EXHIBIT 10.1
EXECUTION COPY
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
Exchange and Registration Rights Agreement (this "Agreement") dated as of
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June 29, 1998 among ARCH COMMUNICATIONS, INC., a Delaware corporation (the
"Company"), Bear, Xxxxxxx & Co. Inc., Barclays Capital Inc., RBC Dominion
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Securities Corporation, BNY Capital Markets, Inc. and TD Securities (USA) Inc.
(with Bear, Xxxxxxx & Co. Inc., Barclays Capital Inc., RBC Dominion Securities
Corporation and TD Securities (USA) Inc. being referred to collectively as, the
"Initial Purchasers").
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This Agreement is made pursuant to the Purchase Agreement, dated as of June
24, 1998 (the "Purchase Agreement"), among the Company and the Initial
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Purchasers, pursuant to which the Initial Purchasers have agreed, severally and
not jointly, to purchase from the Company $130,000,000 aggregate principal
amount of the Company's 12 3/4% Senior Notes due 2007 (the "Notes"). The Notes
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will be issued pursuant to an Indenture (the "Indenture") to be dated as of the
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date hereof between the Company and U.S. Bank Trust National Association, as
trustee (the "Trustee"). As an inducement to the Initial Purchasers to purchase
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the Notes, the Company agrees with the Initial Purchasers, for the benefit of
the holders of the Notes and the Registered Notes (as defined), as follows:
Section 1. Certain Defined Terms.
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(a) As used in this Agreement, the following capitalized terms shall
have the following meanings:
"Broker-Dealer" means any broker or dealer registered under the
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Exchange Act.
"Business Day" means any day other than a Saturday, a Sunday or a day
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on which the banking institutions in the State of New York are authorized or
obligated by law or executive order to close.
"Commission" means the United States Securities and Exchange
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Commission.
"Consummate" means, with respect to a Registered Exchange Offer: (i)
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the filing and declaration of effectiveness under the Securities Act of the
Exchange Offer Registration Statement relating to the Registered Notes to be
issued in the Registered Exchange Offer; (ii) maintaining the continuous
effectiveness of such Exchange Offer Registration Statement and keeping the
Registered Exchange Offer open for a period of not less than 20 Business Days
after the date of the mailing of
the Prospectus pursuant to Section 2(d)(i) hereof; and (iii) the delivery by the
Company to the Registrar under the Indenture of the Registered Notes in the same
aggregate principal amount as the aggregate principal amount of the Notes that
were duly tendered by Holders thereof pursuant to the Registered Exchange Offer,
and "Consummated" or "Consummation" shall have a correlative meaning.
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"Exchange Act" means the United States Securities Exchange Act of
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1934, as amended, and the rules and regulations promulgated thereunder.
"Exchange Offer Registration Statement" means a registration statement
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(together with the Prospectus included therein, all amendments and supplements
thereto (including post-effective amendments) and all exhibits and materials
incorporated by reference therein) with respect to the Registered Exchange
Offer.
"Holder" means any Person who is the registered or beneficial owner of
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the Notes or the Registered Notes, as the case may be.
"Person" means an individual, partnership, corporation, joint stock
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company, joint venture, trust, unincorporated organization or a government,
agency or political subdivision thereof, firm or other entity.
"Prospectus" means the prospectus included in any Registration
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Statement, as amended or supplemented, including, without limitation, by any
post-effective amendments thereto, and all material incorporated by reference
into such prospectus.
"Registration Statement" means the Exchange Offer Registration
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Statement or the Shelf Registration Statement, as the context requires.
"Securities Act" means the United States Securities Act of 1933, as
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amended, and the rules and regulations promulgated thereunder.
"Shelf Registration Statement" means a registration statement filed
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for a delayed or continuous period pursuant to Rule 415 or any similar rule that
may be adopted by the Commission under the Securities Act (together with the
Prospectus included therein, all amendments and supplements thereto (including
post-effective amendments) and all exhibits and materials incorporated by
reference therein) with respect to a Shelf Registration.
"TIA" means the United States Trust Indenture Act of 1939, as amended,
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in effect on the date of the Indenture.
"Transfer Restricted Securities" means each Note and each Registered
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Note, the Holder of which is subject to prospectus delivery requirements of the
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Securities Act in order to sell such Note or Registered Note, until the
occurrence of any of the following events:
(i) the first date on which such Note may be exchanged for a
Registered Note in the Registered Exchange Offer, if following such exchange
such Holder would be entitled to resell such Registered Note to the public
without complying with the prospectus delivery requirements of the Securities
Act;
(ii) the date on which such Note has been registered pursuant to
an effective Shelf Registration Statement under the Securities Act and disposed
of in accordance with the "Plan of Distribution" section of the Prospectus
contained in such Shelf Registration Statement;
(iii) the date on which such Note is sold to the public pursuant
to Rule 144 under the Securities Act or by a Broker-Dealer pursuant to the "Plan
of Distribution" contemplated by the Exchange Offer Registration Statement
(including delivery of the Prospectus contained therein); or
(iv) such Note or Registered Note, as the case may be, shall have
ceased to be outstanding.
(b) Each of the following terms is defined in the Section set forth
opposite such term:
Term Section
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Agreement Preamble
Company Preamble
Indemnified Holder 7(a)
Indenture Preamble
Initial Purchasers Preamble
Issue Date 2(a)(i)
Liquidated Damages 8
Losses 7(a)
Notes Preamble
Participating Broker-Dealer 4(a)
Purchase Agreement Preamble
Registered Exchange Offer 2(a)
Registered Notes 2(a)
Registration Default 8
Shelf Registration 3(a)
Trustee Preamble
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Section 2. Registered Exchange Offer.
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(a) The Company shall:
(i) prepare and, not later than 30 calendar days after the Issue
Date (as defined in the Indenture), file with the Commission an Exchange Offer
Registration Statement on an appropriate form under the Securities Act with
respect to a proposed offer to exchange (the "Registered Exchange Offer") any
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and all of the outstanding Notes (including, if permitted by the then prevailing
interpretations of the staff of the Commission, any Notes held by the Initial
Purchasers having the status of an unsold allotment in the initial distribution)
for a like aggregate principal amount of the Company's 12 3/4% Senior Notes due
2007 (the "Registered Notes");
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(ii) use its best efforts to cause the Exchange Offer
Registration Statement to become effective under the Securities Act as soon as
practicable thereafter, but in no event later than 120 calendar days after the
Issue Date;
(iii) in connection with the foregoing, to file (A) all pre-
effective amendments to such Exchange Offer Registration Statement as may be
necessary in order to cause such Exchange Offer Registration Statement to become
effective and (B) cause all necessary filings, if any, in connection with the
registration and qualification of the Registered Notes to be made under the Blue
Sky laws of such jurisdictions as are necessary to permit Consummation of the
Registered Exchange Offer except that in no event shall the Company be obligated
in connection therewith to qualify as a foreign corporation or to execute a
general consent to service of process or to take any other action that would
subject it to service of process in suits in any jurisdiction other than those
arising out of the offering or sale of the Notes in such jurisdiction pursuant
to such Exchange Offer Registration Statement; and
(iv) upon the effectiveness of the Exchange Offer Registration
Statement, unless it would not be permitted by applicable law or Commission
policy, promptly commence the Registered Exchange Offer to enable each Holder of
the Notes (other than Holders who are affiliates (within the meaning of the
Securities Act) of the Company or underwriters (as defined in the Securities
Act) with respect to the Registered Notes) to exchange the Notes for Registered
Notes.
The Company shall cause the Exchange Offer Registration Statement and the
related Prospectus, as of the effective date of such Exchange Offer
Registration Statement, (i) to comply with the applicable requirements of
the Securities Act and (ii) not to contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
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(b) The Company shall cause the Registered Exchange Offer to be
Consummated in compliance with the Securities Act, the Exchange Act and all
other applicable laws and regulations. No securities other than the Registered
Notes shall be included in the Exchange Offer Registration Statement. The
Company shall use its best efforts to cause the Registered Exchange Offer to be
Consummated within 20 Business Days, but in any event not later than 30 Business
Days, after the effective date of the Exchange Offer Registration Statement.
The Registered Exchange Offer shall be on an appropriate form under the
Securities Act as to permit resales of Registered Notes by delivering the
Prospectus contained in the Exchange Offer Registration Statement.
(c) To the extent necessary to ensure that the Exchange Offer
Registration Statement is available for sales of Registered Notes by Broker-
Dealers, the Company shall use its best efforts to keep the Exchange Offer
Registration Statement continuously effective and to amend and supplement the
Prospectus contained therein in order to permit such Prospectus to be lawfully
delivered by all persons subject to the prospectus delivery requirements of the
Securities Act for a period of up to one year after the Consummation of the
Registered Exchange Offer (or such longer period if extended pursuant to Section
4(c)(ix)).
(d) In connection with the Registered Exchange Offer, the Company
shall:
(i) mail, or cause to be mailed, to each Holder of the Notes a
copy of the Prospectus forming a 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 a period of not
less than 20 Business Days after the date notice thereof is mailed to the
Holders of the Notes (or longer if required by applicable law);
(iii) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan, The City of New
York; and
(iv) permit Holders of the Notes to withdraw tendered Notes at
any time prior to the close of business, New York time, on the last Business Day
on which the Registered Exchange Offer shall remain open (the "Exchange Date").
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(e) As soon as practicable after the Exchange Date, the Company shall:
(i) accept for exchange all Notes duly tendered and not validly
withdrawn pursuant to the Registered Exchange Offer;
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(ii) deliver or cause to be delivered to the Trustee for
cancellation all Notes or portions thereof so accepted for exchange by the
Company;
(iii) execute and deliver to, or cause to be delivered to, the
Trustee for authentication and delivery, Registered Notes in an aggregate
principal amount equal to the aggregate principal amount of the Notes so
accepted for exchange; and
(iv) cause the Trustee to authenticate and deliver promptly to
each Holder of the Notes accepted for exchange, Registered Notes having an
aggregate principal amount at maturity equal to the aggregate principal amount
at maturity of the Notes surrendered by such Holder and accepted for exchange.
Section 3. Shelf Registration.
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(a) If:
(i) the Company is not required to file the Exchange Offer
Registration Statement or 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 prior to the 20th day following commencement of the Exchange Offer that
(a) it is prohibited by law or Commission policy from participating in the
Registered Exchange Offer or (b) that it may not resell the Registered 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) that it is a
Broker-Dealer and owns Notes acquired directly from the Company or an affiliate
of the Company,
then the Company shall take the following actions:
(A) After the occurrence of one of the events described in 3(a)(i)
or (ii), the Company shall prepare and file with the Commission as promptly as
practicable but in no event later than 30 days after the occurrence of one of
the events described in 3(a)(i) or (ii) and in any event within 60 days of the
Issue Date, a Shelf Registration Statement on an appropriate form under the
Securities Act relating to the offer and sale by the Holders of the Notes in
accordance with the methods of distribution set forth in the Shelf Registration
Statement and Rule 415 under the Securities Act (a "Shelf Registration") and use
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its best efforts to cause such Shelf Registration Statement to be declared
effective as promptly as practicable after such filing but in no event later
than 90 calendar days after the occurrence of one of the events described in
3(a)(i) or (ii); and
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(B) The Company shall use its best efforts to keep the Shelf
Registration Statement continuously effective, and agrees to amend or supplement
the prospectus contained therein (and use its best efforts to cause any such
amendment to become and remain effective) in order to permit the prospectus
included therein to be available for resales of, and lawfully delivered by the
Holders of, the Notes covered thereby, until the earlier of (x) the second
anniversary of the Issue Date (or for such longer period if extended pursuant to
Section 4(i)(ix)), (y) such time as all the Notes covered by such Shelf
Registration Statement have been sold pursuant thereto or (z) the date on which
all persons that are not affiliates may resell the Notes pursuant to Rule 144(k)
under the Securities Act or the date on which the Notes otherwise cease to be
Transfer Restricted Securities.
(b) The Company shall cause any Shelf Registration Statement and the
related prospectus and any amendment or supplement thereto, as of the effective
date of such Shelf Registration Statement, amendment or supplement, (i) to
comply in all materials respects with the applicable requirements of the
Securities Act and (ii) not to contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
Section 4. Registration Procedures.
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(a) Registered Exchange Offer. In connection with the Registered
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Exchange Offer:
(i) the Company shall comply with all of the provisions of
Section 4(c) below (other than those that are not applicable);
(ii) prior to effectiveness of the Exchange Offer Registration
Statement, if the Commission so requests, the Company shall make the following
representations (in substantially the form set forth below) to the staff of the
Commission:
(A) that the Company is registering the Registered Notes
and the Registered Exchange Offer in reliance on the position of the staff of
the Commission enunciated in the Exxon Capital Holdings Corporation Commission
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no-action letter (available May 13, 1988) and the Xxxxxx Xxxxxxx and Co., Inc.
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Commission no-action letter (available June 5, 1991), as interpreted in the
Shearman & Sterling Commission no-action letter (available July 2, 1993); and
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(B) that the Company has not entered into any arrangement or
understanding with any person to distribute the Registered Notes to be received
in the Registered Exchange Offer and that, to the best of the Company's
information and belief, each Person participating in the Registered Exchange
Offer is
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acquiring the Registered Notes in its ordinary course of business and has no
arrangement or understanding with any person to participate in the distribution
of the Registered Notes to be received in the Registered Exchange Offer. In this
regard, the Company will make each person participating in the Registered
Exchange Offer aware (through the Prospectus included in the Exchange Offer
Registration Statement or otherwise) that, if the Registered Notes and the
Registered Exchange Offer are being registered for the purpose of secondary
resales of the Registered Notes, any Holder using the Registered Exchange Offer
to participate in a distribution of the Registered Notes (1) could not rely on
the staff position enunciated in such Exxon Capital Holdings Corporation letter
or similar letters and (2) must comply with registration and prospectus delivery
requirements of the Securities Act in connection with any secondary resale
transaction of the Registered Notes. The Company acknowledges that such a
secondary resale transaction should be covered by an effective registration
statement containing the selling security holder information required by Item
507 of Regulation S-K;
(iii) the Company will require each Holder that is a Broker-Dealer
and that is the beneficial owner (as defined in Rule 13d-3 under the Exchange
Act) of Notes acquired for its own account as a result of market-making
activities or other trading activities (a "Participating Broker-Dealer"), to
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include a representation in such Participating Broker-Dealer's letter of
transmittal with respect to the Registered Exchange Offer that such
Participating Broker-Dealer has not entered into any arrangement or
understanding with the Company or any affiliate of the Company to distribute the
Registered Notes;
(iv) the Company (1) will make each Person participating in the
Registered Exchange Offer aware (through the Prospectus included in the Exchange
Offer Registration Statement or otherwise) that any Broker-Dealer who holds
Notes acquired for its own account as a result of market-making activities or
other trading activities, and who receives Registered Notes in exchange for such
Notes pursuant to the Registered Exchange Offer, may be a statutory underwriter
and in connection with any resale of such Registered Notes must deliver a
Prospectus meeting the requirements of the Securities Act and describing the
methods by which Participating Broker-Dealers may resell such Registered Notes,
and (2) will include in the transmittal letter or similar documentation to be
executed by an exchange offeree in order to participate in the Registered
Exchange Offer the following additional provision:
"If the undersigned is a broker-dealer holding Notes acquired for its
own account as a result of market-making activities or other trading
activities, the undersigned hereby acknowledges that it will deliver a
prospectus meeting the requirements of the Securities Act in
connection with any resale of Registered Notes received in respect of
such Notes pursuant to the Registered Exchange Offer"
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and the transmittal letter or similar documentation may also include a
statement to the effect that by so acknowledging and by delivering a
Prospectus, a Broker-Dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act;
(v) as a condition to its participation in the Registered Exchange
Offer pursuant to the terms of this Agreement, each Holder of the Notes who
tenders such Notes pursuant to the Registered Exchange Offer shall furnish a
written representation to the Company (which may be contained in the letter of
transmittal contemplated by the Exchange Offer Registration Statement) to the
effect that by accepting the Registered Exchange Offer, such Holder represents
to the Company that:
(A) it is not an affiliate of the Company (within the
meaning of the Securities Act);
(B) it is not engaged in and does not intend to engage in, and
has no arrangement or understanding with any person to participate in, a
distribution of the Registered Notes to be issued in the Registered Exchange
Offer;
(C) it is acquiring the Registered Notes in its ordinary course
of business; and
(D) if it is a Participating Broker-Dealer holding Notes
acquired for its own account as a result of market-making activities or other
trading activities, it acknowledges that it will deliver a Prospectus meeting
the requirements of the Securities Act in connection with any resale of
Registered Notes received in respect of such Notes pursuant to the Registered
Exchange Offer;
and the transmittal letter or similar documentation may also include a
statement to the effect that by so acknowledging and by delivering a
Prospectus, a Broker-Dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act; and
(vi) the Company shall include within the Prospectus contained in
the Exchange Offer Registration Statement a section entitled "Plan of
Distribution," which shall contain:
(A) a statement substantially to the effect that any Broker-
Dealer and any Holder using the Registered Exchange Offer to participate in a
distribution of the Registered Notes to be acquired in the Registered Exchange
Offer:
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(I) could not under Commission policy as in effect on the
date of this Agreement rely on the position of the Commission enunciated in the
Xxxxxx Xxxxxxx and Co., Inc. Commission no-action letter (available June 5,
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1991) and the Exxon Capital Holdings Corporation Commission no-action letter
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(available May 13, 1988), as interpreted in the to Shearman & Sterling
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Commission no-action letter (available July 2, 1993), and similar no-action
letters, and
(II) must comply with the registration and prospectus
delivery requirements of the Securities Act in connection with a secondary
resale transaction of the Registered Notes and that such a secondary resale
transaction should be covered by an effective registration statement containing
the selling security holder information required by Item 507 or 508, as
applicable, of Regulation S-K under the Securities Act; and
(B) a summary statement of the positions taken or policies made
by the staff of the Commission with respect to the potential "underwriter"
status of any Participating Broker-Dealer.
Such "Plan of Distribution" section shall also allow the use of the
Prospectus by Participating Broker-Dealers for a period of one year from the
Consummation of the Exchange Offer, or such shorter period as will terminate
when all the Notes acquired by Participating Broker-Dealers have been exchanged
for the Registered Notes and resold by such Broker-Dealers, and include a
statement to the effect that any Broker-Dealer who holds Notes acquired for its
own account as a result of market-making activities or other trading activities,
and who receives Registered Notes in exchange for such Notes pursuant to the
Registered Exchange Offer, may be a statutory underwriter and must deliver a
Prospectus meeting the requirements of the Securities Act in connection with any
resale of such Registered Notes and that any profit or commissions received by
such Broker-Dealer may be deemed to be underwriting compensation under the
Securities Act, and describing the means by which Participating Broker-Dealers
may resell the Registered Notes. The "Plan of Distribution" section in the
Prospectus contained in the Exchange Offer Registration Statement shall not name
any such Participating Broker-Dealer or disclose the amount of Notes held by any
such Participating Broker-Dealer except to the extent required by Commission
policy.
(b) Shelf Registration Statement. In connection with any Shelf
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Registration Statement, the Company shall comply with all the provisions of
Section 4(c) below (other than those that are not applicable) and shall effect
such registration to permit the resale of Notes being sold in accordance with
the intended method or methods of distribution set forth in the Shelf
Registration Statement.
(c) Registration Procedures. In connection with any Registration
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Statement and any Prospectus required by this Agreement, the Company shall:
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(i) prepare and file with the Commission a Registration Statement on
the appropriate form under the Securities Act, which form: (x) shall be
selected by the Company; (y) shall, in the case of a Shelf Registration
Statement, be available for the sale of Notes by the selling Holders thereof;
and (z) shall comply as to form with the requirements of the Securities Act, and
include all financial statements required by the Commission to be filed
therewith, and use its best efforts to cause such Registration Statement to
become effective and to keep such Registration Statement continuously effective
for the period provided for in Section 2, in the case of an Exchange Offer
Registration Statement, and for the period provided for in Section 3, in the
case of a Shelf Registration Statement;
(ii) (A) prepare and file with the Commission such amendments and
post-effective amendments to such Registration Statement as may be necessary to
keep such Registration Statement effective for the applicable period set forth
in Section 2 or Section 3, as the case may be; and (B) cause each Prospectus to
be supplemented by any required prospectus supplement, and, as so supplemented,
cause the Prospectus to be filed pursuant to Rule 424 under the Securities Act
and to comply in all material respects with the applicable provisions of Rules
424 and 430A under the Securities Act in a timely manner;
(iii) advise the Initial Purchasers, each Holder of the Notes
included in the Shelf Registration Statement and, with respect to the Exchange
Offer Registration Statement, any Participating Broker-Dealer from whom the
Company has received prior written notice that it will be a Participating
Broker-Dealer in the Registered Exchange Offer:
(A) when each Registration Statement or any amendment thereto
has been filed with the Commission and when each such Registration Statement or
any post-effective amendment thereto has been declared effective;
(B) of any request by the Commission for amendments or
supplements to a Registration Statement or the Prospectus included therein or
for additional information;
(C) of the issuance by the Commission of any stop order
suspending the effectiveness of a Registration Statement or the initiation or
threatening of any proceedings for that purpose;
(D) of the receipt by either of the Company or its legal counsel
of any notification with respect to the suspension of the qualification of the
Notes or the Registered Notes for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose;
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(E) when the prospectus contained in any Registration Statement
may not be used for offers or sales of the Registered Notes because (x) of the
existence of any fact or the happening of any event (including any material non-
public information) that makes untrue any statement of a material fact made in
the Registration Statement, the Prospectus, any amendment or supplement thereto
or any document incorporated by reference therein, or that requires the making
of any additions to or changes in the Registration Statement or the Prospectus
in order to make the statements therein not misleading or (y) such prospectus
shall not contain the current information required by the Securities Act; it
being understood that any notice delivered pursuant to this subparagraph need
not specifically recite the reasons for its delivery, provided that the Company
consults with the Initial Purchasers prior to delivery of such notice as to the
reasons underlying such notice need;
(iv) use its best efforts to prevent the issuance of any order of
the Commission suspending the effectiveness of a Registration Statement; and if
at any time the Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, or any state securities commission
or other regulatory authority shall issue an order suspending the qualification
or exemption from qualification of the Notes or the Registered Notes under state
securities or Blue Sky laws, the Company shall use its best efforts to obtain
the withdrawal of such order at the earliest possible time, and provide prompt
notice of the withdrawal of any such order to each Holder of any Notes included
in the Shelf Registration Statement, and, with respect to the Exchange Offer
Registration Statement, to any Participating Broker-Dealer participating in the
Registered Exchange Offer;
(v) furnish to each of the Initial Purchasers, upon request, and,
in the case of a Shelf Registration, to each Holder of any Notes included in the
Shelf Registration Statement, and counsel to the Initial Purchasers referred to
in Section 6, a reasonable time prior to filing with the Commission, copies of
any Registration Statement or any Prospectus included therein and any amendments
or supplements thereto (including all documents incorporated by reference prior
to the effectiveness of such Registration Statement), which documents, other
than documents incorporated by reference, will be subject to the review of the
Initial Purchasers for a period of at least five Business Days, and the Company
may, in its reasonable discretion, reflect in each such document when so filed
with the Commission, such comments as the Initial Purchasers or such Holders
reasonably may propose within five Business Days after the receipt thereof;
(vi) promptly prior to the filing of any document that is to be
incorporated by reference into a Registration Statement or Prospectus subsequent
to the effectiveness thereof (A) if requested, provide copies of such document
to any Holder of any Notes included in such Registration Statement, to the
Initial Purchasers and (B) make representatives of the Company available for
discussion of such document and other customary due diligence matters, and (C)
the Company may, in
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its reasonable discretion, include such information in such document prior to
the filing thereof as Holders or the Initial Purchasers may reasonably request;
(vi) (A) make available at reasonable times for inspection by
the Initial Purchasers and, in the case of a Shelf Registration, Holders of any
Notes included in such Registration Statement, and any attorney or accountant
retained by such Holder or the Initial Purchasers, or any underwriter
participating in any disposition pursuant to a Shelf Registration Statement, all
relevant financial and other records, pertinent corporate documents and
properties of the Company and (B) cause the officers, directors and employees of
the Company to supply all information reasonably requested by any such Holder,
Initial Purchaser, attorney, accountant or underwriter in connection with such
Registration Statement subsequent to the filing thereof and prior to its
effectiveness, in each case, as is customary for similar due diligence
examinations;
(viii) if requested by any selling Holders in connection with a
Shelf Registration Statement or the Initial Purchasers in connection with market
making activities, (A) promptly incorporate in any Registration Statement or
Prospectus, pursuant to a supplement or post-effective amendment if necessary,
such information as such Holders or the Initial Purchasers may reasonably
request, and to which the Company does not reasonably object, to have included
therein, including, without limitation, information relating to the "Plan of
Distribution" of the Notes, the purchase price being paid therefor and any other
terms of the offering of the Notes to be sold in such offering, and (B) make all
required filings of any such Prospectus supplement or post-effective amendment
as promptly as practicable after the Company is notified of the matters to be
incorporated in such Prospectus supplement or post-effective amendment;
(ix) upon the occurrence of any event of the kind described in
Section 4(c)(iii)(E) or any other event that would cause such Registration
Statement or the Prospectus contained therein not to be effective and usable for
resales of Notes or Registered Notes during the period required by this
Agreement, promptly (except as contemplated by Section 2(c) or 3(a)(ii)(B)
hereof) prepare a post-effective amendment to the applicable Registration
Statement or a supplement to the related Prospectus and use its best efforts to
cause such amendment to be declared effective, or file any other required
document so that the Registration Statement and the Prospectus, as thereafter
delivered to Holders of the Transfer Restricted Securities or the purchasers of
Transfer Restricted Securities, (A) will not contain an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading and (B) will contain all information required by the Securities
Act. If any of the Initial Purchasers, the Holders of any Notes or Registered
Notes covered by a Registration Statement or any known Participating Broker-
Dealer is required by the terms of this Agreement to suspend the use of a
Prospectus until the requisite
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changes to such Prospectus have been made, then the period of effectiveness of
the applicable Shelf Registration Statement provided for in Section 3 and the
Exchange Offer Registration Statement provided for in Section 2 shall each be
extended by the number of days during the period from and including the date
such notice is required to be given under this Agreement to and including the
date when the Initial Purchasers, each selling Holder covered by such
Registration Statement, and any known Participating Broker-Dealer shall have
received an amended or supplemented Prospectus contemplated by this clause (ix)
or shall have received Advice (as defined below) from the Company;
(x) in the case of a Registered Exchange Offer, deliver to each of
the Initial Purchasers one manually signed copy of the Exchange Offer
Registration Statement without charge and with any post-effective amendment
thereto, including financial statements and schedules, and, if the Initial
Purchasers request, all exhibits (including those, if any, incorporated by
reference);
(xi) in the case of a Registered Exchange Offer, deliver to each
of the Initial Purchasers, any Participating Broker-Dealer and such other
persons required to deliver a Prospectus in connection with the offering and
sale of the Registered Notes following the Registered Exchange Offer, without
charge, as many copies of the final Prospectus included in the Exchange Offer
Registration Statement and any amendment or supplement thereto as such persons
may reasonably request, and, in connection therewith, the Company hereby
consents, subject to any notice by the Company in accordance with this Section
4(c) of the existence of any fact or event of the kind described in Section
4(c)(iii)(E), to the use of the Prospectus or any amendment or supplement
thereto by the Initial Purchasers, if necessary, any Participating Broker-Dealer
and such other persons as are required to deliver a Prospectus following the
Registered Exchange Offer in connection with the offering and sale of the
Registered Notes covered by the Prospectus, or any amendment or supplement
thereto, included in such Exchange Offer Registration Statement;
(xii) in the case of a Shelf Registration, furnish to each of the
Initial Purchasers, without charge, one manually signed copy of the Shelf
Registration Statement and any post-effective amendment thereto, including
financial statements and schedules, and, if the recipient Holder so requests,
all exhibits (including those, if any, incorporated by reference);
(xiii) in the case of a Shelf Registration, deliver, without
charge, to each of the Initial Purchasers and each Holder of the Notes included
within the coverage of a Shelf Registration Statement which was declared
effective by the Commission as many copies of the Prospectus (including each
preliminary prospectus) included in such Shelf Registration Statement and any
amendment or supplement thereto as such person may reasonably request, and, in
connection therewith, the Company hereby consents, subject to any notice by the
Company in
-14-
accordance with this Section 4(c) of the existence of any fact or event of the
kind described in Section 4(c)(iii)(E), to the use of the Prospectus or any
amendment or supplement thereto by each of the selling Holders of the Notes in
connection with the offering and sale of the Notes covered by the Prospectus, or
any amendment or supplement thereto, included in such Shelf Registration
Statement;
(xiv) in the case of a Shelf Registration, (A) enter into such
customary agreements and take all such other actions in connection therewith in
order to expedite or facilitate the offering or disposition of the Notes
included in the Shelf Registration Statement, including, but not limited to,
furnishing to the Initial Purchasers and each Holder of any Notes included in
the Shelf Registration Statement, in such substance and scope as they may
request and as are customarily made by issuers to underwriters in primary
underwritten offerings, upon the date of the effectiveness of the Shelf
Registration Statement:
(1) a certificate, dated the date of effectiveness of the Shelf
Registration Statement, signed by (x) the president or chief executive officer
of the Company and (y) the chief financial officer or the principal financial or
accounting officer of the Company, confirming, as of the date thereof, that the
Shelf Registration Statement and the related Prospectus do not contain any
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
as to such other matters as such parties may reasonably request;
(2) opinions, dated the date of effectiveness of the Shelf
Registration Statement, of outside counsel for the Company, covering such
matters as are customarily included in opinions to underwriters in primary
underwritten offerings and as are reasonably requested by such parties; and
(3) a customary comfort letter, dated as of the date of
effectiveness of the Shelf Registration Statement, from the independent
certified public accountants of the Company, in customary form and covering
matters of the type customarily covered in comfort letters by underwriters in
connection with primary underwritten offerings, and addressing, to the extent
relevant, the matters set forth in the Initial Letters (as defined in the
Purchase Agreement) delivered pursuant to the Purchase Agreement;
(B) in the case of an underwriting agreement entered into in
connection with a Shelf Registration, set forth in full indemnification
provisions and procedures substantially in the form of those set forth in
Section 7 hereof with respect to all parties required to be indemnified pursuant
to such Section 7; and
-15-
(C) deliver such other documents and certificates as may be
reasonably requested by such parties to evidence compliance with clause (A)
above.
(xv) prior to any public offering of any Notes pursuant to a
Shelf Registration Statement, (A) cooperate with the selling Holders
participating in a Shelf Registration, and their respective counsel, in
connection with the registration and qualification of the Notes under the
securities or Blue Sky laws of such jurisdictions as the selling Holders may
request, and (B) do any and all other acts or things necessary or advisable to
enable the offering or disposition in such jurisdictions of the Notes, as the
case may be, covered by the Shelf Registration Statement; except that in no
event shall the Company be obligated in connection therewith to qualify as a
foreign corporation or to execute a general consent to service of process or to
take any other action that would subject it to service of process in suits in
any jurisdiction other than those arising out of the offering or sale of Notes
in such jurisdiction pursuant to such Registration Statement;
(xvi) to the extent that any Notes are held in certificated form
and are not represented by global certificates, cooperate with the holders of
such Notes, in connection with the Registered Exchange Offer, to include an
aggregate principal amount of such Notes in a global certificate representing
the Registered Notes, and, to the extent that any Notes or Registered Notes are
not eligible to be held in book-entry form, prepare and deliver Notes or
Registered Notes in certificated form as the Holders may request; provided, in
either case, that the Company will cooperate with participating Broker Dealers
(in the case of a Registered Exchange Offer) and any Holders selling Notes
pursuant to a Shelf Registration Statement, to facilitate the timely delivery of
such certificates (whether in book-entry or certificated form as provided above)
representing such Registered Notes or Notes, as the case may be, to be sold
which do not bear any restrictive legends (other than any customary legend
required by the applicable depository or any legend that would be required by a
Note or Registered Note held by an affiliate of the Company);
(xvii) use its best efforts to cause the Notes or Registered Notes
covered by the Registration Statement to be registered with or approved by such
other governmental agencies or authorities (except as may be required solely as
consequence of a Holder's business) as may be necessary to enable the
Consummation of the Registered Exchange Offer or, in the case of a Shelf
Registration, as may be applicable to the Company with respect to filing and
having declared effective the Shelf Registration Statement;
(xviii) obtain appropriate CUSIP numbers for each series of
Registered Notes not later than the effective date of the Registration Statement
and provide the Trustee with printed certificates for the Notes or Registered
Notes, as the
-16-
case may be, in a form eligible for deposit with The Depository Trust Company,
or with Xxxxxx Guaranty Trust Company of New York, Brussels Office, as operator
of the Euroclear System and Cedel Bank, Societe Anonyme;
(xix) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make generally available
to its security holders, as soon as practicable, an earnings statement meeting
the requirements of Rule 158 (which need not be audited) covering a period of at
least 12 months beginning after the effective date of a Registration Statement;
and
(xx) cause the Indenture to be qualified under the TIA not
later than the effective date of the first Registration Statement required to be
filed by this Agreement, and, in connection therewith: (A) cooperate with the
Trustee and the Holders of Notes to effect such changes to the Indenture as may
be required for such Indenture to be so qualified in accordance with the terms
of the TIA; and (B) execute, and use all reasonable efforts to cause the Trustee
to execute, all documents that may be required to effect such changes and all
other forms and documents required to be filed with the Commission to enable
such Indenture to be so qualified in a timely manner.
The Initial Purchasers, each Holder of Notes included in a Shelf
Registration Statement and each Participating Broker-Dealer using the Prospectus
included in the Exchange Offer Registration Statement for the resale of
Registered Notes, by its acquisition of a Note or a Registered Note, agrees
that, upon receipt of any notice from the Company of the existence of any fact
or event of the kind described in Section 4(c)(iii)(E), the Initial Purchasers,
Holder or Participating Broker-Dealer will forthwith discontinue disposition of
the Notes or the Registered Notes, as applicable, and suspend the use of the
Prospectus until the Initial Purchasers, Holder or Participating Broker-Dealer
have received copies of a supplemented or amended Prospectus as contemplated by
Section 4(c)(ix), or until it is advised in writing by the Company that the use
of the Prospectus may be resumed, and has received copies of any additional or
supplemental filings that are incorporated by reference in the Prospectus. If
so directed by the Company, the Initial Purchasers, each such selling Holder of
Notes or each such Participating Broker-Dealer, as the case may be, will deliver
to the Company (at the expense of the Company) all copies, other than permanent
file copies then in such Holder's, Initial Purchaser's or Participating Broker-
Dealer's possession, of the Prospectus covering such Notes or Registered Notes,
as applicable, that was current at the time of receipt of such notice.
Section 5. Hold-Back Agreements.
--------------------
The Company agrees that neither it nor any affiliate, without the
prior written consent of Bear, Xxxxxxx & Co. Inc., will effect any public or
private sale or distribution (including a sale pursuant to Regulation D under
the Securities Act) of
-17-
any securities the same as or similar to those covered by a Registration
Statement filed pursuant to Section 2 or 3 hereof, or any securities convertible
into or exchange able or exercisable for such securities, from the date of this
Agreement at any time within 180 calendar days after the Issue Date.
Section 6. Registration Expenses.
---------------------
All expenses incident to the Company's performance of or compliance
with its obligations under Sections 2, 3 and 4 of this Agreement will be borne
by the Company regardless of whether a Registration Statement becomes effective,
and, in the case of a Shelf Registration Statement, the Company will reimburse
the Holders covered thereby for the reasonable fees and disbursements of one
counsel, who shall be Xxxxxx & Xxxxxxx, unless another firm shall be designated
by the Holders of a majority of the principal amount of the Notes or such
Registered Notes included in any such Registration Statement.
Section 7. Indemnification and Contribution.
--------------------------------
(a) In connection with any Registration Statement, the Company agrees
to indemnify and hold harmless (i) each of the Initial Purchasers, each
Participating Broker-Dealer and each Holder of Notes to be included in such
Registration Statement, (ii each person, if any, who controls (within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)
such Initial Purchaser, Participating Broker-Dealer or Holder (any of the
persons referred to in this clause (ii) being hereinafter referred to as a
"controlling person") and (ii the respective officers, directors, partners,
-------------------
employees, representatives and agents of any such Initial Purchaser,
Participating Broker-Dealer or Holder or controlling person (any person referred
to in clause (i), (ii) or (iii) may hereinafter be referred to as an
"Indemnified Holder") from and against any and all losses, liabilities, claims,
-------------------
damages and expenses whatsoever as incurred (including, but not limited to,
reasonable attorneys' fees and any and all reasonable expenses whatsoever
incurred in investigating, preparing or defending against any litigation,
commenced or threatened, or any claim whatsoever, and, subject to Section 7(c),
any and all amounts paid in settlement of any claim or litigation), jointly or
severally, to which any such Indemnified Holder may become subject under the
Securities Act, the Exchange Act or otherwise (collectively, "Losses"), insofar
------
as such Losses (or actions or proceedings in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in any Registration Statement or Prospectus, or any amendment or
supplement thereto, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the Company will not be liable in any such
case to the extent, but only to the extent, that any such Loss (or action or
proceeding in respect thereof) arises out of or is based upon an untrue
statement or
-18-
alleged untrue statement in or omission or alleged omission from the
Registration Statement or Prospectus contained therein made in reliance upon and
in conformity with written information furnished to the Company by or on behalf
of such Indemnified Holder expressly for use therein. This indemnity obligation
will be in addition to any liability which the Company may otherwise have to
such Indemnified Holder, including under this Agreement.
(b) The Company hereby also agrees that in connection with any
underwritten offering of Transfer Restricted Securities pursuant to Section 3,
the Company will also indemnify any underwriters, selling brokers, dealers and
similar securities industry professionals participating in the distribution,
their officers, directors, employees, agents, advisors and representatives, and
each controlling person thereof, substantially to the same extent as provided in
Section 7(a) with respect to the indemnification of the Initial Purchasers and
Holder of Transfer Restricted Securities (and such Persons will indemnify the
Company and each controlling person thereof to the same extent as provided in
Section 7(c)).
(c) Each Initial Purchaser will, severally and not jointly, indemnify
and hold harmless the Company, each of the directors of the Company, each of the
officers of the Company and each other person, if any, who controls the Company
(within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act) against any Losses to which they or any of them may become subject
under the Securities Act, the Exchange Act or otherwise, from and against any
Losses insofar as such Losses (or actions or proceedings in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in any Registration Statement or Prospectus
contained therein or any amendment or supplement thereto or the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, but in each case only to the extent that
the untrue statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information furnished
to the Company by or on behalf of such Initial Purchaser specifically for use
therein, and shall reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or preparing
to defend or defending against or appearing as third party witness in connection
with any such Loss as such expenses are incurred.
(d) Promptly after receipt by an indemnified party under subsection
(a) or (c) of this Section 7 of notice of the commencement of any claim or
action, such indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party under such subsection, notify each party
against whom indemnification is to be sought in writing of the commencement
thereof (but the failure so to notify an indemnifying party shall not relieve it
from any liability which it may have under this Section 7 or otherwise). In
case any claim or such action is
-19-
brought against any indemnified party, and such indemnified party notifies an
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate in the defense thereof, and to the extent such
indemnifying party may elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such indemnified party
to assume the defense thereof with counsel reasonably satisfactory to such
indemnified party. Notwithstanding the foregoing, the indemnified party or
parties shall have the right to employ its or their own counsel in any such
case, but the fees and expenses of such counsel shall be at the expense of such
indemnified party or parties unless (a) the employment of such counsel shall
have been authorized in writing by one of the indemnifying parties in connection
with the defense thereof, (b) the indemnifying parties shall not have employed
counsel to have charge of the defense thereof within a reasonable time after
notice of commencement of the action, or (c) such indemnified party or parties
shall have reasonably concluded that there may be defenses available to it or
them which are different from or additional to those available to one or all of
the indemnifying parties (in which case the indemnifying parties shall not have
the right to direct the defense of such action on behalf of the indemnified
party or parties), in any of which events such fees and expenses shall be borne
by the indemnifying parties (it being understood, however, that the indemnifying
party shall not be liable in any one claim or action or separate but
substantially similar or related claims or actions in the same jurisdiction for
the expenses of more than one separate counsel and one additional local
counsel). Anything in this subsection to the contrary notwithstanding, an
indemnifying party shall not be liable for any settlement of any claim or action
effected without its written consent (which consent may not be unreasonably
withheld). No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability or claims that are the subject matter of such proceeding.
(e) If the foregoing indemnification is unavailable or insufficient to
an indemnified party for any reason in respect to any Losses or reimbursable
expenses referred to therein, then in lieu of indemnification, each indemnifying
party shall contribute to the amount paid or payable, including expenses, by
such indemnified party in such proportion as is appropriate to reflect the
relative benefits received (or anticipated to be received) by the indemnifying
party or parties on the one hand and the indemnified party on the other from the
offering of the Notes or Registered Notes, as the case may be, or, if such
allocation is not permitted by applicable law, then in such proportion as is
appropriate to reflect not only the relative benefits received (or anticipated
to be received) but also the relative fault of each of the parties in connection
with the statements or omissions or alleged statements or omissions that
resulted in such Losses, as well as any other relevant equitable considerations.
The relative fault of the parties shall be determined by
-20-
reference to, among other things: (i) whether any losses, claims, damages or
liabilities relate to information supplied by the Company or such Holder of
Notes or such other indemnified person, as the case may be; (ii) the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission; and (iii) any other equitable considerations
appropriate in the circumstances. The Company and each indemnified party agrees
that it would not be just and equitable if the amount of such contribution were
determined by pro rata allocation or by any other method of allocation that does
not take into account the equitable considerations referred to in the first
sentence of this paragraph (e). Notwithstanding any other provision of this
paragraph (e), the Holders of the Notes or Registered Notes shall not be
obligated to make contributions hereunder in any amount in excess of the amount
by which the net proceeds received by such Holders from the sale of the Notes
exceeds the amount of damages which such Holders have otherwise been required to
pay in respect of the same or any substantially similar claim, and no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The obligations of the Holders
to contribute pursuant to this Section 7(e) are several in proportion to the
respective principal amount of Notes or Registered Notes held by each of the
Holders hereunder and not joint. For purposes of this Section 7(e), each
director, officer, employee and agent of any indemnified party and each person,
if any, who controls such indemnified party (within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act) shall have the same rights
to contribution as such indemnified party and each director and officer of the
Company, and each person, if any, who controls the Company (within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act) shall
have the same rights to contribution as the Company.
(f) The foregoing provisions are in addition to any rights that an
indemnified party may have at common law or otherwise. The agreements contained
in this Section 7 shall survive the sale of the Notes or the Registered Notes
pursuant to a Registration Statement and shall remain in full force and effect,
regardless of any termination or cancellation of this Agreement or any
investigation made by or on behalf of any indemnified party.
Section 8. Liquidated Damages.
------------------
The Company and the Initial Purchasers agree that the Holders of
Transfer Restricted Securities will suffer damages if the Company fails to
fulfill its obligations under this Agreement and that it would not be feasible
to ascertain the extent of such damages with precision. Accordingly, in the
event that, for any reason whatsoever: (a) the Company fails to file any of the
Registration Statements required by this Agreement on or before the date
specified for such filing; (b) any of such Registration Statements is not
declared effective by the Commission on or prior to the
-21-
date specified for such effectiveness (the "Effectiveness Target Date"); (c) the
-------------------------
Company fails to consummate the Exchange Offer within 30 Business Days of the
Effectiveness Target Date with respect to the Exchange Offer Registration
Statement; or (d) the Shelf Registration Statement or the Exchange Offer
Registration Statement is declared effective but thereafter ceases to be
effective or usable in connection with resales of Transfer Restricted Securities
during the periods specified in this Agreement (each such event referred to in
clauses (a) through (d) above a "Registration Default"), then the Company will
--------------------
pay, as the exclusive remedy and in lieu of any other damages, liquidated
damages ("Liquidated Damages") to each Holder of Notes, with respect to the
------------------
first 90 calendar day period, or any portion thereof, immediately following the
occurrence of a Registration Default, in an amount equal to 25 basis points per
annum of the principal amount of Notes held by such Holder. The amount of the
Liquidated Damages will increase by an additional 25 basis points per annum of
the principal amount of Notes with respect to each subsequent 90 calendar day
period, or any portion thereof, until all Registration Defaults have been cured,
up to a maximum amount of Liquidated Damages of 100 basis points per annum of
the principal amount of Notes. At such time as no Registration Default is
continuing, the accrual of Liquidated Damages will cease. In the event of any
Registration Default, the Company will provide notice to the Trustee of such
Registration Default, and will cause the Trustee to provide appropriate notice
thereof and of the imposition of the related Liquidated Damages to the Holders
of the Notes.
Section 9. Rule 144.
--------
The Company agrees that to the extent it shall be required to do so
under the Exchange Act, the Company shall timely file the reports required to be
filed by it under the Exchange Act or the Securities Act (including, but not
limited to, the reports under Section 13 and 15(d) of the Exchange Act referred
to in subparagraph (c)(1) of Rule 144 under the Securities Act), and shall take
such further action as any Holder of Transfer Restricted Securities may
reasonably request, all to the extent required from time to time to enable such
Holder to sell Transfer Restricted Securities without registration under the
Securities Act within the limitations of the exemptions provided by Rule 144, as
such Rule may be amended from time to time, or any similar or successor rule or
regulation hereafter adopted by the Commission. Upon the request of any Holder
of Transfer Restricted Securities in connection with the Holder's sale pursuant
to Rule 144, the Company shall deliver to such Holder a written statement as to
whether it has complied with such requirements.
-22-
Section 10. Miscellaneous.
-------------
(a) Amendments and Waivers. The provisions of this Agreement may not
----------------------
be amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, unless the Company has obtained the
written consent of Holders of a majority in aggregate principal amount of
Transfer Restricted Securities; provided that the provisions of Section 7 of
this Agreement may not be amended, modified or supplemented, and waivers or
consents to departures from the provisions thereof may not be given, unless the
Company has obtained the written consent of each Indemnified Holder adversely
affected thereby.
(b) No Inconsistent Agreements. The Company will not, on or after the
--------------------------
date of this Agreement, enter into any agreement with respect to its securities
that is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder are not inconsistent with the rights granted to the holders of
the Company's securities under any agreement in effect on the date hereof.
(c) Notices. All notices and other communications provided for or
-------
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), or courier guaranteeing
overnight delivery:
(i) if to a Holder, at the address set forth on the records of
the Registrar under the Indenture, with a copy to the Registrar under the
Indenture; and
(ii) if to the Initial Purchasers or the Company, at their
respective addresses set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; three
Business Days after being deposited in the mail, postage prepaid, if
mailed; and on the day delivered, if sent by overnight air courier
guaranteeing next day delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(d) Successors and Assigns. This Agreement shall inure to the benefit
----------------------
of and be binding upon the successors and assigns of each of the parties,
including, without limitation and without the need for an express assignment,
subsequent Holders of Transfer Restricted Securities.
(e) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
-23-
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
-------------
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK FOR CONTRACTS MADE AND TO
BE FULLY PERFORMED IN SUCH STATE AND WITHOUT REGARD TO THE PRINCIPLES OF
CONFLICT OF LAWS THEREOF.
(h) Submission to Jurisdiction. (i) The Company:
--------------------------
(x) irrevocably submits to the jurisdiction of any New York State
or federal court sitting in New York City and any appellate court from any
thereof in any action or proceeding arising out of or relating to this Agreement
or any other document delivered hereunder;
(y) irrevocably agrees that all claims in respect of any such
action or proceeding may be heard and determined in such New York State court or
in such federal court; and
(z) irrevocably waives, to the fullest extent permitted by law,
the defense of an inconvenient forum to the maintenance of such action or
proceeding and irrevocably consents, to the fullest extent permitted by law, to
service of process of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to the Company at its address as provided in Section 10(c) of
this Agreement, such service to become effective five days after such mailing;
(ii) Nothing in this Section shall affect the right of any person to
serve legal process in any other manner permitted by law or affect the right of
any person to bring any action or proceeding against the Company or their
properties in the courts of other jurisdictions.
(i) 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 the remaining provisions contained
herein shall not, to the fullest extent permitted by law, be affected or
impaired thereby.
-24-
(j) Third Party Beneficiaries. Holders of the Notes and Registered
-------------------------
Notes and each Indemnified Holder are intended third party beneficiaries of this
Agreement and this Agreement may be enforced by such persons.
(k) Entire Agreement. This Agreement, together with the Purchase
----------------
Agreement, is intended by the parties as a final expression of their agreement
and is intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein. There are no restrictions, promises. warranties or undertakings, other
than those set forth or referred to herein, with respect to the registration
rights granted by the Company with respect to the Transfer Restricted
Securities. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
-25-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
ARCH COMMUNICATIONS, INC.
/s/ J. Xxx Xxxxxx
By:__________________________________
Name: J. Xxx Xxxxxx
Title: Executive Vice President and
Chief Financial Officer
BEAR, XXXXXXX & CO. INC.
/s/ Xxxxx X. Xxxx
By:__________________________________
Name: Xxxxx X. Xxxx
Title: Senior Managing Director
BARCLAYS CAPITAL INC.
/s/ Xxxxxx X. Xxxxxxxx
By:__________________________________
Name: Xxxxxx X. Xxxxxxxx
Title: Director
RBC DOMINION SECURITIES CORPORATION
/s/ Xxxxxxx X. Xxxx
By:__________________________________
Name: Xxxxxxx X. Xxxx
Title: Vice President and Director
BNY CAPITAL MARKETS, INC.
/s/ Xxxx X. Xxx
By:__________________________________
Name: Xxxx X. Xxx
Title: Managing Director
TD SECURITIES (USA) INC.
/s/ Xxxxxx. X. Xxxxx
By:_________________________________
Name: Xxxxxx. X. Xxxxx
Title: Managing Director
-26-
