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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement")
is made and entered into September 17, 1997, between NEXTEL COMMUNICATIONS,
INC., a Delaware corporation (the "Company"), and XXXXXXX LYNCH, PIERCE, XXXXXX
& XXXXX INCORPORATED ("Xxxxxxx Xxxxx"), TD SECURITIES (USA) INC., XXXXXX
BROTHERS INC., XXXXXX XXXXXXX & CO. INCORPORATED and NATIONSBANC CAPITAL
MARKETS, INC. (collectively, the "Initial Purchasers").
This Agreement is made pursuant to the Purchase
Agreement dated September 10, 1997, between the Company and the Initial
Purchasers (the "Purchase Agreement"), which provides for the sale by the
Company to the Initial Purchasers of an aggregate principal amount of
$840,000,000 of the Company's Senior Redeemable Discount Notes due 2007 (the
"Securities"). In order to induce the Initial Purchasers to enter into the
Purchase Agreement, the Company has agreed to provide to the Initial Purchasers
and their direct and indirect transferees the registration rights with respect
to the Securities set forth in this Agreement. The execution of this Agreement
is a condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto
agree as follows:
1. Definitions.
As used in this Agreement, the following capitalized
defined terms shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as
amended from time to time.
"1934 Act" shall mean the Securities Exchange Act of
1934, as amended from time to time.
"Closing Date" shall mean the Closing Date as defined
in the Purchase Agreement.
"Company" shall have the meaning set forth in the
preamble and shall also include the Company's successors.
"Depositary" shall mean The Depository Trust Company,
or any other depositary appointed by the Company, provided,
however, that such depositary must have an address in the
Borough of Manhattan, in The City of New York.
"Exchange Offer" shall mean the exchange offer by the
Company of Exchange Securities for Registrable Securities
pursuant to section 2(a) hereof.
"Exchange Offer Registration" shall mean a
registration under the 1933 Act effected pursuant to Section
2(a) hereof.
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"Exchange Offer Registration Statement" shall mean an
exchange offer registration statement on Form S-4 (or, if
applicable, on another appropriate form) and all amendments
and supplements to such registration statement, in each case
including the Prospectus contained therein, all exhibits
thereto and all material incorporated by reference therein.
"Exchange Securities" shall mean securities issued by
the Company containing terms identical to the Securities
(except that such Exchange Securities shall bear no legend and
shall be free from restrictions on transfers), to be offered
to Holders of Securities in exchange for Securities pursuant
to the Exchange Offer.
"Holder" shall mean the Initial Purchasers, for so
long as they own any Registrable Securities, and each of their
successors, assigns and direct and indirect transferees who
become registered owners of Registrable Securities under the
Indenture; provided that for purposes of Sections 4 and 5 of
this Agreement, the term "Holder" shall include Participating
Broker-Dealers (as defined in Section 4(a)).
"Indenture" shall mean the Indenture relating to the
Securities, dated as of September 17, 1997, between the
Company and Xxxxxx Trust and Savings Bank, as trustee, as the
same may be amended, supplemented, waived or otherwise
modified from time to time in accordance with the terms
thereof.
"Initial Purchaser" or "Initial Purchasers" shall
have the meaning set forth in the preamble.
"Majority Holders" shall mean the Holders of a
majority of the aggregate principal amount at Stated Maturity
of outstanding Registrable Securities; provided that whenever
the consent or approval of Holders of a specified percentage
of Registrable Securities is required hereunder, Registrable
Securities held by the Company or any of its affiliates (as
such term is defined in Rule 405 under the 0000 Xxx) (other
than the Initial Purchasers or subsequent holders of
Registrable Securities if such subsequent holders are deemed
to be such affiliates solely by reason of their holding of
such Registrable Securities) shall not be counted in
determining whether such consent or approval was given by the
Holders of such required percentage or amount.
"Person" shall mean an individual, partnership,
corporation, trust or unincorporated organization, or a
government or agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in a
Registration Statement, including any preliminary prospectus,
and any such prospectus as amended or supplemented by any
prospectus supplement, including a prospectus supplement with
respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration
Statement, and by all other amendments and supplements to such
prospectus, and in each case including all material
incorporated by reference therein.
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"Purchase Agreement" shall have the meaning set forth
in the preamble.
"Registrable Securities" shall mean the Securities;
provided, however, that the Securities shall cease to be
Registrable Securities (i) except in the case of the Initial
Purchasers to the extent of any unsold allotment and
Participating Broker-Dealers (as defined in section 4) to the
extent set forth in paragraph 4(a), upon the expiration date
of the Exchange Offer, (ii) when a Shelf Registration
Statement with respect to such Securities shall have been
declared effective under the 1933 Act and such Securities
shall have been disposed of pursuant to such Registration
Statement, (iii) when such Securities are saleable to the
public pursuant to Rule 144(k) (or any similar provision then
in force, but not Rule 144A) under the 1933 Act or (iv) when
such Securities shall have ceased to be outstanding.
"Registration Expenses" shall mean any and all
expenses incident to performance of or compliance by the
Company with this Agreement, including without limitation: (i)
all SEC, stock exchange or National Association of Securities
Dealers, Inc. registration and filing fees, (ii) all fees and
expenses incurred in connection with compliance with state
securities or blue sky laws (including reasonable fees and
disbursements of counsel for any Underwriters or Holders in
connection with blue sky qualification of any of the Exchange
Securities or Registrable Securities), (iii) all expenses of
any Persons in preparing or assisting in preparing, word
processing, printing and distributing any Registration
Statement, any Prospectus, any amendments or supplements
thereto, any underwriting agreements, securities sales
agreements and other documents relating to the performance of
and compliance with this Agreement, (iv) all rating agency
fees, if any, (v) the fees and disbursements of the Trustee,
(vi) the fees and disbursements of counsel for the Company
and, in the case of a Shelf Registration Statement, the fees
and disbursements of one counsel for the Holders (which
counsel shall be selected by the Majority Holders and which
counsel may also be counsel for the Initial Purchasers) and
(vii) the fees and disbursements of the independent public
accountants of the Company, including the expenses of any
special audits or "cold comfort" letters required by or
incident to such performance and compliance, but excluding
fees and expenses of counsel to the Underwriters (other than
fees and expenses set forth in clause (ii) above) or the
Holders and underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of
Registrable Securities by a Holder.
"Registration Statement" shall mean any registration
statement of the Company that covers any of the Exchange
Securities or Registrable Securities pursuant to the
provisions of this Agreement and all amendments and
supplements to any 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.
"SEC" shall mean the Securities and Exchange
Commission.
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"Shelf Registration" shall mean a registration
effected pursuant to Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf"
registration statement of the Company which covers all of the
Registrable Securities (and may include other securities of
other Persons) on an appropriate form under Rule 415 under the
1933 Act, or any similar rule that may be adopted by the SEC,
and 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.
"Trustee" shall mean the trustee with respect to the
Securities under the Indenture.
"Underwriters" shall have the meaning set forth in
Section 3 hereof.
"Underwritten Registration" or "Underwritten
Offering" shall mean a registration in which Registrable
Securities are sold to an Underwriter for reoffering to the
public.
2. Registration Under the 1933 Act.
(a) To the extent not prohibited by any
applicable law or applicable interpretation of the Staff of the SEC, the
Company shall use its best efforts to cause to be filed an Exchange Offer
Registration Statement covering the offer by the Company to the Holders to
exchange all of the Registrable Securities for Exchange Securities and to have
such Registration Statement remain effective until the closing of the Exchange
Offer. The Company shall commence the Exchange Offer promptly after the
Exchange Offer Registration Statement has been declared effective by the SEC
and use its best efforts to have the Exchange Offer consummated not later than
60 days after such effective date. The Company shall commence the Exchange
Offer by mailing the related exchange offer Prospectus and accompanying
documents to each Holder stating, in addition to such other disclosures as are
required by applicable law:
(i) that the Exchange Offer is being made
pursuant to this Agreement and that all Registrable Securities
validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange
(which shall be a period of at least 30 days from the date
such notice is mailed) (the "Exchange Dates");
(iii) that any Registrable Securities not
tendered will remain outstanding and shall continue to accrue
dividends at the initial rate borne by the Registrable
Securities and, other than Registrable Securities referred to
in Section 2(b) below, will not retain any rights under this
Agreement;
(iv) that Holders electing to have
Registrable Securities exchanged pursuant to the Exchange
Offer will be required to surrender such Registrable
Securities, together with the enclosed letters of transmittal,
to the institution and at the address (located in the
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Borough of Manhattan, The City of New York) specified in the
notice prior to the close of business on the last Exchange
Date; and
(v) that Holders will be entitled to
withdraw their election, not later than the close of business
on the last Exchange Date, by sending to the institution and
at the address (located in the Borough of Manhattan, The City
of New York) specified in the notice a telegram, telex,
facsimile transmission or letter setting forth the name of
such Holder, the number of shares of Registrable Securities
delivered for exchange and a statement that such Holder is
withdrawing his election to have such Registrable Securities
exchanged.
As soon as practicable after the last Exchange Date,
the Company shall:
(i) accept for exchange Registrable
Securities or portions thereof tendered and not validly
withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to
the Trustee for cancellation all Registrable Securities or
portions thereof so accepted for exchange by the Company and
issue, and cause the Trustee to promptly countersign and
register and mail to each Holder, Exchange Securities with an
aggregate liquidation preference equal to the aggregate
liquidation preference of the Registrable Securities
surrendered by such Holder.
The Company shall use its best efforts to complete the Exchange Offer as
provided above and shall comply with the applicable requirements of the 1933
Act, the 1934 Act and other applicable laws and regulations in connection with
the Exchange Offer. The Company shall inform the Initial Purchasers of the
names and addresses of the Holders to whom the Exchange Offer is made, and the
Initial Purchasers shall have the right, subject to applicable law, to contact
such Holders and otherwise facilitate the tender of Registrable Securities in
the Exchange Offer.
(b) in the event that the Exchange Offer has
been completed and in the opinion of counsel for the Initial Purchasers a
Registration Statement must be filed and a Prospectus must be delivered by the
Initial Purchasers in connection with any offering or sale of Registrable
Securities held by them that constitute an unsold allotment, the Company shall
use its best efforts to cause to be filed as soon as practicable after such
determination, date or notice of such opinion of counsel is given to the
Company, as the case may be, a Shelf Registration Statement providing for the
sale by the Initial Purchasers of such Registrable Securities and to have such
Shelf Registration Statement declared effective by the SEC. The Initial
Purchasers shall sell out their unsold allotments before making sales of any
other Registrable Securities and the Initial Purchasers shall notify the
Company upon the sale of all of their unsold allotments. The Company agrees to
use its best efforts to keep the Shelf Registration Statement continuously
effective for the period referred to in Rule 144(k) or until all of the
Registrable Securities covered by the Shelf Registration Statement have been
sold pursuant to the Shelf Registration Statement. The Company further agrees
to supplement or amend the Shelf Registration Statement if required by the
rules, regulations or instructions applicable to the registration form used by
the Company for such Shelf Registration Statement or by the 1933 Act or by any
other rules and regulations
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thereunder for shelf registration or if reasonably requested by a Holder with
respect to information relating to such Holder, and to use its best efforts to
cause any such amendment to become effective and such Shelf Registration
Statement to become usable as soon as thereafter practicable. The Company
agrees to furnish to the Holders of Registrable Securities copies of any such
supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company shall pay all Registration
Expenses in connection with the registration pursuant to Section 2(a) or
Section 2(b). Each Holder shall pay all underwriting discounts and commissions
and transfer taxes, if any, relating to the sale or disposition of such
Holder's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement
pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to
Section 2(b) hereof will not be deemed to have become effective unless it has
been declared effective by the SEC; provided, however, that if, after it has
been declared effective, the offering of Registrable Securities pursuant to a
Shelf Registration Statement is interfered with by any stop order, injunction
or other order or requirement of the SEC or any other governmental agency or
court, such Registration Statement will be deemed not to have become effective
during the period of such interference until the offering of Registrable
Securities pursuant to such Registration Statement may legally resume. As
provided for in the Indenture, in the event the Exchange Offer is not
consummated on or prior to March 17, 1998, thereafter an additional incremental
interest amount will accrue at an annual rate of 0.5% of the Accreted Value of
the Securities as of the most recent Semi-Annual Accretion Date (as defined in
the Indenture), beginning on March 18, 1998, and, if the Exchange Offer is not
consummated on or prior to June 17, 1998, thereafter an additional incremental
interest amount will accrue at an annual rate of 0.5% of the Accreted Value of
the Securities as of the most recent Semi-Annual Accretion Date, beginning on
June 18, 1998, until the earlier of the date upon which (i) the Exchange Offer
is consummated, (ii) a Shelf Registration Statement with respect to all
Registrable Securities is declared effective or (iii) the Securities become
freely tradeable without registration under the 1933 Act; provided that, upon
the request of any Holder of the Securities, the Company will deliver to such
Holder certificates evidencing such Holder's Securities without the legends
restricting the transfer thereof.
(e) Without limiting the remedies available
to the Initial Purchasers and the Holders, the Company acknowledges that any
failure by the Company to comply with its obligations under Section 2(a) and
Section 2(b) hereof may result in material irreparable injury to the Initial
Purchasers or the Holders for which there is no adequate remedy at law, that it
will not be possible to measure damages for such injuries precisely and that,
in the event of any such failure, the Initial Purchasers or any Holder may
obtain such relief as may be required to specifically enforce the Company's
obligations under Section 2(a) and Section 2(b) hereof.
3. Registration Procedures.
In connection with the obligations of the Company
with respect to the Registration Statements pursuant to Section 2(a) and
Section 2(b) hereof, the Company shall as expeditiously as possible:
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(a) prepare and file with the SEC a Registration
Statement on the appropriate form under the 1933 Act, which form (x)
shall be selected by the Company and (y) shall, in the case of a Shelf
Registration, be available for the sale of the Registrable Securities
by the selling Holders thereof and (z) shall comply as to form in all
material respects with the requirements of the applicable form and
include all financial statements required by the SEC to be filed
therewith, and use its best efforts to cause such Registration
Statement to become effective and remain effective in accordance with
Section 2 hereof;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be
necessary to keep such Registration Statement effective for the
applicable period and cause each Prospectus to be supplemented by any
required prospectus supplement and, as so supplemented, to be filed
pursuant to Rule 424 under the 1933 Act; to keep each Prospectus
current during the period described under Section 4(3) and Rule 174
under the 1933 Act that is applicable to transactions by brokers or
dealers with respect to the Registrable Securities or Exchange
Securities;
(c) in the case of a Shelf Registration, furnish to
each Holder of Registrable Securities, to counsel for the Initial
Purchasers, to counsel for the Holders and to each Underwriter of an
Underwritten Offering of Registrable Securities, if any, without
charge, as many copies of each Prospectus, including each preliminary
Prospectus, and any amendment or supplement thereto and such other
documents as such Holder or Underwriter may reasonably request, in
order to facilitate the public sale or other disposition of the
Registrable Securities; and the Company consents to the use of such
Prospectus and any amendment or supplement thereto in accordance with
applicable law by each of the selling Holders of Registrable Securities
and any such Underwriters in connection with the offering and sale of
the Registrable Securities covered by and in the manner described in
such Prospectus or any amendment or supplement thereto in accordance
with applicable law;
(d) use its best efforts to register or qualify the
Registrable Securities under all applicable state securities or "blue
sky" laws of such jurisdictions as any Holder of Registrable Securities
covered by a Registration Statement shall reasonably request in writing
by the time the applicable Registration Statement is declared effective
by the SEC, to cooperate with such Holder in connection with any
filings required to be made with the National Association of Securities
Dealers, Inc. and do any and all other acts and things which may be
reasonably necessary or advisable to enable such Holder to consummate
the disposition in each such jurisdiction of such Registrable
Securities owned by such Holder; provided, however, that the Company
shall not be required to (i) qualify as a foreign corporation or as a
dealer in securities in any jurisdiction where it would not otherwise
be required to qualify but for this Section 3(d), (ii) file any general
consent to service of process or (iii) subject itself to taxation in
any such jurisdiction if it is not so subject;
(e) in the case of a Shelf Registration, notify each
Holder of Registrable Securities, counsel for the Holders and counsel
for the Initial Purchasers promptly and, if
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requested by any such Holder or counsel, confirm such advice in
writing (i) when a Registration Statement has become effective and when
any post-effective amendment thereto has been filed and becomes
effective, (ii) of any request by the SEC or any state securities
authority for amendments and supplements to a Registration Statement
and Prospectus or for additional information after the Registration
Statement has become effective, (iii) of the issuance by the SEC or any
state securities authority of any stop order suspending the
effectiveness of a Registration Statement or the initiation of any
proceedings for that purpose, (iv) if, between the effective date of a
Registration Statement and the closing of any sale of Registrable
Securities covered thereby, the representations and warranties of the
Company contained in any underwriting agreement, securities sales
agreement or other similar agreement, if any, relating to the offering
cease to be true and correct in all material respects or if the Company
receives any notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any
jurisdiction or the initiation of any proceeding for such purpose, (v)
of the happening of any event during the period a Shelf Registration
Statement is effective which makes any statement made in such Shelf
Registration Statement or the related Prospectus untrue in any material
respect or which requires the making of any changes in such Shelf
Registration Statement or Prospectus in order to make the statements
therein not misleading and (vi) of any determination by the Company
that a post-effective amendment to a Registration Statement would be
appropriate;
(f) make every reasonable effort to obtain the
withdrawal of any order suspending the effectiveness of a Registration
Statement at the earliest possible moment and provide immediate notice
to each Holder of the withdrawal of any such order;
(g) in the case of a Shelf Registration, upon request,
furnish to each Holder of Registrable Securities, without charge, at
least one conformed copy of each Registration Statement and any
post-effective amendment thereto (without documents incorporated
therein by reference or exhibits thereto, unless requested);
(h) in the case of a Shelf Registration, cooperate
with the selling Holders of Registrable Securities to facilitate
the timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any
restrictive legends and enable such Registrable Securities to be in
such denominations (consistent with the provisions of the Indenture)
and registered in such names as the selling Holders may reasonably
request at least two business days prior to the closing of any sale of
Registrable Securities;
(i) in the case of a Shelf Registration, upon the
occurrence of any event contemplated by Section 3(e)(v) hereof, use its
best efforts to prepare and file with the SEC a supplement or
post-effective amendment to a Registration Statement or the related
Prospectus or any document incorporated therein by reference or file
any other required document so that, as thereafter delivered to the
purchasers of the Registrable Securities, such Prospectus will not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under
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which they were made, not misleading. The Company agrees to
notify the Holders to suspend use of the Prospectus as promptly as
practicable after the occurrence of such an event, and the Holders
hereby agree to suspend use of the Prospectus until the Company has
amended or supplemented the Prospectus to correct such misstatement or
omission;
(j) a reasonable time prior to the filing of any
Registration Statement, any Prospectus, any amendment to a Registration
Statement or amendment or supplement to a Prospectus or any document
which is to be incorporated by reference into a Registration Statement
(other than filings pursuant to the 0000 Xxx) or a Prospectus after the
initial filing of a Registration Statement, provide copies of such
document to the Initial Purchasers and their counsel (and, in the case
of a Shelf Registration Statement, the Holders and their counsel) and
make such of the representatives of the Company as shall be reasonably
requested by the Initial Purchasers or their counsel (and, in the case
of a Shelf Registration Statement, the Holders or their counsel)
available for discussion of such document, and shall not at any time
file or make any amendment to the Registration Statement, any
Prospectus or any amendment of or supplement to a Registration
Statement or a Prospectus or any document which is to be incorporated
by reference into a Registration Statement (other than filings pursuant
to the 0000 Xxx) or a Prospectus, of which the Initial Purchasers and
their counsel (and, in the case of a Shelf Registration Statement, the
Holders and their counsel) shall not have previously been advised and
furnished a copy or to which the Initial Purchasers or their counsel
(and, in the case of a Shelf Registration Statement, the Holders or
their counsel) shall object;
(k) obtain a CUSIP number for all Exchange Securities
or Registrable Securities, as the case may be, not later than the
effective date of a Registration Statement;
(l) in the case of a Shelf Registration, make available
for inspection by a representative of the Holders of the Registrable
Securities, any Underwriter participating in any disposition pursuant
to such Shelf Registration Statement, and attorneys and accountants
designated by the Holders, at reasonable times and in a reasonable
manner, all financial and other records, pertinent documents and
properties of the Company, and cause the respective officers, directors
and employees of the Company to supply all information reasonably
requested by any such representative, Underwriter, attorney or
accountant in connection with a Shelf Registration Statement;
(m) in the case of a Shelf Registration, use its best
efforts to cause all Registrable Securities to be listed on any
securities exchange or any automated quotation system on which similar
securities issued by the Company are then listed if requested by the
Majority Holders, to the extent such Registrable Securities satisfy
applicable listing requirements;
(n) use its best efforts to cause the Exchange
Securities or Registrable Securities, as the case may be, to be rated
by two nationally recognized statistical rating organizations (as such
term is defined in Rule 436(g)(2) under the 0000 Xxx);
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(o) if reasonably requested by any Holder of
Registrable Securities covered by a Registration Statement, (i)
promptly incorporate in a Prospectus supplement or post-effective
amendment such information with respect to such Holder as such Holder
reasonably requests to be included therein and (ii) make all required
filings of such Prospectus supplement or such post-effective amendment
as soon as the Company has received notification of the matters to be
incorporated in such filing; and
(p) in the case of a Shelf Registration, enter into
such customary agreements and take all such other actions in connection
therewith (including those requested by the Holders of a majority of
the Registrable Securities being sold) in order to expedite or
facilitate the disposition of such Registrable Securities including,
but not limited to, an Underwritten Offering and in such connection,
(i) to the extent possible, make such representations and warranties to
the Holders and any Underwriters of such Registrable Securities with
respect to the business of the Company and its subsidiaries, the
Registration Statement, Prospectus and documents incorporated by
reference or deemed incorporated by reference, if any, in each case, in
form, substance and scope as are customarily made by issuers to
underwriters in underwritten offerings and confirm the same if and when
requested, (ii) obtain opinions of counsel to the Company (which
counsel and opinions, in form, scope and substance, shall be reasonably
satisfactory to the Holders and such Underwriters and their respective
counsel) addressed to each selling Holder and Underwriter of
Registrable Securities, covering the matters customarily covered in
opinions requested in underwritten offerings, (iii) obtain "cold
comfort" letters from the independent certified public accountants of
the Company (and, if necessary, any other certified public accountant
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 to
each selling Holder and Underwriter of Registrable Securities, such
letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with
underwritten offerings, and (iv) deliver such documents and
certificates as may be reasonably requested by the Holders of a
majority of the Registrable Securities being sold or the Underwriters,
and which are customarily delivered in underwritten offerings, to
evidence the continued validity of the representations and warranties
of the Company made pursuant to clause (i) above and to evidence
compliance with any customary conditions contained in an underwriting
agreement.
In the case of a Shelf Registration Statement, the
Company may require each Holder of Registrable Securities to furnish to the
Company such information regarding the Holder and the proposed distribution by
such Holder of such Registrable Securities as the Company may from time to time
reasonably request in writing.
In the case of a Shelf Registration Statement,
each Holder agrees that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 3(e)(v) hereof, such
Holder will forthwith discontinue disposition of Registrable Securities
pursuant to a Registration Statement until such Holder's receipt of the copies
of the supplemented or amended Prospectus contemplated by Section 3(i) hereof,
and, if so directed by
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the Company, such Holder will deliver to the Company (at its expense) all
copies in its possession, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Registrable Securities
current at the time of receipt of such notice. The Company shall not suspend
the disposition of Registrable Securities pursuant to a Shelf Registration
Statement for more than an aggregate of 120 days during any 365 day period. If
the Company shall suspend the disposition of Registrable Securities pursuant to
a Shelf Registration Statement for more than an aggregate of 60 days during any
365 day period, then the Company shall pay each Holder of Registrable
Securities that are registered pursuant to the Shelf Registration Statement and
have not been sold pursuant thereto an illiquidity fee in an amount equal to
[one half] of one percent per annum (calculated at an annual rate for the
actual number of days of suspension in excess of 60 days in such 365 day
period) of the Accreted Value of such Registrable Securities held by such
Holder as of the most recent Semi-Annual Accretion Date.
The Holders of Registrable Securities covered by a
Shelf Registration Statement who desire to do so may sell such Registrable
Securities in an Underwritten Offering. In any such Underwritten Offering, the
investment banker or investment bankers and manager or managers (the
"Underwriters") that will administer the offering will be selected by the
Majority Holders of the Registrable Securities included in such offering.
4. Participation of Broker-Dealers in
Exchange Offer.
(a) The Staff of the SEC has taken the
position that any broker-dealer that receives Exchange Securities for its own
account in the Exchange Offer in exchange for Securities that were acquired by
such broker-dealer as a result of market-making or other trading activities (a
"Participating Broker-Dealer"), may be deemed to be an "underwriter" within the
meaning of the 1933 Act and must deliver a prospectus meeting the requirements
of the 1933 Act in connection with any resale of such Exchange Securities.
The Company understands that it is the Staff's
position that if the Prospectus contained in the Exchange Offer Registration
Statement includes a plan of distribution containing a statement to the above
effect and the means by which Participating Broker-Dealers may resell the
Exchange Securities, without naming the Participating Broker-Dealers or
specifying the amount of Exchange Securities owned by them, such Prospectus may
be delivered by Participating Broker-Dealers to satisfy their prospectus
delivery obligation under the 1933 Act in connection with resales of Exchange
Securities for their own accounts, so long as the Prospectus otherwise meets
the requirements of the 1933 Act.
(b) In light of the above, notwithstanding
the other provisions of this Agreement, the Company agrees that the provisions
of this Agreement as they relate to a Shelf Registration shall also apply to an
Exchange Offer Registration to the extent, and with such reasonable
modifications thereto as may be, reasonably requested by the Initial Purchasers
or by one or more Participating Broker-Dealers, in each case as provided in
clause (ii) below, in order to expedite or facilitate the disposition of any
Exchange Securities by Participating Broker-Dealers consistent with the
positions of the Staff recited in Section 4(a) above; provided that:
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(i) the Company shall not be required to
amend or supplement the Prospectus contained in the Exchange
Offer Registration Statement, as would otherwise be
contemplated by Section 3(i) of this Agreement, for a period
exceeding 90 days after the last Exchange Date (as such period
may be extended pursuant to the penultimate paragraph of
Section 3 of this Agreement) and Participating Broker-Dealers
shall not be authorized by the Company to deliver and shall
not deliver such Prospectus after such period in connection
with the resales contemplated by this Section 4;
(ii) the application of the Shelf
Registration procedures set forth in Section 3 of this
Agreement to an Exchange Offer Registration, to the extent not
required by the positions of the Staff of the SEC or the 1933
Act and the rules and regulations thereunder, will be in
conformity with the reasonable request to the Company by the
Initial Purchasers or with the reasonable request in writing
to the Company by one or more broker-dealers who certify to
the Initial Purchasers and the Company in writing that they
anticipate that they will be Participating Broker-Dealers; and
provided further that, in connection with such application of
the Shelf Registration procedures set forth in Section 3 of
this Agreement to an Exchange Offer Registration, the Company
shall be obligated (x) to deal only with one entity
representing the Participating Broker-Dealers, which shall be
Xxxxxxx Xxxxx unless it elects not to act as such
representative and (y) to cause to be delivered only one, if
any, "cold comfort" letter with respect to the Prospectus in
the form existing on the last Exchange Date and with respect
to each subsequent amendment or supplement, if any, effected
during the period specified in clause (i) above; and
(iii) on a weekly basis, the representative of
the Participating Broker-Dealers will confirm with the Company
that the Shelf Registration Statement is available.
(c) The Initial Purchasers shall have no
liability to the Company or any Holder with respect to any request that it may
make pursuant to Section 4(b) above.
5. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold
harmless the Initial Purchasers, each Holder, each Participating Broker-Dealer,
each Underwriter and each Person, if any, who controls any Holder or
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
(i) against any and all loss, liability,
claim, damage and expense whatsoever, as incurred, arising
out of any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement (or any
amendment or supplement thereto) pursuant to which Exchange
Securities or Registrable Securities were registered under
the 1933 Act, including all documents incorporated therein by
reference, or the omission or alleged omission therefrom of a
material fact necessary to make the statements therein not
misleading, or arising out of any untrue statement or alleged
untrue statement of a material fact contained in any
Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact
necessary in order to make the
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statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) against any and all loss, liability,
claim, damage and expense whatsoever, as incurred, to the
extent of the aggregate amount paid in settlement of any
litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of
any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission;
provided that (subject to Section 5(d) below) any such
settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever,
as incurred (including the fees and disbursements of counsel
chosen by any indemnified party), reasonably incurred in
investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever
based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any
such expense is not paid under subparagraph (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Initial Purchasers, such Holder or Underwriter expressly for use in a
Registration Statement (or any amendment thereto) or any Prospectus (or any
amendment or supplement thereto); provided, further, however, that the
foregoing indemnity agreement with respect to any prospectus shall not inure to
the benefit of any Initial Purchaser or Holder from whom the person asserting
any such losses, claims, damages or liabilities purchased Securities, or any
person controlling such Initial Purchaser or Holder, if a copy of the final
prospectus (as then amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) was not sent or given by or on behalf of
such Initial Purchaser or Holder to such person, if required by law so to have
been delivered, at or prior to the written confirmation of the sale of the
Securities to such person, and if the final prospectus (as so amended or
supplemented) would have cured the defect giving rise to such losses, claims,
damages or liabilities, unless such failure is the result of noncompliance by
the Company with Section 3(c) hereof.
(b) Each Holder severally, but not jointly,
agrees to indemnify and hold harmless the Company and the other selling
Holders, and each of their respective directors and officers, and each Person,
if any, who controls the Company or any other selling Holder within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act, against any and
all loss, liability, claim, damage and expense to the same extent as described
in Section 5(a) hereof, as incurred, but only with respect to untrue statements
or omissions, or alleged untrue statements or omissions, made in the Shelf
Registration Statement (or any amendment thereto) or any Prospectus included
therein (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such Holder
expressly for use in the Shelf Registration Statement (or any amendment
thereto) or such Prospectus (or any amendment or supplement thereto); provided,
however, that no such Holder shall be liable for any
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claims hereunder in excess of the amount of net proceeds received by such
Holder from the sale of Registrable Securities pursuant to such Shelf
Registration Statement.
(c) Each indemnified party shall give notice
as promptly as reasonably practicable to each indemnifying party of any action
commenced against it in respect of which indemnity may be sought hereunder, but
failure to so notify an indemnifying party shall not relieve such indemnifying
party from any liability hereunder to the extent it is not materially
prejudiced as a result thereof and in any event shall not relieve it from any
liability which it may have otherwise than on account of this indemnity
agreement. Upon request of the indemnified party, the indemnifying party shall
retain counsel reasonably satisfactory to the indemnified party to represent
the indemnified party. In any such proceeding, any indemnified party shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them,
in which case the indemnifying party shall pay the expenses of the separate
counsel of such indemnified party. In the case of parties indemnified pursuant
to Section 5(a) above, such counsel to the indemnified parties shall be
selected by Xxxxxxx Xxxxx, and, in the case of parties indemnified pursuant to
Section 5(b) above, such counsel to the indemnified parties shall be selected
by the Company. In no event shall the indemnifying party or parties be liable
for the fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written consent
of the indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 5 (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii)
does not include a statement as to or an admission of fault, culpability or a
failure to act by or on behalf of any indemnified party; provided, that such
unconditional release may be subject to a parallel release of a claimant or
plaintiff by such indemnified party from all liability in respect of claims or
counterclaims asserted by such indemnified party arising out of the same
subject matter.
(d) If at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel, such indemnifying party agrees that it shall
be liable for any settlement of the nature contemplated by Section 5(a)(ii)
effected without its written consent if (i) such settlement is entered into
more than 45 days after receipt by such indemnifying party of the aforesaid
request, (ii) such indemnifying party shall have received notice of the terms
of such settlement at least 30 days prior to such settlement being entered into
and (iii) such indemnifying party shall not have reimbursed such indemnified
party in accordance with such request prior to the date of such settlement.
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(e) If the indemnification provided for in
this Section 5 is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, in such
proportion as is appropriate to reflect the relative fault of the Company on
the one hand and the Holders and the Initial Purchasers on another hand in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative fault of the Company on the one hand
and the Holders and the Initial Purchasers on the other hand shall be
determined by reference to, among other things, whether any such untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Company, the
Holders or the Initial Purchasers and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company, the Holders and the Initial
Purchasers agree that it would not be just and equitable if contribution
pursuant to this Section 5 were determined by pro rata allocation (even if the
Initial Purchasers were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable
considerations referred to above in this Section 5. The aggregate amount of
losses, liabilities, claims, damages and expenses incurred by an indemnified
party and referred to above in this Section 5 shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged
untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 5,
no Initial Purchaser shall be required to contribute any amount in excess of
the amount by which the total price at which the Securities sold by it were
offered exceeds the amount of any damages which such Initial Purchaser has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section 5, each person, if
any, who controls an Initial Purchaser or Holder within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as such Initial Purchaser or Holder, and each director of the
Company, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as the Company. The Initial Purchasers' respective
obligations to contribute pursuant to this Section 5 are several in proportion
to the principal amount of Securities set forth opposite their respective names
in Schedule I(a) to the Purchase Agreement and not joint.
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6. Miscellaneous.
(a) No Inconsistent Agreements. The Company
has not entered into, and on or after the date of this Agreement will not enter
into, any agreement which is inconsistent with the rights granted to the
Holders of Registrable Securities in this Agreement or otherwise conflicts with
the provisions hereof. The rights granted to the Holders hereunder do not in
any way conflict with and are not inconsistent with the rights granted to the
holders of the Company's other issued and outstanding securities under any such
agreements.
(b) Amendments and Waivers. The provisions
of this Agreement, including the provisions of this sentence, may not be
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given unless the Company has obtained the
written consent of Holders of at least a majority in aggregate principal amount
of the outstanding Registrable Securities affected by such amendment,
modification, supplement, waiver or consent; provided, however, that no
amendment, modification, supplement, waiver or consents to any departure from
the provisions of Section 5 hereof shall be effective as against any Holder of
Registrable Securities unless consented to in writing by such Holder.
(c) Notices. All notices and other
communications provided for or permitted hereunder shall be made in writing by
hand-delivery, registered first-class mail, telex, telecopier, or any courier
guaranteeing overnight delivery (i) if to a Holder, at the most current address
given by such Holder to the Company by means of a notice given in accordance
with the provisions of this Section 6(c), which address initially is, with
respect to the Initial Purchasers, the address set forth in the Purchase
Agreement; and (ii) if to the Company, initially at the Company's address set
forth in the Purchase Agreement and thereafter at such other address, notice of
which is given in accordance with the provisions of this Section 6(c).
All such notices and communications shall be
deemed to have been duly given: at the time delivered by hand, if personally
delivered; two business days after being deposited in the mail, postage
prepaid, if mailed; when answered back, if telexed; when receipt is
acknowledged, if telecopied; and on the next business day if timely delivered
to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands, or other
communications shall be concurrently delivered by the person giving the same to
the Trustee under the Indenture, at the address specified in such Indenture.
(d) Successors and Assigns. This Agreement
shall inure to the benefit of and be binding upon the successors, assigns and
transferees of each of the parties, including, without limitation and without
the need for an express assignment, subsequent Holders; provided that nothing
herein shall be deemed to permit any assignment, transfer or other disposition
of Registrable Securities in violation of the terms of the Purchase Agreement.
If any transferee of any Holder shall acquire Registrable Securities, in any
manner, whether by operation of law or otherwise, such Registrable Securities
shall be held subject to all of the terms of this Agreement, and by taking and
holding much Registrable Securities such person shall be conclusively deemed
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to have agreed to be bound by and to perform all of the terms and provisions of
this Agreement and such person shall be entitled to receive the benefits
hereof. The Initial Purchasers (in their capacity as Initial Purchasers) shall
have no liability or obligation to the Company with respect to any failure by a
Holder to comply with, or any breach by any Holder of, any of the obligations
of such Holder under this Agreement.
(e) Purchases and Sales of Securities. The
Company shall not, and shall use its best efforts to cause its affiliates (as
defined in Rule 405 under the 0000 Xxx) not to, purchase and then resell or
otherwise transfer any Securities.
(f) Third Party Beneficiary. The Holders
shall be third party beneficiaries to the agreements made hereunder between the
Company, on the one hand, and the Initial Purchasers, on the other hand, and
each Holder shall have the right to enforce such agreements directly to the
extent it deems such enforcement necessary or advisable to protect its rights
or the rights of Holders hereunder.
(g) 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.
(h) Headings. The headings in this
Agreement are for convenience of reference only and shall not limit or
otherwise affect the meaning hereof.
(i) Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York.
(j) Severability. In the event that any one
or more of the provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the validity, legality
and enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.
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IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
NEXTEL COMMUNICATIONS, INC.
By: /s/ XXXXXX X. XXXXXXXX
-----------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
Confirmed and accepted as of
the date first above written:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
TD SECURITIES (USA) INC.
XXXXXX BROTHERS INC.
XXXXXX XXXXXXX & CO. INCORPORATED
NATIONSBANC CAPITAL PARTNERS, INC.
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ XXXX XXXXX
---------------------------------
Name: Xxxx Xxxxx
Title: Vice President
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