AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT, dated as of
October 18, 1999 (this "Agreement"), is entered into by and among CONVERGENCE
COMMUNICATIONS, INC., a Nevada corporation (the "Company"), PEGASUS GROUP, L.P.,
("Pegasus"), FONDELEC ESSENTIAL SERVICES GROWTH FUND, L.P., a Cayman Islands
limited partnership ("FESGF"), INTERNEXUS S.A., an Argentine sociedad anonima
("Internexus"), TELEMATICA EDC, C.A., a Venezuelan compania anonima
("Telematica"), TCW/CCI HOLDING LLC, a Delaware limited liability company
("TCW"), INTERNATIONAL FINANCE CORPORATION, an international organization
established by Articles of Agreement among its member countries ("IFC"), GLACIER
LATIN-AMERICA LTD., a British Virgin Islands International Business Company
("Glacier"), and LANCE D'AMBROSIO, TROY D'AMBROSIO and the ESTATE OF GEORGE S.
D'AMBROSIO (collectively, the "D'Ambrosios"). Pegasus, FESGF, Internexus,
Telematica, TCW, IFC and Glacier are collectively referred to herein as the
"Purchasers" and each may be singularly referred to herein as a "Purchaser."
WHEREAS, Pegasus, FESGF, Internexus and the D'Ambrosios currently hold
shares of the Common Stock of the Company and all such parties other than the
D'Ambrosios currently hold Original Warrants (as defined below) to acquire
additional shares of the Common Stock of the Company, all as more particularly
described on Schedule 1 hereto;
WHEREAS, pursuant to the terms of those certain Registration Rights
Agreements dated February 4, 1997, December 23, 1998, June 15, 1999, August 6,
1999, September 3, 1999 and October 1, 1999 (the "Original Agreements"), the
Company granted Pegasus, FESGF and Internexus certain rights relating to the
registration by the Company of the Common Stock to be acquired by them under
such Original Warrants;
WHEREAS, pursuant to the terms of that certain Participation Agreement
dated October 15, 1999 among the Company and the Purchasers other than Pegasus
(the "Participation Agreement"), the Purchasers other than FondElec and
Internexus have agreed to acquire shares of the Company's Series C Preferred
Stock, options to acquire additional shares of Series C Preferred Stock, and
Series C Warrants (as defined below) for cash, and FESGF and Internexus have
agreed to convert certain amounts due them by the Company into shares of the
Company's Series C Preferred Stock, options to acquire additional shares of the
Company's Series C Preferred Stock, Series C Warrants (as defined below) and
FondElec/Internexus Warrants (as defined below);
WHEREAS, it is a condition precedent to the acquisition of those
securities by such Purchasers under the Participation Agreement that the Company
provide certain registration rights to them in accordance with the terms hereof;
WHEREAS, to facilitate the consummation of the transactions
contemplated by the Participation Agreement, the Company also desires to grant
to the D'Ambrosios certain registration rights;
WHEREAS, the parties desire that Telematica, TCW, IFC and Glacier join
in the execution of, and be granted, the registration rights granted Pegasus,
FESGF and Internexus pursuant to the Original Agreements and that, in connection
therewith, this Agreement be substituted in the place of, and replace in their
entirety, the Original Agreements; and
WHEREAS, the parties intend that this Agreement constitute the
"Registration Rights Agreement," as defined in the Participation Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and for
other good and valuable consideration, the adequacy and receipt of which are
hereby acknowledged, the parties hereto hereby agree that the Original
Agreements are hereby amended and restated in their entirety as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1 Definitions. The following terms shall have the meanings ascribed to
them below:
"Agreement" means this Agreement, as amended, modified or supplemented
from time to time, in accordance with the terms hereof, together with any
exhibits, schedules or other attachments thereto.
"Business Day" means any day that is not a Saturday, Sunday or a day on
which banking institutions in New York, New York are authorized or obligated by
law, executive order or government decree to be closed.
"CCI Shareholders' Agreement" means the CCI Shareholders' Agreement, as
that term is defined in the Participation Agreement.
"Closing" has the meaning given it in the Participation Agreement.
"Closing Date" has the meaning given it in the Participation Agreement.
"Commission" means the United States Securities and Exchange Commission
or any other federal agency at the time administering the Securities Act.
"Common Stock" means the common stock, par value $.001 per share, of
the Company.
"Company" has the meaning ascribed thereto in the introduction hereof.
"Controlling Person" means a Controlling Person as defined in Section
4.1.
"Damages" means Damages as defined in Section 4.1.
"Demand Registration" means a Demand Registration as defined in Section
2.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"FESGF" has the meaning ascribed thereto in the introduction hereof.
"FondElec/Internexus Warrants" means the FondElec/Internexus Warrants,
as that term is defined in the Participation Agreement.
"Glacier" has the meaning ascribed thereto in the introduction hereof.
"Holder" means any Person who now holds or shall hereafter acquire and
hold Registrable Securities.
"IFC" has the meaning ascribed thereto in the introduction hereof.
"Indemnified Party" means an Indemnified Party as defined in Section
4.3.
"Indemnifying Party" means an Indemnifying Party as defined in Section
4.3.
"Internexus" has the meaning ascribed thereto in the introduction
hereof.
"Market Price" means, with respect to the shares of Common Stock, (a)
if the shares are listed or admitted for trading on any national securities
exchange or included in The Nasdaq National Market or Nasdaq SmallCap Market,
the last reported sales price as reported on such exchange or market; (b) if the
shares are not listed or admitted for trading on any national securities
exchange or included in The Nasdaq National Market or Nasdaq SmallCap Market,
the average of the last reported closing bid and asked quotation for the shares
as reported on the National Association of Securities Dealers Automated
Quotation System ("NASDAQ") or a similar service if NASDAQ is not reporting such
information; (c) if the shares are not listed or admitted for trading on any
national securities exchange or included in The Nasdaq National Market or Nasdaq
SmallCap Market or quoted by NASDAQ or a similar service, the average of the
last reported bid and asked quotation for the shares as quoted by a market maker
in the shares (or if there is more than one market maker, the bid and asked
quotation shall be obtained from two market makers and the average of the lowest
bid and highest asked quotation). In the absence of any available public
quotations for the Common Stock, the Board of Directors of the Company shall
determine in good faith the fair value of the Common Stock, which determination
shall be set forth in a certificate by the Secretary of the Company.
"New Registrable Securities" means (i) the shares of Common Stock
issued or issuable upon exercise of the FondElec/Internexus Warrants or Series C
Warrants or upon the conversion of the Series C Convertible Preferred Stock
(whether acquired by a Purchaser under the terms of the Participation Agreement
at the Closing or Subsequent Closing, pursuant to the Option, or pursuant to
Section 7 of the Participation Agreement), (ii) the shares of Common Stock held
by FondElec and Internexus as of the date hereof or acquired by either of them
in the exercise of the Original Warrants or options described in Schedule 1
hereto, and (iii) any shares of Common Stock acquired as a result of stock
splits, stock dividends, reclassifications, recapitalizations, or similar events
relating to the shares described in clauses (i) and (ii) above.
"Old Registrable Securities" means (i) any shares of Common Stock held
by a Holder, as of the date hereof other than New Registrable Securities, and
(ii) any shares of Common Stock acquired as a result of stock splits, stock
dividends, reclassifications, recapitalizations, or similar events relating to
the shares described in clause (i) above.
"Option" means the nine month option to acquire Series C Preferred
Stock issued to Telematica, TCW, IFC, Glacier, FESGF and Internexus, as
described in the Participation Agreement.
"Original Warrants" means the warrants to acquire shares of Common
Stock issued to Pegasus, FESGF and Internexus in connection with the Original
Agreements.
"Pegasus" has the meaning ascribed thereto in the introduction hereof.
"Person" has the meaning given it in the Participation Agreement.
"Piggy-Back Registration" means a Piggy-Back Registration as defined in
Section 2.3.
"Prospectus" means the prospectus included in any Registration
Statement (including without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective Registration
Statement in reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by any prospectus supplement with respect to the terms
of the offering of any portion of the securities covered by such Registration
Statement, and all other amendments and supplements to the prospectus, including
post-effective amendments, and all material incorporated by reference or deemed
to be incorporated by reference in such prospectus.
"Purchase Agreement" has the meaning ascribed thereto in the
introduction hereof.
"Purchasers" has the meaning ascribed thereto in the introduction
hereof.
"Registrable Securities" means New Registrable Securities and Old
Registrable Securities, in each case until such time as (x) a Registration
Statement covering such shares of Common Stock has been declared effective by
the Commission and such shares of Common Stock have been disposed of pursuant to
such effective Registration Statement, or (y) such shares of Common Stock would
be saleable pursuant to Rule 144 under the Securities Act (or any similar
provisions then in force) without regard to the volume limitations set forth in
Rule 144(e), or (z) such shares of Common Stock have been otherwise transferred
and the Company has delivered a new certificate or other evidence of ownership
for such Common Stock not bearing a restrictive legend and not subject to any
stop transfer or similar restrictive order and all of such Common Stock may be
resold by the Person receiving such certificate without complying with the
registration requirements of the Securities Act.
"Registration Statement" means any registration statement of the
Company filed under the Securities Act which covers any of the Registrable
Securities pursuant to the provisions of this Agreement, including the
Prospectus, amendments and supplements to such registration statement, including
post-effective amendments, all exhibits and all material incorporated by
reference in such registration statement.
"Request" means a Request as defined in Section 2.1(a).
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Selling Holder" means a Holder who is selling Registrable Securities
pursuant to a Registration Statement under the Securities Act.
"Selling Holders' Counsel" means the counsel selected to represent the
Selling Holders as set forth in Section 3.1(c).
"Series C Preferred Stock" means the Series C Convertible Preferred
Stock, par value $.001 per share, of the Company.
"Series C Warrants" means the warrants to acquire shares of Series C
Preferred Stock issued to FESGF, Internexus, Telematica, TCW, IFC and Glacier
under the terms of the Participation Agreement.
"Shareholder Parties" has the meaning given that term in the CCI
Shareholders' Agreement.
"Subsequent Closing" has the meaning given it in the Participation
Agreement.
"TCW" has the meaning ascribed thereto in the introduction hereof.
"Telematica" has the meaning ascribed thereto in the introduction
hereof.
"Underwriter" means a securities dealer who purchases any Registrable
Securities as principal in an underwritten offering and not as part of such
dealer's market-making activities.
ARTICLE 2
REGISTRATION RIGHTS
SECTION 2.1 Performance Part of Series of Transactions. The Parties acknowledge
and agree that the performance provided for in this Agreement is part
of a series of transactions which, pursuant to the Participation
Agreement, are to occur simultaneously and subject to certain
conditions precedent as provided for therein, including the Closing and
the execution of the CCI Shareholders' Agreement which, among other
things, provides for certain restrictions on transfer of the
Registrable Securities. The parties do not intend that this Agreement
diminish or otherwise modify the restrictions on transfer set forth in
the CCI Shareholders' Agreement, and this Agreement shall be construed
consistent with that intent.
SECTION 2.2 Demand Registration.
(a) Request for Registration. Subject to the limitations contained
in this Section 2.2(a), at any time after the first
anniversary of the Closing Date any Holder or Holders of an
aggregate of New Registrable Securities representing 20% or
more of all the New Registrable Securities may make written
requests (individually, a "Request") on the Company for the
registration of the offer and sale of some or all of the
Holders' New Registrable Securities under the Securities Act
(such registration being hereinafter referred to as a "Demand
Registration"). Subject to the penultimate sentence of Section
2.2(b), the Company shall have no obligation to effect more
than three (3) Demand Registrations. Any Request will specify
the number of New Registrable Securities proposed to be sold
and the intended method(s) of disposition thereof and shall
also state the intent of the Holder to offer New Registrable
Securities for sale. The Company shall give written notice of
such Request within 10 days after the receipt thereof to all
other Holders. Within 20 days after receipt of such notice by
any such Holder, such Holder may request in writing that all
or any portion of its New Registrable Securities be included
in such Registration Statement and the Company shall include
in the Registration Statement for such Demand Registration the
New Registrable Securities of all Holders that requested to be
so included. Each such request by such other Holders shall
specify the number of New Registrable Securities proposed to
be sold and the intended method(s) of disposition thereof and
shall also state the intent of the Holder to offer New
Registrable Securities for sale. Notwithstanding the
foregoing, the Company shall not be requested to effect a
Demand Registration unless the Request has been made at least
180 days since the last Registration Statement (other than a
shelf registration under Rule 415 of the Securities Act or a
Registration Statement on Form S-8) was filed by the Company.
(b) Effective Registration. A registration will not be deemed to
have been effected as a Demand Registration unless the
Registration Statement relating thereto has been declared
effective by the Commission and the Company has complied in
all material respects with its obligations under this
Agreement with respect thereto; provided that if, after the
Registration Statement has become effective, the offering
and/or sale of New Registrable Securities pursuant to such
Registration Statement is or becomes the subject of any stop
order, injunction or other order or requirement of the
Commission or any other governmental or administrative agency,
or if any court or other governmental or quasi-governmental
agency prevents or otherwise limits the offer and/or sale of
the New Registrable Securities pursuant to the Registration
Statement, other than in each case primarily as a result of
acts or omissions of the Holder or any agent thereof, such
registration will be deemed not to have been effected. If (i)
a registration requested pursuant to this Section 2.2 is
deemed not to have been effected or (ii) the Registration
Statement relating to a Demand Registration requested pursuant
to this Section 2.2 does not remain effective for a period of
at least 180 consecutive days beyond the effective date
thereof or, with respect to an underwritten offering of New
Registrable Securities, until 45 days after the commencement
of the distribution by the Holders of the New Registrable
Securities included in such Registration Statement, then the
Company shall continue to be obligated to effect such New
Registration pursuant to this Section 2.2. The Holders shall
be permitted to withdraw all or any part of the New
Registrable Securities from a Registration Statement at any
time prior to the effective date of such Demand Registration
Statement; provided that in the event of such withdrawal, such
Holders shall be responsible for the fees and expenses
referred to in Section 3.2(viii) hereof incurred by such
Holders with respect to such Demand Registration prior to such
withdrawal.
(c) Limitations. At such time as the New Registrable Securities
may be registered on Form S-2 or Form S-3, as the case may be
(or any similar form or forms promulgated by the SEC), the
Holders of New Registrable Securities shall have unlimited
rights to request registration of their shares on Form S-2 or
Form S-3, as the case may be, or any such similar form.
Registrations effected on Form S-2 and Form S-3 shall not be
counted towards the limit on Demand Registrations under
Section 2.2(a).
(d) Selection of Underwriter. If a requested registration pursuant
to this Section 2.2 involves an underwritten offering, the
managing Underwriter(s) thereof shall be selected by the
Selling Holders and shall be reasonably acceptable to the
Company unless the Company has theretofore sold shares of
Common Stock in an underwritten offering, in which case the
managing Underwriter(s) of a requested registration pursuant
to this Section 2.2 shall be selected by the Company and shall
be reasonably acceptable to the Selling Holders.
(e) Deferral of Registration. Notwithstanding any other provision
of this Section 2, the Company shall not be obligated to
effect the filing of a Registration Statement pursuant to
Section 2.2(a) hereof (i) during any period when there exists
an effective Registration Statement covering any New
Registrable Securities, or (ii) for a period not to exceed 90
days, if the Company shall furnish to the Holders requesting a
Registration Statement under Section 2(a) hereof a
certificate, signed by the Company, stating that in the good
faith judgment of the Board of Directors of the Company it
would be detrimental to the best interests of the Company and
its stockholders generally for such Registration Statement to
be filed at that time; provided that in such event, the
Holders initiating the request for registration will be
entitled to withdraw such request.
SECTION 2.3 Piggy-Back Registration. If at any time after the first anniversary
of the Closing Date the Company proposes to file a Registration
Statement under the Securities Act with respect to an offering by the
Company for its own account (including for the purpose of effecting any
transaction approved by the Company's board of directors under the
terms of Section 6(b)(vi) or Section 6(c)(i) of the CCI Shareholders'
Agreement, or which the Shareholder Parties agree to proceed with under
the terms of Section 9 of the CCI Shareholders' Agreement, which the
Company hereby agrees to undertake) or for the account of any of its
respective security holders (other than a Registration Statement on
Form S-4 or Form S-8 or on any other form inappropriate for an
underwritten public offering or related solely to securities to be
issued in a merger, acquisition of the stock or assets of another
entity or in a similar transaction (or any substitute form that may be
adopted by the Commission), including a Registration Statement pursuant
to a Demand Registration under Section 2.2), then the Company shall
give written notice of such proposed filing to the Holders as soon as
practicable (but in no event less than 30 days before the anticipated
filing date), and such notice shall offer such Holders the opportunity
to register such number of New Registrable Securities as each such
Holder may request (which request shall specify the New Registrable
Securities intended to be disposed of by such Holder and shall also
state the intent of the Holder to offer New Registrable Securities for
sale) (a "Piggy-Back Registration"). The Company shall use all
reasonable efforts to cause the managing Underwriter or Underwriters of
a proposed underwritten offering to permit the New Registrable
Securities requested to be included in a Piggy-Back Registration to be
included on the same terms and conditions as any similar securities of
the Company or any other security holder included therein and to permit
the sale or other disposition of such New Registrable Securities in
accordance with the intended method of distribution thereof. Any Holder
shall have the right to withdraw its request for inclusion of its New
Registrable Securities in any Registration Statement pursuant to this
Section 2.3 by giving written notice to the Company of its request to
withdraw, provided that in the event of such withdrawal (other than
pursuant to Section 2.5(c) hereof), such Holder shall be responsible
for the fees and expenses referred to in Section 3.2(viii) hereof
incurred by such Holder prior to such withdrawal relating to such
Registration Statement. The Company may withdraw a Piggy-Back
Registration at any time prior to the time it becomes effective.
No registration effected under this Section 2.3, and no
failure to effect a registration under this Section 2.3, shall relieve
the Company of its obligation to effect a registration upon the request
of Holders pursuant to Section 2.2, and no failure to effect a
registration under this Section 2.3 and to complete the sale of New
Registrable Securities in connection therewith shall relieve the
Company of any other obligation under this Agreement (including,
without limitation, the Company's obligations under Sections 3.2 and
4.1).
SECTION 2.4 Special Registration. If at any time after the first anniversary of
the Closing Date the registration (whether pursuant to a Demand
Registration or a Piggy-Back Registration) of some or all of a Holder's
Old Registrable Securities under the Securities Act is required or
advisable for the Holders of the Old Registrable Securities to (i)
effectuate any transaction approved by the Company's board of directors
under the terms of Section 6(b)(vi) or Section 6(c)(i) of the CCI
Shareholders' Agreement, (ii) exercise their rights under the
provisions of Section 3(b) of the CCI Shareholders' Agreement, or (iii)
effectuate any transaction that the Shareholder Parties agree to
proceed with under the provisions of Section 9 of the CCI Shareholders'
Agreement, then the Company shall offer to the Holders of such Old
Registrable Securities (but in no event less than 30 days before the
anticipated filing date) the ability to register such number of Old
Registrable Securities (subject to the limitations of clauses (i), (ii)
or (iii) above as such Holders may request (which request shall specify
the Old Registrable Securities intended to be disposed of by such
Holders and which shall state the firm intent of such Holders to offer
such Old Registrable Securities for sale). The Company shall use all
reasonable efforts to cause or permit such Old Registrable Securities
to be included on the same terms and conditions as any similar
securities of the Company or any other security holder included therein
and to permit the registration, sale or other disposition of such Old
Registrable Securities in accordance with the intended method of
registration and distribution thereof.
SECTION 2.5 Reduction of Offering.
(a) Demand Registration. The Company may include in a Demand
Registration pursuant to Section 2.2 securities of the same
class as the Registrable Securities for the account of the
Company and any other Persons who hold securities of the same
class as the Registrable Securities on the same terms and
conditions as the Registrable Securities to be included
therein; provided, however, that (i) if the managing
Underwriter or Underwriters of any underwritten offering
described in Section 2.2 have informed the Company in writing
that it is their opinion that the total number of Registrable
Securities, and securities of the same class as the
Registrable Securities which Holders, the Company and any
other Persons desiring to participate in such registration
intend to include in such offering is such as to materially
and adversely affect the success of such offering, then the
number of shares to be offered for the account of the Company
and for the account of all such other Persons (other than the
Holders) participating in such registration shall be reduced
or limited pro rata in proportion to the respective number of
shares requested to be registered to the extent necessary to
reduce the total number of shares requested to be included in
such offering to the number of shares, if any, recommended by
such managing Underwriter or Underwriters, and (ii) if the
offering is not underwritten, no other Person, including the
Company, shall be permitted to offer securities under any such
Demand Registration unless the Selling Holders owning a
majority-in-interest of Common Stock to be sold consent to the
inclusion of such shares therein.
(b) Piggy-Back Registration.
(i) Notwithstanding anything contained herein, if the
managing Underwriter or Underwriters of any
underwritten offering described in Section 2.3 have
informed, in writing, the Holders requesting
inclusion in such offering that it is their opinion
that the total number of shares which the Company,
Holders and any other Persons holding securities of
the same class as the Registrable Securities desiring
to participate in such registration intend to include
in such offering is such as to materially and
adversely affect the success of such offering, then,
the Company will include in such registration (A)
first, all the shares the Company offered for its own
account, if any, (B) then, if additional shares may
be included in such registration without materially
and adversely affecting the success of such offering,
the shares offered by the holders of securities as a
result of their exercise of "demand" registration
rights by such holders, if any, and (C) then, if
additional shares may be included in such
registration without materially and adversely
affecting the success of such offering, the number of
shares offered by the Holders and such other holders
of securities of the same class as the Registrable
Securities whose piggy-back registration rights may
not be reduced without violating their contractual
rights (provided such contractual rights were in
existence prior to the date of this Agreement), on a
pro rata basis in proportion to the relative number
of Registrable Securities of the holders (including
the Holders) participating in such registration.
(ii) If the managing Underwriter or Underwriters of any
underwritten offering described in Section 2.3 notify
the Holders requesting inclusion in such offering
that the kind of securities that the Holders, the
Company and any other Persons desiring to participate
in such registration intend to include in such
offering is such as to materially and adversely
affect the success of such offering, (A) the
Registrable Securities to be included in such
offering shall be reduced as described in clause (i)
above or (B) if such reduction would, in the judgment
of the managing Underwriter or Underwriters, be
insufficient to substantially eliminate the material
adverse effect that inclusion of the Registrable
Securities requested to be included would have on
such offering, such Registrable Securities will be
excluded from such offering.
(c) Withdrawal. If, as a result of the proration provisions of
this Section 2.5, any Holder shall not be entitled to include
all Registrable Securities in a Demand Registration or
Piggy-Back Registration that such Holder has requested to be
included, such Holder may elect to withdraw his request to
include Registrable Securities in such registration; provided,
however, that if a Holder withdraws his request pursuant to
this Paragraph 2.5(c), the Company shall be responsible for
the fees and expenses referred to in Section 3.2(viii) hereof.
(d) Holdback Agreements. If any registration of Registrable
Securities shall be in connection with an underwritten public
offering, each Holder agrees not to effect any public sale or
distribution, including any sale pursuant to Rule 144 under
the Securities Act, of any Registrable Securities, and not to
effect any such public sale or distribution of any other
equity security of the Company or of any security convertible
into or exchangeable or exercisable for any equity security of
the Company (in each case, other than as part of such
underwritten public offering) during the seven (7) days prior
to, and during the one hundred eighty (180) day period
beginning on, the effective date of such Registration
Statement (except as part of such registration).
ARTICLE 3
REGISTRATION PROCEDURES
SECTION 3.1 Filings; Information. Whenever the Company is required to effect or
cause the registration of the offer and sale of Registrable Securities
pursuant to Section 2.2 or 2.3 hereof, including where such
registration shall be required in order to (i) effectuate any
transaction approved by the Company's board of directors under the
terms of Section 6(b)(vi) or Section 6(c)(i) of the CCI Shareholders'
Agreement, or (ii) effectuate any transaction that the Shareholder
Parties agree to proceed with under the provisions of Section 9 of the
CCI Shareholders' Agreement, the Company will use its best efforts to
effect the registration of the offer and the sale of such Registrable
Securities in accordance with the intended method(s) of disposition
thereof as quickly as practicable, and in connection with any such
request:
(a) Registration Filing. The Company will prepare and file with
the Commission a Registration Statement with respect to the
offer and sale of such securities and use its best efforts to
cause such Registration Statement to become and remain
effective until the completion of the distribution
contemplated thereby; provided, however, the Company shall not
be required to keep such Registration Statement effective for
more than 180 days (or such shorter period which will
terminate when all Registrable Securities covered by such
Registration Statement have been sold, but not prior to the
expiration of the applicable period referred to in Section
4(3) of the Securities Act and Rule 174 thereunder, if
applicable); provided, further, that with respect to a Demand
Registration, the Company shall use its best efforts to file
with the Commission a Registration Statement as soon as is
practicable after the date of the Request and in any event no
later than 60 days after the date of the Request for the
Demand Registration and shall use its best efforts to cause
such Registration Statement to be declared effective as soon
as is practicable after the date of filing and in any event no
later than 180 days after the date of such Request.
(b) Amendments. The Company will prepare and file with the
Commission such amendments and post-effective amendments to
the Registration Statement as may be necessary to keep such
Registration Statement effective for as long as such
registration is required to remain effective pursuant to the
terms hereof; cause the Prospectus to be supplemented by any
required Prospectus supplement, and, as so supplemented, to be
filed pursuant to Rule 424 under the Securities Act; and
comply with the provisions of the Securities Act applicable to
it with respect to the disposition of all Registrable
Securities covered by such Registration Statement during the
applicable period in accordance with the intended methods of
disposition by the Selling Holders set forth in such
Registration Statement or supplement to the Prospectus.
(c) Copies. The Company, at least ten (10) Business Days prior to
filing a Registration Statement or at least five (5) Business
Days prior to filing a Prospectus or any amendment or
supplement to such Registration Statement or Prospectus, will
furnish to (i) each Selling Holder, (ii) not more than one
counsel representing all Selling Holders ("Selling Holders'
Counsel"), to be selected by a majority-in-interest of such
Selling Holders, and (iii) each Underwriter, if any, of the
Registrable Securities covered by such Registration Statement
copies of such Registration Statement as proposed to be filed,
together with exhibits thereto, which documents will be
subject to review and approval by each of the foregoing within
five (5) Business Days after delivery (except that such review
and approval of any Prospectus or any amendment or supplement
to such Registration Statement or Prospectus must be within
three (3) Business Days after delivery), and thereafter,
furnish to such Selling Holders, Selling Holders' Counsel and
Underwriters, if any, such number of conformed copies of such
Registration Statement, each amendment and supplement thereto
(in each case including all exhibits thereto and documents
incorporated by reference therein), the Prospectus included in
such Registration Statement (including each preliminary
Prospectus) and such other documents or information as such
Selling Holders, Selling Holders' Counsel or Underwriters may
reasonably request in order to facilitate the disposition of
the Registrable Securities (it being understood that the
Company consents to the use of the Prospectus and any
amendment or supplement thereto by each Selling Holder and the
Underwriters, if any, in connection with the offering and sale
of the Registrable Securities covered by such Prospectus or
any amendment or supplement thereto).
(d) No Stop Orders. The Company will take all reasonable actions
required to prevent the entry of such stop order or to remove
it at the earliest possible moment if entered.
(e) Blue Sky Filings. On or prior to the date on which the
Registration Statement is declared effective, use its best
efforts to register or qualify such Registrable Securities
under such other securities or "blue sky" laws of such
jurisdictions as any Selling Holder, Selling Holders' Counsel
or Underwriter reasonably requests and do any and all other
acts and things which may be necessary or advisable to enable
such Selling Holder to consummate the disposition in such
jurisdictions of such Registrable Securities owned by such
Selling Holder; use its best efforts to keep each such
registration or qualification (or exemption therefrom)
effective during the period which the Registration Statement
is required to be kept effective; and use its best efforts to
do any and all other acts or things necessary or advisable to
enable the disposition in such jurisdictions of the
Registrable Securities covered by the applicable Registration
Statement; provided that the Company will not be required to
(i) qualify generally to do business in any jurisdiction where
it would not otherwise be required to qualify but for this
paragraph (e), (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process in
any such jurisdiction.
(f) Post-Effective Matters. The Company will notify each Selling
Holder, Selling Holders' Counsel and any Underwriter and (if
requested by any such Person) confirm such notice in writing,
(i) when a Prospectus or any Prospectus supplement or
post-effective amendment has been filed and, with respect to a
Registration Statement or any post-effective amendment, when
the same has become effective, (ii) of the issuance by the
Commission of any stop order suspending the effectiveness of a
Registration Statement or the initiation or threatening of any
proceedings for that purpose, (iii) of the issuance by any
state securities commission or other regulatory authority of
any order suspending the qualification or exemption from
qualification of any of the Registrable Securities under state
securities or "blue sky" laws or the initiation of any
proceedings for that purpose, and (iv) of the happening of any
event which makes any statement made in a Registration
Statement or related Prospectus or any document incorporated
or deemed to be incorporated by reference therein untrue in a
material respect or which requires the making of any changes
in such Registration Statement, Prospectus or documents so
that they will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary to make the statements in the
Registration Statement and Prospectus not misleading in light
of the circumstances in which they were made; and, as promptly
as practicable thereafter, prepare and file with the
Commission and furnish a supplement or amendment to such
Prospectus so that, as thereafter deliverable to the buyers of
such Registrable Securities, 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.
(g) Earning Statement. The Company will make generally available
an earning statement satisfying the provisions of Section
11(a) of the Securities Act no later than 90 days after the
end of the 12-month period beginning with the first day of the
Company's first fiscal quarter commencing after the effective
date of a Registration Statement, which earning statement
shall cover said 12-month period, and which requirement will
be deemed to be satisfied if the Company timely files complete
and accurate information on Forms 10-Q, 10-K and 8-K under the
Exchange Act and otherwise complies with Rule 158 under the
Securities Act.
(h) Underwriting Agreement. The Company will enter into customary
agreements (including, if applicable, an underwriting
agreement in customary form) and take such other actions as
are reasonably required in order to expedite or facilitate the
disposition of such Registrable Securities.
(i) Transfer Agent and Registrar. The Company will provide for a
transfer agent and registrar for all such Registrable
Securities not later than the effective date of such
registration statement, and use its best efforts to cause all
such Registrable Securities to be listed on each securities
exchange on which similar securities issued by the Company are
then listed and, if not so listed, to be listed on the NASDAQ
(or other national market reasonably acceptable to the holders
of 66 2/3% or more of the holders of the Registrable
Securities) and, if listed on the NASDAQ, use its best efforts
to secure designation of all such Registrable Securities
covered by such registration statement as a NASDAQ national
market system security within the meaning of Rule 11Aa2-1 of
the Commission or, failing that, to secure NASDAQ
authorization for such Registrable Securities and, without
limiting the generality of the foregoing, to arrange for at
least two market makers to register as such with respect to
such Registrable Securities with the NASDAQ.
(j) Information Regarding Distribution. The Company, during the
period when the Prospectus is required to be delivered under
the Securities Act, will file all documents required to be
filed with the Commission pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act.
The Company may require each Selling Holder to promptly
furnish in writing to the Company such information regarding the
distribution of the Registrable Securities as the Company may from time
to time reasonably request and such other information as may be legally
required in connection with such registration including, without
limitation, all such information as may be requested by the Commission
or the National Association of Securities Dealers, Inc.
Each Selling Holder agrees that, upon receipt of any notice
from the Company of the happening of any event of the kind described in
Section 3.1(f) hereof, such Selling Holder will forthwith discontinue
disposition of Registrable Securities pursuant to the Registration
Statement covering such Registrable Securities until such Selling
Holder's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 3.1(f) hereof, and, if so directed
by the Company, such Selling Holder will deliver to the Company all
copies, other than permanent file copies then in such Selling Holder's
possession, of the most recent Prospectus covering such Registrable
Securities at the time of receipt of such notice. In the event the
Company shall give such notice, the Company shall extend the period
during which such Registration Statement shall be maintained effective
(including the period referred to in Section 3.1(a) hereof) by the
number of days during the period from and including the date of the
giving of notice pursuant to Section 3.1(f) hereof to the date when the
Company shall make available to the Selling Holders covered by such
Registration Statement a Prospectus supplemented or amended to conform
with the requirements of Section 3.1(f) hereof.
SECTION 3.2 Registration Expenses. The Company shall pay all expenses incident
to the Company's performance of or compliance with this Agreement
including, without limitation: (i) all registration and filing fees,
(ii) the fees and expenses of compliance with securities or blue sky
laws (including fees and disbursements of counsel in connection with
blue sky qualifications of the Registrable Securities), (iii) all
printing, messenger and delivery expenses, (iv) the Company's internal
expenses (including, without limitation, all salaries and expenses of
its officers and employees performing legal or accounting duties), (v)
the fees and expenses incurred in connection with the listing or
quotation, as appropriate, of the Registrable Securities, (vi) the fees
and disbursements of counsel for the Company and the fees and expenses
for independent certified public accountants retained by the Company
(including the expenses of any special audit or cold comfort letters),
(vii) the fees and expenses of any special experts retained by the
Company in connection with such registration, and (viii) the fees and
expenses of the Selling Holders Counsel, provided, however, that,
notwithstanding the foregoing, any Holder whose Registrable Securities
are included in more than two registration statements filed pursuant to
the provisions of Section 2.2(a) hereof shall pay his pro rata portion
of all the foregoing expenses (based on the number of shares included)
with respect to the third registration statement in which such Holders'
shares are included. The Company shall have no obligation to pay any
underwriting fees, discounts or commissions attributable to the sale of
Registrable Securities and any of the expenses incurred by Selling
Holders which are not payable by the Company, such costs to be borne by
the Selling Holder or Selling Holders.
ARTICLE 4
INDEMNIFICATION AND CONTRIBUTION
SECTION 4.1 Indemnification by the Company. The Company agrees to indemnify and
hold harmless, to the fullest extent permitted by law, each Selling
Holder, its partners, officers, directors, employees, advisors and
agents, and each Person, if any, who controls such Selling Holder
within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act, together with the partners, officers, directors,
employees, advisors and agents of such controlling Person
(collectively, the "Controlling Persons"), from and against any loss,
claim, damage, liability, attorneys' fees, cost or expense and costs
and expenses of investigating and defending any such claim
(collectively, the "Damages") and any action in respect thereof to
which such Selling Holder, its partners, officers, directors,
employees, advisors and agents, and any such Controlling Person may
become subject under the Securities Act, the Exchange Act or otherwise,
insofar as such Damages (or proceedings in respect thereof) arise out
of, or are based upon, any untrue statement or alleged untrue statement
of a material fact contained in any Registration Statement or
Prospectus or any preliminary Prospectus, or arise out of, or are based
upon, 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, except insofar as the same are based upon
information furnished in writing to the Company by a Selling Holder
expressly for use therein, and shall reimburse each Selling Holder, its
partners, officers, directors, employees, advisors and agents, and each
such Controlling Person for any legal and other expenses reasonably
incurred by that Selling Holder, its partners, officers, directors,
employees, advisors and agents, or any such Controlling Person in
investigating or defending or preparing to defend against any such
Damages or proceedings. The Company also agrees to indemnify any
Underwriters of the Registrable Securities, their officers and
directors and each Person who controls such Underwriters on
substantially the same basis as that of the indemnification of the
Selling Holders provided in this Section 4.1.
SECTION 4.2 Indemnification by Selling Holders. Each Selling Holder agrees,
severally but not jointly, to indemnify and hold harmless the Company,
its officers, directors, employees, advisors and agents and each
Person, if any, who controls the Company within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act, together
with the partners, officers, directors, employees, advisors and agents
of such Controlling Person, to the same extent as the foregoing
indemnity from the Company to such Selling Holder, but only with
reference to information related to such Selling Holder, or its plan of
distribution, furnished in writing by such Selling Holder expressly for
use in any Registration Statement or Prospectus, or any amendment or
supplement thereto, or any preliminary Prospectus; provided, however,
that such Selling Holder shall not be liable in any such case to the
extent that prior to the filing of any such Registration Statement or
Prospectus or amendment or supplement thereto, such Selling Holder has
furnished in writing to the Company information expressly for use in
such Registration Statement or Prospectus or any amendment or
supplement thereto which corrected or made not misleading information
previously furnished to the Company. In no event shall the liability of
any Selling Holder be greater in amount than the dollar amount of the
proceeds received by such Selling Holder upon the sale of the
Registrable Securities giving rise to such indemnification obligation.
SECTION 4.3 Conduct of Indemnification Proceedings. Promptly after receipt by
any Person in respect of which indemnity may be sought pursuant to
Section 4.1 or 4.2 (an "Indemnified Party") of notice of any claim or
the commencement of any action, the Indemnified Party shall, if a claim
in respect thereof is to be made against the Person against whom such
indemnity may be sought (an "Indemnifying Party"), notify the
Indemnifying Party in writing of the claim or the commencement of such
action; provided that the failure to notify the Indemnifying Party
shall not relieve it from any liability which it may have to an
Indemnified Party otherwise than under Section 4.1 or 4.2 except to the
extent of any actual prejudice resulting therefrom. If any such claim
or action shall be brought against an Indemnified Party, and it shall
notify the Indemnifying Party thereof, the Indemnifying Party shall be
entitled to participate therein, and, to the extent that it wishes,
jointly with any other similarly notified Indemnifying Party, to assume
the defense thereof with counsel reasonably satisfactory to the
Indemnified Party. After notice from the Indemnifying Party to the
Indemnified Party of its election to assume the defense of such claim
or action, the Indemnifying Party shall not be liable to the
Indemnified Party for any legal or other expenses subsequently incurred
by the Indemnified Party in connection with the defense thereof other
than reasonable costs of investigation; provided that the Indemnified
Party shall have the right to employ separate counsel to represent the
Indemnified Party and its Controlling Persons who may be subject to
liability arising out of any claim in respect of which indemnity may be
sought by the Indemnified Party against the Indemnifying Party, but the
fees and expenses of such counsel shall be for the account of such
Indemnified Party unless (i) the Indemnifying Party and the Indemnified
Party shall have mutually agreed to the retention of such counsel or
(ii) in the opinion of counsel to such Indemnified Party,
representation of both parties by the same counsel would be
inappropriate due to actual or potential conflicts of interest between
them, it being understood, however, that the Indemnifying Party shall
not, in connection with any one such claim or action or separate but
substantially similar or related claims or actions in the same
jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one
separate firm of attorneys (together with appropriate local counsel) at
any time for all Indemnified Parties. No Indemnifying Party shall,
without the prior written consent of the Indemnified Party, effect any
settlement of any claim or pending or threatened proceeding in respect
of which the Indemnified Party is or could have been a party and
indemnity could have been sought hereunder by such Indemnified Party,
unless such settlement includes an unconditional release of such
Indemnified Party from all liability arising out of such claim or
proceeding. Whether or not the defense of any claim or action is
assumed by the Indemnifying Party, such Indemnifying Party will not be
subject to any liability for any settlement made without its consent,
which consent will not be unreasonably withheld.
SECTION 4.4 Contribution. If the indemnification provided for in this Article 4
is unavailable to the Indemnified Parties in respect of any Damages
referred to herein, then each Indemnifying Party, in lieu of
indemnifying such Indemnified Party, shall contribute to the amount
paid or payable by such Indemnified Party as a result of such Damages
in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Selling Holders on the
other from the offering of the Registrable Securities, or if such
allocation is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits but also the
relative fault of the Company on the one hand and the Selling Holders
on the other in connection with the statements or omissions which
resulted in such Damages, as well as any other relevant equitable
considerations. The relative fault of the Company on the one hand and
of each Selling Holder 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 such party, and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the Selling Holders agree that it would not be
just and equitable if contribution pursuant to this Section 4.4 were
determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to
in the immediately preceding paragraph. The amount paid or payable by
an Indemnified Party as a result of the Damages referred to in the
immediately preceding paragraph shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably
incurred by such Indemnified Party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of
this Section 4.4, no Selling Holder shall be required to contribute any
amount in excess of the amount by which the total price at which the
Registrable Securities of such Selling Holder were offered to the
public exceeds the amount of any damages which such Selling Holder has
otherwise paid by reason of such untrue or alleged untrue statement or
omission or alleged omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who
was not guilty of such fraudulent misrepresentation. Each Selling
Holder's obligations to contribute pursuant to this Section 4.4 is
several in the proportion that the proceeds of the offering received by
such Selling Holder bears to the total proceeds of the offering
received by all the Selling Holders and not joint.
ARTICLE 5
MISCELLANEOUS
SECTION 5.1 Participation in Underwritten Registrations. No Person may
participate in any underwritten registration hereunder unless such
Person (a) agrees to sell such Person's securities on the basis
provided in any underwriting arrangements approved by the Persons
entitled hereunder to approve such arrangements, and (b) completes and
executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under
the terms of such underwriting arrangements and these registration
rights.
SECTION 5.2 Additional Rights. If subsequent to the date hereof the Company
grants to holders or prospective holders of its securities registration
rights which are more favorable than the terms or provisions of this
Agreement are to the Holders of the New Registrable Securities, this
Agreement shall be deemed to be automatically amended (without the
necessity of any action on the part of the Company or the Holders) to
grant to the Holders of the New Registrable Securities such more
favorable or additional rights, in addition to those set forth herein.
SECTION 5.3 Rule 144 and 144A. The Company covenants that it will file any
reports required to be filed by it under the Securities Act and the
Exchange Act and that it will take such further action as any Holder
may reasonably request, all to the extent required from time to time to
enable Holders to sell Registrable Securities without registration
under the Securities Act within the limitation of the exemptions
provided by (a) Rule 144 or Rule 144A under the Securities Act, or (b)
any similar rule or regulation hereafter adopted by the Commission.
Upon the request of any Holder, the Company will deliver to such Holder
a written statement as to whether it has complied with such
requirements.
SECTION 5.4 Amendment and Modification. Any provision of this Agreement may be
waived, provided that such waiver is set forth in a writing executed by
the party against whom the enforcement of such waiver is sought. This
Agreement may not be amended, modified or supplemented other than by a
written instrument signed by the holders of at least 66 2/3% of the
Registrable Securities (calculated with respect to the Series C
Preferred Stock on an as-converted basis in accordance with the terms
and conditions for such securities under the certificate establishing
the Series C Preferred Stock's rights and preferences); provided,
however, that without the consent of all the Holders, no amendment or
modification which materially and adversely affects any Holders' rights
hereunder without the consent of such Holders. No course of dealing
between or among any Persons having any interest in this Agreement will
be deemed effective to modify, amend or discharge any part of this
Agreement or any rights or obligations of any Person under or by reason
of this Agreement.
SECTION 5.5 Successors and Assigns; Third Party Beneficiaries. This Agreement
and all of the provisions hereof shall be binding upon and inure to the
benefit of the parties hereto, each subsequent Holder and their
respective successors and assigns and executors, administrators and
heirs. Holders are intended third-party beneficiaries of this Agreement
and this Agreement may be enforced by such Holders.
SECTION 5.6 Entire Agreement. This Agreement sets forth the entire agreement
and understanding between the parties as to the subject matter hereof
and merges and supersedes all prior discussions, agreements and
understandings of any and every nature among them.
SECTION 5.7 Headings. Subject headings are included for convenience only and
shall not affect the interpretation of any provisions of this
Agreement.
SECTION 5.8 Notices. Any notice, demand, request, waiver, or other
communication under this Agreement shall be in writing and shall be
deemed to have been duly given on the date of service if personally
served or sent by telecopy, on the business day after notice is
delivered to a courier or mailed by express mail if sent by courier
delivery service or express mail for next day delivery and on the third
day after mailing if mailed to the party to whom notice is to be given,
by first class mail, registered, return receipt requested, postage
prepaid and addressed as follows:
If to the Company to:
Convergence Communications, Inc.
102 West 500 South, Suite 320
Salt Lake City, Utah 84101
Attention: Chief Executive Officer
Telecopier No.: (801) 532-6060
with a copy to:
Parsons Behle & Latimer
201 South Main Street
Suite 1800
Salt Lake City, Utah 84111
Attention: Scott Carpenter, Esq.
Telecopier No.: (801) 536-6111
if to the Purchasers, at the address set forth next to such Purchaser's
name on the signature page hereto.
SECTION 5.9 Governing Law; Forum; Process. This Agreement shall be construed in
accordance with, and the rights of the parties shall be governed by,
the internal laws of the State of New York, including Section 5-1401 of
the New York General Obligations Law. All disputes arising under or
relation to this Agreement shall first be subject to conciliation in
accordance with the Rules of Conciliation of the International Chamber
of Commerce and, failing conciliation, be finally settled under the
Rules of Arbitration of the International Chamber of Commerce by three
arbitrators appointed in accordance with said Rules. The place of
arbitration shall be New York, New York. The language of the
arbitration shall be English. In the event any dispute under the
Participation Agreement relates in any way to the validity, performance
or interpretation of this Agreement and an arbitral tribunal is
constituted pursuant to Section 11(n) of the Participation Agreement,
all parties to any dispute hereunder agree (i) to be joined to the
procedures initiated pursuant to Section 11(n) of the Participation
Agreement; (ii) to have any proceedings initiated hereunder
consolidated with proceedings initiated pursuant to Section 11(n) of
the Participation Agreement and (iii) to be bound by any ruling of the
arbitral tribunal constituted pursuant to Section 11(n) of the
Participation Agreement or any interim or final award thereof.
Submission of disputes to arbitration pursuant to the Rules of
Arbitration of the International Chamber of Commerce, in consolidation
with any disputes submitted to arbitration pursuant to Section 11(n) of
the Participation Agreement as provided above, shall be the sole method
of resolving disputes between the Parties hereto. Judgment upon an
arbitration award may be entered in any court having jurisdiction.
SECTION 5.10 Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original, and all of which together shall
constitute a single agreement.
SECTION 5.11 Severability. In the event that any one or more of the immaterial
provisions contained in this Agreement shall for any reason be held to
be invalid, illegal or unenforceable, the same shall not affect any
other provision of this Agreement, but this Agreement shall be
construed in a manner which, as nearly as possible, reflects the
original intent of the parties.
SECTION 5.12 No Prejudice. The terms of this Agreement shall not be construed
in favor of or against any party on account of its participation in the
preparation hereof.
SECTION 5.13 Words in Singular and Plural Form. Words used in the singular form
in this Agreement shall be deemed to import the plural, and vice versa,
as the sense may require.
SECTION 5.14 Remedy for Breach. The Company hereby acknowledges that in the
event of any breach or threatened breach by the Company of any of the
provisions of this Agreement, the Holder would have no adequate remedy
at law and could suffer substantial and irreparable damage.
Accordingly, the Company hereby agrees that, in such event, the Holder
shall be entitled, without the necessity of proving damages or posting
bond, and notwithstanding any election by any Holder to claim damages,
to obtain a temporary and/or permanent injunction, without proving a
breach therefor, to restrain any such breach or threatened breach or to
obtain specific performance of any such provisions, all without
prejudice to any and all other remedies which any Holder may have at
law or in equity.
SECTION 5.15 Termination of Original Agreements. By executing this Agreement,
each of Pegasus, Internexus, FondElec and the Company acknowledge and
agree that the Original Agreements are superseded and replaced by this
Agreement in their entirety, that the Original Agreements are of no
further force or effect with respect to such parties, and that the
rights of such parties relating to the registration of their
Registrable Securities will be governed by this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
CONVERGENCE COMMUNICATIONS, INC.
By: /s/ Lance D'Ambrosio
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
Address: 102 West 500 South, Suite 320
Salt Lake City, UT 84101
Fax No.: (801) 532-6060
PEGASUS FUND, L.P.
By: Pegasus Management Corp.
Its: General Partner
By: /s/ Gaston Acosta-Rua
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
Address: 333 Ludlow Street
Stamford, CT 06902
Fax No.: (203) 326-4578
FONDELEC ESSENTIAL SERVICES GROWTH
FUND, L.P.
By: FondElec E.S.G.P. Corp.
Its: General Partner
By: /s/ Gaston Acosta-Rua
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
Address: 333 Ludlow Street
Stamford, CT 06902
Fax No.: (203) 326-4578
INTERNEXUS S.A.
By: /s/ Peter Schiller
--------------------------------
Name: P. Schiller
--------------------------------
Title: Duly Authorized
--------------------------------
Address: Peron 925, 1er Floor
Buenos Aires 1038, Argentina
Fax No.: 011-5411-4320-7560
TELEMATICA EDC, C.A.
By: /s/ Norberto Corredor
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
Address: Avenida Vollmer,
San Bernardino
Apartado 2299, Caracas
1010-A-Venezuela
Fax No.: 011-582-502-3500
TCW/CCI HOLDING LLC
By: /s/ Mario L. Baeza
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
Address: 200 Park Avenue, Suite 2100
New York, New York 10166
Fax No.: (212) 771-4155
INTERNATIONAL FINANCE CORPORATION
By:
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
Address: 2121 Pennsylvania Avenue, N.W.
Rm. F4K-140
Washington, DC 20433
Fax No.: (202) 974-4403
GLACIER LATIN-AMERICA LTD.
By: /s/ David Liebman
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
Address: 2999 N.E. 191 Street
Suite 404
Aventura, Florida 33180
Fax No.: (305) 935-6512
/s/ Lance D'Ambrosio
---------------------------------------
LANCE D'AMBROSIO
Address: 3276 East Almira Court
Salt Lake City, Utah 84121
/s/ Troy D'Ambrosio
---------------------------------------
TROY D'AMBROSIO
Address: 2914 Nila Way
Salt Lake City, Utah 84124
ESTATE OF GEORGE S. D'AMBROSIO
By: /s/ Lance D'Ambrosio
--------------------------------
Its:
--------------------------------
Address: 5451 South 1410 East
Salt Lake City, Utah 84117