall agree; and
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(B) second, any other securities proposed to be registered
by the Company other than for its own account, including, without
limitation, securities proposed to be registered by the Company
pursuant to the exercise by any person other than a Registering
Stockholder or an Other Registering Stockholder of a "piggy-back"
right requesting the registration of shares of Common Stock
pursuant to an agreement with the Company in existence as of the
date of this Agreement that expressly provides, in effect, that
the Company is required to include such shares of Common Stock in
the Registration Statement;
provided that if 30% or more of the Transaction Registrable
Shares requested to be included in a registration pursuant to
this Section 1 are so excluded from any registration and an
investment banking firm of recognized national standing shall
advise the Company that the number of the Transaction Registrable
Shares requested to be registered, at the time of the request and
in light of the market conditions then prevailing, did not exceed
the number that would have an adverse effect on the offering of
such Transaction Registrable Shares, including the price of which
such Transaction Registrable Shares could be sold, there shall be
provided one additional registration under the preceding clause
(2) in respect of each such exclusion or series of related
exclusions; and
(5) before the Registration Statement becomes effective, any
Registering Stockholder may withdraw from the registration any
Transaction Registrable Shares owned by the Registering Stockholder;
provided that, subject to Section 1(c)(1), withdrawal of Transaction
Registrable Shares shall not relieve the Company from its obligations
under this Agreement with respect to Transaction Registrable Shares
that are not withdrawn from the Registration Statement;
SECTION 2. PIGGY-BACK REGISTRATION RIGHTS.
(a) From and after the date of this Agreement to and including the date
that is the 10th anniversary of the date of this Agreement, if the Company shall
determine to register or qualify by a registration statement filed under the
Securities Act and under any applicable state securities laws, any offering of
any Equity Securities of the Company, other than an offering with respect to
which a Registering Stockholder shall have requested a registration pursuant to
Section 1, the Company shall give notice of such determination to each potential
Registering Stockholder, each potential Other Registering Stockholder and each
other person known by the Company to have rights with respect to the
registration under the Securities Act of the disposition of securities of the
Company. The Company shall use reasonable best efforts as promptly as
practicable to include in a Registration Statement the Transaction Registrable
Shares that in each case shall have been duly specified by such Registering
Stockholders and Other Registering Stockholders by written notice received by
the Company not later than 20 Business Days after the Company shall have given
written notice to the Registering Stockholders and the Other Registering
Stockholders pursuant to this Section 2(a).
(b) Notwithstanding anything herein to the contrary:
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(1) the Company shall not be required by this Section 2 to
include any Registrable Shares or Other Registrable Shares in (A) a
registration statement on Form S-4 or S-8 (or any successor form), (B)
a registration statement filed in connection with an exchange offer or
other offering of securities solely to the then existing stockholders
of the Company or (C) a registration statement required pursuant to the
exercise by any person other than a Registering Stockholder or an Other
Registering Stockholder of a "demand" right requesting the registration
of shares of Company Common Stock pursuant to an agreement with the
Company in existence as of the date of this Agreement that expressly
provides, in effect, that the Company may not include any Registrable
Shares in the registration statement;
(2) if a registration pursuant to this Section 2 involves an
underwritten offering, the Company shall select the managing
underwriter for the offering and any additional investment bankers and
managers to be used in connection with the offering, and if the
managing underwriter advises the Company in writing that, in its
opinion, the number of securities requested to be included in the
registration is so great as to adversely affect the offering, including
the price at which the securities could be sold, the Company shall
include in the registration the maximum number of securities which it
is so advised can be sold without the adverse effect, allocated as
follows:
(A) FIRST, all securities proposed to be registered by the
Company for its own account;
(B) SECOND, all securities proposed to be registered by the
Company pursuant to the exercise by any person other than a
Registering Stockholder or an Other Registering Stockholder of a
"demand" right requesting the registration of shares of Company
Common Stock pursuant to an agreement with the Company in
existence as of the date of this Agreement;
(C) THIRD, all securities proposed to be registered by the
Company other than for its own account pursuant to the exercise
by any person other than a Registering Stockholder or an Other
Registering Stockholder of a "piggy-back" right requesting the
registration of shares of Company Common Stock pursuant to an
agreement with the Company in existence as of the date of this
Agreement that expressly provides, in effect, that no securities
of the Company other than those referred to in the preceding
clauses (A) and (B) shall be included in such registration unless
all shares of Company Common Stock requested by such person to be
included in such registration are so included; and
(D) FOURTH, any other securities proposed to be registered
by the Company other than for its own account, including, without
limitation, Transaction Registrable Shares duly requested to be
included in the registration and securities proposed to be
registered by the Company
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pursuant to the exercise by any person other than a Registering
Stockholder or an Other Registering Stockholder of a "piggy-back"
right requesting the registration of shares of Company Common
Stock pursuant to an agreement with the Company, allocated pro
rata among all Registering Stockholders, Other Registering
Stockholders and such other persons on the basis of the relative
number of Transaction Registrable Shares or other securities that
each Registering Stockholder, Other Registering Stockholder or
other person has duly requested to be included in such
registration;
PROVIDED that if 30% or more of the Transaction Registrable
Shares requested to be included in a registration pursuant to
this Section 2 are so excluded from any registration and an
investment banking firm of recognized national standing shall
advise the Company that the number of the Transaction Registrable
Shares requested to be registered, at the time of the request and
in light of the market conditions then prevailing, did not exceed
the number that would have an adverse effect on the offering of
such Transaction Registrable Shares, including the price of which
such Transaction Registrable Shares could be sold, there shall be
provided one additional registration under Section 1(c)(2) in
respect of each such exclusion or series of related exclusions;
(3) before the Registration Statement becomes effective, any
Registering Stockholder may withdraw from the registration any
Transaction Registrable Shares owned by the Registering Stockholder;
PROVIDED that, subject to Section 2(b)(4), the withdrawal of
Transaction Registrable Shares shall not relieve the Company from its
obligations under this Agreement with respect to Transaction
Registrable Shares that are not withdrawn from the Registration
Statement; and
(4) the Company may withdraw the Registration Statement at any
time before it becomes effective.
SECTION 3. REGISTRATION PROVISIONS. With respect to each registration
pursuant to this Agreement:
(a) Notwithstanding anything herein to the contrary, the Company shall
not be required to include in any registration any of the Registrable Shares
owned by a Registering Stockholder if (1) the Company shall deliver to the
Registering Stockholder an opinion, satisfactory in form, scope and substance to
the Registering Stockholder and addressed to the Registering Stockholder by
legal counsel satisfactory to the Registering Stockholder, to the effect that
the distribution of such Registrable Shares proposed by the Registering
Stockholder is exempt from registration under the Securities Act and all
applicable state securities laws, (2) such Registering Stockholder or any
underwriter of such Registrable Shares shall fail to furnish to the Company the
information in respect of the distribution of such Registrable Shares that may
be required under this Agreement to be furnished by the Registering Stockholder
or the underwriter to the Company or (3) if such registration involves an
underwritten offering, such
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Registrable Shares are not included in such underwritten offering on the same
terms and conditions as shall be applicable to the other securities being sold
through underwriters in the registration or the Registering Stockholder fails to
enter into an underwriting agreement in customary form with the underwriter or
underwriters selected for such underwritten offering.
(b) The Company shall make available for inspection by each Registering
Stockholder participating in the registration, each underwriter of Transaction
Registrable Shares owned by the Registering Stockholder and their respective
accountants, counsel and other representatives all financial and other records,
pertinent corporate documents and properties of the Company as shall be
reasonably necessary to enable them to exercise their due diligence
responsibility in connection with each registration of Transaction Registrable
Shares owned by the Registering Stockholder, and shall cause the Company's
officers, directors and employees to supply all information reasonably requested
by any such person in connection with such registration; provided that records
and documents which the Company determines, in good faith, after consultation
with counsel for the Company and counsel for the Registering Stockholder or
underwriter, as the case may be, to be confidential and which it notifies such
persons are confidential shall not be disclosed to them, except in each case to
the extent that (1) the disclosure of such records or documents is necessary to
avoid or correct a misstatement or omission in the Registration Statement or (2)
the release of such records or documents is ordered pursuant to a subpoena or
other order from a court of competent jurisdiction. Each Registering Stockholder
shall, upon learning that disclosure of any such records or documents is sought
in a court of competent jurisdiction, give notice to the Company, and allow the
Company, at the Company's expense, to undertake appropriate action and to
prevent disclosure of any such records or documents deemed confidential.
(c) Each Registering Stockholder shall furnish, and shall cause each
underwriter of Transaction Registrable Shares owned by the Registering
Stockholder to be distributed pursuant to the registration to furnish, to the
Company in writing promptly upon the request of the Company the information
regarding the Registering Stockholder or the underwriter, the contemplated
distribution of the Transaction Registrable Shares and the other information
regarding the proposed distribution by the Registering Stockholder and the
underwriter that shall be required in connection with the proposed distribution
by the applicable securities laws of the United States of America and the states
thereof in which the Transaction Registrable Shares are contemplated to be
distributed. The information furnished by any Registering Stockholder or any
underwriter shall be certified by the Registering Stockholder or the
underwriter, as the case may be, and shall be stated to be specifically for use
in connection with the registration.
(d) The Company shall use reasonable best efforts to prepare and file
with the Securities and Exchange Commission the Registration Statement,
including the Prospectus, and each amendment thereof or supplement thereto,
under the Securities Act and as required under any applicable state securities
laws, on the form that is then required or available for use by the Company to
permit each Registering Stockholder, upon the effective date of the Registration
Statement, to use the Prospectus in connection with the contemplated
distribution by the Registering Stockholder of the Transaction Registrable
Shares requested to be so registered. A registration pursuant to Section 1 shall
be effected pursuant to Rule 415 (or any similar provision then in force) under
the Securities Act if the manner of distribution contemplated by the
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Registering Stockholder initiating the request for such registration shall
include an offering on a delayed or continuous basis. The Company shall furnish
to each Registering Stockholder drafts of the Registration Statement and the
Prospectus and each amendment thereof or supplement thereto for its timely
review prior to the filing thereof with the Securities and Exchange Commission
and shall use its reasonable best efforts to reflect in each such document, when
so filed with the Securities and Exchange Commission, such comments as the
Registering Stockholder reasonably may propose. If any Registration Statement
refers to any Registering Stockholder by name or otherwise as the holder of any
securities of the Company but such reference is not required by the Securities
Act or any similar federal statute then in force, then the Registering
Stockholder shall have the right to require, the deletion of such reference. The
Company shall deliver to each Registering Stockholder, without charge, such
number of copies of the Registration Statement and each amendment or
post-effective amendment thereof and such number of copies of each document
incorporated therein by reference as the Registering Stockholder may reasonably
request. If the registration shall have been initiated solely by the Company or
shall not have been initiated by a Registering Stockholder, the Company shall
not be obligated to prosecute the registration, and may withdraw the
Registration Statement at any time prior to the effectiveness thereof, if the
Company shall determine in good faith not to proceed with the offering of
securities included in the Registration Statement. In all other cases, the
Company shall use reasonable best efforts to cause the Registration Statement to
become effective and, as soon as practicable after the effectiveness thereof,
shall deliver to each Registering Stockholder evidence of the effectiveness and
such number of copies of the Prospectus including any preliminary prospectus and
each amendment thereof or supplement thereto as the Registering Stockholder may
reasonably request. The Company consents to the use by each Registering
Stockholder of each Prospectus and each amendment thereof and supplement thereto
in connection with the distribution, in accordance with this Agreement, of the
Transaction Registrable Shares owned by the Registering Stockholder. In
addition, the Company shall qualify or register under the securities laws or
blue sky laws of such states as may be reasonably requested by each Registering
Stockholder with respect to the Transaction Registrable Shares of the
Registering Stockholder that shall have been included in the Registration
Statement, and to continue such registration or qualification in effect for so
long as such Registration Statement remains in effect; provided that the Company
shall not be obligated to file any general consent to service of process or to
qualify as a foreign corporation in any state in which it is not subject to
process or qualified as of the date of the request. The Company shall advise
each Stockholder and each Registering Stockholder in writing, promptly after the
occurrence of any of the following, of (1) the filing of the Registration
Statement or any Prospectus, or any amendment thereof or supplement thereto,
with the Securities and Exchange Commission, (2) the effectiveness of the
Registration Statement and any post-effective amendment thereto, (3) the receipt
by the Company of any communication from the Securities Exchange Commission with
respect to the Registration Statement or the Prospectus, or any amendment
thereof or supplement thereto, including, without limitation, any stop order
suspending the effectiveness thereof, any comments with respect thereto and any
requests for amendments or supplements and (4) the receipt by the Company of any
notification with respect to the suspension of the qualification of Transaction
Registrable Shares owned by the Registering Stockholders for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose.
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(e) The Company shall use reasonable best efforts to cause the
Registration Statement to remain effective under the Securities Act and the
Prospectus to remain current, including the filing of necessary amendments,
post-effective amendments and supplements, and shall furnish copies of such
amendments, post-effective amendments and supplements to the Registering
Stockholders, so as to permit the Registering Stockholders to distribute the
Transaction Registrable Shares owned by them in their respective manner of
distribution during their respective contemplated periods of distribution, but
in no event longer than the earlier of six consecutive months from the effective
date of the Registration Statement and the consummation of the distribution of
the Transaction Registrable Shares included in such registration; provided that
the period shall be increased by the number of days that any Registering
Stockholder shall have been required by Section 4 to refrain from disposing
under the registration any of the Transaction Registrable Shares owned by the
Registering Stockholder. During such respective contemplated periods of
distribution, the Company shall comply with the provisions of the Securities Act
applicable to it with respect to the disposition of all Transaction Registrable
Shares owned by the Registering Stockholders that shall have been included in
the Registration Statement in accordance with their respective contemplated
manner of disposition by the Registering Stockholders set forth in the
Registration Statement, the Prospectus or the supplement, as the case may be.
(f) Any obligation of the Company under this Agreement, including any
obligation to use its reasonable best efforts or take such actions as are
reasonably required shall not preclude the Company from taking any action or
omitting to take any action (other than omitting to file necessary amendments,
post-effective amendments and supplements if a Suspension Notice or Termination
Notice is not then in effect pursuant to Section 4 or Section 5, respectively)
that would result in the Company issuing a Suspension Notice or Termination
Notice.
(g) The Company shall notify each Registering Stockholder, at any time
when a prospectus with respect to the Transaction Registrable Shares owned by
the Registering Stockholders is required to be delivered under the Securities
Act, when the Company becomes aware of the happening of any event as a result of
which the Prospectus (as then in effect) contains any untrue statement of a
material fact or omits to state a material fact necessary to make the statements
therein (in the case of the Prospectus or any preliminary prospectus, in light
of the circumstances under which they were made) not misleading; and, as
promptly as practicable thereafter, but subject to Sections 4 and 5, the Company
shall use reasonable best efforts to prepare and file with the Securities and
Exchange Commission an amendment or supplement to the Registration Statement or
the Prospectus so that, as thereafter delivered to the purchasers of such
Transaction Registrable Shares, such Prospectus will not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading. The Company also shall notify each Registering
Stockholder, when the Company becomes aware of the occurrence thereof, of the
issuance by the Securities and Exchange Commission of an order suspending the
effectiveness of the Registration Statement; as promptly as practicable
thereafter, but subject to Sections 4 and 5, the Company shall use reasonable
best efforts to obtain the withdrawal of such order at the earliest possible
moment.
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(h) If requested by any Registering Stockholder or an underwriter of
Transaction Registrable Shares owned by the Registering Stockholder, the Company
shall as promptly as practicable prepare and file with the Securities and
Exchange Commission an amendment or supplement to the Registration Statement or
the Prospectus containing such information as the Registering Stockholder or the
underwriter requests to be included therein, including, without limitation,
information with respect to the Transaction Registrable Shares being sold by the
Registering Stockholder to the underwriter, the purchase price being paid
therefor by such underwriter and other terms of the underwritten offering of the
Transaction Registrable Shares to be sold in such offering.
(i) Each Stockholder shall (1) offer to sell or otherwise distribute
Registrable Shares in reliance upon a registration contemplated pursuant to
Section 1 or 2 only (A) if the Stockholder is a Registering Stockholder and the
Registrable Securities are Transaction Registrable Securities and (B) after the
related Registration Statement shall have been filed with the Securities and
Exchange Commission, (2) sell or otherwise distribute Registrable Shares in
reliance upon such registration only (A) if the Stockholder is a Registering
Stockholder and the Registrable Securities are Transaction Registrable
Securities and (B) the related Registration Statement is then effective under
the Securities Act, (3) not sell or otherwise distribute Transaction Registrable
Securities in reliance upon a registration contemplated by Section 1 or 2 during
any period specified in a Suspension Notice delivered to the Registering
Stockholder pursuant to Section 4 or after receiving a Termination Notice
pursuant to Section 5 (until the Registering Stockholder shall have received
written notice from the Company pursuant to Section 3(d) that the registration
of such Transaction Registrable Shares is again effective), (4) distribute
Transaction Registrable Shares only in accordance with the manner of
distribution contemplated by the Prospectus with respect to the Transaction
Registrable Shares owned by the Registering Stockholder and (5) report to the
Company distributions made by the Registering Stockholder of Transaction
Registrable Shares pursuant to the Prospectus. Each Registering Stockholder, by
participating in a registration pursuant to this Agreement, acknowledges that
the remedies of the Company at law for failure by the Registering Stockholder to
comply with the undertaking contained in this paragraph (i) would be inadequate
and that the failure would not be adequately compensable in damages and would
cause irreparable harm to the Company, and therefore agrees that undertakings
made by the Registering Stockholder in this paragraph (i) may be specifically
enforced.
(j) If the registration involves an underwritten offering, each
Registering Stockholder shall cause the underwriter or underwriters selected for
such underwriting to enter into an underwriting agreement in customary form and
shall enter into such Underwriting Agreement with such underwriter or
underwriters.
(k) If the registration involves an underwritten offering, the Company
shall enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for such underwriting and shall deliver to
each Registering Stockholder, its counsel and each underwriter of Transaction
Registrable Shares owned by the Registering Stockholders to be distributed
pursuant to such registration, the certificates, opinions of counsel and comfort
letters that are customarily delivered in connection with underwritten
offerings.
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(l) Before sales of Transaction Registrable Shares under a Registration
Statement, the Company shall cooperate with each Registering Stockholder and
each underwriter of Transaction Registrable Shares owned by the Registering
Stockholder to facilitate the timely preparation and delivery of certificates
(not bearing any restrictive legends) representing the Transaction Registrable
Shares to be sold under the Registration Statement and to enable such
Transaction Registrable Shares to be in such denominations and registered in
such names as the Registering Stockholder or the underwriter may request.
(m) The Company shall use reasonable best efforts to (1) comply with
all applicable rules and regulations of the Securities and Exchange Commission,
and (2) make available to its securityholders, as soon as reasonably
practicable, an earning statement covering the period of at least twelve months,
but not more than eighteen months, beginning with the first calendar month after
the effective date of the Registration Statement, which earning statement shall
satisfy the provisions of Section 11(a) of the Securities Act.
(n) The Company shall use reasonable best efforts to cause the
Transaction Registrable Shares to be listed on each national securities exchange
on which Company Common Stock shall then be listed, if any, and to be qualified
for inclusion in the NASDAQ/National Market, as the case may be, if Company
Common Stock is then so qualified, and in each case if the listing or inclusion
of the Transaction Registrable Shares is then permitted under the rules of such
national securities exchange or the NASD, as the case may be.
(o) For the purposes of this Agreement, the following terms shall have
the following meanings:
(1) "BENEFICIAL OWNER" has the meaning given to it in Rule 13d-3
of the Exchange Act and the rules and regulations promulgated
thereunder;
(2) "BUSINESS DAY" means any day excluding Saturday, Sunday and
any day which is a legal holiday under the laws of the State of
Colorado or is a day on which banking institutions located in such
state are authorized or required by law or other governmental action to
close;
(3) "EQUITY SECURITIES" of a person means the capital stock of
the person and all other securities convertible into or exchangeable or
exercisable for any shares of its capital stock, all rights or warrants
to subscribe for or to purchase, all options for the purchase of, and
all calls, commitments or claims of any character relating to, any
shares of its capital stock and any securities convertible into or
exchangeable or exercisable for any of the foregoing;
(4) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended;
(5) "PROSPECTUS" means (A) the prospectus relating to the
Transaction Registrable Shares owned by the Registering Stockholders
included in a Registration Statement, (B) if a prospectus relating to
the Transaction Registrable Shares shall be filed with the Securities
and Exchange Commission pursuant to Rule 424 (or any similar provision
then in force) under the Securities Act, such
11
prospectus, and (C) in the event of any amendment or supplement to the
prospectus after the effective date of the Registration Statement, then
from and after the effectiveness of the amendment or the filing with
the Securities and Exchange Commission of the supplement, the
prospectus as so amended or supplemented;
(6) "REGISTRATION STATEMENT" means (A) a registration
statement filed by the Company in accordance with Section 3(d),
including exhibits and financial statements thereto, in the form in
which it shall become effective, the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 (or any similar
provision or forms then in force) under the Securities Act and
information deemed to be a part of such registration statement pursuant
to paragraph (b) of Rule 430A (or any similar provision then in force)
and (B) in the event of any amendment thereto after the effective date
of the registration statement, then from and after the effectiveness of
the amendment, the registration statement as so amended; and
(7) information "CONTAINED", "INCLUDED" or "STATED" in a
Registration Statement or a Prospectus (or other references of like
import) includes information incorporated by reference.
SECTION 4. BLACKOUT PROVISIONS.
(a) Notwithstanding anything in this Agreement to the contrary, by
delivery of written notice to any of the Registering Stockholders and the other
holders of Registrable Shares (a "SUSPENSION NOTICE"), stating which one or more
of the following limitations shall apply to the addressee of such Suspension
Notice, the Company may (1) postpone effecting a registration under this
Agreement, or (2) require such addressee to refrain from disposing of
Transaction Registrable Shares under the registration, in either case for a
reasonable time specified in the notice but not exceeding 90 days (which period
may not be extended or renewed).
(b) The Company may postpone effecting a registration or apply to any
person specified in clause (2) of Section 4(a) any of the limitations on
dispositions specified in such clause if (1) the Company in good faith
determines that such registration or disposition would materially impede, delay
or interfere with any material financing, offer or sale of Equity Securities or
debt securities of the Company, acquisition, disposition or other material
transaction by the Company or any of its material subsidiaries, (2) an
investment banking firm of recognized national standing shall advise the Company
in writing that effecting the registration or the disposition by such person of
Registrable Shares or other Equity Securities of the Company, as the case may
be, would materially and adversely affect an offering of Equity Securities of
the Company, by the Company for its own account the preparation of which had
then been commenced, or (3) the Company in good faith determines that the
Company is in possession of material non-public information the disclosure of
which during the period specified in such notice the Company reasonably believes
would not be in the best interests of the Company; provided that the Company may
not take any action pursuant to this Section 4(b) for a period of time in excess
of 90 days in any one year period.
12
(c) If the Company shall take any action pursuant to Section 4(a) with
respect to a Registering Stockholder or other holder of Registrable Shares in
connection with a registration, then (1) not later than 30 days after the action
is taken, Registering Stockholders and Other Registering Stockholders holding a
majority of the Transaction Registrable Shares may by written notice to the
Company elect to withdraw a registration that shall have been requested pursuant
to Section 1 or (2) if the registration shall not have been withdrawn pursuant
to the preceding clause (1), the period during which the Registering Stockholder
may exercise its rights under Sections 1 and 2 shall be extended by one day
beyond the Termination Date for each day that, pursuant to Section 4(a), the
Company postpones effecting a registration, requires the Registering Stockholder
or other holder to refrain from disposing of Transaction Registrable Shares
under a registration or otherwise requires the Registering Stockholder or other
holder to refrain from disposing of Registrable Shares.
(d) If the Company shall take any action pursuant to clause 2 of
Section 4(a) with respect to any Registering Stockholder or other holder of
Registrable Shares in a period during which the Company shall be required under
Section 3(e) to cause the Registration Statement to remain effective under the
Securities Act and the Prospectus to remain current, such period shall be
extended for such person by one day beyond the end of such period for each day
that, pursuant to Section 4(a), the Company shall require such person to refrain
from disposing of Transaction Registrable Shares owned by such person.
SECTION 5. TERMINATION PROVISIONS.
(a) Notwithstanding anything in this Agreement to the contrary, if, in
the opinion of counsel for the Company (which counsel shall be reasonably
acceptable to the Registering Stockholder, provided that O'Melveny & Myers LLP
and Holme Roberts & Owen LLP shall be deemed reasonably acceptable to the
Registering Stockholder for purposes of this Section 5(a)), there shall have
arisen any legal impediment to the offering of Transaction Registrable Shares
pursuant to this Agreement or if any legal action or administrative proceeding
shall have been instituted or threatened or any other claim shall have been made
relating to the registration or the offer made by the related prospectus or
against any of the parties involved in the offering, the Company may at any time
upon written notice (a "TERMINATION NOTICE") to each Registering Stockholder
participating in the registration (1) terminate the effectiveness of the related
Registration Statement or (2) withdraw from the Registration Statement the
Transaction Registrable Shares owned by the Registering Stockholder; provided
that, promptly after those matters shall be resolved to the satisfaction of
counsel for the Company, then the Company shall notify each affected Registering
Stockholder in writing that such matters have been resolved and, pursuant to
Section 1 or 2, as the case may be, shall, upon the written direction of such
affected Registering Stockholder and subject to the limitations in Section 1(b)
or elsewhere herein, cause the registration of Transaction Registrable Shares
formerly covered by the Registration Statement that were removed from
registration by the action of the Company.
(b) If the Company shall take any action pursuant to Section 5(a) with
respect to a Registering Stockholder or other holder of Registrable Shares, then
the period during which the Registering Stockholder may exercise its rights
under Sections 1 and 2 shall be extended by one day beyond the Termination Date
for a number of days equal to (1) the number of days during which the Company
shall be required under Section 3(e) to cause the Registration
13
Statement to remain effective under the Securities Act and the Prospectus to
remain current minus (2) the number of days during which the Registration
Statement was effective before the date of the action taken pursuant to Section
5(a).
SECTION 6. EXPENSES.
(a) The Company shall pay all expenses (other than underwriting
discounts and commissions in respect of the Transaction Registrable Shares)
incurred in connection with the performance of its obligations under Sections 1
and 2 hereof, whether or not any related Registration Statement shall become
effective including, without limitation:
(1) preparing, printing and filing each Registration Statement
and Prospectus and each qualification or notice required to be filed
under federal and state securities laws or the rules and regulations of
the National Association of Securities Dealers, Inc. (the "NASD") in
connection with a registration pursuant to Section 1 or Section 2;
(2) all fees and expenses of complying with federal and state
securities laws and the rules and regulations of the NASD;
(3) furnishing to each Registering Stockholder such number of
copies of the related Registration Statement and the number of copies
of the related Prospectus that may be required by Sections 3(d) and
3(e) to be so furnished, together with a like number of copies of each
amendment, post-effective amendment or supplement;
(4) performing its obligations under Sections 3(d), 3(e) and
3(k);
(5) printing and issuing share certificates, including the
transfer agent's and registrar's fees, in connection with each
distribution so registered;
(6) preparing audited financial statements required by the
Securities Act and the rules and regulations thereunder to be included
in the Registration Statement and preparing audited financial
statements for use in connection with the registration other than
audited financial statements required by the Securities Act and the
rules and regulations thereunder, including fees and expenses of the
Company's outside independent accountants (including any fees and
expenses in connection with any comfort letters and any special audits
incident to or required by any registration or qualification);
(7) internal expenses of the Company (including, without
limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties);
(8) premiums or other expenses relating to liability insurance
required by the Company or underwriters of the Registering
Stockholders;
14
(9) fees and disbursements of underwriters of the Registering
Stockholders customarily paid by issuers or sellers of securities;
(10) listing of the Registrable Shares on national securities
exchanges and inclusion of the Registrable Shares on the
NASDAQ/National Market; and
(11) fees and expenses of any special experts retained by the
Company in connection with the registration including fees and
disbursements of the Company's outside counsel.
(b) The Registering Stockholders shall bear all other expenses incident
to the distribution by the respective Registering Stockholders of the
Transaction Registrable Shares owned by them in connection with a registration
pursuant to this Agreement, including, without limitation (but excluding the
expenses referred to in paragraph (a)(8) above), the selling expenses of the
Registering Stockholders, commissions, underwriting discounts, insurance and
fees of counsel for the Registering Stockholders.
SECTION 7. INDEMNIFICATION.
(a) The Company shall indemnify and hold harmless each Registering
Stockholder participating in a registration pursuant to this Agreement, each
underwriter of Transaction Registrable Shares owned by the Registering
Stockholder to be distributed pursuant to the registration, each partner in the
Registering Stockholder, the officers and directors of the Registering
Stockholder and the underwriter and each person, if any, who controls the
Registering Stockholder, any partner in the Registering Stockholder or the
underwriter within the meaning of Section 15 (or any successor provision) of the
Securities Act, and their respective successors, against all claims, losses,
damages and liabilities to third parties (or actions in respect thereof) arising
out of or based on any untrue statement (or alleged untrue statement) of a
material fact contained in the Registration Statement or the Prospectus or other
document incident thereto 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, and shall reimburse each such Registering
Stockholder and each other person indemnified pursuant to this Section 7(a) for
any legal and any other expenses reasonably incurred in connection with
investigating or defending any such claim, loss, damage, liability or action;
provided that the Company shall not be liable in any case to the extent that any
such claim, loss, damage or liability arises out of or is based on any untrue
statement or omission based upon written information furnished to the Company by
the Registering Stockholder or the underwriter of such Transaction Registrable
Shares specifically for use in the Registration Statement or the Prospectus.
(b) Each Registering Stockholder, by participating in a registration
pursuant to this Agreement, thereby agrees to indemnify and to hold harmless the
Company and its officers and directors and each person, if any, who controls any
of them within the meaning of Section 15 (or any successor provision) of the
Securities Act, and their respective successors, against all claims, losses,
damages and liabilities to third parties (or actions in respect thereof) arising
out of or based upon any untrue statement (or alleged untrue statement) of a
material fact contained in the Registration Statement or the Prospectus or other
document incident thereto or any omission (or alleged omission) to state therein
a material fact required to be stated therein or necessary to
15
make the statements therein not misleading, and shall reimburse the Company and
each other person indemnified pursuant to this Section 7(b) for any legal and
any other expenses reasonably incurred in connection with investigating or
defending any such claim, loss, damage, liability or action; provided that (x)
this Section 7(b) shall apply only if (and only to the extent that) the
statement or omission was made in reliance upon and in conformity with
information furnished to the Company in writing by the Registering Stockholder
specifically for use in the Registration Statement or the Prospectus and (y) in
no event shall the liability of a Registering Stockholder under this Section 7
exceed the amount of the gross proceeds paid to the Registering Stockholder in
consideration of the sale of Transaction Registrable Shares pursuant to such
registration.
(c) If any action or proceeding (including any governmental
investigation or inquiry) shall be brought, asserted or threatened against any
person indemnified under this Section 7, the indemnified person shall promptly
notify the indemnifying party in writing, and the indemnifying party shall
assume the defense of the action or proceeding, including the employment of
counsel satisfactory to the indemnified person and the payment of all expenses.
The indemnified person shall have the right to employ separate counsel in any
action or proceeding and to participate in the defense of the action or
proceeding, but the fees and expenses of that counsel shall be at the expense of
the indemnified person unless:
(1) the indemnifying party shall have agreed to pay those fees
and expenses; or
(2) the indemnifying party shall have failed to assume the
defense of the action or proceeding or shall have failed to employ
counsel reasonably satisfactory to the indemnified person in the action
or proceeding; or
(3) the named parties to the action or proceeding (including any
impleaded parties) include both the indemnified person and the
indemnifying party, and the indemnified person shall have been advised
by counsel that there may be one or more legal defenses available to
the indemnified person that are different from or additional to those
available to the indemnifying party (in which case, if the indemnified
person notifies the indemnifying party in writing that it elects to
employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of
such action or proceeding on behalf of the indemnified person; it being
understood, however, that the indemnifying party shall not, in
connection with any one action or proceeding or separate but
substantially similar or related actions or proceedings in the same
jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more
than one separate firm of attorneys at any time for the indemnified
person, which firm shall be designated in writing by the indemnified
person).
The indemnifying party shall not be liable for any settlement of any action or
proceeding effected without its written consent, but if settled with its written
consent, or if there be a final judgment for the plaintiff in any such action or
proceeding, the indemnifying party shall indemnify and hold harmless the
indemnified person from and against any loss or liability by reason of the
settlement or judgment.
16
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified person (other than by reason of exceptions
provided in this Section 7) in respect of losses, claims, damages, liabilities
or expenses referred to in this Section 7, then each applicable indemnifying
party, in lieu of indemnifying the indemnified person, shall contribute to the
amount paid or payable by the indemnified person as a result of the losses,
claims, damages, liabilities or expenses in such proportion as is appropriate to
reflect the relative fault of the indemnifying party on the one hand and of the
indemnified person on the other in connection with the statements or omissions
which resulted in the losses, claims, damages, liabilities or expenses as well
as any other relevant equitable considerations. The relative fault of the
indemnifying party on the one hand and of the indemnified person on the other
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 person and by these persons' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The parties agree that it would not be just and equitable
if contribution pursuant to this Section 7(d) were determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to in the immediately preceding sentence.
The amount paid or payable by a person as a result of the losses, claims,
damages, liabilities and expenses shall be deemed to include any legal or other
fees or expenses reasonably incurred by the person in connection with
investigating or defending any action or claim. Notwithstanding in the foregoing
to the contrary, no Registering Stockholder or underwriter of Transaction
Registrable Shares owned by the Registering Stockholder shall be required to
contribute any amount in excess of the amount by which (1) in the case of the
Registering Stockholder, the gross proceeds paid to the Registering Stockholder
in consideration of the sale pursuant to the registration of Transaction
Registrable Shares owned by it or (2) in the case of the underwriter, the total
price at which such Transaction Registrable Shares purchased by it and
distributed to the public were offered to the public exceeds, in any such case,
the amount of any damages that the Registering Stockholder or underwriter, as
the case may be, has otherwise been required to pay by reason of any untrue or
alleged untrue statement or omission. No person guilty of fraudulent
representation (within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any person who is not guilty of such fraudulent
misrepresentation.
(e) Each Registering Stockholder participating in a registration
pursuant to Section 1 shall cause each underwriter of any Transaction
Registrable Shares owned by the Registering Stockholder to be distributed
pursuant to the registration to agree in writing on terms reasonably
satisfactory to the Company to indemnify and to hold harmless the Company and
its officers and directors and each person, if any, who controls any of them
within the meaning of Section 15 (or any similar provision then in force) of the
Securities Act, and their respective successors, against all claims, losses,
damages and liabilities to third parties (or actions in respect thereof) arising
out of or based upon any untrue statement (or alleged untrue statement) of a
material fact contained in the Registration Statement or the Prospectus or other
document incident thereto 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, and to reimburse the Company and each other
person indemnified pursuant to the agreement for any legal or any other expense
reasonably incurred in connection with investigating or defending any claim,
loss, damage, liability or action; provided that the agreement shall apply only
if (and only to the extent
17
that) the statement or omission was made in reliance upon and in conformity with
information furnished to the Company in writing by the underwriter specifically
for use in the Registration Statement or the Prospectus.
SECTION 8. TRANSFER RESTRICTIONS.
(a) Each Stockholder agrees that before any sale or other disposition
of any Registrable Shares or the Warrant other than in a sale registered under
the Securities Act or pursuant to Rule 144 or 144A (or any similar provisions
then in force) under the Securities Act (unless the Company shall have been
advised by counsel that the sale does not meet the requirements of Rule 144 or
Rule 144A, as the case may be, for such sale), it will deliver to the Company an
opinion of counsel, in form and substance reasonably satisfactory to the
Company, to the effect that such registration is unnecessary.
(b) (1) Except as provided to the contrary in this Section 8,
each instrument or certificate evidencing or representing any
Registrable Shares that is transferred to any person other than an
affiliate of Anschutz or AFIC, shall bear legends substantially in the
following form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE
OFFERED, SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN
COMPLIANCE WITH SAID ACT. THE SHARES ARE ALSO SUBJECT TO THE
RESTRICTIONS STATED IN A REGISTRATION RIGHTS AGREEMENT DATED AS OF
APRIL 18, 1999, A COPY OF WHICH IS ON FILE AT THE OFFICE OF THE
SECRETARY OF THE COMPANY."
(2) Except as provided to the contrary in this Section 8,
each instrument or certificate evidencing or representing the Warrant
that is transferred to any person other than an affiliate of Anschutz
or AFIC, shall bear legends substantially in the following form:
"THE WARRANT REPRESENTED BY THIS CERTIFICATE AND THE SHARES
OF COMMON STOCK ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE
OFFERED, SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN
COMPLIANCE WITH SAID ACT. THIS WARRANT AND SUCH SHARES ARE ALSO SUBJECT
TO THE RESTRICTIONS STATED IN A REGISTRATION RIGHTS AGREEMENT DATED AS
OF APRIL 18, 1999, A COPY OF WHICH IS ON FILE AT THE OFFICE OF THE
SECRETARY OF THE COMPANY."
(c) The Company acknowledges that it has already removed the legends
from the instruments representing the Registrable Shares and Warrant held by
Anschutz or AFIC as of the date of this Agreement. If any other holder of any
Registrable Shares or the Warrant shall
18
request in writing that the Company remove any or all of the legends stated in
Section 8(b) from the instruments or certificates evidencing or representing
such Registrable Shares or the Warrant, as the case may be, then, as soon as
practicable following the later of the date of receipt of such request and the
date of receipt of such instruments or certificates bearing such legends, the
Company shall issue and deliver to the registered owner of such Registrable
Shares or the Warrant, as the case may be, or its registered transferee
instruments or certificates evidencing or representing such Registrable Shares
or the Warrant, as the case may be, without such legends if either (1) such
substitute instruments or certificates are issued in connection with a sale that
is registered under the Securities Act or (2) the holder of such Registrable
Shares or the Warrant has received either an opinion of counsel, which opinion
and counsel shall be reasonably satisfactory to Stockholder, or a "no-action"
letter obtained by the holder from the staff of the Securities and Exchange
Commission, to the effect that the restrictions imposed by Rule 144 under the
Securities Act no longer apply to such Registrable Shares or the Warrant, as the
case may be.
SECTION 9. EXEMPT SALES.
(a) The Company shall make all filings with the Securities and Exchange
Commission required by Rule 144(c) (or any similar provision then in force)
under the Securities Act to permit the sale of Registrable Shares by any holder
thereof (other than an Affiliate of the Company) to satisfy the conditions of
Rule 144 (or any similar provision then in force). The Company shall, promptly
upon the written request of the holder of Registrable Shares, deliver to such
holder a written statement as to whether the Company has complied with all such
filing requirements.
(b) Before sales of Registrable Shares or the Warrant proposed to be
sold pursuant to an exemption from the registration requirements of the
Securities Act, the Company shall, subject to Section 8(c), cooperate with the
holder of such Registrable Shares or the Warrant, as the case may be, to
facilitate the timely preparation and delivery of certificates (not bearing any
restrictive legends) representing such Registrable Shares or Warrant, as the
case may be, in connection with the closing of the sales and to enable such
Registrable Shares or the Warrant, as the case may be, to be in such
denominations and registered in such names as the holder may request.
SECTION 10. MERGER, CONSOLIDATION, EXCHANGE, ETC. In the event,
directly or indirectly, (1) the Company shall merge with and into, or
consolidate with, any other person or (2) any person shall merge with and into,
or consolidate, the Company and the Company shall be the surviving corporation
of such merger or consolidation and, in connection with such merger or
consolidation, all or part of the Registrable Shares or the securities issuable
upon exercise of the Warrant shall be changed into or exchanged for stock or
other securities of any other person, then, in each such case, proper provision
shall be made so that such other person shall be bound by the provisions of this
Agreement and the term the "Company" shall thereafter be deemed to refer to such
other person.
SECTION 11. NOTICES. All notices, requests and other communications to
any party under this Agreement shall be in writing. Communications may be made
by telecopy or similar writing. Each communication shall be given to the party
at its address stated on the
19
signature pages of this Agreement or at any other address as the party may
specify for this purpose by notice to the other party. Each communication shall
be effective (1) if given by telecopy, when the telecopy is transmitted to the
proper address and the receipt of the transmission is confirmed, (2) if given by
mail, 72 hours after the communication is deposited in the mails properly
addressed with first class postage prepaid or (3) if given by any other means,
when delivered to the proper address and a written acknowledgement of delivery
is received.
SECTION 12. NO WAIVERS; REMEDIES. No failure or delay by any party in
exercising any right, power or privilege under this Agreement shall operate as a
waiver of the right, power or privilege. A single or partial exercise of any
right, power or privilege shall not preclude any other or further exercise of
the right, power or privilege or the exercise of any other right, power or
privilege. The rights and remedies provided in this Agreement shall be
cumulative and not exclusive of any rights or remedies provided by law.
SECTION 13. AMENDMENTS, ETC. No amendment, modification, termination or
waiver of any provision of this Agreement, and no consent to any departure by a
party to this Agreement from any provision of this Agreement, shall be effective
unless it shall be in writing and signed and delivered by the other party to
this Agreement, and then it shall be effective only in the specific instance and
for the specific purpose for which it is given.
SECTION 14. SUCCESSORS AND ASSIGNS.
(a) Each holder of Registrable Shares or the Warrant may assign to any
transferee of Registrable Shares or the Warrant, as the case may be, its rights
and delegate to the transferee its obligations under this Agreement including,
without limitation, the rights of assignment pursuant to this Section 14;
provided that (i) any assignment of rights under Section 1 of one or more demand
registration right must indicate in writing the number of demand rights so
assigned and the Company must receive notice of such assignment and (ii) such
transferee shall accept such rights and assume such obligations for the benefit
of the Company by written instrument, in form and substance reasonably
satisfactory to the Company. Thereafter, without any further action by any
person, all references in this Agreement to the holder of such Registrable
Shares or the Warrant, as the case may be, and all comparable references, shall
be deemed to be references to the transferee, and the transferor shall be
released from each obligation or liability under this Agreement with respect to
the Registrable Shares or the Warrant so transferred.
(b) The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties to this Agreement, the express beneficiaries thereof
and their respective permitted heirs, executors, legal representatives,
successors and assigns, and no other person.
SECTION 15. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York without
regard to principles of conflict of law.
20
SECTION 16. COUNTERPARTS; EFFECTIVENESS. This Agreement may be signed
in any number of counterparts, each of which shall be an original, with the same
effect as if all signatures were on the same instrument.
SECTION 17. SEVERABILITY OF PROVISIONS. Any provision of this Agreement
that is prohibited or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of the prohibition or
unenforceability without invalidating the remaining provisions of this Agreement
or affecting the validity or enforceability of the provision in any other
jurisdiction.
SECTION 18. HEADINGS AND REFERENCES. Section headings in this Agreement
are included for the convenience of reference only and do not constitute a part
of this Agreement for any other purpose. References to parties, express
beneficiaries and sections in this Agreement are references to the parties to or
the express beneficiaries and sections of this Agreement, as the case may be,
unless the context shall require otherwise.
SECTION 19. ENTIRE AGREEMENT. This Agreement embodies the entire
agreement and understanding of the parties and supersedes all prior agreements
or understandings with respect to the subject matters of this Agreement.
SECTION 20. SURVIVAL. Except as otherwise specifically provided in this
Agreement, each representation, warranty or covenant of each party contained in
to this Agreement shall remain in full force and effect, notwithstanding any
investigation or notice to the contrary or any waiver by the other party of a
related condition precedent to the performance by such other party of an
obligation under this Agreement.
SECTION 21. NON-EXCLUSIVE JURISDICTION. Each party, and each express
beneficiary of this Agreement as a condition of its right to enforce or defend
any right under or in connection with this Agreement, (1) agrees that any Action
with respect to this Agreement or any transaction contemplated by this Agreement
may be brought in the courts of the State of New York or of the United States of
America for the Southern District of New York, in each case sitting in the
Borough of Manhattan, State of New York and (2) accepts for itself and in
respect of its property, generally and unconditionally, the jurisdiction of
those courts and (3) irrevocably waives any objection, including, without
limitation, any objection to the laying of venue or based on the grounds of
forum non conveniens, which it may now or hereafter have to the bringing of any
legal action in those jurisdictions.
SECTION 22. AFFILIATE. Nothing contained in this Agreement shall
constitute Stockholder or any Registering Stockholder an "affiliate" of any of
the Company and its Subsidiaries within the meanings of the Securities Act or
the Exchange Act, respectively, including, without limitation, Rule 501 under
the Securities Act and Rule 13e-3 under the Exchange Act.
SECTION 23. NON-RECOURSE. No recourse under this Agreement shall be had
against any "controlling person" (within the meaning of Section 20 of the
Exchange Act) of any party or the stockholders, directors, officers, employees,
agents and Affiliates of such party or such controlling persons, whether by the
enforcement of any assessment or by any legal or
21
equitable proceeding, or by virtue of any Regulation, it being expressly agreed
and acknowledged that no personal liability whatsoever shall attach to, be
imposed on or otherwise be incurred by such controlling person, stockholder,
director, officer, employee, agent or Affiliate, as such, for any obligations of
such party under this Agreement or for any claim based on, in respect of or by
reason of such obligations or their creation; provided, however, that nothing
contained in this Section 23 shall be deemed to be a waiver by the Company.or
any such controlling person, stockholder, director, officer, employee, agent or
affiliate of the Company of their respective liabilities under applicable
federal or state securities laws, rules or regulations.
SECTION 24. NO INCONSISTENT AGREEMENTS.
(a) The Company shall not enter into, or amend or otherwise modify, any
agreement to afford to any person other than the Stockholders, the holders of
Registrable Shares and the holders of the Other Registrable Shares and rights
with respect to the registration under the Securities Act of shares of Company
Common Stock or other securities or the inclusion of any such shares or other
securities in any registration that are inconsistent with, or conflict with, the
rights of the Stockholders and the holders of Registrable Shares under this
Agreement, including, without limitation, Sections 1 and 2.
(b) Without derogating from the generality of Section 24(a), after the
date of this Agreement, the Company shall not enter into, or amend or otherwise
modify, any agreement to afford to any person other than the Stockholders, the
holders of Registrable Shares and the holders of Other Registrable Shares the
right to require the Company to include in any registration pursuant to Section
1 any securities of the Company pursuant to the exercise of any "piggy-back"
right under an agreement with the Company not in existence as of the date of
this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
22
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective authorized officers as of the date first written
above in New York, New York.
QWEST COMMUNICATIONS INTERNATIONAL INC.
By: /s/ Drake S. Tempest
---------------------------------------
Name: Drake S. Tempest
Title: Executive Vice President and
General Counsel
Address: 555 Seventeenth Street
Denver, Colorado 80202
Telecopy: (303) 992-1798
ANSCHUTZ COMPANY
By: /s/ Craig D. Slater
---------------------------------------
Name: Craig D. Slater
Title: Vice President
Address: 555 Seventeenth Street
Denver, Colorado 80202
Telecopy: (303) 298-8881
ANSCHUTZ FAMILY INVESTMENT
COMPANY LLC
By: /s/ Craig D. Slater
---------------------------------------
Name: Craig D. Slater
Title: Vice President
Address: 555 Seventeenth Street
Denver, Colorado 80202
Telecopy: (303) 298-8881