EXHIBIT 4.3
EXECUTION COPY
SEACOR SMIT Inc.
7.20% Senior Notes Due 2009
REGISTRATION AGREEMENT
New York, New York
Dated as of September 22, 1997
Salomon Brothers Inc
Bear, Xxxxxxx & Co. Inc.
Credit Suisse First Boston Corporation
c/o Salomon Brothers Inc
Seven Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
SEACOR SMIT Inc., a Delaware corporation (the
"Company"), proposes to issue and sell to Salomon Brothers Inc, Bear, Xxxxxxx &
Co. Inc. and Credit Suisse First Boston Corporation (collectively, the "Initial
Purchasers"), upon the terms set forth in a purchase agreement of even date
herewith (the "Purchase Agreement"), its 7.20% Senior Notes Due 2009 (the
"Securities") (the "Initial Placement"). As an inducement to the Initial
Purchasers to enter into the Purchase Agreement and in satisfaction of a
condition to the Initial Purchasers' obligations thereunder, the Company agrees
with the Initial Purchasers, (i) for the benefit of the Initial Purchasers and
(ii) for the benefit of the holders from time to time of the Securities until
such time as such Securities have been sold pursuant to an Exchange Offer
Registration Statement or Shelf Registration Statement (as defined below)
(including the Initial Purchasers) (each of the foregoing a "Holder" and
together the "Holders"), as follows:
1. Definitions. Capitalized terms used herein
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without definition shall have their respective meanings set forth in the
Purchase Agreement. As used in this Agreement, the following capitalized defined
terms shall have the following meanings:
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"Act" means the Securities Act of 1933, as
amended, and the rules and regulations of the Commission
promulgated thereunder.
"Affiliate" of any specified person means any
other person which, directly or indirectly, is in control of, is controlled by,
or is under common control with, such specified person. For purposes of this
definition, control of a person means the power, direct or indirect, to direct
or cause the direction of the management and policies of such person whether by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Closing Date" has the meaning set forth in the
Purchase Agreement.
"Commission" means the Securities and Exchange
Commission.
"Exchange Act" means the Securities Exchange Act
of 1934, as amended, and the rules and regulations of the
Commission promulgated thereunder.
"Exchange Offer Registration Period" means the
180-day period following the consummation of the Registered Exchange Offer,
exclusive of any period during which any stop order shall be in effect
suspending the effectiveness of the Exchange Offer Registration Statement.
"Exchange Offer Registration Statement" means a
registration statement of the Company on an appropriate form under the Act with
respect to the Registered Exchange Offer, all amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Exchanging Dealer" means any Holder (which may
include the Initial Purchasers) which is a broker-dealer, electing to exchange
Securities acquired for its own account as a result of market-making activities
or other trading activities, for New Securities.
"Final Memorandum" has the meaning set forth in
the Purchase Agreement.
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"Holder" has the meaning set forth in the preamble
hereto.
"Indenture" means the Indenture relating to the
Securities dated as of September 22, 1997, between the Company and First Trust
National Association, as trustee, as the same may be amended from time to time
in accordance with the terms thereof.
"Initial Placement" has the meaning set forth in
the preamble hereto.
"Majority Holders" means the Holders of a majority
of the aggregate principal amount of Securities registered
under a Registration Statement.
"Managing Underwriters" means the investment
banker or investment bankers and manager or managers that shall administer an
underwritten offering.
"New Securities" means debt securities of the
Company identical in all material respects to the Securities (except that the
cash interest and interest rate step-up provisions and the transfer restrictions
will be modified or eliminated, as appropriate), to be issued under the
Indenture or the New Securities Indenture.
"New Securities Indenture" means an indenture
between the Company and the New Securities Trustee, identical in all material
respects with the Indenture (except that the cash interest and interest rate
step-up provisions will be modified or eliminated, as appropriate).
"New Securities Trustee" means a bank or trust
company reasonably satisfactory to the Purchaser, as trustee with respect to the
New Securities under the New Securities Indenture.
"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 under the Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Securities or the New Securities, covered
by such
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Registration Statement, and all amendments and supplements to the Prospectus,
including post-effective amendments.
"Registered Exchange Offer" means the proposed
offer to the Holders to issue and deliver to such Holders, in exchange for the
Securities, a like principal amount of the New Securities.
"Registration Statement" means any Exchange Offer
Registration Statement or Shelf Registration Statement that covers any of the
Securities or the New Securities pursuant to the provisions of this Agreement,
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material
incorporated by reference therein.
"Securities" has the meaning set forth in the
preamble hereto.
"Shelf Registration" means a registration effected
pursuant to Section 3 hereof.
"Shelf Registration Period" has the meaning set
forth in Section 3(b) hereof.
"Shelf Registration Statement" means a "shelf"
registration statement of the Company pursuant to the provisions of Section 3
hereof which covers some or all of the Securities or New Securities, as
applicable, on an appropriate form under Rule 415 under the Act, or any similar
rule that may be adopted by the Commission, amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Trustee" means the trustee with respect to the
Securities under the Indenture.
"underwriter" means any underwriter of Securities
in connection with an offering thereof under a Shelf
Registration Statement.
2. Registered Exchange Offer; Resales of New
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Securities by Exchanging Dealers; Private Exchange. (a) The Company shall
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prepare and, not later than 150 days
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following the date of original issuance of the Securities, shall file with
the Commission the Exchange Offer Registration Statement with respect to the
Registered Exchange Offer. The Company shall use its best efforts to cause
the Exchange Offer Registration Statement to become effective under the Act
within 180 days of the date of original issuance of the Securities.
(b) Upon the effectiveness of the Exchange Offer
Registration Statement, the Company shall promptly commence the Registered
Exchange Offer, it being the objective of such Registered Exchange Offer to
enable each Holder electing to exchange Securities for New Securities
(assuming that such Holder is not an affiliate of the Company within the
meaning of the Act, acquires the New Securities in the ordinary course of
such Holder's business and has no arrangements with any person to participate
in the distribution of the New Securities) to trade such New Securities from
and after their receipt without any limitations or restrictions under the Act
and without material restrictions under the securities laws of a substantial
proportion of the several states of the United States.
(c) In connection with the Registered Exchange
Offer, the Company shall:
(i) mail to each Holder a copy of the Prospectus forming
part of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) keep the Registered Exchange Offer open for not less
than 30 days after the date notice thereof is mailed to the Holders
(or longer if required by applicable law);
(iii) utilize the services of a depositary for the
Registered Exchange Offer with an address in the Borough of
Manhattan, The City of New York; and
(iv) comply in all respects with all applicable
laws.
(d) As soon as practicable after the close of the
Registered Exchange Offer, the Company shall:
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(i) accept for exchange all Securities tendered
and not validly withdrawn pursuant to the Registered
Exchange Offer;
(ii) deliver to the Trustee for cancelation all
Securities so accepted for exchange; and
(iii) cause the Trustee or the New Securities Trustee, as
the case may be, promptly to authenticate and deliver to each Holder
of Securities New Securities equal in principal amount to the
Securities of such Holder so accepted for exchange.
(e) The Initial Purchasers and the Company
acknowledge that, pursuant to interpretations by the Commission's staff of
Section 5 of the Act, and in the absence of an applicable exemption therefrom,
each Exchanging Dealer is required to deliver a Prospectus in connection with a
sale of any New Securities received by such Exchanging Dealer pursuant to the
Registered Exchange Offer in exchange for Securities acquired for its own
account as a result of market-making activities or other
trading activities. Accordingly, the Company shall:
(i) include the information set forth in Annex A hereto on
the cover of the Exchange Offer Registration Statement, in Annex B
hereto in the forepart of the Exchange Offer Registration Statement
in a section setting forth details of the Exchange Offer, and in
Annex C hereto in the underwriting or plan of distribution section of
the Prospectus forming a part of the Exchange Offer Registration
Statement, and include the information set forth in Annex D hereto in
the Letter of Transmittal delivered pursuant to the Registered
Exchange Offer; and
(ii) use its best efforts to keep the Exchange Offer
Registration Statement continuously effective under the Act during
the Exchange Offer Registration Period for delivery by Exchanging
Dealers in connection with sales of New Securities received pursuant
to the Registered Exchange Offer, as contemplated by Section 4(h)
below.
(f) In the event that any Initial Purchaser
determines that it is not eligible to participate in the Registered Exchange
Offer with respect to the exchange of
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Securities constituting any portion of an unsold allotment, at the request of
such Initial Purchaser, the Company shall issue and deliver to such Initial
Purchaser or the party purchasing New Securities registered under a Shelf
Registration Statement as contemplated by Section 3 hereof from such Initial
Purchaser, in exchange for such Securities, a like principal amount of New
Securities. The Company shall seek to cause the CUSIP Service Bureau to issue
the same CUSIP number for such New Securities as for New Securities issued
pursuant to the Registered Exchange Offer.
3. Shelf Registration. If, (i) because of any
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change in law or applicable interpretations thereof by the Commission's staff,
the Company determines upon advice of its outside counsel that it is not
permitted to effect the Registered Exchange Offer as contemplated by Section 2
hereof, or (ii) if for any other reason the Registered Exchange Offer is not
declared effective within 180 days following the date of original issuance of
the Securities, or (iii) if any Initial Purchaser so requests with respect to
Securities held by it constituting any portion of an allotment remaining unsold
after 30 days following the date hereof, or (iv) in the case of any Initial
Purchaser that participates in the Registered Exchange Offer or acquires
New Securities pursuant to Section 2(f) hereof, such Initial Purchaser does not
receive freely tradeable New Securities in exchange for Securities constituting
any portion of an unsold allotment (it being understood that, for purposes of
this Section 3, (x) the requirement that an Initial Purchaser deliver a
Prospectus containing the information required by Items 507 and/or 508 of
Regulation S-K under the Act in connection with sales of New Securities acquired
in exchange for such Securities shall result in such New Securities being not
"freely tradeable" but (y) the requirement that an Exchanging Dealer deliver a
Prospectus in connection with sales of New Securities acquired in the Registered
Exchange Offer in exchange for Securities acquired as a result of market-making
activities or other trading activities shall not result in such New Securities
being not "freely tradeable"), the following provisions shall apply:
(a) The Company shall, at its cost, as promptly
as practicable, file with the Commission and thereafter shall use its best
efforts to cause to be declared effective by the 210th day after the original
date of issuance of the
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Securities under the Act a Shelf Registration Statement relating to the offer
and sale of the Securities or the New Securities, as applicable, by the
Holders from time to time in accordance with the methods of distribution set
forth in such Shelf Registration Statement and Rule 415 under the Act;
PROVIDED that with respect to New Securities received by an Initial Purchaser
in exchange for Securities constituting any portion of an unsold allotment,
the Company may, if permitted by current interpretations by the Commission's
staff, file a post-effective amendment to the Exchange Offer Registration
Statement containing the information required by Regulation S-K Items 507
and/or 508, as applicable, in satisfaction of its obligations under this
paragraph (a) with respect thereto, and any such Exchange Offer Registration
Statement, as so amended, shall be referred to herein as, and governed by the
provisions herein applicable to, a Shelf Registration Statement; PROVIDED,
FURTHER, that no Holder (other than an Initial Purchaser) shall be entitled
to have the Securities held by it covered by such Shelf Registration
Statement unless such Holder agrees in writing to be bound by all the
provisions of this Agreement applicable to such Holder as provided in a
written notice and questionnaire delivered to all Holders (including the
Initial Purchasers) notifying such Holders that a Shelf Registration
Statement will be filed by the Company, requesting such information with
respect to the Holders as required to be disclosed by the Shelf Registration
Statement and setting forth a deadline for response therein (which in no
event shall be less than 30 calendar days).
(b) The Company shall use its best efforts to
keep the Shelf Registration Statement continuously effective in order to permit
the Prospectus forming part thereof to be lawfully delivered by Holders until
the earliest of (x) the second anniversary of the date of original issuance of
the Securities (or the first anniversary of the effective date if such Shelf
Registration Statement is filed at the request of the Initial Purchasers), (y)
the time when the Securities registered thereunder can be sold by non-affiliates
pursuant to Rule 144 under the Securities Act without limitation under clauses
(c), (e), (f) and (h) of Rule 144, or (z) such time as all the Securities
registered thereunder have been sold (in any such case, such period being called
the "Shelf Registration Period"). During any consecutive 365-day period, the
Company will have the ability to suspend the availability of the Shelf
Registration Statement for up to two periods of up to 45 consecutive days, but
no more than
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an aggregate of 60 days during any 365-day period. The Company shall be
deemed not to have used its best efforts to keep the Shelf Registration
Statement effective during the requisite period if it voluntarily takes any
action that would result in Holders of Securities covered thereby not being
able to offer and sell such Securities during that period, unless (i) such
action is required by applicable law, or (ii) upon the occurrence of any
event contemplated by paragraph 4(c)(2)(iii) below, such action is taken by
the Company in good faith and for valid business reasons (not including
avoidance of the Company's obligations hereunder), so long as the Company
promptly thereafter complies with the requirements of Section 4(k) hereof, if
applicable, if the Company has determined in good faith that there are no
material legal or commercial impediments in so doing.
4. Registration Procedures. In connection with
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any Shelf Registration Statement and, to the extent applicable, any Exchange
Offer Registration Statement, the following provisions shall apply:
(a) The Company shall, furnish to each Initial Purchaser,
prior to the filing thereof with the Commission, a copy of any Shelf
Registration Statement and any Exchange Offer Registration Statement,
and each amendment thereof and each amendment or supplement, if any,
to the Prospectus included therein and, in the event that an Initial
Purchaser (with respect to any portion of an unsold allotment from
the original offering) is participating in the Registration
Statement, shall use its best efforts to reflect in each such
document, when so filed with the Commission, such comments as the
Initial Purchasers reasonably may propose and (ii) include the names
of the Holders who propose to sell Securities pursuant to the Shelf
Registration Statement, as selling securityholders.
(b) Notwithstanding any other provisions of this Agreement
to the contrary, the Company shall cause (other than with respect to
information required to be supplied by the selling Holders pursuant
to this Agreement) the (i) any Registration Statement and any
amendment thereto and any Prospectus forming part thereof and any
amendment or supplement thereto complies in all material respects
with the applicable requirements of the Act and the rules and
regulations of the Commission thereunder, (ii) any Registration
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Statement and any amendment thereto does not, when it becomes
effective, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading and (iii) any Prospectus
forming part of any Registration Statement, and any amendment or
supplement to such Prospectus, does not contain, as of the date of
such prospectus or amendment or supplement, any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading.
(c) (1) The Company shall advise the Initial Purchasers in
writing and, in the case of a Shelf Registration Statement, the
Holders of Securities covered thereby:
(i) when a Registration Statement and any
amendment thereto has been filed with the Commission and
when the Registration Statement or any post-effective
amendment thereto has become effective; and
(ii) of any request by the Commission for
amendments or supplements to the Registration Statement or
the Prospectus included therein or for additional
information.
(2) The Company shall advise the Initial Purchasers in
writing and, in the case of a Shelf Registration Statement, the
Holders of Securities covered thereby, and, in the case of an
Exchange Offer Registration Statement, any Exchanging Dealer which
has provided in writing to the Company a telephone or facsimile
number and address for notices:
(i) of the issuance by the Commission of any
stop order suspending the effectiveness of the
Registration Statement or the initiation of any
proceedings for that purpose;
(ii) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of the Securities included therein for sale
in any jurisdiction or the initiation or
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threatening of any proceeding for such purpose; and
(iii) of the happening of any event that requires
the Company to make any changes in the Registration
Statement or the Prospectus so that, as of such date, the
statements therein do not contain an untrue statement of a
material fact nor omit to state a material fact required to
be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading
(which written notice shall be accompanied by an
instruction to suspend the use of the Prospectus until the
requisite changes have been made and which need not provide
any detail as to the nature of such event).
(d) The Company shall use reasonable commercial efforts to
obtain the withdrawal of any order suspending the effectiveness of
any Registration Statement at the earliest possible time.
(e) The Company shall furnish to each Holder of Securities
included within the coverage of any Shelf Registration Statement,
without charge, one copy of such Shelf Registration Statement and any
post-effective amendment thereto, including financial statements and
schedules, and, if the Holder so requests in writing, all exhibits
thereto (other than those, if any, incorporated by reference).
(f) The Company shall, during the Shelf Registration
Period, deliver to each Holder of Securities included within the
coverage of any Shelf Registration Statement, without charge, as many
copies of the Prospectus (including each preliminary Prospectus)
included in such Shelf Registration Statement and any amendment or
supplement thereto as such Holder may reasonably request; and the
Company consents, subject to the provisions of this Agreement, to
the use of the Prospectus or any amendment or supplement thereto by
each of the selling Holders of Securities in connection with the
offering and sale of the Securities covered by the Prospectus, or
any amendment or supplement thereto, included in the Shelf
Registration Statement.
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(g) The Company shall furnish to each Exchanging Dealer
which so requests, without charge, at least one copy of the Exchange
Offer Registration Statement and any post-effective amendment
thereto, including financial statements and schedules, any documents
incorporated by reference therein, and, if the Exchanging Dealer so
requests in writing, all exhibits thereto (other than those, if any,
incorporated by reference).
(h) The Company shall, during the Exchange Offer
Registration Period, promptly deliver to each Exchanging Dealer,
without charge, as many copies of the Prospectus included in such
Exchange Offer Registration Statement and any amendment or supplement
thereto as such Exchanging Dealer may reasonably request for delivery
by such Exchanging Dealer in connection with a sale of New Securities
received by it pursuant to the Registered Exchange Offer; and the
Company consents to the use of the Prospectus or any amendment or
supplement thereto by any such Exchanging Dealer, as aforesaid.
(i) Prior to the Registered Exchange Offer or any other
offering of Securities pursuant to any Registration Statement, the
Company shall register or qualify or cooperate with the Holders of
the Securities included therein and their respective counsel in
connection with the registration or qualification of such Securities
for offer and sale under the securities or blue sky laws of such
states of the United States as any such Holders reasonably request in
writing and do any and all other acts or things necessary or
advisable to enable the offer and sale in such jurisdictions of the
Securities covered by such Registration Statement; PROVIDED, HOWEVER,
that the Company will not be required to qualify generally to do
business in any jurisdiction where it is not then so qualified or to
take any action which would subject it to general service of process
or to taxation in any such jurisdiction where it is not then so
subject.
(j) The Company shall cooperate with the Holders of
Securities to facilitate the timely preparation and delivery of
certificates representing Securities to be sold pursuant to any
Registration Statement free of any restrictive legends and in such
denominations and
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registered in such names as Holders may request prior to sales of
Securities pursuant to such Registration Statement.
(k) Upon the occurrence of any event contemplated by
paragraph (c) above during the period for which the Company is
required to maintain an effective Registration Statement, the Company
shall promptly prepare a post-effective amendment to any Registration
Statement or an amendment or supplement to the related Prospectus or
file any other required document so that, as thereafter delivered to
purchasers of the Securities included therein, the Prospectus will
not include an untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading. If the Company notifies the Initial Purchasers or the
Holders in accordance with paragraphs (i) through (iii) of Section
4(c)(2) above to suspend the use of the prospectus until the
requisite changes to the prospectus have been made, then the Initial
Purchasers and the Holders shall suspend use of such prospectus.
(l) Not later than the effective date of any such
Registration Statement hereunder, the Company shall provide a CUSIP
number for the Securities or New Securities, as the case may be,
registered under such Registration Statement, and provide the
applicable trustee with printed certificates for such Securities or
New Securities, in a form eligible for deposit with The Depository
Trust Company.
(m) The Company will comply with all rules and regulations
of the Commission to the extent and so long as they are applicable to
the Registration Statement and will make generally available to its
security holders (or otherwise provide in accordance with Section
11(a) of the Securities Act) an earnings statement satisfying the
provisions of Section 11(a) of the Securities Act, no later than 45
days after the end of a 12-month period (or 90 days, if such period
is a fiscal year) beginning with the first month of the Company's
first fiscal quarter commencing after the effective date of the
Registration Statement, which statement shall cover such 12-month
period.
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(n) The Company shall cause the Indenture or the New
Securities Indenture, as the case may be, to be qualified under the
Trust Indenture Act in a timely manner, containing such changes, if
any, as shall be necessary for such qualification. In the event that
such qualification would require the appointment of a new trustee
under the Indenture, the Company shall appoint a new trustee
thereunder pursuant to the applicable provisions of the Indenture.
(o) The Company may require each Holder of Securities to be
sold pursuant to any Shelf Registration Statement to furnish to the
Company such information regarding the Holder and the distribution of
such Securities as the Company may from time to time reasonably
require for inclusion in such Registration Statement, and the Company
may exclude from such registration the Securities of any Holder that
fails to furnish such information within a reasonable time after
receiving such request.
(p) The Company shall, if requested, promptly incorporate
in a Prospectus supplement or post-effective amendment to a Shelf
Registration Statement, such information as the Majority Holders
reasonably agree should be included therein and shall make all
required filings of such Prospectus supplement or post-effective
amendment as soon as notified of the matters to be incorporated in
such Prospectus supplement or post-effective amendment.
(q) In the case of any Shelf Registration Statement, the
Company shall enter into such agreements and shall use reasonable
commercial efforts to take all other steps in order to expedite or
facilitate the registration or the disposition of the Securities.
(r) In the case of any Shelf Registration Statement, the
Company shall (i) make reasonably available for inspection by the
Holders of the Securities to be registered thereunder, and any
attorney, accountant or other agent retained by the Holders all
relevant financial and other records, pertinent corporate documents
and properties of the Company; and (ii) cause the Company's officers,
directors, employees, accountants and auditors to supply all relevant
information reasonably requested by
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the Holders or any such attorney, accountant or agent in connection
with any such Registration Statement, in each case, as shall be
reasonably necessary to enable such persons, to conduct a reasonable
investigation within the meaning of Section 11 of the Securities
Act; PROVIDED, HOWEVER, that any information that is designated in
writing by the Company, in good faith, as confidential at the time
of delivery of such information shall be kept confidential by the
Holders or any such attorney, accountant or agent, unless such
disclosure is made in connection with a court proceeding or required
by law, or such information becomes available to the public
generally or through a third party without an accompanying
obligation of confidentiality and that the foregoing inspection and
information gathering (i) shall be coordinated on behalf of the
Initial Purchasers by you and on behalf of the other parties, by one
counsel (the "Designated Counsel") designated by the Holders of a
majority in principal amount of the Securities covered by the
Registration Statement and (ii) shall not be available for any such
Holder that is a competitor of the Company.
(s) In the case of any Exchange Offer Registration
Statement, the Company shall (i) make reasonably available for
inspection by such Purchaser, and any attorney, accountant or other
agent retained by such Purchaser, all relevant financial and other
records, pertinent corporate documents and properties of the Company;
and (ii) cause the Company's officers, directors, employees,
accountants and auditors to supply all relevant information
reasonably requested by such Initial Purchaser or any such attorney,
accountant or agent in connection with any such Registration
Statement, in each case, as shall be reasonably necessary to enable
such persons, to conduct a reasonable investigation within the
meaning of Section 11 of the Securities Act; PROVIDED, HOWEVER, that
any information that is designated in writing by the Company, in good
faith, as confidential at the time of delivery of such information
shall be kept confidential by the Holders or any such attorney,
accountant or agent, unless such disclosure is made in connection
with a court proceeding or required by law, or such information
becomes available to the public generally or through a third party
without an
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accompanying obligation of confidentiality and that the foregoing
inspection and information gathering (i) shall be coordinated on
behalf of the Initial Purchasers by you and on behalf of the other
parties, by one counsel (the "Designated Counsel") designated by the
Holders of a majority in principal amount of the Securities covered
by the Registration Statement and (ii) shall not be available for
any such Holder that is a competitor of the Company.
(t) The Company, if requested by the Designated Counsel,
shall cause (i) its counsel to deliver an opinion and updates thereof
relating to the Securities in customary form addressed to such
Holders, and dated, in the case of the initial opinion, the effective
date of such Registration Statement (it being agreed that the matters
to be covered by such opinion shall include, without limitation, the
due incorporation and good standing in its jurisdiction of
incorporation of the Company and its Significant Subsidiaries (as
defined in the Act); the due authorization, execution, authentication
and issuance, and the validity and enforceability, of the applicable
Securities; the absence of material legal or governmental proceedings
involving the Company and its subsidiaries; the absence of
governmental approvals required to be obtained in connection with the
Registration Statement, or the offering and sale of the applicable
Securities; the compliance as to form of such Registration Statement
and any documents incorporated by reference therein and of the
Indenture with the requirements of the Securities Act and the Trust
Indenture Act, respectively; and, as of the date of the opinion and
as of the effective date of the Registration Statement or most recent
post-effective amendment thereto, as the case may be, to confirm, in
customary form and substance of such counsel, the absence from such
Registration Statement and the prospectus included therein, as then
amended or supplemented, and from any documents incorporated by
reference therein of an untrue statement of a material fact or the
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading
(in the case of any such documents, in the light of the circumstances
existing at the time that such documents were filed with the
Commission under the Securities Exchange Act of 1934, as amended (the
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"Exchange Act")), (ii) its officers to execute and deliver all
customary documents and certificates and updates thereof requested by
the Designated Counsel and (iii) its independent public accountants
and the independent public accountants with respect to any other
entity for which financial information is provided in the
Registration Statement to provide to the selling Holders of the
applicable Securities a comfort letter in customary form and covering
matters of the type customarily covered in comfort letters in
connection with primary underwritten offerings, subject
to receipt of appropriate documentation as
contemplated, and only if permitted, by Statement of
Auditing Standards No. 72.
(v) The Company will use its best efforts to continue to
have the Securities rated by the rating agencies that rated the
Securities in connection with the sale to the Initial Purchasers and,
at the request of any Holder, confirm to such Holder the current
rating of the Securities at the time of such request.
(w) The Company shall use reasonable commercial efforts to
take all other steps necessary to effect the registration of the
Securities covered by the Registration Statement contemplated hereby.
5. Registration Expenses. The Company shall bear
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all expenses incurred in connection with the performance of its obligations
under Sections 2, 3 and 4 hereof, whether or not the Shelf Registration
Statement is filed or becomes effective, and shall bear or reimburse the Holders
of the Securities covered by the Shelf Registration Statement for the reasonable
fees and disbursements of the Designated Counsel, if any, and, in the case of
any Exchange Offer Registration Statement, will reimburse the Initial Purchasers
for the reasonable fees and disbursements of the Designated Counsel, if any,
acting in connection therewith.
6. Indemnification and Contribution. (a) In
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connection with any Registration Statement, the Company agrees to indemnify and
hold harmless each Holder of securities covered thereby (including each Initial
Purchaser and, with respect to any Prospectus delivery as contemplated in
Section 4(h) hereof, each Exchanging Dealer), and each person, if any, who
controls any such Holder within the meaning of either the Act or the Exchange
Act (each Holder
18
and such controlling persons are referred to collectively as the "Indemnified
Parties") from and against any and all losses, claims, damages or
liabilities, joint or several, or any actions in respect thereof (including
but not limited to, any losses claims, damages, liabilities or actions
relating to purchases and sales of the Securities) to which each Indemnified
Party becomes subject under the Act, the Exchange Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
as originally filed or in any amendment thereof, or in any preliminary
Prospectus or Prospectus, or in any amendment thereof 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 subject to subsection (c),
reimburse, as incurred, the Indemnified Parties for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action in respect
thereof; PROVIDED, HOWEVER, that (i) the Company will not be liable in any
such case to the extent that such loss, claim, damage or liability arises out
of or is based upon (x) the use of any prospectus in violation of the last
sentence of Section 4(k), or (y) any such untrue statement or alleged untrue
statement or omission or alleged omission made in the Shelf Registration
Statement or prospectus or in any amendment or supplement thereto or in any
preliminary prospectus relating to the Shelf Registration in reliance upon
and in conformity with written information pertaining to such Holder and
furnished to the Company by or on behalf of such Holder specifically for
inclusion therein and (ii) with respect to any untrue statement or omission
or alleged untrue statement or omission made in any preliminary prospectus
relating to the Registration Statement, the indemnity agreement contained in
this subsection (a) shall not inure to the benefit of any Holder from whom
the person asserting any such losses, claims, damages or liabilities
purchased the Securities concerned, to the extent that a prospectus relating
to such Securities was required to be delivered by such Holder under the
Securities Act in connection with such purchase and any such loss, claim,
damage or liability of such Holder results from the fact that there was not
sent or given to such person, at or prior to the written confirmation of the
sale of such Securities
19
to such person, a copy of the final prospectus if the Company had previously
furnished copies thereof in sufficient quantity to such Holder; PROVIDED
FURTHER, HOWEVER, that this indemnity agreement will be in addition to any
liability which the Company may otherwise have to such Indemnified Party.
(b) Each Holder of Securities covered by a
Registration Statement (including each Initial Purchaser and, with respect to
any Prospectus delivery as contemplated in Section 4(h) hereof, each Exchanging
Dealer) severally and not jointly, will indemnify and hold harmless the Company
and each person who controls the Company within the meaning of either the Act or
the Exchange Act to the same extent as the foregoing indemnity from the Company
to each such Holder, but only with reference to written information relating to
such Holder furnished to the Company by or on behalf of such Holder specifically
for inclusion in the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which any such Holder
may otherwise have.
(c) Promptly after receipt by an indemnified
party under this Section 6 of notice of the commencement of any action or
proceeding (including a governmental investigation), such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 6, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party will
not, in any event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation provided in
subsections (a) or (b) above. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may 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 if the representation of
both such parties by the same counsel would constitute a conflict of interest),
and after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof the indemnifying party will not be
liable to such indemnified party under this Section 6 for any legal or other
expenses, other than reasonable costs of
20
investigation, subsequently incurred by such indemnified party in connection
with the defense thereof. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by
such indemnified party unless such settlement includes an unconditional
release of such indemnified party from all liability on any claims that are
the subject matter of such action.
(d) In the event that the indemnity provided in (a) or
(b) of this Section 6 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party,
shall contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to in subsections (a) or (b) above (i) in such proportion
as is appropriate to reflect the relative benefits received by such
indemnifying party or parties, on the one hand, and such indemnified party,
on the other hand, from the Initial Placement and the Registration Statement
which resulted in such losses, claims, damages or liabilities; PROVIDED,
HOWEVER, that in no case shall any Initial Purchaser or any subsequent Holder
of any Security or New Security be responsible, in the aggregate, for any
amount in excess of the amount by which the net proceeds received by such
Holders from the sale of the Securities pursuant to the Registration
Statement exceeds the amount of damages which such Holders have otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the indemnifying party and
the indemnified party shall contribute in such proportion as is appropriate
to reflect not only such relative benefits but also the relative fault of
such indemnifying party, on the one hand, and such indemnified party, on the
other hand, 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. Relative fault shall
be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information provided by the
indemnifying party, on the one
21
hand or by the indemnified party, on the other hand and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The amount paid by an indemnified party
as a result of the losses, claims, damages or liabilities referred to in the
first sentence of this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the subject of
this subsection (d). Notwithstanding the provisions of this paragraph (d), no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. For purposes of this Section
6, each person, if any, who controls such Indemnified Party within the
meaning of either the Act or the Exchange Act shall have the same rights to
contribution as such indemnified party, and each person, if any, who controls
the Company within the meaning of either the Act or the Exchange Act shall
have the same rights to contribution as the Company.
(e) The agreements contained in this Section 6 will
survive the sale by a Holder of Securities covered by a Registration
Statement and shall remain in full force and effect, regardless of any
termination or cancelation of this Agreement or any investigation made by or
on behalf of any indemnified party.
6. Rules 144 and 144A. The Company shall use its
------------------
best efforts to file the reports required to be filed by it under the Securities
Act and the Exchange Act in a timely manner and, if at any time the Company is
not required to file such reports, it will, upon the request of any Holder of
Securities, make publicly available other information so long as necessary to
permit sales of their Securities pursuant to Rules 144 and 144A. The Company
covenants that, if in the event the Company is no longer subject to Sections 13
or 15(d) of the Exchange Act, it will take such further action as any Holder of
Securities may reasonably request, all to the extent required from time to time
to enable such Holder to sell Securities without registration under the
Securities Act within the limitation of the exemptions provided by Rules 144 and
144A (including the requirements of Rule 144A(d)(4)). The Company will provide a
copy of this Agreement to prospective purchasers of Securities identified to the
Company by the Initial Purchasers upon request. Notwithstanding the foregoing,
nothing in this Section 6 shall be deemed to require the
22
Company to register any of its Securities pursuant to the Exchange Act.
7. Additional Interest Under Certain
---------------------------------
Circumstances. (a) Interest in addition to the stated interest (the "Additional
-------------
Interest") with respect to the Securities shall be assessed as follows if any of
the following events occur (each such event in clauses (i) through (iii) below
being herein called a "Registration Default"):
(i) by the 150th day following the date of original
issuance of the Securities, the Exchange Offer Registration Statement
is not filed with the Commission;
(ii) by the 180th day following the date of original
issuance of the Securities, neither the Exchange Offer Registration
Statement is declared effective nor (if the Exchange Offer is not
permitted as described above) the Shelf Registration Statement is
filed with the Commission; or
(iii) by the 210th day following the date of original
issuance of the Securities, the Exchange Offer is not consummated or
the Shelf Registration Statement is not declared effective with
respect thereto,
Additional Interest shall accrue on the Securities over and above the interest
set forth in the title of the Securities from and including the date on which
any such Registration Default shall occur, to but excluding the date on which
all such Registration Defaults have been cured, at a rate of 0.25% per annum of
the principal amount of such Securities for each Registration Default.
(b) The aggregate amount of Additional Interest
payable pursuant to the above provisions will in no event exceed 0.25% per annum
of the principal amount of the Securities which, except as otherwise provided
herein, shall be the sole and exclusive remedy for such Registration Default.
Upon (x) the filing of the Exchange Offer Registration Statement after the
150-day period described in clause (i) of subsection (a), (y) the effectiveness
of the Exchange Offer Registration Statement or the filing of the Shelf
Registration Statement after the 180-day period described in clause (ii) of
subsection (a) or (z) the
23
consummation of the Exchange Offer for such Securities or the effectiveness
of a Shelf Registration Statement, as the case may be, after the 210-day
period described in clause (iii) of subsection (a), the Additional Interest
payable on such Securities as a result of the applicable Registration Default
will cease to accrue. For purposes of the preceding sentence, the curing of a
Registration Default by the means described in clause (y) of this subsection
shall constitute a cure of the Registration Defaults described in clauses (i)
and (ii) of subsection (a), and the curing of a Registration Default by the
means described in clause (z) of this subsection shall constitute a cure of
the Registration Defaults described in clauses (i), (ii) and (iii) of
subsection (a).
(c) In the event that a Shelf Registration
Statement is declared effective, if the Company fails to keep such Registration
Statement continuously effective (except as permitted under Section 3(b)) for
the Shelf Registration Period, then from such time as the Shelf Registration
Statement is no longer effective until the earlier of
(i) the date that the Shelf Registration Statement
is again deemed effective and
(ii) the date that is the earliest of (x) the second
anniversary of the date of original issuance of the Securities (or
until the first anniversary of the effective date of the Shelf
Registration Statement is filed at the request of the Initial
Purchasers), (y) the time when the Securities registered thereunder
can be sold by non-affiliates pursuant to Rule 144 under the
Securities Act without any limitation under clauses (c), (e), (f) and
(h) of Rule 144, or (z) the date as of which all such Securities are
sold pursuant to the Shelf Registration Statement,
Additional Interest shall accrue at a rate per annum equal to 0.25% of the
principal amount of the Securities which, except as otherwise provided herein,
shall be the sole and exclusive remedy for such Registration Default.
(d) Any amounts of Additional Interest due
pursuant to clause (a)(i), (a)(ii), (a)(iii) or (c) of this Section 5 will be
payable in cash semiannually in arrears on the regular interest payment dates
with respect to the
24
Securities. The amount of Additional Interest will be determined by
multiplying the applicable Additional Interest rate by the principal amount
of the Securities, multiplied by a fraction, the numerator of which is the
number of days such Additional Interest rate was applicable during such
period (determined on the basis of a 360-day year comprised of twelve 30-day
months), and the denominator of which is 360.
(e) Notwithstanding anything to the contrary
contained in this Agreement, it is hereby acknowledged and agreed that the
Company will have no other liabilities for monetary damages to the Initial
Purchasers or any Holder for any breaches, failures to comply or violations by
it of Sections 3 and 4 hereof; PROVIDED, HOWEVER, that in the event the Company
breaches, fails to comply with or violates certain provisions of this Agreement,
the holders shall be entitled to, and the Company shall not oppose the granting
of, equitable relief, including injunction and specific performance.
8. Miscellaneous.
-------------
(a) No Inconsistent Agreements. The Company has not, as of
the date hereof, entered into, nor shall it, on or after the date
hereof, enter into, any agreement with respect to its Securities that
is inconsistent with the rights granted to the Holders herein or
otherwise conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be
amended, qualified, 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 the
Holders of at least a majority of the then outstanding aggregate
principal amount of Securities (or, after the consummation of any
Exchange Offer in accordance with Section 2 hereof, of New
Securities); PROVIDED that, with respect to any matter that directly
or indirectly affects the rights of any Initial Purchaser hereunder,
the Company shall obtain the written consent of each such Initial
Purchaser against which such amendment, qualification, supplement,
waiver or consent is to be effective. Notwithstanding the foregoing
(except the foregoing proviso), a waiver or consent to departure
25
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 the
Majority Holders, determined on the basis of Securities being sold
rather than registered under such Registration Statement.
(c) Notices. All notices and other communications provided
for or permitted hereunder shall be made in writing by hand-delivery,
first-class mail, telex, telecopier, or air courier guaranteeing
overnight delivery:
(i) if to a Holder, at the most current address
given by such holder to the Company in accordance with the
provisions of this Section 7(c), which address initially
is, with respect to each Holder, the address of such Holder
maintained by the Registrar under the Indenture, with a
copy in like manner to Salomon Brothers Inc as follows;
Salomon Brothers Inc.
Seven Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
with a copy to:
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax No.: (000) 000-0000
Attention: Xxxx X. Xxxxxxx, Esq.
(ii) if to the Initial Purchasers, initially at
the addresses set forth above; and
(iii) if to the Company, at its address as
follows:
SEACOR SMIT Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
26
Fax No.: (000) 000-0000
Attention: Xxxxxxx Xxxxx
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax. No: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
All such notices and communications shall be
deemed to have been duly given: at the time delivered by hand, if personally
delivered; three business days after being deposited in the mail, postage
prepaid, if mailed; when receipt is acknowledged by recipient's facsimile
machine operator, if sent by facsimile transmission; and on the day delivered,
if sent by overnight air courier guaranteeing next day delivery..
The Initial Purchasers or the Company by notice to
the other may designate additional or different addresses
for subsequent notices or communications.
(d) Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors and assigns of each
of the parties, including, without the need for an express assignment
or any consent by the Company thereto, subsequent Holders of
Securities and/or New Securities. The Company hereby agrees to extend
the benefits of this Agreement to any Holder of Securities and/or New
Securities and any such Holder may specifically enforce the
provisions of this Agreement as if an original party hereto.
(e) 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 an
original and all of which taken together shall constitute one and the
same agreement.
(f) Headings. The headings in this agreement are for
convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
(g) Governing Law. This agreement shall be governed by and
construed in accordance with the
27
internal laws of the State of New York without regard to principles
of conflicts of laws.
(h) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any
respect for any reason, the validity, legality and enforceability of
any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by
law.
(i) Securities Held by the Company, etc. Whenever the
consent or approval of Holders of a specified percentage of principal
amount of Securities or New Securities is required hereunder,
Securities or New Securities, as applicable, held by the Company or
its Affiliates (other than subsequent Holders of Securities or New
Securities if such subsequent Holders are deemed to be Affiliates
solely by reason of their holdings of such Securities or New
Securities) shall not be counted in determining whether such consent
or approval was given by the Holders of such required percentage.
28
If the foregoing is in accordance with your understanding
of our agreement, please sign and return to the Company a counterpart
hereof, whereupon this instrument, along with all counterparts, will
become a binding agreement among the several Initial Purchasers and
the Company in accordance with its terms.
Very truly yours,
SEACOR SMIT Inc.
By: /s/ Xxxxxxx Xxxxx
--------------------------
Name: Xxxxxxx Xxxxx
Title: Executive Vice President
Chief Financial Officer and
Secretary
The foregoing Registration
Rights Agreement is hereby confirmed
and accepted as of the date first above written.
SALOMON BROTHERS INC
BEAR, XXXXXXX & CO. INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
By: SALOMON BROTHERS INC
By: /s/ Xxxx Xxxxxx
-----------------------
Name: Xxxx Xxxxxx
Title: Director
ANNEX A
Each broker-dealer that receives New Securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Securities. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of New Securities received in exchange for Securities where such
New Securities were acquired by such broker-dealer as a result of market-making
activities or other trading activities. The Company has agreed that, starting on
the Expiration Date (as defined herein) and ending on the close of business on
the 180th day following the Expiration Date, it will make this Prospectus
available to any broker-dealer for use in connection with any such resale. See
"Plan of Distribution."
ANNEX B
Each broker-dealer that receives New Securities for its own account
in exchange for Securities, where such Securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such New Securities. See "Plan of Distribution."
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives New Securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Securities. The Prospectus,
as it may be amended or supplemented from time to time, may be used by a
broker-dealer in connection with resales of New Securities received in exchange
for Securities where such Securities were acquired as a result of market-making
activities or other trading activities. The Company has agreed that, starting on
the Expiration Date and ending on the close of business on the 180th day
following the Expiration Date, it will make this Prospectus, as amended or
supplemented, available to any broker-dealer for use in connection with any such
resale. In addition, until , 199 , all dealers effecting transactions in
the Exchange Securities may be required to deliver a prospectus.
*/
The Company will not receive any proceeds from any
sale of New Securities by broker-dealers. New Securities
received by broker-dealers for their own account pursuant to
the Exchange Offer may be sold from time to time in one or more transactions in
the over-the-counter market, in negotiated transactions, through the writing of
options on the New Securities or a combination of such methods of resale, at
market prices prevailing at the time of resale, at prices related to such
prevailing market prices or negotiated prices. Any such resale may be made
directly to purchasers or to or through brokers or dealers who may receive
compensation in the form of commissions or concessions from any such
broker-dealer and/or the purchasers of any such New Securities. Any
broker-dealer that resells New Securities that were received by it for its own
account pursuant to the Exchange Offer and any broker or dealer that
participates in a distribution of such New Securities may be deemed to be an
"underwriter" within the meaning of the Securities Act and any profit of any
such resale of New Securities and any commissions or concessions received by any
such persons may be deemed to be underwriting compensation under the Securities
Act. The Letter of Transmittal states that by acknowledging that it will deliver
and by delivering a prospectus, a broker-dealer will not be deemed to admit that
it is an "underwriter" within the meaning of the Securities Act.
---------------
* In addition, the legend required by Item 502(e) of Regulation S-K will
appear on the back cover page of the Exchange Offer prospectus.
2
For a period of 180 days after the Expiration Date, the Company will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Company has agreed to pay all expenses
incident to the Exchange Offer (including the expenses of one counsel for the
holders of the Securities) other than commissions or concessions of any brokers
or dealers and will indemnify the holders of the Securities (including any
broker-dealers) against certain liabilities, including liabilities under the
Securities Act.
[If applicable, add information required by Regulation
S-K Items 507 and/or 508.]
ANNEX D
Rider A
-------
|_| CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS
OR SUPPLEMENTS THERETO.
Name:_________________________________________________
Address:______________________________________________
------------------------------------------------------
Rider B
-------
If the undersigned is not a broker-dealer, the undersigned
represents that it is not engaged in, and does not intend to engage in, a
distribution of New Securities. If the undersigned is a broker-dealer that will
receive New Securities for its own account in exchange for Securities that were
acquired as a result of market-making activities or other trading activities, it
acknowledges that it will deliver a prospectus in connection with any resale of
such New Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
