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REGISTRATION
RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS
AGREEMENT (this “Agreement”) is made
as of January 27, 2010, by and among Berliner Communications, Inc., a Delaware
corporation (the “Company”), and each
of the Company’s stockholders listed on the Schedule of
Stockholders attached hereto (the “Stockholders”).
WHEREAS, pursuant to that
certain Agreement and Plan of Merger, dated as of the date hereof, by and among
the Company, BCI East, Inc., a Delaware corporation and wholly-owned subsidiary
of the Company, Unitek Holdings, Inc., a Delaware corporation, Rich Berliner
(solely in his capacity as Parent Representative) and HM Capital Partners, LLC
(solely in its capacity as Company Representative) (the “Merger Agreement”),
the Stockholders have the right to receive shares of Common Stock and Preferred
Stock and the Company has agreed to provide the registration rights set forth in
this Agreement in connection with the consummation of the transactions described
in the Merger Agreement.
NOW, THEREFORE, in
consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties to this Agreement hereby agree as
follows:
Section
1. Definitions. Unless
otherwise set forth below or elsewhere in this Agreement, other capitalized
terms contained herein have the meanings set forth in the Merger Agreement, a
copy of which has been provided to and reviewed by the
Stockholders.
“Affiliate” of any
Person means any other Person controlled by, controlling or under common control
with such Person; provided that the
Company and its Subsidiaries shall not be deemed to be Affiliates of any holder
of Registrable Securities. As used in this definition, “control”
(including, with its correlative meanings, “controlling,” “controlled by” and
“under common control with”) shall mean possession, directly or indirectly, of
power to direct or cause the direction of management or policies (whether
through ownership of securities, by contract or otherwise). With
respect to any Person who is an individual, “Affiliates” shall also include,
without limitation, any member of such individual’s Family Group.
“Agreement” has the
meaning set forth in the recitals.
“Capital Stock” means
(i) with respect to any Person that is a corporation, any and all shares,
interests or equivalents in capital stock of such corporation (whether voting or
nonvoting and whether common or preferred) and (ii) with respect to any Person
that is not a corporation, individual or governmental entity, any and all
partnership, membership, limited liability company or other equity interests of
such Person that confer on the holder thereof the right to receive a share of
the profits and losses of, or the distribution of assets of, the issuing Person,
including in each case any and all warrants, rights (including conversion and
exchange rights) and options to purchase any of the foregoing.
“Common Stock” means
the Company’s common stock, par value $.00002 per share, and any Capital Stock
into which such Common Stock may hereafter be converted, changed or
reclassified.
“Company” has the
meaning set forth in the preamble.
“Demand Registrations”
has the meaning set forth in Section
2(a).
“Exchange Act” means
the Securities Exchange Act of 1934, as amended from time to time, or any
successor federal law then in force, together with all rules and regulations
promulgated thereunder.
“Family Group” means,
with respect to a Person who is an individual, (i) such individual’s spouse
and descendants (whether natural or adopted) (collectively, for purposes of this
definition, “relatives”),
(ii) such individual’s executor or personal representative, (iii) any
trust, the trustee of which is such individual or such individual’s executor or
personal representative and which at all times is and remains solely for the
benefit of such individual and/or such individual’s relatives, (iv) any
corporation, limited partnership, limited liability company or other tax
flow-through entity the governing instruments of which provide that such
individual or such individual’s executor or personal representative shall have
the exclusive, nontransferable power to direct the management and policies of
such entity and of which the sole owners of stock, partnership interests,
membership interests or any other equity interests are limited to such
individual, such individual’s relatives and/or the trusts described in clause (iii) above,
and (v) any retirement plan for such individual.
“FINRA” means the
Financial Industry Regulatory Authority, Inc.
“Free Writing
Prospectus” means a free-writing prospectus, as defined in
Rule 405.
“Holdback Extension”
has the meaning set forth in Section
4(b).
“Holdback Period” has
the meaning set forth in Section
4(a).
“Indemnified Parties”
has the meaning set forth in Section
7(a).
“Long-Form
Registrations” has the meaning set forth in Section
2(a).
“Merger Agreement” has
the meaning set forth in the recitals.
“Person” means an
individual, a partnership, a corporation, a limited liability company, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization and a governmental entity or any department, agency or political
subdivision thereof.
“Piggyback
Registrations” has the meaning set forth in Section
3(a).
“Preferred Stock”
means the Company’s preferred stock, par value $.00002 per share, and any
designated series thereof, including, without limitation, the Series A Preferred
and Series B Preferred, and any Capital Stock into which any such Preferred
Stock may hereafter be converted, changed or reclassified.
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“Public Offering”
means any sale or distribution by the Company and/or holders of Registrable
Securities to the public of Common Stock pursuant to an offering registered
under the Securities Act.
“Registrable
Securities” means any Common Stock (including any Common Stock issued
upon the conversion of the Series A Preferred or the Series B Preferred issued
pursuant to the Merger Agreement). As to any particular Registrable
Securities, such securities shall cease to be Registrable Securities when they
have been (a) sold or distributed pursuant to a Public Offering, (b) sold in
compliance with Rule 144 or (c) repurchased by the Company or a Subsidiary of
the Company. For purposes of this Agreement, a Person shall be deemed
to be a holder of Registrable Securities, and the Registrable Securities shall
be deemed to be in existence, whenever such Person has the right to acquire,
directly or indirectly, such Registrable Securities (upon conversion or exercise
in connection with a transfer of securities or otherwise, but disregarding any
restrictions or limitations upon the exercise of such right), whether or not
such acquisition has actually been effected, and such Person shall be entitled
to exercise the rights of a holder of Registrable Securities hereunder; provided that a
holder of Registrable Securities may only request that Registrable Securities in
the form of Common Stock be registered pursuant to and in accordance with this
Agreement.
“Rule 144”, “Rule 405” and “Rule 415” mean, in
each case, such rule promulgated under the Securities Act (or any successor
provision) by the SEC, as the same shall be amended from time to time, or any
successor rule then in force.
“SEC” means the
Securities and Exchange Commission.
“Securities Act” means
the Securities Act of 1933, as amended from time to time, or any successor
federal law then in force, together with all rules and regulations promulgated
thereunder.
“Series A Preferred”
means the Company’s Series A Convertible Preferred Stock, par value $0.00002 per
share, and any Capital Stock into which any such Preferred Stock may hereafter
be converted, changed or reclassified.
“Series B Preferred”
means the Company’s Series B Convertible Preferred Stock, par value $0.00002 per
share, and any Capital Stock into which any such Preferred Stock may hereafter
be converted, changed or reclassified.
“Shelf Registration”
has the meaning set forth in Section
2(c).
“Short-Form
Registrations” has the meaning set forth in Section
2(a).
“Stockholders” has the
meaning set forth in the recitals.
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“Subsidiary” means,
with respect to the Company, any corporation, limited liability company,
partnership, association or other business entity of which (i) if a corporation,
a majority of the total voting power of shares of stock entitled (without regard
to the occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof is at the time owned or controlled, directly or
indirectly, by the Company or one or more of the other Subsidiaries of the
Company or a combination thereof, or (ii) if a limited liability company,
partnership, association or other business entity, a majority of the limited
liability company, partnership or other similar ownership interest thereof is at
the time owned or controlled, directly or indirectly, by the Company or one or
more Subsidiaries of the Company or a combination thereof. For
purposes hereof, a Person or Persons shall be deemed to have a majority
ownership interest in a limited liability company, partnership, association or
other business entity if such Person or Persons shall be allocated a majority of
limited liability company, partnership, association or other business entity
gains or losses or shall be or control the managing director or general partner
of such limited liability company, partnership, association or other business
entity.
“Violation” has the
meaning set forth in Section
7(a).
Section
2. Demand
Registrations.
(a) Requests for
Registration. Subject to the terms and conditions of this
Agreement and any restriction or limitation of the SEC or any rule or regulation
promulgated by the SEC, at any time after the six-month anniversary of the date
hereof, the holders of at least a majority of the Registrable Securities may
request registration under the Securities Act of all or any portion of their
Registrable Securities on Form S-1 or any similar long-form registration (“Long-Form
Registrations”), or on Form S-3 (including pursuant to Rule 415) or
any similar short form registration (“Short-Form
Registrations”) if available. All registrations requested pursuant to
this Section
2(a) are referred to herein as “Demand
Registrations”. Each request for a Demand Registration shall
specify the approximate number of Registrable Securities requested to be
registered and the intended method of distribution. Within ten days
after receipt of any such request, the Company shall give written notice of the
Demand Registration to all other holders of Registrable Securities and, subject
to the terms of Section 2(d), shall
include in such Demand Registration (and in all related registrations and
qualifications under state blue sky laws and in any related underwriting) all
Registrable Securities with respect to which the Company has received written
requests for inclusion therein within 15 days after the receipt of the Company’s
notice.
(b) Long-Form
Registrations. The holders of Registrable Securities shall be
entitled to request two Long-Form Registrations; provided that the
aggregate offering value of the Registrable Securities requested to be
registered in any Long-Form Registration must equal at least
$10,000,000. A registration shall not count as one of the permitted
Long-Form Registrations until it has become effective and remains effective in
accordance with the terms of this Agreement. All Long-Form
Registrations shall be underwritten registrations unless otherwise approved by
the holders of a majority of the Registrable Securities requesting
registration.
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(c) Short-Form
Registrations. In addition to the Long-Form Registrations
provided pursuant to Section 2(b), the
holders of Registrable Securities shall be entitled to request an unlimited
number of Short-Form Registrations; provided that the
aggregate offering value of the Registrable Securities requested to be
registered in any Short-Form Registration must equal at least
$5,000,000. Demand Registrations shall be Short-Form Registrations
whenever the Company is permitted to use any applicable short form and if the
managing underwriters (if any) agree to the use of a Short-Form
Registration. If the holders of a majority of the Registrable
Securities request that a Short Form Registration be filed pursuant to Rule 415
(a “Shelf
Registration”) and the Company is qualified to do so, the Company shall
use its commercially reasonable efforts to cause the Shelf Registration to be
declared effective under the Securities Act as soon as practicable after
filing.
(d) Priority on Demand
Registrations. The Company shall not include in any Demand
Registration any securities which are not Registrable Securities without the
prior written consent of the holders of at least a majority of the Registrable
Securities included in such registration. If a Demand Registration is
an underwritten offering and the managing underwriters advise the Company in
writing that in their opinion the number of Registrable Securities and, if
permitted hereunder, other securities requested to be included in such offering
exceeds the number of Registrable Securities and other securities, if any, which
can be sold therein without adversely affecting the marketability, proposed
offering price, timing or method of distribution of the offering, the Company
shall include in such registration prior to the inclusion of any securities
which are not Registrable Securities the number of Registrable Securities
requested to be included which, in the opinion of such underwriters, can be
sold, without any such adverse effect, pro rata among the respective holders
thereof on the basis of the amount of Registrable Securities owned by each such
holder.
(e) Restrictions on Demand
Registrations. The Company shall not be obligated to effect
any Demand Registration within 90 days after the effective date of a previous
Demand Registration or other registration in which Registrable Securities were
included. The Company may postpone, for up to 90 days from the date
of the request, the filing or the effectiveness of a registration statement for
a Demand Registration if the
Company’s board of directors determines in its reasonable good faith judgment
that such Demand Registration would
reasonably be expected to have a material adverse effect on any proposal or plan
by the Company or any Subsidiary to engage in any material acquisition of assets
or stock (other than in the ordinary course of business) or any material merger,
consolidation, tender offer, recapitalization, reorganization or similar
transaction or would require the Company to disclose any material nonpublic
information which would reasonably be likely to be materially detrimental to the
Company and its Subsidiaries; provided that in such
event, the holders of Registrable Securities initially requesting such
Demand Registration
shall be entitled to withdraw such request, and if such request is withdrawn,
such Demand Registration shall not
count as one of the permitted Demand Registrations
hereunder. The Company may postpone the filing or the effectiveness
of a particular registration statement pursuant to this Section 2(e) only
once in any twelve-month period.
(f) Selection of
Underwriters. The holders of at least a majority of the Registrable
Securities shall have the right to select the investment banker(s) and
manager(s) to administer any underwritten Demand Registration, subject to the
approval of the Company, which approval shall not be unreasonably withheld,
conditioned or delayed.
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Section
3. Piggyback
Registrations.
(a) Right to
Piggyback. Whenever the Company proposes to register any of
its securities under the Securities Act (other than (i) pursuant to a Demand
Registration or (ii) in connection with registrations on Form S-4 or S-8
promulgated by the SEC or any successor or similar forms) and the registration
form to be used may be used for the registration of Registrable Securities (a
“Piggyback
Registration”), the Company shall give prompt written notice to all
holders of Registrable Securities of its intention to effect such Piggyback
Registration and, subject to the terms of Section 3(b) and
Section 3(c),
shall include in such Piggyback Registration (and in all related registrations
or qualifications under blue sky laws and in any related underwriting) all
Registrable Securities with respect to which the Company has received written
requests for inclusion therein within 20 days after delivery of the Company’s
notice.
(b) Priority on Primary
Registrations. If a Piggyback Registration is an underwritten
primary registration on behalf of the Company, and the managing underwriters
advise the Company in writing that in their opinion the number of securities
requested to be included in such registration exceeds the number which can be
sold in such offering without adversely affecting the marketability, proposed
offering price, timing or method of distribution of the offering, the Company
shall include in such registration (i) first, the securities the Company
proposes to sell, (ii) second, the Registrable Securities requested to be
included in such registration which, in the opinion of the underwriters, can be
sold without any such adverse effect, pro rata among the holders of such
Registrable Securities on the basis of the number of shares owned by each such
holder, and (iii) third, other securities requested to be included in such
registration which, in the opinion of the underwriters, can be sold without any
such adverse effect.
(c) Priority on Secondary
Registrations. If a Piggyback Registration is an underwritten
secondary registration on behalf of holders of the Company’s securities, and the
managing underwriters advise the Company in writing that in their opinion the
number of securities requested to be included in such registration exceeds the
number which can be sold in such offering without adversely affecting the
marketability, proposed offering price, timing or method of distribution of the
offering, the Company shall include in such registration (i) first, the
securities requested to be included therein by the holders requesting such
registration which, in the opinion of the underwriters, can be sold without any
such adverse effect, (ii) second, the Registrable Securities requested to be
included in such registration, pro rata among the holders of such Registrable
Securities on the basis of the number of shares owned by each such holder which,
in the opinion of the underwriters, can be sold without any such adverse effect,
and (iii) third, other securities requested to be included in such registration
which, in the opinion of the underwriters, can be sold without any such adverse
effect.
(d) Right to Terminate
Registration. The Company shall have the right to terminate or
withdraw any registration initiated by it under this Section 3 whether or
not any holder of Registrable Securities has elected to include securities in
such registration.
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Section
4. Holdback
Agreements. If requested by the Company, each holder of
Registrable Securities participating in a Demand Registration or a Piggyback
Registration shall enter into lock-up agreements with the managing
underwriter(s) of an underwritten Public Offering in such form as agreed to by
the holders of a majority of the Registrable Securities participating in such
Public Offering. In the absence of any such lock-up agreement, each
holder of Registrable Securities participating in a Demand Registration or a
Piggyback Registration agrees as follows:
(a) in
connection with all Public Offerings, such holder shall not effect any Sale
Transaction from the date on which the Company gives notice to the holders of
Registrable Securities of the circulation of a preliminary or final prospectus
for such Public Offering to the date that is 90 days following the date of the
final prospectus for such Public Offering
(a “Holdback
Period”), unless, if an underwritten Public Offering, the underwriters
managing such Public Offering otherwise agree in writing; and
(b) in
the event that (i) the Company issues an earnings release or discloses
other material information or a material event relating to the Company and its
Subsidiaries occurs during the last 17 days of any Holdback Period or
(ii) prior to the expiration of any Holdback Period, the Company announces
that it will release earnings results during the 16-day period beginning upon
the expiration of such period, then to the extent necessary for a managing or
co-managing underwriter of a registered offering hereunder to comply with FINRA
Rule 2711(f)(4) (or any successor rule), the Holdback Period shall be
extended until 18 days after the earnings release or disclosure of other
material information or the occurrence of the material event, as the case may be
(a “Holdback
Extension”).
The
Company may impose stop-transfer instructions with respect to the shares of
Common Stock (or other securities) subject to the restrictions set forth in this
Section 4 until
the end of such period, including any Holdback Extension.
Section
5. Registration
Procedures.
(a) Whenever
the holders of Registrable Securities have requested that any Registrable
Securities be registered pursuant to this Agreement, the Company shall use its
commercially reasonable efforts to effect the registration and the sale of such
Registrable Securities in accordance with the intended method of disposition
thereof, and pursuant thereto the Company shall as expeditiously as reasonably
practicable:
(i) in
accordance with the Securities Act and all applicable rules and regulations
promulgated thereunder, prepare and file with the SEC a registration statement,
and all amendments and supplements thereto and related prospectuses, with
respect to such Registrable Securities and use its commercially reasonable
efforts to cause such registration statement to become effective;
(ii) notify
each holder of Registrable Securities of (A) the issuance by the SEC of any stop
order suspending the effectiveness of any registration statement or the
initiation of any proceedings for that purpose, (B) the receipt by the Company
or its counsel of any notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, and (C) the
effectiveness of each registration statement filed hereunder;
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(iii) prepare
and file with the SEC such amendments and supplements to such registration
statement and the prospectus used in connection therewith as may be necessary to
keep such registration statement effective for a period ending when all of the
securities covered by such registration statement have been disposed of in
accordance with the intended methods of distribution by the sellers thereof set
forth in such registration statement (but not in any event before the expiration
of any longer period required under the Securities Act or, if such registration
statement relates to an underwritten Public Offering, such longer period as in
the opinion of counsel for the underwriters a prospectus is required by law to
be delivered in connection with sale of Registrable Securities by an underwriter
or dealer) and comply with the provisions of the Securities Act with respect to
the disposition of all securities covered by such registration statement during
such period in accordance with the intended methods of disposition by the
sellers thereof set forth in such registration statement;
(iv) furnish
to each seller of Registrable Securities thereunder such number of copies of
such registration statement, each amendment and supplement thereto, the
prospectus included in such registration statement (including each preliminary
prospectus), each Free Writing Prospectus and such other documents as such
seller may reasonably request in order to facilitate the disposition of the
Registrable Securities owned by such seller;
(v) use
its commercially reasonable efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions as
any seller reasonably requests and do any and all other acts and things which
may be reasonably necessary or advisable to enable such seller to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such
seller (provided that the
Company shall not be required to (A) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
subparagraph or (B) consent to general service of process in any such
jurisdiction or (C) subject itself to taxation in any such
jurisdiction);
(vi) notify
each seller of such Registrable Securities (A) promptly after it receives
notice thereof, of the date and time when such registration statement and each
post-effective amendment thereto has become effective or a prospectus or
supplement to any prospectus relating to a registration statement has been filed
and when any registration or qualification has become effective under a state
securities or blue sky law or any exemption thereunder has been obtained,
(B) promptly after receipt thereof, of any request by the SEC for the
amendment or supplementing of such registration statement or prospectus or for
additional information, and (C) at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, of the happening
of any event as a result of which the prospectus included in such registration
statement contains an untrue statement of a material fact or omits any fact
necessary to make the statements therein not misleading, and, at the request of
any such seller, the Company shall prepare a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus shall not contain an untrue statement of
a material fact or omit to state any fact necessary to make the statements
therein not misleading; provided, that at any
time, upon written notice to the participating holders of Registrable
Securities, the Company may delay the filing or effectiveness of any
registration statement or suspend the use or effectiveness of any registration
statement (and the holders of Registrable Securities hereby agree not to offer
or sell any Registrable Securities pursuant to such registration statement
during such delay) if the Company reasonably believes that there is or may be in
existence material nonpublic information or events involving the Company, the
failure of which to be disclosed in the prospectus included in the registration
statement could result in a Violation;
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(vii) use
commercially reasonable 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, if any;
(viii) use
commercially reasonable efforts to provide a transfer agent and registrar for
all such Registrable Securities not later than the effective date of such
registration statement;
(ix) enter
into and perform such customary agreements (including underwriting agreements in
customary form) as the holders of a majority of the Registrable Securities being
sold or the underwriters, if any, reasonably request in order to expedite or
facilitate the disposition of such Registrable Securities; and
(x) in
the event of the issuance of any stop order suspending the effectiveness of a
registration statement, or the issuance of any order suspending or preventing
the use of any related prospectus or suspending the qualification of any Common
Stock included in such registration statement for sale in any jurisdiction, use
commercially reasonable efforts promptly to obtain the withdrawal of such
order.
(b) If
so directed by the Company, all holders of Registrable Securities registering
shares under such registration statement shall (i) not offer to sell any
Registrable Securities pursuant to the registration statement during the period
in which the delay or suspension is in effect after receiving notice of such
delay or suspension and (ii) use their commercially reasonable efforts to
deliver to the Company (at the Company’s expense) all copies, other than
permanent file copies then in such holders’ possession, of the prospectus
relating to such Registrable Securities current at the time of receipt of such
notice.
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Section
6. Registration
Expenses.
(a) The Company’s
Obligation. All expenses incident to the Company’s performance
of or compliance with this Agreement (including, without limitation, all
registration, qualification and filing fees, fees and expenses of compliance
with securities or blue sky laws, printing expenses, messenger and delivery
expenses, fees and disbursements of custodians, fees and disbursements of
counsel for the Company and the reasonable fees of one separate counsel for the
holders of the Registrable Securities included in the registration (chosen by
the holders of a majority of such Registrable Securities), and fees and
disbursements of all independent certified public accountants, underwriters
(excluding underwriting discounts and commissions) and other Persons retained by
the Company), shall be borne by the Company. Each holder of
Registrable Securities that sells securities pursuant to a Demand Registration
or Piggyback Registration hereunder shall bear and pay any underwriting
discounts and commissions applicable to the securities sold for such holder’s
account.
Section
7. Indemnification and
Contribution.
(a) By the
Company. The Company shall indemnify and hold harmless, to the
extent permitted by law, each holder of Registrable Securities, such holder’s
officers, directors, managers, partners, employees, agents and representatives,
and each Person who controls such holder (within the meaning of the Securities
Act) (the “Indemnified
Parties”) against all losses, claims, actions, damages, liabilities and
expenses (including with respect to actions or proceedings, whether commenced or
threatened, and including reasonable attorney fees and expenses) caused by,
resulting from, arising out of, based upon or related to any of the following
statements, omissions or violations (each a “Violation”) by the
Company: (i) any untrue or alleged untrue statement of material fact
contained in (A) any registration statement, prospectus, preliminary prospectus
or Free-Writing Prospectus, or any amendment thereof or supplement thereto or
(B) any application or other document or communication (in this Section 7,
collectively called an “application”)
executed by or on behalf of the Company or based upon written information
furnished by or on behalf of the Company filed in any jurisdiction in order to
qualify any securities covered by such registration under the securities laws
thereof, (ii) any omission or alleged omission of a material fact required
to be stated therein or necessary to make the statements therein not misleading
or (iii) any violation or alleged violation by the Company of the
Securities Act or any other similar federal or state securities laws or any rule
or regulation promulgated thereunder applicable to the Company and relating to
action or inaction required of the Company in connection with any such
registration, qualification or compliance. In addition, the Company
will reimburse such Indemnified Party for any legal or any other expenses
reasonably incurred by them in connection with investigating or defending any
such losses. Notwithstanding the foregoing, the Company shall not be
liable in any such case to the extent that any such losses result from, arise
out of, are based upon, or relate to an untrue statement or alleged untrue
statement, or omission or alleged omission, made in such registration statement,
any such prospectus, preliminary prospectus or Free-Writing Prospectus or any
amendment or supplement thereto, or in any application, in reliance upon, and in
conformity with, written information prepared and furnished in writing to the
Company by such Indemnified Party expressly stated for use therein or by such
Indemnified Party’s failure to deliver a copy of the registration statement or
prospectus or any amendments or supplements thereto after the Company has
furnished such Indemnified Party with a sufficient number of copies of the
same.
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(b) By Each Security
Holder. In connection with any registration statement in which
a holder of Registrable Securities is participating, each such holder shall
furnish to the Company in writing such information and affidavits as the Company
reasonably requests for use and as required in connection with any such
registration statement or prospectus and, to the extent permitted by law, shall
indemnify the Company, its officers, directors, employees, agents and
representatives, and each Person who controls the Company (within the meaning of
the Securities Act) against any losses, claims, damages, liabilities and
expenses resulting from any untrue or alleged untrue statement of material fact
contained in the registration statement, prospectus or preliminary prospectus or
any amendment thereof or supplement thereto or any omission or alleged omission
of a material fact required to be stated therein or necessary to make the
statements therein not misleading, but only to the extent that such untrue
statement or omission is contained in any information or affidavit so furnished
in writing by such holder and expressly stated for use therein; provided that the
obligation to indemnify shall be individual, not joint and several, for each
holder and shall be limited to the net amount of proceeds received by such
holder from the sale of Registrable Securities pursuant to such registration
statement.
(c) Claim
Procedure. Any Person entitled to indemnification hereunder
shall (i) give prompt written notice to the indemnifying party of any claim with
respect to which it seeks indemnification (provided that the failure to give
prompt notice shall impair any Person’s right to indemnification hereunder only
to the extent such failure has prejudiced the indemnifying party) and (ii)
unless in such indemnified party’s reasonable judgment a conflict of interest
between such indemnified and indemnifying parties may exist with respect to such
claim, permit such indemnifying party to assume the defense of such claim with
counsel reasonably satisfactory to the indemnified party. If such
defense is assumed, the indemnifying party shall not be subject to any liability
for any settlement made by the indemnified party without its consent (but such
consent shall not be unreasonably withheld, conditioned or
delayed). An indemnifying party who is not entitled to, or elects not
to, assume the defense of a claim shall not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim. In such instance, the conflicted indemnified parties shall have a right
to retain one separate counsel, chosen by the holders of a majority of the
Registrable Securities included in the registration if such holders are
indemnified parties, at the expense of the indemnifying party.
11
(d) Contribution. If
the indemnification provided for in this Section 7 is held by
a court of competent jurisdiction to be unavailable to, or is insufficient to
hold harmless, an indemnified party or is otherwise unenforceable with respect
to any loss, claim, damage, liability or action referred to herein, then the
indemnifying party shall contribute to the amounts paid or payable by such
indemnified party as a result of such loss, claim, damage, liability or action
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other
hand in connection with the statements or omissions which resulted in such loss,
claim, damage, liability or action as well as any other relevant equitable
considerations; provided that the
maximum amount of liability in respect of such contribution shall be limited, in
the case of each seller of Registrable Securities, to an amount equal to the net
amount of proceeds actually received by such seller from the sale of Registrable
Securities effected pursuant to such registration. The relative fault
of the indemnifying party and of the indemnified party shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission to state a material fact relates to
information supplied by the indemnifying party or by the indemnified party and
the parties’ relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The parties hereto
agree that it would not be just or equitable if the contribution pursuant to
this Section
7(d) were to be determined by pro rata allocation or by any other method
of allocation that does not take into account such equitable
considerations. The amount paid or payable by an indemnified party as
a result of the losses, claims, damages, liabilities or expenses referred to
herein shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
against any action or claim which is the subject hereof. 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 is
not guilty of such fraudulent misrepresentation.
(e) Release. No
indemnifying party shall, except with the consent of the indemnified party,
consent to the entry of any judgment or enter into any settlement that does not
include as an unconditional term thereof giving by the claimant or plaintiff to
such indemnified party of a release from all liability in respect to such claim
or litigation.
(f) Non-Exclusive Remedy;
Survival. The indemnification and contribution provided for
under this Agreement shall be in addition to any other rights to indemnification
or contribution that any indemnified party may have pursuant to law or contract
and shall remain in full force and effect regardless of any investigation made
by or on behalf of the indemnified party or any officer, director or controlling
Person of such indemnified party and shall survive the transfer of Registrable
Securities and the termination or expiration of this Agreement.
Section
8. Underwritten
Registrations.
(a) Participation. No
Person may participate in any registration hereunder which is underwritten
unless such Person (i) agrees to sell such Person’s securities
on the basis provided in any underwriting arrangements approved by the Person or
Persons entitled hereunder to approve such arrangements (including, without
limitation, pursuant to any over-allotment or “green shoe” option requested by
the underwriters; provided that no
holder of Registrable Securities shall be required to sell more than the number
of Registrable Securities such holder has requested to include) and (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements. Each holder of
Registrable Securities shall execute and deliver such other agreements as may be
reasonably requested by the Company and the lead managing underwriter(s) that
are consistent with such holder’s obligations under Section 4, Section 5 and this
Section 8(a) or
that are necessary to give further effect thereto.
(b) Suspended
Distributions. Each Person that is participating in any
registration under this Agreement, upon receipt of any notice from the Company
of the happening of any event of the kind described in Section 5(a)(vi),
shall immediately discontinue the disposition of its Registrable Securities
pursuant to the registration statement until such Person’s receipt of the copies
of a supplemented or amended prospectus as contemplated by Section 5(a)(vi). In
the event the Company has given any such notice, the applicable time period set
forth in Section
5(a)(iii) during which a Registration Statement is to remain effective
shall be extended by the number of days during the period from and including the
date of the giving of such notice pursuant to this Section 8(b) to and
including the date when each seller of Registrable Securities covered by such
registration statement shall have received the copies of the supplemented or
amended prospectus contemplated by Section
5(a)(vi).
12
Section
9. General
Provisions.
(a) Amendments and
Waivers. Except as otherwise provided herein, the provisions
of this Agreement may be amended, modified or waived only with the prior written
consent of the Company and holders of at least a majority of the Registrable
Securities. No failure or delay by any party in exercising any right,
power or privilege hereunder shall act as a waiver thereof, nor shall any single
or partial exercise thereof preclude any other or further exercise thereof or
the exercise of any other right, power or privilege hereunder.
(b) Specific
Performance. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties hereto shall be
entitled to an injunction or injunctions to prevent breaches of this Agreement,
and to enforce specifically the terms and provisions of this Agreement, this
being in addition to any other remedy to which they are entitled at law or in
equity. The equitable remedies described in this Section 9(b) shall be
in addition to, and not in lieu of, any other remedies at law or in equity that
the parties to this Agreement are permitted to elect to pursue in accordance
with this Agreement.
(c) Severability. Any
term or provision of this Agreement that is invalid or unenforceable in any
jurisdiction will, as to that jurisdiction, be ineffective to the extent of such
invalidity or unenforceability without rendering invalid or unenforceable the
remaining terms and provisions of this Agreement or affecting the validity or
enforceability of any of the terms or provisions of this Agreement in any other
jurisdiction. Upon such determination that any term or other
provision is prohibited or invalid under applicable law, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible to the fullest extent
permitted by applicable law in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the fullest extent
possible.
(d) Complete
Agreement. Except as otherwise provided herein, this Agreement
contains the complete agreement between the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements and understandings,
whether written or oral, between the parties hereto that may have related to the
subject matter hereof in any way.
(e) Successors and
Assigns. Except as otherwise provided herein, this Agreement
shall bind and inure to the benefit and be enforceable by the Company and its
successors and assigns and the holders of Registrable Securities and their
respective successors and permitted assigns (whether so expressed or
not).
13
(f) Notices. Any
notice, demands or other communication provided for herein or given hereunder to
a party hereto must be in writing, and shall be deemed to have been given (i)
when personally delivered or delivered by facsimile transmission with
confirmation of delivery, (ii) one Business Day after deposit with Federal
Express or similar overnight courier service, or (iii) three Business Days
after being mailed by registered, certified or first class mail, return receipt
requested. Such notices, demands and other communications shall be
sent to the Company at the address specified below and to any holder of
Registrable Securities or to any other party subject to this Agreement at such
address as indicated on the Schedule of
Stockholders hereto, or at such address or to the attention of such other
Person as the recipient party has specified by prior written notice to the
sending party. Any party may change its address for receipt of notice
by providing sending prior written notice of the change to the sending
party. The Company’s address is:
If to the
Company:
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Berliner
Communications, Inc.
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18-01
Pollitt Drive
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Fair
Lawn, New Jersey 07410
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Attn: General
Counsel
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Facsimile: (201)
794-8974
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with
a copy to:
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HM
Capital Partners LLC
200
Crescent Court, Suite 1600
Dallas,
Texas 75201
Attn: Peter
Brodsky
Facsimile: (214)
720-7888
or to
such other address or to the attention of such other person as the recipient
party has specified by prior written notice to the sending party.
(g) Business
Days. If any time period for giving notice or taking action
hereunder expires on a day which is a Saturday, Sunday or legal holiday in the
state in which the Company’s chief executive office is located, the time period
shall automatically be extended to the business day immediately following such
Saturday, Sunday or legal holiday.
(h) Governing
Law. THE PROVISIONS OF THIS AGREEMENT AND ALL OF THE DOCUMENTS
DELIVERED PURSUANT HERETO, THEIR EXECUTION, PERFORMANCE OR NONPERFORMANCE,
INTERPRETATION, TERMINATION, CONSTRUCTION AND ALL MATTERS BASED UPON, ARISING
OUT OF OR RELATED TO THIS AGREEMENT OR THE NEGOTIATION, EXECUTION OR PERFORMANCE
OF THIS AGREEMENT (WHETHER IN EQUITY, LAW OR STATUTE) SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS, BOTH PROCEDURAL AND SUBSTANTIVE, OF THE
STATE OF DELAWARE WITHOUT REGARD TO ITS CONFLICT OF LAWS PROVISIONS THAT IF
APPLIED MIGHT REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION.
14
(i) Waiver of Jury
Trial. EACH PARTY HEREBY EXPRESSLY WAIVES THE RIGHT TO A TRIAL
BY JURY IN ANY ACTION BROUGHT BY OR AGAINST IT ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(j) Venue and
Jurisdiction. ANY ACTION, CLAIM, SUIT OR PROCEEDING RELATING
TO THIS AGREEMENT OR THE ENFORCEMENT OF ANY PROVISION OF THIS AGREEMENT SHALL BE
BROUGHT IN THE STATE COURTS OF THE STATE OF NEW YORK LOCATED IN NEW YORK COUNTY
OR THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK OR IN
ANY OTHER COURT OF COMPETENT JURISDICTION IF SUCH STATE OR FEDERAL COURTS IN NEW
YORK DO NOT HAVE JURISDICTION OVER SUCH MATTER, WITHOUT BOND OR OTHER SECURITY
BEING REQUIRED. EACH OF THE PARTIES HERETO HEREBY SUBMITS TO THE
JURISDICTION OF ANY STATE OR FEDERAL COURT SITTING IN NEW YORK CITY, NEW YORK,
IN ANY ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY AND AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION MAY BE
HEARD AND DETERMINED IN ANY SUCH COURT. EACH PARTY HERETO ALSO AGREES
NOT TO BRING ANY ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY IN ANY OTHER COURT. EACH OF THE
PARTIES HERETO WAIVES ANY DEFENSE OF INCONVENIENT FORUM TO THE MAINTENANCE OF
ANY ACTION SO BROUGHT AND WAIVES ANY BOND, SURETY, OR OTHER SECURITY THAT MIGHT
BE REQUIRED OF ANY OTHER PARTY WITH RESPECT THERETO.
(k) Descriptive
Headings;
Interpretation. The descriptive headings of this Agreement are
inserted for convenience only and do not constitute a part of this
Agreement. The use of the word “including” in this Agreement shall be
by way of example rather than by limitation.
(l) No Strict
Construction. The language used in this Agreement shall be
deemed to be the language chosen by the parties hereto to express their mutual
intent, and no rule of strict construction shall be applied against any
party.
(m) Counterparts. This
Agreement may be executed in two or more counterparts (any of which may be
delivered by facsimile or other electronic transmission followed promptly by an
executed original), each of which will be deemed an original, but all of which
together will constitute one and the same instrument. Any signature
page delivered by facsimile or electronic image transmission shall be binding to
the same extent as an original signature page.
(n) Further
Assurances. In connection with this Agreement and the
transactions contemplated hereby, each holder of Registrable Securities shall
execute and deliver any additional documents and instruments and perform any
additional acts that may be necessary or appropriate to effectuate and perform
the provisions of this Agreement and the transactions contemplated
hereby.
15
(o) No Inconsistent
Agreements. The Company shall not hereafter enter into any
agreement with respect to its securities which is inconsistent with or violates
the rights granted to the holders of Registrable Securities in this
Agreement.
(p) Effective
Date. After this Agreement is executed and delivered by all of
the parties hereto, this Agreement shall become effective only upon the issuance
of the Common Stock and Preferred Stock upon consummation of the closing under
the Merger Agreement. However, prior thereto, this Agreement shall
terminate and become null and void automatically without any further action by
any of the parties hereto immediately upon the termination of the Merger
Agreement pursuant to its terms.
(q) Restrictions on
Transfer. Notwithstanding anything to the contrary contained
herein, prior to transferring any Registrable Securities to any Person
(including, without limitation, by operation of law), the transferring holder
shall cause the prospective transferee to execute and deliver to the Company a
joinder in the form of Exhibit A attached
hereto (a “Joinder”) agreeing to
be bound by the terms of this Agreement. Any transfer or attempted
transfer of any Registrable Securities in violation of any provision of this
Agreement shall be void, and the Company shall not record such transfer on its
books or treat any purported transferee of such Registrable Securities as the
owner thereof for any purpose.
* * * * *
16
IN WITNESS WHEREOF, the
parties have executed this Agreement as of the date first written
above.
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BERLINER
COMMUNICATIONS, INC.
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By:
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/s/ Rich Berliner | |
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Name:
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Rich
Berliner
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Title:
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President
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[Signature
Page to Registration Rights Agreement]
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AMERICAN AIRLINES MASTER FIXED
BENEFITS PENSION PLAN TRUST
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||
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By: State Street Bank & Trust Co., its Trustee
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||
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By:
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/s/
Keith G. Maloney
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Name:
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Keith G. Maloney
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Title:
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Vice President
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BOURDIGNY INVESTMENTS, S.A.
|
||
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By:
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/s/
Ian Buchanan
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Name:
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Ian Buchanan
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Title:
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Managing Director
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CPC 2008 CO-INVESTMENT POOL LP
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||
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By:
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CPC 2008 Co-investment Pool GP, LP, its
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general partner
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By:
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CPC 2008 Co-invest LLC,
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its general partner
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||
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By:
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/s/
Michael T. Hearne
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Name:
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Michael T. Hearne
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Title:
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Senior Vice President
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HM UNITEK COINVEST, LP
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||
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By:
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Sector Performance LLC,
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its general partner
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||
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By:
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/s/
David W. Knickel
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Name:
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David W. Knickel
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Title:
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Vice President and Chief Financial Officer
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[Signature
Page to Registration Rights Agreement]
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SECTOR PERFORMANCE FUND, LP
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||
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By:
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Sector Performance GP, LP,
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its general partner
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||
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By:
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Sector Performance LLC,
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its general partner
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||
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By:
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/s/ David W. Knickel
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Name:
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David W. Kinckel
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Title:
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Vice President and Chief Financial Officer
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SPF SBS LP
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||
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By:
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Sector Performance LLC, its general partner
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By:
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/s/ David W. Knickel
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Name:
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David W. Knickel
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Title:
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Vice President and Chief Financial Officer
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By:
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/s/
Elizabeth Downey
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Elizabeth Downey
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||
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By:
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/s/
Robert F. Fabrizio
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Robert F. Fabrizio
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||
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By:
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/s/
Peter Giacalone
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Peter Giacalone
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||
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By:
|
/s/
C. Scott Hiesy
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C. Scott Hiesy
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||
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By:
|
/s/
Michael C. Hisey
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Michael C. Hisey
|
||
[Signature
Page to Registration Rights Agreement]
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By:
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/s/
Dean T. MacDonald
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Dean T. MacDonald
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||
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By:
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/s/
Lloyd S. Riddle III
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Lloyd S. Riddle III
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||
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By:
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/s/
Joel Rivas
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Joel Rivas
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||
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By:
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/s/
Norman Snell
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Norman Snell
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||
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By:
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/s/
Gregory K. Sudell
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Gregory K. Sudell
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||
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By:
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/s/
Albert Vagnozzi
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Albert Vagnozzi
|
||
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By:
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/s/
Kenneth L. Wiltse
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|
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Kenneth L. Wiltse
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||
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By:
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/s/
Daniel J. Yannantuono
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Daniel J. Yannantuono
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[Signature
Page to Registration Rights Agreement]
EXHIBIT
A
REGISTRATION RIGHTS
AGREEMENT JOINDER
The
undersigned is executing and delivering this Registration Rights Agreement
Joinder (this “Joinder”) pursuant to
the Registration Rights Agreement, dated as of January 27, 2010 (as the same may
hereafter be amended, the “Registration Rights
Agreement”), by and among Berliner Communications, Inc., a Delaware
corporation (the “Company”), and each
of the Company’s stockholders signatories thereto. Capitalized terms
used but not defined herein shall have the meaning ascribed to such terms in the
Registration Rights Agreement.
By
executing and delivering this Joinder to the Company, the undersigned hereby
agrees to become a party to, to be bound by, and to comply with the provisions
of the Registration Rights Agreement as a holder of Registrable Securities in
the same manner as if the undersigned were an original signatory to the
Registration Rights Agreement, and the undersigned’s ____ shares of Common
Stock shall be
included as Registrable Securities under the Registration Rights
Agreement.
Accordingly,
the undersigned has executed and delivered this Joinder as of the ___ day of
____________, 20__.
|
Signature
of Stockholder
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||
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Printed
Name of Stockholder
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||
|
Address:
|
||
Agreed
and Accepted as of
_____________________.
BERLINER
COMMUNICATIONS, INC.
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By:
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||
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Its:
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A-1