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Exhibit 4.3
EXECUTION COPY
$625,000,000
11-1/2% SENIOR NOTES DUE 2008
REGISTRATION RIGHTS AGREEMENT
Dated as of November 2, 1998
by and among
NTL INCORPORATED
and
XXXXXX XXXXXXX & CO. INCORPORATED
CHASE SECURITIES INC.
XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION
XXXXXXX, SACHS & CO.
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This Registration Rights Agreement (this "AGREEMENT") is made and
entered into as of November 2, 1998 by and among NTL Incorporated, a Delaware
corporation (the "COMPANY"), and Xxxxxx Xxxxxxx & Co. Incorporated, Chase
Securities Inc., Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation and
Xxxxxxx, Sachs & Co. (each an "INITIAL PURCHASER" and collectively, the "INITIAL
PURCHASERS"). The Company proposes to issue and sell to the Initial Purchasers
(the "INITIAL PLACEMENT") $625,000,000 aggregate principal amount of its 11-1/2%
Senior Notes due 2008 (the "NOTES"). As an inducement to the Initial Purchasers
to enter into the purchase agreement, dated as of October 26, 1998 ( 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 Notes whose names appear in the
register maintained by the Registrar in accordance with the provisions of the
Indenture (as defined in Section 1 hereof) (including the Initial Purchasers),
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 capitalized defined terms shall have the following
meanings:
"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.
"COMMISSION DELAY PERIOD" has the meaning set forth in Section 3(a)
hereof.
"CONSUMMATE" means the occurrence of (i) the filing and effectiveness
under the Act of the Exchange Offer Registration Statement relating to the
Exchange Notes to be issued in the Registered Exchange Offer, (ii) the
maintenance of such Registration Statement continuously effective and the
keeping of the Registered Exchange Offer open for a period not less than the
minimum period required pursuant to Section 3(c)(ii) hereof, and (iii) the
delivery by the Company to the Registrar under the Indenture or the Exchange
Notes Indenture, as the case may be, of Exchange Notes in the same aggregate
principal amount as the aggregate principal amount of Notes that were tendered
by Holders thereof and accepted for exchange pursuant to the Registered Exchange
Offer.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"EXCHANGE NOTES" means debt securities of the Company identical in all
material respects to the Notes (except that interest will accrue on the Exchange
Notes from the last day on which interest was paid on the Notes prior to the
date of original issuance of the Exchange Notes or, if no such interest has
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been paid, from November 2, 1998, and paragraph 2 of, and the transfer
restrictions on, the Notes will be eliminated), to be issued under the Indenture
or the Exchange Notes Indenture.
"EXCHANGE NOTES INDENTURE" means an indenture between the Company and
the Exchange Notes Trustee, identical in all material respects to the Indenture
(except that interest will accrue on the Exchange Notes from the last day on
which interest was paid on the Notes prior to the date of original issuance of
the Exchange Notes or, if no such interest has been paid, from November 2, 1998,
and paragraph 2 of, and the transfer restrictions on, the Notes will be
eliminated).
"EXCHANGE NOTES TRUSTEE" means a bank or trust company reasonably
satisfactory to the Initial Purchasers, as trustee with respect to the Exchange
Notes under the Exchange Notes Indenture.
"EXCHANGE OFFER REGISTRATION PERIOD" means a period expiring upon the
earliest to occur of (i) the one year period following the Consummation of the
Registered Exchange Offer, (ii) the date on which, in the opinion of counsel to
the Company, all of the Transfer Restricted Securities then held by the Holders
may be sold by such Holders in the public United States securities markets in
the absence of a registration statement covering such sales and (iii) the date
on which there ceases to be outstanding any Transfer Restricted Securities.
"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, and 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) that is a broker-dealer, electing to exchange Transfer Restricted
Securities, acquired for its own account as a result of market-making activities
or other trading activities, for Exchange Notes.
"HOLDER" has the meaning set forth in Section 2 hereof.
"INDENTURE" means the Indenture, dated as of November 2, 1998, between
the Company and the Trustee, relating to the Notes, 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.
"LOSSES" has the meaning set forth in Section 8(d) hereof.
"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.
"NOTES" has the meaning set forth in the preamble hereto.
"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
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supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of Transfer Restricted Securities or the Exchange Notes,
covered by such 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 Notes, a like principal
amount of the Exchange Notes.
"REGISTRATION STATEMENT" means any Exchange Offer Registration
Statement or any Shelf Registration Statement, which is filed pursuant to the
provisions hereof, and in each case, including the Prospectus contained therein,
all amendments and supplements thereto, including post-effective amendments, and
all exhibits and material incorporated by reference therein.
"SHELF REGISTRATION" means a registration effected pursuant to Section
4 hereof.
"SHELF REGISTRATION PERIOD" has the meaning set forth in Section 4(b)
hereof.
"SHELF REGISTRATION STATEMENT" means a "shelf" registration statement
of the Company pursuant to the provisions of Section 4 hereof that covers some
or all of the Transfer Restricted 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, and in each case, including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
"SUPPLEMENT DELAY PERIOD" means any period commencing on the date of
receipt by a Holder of Transfer Restricted Securities or Exchange Notes of any
notice from the Company of the existence of any fact or event of the kind
described in Section 5(b)(2) hereof and ending on the date of receipt by such
Holder of an amended or supplemented Registration Statement or Prospectus, as
contemplated by Section 5(j) hereof, or the receipt by such Holder of written
notice from the Company (the "ADVICE") that the use of the Prospectus may be
resumed, and the receipt of copies of any additional or supplemental filings
that are incorporated by reference in the Prospectus.
"TRANSFER RESTRICTED SECURITIES" means each Note until (i) the date on
which such Note has been exchanged by a person other than a broker-dealer for an
Exchange Note in the Registered Exchange Offer, (ii) following the exchange by
an Exchanging Dealer in the Registered Exchange Offer of a Note for an Exchange
Note, the date on which such Exchange Note is sold to a purchaser who receives
from such broker-dealer on or prior to the date of such sale a copy of the
prospectus contained in the Exchange Offer Registration Statement, (iii) the
date on which such Note has been effectively registered under the Act and
disposed of in accordance with the Shelf Registration Statement (iv) the date on
which such Note is distributed to the public pursuant to Rule 144 under the Act
(or any similar provision then in effect) or is saleable pursuant to Rule 144(k)
under the Act or (v) the date upon which such Note ceases to be outstanding.
"TRUSTEE" means the trustee with respect to the Notes under the
Indenture.
"UNDERWRITER" means any underwriter of Notes in connection with an
offering thereof under a Shelf Registration Statement.
SECTION 2. HOLDERS
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A person is deemed to be a holder of Transfer Restricted Securities
(each, a "HOLDER") whenever such person becomes the registered holder of such
Notes under the Indenture and includes broker-dealers that hold Transfer
Restricted Securities (i) as a result of market making activities and other
trading activities and (ii) which were acquired directly from the Company or an
Affiliate.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) The Company shall prepare and, on or prior to 90 days following the
Closing Date, 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 on or prior to 180 days after the Closing Date; provided
that, if as a result of there being no federal governmental budget for any year
following the 1997 fiscal year, the Commission ceases to review registration
statements like the Registration Statements in the time within which the
Commission normally reviews such registration statements in the ordinary course
(a "COMMISSION DELAY PERIOD"), then such 180 day period during which the Company
must cause the Exchange Offer Registration Statement to become effective shall
be extended by the number of days of which the Commission Delay Period is
comprised. The Company shall use its best efforts to Consummate the Registered
Exchange Offer on or prior to 220 days after the Closing Date.
(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 Transfer Restricted Securities for Exchange Notes (assuming
that such Holder is not an Affiliate of the Company within the meaning of the
Act, acquires the Exchange Notes in the ordinary course of such Holder's
business and has no arrangements with any person to participate in the
distribution of the Exchange Notes) to trade such Exchange Notes 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 and not more than 45 days after the date notice thereof is
mailed to the Holders (or longer if required by applicable law);
(iii) utilize the services of one or more depositaries or
exchange agents (which, in either case, may be the Trustee) for the
Registered Exchange Offer with an address (A) in the Borough of
Manhattan, The City of New York and (B) if the Notes are then listed on
the Luxembourg Stock Exchange and the rules of the Luxembourg Stock
Exchange so require, Luxembourg; and
(iv) comply in all material 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 Transfer Restricted Securities
tendered and not validly withdrawn pursuant to the Registered Exchange
Offer;
(ii) deliver to the Trustee for cancellation all Transfer
Restricted Securities so accepted for exchange; and
(iii) cause the Trustee or the Exchange Notes Trustee, as the
case may be, promptly to authenticate and deliver to each Holder of
Transfer Restricted Securities, Exchange Notes of a like principal
amount to the Transfer Restricted 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 Exchange Notes received
by such Exchanging Dealer pursuant to the Registered Exchange Offer in exchange
for Transfer Restricted 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 (A) Annex A hereto on
the cover of the Exchange Offer Registration Statement, (B) Annex B
hereto in the forepart of the Exchange Offer Registration Statement in
a section setting forth details of the Registered Exchange Offer, (C)
Annex C hereto in the "Plan of Distribution" section of the Prospectus
contained in the Exchange Offer Registration Statement and (D) 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 (subject to the existence
of a Supplement Delay Period) under the Act during the Exchange Offer
Registration Period for delivery by Exchanging Dealers in connection
with sales of Exchange Notes received pursuant to the Registered
Exchange Offer, as contemplated by Section 5(g) 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 Transfer Restricted Securities constituting any portion of an unsold
allotment of Notes, at the written request of such Initial Purchaser, the
Company shall issue and deliver to such Initial Purchaser or the party
purchasing Transfer Restricted Securities registered under a Shelf Registration
Statement as contemplated by Section 4 hereof from such Initial Purchaser, in
exchange for such Transfer Restricted Securities, a like principal amount of
Exchange Notes. Exchange Notes issued in exchange for Transfer Restricted
Securities constituting any portion of an unsold allotment of Notes that are not
registered under a Shelf Registration Statement as contemplated by Section 4
hereof shall bear a legend as to restrictions on transfer. The Company shall
seek to cause the CUSIP Service Bureau to issue the same CUSIP number for such
Exchange Notes as for Exchange Notes issued pursuant to the Registered Exchange
Offer.
SECTION 4. SHELF REGISTRATION
If, (i) the Company is not required to file the Exchange Offer
Registration Statement nor permitted to Consummate the Registered Exchange Offer
because the Registered Exchange Offer is not permitted by applicable law or
Commission policy or (ii) any Holder of Transfer Restricted Securities notifies
the Company in writing within 10 business days of the filing and effectiveness
under the Act of
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the Exchange Offer Registration Statement that (A) it is prohibited by law or
Commission policy from participating in the Registered Exchange Offer, (B) it
may not resell the Exchange Notes acquired by it in the Registered Exchange
Offer to the public without delivering a prospectus, and the prospectus
contained in the Exchange Offer Registration Statement is not appropriate or
available for such resales or (C) it is a broker-dealer and owns Notes acquired
directly from the Company or an Affiliate (it being understood that, for
purposes of this Section 4, (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 Exchange Notes
acquired in exchange for such Notes shall result in such Exchange Notes being
not "freely tradeable" but (y) the requirement that an Exchanging Dealer deliver
a Prospectus in connection with sales of Exchange Notes acquired in the
Registered Exchange Offer in exchange for Notes acquired as a result of
market-making activities or other trading activities shall not result in such
Exchange Notes being not "freely tradeable"), the following provisions shall
apply:
(a) The Company shall as promptly as practicable, file with the
Commission and thereafter shall use its best efforts to cause to be declared
effective under the Act on or prior to 220 days (plus any additional days
allowed as a result of a Commission Delay Period) after the date of original
issuance of the Notes, a Shelf Registration Statement relating to the offer and
sale of the Transfer Restricted Securities by the Holders from time to time in
accordance with the methods of distribution elected by such Holders and set
forth in such Shelf Registration Statement; provided, however, that with respect
to Exchange Notes received by an Initial Purchaser in exchange for Transfer
Restricted Securities constituting any portion of an unsold allotment of Notes,
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.
(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 usable by Holders for a period of two years from the
date the Shelf Registration statement is declared effective by the Commission
(or until one year after such effective date if such Shelf Registration
Statement is filed at the request of an Initial Purchaser) or such shorter
period that will terminate when (i) all the Transfer Restricted Securities
covered by the Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement, (ii) the date on which, in the opinion of counsel to the
Company, all of the Transfer Restricted Securities then held by the Holders may
be sold by such Holders in the public United States securities markets in the
absence of a registration statement covering such sales or (iii) the date on
which there ceases to be outstanding any Transfer Restricted Securities (in any
such case, such period being called the "SHELF REGISTRATION 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 Transfer Restricted Securities
covered thereby not being able to offer and sell such securities during that
period, unless (i) such action is required by applicable law, (ii) such action
is taken by the Company in good faith and for valid business reasons (not
including avoidance of the Company's obligations hereunder), including the
acquisition or divestiture of assets, so long as the Company promptly thereafter
complies with the requirements of Section 5(j) hereof, if applicable or (iii)
such action is taken because of any fact or circumstance giving rise to a
Supplement Delay Period.
SECTION 5. REGISTRATION PROCEDURES
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In connection with any Shelf Registration Statement and, to the extent
applicable, any Exchange Offer Registration Statement, the following provisions
shall apply:
(a) The Company shall ensure that (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 Act and the
rules and regulations thereunder, (ii) any Registration 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 include an untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements, in the light of the circumstances under which they were made,
not misleading.
(b) (1) The Company shall advise the Initial Purchasers and, in the
case of a Shelf Registration Statement, the Holders of Transfer Restricted
Securities covered thereby, and, if requested by the Initial Purchasers or any
such Holder, confirm such advice in writing 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.
(2) The Company shall advise the Initial Purchasers and, in
the case of a Shelf Registration Statement, the Holders of Transfer Restricted
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, and, if requested by the
Initial Purchasers or any such Holder or Exchanging Dealer, confirm such advice
in writing:
(i) of any request by the Commission for amendments or
supplements to the Registration Statement or the Prospectus included
therein or for additional information;
(ii) of the initiation by the Commission of proceedings
relating to a stop order suspending the effectiveness of the
Registration Statement;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement;
(iv) 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
threatening of any proceeding for such purpose; and
(v) of the existence of any fact and the happening of any
event (including, without limitation, pending negotiations relating to,
or the consummation of, a transaction or the occurrence of any event
which would require additional disclosure of material non-public
information by the Company in the Shelf Registration Statement as to
which the Company has a bona fide business purpose for preserving
confidential or which renders the Company unable to comply with
Commission requirements) that, in the opinion of the Company, makes
untrue any statement of a material fact made in its Shelf Registration
Statement, the Prospectus or any amendment or supplement thereto or any
document incorporated by reference therein or requires the making of
any changes in the Registration Statement or the Prospectus so that, as
of such date, the statements therein are not misleading and do not omit
to state a material fact required to
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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.
Such advice may be accompanied by an instruction to suspend the use of
the Prospectus until the requisite changes have been made.
(c) The Company shall use its best efforts to obtain the withdrawal of
any order suspending the effectiveness of any Registration Statement at the
earliest possible time.
(d) The Company shall use its best efforts to furnish to each selling
Holder included within the coverage of any Shelf Registration Statement who so
requests in writing and who has provided to the Company an address for notices,
without charge, at least one conformed copy of such Shelf Registration Statement
and any post-effective amendment thereto, including financial statements and, if
the Holder so requests in writing, all exhibits and schedules (including those
incorporated by reference).
(e) The Company shall, during the Shelf Registration Period, deliver to
each Holder of Transfer Restricted Securities covered by any Shelf Registration
Statement and who has provided to the Company an address for notices, without
charge, as many copies of the Prospectus (including each preliminary Prospectus)
contained in such Shelf Registration Statement and any amendment or supplement
thereto as such Holder may reasonably request; subject to any notice by the
Company in accordance with Section 6(b) hereof, the Company consents to the use
of the Prospectus or any amendment or supplement thereto by each of the selling
Holders for the purposes of offering and resale of the Transfer Restricted
Securities covered by the Prospectus in accordance with the applicable
regulations promulgated under the Act.
(f) The Company shall furnish to each Exchanging Dealer, which so
requests in writing, without charge, at least one copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto, including
financial statements, and, if the Exchanging Dealer so requests in writing, any
documents incorporated by reference therein and all exhibits and schedules
(including those incorporated by reference).
(g) 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 Exchange
Notes received by it pursuant to the Registered Exchange Offer; the Company
consents to the use of the Prospectus or any amendment or supplement thereto by
any such Exchanging Dealer for the purposes contemplated by the Act or the
applicable regulations promulgated under the Act.
(h) Prior to the Registered Exchange Offer or any offering of Transfer
Restricted Securities pursuant to any Registration Statement, the Company shall
register or qualify or cooperate with the Holders of Transfer Restricted
Securities named therein and their respective counsel in connection with the
registration or qualification of such Transfer Restricted Securities for offer
and sale under the securities or blue sky laws of such jurisdictions of the
United States as any such Holders reasonably request in writing not later than
the date that is five business days prior to the date upon which this Agreement
specifies that the Registration Statement shall become effective; 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.
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(i) The Company shall endeavor to cooperate with the Holders of
Transfer Restricted Securities to facilitate the timely preparation and delivery
of certificates representing Transfer Restricted Securities to be sold pursuant
to any Registration Statement free of any restrictive legends and in such
denominations and registered in such names as Holders may request in writing at
least two business days prior to sales of securities pursuant to such
Registration Statement.
(j) Upon the occurrence of any event contemplated by paragraph
(b)(2)(v) hereof, 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 Transfer Restricted Securities covered thereby, 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; provided that
in the event of a material business transaction (including, without limitation,
pending negotiations relating to such a transaction) which would, in the opinion
of counsel to the Company, require disclosure by the Company in the Shelf
Registration Statement of material non-public information for which the Company
has a bona fide business purpose for not disclosing, then for so long as such
circumstances exist, the Company shall not be required to prepare and file a
supplement or post-effective amendment hereunder.
(k) Not later than the effective date of any such Registration
Statement hereunder, the Company shall cause to be provided a CUSIP number for
the Notes or Exchange Notes, as the case may be, registered under such
Registration Statement, and provide the applicable trustee with printed
certificates for such Notes or Exchange Notes, in a form eligible for deposit
with The Depository Trust Company.
(l) The Company shall use its best efforts to comply with all
applicable rules and regulations of the Commission and shall make generally
available to its security holders in a regular filing on Form 10-Q or 10-K an
earnings statement satisfying the provisions of Rule 158 (which need not be
audited) for the twelve-month period commencing after effectiveness of the Shelf
Registration Statement.
(m) The Company shall cause the Indenture or the Exchange Notes
Indenture, as the case may be, to be qualified under the Trust Indenture Act in
a timely manner.
(n) The Company may require each Holder of Transfer Restricted
Securities, which are to be sold pursuant to any Shelf Registration Statement,
to furnish to the Company within 20 business days after written request for such
information has been made by 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 such other
information as may be necessary or advisable in the reasonable opinion of the
Company and its counsel, in connection with such Shelf Registration Statement.
No Holder of Transfer Restricted Securities shall be entitled to use the
Prospectus unless and until such Holder shall have furnished the information
required by this Section 5(n) and all such information required to be disclosed
in order to make the information previously furnished to the Company by such
Holder not materially misleading.
(o) The Company shall, if requested, promptly incorporate in a
Prospectus supplement or post-effective amendment to a Shelf Registration
Statement, such information as the Managing Underwriters and 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
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matters to be incorporated in such Prospectus supplement or post-effective
amendment; provided, however, that the Company shall not be required to take any
action pursuant to this Section 5(o) that would, in the opinion of counsel for
the Company, violate applicable law or to include information the disclosure of
which at the time would have an adverse effect on the business or operations of
the Company and/or its subsidiaries, as determined in good faith by the Company.
(p) In the case of any Shelf Registration Statement, the Company shall
enter into such agreements (including underwriting agreements) and take all
other reasonably appropriate actions in order to expedite or facilitate the
registration or the disposition of the Transfer Restricted Securities, and in
connection therewith, if an underwriting agreement is entered into, cause the
same to contain indemnification provisions and procedures no less favorable than
those set forth in Section 8 (or such other provisions and procedures acceptable
to the Majority Holders and the Managing Underwriters, if any), with respect to
all parties to be indemnified pursuant to Section 8 from Holders of Notes to the
Company.
(q) In the case of any Shelf Registration Statement, the Company shall:
(i) make reasonably available for inspection by
representatives of the Holders of Transfer Restricted Securities to be
registered thereunder, the Managing Underwriter participating in any
disposition pursuant to such Registration Statement, and any attorney,
accountant or other agent retained by the Holders or any such Managing
Underwriter, at the office where normally kept during normal business
hours, all financial and other records, pertinent corporate documents
and properties of the Company and its subsidiaries, and cause the
Company's officers, directors and employees to supply all relevant
information reasonably requested by the Holders or any Managing
Underwriter, attorney, accountant or other agent in connection with any
such Registration Statement as is customary for similar due diligence
examinations; provided, however, that the foregoing inspection and
information gathering shall be coordinated by the Managing
Underwriters, if any, or by one counsel designated by the Holders and
that such persons shall first agree in writing with the Company 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 such person, 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;
(ii) make such representations and warranties to the Holders
of Transfer Restricted Securities registered thereunder and the
underwriters, if any, in form, substance and scope as are customarily
made by issuers to underwriters in underwritten offerings and covering
matters including, but not limited to, those set forth in the Purchase
Agreement;
(iii) obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the Managing Underwriters, if any),
addressed to each selling Holder and the underwriters, if any, covering
such matters as are customarily covered in opinions requested in
underwritten offerings and such other matters as may be reasonably
requested by such Holders and underwriters;
(iv) obtain "cold comfort" letters (or, in the case of any
person that does not satisfy the conditions for receipt of a "cold
comfort" letter specified in Statement on Auditing Standards No. 72, an
"agreed-upon procedures letter") and updates thereof from the
independent certified
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public accountants of the Company (and, if necessary, any other
independent certified public accountants of any subsidiary of the
Company or of any business acquired by the Company for which financial
statements and financial data are, or are required to be, included in
the Registration Statement), addressed where reasonably practicable to
each selling Holder of Transfer Restricted Securities registered
thereunder and the underwriters, if any, in customary form and covering
matters of the type customarily covered in "cold comfort" letters in
connection with primary underwritten offerings; and
(v) deliver such documents and certificates as may be
reasonably requested by the Majority Holders and the Managing
Underwriters, if any, including those to evidence compliance with
Section 5(j) and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Company.
The foregoing actions set forth in clauses (ii), (iii), (iv)
and (v) of this Section 5(q) shall, if reasonably requested by the
Majority Holder or the Majority Underwriters, be performed at (A) the
effectiveness of such Registration Statement and each post-effective
amendment thereto and (B) each closing under any underwriting or
similar agreement, as to the extent required thereunder.
(vi) The Company may offer securities of the Company other
than the Notes or the Exchange Notes under the Shelf Registration
Statement, except where such offer would conflict with the terms of the
Purchase Agreement.
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SECTION 6. HOLDERS' AGREEMENTS
Each Holder of Transfer Restricted Securities and Exchange Notes, by
the acquisition of such Transfer Restricted Securities or Exchange Notes, as the
case may be, agrees:
(a) To furnish the information required to be furnished pursuant to
Section 5(n) hereof within the time period set forth therein.
(b) That upon receipt of a notice of the commencement of a Supplement
Delay Period, it will keep the fact of such notice confidential, forthwith
discontinue disposition of its Transfer Restricted Securities or Exchange Notes,
as the case may be, pursuant to the Registration Statement, and will not deliver
any Prospectus forming a part thereof until receipt of the amended or
supplemented Registration Statement or Prospectus, as applicable, as
contemplated by Section 5(j) hereof, or until receipt of the Advice. If a
Supplement Delay Period should occur, the Exchange Offer Registration Period or
the Shelf Registration Period, as applicable, shall be extended by the number of
days of which the Supplement Delay Period is comprised; provided that the Shelf
Registration Period shall not be extended if the Company has received an opinion
of counsel (which counsel, if different from counsel to the Company referred to
in Section 6(a) and (b) of the Purchase Agreement, shall be reasonably
satisfactory to the Majority Holders of the Transfer Restricted Securities named
in the Shelf Registration Period) to the effect that the Transfer Restricted
Securities can be freely tradeable without the continued effectiveness of the
Shelf Registration Statement.
(c) If so directed by the Company in a notice of the commencement of a
Supplement Delay Period, each Holder of Transfer Restricted Securities or
Exchange Notes, as the case may be, will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
Holder's possession, of the Prospectus covering the Transfer Restricted
Securities or Exchange Notes, as the case may be.
(d) Sales of such Transfer Restricted Securities pursuant to a
Registration Statement shall only be made in the manner set forth in such
currently effective Registration Statement.
SECTION 7. REGISTRATION EXPENSES
The Company shall bear all expenses incurred in connection with the
performance of its obligations under Sections 3, 4 and 5 hereof and, in the
event of any Shelf Registration Statement, will reimburse the Holders for the
reasonable fees and disbursements of one firm or counsel designated by the
Majority Holders to act as counsel for the Holders in connection therewith, and,
in the case of any Exchange Offer Registration Statement, will reimburse the
Initial Purchasers for the reasonable fees and disbursements of counsel acting
in connection therewith. Notwithstanding the foregoing or anything in this
Agreement to the contrary, each Holder shall pay all underwriting discounts and
commission of any underwriters with respect to any Transfer Restricted
Securities sold by it.
SECTION 8. INDEMNIFICATION AND CONTRIBUTION
(a) In connection with Registration Statement, the Company agrees to
indemnify and hold harmless each Holder of Transfer Restricted Securities
covered thereby (including each Initial Purchaser and, with respect to any
Prospectus delivery as contemplated in Section 5(g) hereof, each Exchanging
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Dealer), the directors, officers, employees, partners, representatives and
agents of each such Holder and each person who controls any such Holder within
the meaning of either Section 15 of the Act or Section 20 of the Exchange Act
against any and all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the Act, the Exchange Act or
other Federal or state statutory law or regulation, at common law 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 to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that (i) the Company will not be liable
in any case to the extent that any such loss, claim, damage or liability arises
out of, or is based upon, any such untrue statement or alleged untrue statement
or omission or alleged omission made therein in reliance upon and in conformity
with written information furnished to the Company by or on behalf of any such
Holder or by the Managing Underwriters specifically for inclusion therein and
(ii) the Company will not be liable to any indemnified party under this
indemnity agreement with respect to the Registration Statement or Prospectus to
the extent that any such loss, claim, damage or liability of such indemnified
party results solely from an untrue statement of a material fact contained in,
or the omission of a material fact from, the Registration Statement or
Prospectus, which untrue statement or omission was corrected in an amended or
supplemented Registration Statement or Prospectus, if the person alleging such
loss, claim, damage or liability was not sent or given, at or prior to the
written confirmation of such sale, a copy of the amended or supplemented
Registration Statement or Prospectus if the Company had previously furnished
copies thereof to such indemnified party and if delivery of a prospectus is
required by the Act and was not so made. This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
The Company also agrees to indemnify or contribute to Losses of, as
provided in Section 8(d), any underwriters of Notes registered under a Shelf
Registration Statement, their officers and directors and each person who
controls such underwriters on substantially the same basis as that of the
indemnification of the Initial Purchasers and the selling Holders provided in
this Section 8(a) and shall, if requested by any Holder, enter into an
underwriting agreement reflecting such agreement, as provided in Section 5(p)
hereof.
(b) Each Holder of Transfer Restricted Securities or Exchange Notes
covered by a Registration Statement (including each Initial Purchaser and, with
respect to any Prospectus delivery as contemplated in Section 5(g) hereof, each
Exchanging Dealer) severally agrees to indemnify and hold harmless (i) the
Company, (ii) each of its directors, (iii) each of its officers who signs such
Registration Statement and (iv) 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. In no
event shall any Holder, its directors, officers or any person who controls such
Holder be liable or responsible for any amount in excess of the amount by which
the total amount received by such Holder with respect to its sale of Transfer
Restricted Securities pursuant to a Registration Statement exceeds (i) the
amount paid by such Holder for such Transfer Restricted Securities and (ii) the
amount of any damages that such Holder, its directors, officers or any person
who controls such Holder has otherwise
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been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission.
(c) Promptly after receipt by an indemnified party under this Section 8
or notice of the commencement of any action, the indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the failure to so notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel (and local
counsel) if (i) the use of counsel chosen by the indemnifying party to represent
the indemnified party would present such counsel with a conflict of interest,
(ii) the actual or potential defendants in, or targets of, any such action
include both the indemnified party and the indemnifying party, and the
indemnified party reasonably concluded that there may be legal defenses
available to it and/or other indemnified parties that are different from or
additional to those available to the indemnifying party, (iii) the indemnifying
party did not employ counsel satisfactory to the indemnified party to represent
the indemnified party within a reasonable time after notice of the institution
of such action or (iv) the indemnifying party authorized the indemnified party
to employ separate counsel at the expense of the indemnifying party. An
indemnifying party shall not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding for which indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or potential parties to such
claim or action), unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising out
of such claim, action, suit or proceeding and does not include a statement as to
or an admission of fault, culpability or a failure to act, by or on behalf of
the indemnified party.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 8 is unavailable or insufficient to hold harmless an indemnified
party for any reason, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall have a joint and several obligation
to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "LOSSES") to which such
indemnified party may be subject in such proportion as is appropriate to reflect
the relative benefits received by such indemnifying party, on the one hand, and
such indemnified party, on the other hand, from the Initial Placement and the
Registration Statement that resulted in such Losses; provided, however, that in
no case shall any Initial Purchaser or any subsequent Holder of any Note or
Exchange Note be responsible, in the aggregate, for any amount in excess of the
purchase discount or commission applicable to such Note, or in the case of an
Exchange Note, applicable to the Note which was exchangeable into such Exchange
Note, as set forth on the cover page of the Final Offering Memorandum, nor shall
any underwriter be responsible for any amount in excess of the underwriting
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discount or commission applicable to the securities purchased by such
underwriter under the Registration Statement that resulted in such Losses. 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, as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be equal to
the sum of (x) the total net proceeds from the Initial Placement (before
deducting expenses) as set forth on the cover page of the Final Offering
Memorandum and (y) the total amount of additional interest that the Company was
not required to pay as a result of registering the securities covered by the
Registration Statement that resulted in such Losses. Benefits received by the
Initial Purchasers shall be deemed to be equal to the total purchase discounts
and commissions as set forth on the cover page of the Final Offering Memorandum,
and benefits received by any other Holders shall be deemed to be equal to the
value of receiving Notes or Exchange Notes, as applicable, registered under the
Act. Benefits received by any underwriter shall be deemed to be equal to the
total underwriting discounts and commissions, as set forth on the cover page of
the Prospectus forming a part of the Registration Statement that resulted in
such Losses. Relative fault shall be determined by reference to whether any
alleged untrue statement or omission relates to information provided by the
indemnifying party, on the one hand, or by the indemnified party, on the other
hand. The parties agree that it would not be just and equitable if contribution
were determined by pro rata allocation or any other method of allocation that
does not take account of the equitable considerations referred to above.
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 guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person who
controls a Holder within the meaning of either the Act or the Exchange Act and
each director, officer, employee and agent of such Holder shall have the same
rights to contribution as such Holder, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, each officer of the
Company who shall have signed the Registration Statement and each director of
the Company shall have the same rights to contribution as the Company, subject
in each case to the applicable terms and conditions of this paragraph (d).
(e) The provisions of this Section 8 shall remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder or
the Company or any of the officers, directors or controlling persons referred to
in Section 8 hereof, and will survive the sale by a Holder of Transfer
Restricted Securities or Exchange Notes.
SECTION 9. RULE 144A AND RULE 144
The Company agrees with each Holder, for so long as any Transfer
Restricted Securities remain outstanding and during any period in which the
Company (i) is not subject to Section 13 or 15(d) of the Exchange Act, to make
available, upon request of any Holder, to such Holder or beneficial owner of
Transfer Restricted Securities in connection with any sale thereof and any
prospective purchaser of such Transfer Restricted Securities designated by such
Holder or beneficial owner, the information required by Rule 144A(d)(4) under
the Act in order to permit resales of such Transfer Restricted Securities
pursuant to Rule 144A, and (ii) is subject to Section 13 or 15 (d) of the
Exchange Act, to make all filings required thereby in a timely manner in order
to permit resales of such Transfer Restricted Securities pursuant to Rule 144.
SECTION 10. MISCELLANEOUS
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(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 Notes (or, after the consummation of any Registered Exchange Offer in
accordance with Section 3 hereof, of Exchange Notes); provided, however, 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 depart from the
provisions hereof, with respect to a matter, which relates exclusively to the
rights of Holders whose securities are being sold pursuant to a Registration
Statement and does not directly or indirectly affect the rights of other
Holders, may be given by the Majority Holders, determined on the basis of Notes
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
10(c), which address initially is, with respect to each Holder, the
address of such Holder maintained by the registrar under the Indenture
or the Exchange Note Indenture, as the case may be, with a copy in like
manner to Xxxxxx Xxxxxxx & Co. Incorporated;
(ii) if to the Initial Purchasers, initially at the respective
addresses set forth in the Purchase Agreement; and
(iii) if to the Company, initially at its address set forth in
the Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given when received.
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
hereto, including, without the need for an express assignment or any consent by
the Company thereto, subsequent Holders of Notes and/or Exchange Notes. The
Company hereby agrees to extend the benefits of this Agreement to any Holder of
Notes and/or Exchange Notes 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.
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(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 internal laws of the State of New York applicable to
agreements made and to be performed in said State (without reference to the
conflict of law rules thereof).
(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 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) Notes Held by the Company, etc. Whenever the consent or approval of
Holders of a specified percentage of principal amount of Notes or Exchange Notes
is required hereunder, Notes or Exchange Notes, as applicable, held by the
Company or its Affiliates (other than subsequent Holders of Notes or Exchange
Notes if such subsequent Holders are deemed to be Affiliates solely by reason of
their holdings of such Notes or Exchange Notes) shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage.
(j) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto with respect
to the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
NTL INCORPORATED
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
and General Counsel
XXXXXX XXXXXXX & CO. INCORPORATED
CHASE SECURITIES INC.
XXXXXXXXX XXXXXX & XXXXXXXX
SECURITIES CORPORATION
XXXXXXX, SACHS & CO.
By: XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Director
Registration Rights Agreement signature page
20
ANNEX A
Each broker-dealer that receives Exchange Notes for its own account pursuant to
the Registered Exchange Offer must acknowledge that it will deliver a prospectus
in connection with any resale of such Exchange Notes. 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 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 Exchange
Notes received in exchange for Notes where such Exchange Notes 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."
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ANNEX B
Each broker-dealer that receives Exchange Notes for its own account in exchange
for Notes, where such Notes 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 Exchange Notes.
See "Plan of Distribution."
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ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Registered Exchange Offer must acknowledge that it will deliver
a prospectus in connection with any resale of such Exchange Notes. 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 Exchange Notes received in
exchange for Notes where such Notes 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.
The Company will not receive any proceeds from any sale of Exchange
Notes by broker-dealers. Exchange Notes 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 Exchange Notes or by 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 at negotiated prices. Any such
resale may be made directly to purchaser 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 Exchange Notes. Any broker-
dealer that resells Exchange Notes that were received by it for its own account
pursuant to the Registered Exchange Offer and any broker or dealer that
participates in a distribution of such Exchange Notes may be deemed to be an
"underwriter" within the meaning of the Act and any profit of any such resale of
Exchange Notes and any commissions or concessions received by any such persons
may be deemed to be underwriting compensation under the 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 Act.
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 Registered Exchange Offer (including the expenses of one counsel
for the holders of the Notes) other than commissions or concessions of any
brokers or dealers and will indemnify the holders of the Notes (including any
broker-dealers) against certain liabilities, including liabilities under the
Act.
[Add information required by Regulation S-K Items 507 and/or 508.]
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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 Exchange
Notes. If the undersigned is a broker-dealer that will receive Exchange Notes
for its own account in exchange for Notes 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 Exchange Notes;
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 Act.
D-1
