exv10w2



 





Exhibit 10.2

  

EXECUTION VERSION




REGISTRATION RIGHTS AGREEMENT




     REGISTRATION RIGHTS AGREEMENT dated as of June 5, 2007 (this “Agreement”) between NII
Holdings, Inc., a Delaware corporation (the “Company”) and the several parties named in Schedule I
hereto (the “Initial Purchasers”) pursuant to the Purchase Agreement dated May 30, 2007 (the
“Purchase Agreement”), between the Company and the Initial Purchasers. In order to induce the
Initial Purchasers to enter into the Purchase Agreement, the Company has agreed to provide the
registration rights set forth in this Agreement. The execution of this Agreement is a condition to
the closing under the Purchase Agreement.



     The Company agrees with each of the Initial Purchasers, (i) for their benefit as Initial
Purchasers and (ii) for the benefit of the beneficial owners (including the Initial Purchasers)
from time to time of the Notes (as defined herein) and the beneficial owners from time to time of
the Underlying Common Stock (as defined herein) issued upon conversion of the Notes (each of the
foregoing a “Holder” and together the “Holders”), as follows:



          SECTION 1. Definitions. Capitalized terms used herein without definition shall have their respective meanings set
forth in the Purchase Agreement. As used in this Agreement, the following terms shall have the
following meanings:




     “Amendment Effectiveness Deadline Date” has the meaning set forth in Section 2(d) hereof.



     “Business Day” means each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on
which banking institutions in The City of New York are authorized or obligated by law or executive
order to close.



     “Common Stock” means the shares of common stock, par value $.001 per share, of the Company and
any other shares of common stock as may constitute “Common Stock” for purposes of the Indenture,
including the Underlying Common Stock.



     “Company” has the meaning set forth in the preamble hereof.



     “Conversion Price” has the meaning assigned to such term in the Indenture.



     “Damages Accrual Period” has the meaning set forth in Section 2(e) hereof.



     “Damages Payment Date” means each June 15 and December 15, except as provided in Section
2(e)(B)(i).



     “Deferral Notice” has the meaning set forth in Section 3(h) hereof.



     “Deferral Period” has the meaning set forth in Section 3(h) hereof.



     “Effectiveness Deadline Date” has the meaning set forth in Section 2(a) hereof.



     “Effectiveness Period” means the period commencing on the date hereof and ending on the date
that all Registrable Securities have ceased to be Registrable Securities.



     “Event” has the meaning set forth in Section 2(e) hereof.



 









 





     “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the SEC promulgated thereunder.



     “Filing Deadline Date” has the meaning set forth in Section 2(a) hereof.



     “Holder” has the meaning set forth in the second paragraph of this Agreement.



     “Indenture” means the Indenture, dated as of June 5, 2007, between the Company and Wilmington
Trust Company, as trustee, pursuant to which the Notes are being issued.



     “Initial Purchasers” has the meaning set forth in the preamble hereof.



     “Initial Shelf Registration Statement” has the meaning set forth in Section 2(a) hereof.



     “Issue Date” means June 5, 2007.



     “Liquidated Damages Amount” has the meaning set forth in Section 2(e) hereof.



     “Material Event” has the meaning set forth in Section 3(h) hereof.



     “Notes” means the 3.125% Convertible Notes Due 2012 of the Company to be purchased pursuant to
the Purchase Agreement.



     “Notice and Questionnaire” means a written notice delivered to the Company containing
substantially the information called for by the Selling Securityholder Notice and Questionnaire
attached as Annex A to the Offering Memorandum of the Company dated May 30, 2007 relating to the
Notes.



     “Notice Holder” means, on any date, any Holder that has delivered a Notice and Questionnaire
to the Company on or prior to such date.



     “Purchase Agreement” has the meaning set forth in the preamble hereof.



     “Prospectus” means the prospectus included in any Registration Statement (including, without
limitation, a prospectus that discloses information previously omitted from a prospectus filed as
part of an effective registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any amendment, prospectus supplement or any free
writing prospectus (as defined in Rule 405 under the Securities Act), including post-effective
amendments, and all materials incorporated by reference or explicitly deemed to be incorporated by
reference in such Prospectus.



     “Record Holder” means, with respect to any Damages Payment Date relating to any Notes or
Underlying Common Stock as to which any Liquidated Damages Amount has accrued, the registered
holder of such Note or Underlying Common Stock on the June 1 immediately preceding a Damages
Payment Date occurring on a June 15, and on the December 1 immediately preceding a Damages Payment
Date occurring on a December 15.



     “Registrable Securities” means the Notes until such Notes have been converted into or
exchanged for the Underlying Common Stock and, at all times subsequent to any such conversion, the
Underlying Common Stock and any securities into or for which such Underlying Common Stock has
been converted or exchanged, and any security issued with respect thereto upon any stock dividend,
split or similar event until, in the case of any such security, (A) the earliest of (i) its
effective registration under the Securities Act and resale in accordance with the Registration
Statement covering it, (ii) expiration of



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the holding period that would be applicable thereto, under Rule 144(k) or (iii) its sale to the public pursuant to Rule 144 (or any similar provision
then in force, but not Rule 144A) under the Securities Act, and (B) as a result of the event or
circumstance described in any of the foregoing clauses (i) through (iii), the legend with respect
to transfer restrictions required under the Indenture is removed or removable in accordance with
the terms of the Indenture or such legend, as the case may be. Throughout this Agreement, for
purposes of determining the holders of a majority of Registrable Securities, Registrable Securities
shall be the shares of Underlying Common Stock and Holders of Notes shall be deemed to be the
Holders of the number of shares of Underlying Common Stock into which such Notes are or would be
convertible as of the date the consent is requested.



     “Registration Statement” means any registration statement of the Company that covers any of
the Registrable Securities pursuant to the provisions of this Agreement, including the Prospectus,
amendments and supplements to such registration statement, including post-effective amendments, all
exhibits and all materials incorporated by reference or explicitly deemed to be incorporated by
reference in such registration statement.



     “Rule 144” means Rule 144 under the Securities Act, as such Rule may be amended from time to
time, or any similar rule or regulation hereafter adopted by the SEC.



     “Rule 144A” means Rule 144A under the Securities Act, as such Rule may be amended from time to
time, or any similar rule or regulation hereafter adopted by the SEC.



     “SEC” means the Securities and Exchange Commission.



     “Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations
promulgated by the SEC thereunder.



     “Shelf Registration Statement” has the meaning set forth in Section 2(a) hereof.



     “Special Counsel” means Shearman & Sterling LLP or one such other successor counsel as shall
be specified by the Holders of a majority of all Registrable Securities, but which may, with the
written consent of the Initial Purchasers (which shall not be unreasonably withheld), be another
nationally recognized law firm experienced in securities law matters designated by the Company, the
reasonable fees and expenses of which will be paid by the Company pursuant to Section 5 hereof.



     “Subsequent Shelf Registration Statement” has the meaning set forth in Section 2(b) hereof.



     “Trustee” means Wilmington Trust Company, the trustee under the Indenture.



     “Underlying Common Stock” means the Common Stock into which the Notes are convertible or
issued upon any such conversion.



     “Well-Known Seasoned Issuer” or “WKSI” has the meaning set forth in Rule 405 under the
Securities Act.



     “WKSI Shelf Registration Statement” means an automatically effective registration statement
for an offering of the Company’s securities to be made on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act filed by the Company with the SEC.



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          SECTION 2. Shelf Registration. (a) The Company shall prepare and file or cause to be prepared and filed with the SEC, as
soon as practicable but in any event by the date (the “Filing Deadline Date”) ninety (90) days
after the Issue Date, a Registration Statement for an offering to be made on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration Statement”)
registering the resale from time to time by Holders thereof of all of the Registrable Securities
(the “Initial Shelf Registration Statement”); provided, however, that if the Initial Shelf
Registration Statement is a WKSI Shelf Registration Statement, the Company shall prepare and file
or cause to be prepared and file with the SEC such WKSI Shelf Registration Statement by the
Effectiveness Deadline Date (as defined below). The Initial Shelf Registration Statement shall be
on Form S-3 or another appropriate form permitting registration of such Registrable Securities for
resale by such Holders in accordance with the methods of distribution elected by the Holders and
set forth in the Initial Shelf Registration Statement. If the Initial Shelf Registration Statement
is not a WKSI Shelf Registration Statement, the Company shall use its reasonable best efforts to
cause the Initial Shelf Registration Statement to be declared effective under the Securities Act as
promptly as is practicable but in any event by the date (the “Effectiveness Deadline Date”) that is
one hundred eighty (180) days after the Issue Date. Except as otherwise provided herein, the
Company shall use its reasonable best efforts to keep the Initial Shelf Registration Statement (or
any Subsequent Shelf Registration Statement) continuously effective under the Securities Act until
the expiration of the Effectiveness Period. At the time the Initial Shelf Registration Statement
is declared effective, each Holder that became a Notice Holder on or prior to the date ten (10)
Business Days prior to such time of effectiveness shall be named as a selling securityholder in the
Initial Shelf Registration Statement and the related Prospectus in such a manner as to permit such
Holder to deliver such Prospectus to purchasers of Registrable Securities in accordance with
applicable law. None of the Company’s security holders (other than the Holders of Registrable
Securities) shall have the right to include any of the Company’s securities in the Shelf
Registration Statement, except as may be described in the Offering Memorandum of the Company dated
May 30, 2007.




     (b) If the Initial Shelf Registration Statement or any Subsequent Shelf Registration Statement
ceases to be effective for any reason at any time during the Effectiveness Period (other than
because all Registrable Securities registered thereunder shall have been resold pursuant thereto or
shall have otherwise ceased to be Registrable Securities), the Company shall use its reasonable
best efforts to obtain the prompt withdrawal of any order suspending the effectiveness thereof, and
in any event shall within thirty (30) days of such cessation of effectiveness amend the Shelf
Registration Statement in a manner reasonably expected to obtain the withdrawal of the order
suspending the effectiveness thereof, or file an additional Shelf Registration Statement (a
“Subsequent Shelf Registration Statement”) covering all of the securities that as of the date of
such filing are Registrable Securities. If a Subsequent Shelf Registration Statement is filed and
is not a WKSI Shelf Registration Statement, the Company shall use its reasonable best efforts to
cause the Subsequent Shelf Registration Statement to become effective as promptly as is practicable
after such filing. The Company shall use its reasonable best efforts to keep such Registration
Statement (or Subsequent Shelf Registration Statement) continuously effective until the expiration
of the Effectiveness Period.



     (c) The Company shall supplement and amend the Shelf Registration Statement if required by the
rules, regulations or instructions applicable to the registration form used by the Company for such
Shelf Registration Statement or as otherwise required by the Securities Act or as necessary to
name a Notice Holder as a selling securityholder pursuant to Section 2(d) below.



     (d) Each Holder agrees that if such Holder wishes to sell Registrable Securities pursuant to a
Shelf Registration Statement and related Prospectus, it will do so only in accordance with this
Section 2(d) and Section 3(h). Following the date that the Initial Shelf Registration Statement
becomes or is declared effective, each Holder wishing to sell Registrable Securities pursuant to a
Shelf Registration



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Statement and related Prospectus agrees to deliver a Notice and Questionnaire to
the Company at least three (3) Business Days prior to any intended distribution of Registrable
Securities under the Shelf Registration Statement. Each Holder who elects to sell Registrable
Securities pursuant to a Shelf Registration Statement agrees, by submitting a Notice and
Questionnaire to the Company, it will be bound by the terms and conditions of the Notice and
Questionnaire and this Agreement. From and after the date the Initial Shelf Registration Statement
becomes or is declared effective, the Company shall, as promptly as practicable after the date a
Notice and Questionnaire is delivered pursuant to Section 9(c) hereof, and in any event upon the
later of (x) seven (7) Business Days after such date or (y) seven (7) Business Days after the
expiration of any Deferral Period that is in effect when the Notice and Questionnaire is delivered
or that is put into effect within seven (7) Business Days of such delivery date:




     (i) if required by applicable law, file with the SEC a post-effective amendment to the
Shelf Registration Statement or prepare and, if required by applicable law, file a
supplement to the related Prospectus or a supplement or amendment to any document
incorporated therein by reference or file any other required document so that the Holder
delivering such Notice and Questionnaire is named as a selling securityholder in the Shelf
Registration Statement and the related Prospectus in such a manner as to permit such Holder
to deliver such Prospectus to purchasers of the Registrable Securities in accordance with
applicable law and, if the Company shall file a post-effective amendment to the Shelf
Registration Statement and such post-effective amendment is not a WKSI Shelf Registration
Statement, use its reasonable best efforts to cause such post-effective amendment to be
declared effective under the Securities Act as promptly as is practicable, but in any event
by the date (the “Amendment Effectiveness Deadline Date”) that is sixty (60) days after the
date such post-effective amendment is required by this clause to be filed; and




     (ii) provide such Holder copies of any documents filed pursuant to Section 2(d)(i);
provided that if such Notice and Questionnaire is delivered during a Deferral Period, the
Company shall so inform the Holder delivering such Notice and Questionnaire. The Company
shall notify such Holder as promptly as practicable after the effectiveness under the
Securities Act of any post-effective amendment filed pursuant to Section 2(d)(i).
Notwithstanding anything contained herein to the contrary, (i) the Company shall be under no
obligation to name any Holder that is not a Notice Holder as a selling securityholder in any
Registration Statement or related Prospectus and (ii) the Amendment Effectiveness Deadline
Date shall be extended by up to seven (7) Business Days from the expiration of a Deferral
Period (and the Company shall incur no obligation to pay Liquidated Damages during such
extension or during such Deferral Period) if such Deferral Period shall be in effect on the
Amendment Effectiveness Deadline Date.



     (e) The parties hereto agree that the Holders of Registrable Securities will suffer damages,
and that it would not be feasible to ascertain the extent of such damages with precision, if, other
than as permitted hereunder:




     (i) unless the Initial Shelf Registration Statement is a WKSI Shelf Registration
Statement, the Initial Shelf Registration Statement has not been filed on or prior to the
Filing Deadline Date;




     (ii) the Initial Shelf Registration Statement has not become or been declared effective
under the Securities Act on or prior to the Effectiveness Deadline Date;




     (iii) the Company has failed to perform its obligations set forth in Section 2(d)(i)
within the time period required therein;



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     (iv) any post-effective amendment to a Shelf Registration Statement filed pursuant to
Section 2(d)(i) has not become effective under the Securities Act on or prior to the
Amendment Effectiveness Deadline Date; or




     (v) the aggregate duration of Deferral Periods in any period exceeds the number of days
permitted in respect of such periods pursuant to Section 3(h) hereof.


Each event described in any of the foregoing clauses (i) through (v) is individually referred to
herein as an “Event.” For purposes of this Agreement, each Event set forth above shall begin and
end on the dates set forth in the table below:




	 	 	 	 	 
	Type of	 	 	 	 
	Event by	 	Beginning	 	Ending
	Clause	 	Date	 	Date
	(i)

	 	Filing Deadline Date
	 	the date the Initial
Shelf Registration
Statement is filed
	 
	 	 	 	 
	(ii)

	 	Effectiveness Deadline Date
	 	the date the Initial
Shelf Registration
Statement becomes or
is declared effective
under the Securities
Act
	 
	 	 	 	 
	(iii)

	 	the date by which the Company
is required to perform its
obligations under Section
2(d)
	 	the date the Company
performs its
obligations set forth
in Section 2(d)
	 
	 	 	 	 
	(iv)

	 	the Amendment Effectiveness
Deadline Date
	 	the date the
applicable
post-effective
amendment to a Shelf
Registration Statement
becomes effective
under the Securities
Act
	 
	 	 	 	 
	(v)

	 	the date on which the
aggregate duration of
Deferral Periods in any
period exceeds the number of
days permitted by Section
3(h)
	 	termination of the
Deferral Period that
caused the limit on
the aggregate duration
of Deferral Periods to
be exceeded





For purposes of this Agreement, Events shall begin on the dates set forth in the table above and
shall continue until the ending dates set forth in the table above.




     Commencing on (and including) any date that an Event has begun and ending on (but excluding)
the next date on which there are no Events that have occurred and are continuing (a “Damages
Accrual Period”), the Company shall pay interest (“Liquidated Damages Amount”), as liquidated damages
and not as a penalty, to Record Holders of Registrable Securities, or shall issue additional shares
of Common Stock, as applicable, as set forth below:



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	 	(A)	 	in respect of any Note that is a Registrable Security, the Company agrees to
pay interest accruing for each day in the Damages Accrual Period at a rate per annum
equal to 0.5% of the principal amount of such Note;
	 
	 	(B)	 	in respect of any Note that is a Registrable Security and is submitted by a
Holder for conversion into Underlying Common Stock during a Damages Accrual Period, the
Company agrees (i) to pay on the settlement date in respect to such conversion,
interest accruing for each day commencing on (and including) the first day of such
Damages Accrual Period and ending on (but excluding) such settlement date at a rate per
annum equal to 0.5% of the principal amount of such Note and (ii) to issue and deliver
in respect of each $1,000 principal amount of Notes submitted for conversion,
additional shares of Underlying Common Stock equal to 1% of the Applicable Conversion
Rate (as defined in the Indenture) (except to the extent the Company elects to deliver
cash upon conversion in accordance with terms of the Indenture); and
	 
	 	(C)	 	in respect of Common Stock, each Holder of such Common Stock will not be
entitled to any Liquidated Damages Amount;




provided that in the case of a Damages Accrual Period that is in effect solely as a result of an
Event of the type described in clause (iii) or (iv) of the preceding paragraph, such Liquidated
Damages Amount shall be paid only to the Holders (as set forth in the succeeding paragraph) that
have delivered Notices and Questionnaires that caused the Company to incur the obligations set
forth in Section 2(d) the non-performance of which is the basis of such Event. Notwithstanding the
foregoing, no Liquidated Damages Amount shall accrue as to any Registrable Security from and after
the earlier of (x) the date such security is no longer a Registrable Security and (y) expiration of
the Effectiveness Period. The rate of accrual of the Liquidated Damages Amount with respect to any
period shall not exceed the rate provided for in this paragraph notwithstanding the occurrence of
multiple concurrent Events.




     The Liquidated Damages Amount shall accrue from the first day of the applicable Damages
Accrual Period, and shall be payable on each Damages Payment Date during the Damage Accrual Period
(and on the Damages Payment Date next succeeding the end of the Damages Accrual Period if the
Damage Accrual Period does not end on a Damages Payment Date) to the Record Holders of the
Registrable Securities entitled thereto; provided that any Liquidated Damages Amount accrued with
respect to any Note or portion thereof redeemed by the Company on a redemption date or converted
into Underlying Common Stock on a conversion date prior to the Damages Payment Date, shall, in any
such event, be paid instead to the Holder who submitted such Note or portion thereof for redemption
or conversion on the applicable redemption date or settlement date with respect to such conversion,
as the case may be, on such date (such settlement date promptly following the conversion date, in
the case of conversion); provided further that, in the case of an Event of the type described in
clause (iii) or (iv) of the first paragraph of this Section 2(e), such Liquidated Damages Amount
shall be paid only to the Holders entitled thereto pursuant to such first paragraph by check mailed
to the address set forth in the Notice and Questionnaire delivered by such Holder. Any shares of
Underlying Common Stock that are payable pursuant to Section 2(e)(B)(ii) herein will be payable on
the date on which other shares of Underlying Common Stock otherwise deliverable are required to be
delivered by the Company pursuant to Section 14.02 of the Indenture. The Trustee shall be
entitled, on behalf of registered holders of Notes or Underlying Common Stock, to seek any
available remedy for the enforcement of this Agreement, including for the payment of such
Liquidated Damages Amount. Notwithstanding the foregoing, the parties agree that the sole damages payable for a violation of the terms of this Agreement
with respect to which liquidated damages are expressly provided shall be such liquidated damages.
Nothing shall preclude any Holder from pursuing or obtaining specific performance or other
equitable relief with respect to this Agreement in accordance with applicable law.



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     All of the Company’s obligations set forth in this Section 2(e) that are outstanding with
respect to any Registrable Security at the time such security ceases to be a Registrable Security
shall survive until such time as all such obligations with respect to such security have been
satisfied in full (notwithstanding termination of this Agreement pursuant to Section 9(k)).



     The parties hereto agree that the liquidated damages provided for in this Section 2(e)
constitute a reasonable estimate of the damages that may be incurred by Holders of Registrable
Securities by reason of the failure of the Shelf Registration Statement to be filed or to become or
be declared effective or available for effecting resales of Registrable Securities in accordance
with the provisions hereof.



          SECTION 3. Registration Procedures. In connection with the registration obligations of the Company under Section 2 hereof,
during the Effectiveness Period, the Company shall:




     (a) Prepare and file with the SEC a Shelf Registration Statement or Shelf Registration
Statements on any appropriate form under the Securities Act available for the sale of the
Registrable Securities by the Holders thereof in accordance with the intended method or methods of
distribution thereof, and use its reasonable best efforts to cause each such Shelf Registration
Statement to become effective and remain effective as provided herein; provided that before filing
any Shelf Registration Statement or Prospectus or any amendments or supplements thereto with the
SEC (but excluding reports filed with the SEC under the Exchange Act), furnish to the Initial
Purchasers and the Special Counsel, if any, copies of all such documents proposed to be filed at
least three (3) Business Days prior to the filing of such Shelf Registration Statement or amendment
thereto or Prospectus or supplement thereto.



     (b) Subject to Section 3(h), prepare and file with the SEC such amendments and post-effective amendments to each Shelf Registration Statement as may be necessary to keep
such Shelf Registration Statement continuously effective for the applicable period specified in
Section 2(a); cause the related Prospectus to be supplemented by any required prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then
in force) under the Securities Act; and use its reasonable best efforts to comply with the
provisions of the Securities Act applicable to it with respect to the disposition of all securities
covered by such Shelf Registration Statement during the Effectiveness Period in accordance with the
intended methods of disposition by the sellers thereof set forth in such Shelf Registration
Statement as so amended or such Prospectus as so supplemented.



     (c) As promptly as practicable give notice to the Notice Holders, the Initial Purchasers and
the Special Counsel, if any (i) when any Prospectus, prospectus supplement, Registration Statement
or post-effective amendment to a Registration Statement has been filed with the SEC and, with
respect to a Shelf Registration Statement or any post-effective amendment, when the same has been
declared effective, (ii) of any request, following the effectiveness of the Initial Shelf
Registration Statement under the Securities Act, by the SEC or any other federal or state
governmental authority for amendments or supplements to any Shelf Registration Statement or related
Prospectus or for additional information relating to the Shelf Registration Statement, (iii) of the
issuance by the SEC or any other federal or state governmental authority of any stop order
suspending the effectiveness of any Shelf Registration Statement or the initiation or threatening
of any proceedings for that purpose, (iv) of the receipt by the Company 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 or threatening of any proceeding for such purpose, (v) of the occurrence of, but not the
nature of or details concerning, a Material Event and (vi) of the determination by the Company that
a post-effective amendment to a Shelf Registration Statement will be filed with the SEC, which
notice may, at the discretion of the Company (or as required pursuant to Section 3(h)), state that
it constitutes a Deferral Notice, in which event the provisions of Section 3(h) shall apply.



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     (d) Use its reasonable best efforts to obtain the withdrawal of any order suspending the
effectiveness of a Shelf Registration Statement or the lifting of any suspension of the
qualification (or exemption from qualification) of any of the Registrable Securities for sale in
any jurisdiction in which they have been qualified for sale, in either case at the earliest
possible moment, and provide immediate notice to each Notice Holder and the Initial Purchasers of
the withdrawal of any such order.



     (e) As promptly as practicable furnish to each Notice Holder, the Special Counsel, if any, and
the Initial Purchasers, upon request and without charge, at least one (1) conformed copy of the
Registration Statement and any amendment thereto, including exhibits and, if requested, all
documents incorporated or deemed to be incorporated therein by reference.



     (f) Deliver to each Notice Holder, the Special Counsel, if any, and the Initial Purchasers, in
connection with any sale of Registrable Securities pursuant to a Registration Statement, without
charge, as many copies of the Prospectus relating to such Shelf Registrable Securities (including
each preliminary prospectus) and any amendment or supplement thereto as such persons may reasonably
request; and the Company hereby consents (except during such periods that a Deferral Notice is
outstanding and has not been revoked) to the use of such Prospectus or each amendment or supplement
thereto by each Notice Holder in connection with any offering and sale of the Registrable
Securities covered by such Prospectus or any amendment or supplement thereto in the manner set
forth therein.



     (g) Prior to any public offering of the Registrable Securities pursuant to a Shelf
Registration Statement, use its reasonable best efforts to register or qualify or cooperate with
the Notice Holders and the Special Counsel, if any, in connection with the registration or
qualification (or exemption from such registration or qualification) of such Registrable Securities
for offer and sale under the securities or Blue Sky laws of such jurisdictions within the United
States as any Notice Holder reasonably requests in writing (which request may be included in the
Notice and Questionnaire); prior to any public offering of the Registrable Securities pursuant to
the Shelf Registration Statement, use its reasonable best efforts to keep each such registration or
qualification (or exemption therefrom) effective during the Effectiveness Period in connection with
such Notice Holder’s offer and sale of Registrable Securities pursuant to such registration or
qualification (or exemption therefrom) and do any and all other acts or things reasonably necessary
or advisable to enable the disposition in such jurisdictions of such Registrable Securities in the
manner set forth in the relevant Shelf Registration Statement and the related Prospectus; provided
that the Company will not be required to (i) qualify as a foreign corporation or as a dealer in
securities in any jurisdiction where it would not otherwise be required to qualify but for this
Agreement or (ii) take any action that would subject it to general service of process or to
taxation in any such jurisdiction where it is not then so subject.



     (h) Upon (A) the issuance by the SEC of a stop order suspending the effectiveness of any Shelf
Registration Statement or the initiation of proceedings with respect to any Shelf Registration
Statement under Section 8(d) or 8(e) of the Securities Act, (B) the occurrence of any event or the
existence of any fact (a “Material Event”) as a result of which any Shelf Registration Statement
shall contain any untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading, or any Prospectus
shall contain any untrue statement of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of the circumstances under which
they were made, not misleading, or (C) the occurrence or existence of any pending corporate
development that, in the reasonable discretion of the Company, makes it appropriate to suspend the
availability of any Shelf Registration Statement and the related Prospectus:




     (i) in the case of clause (B) above, subject to the next sentence, as promptly as
practicable prepare and file, if necessary pursuant to applicable law, a post-effective
amendment



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to such Shelf Registration Statement or a supplement to the related Prospectus or
any document incorporated therein by reference or file any other required document that
would be incorporated by reference into such Shelf Registration Statement and Prospectus so
that such Shelf Registration Statement does not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or necessary to make
the statements therein not misleading, and such Prospectus does not contain any untrue
statement of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of the circumstances under
which they were made, not misleading, as thereafter delivered to the purchasers of the
Registrable Securities being sold thereunder, and, in the case of a post-effective amendment
to a Shelf Registration Statement, subject to the next sentence, provided such
post-effective amendment is not a WKSI Shelf Registration Statement, use its reasonable best
efforts to cause it to be declared effective as promptly as is practicable, and




     (ii) give notice to the Notice Holders and the Special Counsel, if any, that the
availability of the Shelf Registration Statement is suspended (a “Deferral Notice”) and,
upon receipt of any Deferral Notice, each Notice Holder agrees not to sell any Registrable
Securities pursuant to the Shelf Registration Statement until such Notice Holder’s receipt
of copies of the supplemented or amended Prospectus provided for in clause (i) above, or
until it is advised in writing by the Company that the Prospectus may be used, and has
received copies of any additional or supplemental filings that are incorporated or deemed
incorporated by reference in such Prospectus.


The Company will use its reasonable best efforts to ensure that the use of the Prospectus may be
resumed (x) in the case of clause (A) above, as promptly as is practicable, (y) in the case of
clause (B) above, as soon as, in the sole judgment of the Company, public disclosure of such
Material Event would not be prejudicial to or contrary to the interests of the Company or, if
necessary to avoid unreasonable burden or expense, as soon as practicable thereafter, and (z) in
the case of clause (C) above, as soon as, in the reasonable discretion of the Company, such
suspension is no longer appropriate. The Company shall be entitled to exercise its right under
this Section 3(h) to suspend the availability of any Shelf Registration Statement or any
Prospectus, without incurring or accruing any obligation to pay liquidated damages pursuant to
Section 2(e) (the “Deferral Period”); provided that the aggregate duration of any Deferral Periods
shall not exceed 30 days in any three month period (or 60 days in any three month period in the
event of a Material Event pursuant to which the Company has delivered a second notice as required
below) or 90 days in any twelve (12) month period; provided that in the case of a Material Event
relating to an acquisition or a probable acquisition or financing, recapitalization, business
combination or other similar transaction, the Company may, without incurring any obligation to pay
liquidated damages pursuant to Section 2(e), deliver to Notice Holders a second notice to the
effect set forth above, which shall have the effect of extending the Deferral Period by up to an
additional 30 days, or such shorter period of time as is specified in such second notice.




     (i) If reasonably requested in writing in connection with a disposition of Registrable
Securities pursuant to a Shelf Registration Statement, make reasonably available for inspection
during normal business hours by a representative for the Notice Holders of such Registrable
Securities, any broker-dealers, underwriters, attorneys and accountants retained by such Notice Holders, and
any attorneys or other agents retained by a broker-dealer or underwriter engaged by such Notice
Holders, all relevant financial and other records and pertinent corporate documents and properties
of the Company and its subsidiaries, and cause the appropriate officers, directors and employees of
the Company and its subsidiaries to make reasonably available for inspection during normal business
hours on reasonable notice all relevant information reasonably requested by such representative for
the Notice Holders, or any such broker-dealers, underwriters, attorneys or accountants in
connection with such disposition, in each case as is customary for similar “due diligence”
examinations; provided that such persons shall first agree



10









 







in writing with the Company that any information that is reasonably designated by the Company as confidential at the time of delivery of
such information shall be kept confidential by such persons and shall be used solely for the
purposes of exercising rights under this Agreement, unless (i) disclosure of such information is
required by court or administrative order or is necessary to respond to inquiries of regulatory
authorities, (ii) disclosure of such information is required by law (including any disclosure
requirements pursuant to federal securities laws in connection with the filing of any Shelf
Registration Statement or the use of any Prospectus referred to in this Agreement), (iii) such
information becomes generally available to the public other than as a result of a disclosure or
failure to safeguard by any such person or (iv) such information becomes available to any such
person from a source other than the Company and such source is not bound by a confidentiality
agreement; and provided further that the foregoing inspection and information gathering shall, to
the greatest extent possible, be coordinated on behalf of all the Notice Holders and the other
parties entitled thereto by Special Counsel, if any, or another representative selected by a
majority of Registrable Securities being sold by such Holders pursuant to such Shelf Registration
Statement. Any person legally compelled or required by administrative or court order or by a
regulatory authority to disclose any such confidential information made available for inspection
shall provide the Company with prompt prior written notice of such requirement so that the Company
may seek a protective order or other appropriate remedy.



     (j) Comply with all applicable rules and regulations of the SEC and make generally available
to its securityholders earning statements (which need not be audited) satisfying the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under
the Securities Act) for a 12-month period commencing on the first day of the first fiscal quarter
of the Company commencing after the effective date of a Shelf Registration Statement, which
statements shall be made available no later than 45 days after the end of the 12-month period or 90
days if the 12-month period coincides with the fiscal year of the Company.



     (k) Cooperate with each Notice Holder to facilitate the timely preparation and delivery of
certificates representing Registrable Securities sold or to be sold pursuant to a Shelf
Registration Statement, which certificates shall not bear any restrictive legends, and cause such
Registrable Securities to be in such denominations as are permitted by the Indenture and registered
in such names as such Notice Holder may request in writing at least two (2) Business Days prior to
any sale of such Registrable Securities.



     (l) Provide a CUSIP number for all Registrable Securities covered by each Shelf Registration
Statement not later than the effective date of such Shelf Registration Statement and, if requested,
provide the Trustee and the transfer agent for the Common Stock with printed certificates for the
Registrable Securities that are in a form eligible for deposit with The Depository Trust Company.



     (m) Cooperate and assist in any filings required to be made with the National Association of
Securities Dealers, Inc.



     (n) In the case of a Shelf Registration Statement involving an underwritten offering, the
Company shall enter into such customary agreements (including, if requested, an underwriting
agreement in reasonably customary form) and take all such other action, if any, as Holders of a majority
of the Registrable Securities being sold or any managing underwriters reasonably shall request in
order to facilitate any disposition of Notes and Underlying Common Stock pursuant to such Shelf
Registration Statement, including, without limitation, (i) using its reasonable best efforts to
cause its counsel to deliver an opinion or opinions in reasonably customary form, (ii) using its
reasonable best efforts to cause its officers to execute and deliver all customary documents and
certificates and (iii) using its reasonable best efforts to cause its independent public
accountants to provide a comfort letter or letters in reasonably customary form.



11









 





     (o) Upon (i) the filing of the Initial Shelf Registration Statement and (ii) the effectiveness
of the Initial Shelf Registration Statement, announce the same, in each case by release to Reuters
Economic Services and Bloomberg Business News.



          SECTION 4. Holder’s Obligations. Each Holder agrees, by acquisition of the Registrable Securities, that no Holder shall be
entitled to sell any of such Registrable Securities pursuant to a Registration Statement or to
receive a Prospectus relating thereto unless such Holder has furnished the Company with a Notice
and Questionnaire as required pursuant to Section 2(d) hereof (including the information required
to be included in such Notice and Questionnaire) and the information set forth in the next
sentence. Each Notice Holder agrees promptly to furnish to the Company all information required to
be disclosed in order to make the information previously furnished to the Company by such Notice
Holder not misleading and any other information regarding such Notice Holder and the distribution
of such Registrable Securities as the Company may from time to time reasonably request. Any sale
of any Registrable Securities by any Holder shall constitute a representation and warranty by such
Holder that the information relating to such Holder and its plan of distribution is as set forth in
the Prospectus delivered by such Holder in connection with such disposition, that such Prospectus
does not as of the time of such sale contain any untrue statement of a material fact relating to or
provided by such Holder or its plan of distribution and that such Prospectus does not as of the
time of such sale omit to state any material fact relating to or provided by such Holder or its
plan of distribution necessary to make the statements in such Prospectus, in the light of the
circumstances under which they were made, not misleading. Each Holder further agrees, by acquiring
Registrable Securities, that it will not take any action that would result in the Company being
required to file with the SEC under Rule 433(d) a free writing prospectus (as defined in Rule 405
under the Securities Act) prepared by or on behalf of such Holder that otherwise would not be
required to be filed by the Company thereunder but for the action of such Holder.




12









 








          SECTION 5. Registration Expenses. The Company shall bear all fees and expenses incurred in connection with the performance by
the Company of its obligations under Sections 2 and 3 of this Agreement whether or not any Shelf
Registration Statement becomes or is declared effective. Such fees and expenses shall include,
without limitation, (i) all registration and filing fees (including, without limitation, fees and
expenses (x) with respect to filings required to be made with the National Association of
Securities Dealers, Inc. and (y) of compliance with federal and state securities or Blue Sky laws
(including, without limitation, reasonable fees and disbursements of the Special Counsel, if any,
in connection with Blue Sky qualifications of the Registrable Securities under the laws of such
jurisdictions as Notice Holders of a majority of the Registrable Securities being sold pursuant to
a Shelf Registration Statement may designate)), (ii) printing expenses (including, without
limitation, expenses of printing certificates for Registrable Securities in a form eligible for
deposit with The Depository Trust Company), (iii) duplication expenses relating to copies of any
Shelf Registration Statement or Prospectus delivered to any Holders hereunder, (iv) fees and
disbursements of counsel for the Company in connection with any Shelf Registration Statement, (v) reasonable fees and disbursements of the Trustee and its counsel
and of the registrar and transfer agent for the Common Stock and (vi) any Securities Act liability
insurance obtained by the Company in its sole discretion. In addition, the Company shall pay the
internal expenses of the Company (including, without limitation, all salaries and expenses of
officers and employees performing legal or accounting duties), the expense of any annual audit, the
fees and expenses incurred in connection with the listing by the Company of the Registrable
Securities on any securities exchange on which similar securities of the Company are then listed
and the fees and expenses of any person, including special experts, retained by the Company.
Notwithstanding the provisions of this Section 5, each seller of Registrable Securities shall pay
selling expenses, including any underwriting discount and commissions, all registration expenses to
the extent required by applicable law and, except as otherwise provided herein, fees and expenses
of counsel to such seller.




          SECTION
6. Indemnification and Contribution



     (a) Indemnification by the Company. Upon the registration of the Registrable Securities
pursuant to Section 2 hereof, the Company shall indemnify and hold harmless each Notice Holder and
each underwriter, selling agent or other securities professional, if any, which facilitates the
disposition of Registrable Securities, and each of their respective officers and directors and each
person who controls such Notice Holder, underwriter, selling agent or other securities professional
within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each such
person being sometimes referred to as an “Indemnified Person”) against any losses, claims, damages
or liabilities, joint or several, to which such Indemnified Person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of
a material fact contained in any Shelf Registration Statement under which such Registrable
Securities are to be registered under the Securities Act, or any Prospectus contained therein or
furnished by the Company to any Indemnified Person, or any amendment or supplement thereto, 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 the
Company hereby agrees to reimburse such Indemnified Person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any such action or claim
as such expenses are incurred; provided, however, that the Company shall not be liable to any such
Indemnified Person in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such Shelf Registration Statement or Prospectus, or amendment or
supplement, in reliance upon and in conformity with written information furnished to the Company by
such Indemnified Person expressly for use therein.




     (b) Indemnification by the Notice Holders and any Agents and Underwriters. Each Notice Holder
agrees, as a consequence of the inclusion of any of such Notice Holder’s Registrable Securities in
such Shelf Registration Statement, and each underwriter, selling agent or other securities
professional, if



13









 







any, which facilitates the disposition of Registrable Securities shall agree, as a consequence of facilitating such disposition of Registrable Securities, severally and not jointly,
to (i) indemnify and hold harmless the Company, its directors, officers who sign any Shelf
Registration Statement and each person, if any, who controls the Company within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act, against any losses,
claims, damages or liabilities to which the Company or such other persons may become subject, under
the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in such Shelf Registration Statement or Prospectus, or any amendment
or supplement, 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, in each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company by such Notice Holder, underwriter, selling agent or
other securities professional expressly for use therein, and (ii) reimburse the Company for any
legal or other expenses reasonably incurred by the Company in connection with investigating or
defending any such action or claim as such expenses are incurred.



     (c) Notices of Claims, Etc. Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against an indemnifying party under this Section 6, notify
such indemnifying party in writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to any indemnified
party otherwise than under the indemnification provisions of or contemplated by subsection (a) or
(b) above. In case any such action shall be brought against any indemnified party and it shall
notify an indemnifying party of the commencement thereof, such indemnifying party shall be entitled
to participate therein and, to the extent that it shall wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party (who shall not, except with the consent of the indemnified party, be counsel
to the indemnifying party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, such indemnifying party shall not be liable to
such indemnified party under this Section 6 for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying party shall, without
the written consent of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or claim in respect of
which indemnification or contribution may be sought hereunder (whether or not the indemnified party
is an actual or potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all liability arising
out of such action or claim and (ii) does not include a statement as to, or an admission of, fault,
culpability or a failure to act, by or on behalf of any indemnified party.



     (d) Contribution. If the indemnification provided for in this Section 6 is unavailable to or
insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of
any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein,
then each indemnifying party shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in
such proportion as is appropriate to reflect the relative fault of the indemnifying party and the
indemnified party in connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations including, but not limited to, the timeliness of the notice given as
required by Section 6(c). The relative fault of such indemnifying party and indemnified party
shall be determined by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material fact relates



14









 







to information supplied by such indemnifying party or by such 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 and equitable if
contribution pursuant to this Section 6(d) were determined by pro rata allocation (even if the
Notice Holders or any underwriters, selling agents or other securities professionals or all of them
were treated as one entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in this Section 6(d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above shall be deemed to include any legal or other fees or
expenses reasonably incurred by such indemnified party in connection with investigating or
defending any such action or claim. 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. The obligations of the Notice
Holders and any underwriters, selling agents or other securities professionals in this Section 6(d)
to contribute shall be several in proportion to the percentage of principal amount of Registrable
Securities registered or underwritten, as the case may be, by them and not joint.



     (e) Notwithstanding any other provision of this Section 6, in no event will any (i) Notice
Holder be required to undertake liability to any person under this Section 6 for any amounts in
excess of the dollar amount of the proceeds to be received by such Holder from the sale of such
Holder’s Registrable Securities (after deducting any fees, discounts and commissions applicable
thereto) pursuant to any Shelf Registration Statement under which such Registrable Securities are
to be registered under the Securities Act and (ii) underwriter, selling agent or other securities
professional be required to undertake liability to any person hereunder for any amounts in excess
of the discount, commission or other compensation payable to such underwriter, selling agent or
other securities professional with respect to the Registrable Securities underwritten by it and
distributed to the public.



     (f) The obligations of the Company under this Section 6 shall be in addition to any liability
which the Company may otherwise have to any Indemnified Person and the obligations of any
Indemnified Person under this Section 6 shall be in addition to any liability which such
Indemnified Person may otherwise have to the Company. The remedies provided in this Section 6 are
not exclusive and shall not limit any rights or remedies which may otherwise be available to an
indemnified party at law or in equity.



          SECTION 7. Information Requirements. The Company covenants that, if at any time before the end of the Effectiveness Period the
Company is not subject to the reporting requirements of the Exchange Act, it will cooperate with
any Holder and take such further reasonable action as any Holder may reasonably request in writing
(including, without limitation, making such reasonable representations as any such Holder may
reasonably request), all to the extent required from time to time to enable such Holder to sell
Registrable Securities without registration under the Securities Act within the limitation of the
exemptions provided by Rule 144 and Rule 144A under the Securities Act and customarily taken in
connection with sales pursuant to such exemptions. Upon the written request of any Holder, the
Company shall deliver to such Holder a written statement as to whether it has complied with such
filing requirements, unless such a statement has been included in the Company’s most recent report
filed pursuant to Section 13 or Section 15(d) of Exchange Act. Notwithstanding the foregoing,
nothing in this Section 7 shall be deemed to require the Company to register any of its securities
(other than the Common Stock) under any section of the Exchange Act.




          SECTION 8. Underwritten Registrations. The Holders of Registrable Securities covered by a Shelf Registration Statement who desire
to do so may sell such Registrable Securities to an underwriter in an underwritten offering for
reoffering to the public. If any of the Registrable Securities covered by any Shelf Registration
Statement are to be sold in an underwritten offering, the investment

15









 








banker or investment bankers and manager or managers that will administer the offering will be selected by the Holders of a
majority of such Registrable Securities included in such offering, subject to the consent of the
Company (which shall not be unreasonably withheld or delayed), and such Holders shall be
responsible for all underwriting commissions and discounts and any transfer taxes in connection
therewith. No person may participate in any underwritten registration hereunder unless such person
(i) agrees to sell such person’s Registrable Securities on the basis reasonably provided in any
underwriting arrangements approved by the persons entitled hereunder to approve such arrangements
and (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.




          SECTION 9. Miscellaneous.




     (a) No Conflicting Agreements. The Company is not, as of the date hereof, a party to, nor
shall it, on or after the date of this Agreement, enter into, any agreement with respect to its
securities that conflicts with the rights granted to the Holders in this Agreement. The Company
represents and warrants that the rights granted to the Holders hereunder do not in any way conflict
with the rights granted to the holders of the Company’s securities under any other agreements.



     (b) Amendments and Waivers. The provisions of this Agreement, including the provisions of
this sentence, may not be amended, modified or supplemented, and waivers or consents to departures
from the provisions hereof may not be given, unless the Company has obtained the written consent of
Holders of a majority of Registrable Securities. Notwithstanding the foregoing, a waiver or
consent to depart from the provisions hereof with respect to a matter that relates exclusively to
the rights of Holders whose securities are being sold pursuant to a Registration Statement and that
does not directly or indirectly affect the rights of other Holders may be given by Holders of at
least a majority of the Registrable Securities being sold by such Holders pursuant to such
Registration Statement; provided that the provisions of this sentence may not be amended, modified
or supplemented except in accordance with the provisions of the immediately preceding sentence.
Notwithstanding the foregoing, this Agreement may be amended by written agreement signed by the
Company and the Initial Purchasers, without the consent of the Holders of Registrable Securities,
to cure any ambiguity or to correct or supplement any provision contained herein that may be
defective or inconsistent with any other provision contained herein, or to make such other
provisions in regard to matters or questions arising under this Agreement that shall not adversely
affect the interests of the Holders of Registrable Securities. Each Holder of Registrable
Securities outstanding at the time of any such amendment, modification, supplement, waiver or
consent or thereafter shall be bound by any such amendment, modification, supplement, waiver or
consent effected pursuant to this Section 9(b), whether or not any notice, writing or marking
indicating such amendment, modification, supplement, waiver or consent appears on the Registrable
Securities or is delivered to such Holder.



     (c) Notices. All notices and other communications provided for or permitted hereunder shall
be made in writing by hand delivery, by telecopier, by courier guaranteeing overnight delivery or
by first-class mail, return receipt requested, and shall be deemed given (i) when made, if made by
hand delivery, (ii) upon confirmation, if made by facsimile, (iii) one (1) Business Day after being
deposited with such courier, if made by overnight courier or (iv) on the date indicated on the
notice of receipt, if made by first-class mail, to the parties as follows:




     (i) if to a Holder, at the most current address given by such Holder to the Company in
a Notice and Questionnaire or any amendment thereto;




     (ii) if to the Company, to:



16









 





NII Holdings, Inc.

10700 Parkridge Boulevard, Suite 600

Reston, Virginia 20191

Attention: General Counsel

Fax: (703) 390-5191



with a copy to:



Williams Mullen

A Professional Corporation

1021 East Cary Street

Richmond, Virginia 23219

Attention: Robert E. Spicer, Jr., Esq.

Fax: (804) 783-6507





     (iii) if to the Initial Purchasers, to:


Deutsche Bank Securities Inc.

60 Wall Street

New York, New York 10005

Attention: Equity-Linked Capital Markets Group

Fax: (212) 797-9344



with a copy to:



Shearman & Sterling LLP

599 Lexington Avenue

New York, New York 10022

Attention: Andrew Schleider, Esq.

Fax: (212) 848-7179



or to such other address as such person may have furnished to the other persons identified in this
Section 9(c) in writing in accordance herewith.




     (d) Approval of Holders. Whenever the consent or approval of Holders of a specified
percentage of Registrable Securities is required hereunder, Registrable Securities held by the
Company or its affiliates (as such term is defined in Rule 405 under the Securities Act) (other
than the Initial Purchasers or subsequent Holders if such subsequent Holders are deemed to be such
affiliates solely by reason of their holdings of such Registrable Securities) shall not be counted
in determining whether such consent or approval was given by the Holders of such required
percentage.



     (e) Successors and Assigns. Any person who purchases any Registrable Securities from the
Initial Purchasers shall be deemed, for purposes of this Agreement, to be an assignee of the
Initial Purchasers. This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of each of the parties and shall inure to the benefit of and be binding upon
each Holder of any Registrable Securities, provided that nothing herein shall be deemed to permit
any assignment, transfer or other disposition of Registrable Securities in violation of the terms
of the Indenture. If any transferee of any Holder shall acquire Registrable Securities, in any
manner, whether by operation of law or otherwise, such Registrable Securities shall be held subject
to all of the terms of this Agreement, and by taking and holding such Registrable Securities, such
person shall be conclusively deemed to have agreed to be bound



17









 







by and to perform all of the terms and provisions of this Agreement and such person shall be entitled to receive the benefits hereof.



     (f) Counterparts. This Agreement may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed shall be deemed to be
original and all of which taken together shall constitute one and the same agreement.



     (g) Headings. The headings in this Agreement are for convenience of reference only and shall
not limit or otherwise affect the meaning hereof.



     (h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.



     (i) Severability. If any term, provision, covenant or restriction of this Agreement is held
to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants
and restrictions set forth herein shall remain in full force and effect and shall in no way be
affected, impaired or invalidated thereby, and the parties hereto shall use their reasonable best
efforts to find and employ an alternative means to achieve the same or substantially the same
result as that contemplated by such term, provision, covenant or restriction, it being intended
that all of the rights and privileges of the parties shall be enforceable to the fullest extent
permitted by law.



     (j) Entire Agreement. This Agreement is intended by the parties as a final expression of
their agreement and is intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained herein and the
registration rights granted by the Company with respect to the Registrable Securities. Except as
provided in the Purchase Agreement, the Indenture and the Notes, there are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to herein, with
respect to the registration rights granted by the Company with respect to the Registrable
Securities. This Agreement supersedes all prior agreements and undertakings among the parties with
respect to such registration rights. No party hereto shall have any rights, duties or obligations
other than those specifically set forth in this Agreement, the Indenture and the Notes.



     (k) Termination. This Agreement and the obligations of the parties hereunder shall terminate
upon the end of the Effectiveness Period, except for any liabilities or obligations under Section
4, 5 or 6 hereof and the obligations to make payments of and provide for liquidated damages under
Section 2(e) hereof to the extent such damages accrue prior to the end of the Effectiveness Period,
each of which shall remain in effect in accordance with its terms.



18









 





     IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.



	 	 	 	 	 
	 	NII HOLDINGS, INC.

 	 
	 	By:  	/s/	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	Confirmed and accepted as

of the date first above written:



DEUTSCHE BANK SECURITIES INC.

BEAR, STEARNS & CO. INC.

GOLDMAN, SACHS & CO.



BY: DEUTSCHE BANK SECURITIES INC.

 	 	 
	By:  	/s/	 	 
	 	(Deutsche Bank Securities Inc.) 	 	 
	 
	By:  	/s/	 	 
	 	(Deutsche Bank Securities Inc.) 	 	 



 









 






	 	 	 	 	 



SCHEDULE I




Initial Purchasers




Deutsche Bank Securities Inc.

Bear, Stearns & Co. Inc.

Goldman, Sachs & Co.