REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the 'Agreement'), dated as of February
10, 1998 (the 'Effective Date'), is by and between Dolphin, Inc., a Delaware
corporation ('Newco'), Sprint Corporation, a Kansas corporation ('Sprint') and
Sprint Communications Company L.P., a Delaware limited partnership ('Sprint
L.P.').
WHEREAS, the respective Boards of Directors of Sprint, the general partner
of Sprint L.P. and Newco have determined to enter into a strategic relationship
in the area of Internet access and related services and Sprint and Sprint L.P.
will make investments in EarthLink Network, Inc., a Delaware corporation (the
'Company'), and Newco in connection with the Merger (as defined below) of
Dolphin Sub, Inc., a Delaware corporation and wholly-owned subsidiary of Newco
('Newco Sub'), and the Company in order to enhance the capabilities for growth
and financial and strategic success;
WHEREAS, Sprint, Sprint L.P., Newco, the Company, and Newco Sub have
entered into an Investment Agreement as of the date hereof (the 'Investment
Agreement') contemplating that strategic alliance and addressing the terms and
conditions of such investment and related transactions;
WHEREAS, Sprint proposes to make a tender offer (as it may be amended from
time to time as permitted under the Investment Agreement, with the Company's
consent if required thereby, the 'Offer') to purchase 1,250,000 shares of common
stock, par value $.01 per share, of the Company (the 'Common Stock'), for an
aggregate cash consideration of $56,250,000 and at a price per share of Common
Stock of $45 net to each seller in cash (such price, as may hereafter be
changed, the 'Offer Price'), upon the terms and subject to the conditions set
forth in the Investment Agreement; and the Board of Directors of the Company has
approved the Offer and the other transactions contemplated by the Investment
Agreement and is recommending that the Company's stockholders who wish to
receive cash for their shares of the Common Stock accept the Offer;
WHEREAS, immediately following the closing of the Offer, Sprint L.P.
proposes to purchase 4,102,941 shares of Series A Convertible Preferred Stock,
par value $.01 per share of Newco (the 'Convertible Preferred Stock') in
exchange for (i) an aggregate cash consideration of $23,750,000, (ii) the
assignment to Newco of 100% of the Sprint Internet Passport Subscribers, and
(iii) entering into a network agreement whereby Newco and the Company will
utilize Sprint's long-distance network under specified terms and conditions;
WHEREAS, Sprint, Sprint L.P., the Company and Newco will enter into a
marketing and distribution agreement whereby Newco and the Company will utilize
the Sprint brand under specified terms and conditions and will, inter alia, have
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the right to use Sprint L.P. distribution channels under specified terms and
conditions and agrees to sell certain Sprint L.P. products;
WHEREAS, Sprint shall provide Newco and the Company, as co-borrowers, with
up to $25 million of Convertible Senior Debt financing on or after the Closing,
with such amount to
increase to up to $100 million over time (the 'Convertible Debt Financing'),
such indebtedness to be evidenced by one or more Convertible Senior Promissory
Note(s) (the 'Convertible Notes');
WHEREAS, the closing of the acqisition of the Convertible Preferred Stock
and the other transactions referred to above other than the Offer shall take
place concurrently with the merger of Newco Sub into the Company (the 'Merger')
and the conversion of each share of Common Stock into one share of Newco common
stock, par value $.01 per share (the 'Newco Common Stock') pursuant to the
Merger, in each case upon the terms and subject to the conditions set forth in
the Investment Agreement and/or the Ancillary Agreements;
WHEREAS, Sprint and Sprint L.P. may desire, from time to time, to sell to
the public shares of Common Stock acquired in the Offer or pursuant to the
Merger or which may be acquired upon exercise of the conversion rights
associated with the Convertible Preferred Stock and the Convertible Notes or
pursuant to the exercise of its rights under the Governance Agreement
(individually a 'Convertible Security' and collectively the 'Convertible
Securities');
WHEREAS, Newco, Sprint and Sprint L.P. therefore deem it to be in their
respective best interests to set forth the rights of Sprint in connection with
public offerings and sales of Registrable Securities (as defined below and
hereinafter all references to Sprint shall refer collectively to Sprint and
Sprint L.P. inasmuch as Sprint shall cause all decisions by Sprint to bind both
of them);
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained in this Agreement and in the Ancillary
Agreements, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereto hereby agree as
follows:
ARTICLE 1.
DEFINITIONS AND CONSTRUCTION
Section 1.1 Certain Definitions. As used in this Agreement, the
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following terms shall have the meanings specified below:
'Affiliate' of a Person means any Person that, directly or indirectly,
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controls, is controlled by, or under common control with such Person.
'Ancillary Agreement' shall have the meaning ascribed to that term in the
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Investment Agreement, and shall also include for purposes of this Agreement, the
Investment Agreement.
'Closing' shall have the meaning ascribed to that term in the Investment
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Agreement.
'Closing Date' shall have the meaning ascribed to that term in the
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Investment Agreement.
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'Closing Price' per share of Registrable Securities on any date shall mean
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the last sale price, regular way, or, in case no such sale takes place on such
day, the average of the closing bid and asked prices, regular way, in either
case as reported in the principal consolidated transaction reporting system with
respect to securities listed or admitted to trading on the New York Stock
Exchange or, if the Registrable Securities are not listed or admitted to trading
on the New York Stock Exchange, as reported in the principal consolidated
transaction reporting system with respect to securities listed on the principal
national securities exchange on which the Registrable Securities are listed or
admitted to trading or, if the Registrable Securities are not listed or admitted
to trading on any national securities exchange, if such shares of Registrable
Securities are not listed or admitted to trading on such exchange, as reported
on the Nasdaq National Market, or if not quoted on the Nasdaq National Market,
the last quoted sale price or, if not so quoted, the average of the high bid and
low asked prices in the over-the-counter market, as reported by Nasdaq or such
other system then in use, or, if on any such date the Registrable Securities are
not quoted by any such organization, the average of the closing bid and asked
prices as furnished by a professional market maker making a market in the
Registrable Securities selected by the Board of Directors. If the Registrable
Securities are not publicly held or so listed or publicly traded, 'Closing
Price' shall mean the Fair Market Value per share as determined in good faith by
the Board of Directors of Newco.
'Common Stock' shall mean (i) Common Stock as defined in the third Recital
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to this Agreement with respect to the time period prior to the Merger, (ii)
Newco Common Stock as defined in the sixth Recital to this Agreement with
respect to the time period after the Merger, and (iii) any other class of common
equity of Newco into which the shares defined in (i) and (ii) may hereafter have
been changed or reclassified.
'Effective Date' shall have the meaning ascribed to that term in the
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introductory paragraph of this Agreement.
'Exchange Act' means the Securities Exchange Act of 1934, as amended, and
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the rules and regulations promulgated thereunder as in effect at the time.
'Governance Agreement' means the Governance Agreement, dated as of the
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Effective Date, by and between Sprint, Sprint L.P., Newco and the Company.
'Holder' means Sprint, so long as it holds any Registrable Securities, and
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any Person owning Registrable Securities who is a permitted transferee or
assignee of rights under Article 10 of this Agreement.
'Party' means any Person that is a signatory to this Agreement.
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'Person' means any natural person, corporation, partnership, limited
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liability company, trust, unincorporated organization or other entity.
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'Register' the terms 'register,' 'registered,' and 'registration' refer to
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a registration effected by the preparation and filing of a Registration
Statement in compliance with the Securities Act, and the declaration or ordering
of effectiveness of such Registration Statement by the SEC.
'Registrable Securities' means at any time: (i) the Registration Common
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Shares then owned or held by the Holders, and (ii) the Registration Common
Shares then issuable upon conversion of any and all Convertible Securities then
owned or held by the Holders, and, in each case, all shares of Common Stock
issued as (or issuable upon the conversion or exercise of any warrant, right or
other security which is issued as) a dividend, stock split or other distribution
including as a result of any merger, consolidation or other reorganization
involving Newco with respect to, in exchange for, or in replacement of such
Registration Common Shares then owned or held by such Holder or Holders or
Registration Common Shares then issuable upon conversion of any and all
Convertible Securities then owned or held by the Holders, as the case may be,
including as a result of any merger, consolidation or other reorganization
involving Newco. The term 'Registrable Securities' excludes, however, any
security (i) the sale of which has been effectively registered under the
Securities Act and which has been disposed of in accordance with a Registration
Statement, (ii) that has been sold by a Holder in a transaction exempt from the
registration and prospectus delivery requirements of the Securities Act under
Section 4(l) thereof (including transactions pursuant to Rules 144 and 144A)
such that the further disposition of such securities by the transferee or
assignee is not restricted under the Securities Act, (iii) that has been sold by
a Holder in a transaction in which such Holder's rights under this Agreement are
not, or cannot be, assigned, or (iv) for which the registration rights provided
under this Agreement have expired pursuant to Article 13 of this Agreement.
'Registration Common Shares' shall mean all shares of Common Stock owned or
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acquired by Sprint, Sprint L.P. or by any permitted assignee or transferee as of
the date hereof or any time subsequent thereto, including Common Stock acquired
in the Tender Offer, by exercise of any top up or other rights to purchase
Common Stock under the Governance Agreement, or otherwise.
'Registration Expenses' means: (i) registration, qualification and filing
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fees; (ii) fees and expenses of compliance with securities or blue sky laws
(including reasonable fees and disbursements of counsel in connection with blue
sky qualifications or registration of any Registrable Securities being
registered under the Securities Act or any applicable state securities or blue
sky laws); (iii) printing expenses; (iv) fees and disbursements of counsel for
Newco and customary fees and expenses for independent certified public
accountants retained by Newco (including the expenses of any comfort letters or
costs associated with the delivery by independent certified public accountants
of comfort letters customarily requested by underwriters); and (v) fees and
expenses of listing any Registrable Securities on any securities exchange or
automated quotation system on which the Common Stock is then listed or quoted,
but in all events excluding the compensation of regular employees of Newco and
excluding underwriter's fees, discounts and commissions.
'Registration Statement' means any registration statement or similar
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document under the Securities Act or any successor thereto that covers any of
the Registrable Securities pursuant to the provisions of this Agreement,
including the prospectus or preliminary prospectus included therein, all
amendments and supplements to such Registration Statement, including post-
effective
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amendments, all exhibits to such Registration Statement and all material
incorporated by reference in such Registration Statement.
'Rule 144' means Rule 144 promulgated under the Securities Act or any
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successor rule thereto.
'Rule 144A' mean Rule 144A promulgated under the Securities Act or any
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successor rule thereto.
'SEC' means the Securities and Exchange Commission.
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'Securities Act' means the Securities Act of 1933, as amended, and the
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rules and regulations promulgated thereunder as in effect at the time.
Section 1.2. Construction. The definitions in Section 1.1 shall apply
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equally to both the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words 'include,' 'includes,' and 'including'
shall be deemed to be followed by the phrase 'without limitation.' All
references to Articles and Sections shall be deemed to be references to Articles
and Sections of this Agreement unless the context otherwise requires. The
headings of the Articles and Sections are inserted for convenience of reference
only and are not intended to be a part of or to affect the meaning or
interpretation of this Agreement. Unless the context otherwise requires or
provides, any reference to any agreement or other instrument or statute or
regulation is to such agreement, instrument, statute or regulation as amended
and supplemented from time to time (and, in the case of a statute or regulation,
to any successor provision).
ARTICLE 2.
DEMAND REGISTRATION
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Section 2.1 If Newco shall receive a written request from Sprint, or if
Sprint is not a Holder at such time, from Holders who in the aggregate hold a
majority of the Registrable Securities (in either case, collectively, the
'Initiating Holders') that Newco file a Registration Statement under the
Securities Act covering the registration of any or all of such Holder's
Registrable Securities, then Newco shall (i) within 10 days of the receipt
thereof, give written notice of such request to all Holders of outstanding
Registrable Securities known to Newco and to any additional addressees provided
to Newco by any transferee of any Holder, and (ii) subject to the limitations
contained in this Article 2, as soon as practicable and in any event within 45
days of the receipt of such request, file the Registration Statement to effect
registration under the Securities Act covering all Registrable Securities for
which Newco receives a request from the Holders and transferees thereof within
30 days of the delivery of the notice by Newco as required in clause (i) above.
Newco, however, shall not be required to file a Registration Statement pursuant
to this Article 2 unless the aggregate number of Registrable Securities
requested to be registered is greater than 750,000 (as adjusted to reflect stock
splits, reverse stock splits, stock dividends and similar actions).
Section 2.2 If an Initiating Holder intends to distribute the Registrable
Securities covered by its request by means of an underwriting, it shall so
advise Newco as a part of its request made pursuant to Section 2.1 and Newco
shall include such information in the written notice to the Holders referred to
in Section 2.1. In such event, the right of any Holder to include its
Registrable Securities in such registration shall be conditioned upon such
Holder's participation in the underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided herein. All
Holders proposing to sell Registrable Securities through such underwriting
(together with Newco as provided in Section 4.1(ix) of this Agreement and any
other holder of shares of Common Stock permitted to participate in such
registration pursuant to this Section 2.2) shall enter into an underwriting
agreement in customary form with the underwriter or underwriters selected for
such underwriting by the Initiating Holder(s) (provided the same are
underwriters of recognized national standing, and provided that such selection
is subject to the approval of Newco, which shall not be unreasonably withheld)
upon the terms and conditions agreed upon among Newco, the Initiating Holder(s)
and such underwriter(s). Notwithstanding any other provision of this Article 2,
if the underwriter(s) advise the Initiating Holder(s) and Newco in writing that
marketing or other factors require a limitation of the number of Registrable
Securities to be underwritten, then Newco shall so advise all Holders of
Registrable Securities that would otherwise be underwritten pursuant hereto, and
the number of Registrable Securities that may be included in the underwriting
shall be allocated among all Holders thereof, including the Initiating
Holder(s), in proportion (as nearly as practicable) to the number of Registrable
Securities which each Holder requested to be included in such registration;
provided, that there shall be no reduction in the number of shares included in
the registration by Sprint or its successor until all shares of Holders other
than Sprint or its successor have been excluded from such registration. If the
number of Registrable Securities to be underwritten has not been so limited,
Newco may include shares of Common Stock for its own account (or for the account
of other shareholders) in such registration if the underwriter(s) so agree and
to the extent that, in the opinion of such underwriter(s), the inclusion of such
additional shares will not adversely affect the offering and successful
marketing of the Registrable Securities included in such registration and if the
number of Registrable Securities that would otherwise have been included in such
registration and underwriting will not thereby be limited.
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Section 2.3 Newco shall not be obligated to effect a total of more than
four (4) registrations and shall not be obligated to cause any registration
pursuant to this Article 2 to be declared effective unless at least nine months
have elapsed since the prior Registration Statement filed pursuant to Article II
ceased to be effective.
ARTICLE 3.
INCIDENTAL REGISTRATION
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If at any time (but without any obligation to do so) Newco proposes to
register (including a registration effected by Newco for shareholders other than
the Holders) any shares of Common Stock under the Securities Act in connection
with the public offering of such shares solely for cash on any form of
Registration Statement in which the inclusion of Registrable Securities is
appropriate (other than a registration (i) relating solely to the sale of
securities to participants in a Company stock or stock option plan, (ii)
pursuant to a Registration Statement on Form S-4 or Form S-8 (or any successor
forms) or any form that does not include substantially the same information,
other than information relating to the selling shareholders or their plan of
distribution, as would be required to be included in a Registration Statement
covering the sale of Registrable Securities, (iii) in connection with any
dividend reinvestment or similar plan, or (iv) for the sole purpose of offering
securities to another entity or its security holders in connection with the
acquisition of assets or securities of such entity or any similar business
combinations transaction), Newco shall promptly give each Holder written notice
of such registration at least 10 days before the anticipated filing date of any
such Registration Statement. Such notice shall describe fully the proposed
method of distribution of the securities being registered. If the registration
of which Newco gives notice is for a registered public offering involving an
underwriting, Newco shall so advise each of the Holders as a part of the written
notice given pursuant to this Article. Upon the written request of any Holder
given within 10 days after the delivery of such notice by Newco, Newco shall
cause to be registered under the Securities Act all of the Registrable
Securities that such Holder has so requested to be registered. Newco may decline
to file a Registration Statement after giving notice to the Holders, or withdraw
a Registration Statement after filing and after such notice, but prior to the
effectiveness thereof, provided that Newco shall promptly notify each Holder of
Registrable Securities in writing of any such action and provided further that
Newco shall bear all out-of-pocket expenses incurred by each Holder or otherwise
in connection with such declined or withdrawn Registration Statement. Further,
any such declining or withdrawal shall be without prejudice to the rights (if
any) of the Holders immediately to request that such registration be effected as
a registration under Article 2. The right of any Holder to have Registrable
Securities included in such Registration Statement shall be conditioned upon
participation in any underwriting to the extent provided herein. Newco shall not
be required to include any Registrable Securities in such underwriting unless
the Holders thereof agree to enter into an underwriting agreement in customary
form, and upon terms and conditions agreed upon among such Holders, Newco and
the underwriter(s), with the underwriter(s) selected by Newco. In the event that
the underwriter(s) shall advise Newco that marketing or other factors require a
limitation of the number of shares to be underwritten, then Newco shall so
advise all Holders of Registrable Securities that would otherwise be
underwritten pursuant hereto. The underwriter(s) may exclude some or all of the
Registrable Securities from such underwriting and the number of Registrable
Securities, if any, that may be included in the underwriting shall be allocated
among all Holders thereof in proportion (as nearly as practicable) to the number
of Registrable Securities which each Holder requested be included in such
registration. Nothing in this Article 3 is intended to diminish the number of
shares to be sold by Newco in such underwriting. Newco and the underwriter(s)
selected by Newco shall make all determinations with respect to the timing,
pricing and other matters related to the offering, provided that no Holder shall
be obligated to sell any Registrable Securities in such offering and may be
withdrawn at any time for any reason, including a disagreement with respect to
the timing, pricing and other matters related to the offering.
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ARTICLE 4.
REGISTRATION PROCEDURE
Section 4.1 Whenever required under this Agreement to effect the
registration of any Registrable Securities, Newco shall, as expeditiously as
reasonably practicable:
(i) Prepare and file with the SEC as soon as practicable a new
Registration Statement with respect to such Registrable Securities and use
its reasonable best efforts to cause such Registration Statement to become
effective as promptly as practicable, and keep such Registration Statement
continuously effective for up to 120 days; provided, however, that no
Registration Statement need remain in effect after all Registrable
Securities covered thereby have been sold and the confirmation of sale and
prospectus delivery requirements of the Securities Act and applicable state
securities or blue sky laws have been effected.
(ii) Furnish to each Holder and to any underwriter, before filing
with the SEC, copies of any Registration Statement (including all exhibits)
and any prospectus forming a part thereof and any amendments and
supplements thereto (including all documents incorporated or deemed
incorporated by reference therein prior to the effectiveness of such
Registration Statement and including each preliminary prospectus, any
summary prospectus or any term sheet (as such term is used in Rule 434
under the Securities Act)) and any other prospectus filed under Rule 424
under the Securities Act, which documents, other than documents
incorporated or deemed incorporated by reference, will be subject to the
review of the Holders and any such underwriter for a period of at least two
business days. Newco shall not file any such Registration Statement or such
prospectus or any amendment or supplement to such Registration Statement or
prospectus to which any Holder or any such underwriter shall reasonably
object within two business days after the receipt thereof. A Holder or such
underwriters, if any, may only object to such filing if the Registration
Statement, amendment, prospectus or supplement, as applicable, as proposed
to be filed, contains a material misstatement or omission.
(iii) Prepare and file with the SEC such amendments and supplements to
such Registration Statement and the prospectus used in connection with such
Registration Statement as may be necessary to comply with the provisions of
the Securities Act with respect to the disposition of all securities
covered by such Registration Statement.
(iv) Furnish to the Holders of Registrable Securities to be
registered and to any underwriter, without charge, such number of copies of
a prospectus, including each preliminary prospectus, summary prospectus or
term sheet, and any amendment or supplement thereto as they may, from time
to time, reasonably request and a reasonable number of copies of the then-
effective Registration Statement and any post-effective amendment thereto,
including financial statements and schedules, all documents incorporated
therein by reference and all exhibits (including those incorporated by
reference).
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(v) To the extent practicable, promptly prior to the filing of any
document that is to be incorporated by reference into any Registration
Statement or prospectus forming a part thereof subsequent to the
effectiveness thereof, and in any event no later than the date such
document is filed with the SEC, provide copies of such document to the
Holders of Registrable Securities covered thereby and any underwriter and
make representatives of Newco available for discussion of such document and
other customary due diligence matters, and include in such document prior
to the filing thereof such information as any Holder or any such
underwriter may reasonably request.
(vi) Use its reasonable best efforts (x) to register and qualify the
securities covered by such Registration Statement under such other
securities or blue sky laws of such jurisdictions as shall be reasonably
requested by the Holders, (y) to keep such registration or qualification in
effect for so long as the applicable Registration Statement remains in
effect, and (z) to take any other action which may be reasonably necessary
or advisable to enable such Holders to consummate the disposition in such
jurisdictions of the securities to be sold by such Holders; provided,
however, that Newco shall not be required to qualify to do business or to
file a general consent to service of process in any such states or
jurisdictions where it would not otherwise be required to so qualify to do
business or consent to service of process or subject itself to taxation in
any such jurisdiction.
(vii) Use its reasonable best efforts to cause all Registrable
Securities covered by such Registration Statement to be registered with or
approved by such other federal or state governmental agencies or
authorities as may be necessary in the opinion of counsel to Newco and
counsel to the Holders of Registrable Securities to enable the Holders
thereof to consummate the disposition of such Registrable Securities.
(viii) Cooperate with the Holders of Registrable Securities and each
underwriter participating in the disposition of such Registrable Securities
and their respective counsel in connection with any filings required to be
made with the National Association of Securities Dealers, Inc.
(ix) In the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in usual and
customary form, with the underwriter(s) of such offering, with such terms
and conditions as Newco, the Holders and the underwriter(s) may reasonably
agree, including customary indemnification and contribution obligations of
the type contemplated by Article 8 hereof. Newco agrees to cause the
participation by senior management of Newco in such meetings with and
presentations (including the provision of all customary information in
connection therewith) to investors, analysts, investment banking firms and
other institutions as are usual and customary in connection with the public
offering of registered securities by companies similar to Newco. Each
Holder participating in such underwriting shall also enter into and perform
its obligations under such an agreement; provided, that no Holder shall be
required to make any
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representation concerning information in a Registration Statement that is
more broad than the information for which such Holder has agreed to provide
indemnity under Section 8.2.
(x) Promptly notify each Holder of Registrable Securities covered by
a Registration Statement (A) upon discovery that, or upon the happening of
any event as a result of which, the prospectus forming a part of such
Registration Statement, as then in effect, includes an untrue statement of
a material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, (B) of the
issuance by the SEC of any stop order suspending the effectiveness of such
Registration Statement or the initiation of proceedings for that purpose,
(C) of any request by the SEC for (1) amendments to such Registration
Statement or any document incorporated or deemed to be incorporated by
reference in any such Registration Statement, (2) supplements to the
prospectus forming a part of such Registration Statement or (3) additional
information, or (D) of the receipt by Newco of any notification with
respect to the suspension of the qualification or exemption from
qualification of any of the Registrable Securities for sale in any
jurisdiction or the initiation of any proceeding for such purpose, and at
the request of any such Holder promptly prepare, file with the SEC and
other required agency, and furnish to it a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary or
take other action so that, as applicable, (a) as thereafter delivered to
the purchasers of such securities, such prospectus shall not include an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, (b) such stop order is lifted at the earliest possible time, or
the proceedings that might otherwise lead to a stop order are terminated at
the earliest practicable time, (c) such request by the SEC is satisfied, or
(d) such suspension is lifted at the earliest possible time.
(xi) Use its reasonable best efforts to obtain the withdrawal of any
order suspending the effectiveness of any such registration, or the lifting
of any suspension of the qualification (or exemption from qualification) of
any of the Registrable Securities for sale in any jurisdiction.
(xii) If requested by any Initiating Holder, or any underwriter,
promptly incorporate in such Registration Statement or prospectus, pursuant
to a supplement or post-effective amendment if necessary, such information
as the Initiating Holder and any underwriter may reasonably request to have
included therein, including information relating to the 'plan of
distribution' of the Registrable Securities, information with respect to
the principal amount or number of shares of Registrable Securities being
sold to such underwriter, the purchase price being paid therefor and any
other terms of the offering of the Registrable Securities to be sold in
such offering and make all required filings of any such prospectus
supplement or post-effective amendment as soon as practicable after Newco
is notified of the matters to be incorporated in such prospectus supplement
or post-effective amendment.
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(xiii) Otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the SEC, and make available to its
security holders, as soon as reasonably practicable, an earnings statement
covering the period of at least 12 months, but not more than 18 months,
beginning after the effective date of such Registration Statement, which
earnings statement shall satisfy the provision of Section 11(a) of the
Securities Act and Rule 158 promulgated thereunder.
(xiv) Provide promptly to the Holders upon request any document
filed by Newco with the SEC pursuant to the requirements of Section 13 and
Section 15 of the Exchange Act.
(xv) Cause all Registrable Securities covered by the Registration
Statement to be listed on each securities exchange or automated quotation
system on which shares of the Common Stock is then listed. If any of such
shares are not so listed, Newco shall cause such shares to be listed on the
securities exchange or automated quotation system as may be reasonably
requested by the Holders of a majority of the Registrable Securities being
registered.
(xvi) Furnish to the Holders, at the request of any Holder
requesting registration pursuant to this Agreement, (A) an opinion of
counsel representing Newco for the purposes of such registration addressed
to such Holder and dated the date of the closing under the underwriting
agreement, if any, or the date of effectiveness of the Registration
Statement if such registration is not an underwritten offering, and (B) if
such accountant will render such letter to such Holders, a 'comfort' letter
from independent certified public accountants of Newco who have certified
Newco's financial statements included in such registration with respect to
events included in and subsequent to the date of such financial statements,
in each case to be dated such date and to be in form and substance as is
customarily given by counsel or independent certified public accountants,
as the case may be, to underwriters in an underwritten public offering,
addressed to the underwriters.
(xvii) Permit a representative of any Holder of Registrable
Securities, any underwriter participating in any disposition pursuant to
such registration, and any attorney or accountant retained by such Holder
or underwriter, to participate, at each Person's own expense, in the
preparation of the Registration Statement, and cause Newco's officers,
directors and employees to supply all information reasonably requested by
any such representative, underwriter, attorney or accountant in connection
with such registration; provided, however, that such representatives,
underwriters, attorneys or accountants enter into a confidentiality
agreement, in form and substance reasonably satisfactory to Newco, prior to
the release or disclosure of any such information.
(xviii) Promptly notify the Holders and any underwriter when any
Registration Statement filed pursuant to this Agreement is declared
effective.
Notwithstanding the foregoing, Newco may delay, suspend or withdraw any
registration or qualification of Registrable Securities required pursuant to
this Agreement for a period not exceeding
12
120 days if Newco shall in good faith determine that any such registration would
adversely affect an offering or contemplated offering of any securities of Newco
or any other contemplated material corporate event (including requiring the
premature disclosure of such event); provided that (i) there shall be no more
than three such discontinuances during any two-year period, and (ii) if Newco
imposes such a suspension or a postponement pursuant to this Article 4 following
the printing and distribution of a preliminary prospectus in any underwritten
public offering of Registrable Securities (except such suspension, not to exceed
fifteen days, which results from an event that is not within the reasonable
control of Newco), then Newco shall reimburse the Holder for such printing
expenses and all other Registration Expenses incurred in connection therewith by
the Holder.
ARTICLE 5.
HOLDER'S OBLIGATION TO FURNISH INFORMATION
It shall be a condition precedent to the obligations of Newco to take any
action pursuant to this Agreement with respect to any Registrable Securities
that the Holder of such securities furnish to Newco such information regarding
itself, the Registrable Securities held by it, and the intended method of
disposition of such securities as shall be required to effect the registration
of such Holder's Registrable Securities.
Each Holder agrees that, upon receipt of any notice from Newco, such Holder
will forthwith discontinue disposition of Registrable Securities pursuant to the
then current prospectus until (i) such Holder is advised in writing by Newco
that a new Registration Statement covering the reoffer of Registrable Securities
has become effective under the Securities Act, (ii) such Holder receives copies
of a supplemented or amended prospectus contemplated by Article 4 which
addresses any additional information, including material nonpublic information,
required to be disclosed therein, or until such Holder is advised in writing by
Newco that the use of the prospectus may be resumed, or (iii) a period of 75
days has elapsed, whichever is sooner. Newco shall use its reasonable best
efforts to limit the duration of any discontinuance of disposition of
Registrable Securities pursuant to this paragraph.
13
ARTICLE 6.
REGISTRATION EXPENSES
In the case of any demand registration pursuant to Article 2, Newco shall
pay all Registration Expenses. In the case of any incidental registration
pursuant to Article 3, the requesting Holders shall bear the pro rata share of
underwriter's fees, discounts and commissions incurred in such registration and
any incremental Registration Expenses, in each case, including (i) incremental
registration and qualification fees and expenses, and (ii) any incremental costs
and disbursements (including legal fees and expenses) that result from the
inclusion of the Registrable Securities included in such registration, with such
incremental expenses being borne by the requesting Holders on a pro rata basis.
Notwithstanding the foregoing, if, as a result of the withdrawal of a request
for registration pursuant to Article 2 by any of the Holders, as applicable, the
Registration Statement does not become effective, the Holders and the other
stockholders requesting registration may elect to bear the Registration Expenses
(pro rata on the basis of the number of their shares included in the
registration request, or on such other basis as such Holders and other
stockholders may agree), in which case such registration shall not be counted as
a registration requested under Section 2.3.
ARTICLE 7.
EFFECTIVENESS OF REGISTRATION
A registration requested pursuant to Article 2 will not be deemed to have
been effected if (i) the Registration Statement has not been kept effective for
the period required under Section 4.1(i) of this Agreement, (ii) the offering of
Registrable Securities pursuant to such registration is interfered with by any
stop order, injunction or other order or requirement of the SEC or other
governmental agency or court, (iii) the conditions to the closing of any such
registration that is underwritten are not satisfied, unless such conditions have
not been satisfied by the Holders participating in the underwriting, or (iv)
Newco has not complied with the terms of this Agreement, including Article 4.
ARTICLE 8.
INDEMNIFICATION AND CONTRIBUTION
14
Section 8.1 In the event any Registrable Securities are included in a
Registration Statement pursuant to this Agreement, Newco will indemnify and hold
harmless each Holder, each Person, if any, who 'controls' such Holder (within
the meaning of the Securities Act or the Exchange Act) and their respective
directors, officers, employees and agents against all losses, claims, damages,
or liabilities, joint or several, or actions in respect thereof to which such
Holder or other Person entitled to indemnification hereunder may become subject
under the Securities Act, the Exchange Act, state securities or blue sky law,
common law or otherwise, insofar as such losses, claims, damages, liabilities or
actions in respect thereof arise out of, or are based upon, any untrue statement
or alleged untrue statement of any material fact contained in such Registration
Statement, any related preliminary prospectus, or any related prospectus or any
amendment or supplement thereto, offering circular or other document (including
any related notification or the like) incident to any such registration,
qualification or compliance, 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, or any violation by
Newco of the Securities Act, the Exchange Act, state securities or blue sky law,
common law or otherwise and relating to action or inaction required of Newco in
connection with any such registration, qualification or compliance, and Newco
will reimburse each such Holder or other Person entitled to indemnification
hereunder for any legal or other expenses reasonably incurred by it in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that Newco will not be so liable to the
extent that any such loss, claim, damage, liability or action arises out of, or
is based upon, an untrue statement or alleged untrue statement of a material
fact or an omission or alleged omission to state a material fact in such
Registration Statement, such preliminary prospectus, or such prospectus, or any
such amendment or supplement thereto, offering circular or other document
(including any related notification or the like) incident to any registration,
qualification or compliance, in reliance upon, and in conformity with, written
information furnished to Newco by the Holder specifically for use therein.
Newco will also indemnify underwriters and dealer managers participating in the
distribution, each Person who 'controls' such Persons (within the meaning of the
Securities Act or the Exchange Act), and their respective officers, directors,
employees and agents to the same extent as provided above with respect to the
indemnification of the Holders, if so requested, except (i) with respect to
information furnished in writing specifically for use in any prospectus or
Registration Statement by any selling Holders or any such underwriters, or (ii)
to the extent that any such loss, claim, damage, liability or action is solely
attributable to such underwriter's failure to deliver a final prospectus (or
amendment or supplement thereto) that corrects a material misstatement or
omission contained in the preliminary prospectus (or final prospectus).
15
Section 8.2 With respect to written information furnished to Newco by a
Holder specifically for use in a Registration Statement, any related preliminary
prospectus, or any related prospectus or any supplement or amendment thereto,
offering circular or other document (including any related notification or the
like) incident to any registration, qualification or compliance, if Registrable
Securities held by it are included in the securities as to which such
registration, qualification or compliance is being effected, such Holder will
severally indemnify and hold harmless Newco and its directors, officers,
employees, agents and each Person, if any, who 'controls' Newco (within the
meaning of the Securities Act or the Exchange Act) and any other Holder against
any losses, claims, damages or liabilities, joint or several, or actions in
respect thereof, to which Newco or such other Person entitled to indemnification
hereunder may become subject under the Securities Act, the Exchange Act, state
securities or blue sky laws, common law or otherwise, insofar as such losses,
claims, damages, liabilities or actions in respect thereof arise out of, or are
based upon, any untrue statement or alleged untrue statement of any material
fact contained in such Registration Statement, such preliminary prospectus, or
such prospectus, or any such amendment or supplement thereto, offering circular
or other document (including any related notification or the like) incident to
any registration, qualification or compliance, or arise out of, or are based
upon, the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading;
and such Holder will reimburse Newco and such other Persons for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action, in each case to the
extent, but only to the extent, that the same arises out of, or is based upon,
an untrue statement or alleged untrue statement of material fact or an omission
or alleged omission to state a material fact in such Registration Statement,
such preliminary prospectus, or such prospectus or any such amendment or
supplement thereto in reliance upon, and in conformity with, such written
information; provided, however, that the obligations of each of the Holders
hereunder shall be limited to an amount equal to the net proceeds to such Holder
of Registrable Securities sold as contemplated herein. Newco shall be entitled
to receive indemnities from underwriters, selling brokers, dealer managers and
similar securities industry professionals participating in the distribution, to
the same extent as provided above with respect to the information so furnished
in writing by such Persons specifically for inclusion in any prospectus or
Registration Statement. The Holder will also indemnify underwriters and dealer
managers participating in the distribution and each Person who 'controls' such
Persons (within the meaning of the Securities Act or the Exchange Act), their
officers, directors, employees and agents to the same extent as provided herein
with respect to the indemnification of Newco, if so requested.
Section 8.3 Promptly after receipt by an indemnified Party of notice of
any claim or the commencement of any action, the indemnified Party will, if a
claim in respect thereof is to be made against the indemnifying Party, notify
the indemnifying Party in writing of the claim or the commencement of that
action; provided, however, that the failure to notify the indemnifying Party
will not relieve it from any liability that it may have to the indemnified Party
except to the extent it was actually damaged or suffered any loss or incurred
any additional expense as a result thereof. If any such claim or action is
brought against an indemnified Party, and it notifies the indemnifying Party
thereof, the indemnifying Party will be entitled to assume the defense thereof
with counsel selected by the indemnifying Party and 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
16
action, (i) the indemnifying Party will not be liable to the indemnified Party
for any legal or other expense subsequently incurred by the indemnified Party in
connection with the defense thereof, (ii) the indemnifying Party will not be
liable for the costs and expenses of any settlement of such claim or action
unless such settlement was effected with the written consent of the indemnifying
Party or the indemnified Party waived any rights to indemnification hereunder in
writing, in which case the indemnified Party may effect a settlement without
such consent, and (iii) the indemnified Party will be obligated to cooperate
with the indemnifying Party in the investigation of such claim or action;
provided, however, that the indemnified Party who may be subject to liability
arising out of any claim in respect of which indemnity may be sought by such
indemnified Party against Newco may employ its own counsel if such indemnified
Party has been advised by counsel in writing that, in the reasonable judgment of
such counsel, it is advisable for such indemnified Party to be represented by
separate counsel due to the presence of actual or potential conflicts of
interest, and in that event the fees and expenses of such separate counsel will
also be paid by Newco; provided that Newco shall not be liable for the
reasonable fees and expenses of more than one separate counsel at any time for
all such indemnified parties. An indemnifying Party shall not, without the prior
written consent of the indemnified parties, settle, compromise or consent to the
entry of any judgment with respect to any pending or threatened claim, action,
suit or proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes a release of such indemnified Party reasonably acceptable to such
indemnified Party from all liability arising out of such claim, action, suit or
proceeding and unless the indemnifying Party shall confirm in a written
agreement reasonably acceptable to such indemnified Party, that notwithstanding
any federal, state or common law, such settlement, compromise or consent shall
not adversely affect the right of any indemnified Party to indemnification or
contribution as provided in this Agreement.
Section 8.4 If for any reason the indemnification provided for in
Sections 8.1 or 8.2 is unavailable to an indemnified Party or is insufficient to
hold such indemnified Party harmless as contemplated therein, then the
indemnifying Party shall contribute to the amount paid or payable by the
indemnified Party as a result of such loss, claim , damage or liability in such
proportion as is appropriate to reflect not only the relative benefits received
by the indemnifying Party and the indemnified Party, but also the relative fault
of the indemnifying Party and the indemnified Party, as well as any other
relevant equitable considerations. The relative fault of the indemnifying Party
and of the indemnified Party shall be determined by reference to, among other
things, whether the untrue (or alleged untrue) statement of a material fact or
the omission (or alleged omission) to state a material fact relates to
information supplied by the indemnifying Party or by the indemnified Party and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission; provided, however, that the
obligations of each of the Holders hereunder shall be limited to an amount equal
to the net proceeds to such Holder of Registrable Securities sold as
contemplated herein. 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.
17
Section 8.5 The obligations under this Article 8 shall survive the
completion of any offering of Registrable Securities in a Registration Statement
pursuant to this Agreement, and otherwise.
Section 8.6 Notwithstanding the foregoing provisions of this Article 8,
to the extent that the provisions regarding indemnification and contribution
contained in the underwriting agreement entered into in connection with any
underwritten public offering contemplated by this Agreement are in conflict with
the foregoing provisions, the provisions in such underwriting agreement shall be
controlling, provided that each Holder, each Person, if any, who controls such
Holder (within the meaning of the Securities Act or the Exchange Act) and their
respective directors, officers, employees and agents receive protection at least
as extensively and are subject to obligations that are no more extensive, than
those set forth in this Article 8.
ARTICLE 9.
REPORTS UNDER EXCHANGE ACT
With a view to making available to the Holders the benefits of Rule 144 and
any other rule or regulation of the SEC that may at any time permit a Holder to
sell securities of Newco to the public without registration, Newco agrees that
so long as Newco is subject to the reporting requirements of the Exchange Act,
to:
(1) Make and keep public information available, as those terms are
understood and defined in Rule 144;
(2) File with the SEC in a timely manner all reports and other
documents required of Newco under the Securities Act and the Exchange Act;
and
(3) Furnish to any Holder, so long as the Holder owns any Registrable
Securities, upon request (a) a written statement by Newco as to its
compliance with the reporting requirements of Rule 144, the Securities Act
and the Exchange Act, (b) a copy of the most recent annual or quarterly
report of Newco and such other reports and documents so filed by Newco, and
(c) such other information as may be reasonably requested in availing any
Holder of any rule or regulation of the SEC which permits the selling of
any such securities without registration or pursuant to such form.
ARTICLE 10.
18
ASSIGNMENT OF REGISTRATION RIGHTS
The Holders' rights pursuant to this Agreement may not be assigned or
transferred by any Holder without the consent of Newco; provided, however, that
any transfer or assignment of the Common Stock or the Convertible Securities
permitted pursuant to the Governance Agreement, including any assignment or
transfer to an Affiliate of Sprint or any transfer pursuant to any merger or
sale of substantially all of the assets of Sprint or such Affiliates shall also
cause a permitted transfer or assignment of the rights under this Agreement and,
provided, further, that assignment or transfer may be made by (i) Sprint to any
of its Affiliates, (ii) any Affiliate of Sprint to any other Affiliate of
Sprint, or (iii) pursuant to any merger or sale of substantially all of the
assets of Sprint or such Affiliates (or any transaction having such effect)
without the consent of Newco. Such an assignment or transfer shall be in
accordance with all applicable securities laws.
ARTICLE 11.
AMENDMENT OF REGISTRATION RIGHTS
Any provision of this Agreement may be amended or the observance thereof
may be waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of Newco and the
Holders of a majority of Registrable Securities then outstanding. Any amendment
or waiver effected in accordance with this Section shall be binding upon each
Holder of any Registrable Securities, each future Holder of such Registrable
Securities and Newco.
ARTICLE 12.
STAND-OFF AGREEMENT
Any Holder, if requested by Newco or an underwriter of an underwritten
public offering, agrees not to sell, make any short sale of, loan, grant any
option for the purchase of, or otherwise transfer or dispose of any Common Stock
held by such Holder (other than Registrable Securities included in the
registration) without the prior written consent of Newco or such underwriter(s),
as the case may be, during a period of up to five days prior to the pricing of
such public offering and 90 days following the effective date of any
underwritten registration of Newco's securities effected pursuant to Articles 2
or 3. Such agreement shall be in writing in form satisfactory to Newco and such
underwriter, and may be included in the underwriting agreement. Newco may impose
stop-transfer instructions with respect to the securities subject to the
foregoing restriction until the end of the required stand-off period.
ARTICLE 13.
19
TERMINATION OF REGISTRATION RIGHTS
If the number of shares of Registrable Securities owned by a Holder
represents less than one percent (1%) of the total number of shares of Common
Stock then outstanding, then such Holder's registration rights under this
Agreement relating to such Registrable Securities shall terminate on the date
such Holder is able to dispose of all of its shares of Registrable Securities in
any 90-day period pursuant to Rule 144. All registration rights (except for
rights previously exercised in connection with an underwritten public offering
pursuant to Article 3) of a Holder under this Agreement shall terminate on the
date on which all of such Holder's shares of Registrable Securities can be sold
pursuant to Rule 144(k).
ARTICLE 14.
COMPANY OPTION
Notwithstanding any provision to the contrary, Newco shall be granted an
option to purchase the number of shares of Registrable Securities set forth in a
Holder's written request that such Registrable Securities shall be Registered
pursuant to Article 2 or Article 3, which must be exercised by delivering
written notice of exercise to Sprint within ten business days after receipt of
such notice. The exercise price per share under such option shall be the average
Closing Price for a period of 20 trading days immediately preceding the date of
such written request for Registration. The aggregate purchase price shall be
paid to Holders, based on the number of Registrable Shares proposed to be sold
as set forth in such notice, and shall be payable in cash by wire transfer of
immediately available funds to the accounts specified in wire transfer
instructions supplied by a duly authorized officer of a Holder with respect to
payments due such Holder.
ARTICLE 15.
EXERCISE OF RIGHTS
Notwithstanding any other provision of this Agreement to the contrary, the
Holders may not exercise rights to Register Registrable Securities hereunder
until 27 months have elapsed after the Closing Date. Notwithstanding anything
herein to the contrary, during such 27 month period, Newco will not be obligated
to provide to the Holders notice of a registration as otherwise required under
Article 3.
ARTICLE 16.
20
MISCELLANEOUS
Section 16.1 Confidential Information. No Holder may use any
------------------------
confidential information received by it pursuant to this Agreement in violation
of the Exchange Act or reproduce, disclose, or disseminate such information to
any other Person (other than its employees or agents having a need to know the
contents of such information and its accountants and attorneys), except to the
extent reasonably related to the exercise of rights under this Agreement, unless
(i) such information has been made available to the public generally (other than
by such recipient in violation of this Section 16.1), or (ii) such recipient is
required to disclose such information by a governmental body, regulatory agency
or subpoena or by law in connection with a transaction that is not otherwise
prohibited hereby and, to the extent possible, Newco is given a reasonable
opportunity to obtain injunctive relief or a protective order to maintain the
confidentiality of such information.
Section 16.2 Notices. Unless otherwise provided herein, any notice,
-------
request, waiver, instruction, consent or document or other communication
required or permitted to be given by this Agreement shall be effective only if
it is in writing and (a) delivered by hand or sent by certified mail, return
receipt requested, (b) if sent by a nationally-recognized overnight delivery
service with delivery confirmed, or (c) if telexed or telecopied, with receipt
confirmed as follows:
Newco: Dolphin, Inc.
3100 New York Drive
Pasadena, California 91107
Attn: President and Chief Executive Officer
Telecopy No.: (626) 296-2161
with a copy to: Hunton & Williams
NationsBank Plaza, Suite 4100
600 Peachtree Street, N.E.
Atlanta, Georgia 30308-2216
Attn: Scott M. Hobby, Esq.
Telecopy No.: (404) 888-4190
Sprint: Sprint Corporation
2330 Shawnee Mission Parkway
Westwood, Kansas 66205
Attn: Chief Financial Officer
Telecopy No.: (913) 624-8426
with a copy to: Sprint Corporation
2330 Shawnee Mission Parkway
Westwood, Kansas 66205
Attn: Corporate Secretary
Telecopy No.: (913) 624-2256
21
with an additional Stinson, Mag & Fizzell, P.C.
copy to: 1201 Walnut, Suite 2800
P.O. Box 419251
Kansas City, Missouri 64141-6251
Attn: John A. Granda, Esq.
Telecopy No.: (816) 691-3495
The Parties shall promptly notify each other of any change in their respective
addresses or facsimile numbers or of the Person or office to receive notices,
requests or other communications under this Section 16.2. Notice shall be
deemed to have been given as of the date when so personally delivered, when
physically delivered by the U.S. Postal Service at the proper address, the next
day when delivered during business hours to an overnight delivery service
properly addressed or when receipt of a telex or telecopy is confirmed, as the
case may be, unless the sending Party has actual Knowledge (as defined in the
Investment Agreement) that such notice was not received by the intended
recipient.
Section 16.3 Entire Agreement. This Agreement and, upon execution by all
----------------
Parties thereto, the Ancillary Agreements, together with the respective
Schedules and Exhibits hereto and thereto, embodies the entire agreement and
understanding of the Parties in respect to the matter contemplated hereby and
thereby and supersedes and renders null and void all other prior agreements and
understandings, written and oral, with respect to the subject matter hereof and
thereof, provided that this provision shall not abrogate any other written
--------
agreement executed simultaneously with this Agreement by one or more of the
Parties to the Investment Agreement with respect to the Parties signing such
other agreement. No Party shall be liable or bound to any other Party in any
manner by any promises, conditions, representations, warranties, covenants,
agreements and understandings, except as specifically set forth herein or
therein.
Section 16.4 Waiver. Except as otherwise permitted in this Agreement,
------
the terms or conditions of this Agreement may not be waived unless set forth in
a writing signed by the Party entitled to the benefits thereof. No waiver of any
of the provisions of this Agreement shall be deemed or shall constitute a waiver
of such provision at any time in the future or a waiver of any other provision
hereof. The rights and remedies of the Parties are cumulative and not
alternative. Except as otherwise provided in this Agreement, neither the failure
nor any delay by any Party in exercising any right, power or privilege under
this Agreement, or any of the Ancillary Agreements or the documents referred to
in this Agreement or therein will operate as a waiver of such right, power or
privilege, and no single or partial exercise of any such right, power or
privilege will preclude any other or further exercise of such right, power or
privilege or the exercise of any other right, power or privilege.
Section 16.5 Successors and Assigns. Neither this Agreement nor any of
----------------------
the rights, interests or obligations under this Agreement shall be assigned or
transferred, in whole or in part, by any of the Parties without the prior
written consent of the other Parties except as set forth in Article 10. Subject
to the preceding sentence, this Agreement will be binding upon, inure to the
benefit of, and be enforceable by, the parties and their respective successors
and assigns.
22
Section 16.6 Governing Law. This Agreement shall be governed by the laws
-------------
of the State of Delaware, without regard to conflict of laws principles.
Section 16.7 Severability. If any term or provision of this Agreement or
------------
the application thereof to either Party or set of circumstances shall, in any
jurisdiction and to any extent, be finally held invalid or unenforceable, such
term or provision shall only be ineffective as to such jurisdiction, and only to
the extent of such invalidity or unenforceability, without invalidating or
rendering unenforceable any other terms or provisions of this Agreement or under
any other circumstances, and the Parties shall negotiate in good faith a
substitute provision which comes as close as possible to the invalidated or
unenforceable term or provision, and which puts each Party in a position as
nearly comparable as possible to the position it would have been in but for the
finding of invalidity or unenforceability, while remaining valid and
enforceable.
Section 16.8 No Inconsistent Agreements. Newco will not hereafter enter
--------------------------
into any agreement with respect to its securities which is inconsistent with the
rights granted to the Holders of Registrable Securities in this Agreement.
Section 16.9 Remedies. The Parties hereto recognize and agree that
--------
immediate irreparable damages for which there is no adequate remedy at law would
occur in the event that any provision of this Agreement is not performed in
accordance with the specific terms hereof or is otherwise breached. It is
accordingly agreed that in the event of a failure by a Party to perform its
obligations under this Agreement, the non-breaching Party shall be entitled to
specific performance through injunctive relief to prevent breaches of the
provisions of this Agreement and to enforce specifically the provisions of this
Agreement in any action instituted in any court having subject matter
jurisdiction, in addition to any other remedy to which such Party may be
entitled, at law or in equity.
Section 16.10 Counterparts. This Agreement may be executed in one or more
------------
counterparts each of which when so executed and delivered shall for all purposes
be deemed to be an original but all of which, when taken together, shall
constitute one and the same Agreement.
Section 16.11 No Third-Party Beneficiaries. Nothing in this Agreement,
----------------------------
express or implied, shall create or confer upon any Person (including but not
limited to any employees), other than the Parties or their respective successors
and permitted assigns, any legal or equitable rights, remedies, obligations,
liabilities or claims under or with respect to this Agreement, except as
expressly provided herein.
Section 16.12 Interpretation. (a) Each Party is a sophisticated legal
--------------
entity that was advised by experienced counsel and, to the extent it deemed
necessary, other advisors in connection with this Agreement and the Ancillary
Agreements. Accordingly, each Party hereby acknowledges that no Party has
relied or will rely in respect of this Agreement or any Ancillary Agreements or
the transactions contemplated hereby or thereby upon any document or written or
oral information previously furnished to or discovered by it or its
representatives, other than this Agreement or any Ancillary Agreements or the
documents and instruments delivered at the Closing.
23
(b) No provision of this Agreement shall be interpreted in favor of, or
against, either of the Parties by reason of the extent to which either such
Party or its counsel participated in the drafting thereof or by reason of the
extent to which any such provision is inconsistent with any prior draft hereof
or thereof.
Section 16.13 Exclusive Jurisdiction and Consent to Service of Process.
--------------------------------------------------------
The Parties agree that any Action (as defined in the Investment Agreement)
arising out of or relating to this Agreement, shall be brought by the Parties
and held and determined only in a Delaware state court or a federal court
sitting in that State which shall be the exclusive venue of any such Action.
Each Party waives any objection which such Party may now or hereafter have to
the laying of venue of any such Action, and irrevocably consents and submits to
the jurisdiction of any such court (and the appropriate appellate courts) in any
such Action. Any and all service of process and any other notice in any such
Action shall be effective against such Party when transmitted in accordance with
Section 16.02. Nothing contained herein shall be deemed to affect the right of
any Party to serve process in any manner permitted by Law.
Section 16.14 WAIVER OF JURY TRIAL. EACH OF THE PARTIES TO THIS AGREEMENT
--------------------
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT THAT THEY MAY HAVE TO A
TRIAL BY JURY IN ANY ACTION INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER
(WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF,
RELATED TO, OR CONNECTED WITH THIS AGREEMENT OR ANY OTHER ANCILLARY AGREEMENT OR
THE RELATIONSHIP ESTABLISHED HEREUNDER OR THEREUNDER.
Section 16.15 Effectiveness of Agreement. This Agreement shall not become
--------------------------
effective until the Closing (as defined in the Investment Agreement) and then
only if all of the applicable conditions to the Closing have been satisfied or
waived.
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IN WITNESS WHEREOF, the Parties have caused their respective duly
authorized officers to execute this Agreement as of the day and year first above
written.
DOLPHIN, INC.
By: /s/ Charles G. Betty
------------------------------------
Name: Charles G. Betty
Title: President & CEO
SPRINT CORPORATION
By: /s/ Theodore H. Schell
------------------------------------
Name: Theodore H. Schell
Title: Vice President - Strategic
Planning and Corporate
Development
SPRINT COMMUNICATIONS COMPANY L.P.
By: US Telecom, Inc., General Partner
By: /s/ Don A. Jensen
------------------------------------
Name: Don A. Jensen
Title: Vice President and
Secretary
SIGNATURE PAGE FOR REGISTRATION RIGHTS AGREEMENT
25
Registration Rights Agreement - Sprint Corp. and EarthLink Network Inc.
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