EXHIBIT 4.2
EXECUTION COPY
ALASKA COMMUNICATIONS SYSTEMS HOLDINGS, INC.
$182,000,000
9 7/8% Senior Notes due 2011
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
August 26, 2003
X.X. Xxxxxx Securities Inc.
CIBC World Markets Corp.
Citigroup Global Markets Inc.
Xxxxxxxx & Company, Inc.
Xxxxxxx Xxxxx & Associates, Inc.
c/o X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx, 0xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Alaska Communications Systems Holdings, Inc., a Delaware
corporation (the "Company"), proposes to issue and sell to X.X. Xxxxxx
Securities Inc. ("JPMorgan"), CIBC World Markets Corp., Citigroup Global Markets
Inc., Xxxxxxx & Company, Inc. and Xxxxxxx Xxxxx & Associates, Inc. (together
with JPMorgan, the "Initial Purchasers"), upon the terms and subject to the
conditions set forth in a purchase agreement dated August 15, 2003 (the
"Purchase Agreement"), $182,000,000 aggregate principal amount of its 9 7/8%
Senior Notes due 2011 (the "Securities") to be jointly and severally guaranteed
on a senior basis by certain of the Company's subsidiaries signatory hereto (the
"Subsidiary Guarantors") and Alaska Communications Systems Group, Inc.
("Parent", together with the Subsidiary Guarantors, the "Guarantors").
Capitalized terms used but not defined herein shall have the meanings given to
such terms in the Purchase Agreement.
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As an inducement to the Initial Purchasers to enter into the
Purchase Agreement and in satisfaction of a condition to the obligations of the
Initial Purchasers thereunder, the Company and the Guarantors agree with the
Initial Purchasers, for the benefit of the holders (including the Initial
Purchasers) of the Securities and the Exchange Securities (as defined in Section
1) (collectively, the "Holders"), as follows:
1. Registered Exchange Offer. The Company and the
Guarantors shall (i) prepare and, not later than 90 days following the date of
original issuance of the Securities (the "Issue Date"), file with the Commission
a registration statement (the "Exchange Offer Registration Statement") on an
appropriate form under the Securities Act with respect to a proposed offer to
the Holders of the Securities (the "Registered Exchange Offer") to issue and
deliver to such Holders, in exchange for the Securities, a like aggregate
principal amount of debt securities of the Company (the "Exchange Securities")
that are identical in all material respects to the Securities, except for the
transfer restrictions relating to the Securities, (ii) use their reasonable best
efforts to cause the Exchange Offer Registration Statement to become effective
under the Securities Act no later than 150 days after the Issue Date and the
Registered Exchange Offer to be consummated no later than 180 days after the
Issue Date and (iii) keep the Exchange Offer Registration Statement effective
for not less than 30 days (or longer, if required by applicable law) after the
date on which notice of the Registered Exchange Offer is mailed to the Holders
(such period being called the "Exchange Offer Registration Period"). The
Exchange Securities will be issued under the Indenture or an indenture (the
"Exchange Securities Indenture") between the Company, the Guarantors and the
Trustee or such other bank or trust company that is reasonably satisfactory to
the Initial Purchasers, as trustee (the "Exchange Securities Trustee"), such
indenture to be identical in all material respects to the Indenture, except for
the transfer restrictions relating to the Securities (as described above).
Upon the effectiveness of the Exchange Offer Registration
Statement, the Company shall promptly commence the Registered Exchange Offer, it
being the objective of such Registered Exchange Offer to enable each Holder
electing to exchange Securities for Exchange Securities (assuming that such
Holder (a) is not an affiliate of the Company or an Exchanging Dealer (as
defined below) not complying with the requirements of the next sentence, (b) is
not an Initial Purchaser holding Securities that have, or that are reasonably
likely to have, the status of an unsold allotment in an initial distribution,
(c) acquires the Exchange Securities in the ordinary course of such Holder's
business and (d) has no arrangements or understandings with any person to
participate in the distribution of the Exchange Securities) and to trade such
Exchange Securities from and after their receipt without any limitations or
restrictions under the Securities Act and without material restrictions under
the securities laws of the several states of the United States. The Company, the
Guarantors, the Initial Purchasers and each Exchanging Dealer acknowledge that,
pursuant to current interpretations by the Commission's staff of Section 5 of
the Securities Act, (i) each Holder that is a broker-dealer electing to exchange
Securities, acquired for its own account as a result of market-making activities
or other trading activities, for Exchange Securities (an "Exchanging Dealer"),
is required to deliver a prospectus containing substantially the information set
forth in Annex A hereto on the cover, in Annex B hereto in the "Exchange Offer
Procedures" section and
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the "Purpose of the Exchange Offer" section and in Annex C hereto in the "Plan
of Distribution" section of such prospectus in connection with a sale of any
such Exchange Securities received by such Exchanging Dealer pursuant to the
Registered Exchange Offer and (ii) if any Initial Purchaser elects to sell
Exchange Securities acquired in exchange for Securities constituting any portion
of an unsold allotment, such Initial Purchaser will be required to deliver a
prospectus containing the information required by Items 507 and 508 of
Regulation S-K under the Securities Act, as applicable, in connection with such
sale.
In connection with the Registered Exchange Offer, the Company
shall:
(a) mail to each Holder a copy of the prospectus forming
part of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less
than 30 days (or longer, if required by applicable law) after the date
on which notice of the Registered Exchange Offer is mailed to the
Holders;
(c) utilize the services of a depositary for the
Registered Exchange Offer with an address in the Borough of Manhattan,
The City of New York;
(d) permit Holders to withdraw tendered Securities at any
time prior to the close of business, New York City time, on the last
business day on which the Registered Exchange Offer shall remain open;
and
(e) otherwise comply in all material respects with all
laws that are applicable to the Registered Exchange Offer.
As soon as practicable after the close of the Registered
Exchange Offer the Company shall:
(a) accept for exchange all Securities tendered and not
validly withdrawn pursuant to the Registered Exchange Offer;
(b) deliver to the Trustee for cancelation all Securities
so accepted for exchange; and
(c) cause the Trustee or the Exchange Securities Trustee,
as the case may be, promptly to authenticate and deliver to each Holder
Exchange Securities equal in principal amount to the Securities of such
Holder so accepted for exchange.
The Company and the Guarantors shall use their reasonable best
efforts to keep the Exchange Offer Registration Statement effective and to amend
and supplement the prospectus contained therein in order to permit such
prospectus to be used by all persons subject to the prospectus delivery
requirements of the Securities Act for such period of time as such persons must
comply with such requirements in order to resell the
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Exchange Securities; PROVIDED that (i) in the case where such prospectus and any
amendment or supplement thereto must be delivered by an Exchanging Dealer, such
period shall be the period beginning on the date on which the Exchange Offer
Registration Statement is declared effective and ending on the earlier to occur
of (x) the date that is 180 days after the date on which the Exchange Offer
Registration Statement is declared effective and (y) the date on which all
Exchanging Dealers have sold all Exchange Securities held by them and (ii) the
Company shall make such prospectus and any amendment or supplement thereto
available to any broker-dealer for use in connection with any resale of any
Exchange Securities for a period of not less than 180 days after the
consummation of the Registered Exchange Offer.
The Indenture or the Exchange Securities Indenture, as the
case may be, shall provide that the Securities, the Exchange Securities and
shall vote and consent together on all matters as one class and that none of the
Securities or the Exchange Securities will have the right to vote or consent as
a separate class on any matter.
Interest on each Exchange Security issued pursuant to the
Registered Exchange Offer will accrue from the last interest payment date on
which interest was paid on the Securities surrendered in exchange therefor or,
if no interest has been paid on the Securities, from the Issue Date.
Each Holder participating in the Registered Exchange Offer
shall be required to represent to the Company that at the time of the
consummation of the Registered Exchange Offer (i) any Exchange Securities
received by such Holder will be acquired in the ordinary course of business,
(ii) such Holder will have no arrangements or understanding with any person to
participate in the distribution of the Securities or the Exchange Securities
within the meaning of the Securities Act and (iii) such Holder is not an
affiliate of the Company or, if it is such an affiliate, such Holder will comply
with the registration and prospectus delivery requirements of the Securities Act
to the extent applicable.
Notwithstanding any other provisions hereof, the Company and
the Guarantors will ensure that (i) any Exchange Offer Registration Statement
and any amendment thereto and any prospectus forming part thereof and any
supplement thereto complies in all material respects with the Securities Act and
the rules and regulations of the Commission thereunder, (ii) any Exchange Offer
Registration Statement and any amendment thereto does not, when it becomes
effective, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading and (iii) any prospectus forming part of any Exchange
Offer Registration Statement, and any supplement to such prospectus, does not,
as of the consummation of the Registered Exchange Offer, include an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
2. SHELF REGISTRATION. If (i) because of any change in
law or the applicable interpretations thereof by the Commission's staff the
Company is not permitted to effect the Registered Exchange Offer as contemplated
by Section 1 hereof,
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or (ii) any Securities validly tendered pursuant to the Registered Exchange
Offer are not exchanged for Exchange Securities on or prior to 180 days after
the Issue Date, or (iii) any Initial Purchaser so requests on or prior to the
20th business day following the date on which the Registered Exchange Offer is
consummated with respect to Securities not eligible to be exchanged for Exchange
Securities in the Registered Exchange Offer and held by it following the
consummation of the Registered Exchange Offer, or (iv) any law or the applicable
interpretations thereof by the Commission's staff do not permit any Holder to
participate in the Registered Exchange Offer, or (v) any Holder that
participates in the Registered Exchange Offer and does not receive freely
transferable Exchange Securities in exchange for tendered Securities so requests
with respect to such Securities on or prior to the 20th business day following
the date on which the Registered Exchange Offer is consummated, or (vi) the
Company so elects, then the following provisions shall apply:
(a) The Company and the Guarantors shall use their
reasonable best efforts to file as promptly as practicable (but in no
event more than 45 days after so required or requested pursuant to this
Section 2) with the Commission, and thereafter shall use their
reasonable best efforts to cause to be declared effective, a shelf
registration statement on an appropriate form under the Securities Act
relating to the offer and sale of the Transfer Restricted Securities
(as defined in Section 3(a)) by the Holders thereof from time to time
in accordance with the methods of distribution set forth in such
registration statement (hereafter, a "Shelf Registration Statement"
and, together with any Exchange Offer Registration Statement, a
"Registration Statement"); PROVIDED that no Holder (other than each
Initial Purchaser) shall be entitled to have any Securities held by
such Holder covered by such Shelf Registration Statement unless such
Holder agrees in writing to be bound by the provisions of this
Agreement applicable to such Holder.
(b) The Company and the Guarantors shall use their
reasonable best efforts to keep the Shelf Registration Statement
continuously effective in order to permit the prospectus forming part
thereof to be used by Holders of Transfer Restricted Securities for a
period ending on the earlier of (i) two years from the Issue Date or
such shorter period that will terminate when all the Transfer
Restricted Securities covered by the Shelf Registration Statement have
been sold pursuant thereto and (ii) the date on which the Securities
become eligible for resale without volume restrictions pursuant to Rule
144 under the Securities Act (in any such case, such period being
called the "Shelf Registration Period"). The Company and the Guarantors
shall be deemed not to have used their reasonable best efforts to keep
the Shelf Registration Statement effective during the requisite period
if any of them voluntarily take any action that results in Holders of
Transfer Restricted Securities covered thereby not being able to offer
and sell such Transfer Restricted Securities during that period, unless
(i) such action is required by law or the applicable interpretations
thereof by the Commission's staff or (ii) such action is taken by the
Company and the Guarantors in good faith and for valid business reasons
(not including avoidance of their obligations hereunder), provided that
the Company and the Guarantors on or prior to 60 days
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thereafter comply with the requirements of Section 4(j) hereof. Any
such period during which the Company and Guarantors fail to keep the
Shelf Registration Statement effective and usable for offers and sales
of Securities and Exchange Securities is referred to as a "Suspension
Period". A Suspension Period shall commence on and include the date the
Company and the Guarantors give notice that the Shelf Registration
Statement is no longer effective or the prospectus included therein is
no longer usable for offers and sales of Securities and Exchange
Securities and shall end on the date when each Holder of Securities and
Exchange Securities covered by such Shelf Registration Statement either
receives copies of the supplemented or amended prospectus or other
document contemplated by Section 4(j) hereof or is advised in writing
by the Company and the Guarantors that use of the prospectus may be
resumed. If more than one Suspension Period occurs during any period of
360 consecutive days, then the Company and the Guarantors will be
jointly and severally obligated to pay Additional Interest (as defined
in Section 3(a)), in accordance with the provisions of Section 3, to
each Holder of Transfer Restricted Securities during each such
Suspension Period in an amount equal to $0.192 per week per $1,000
principal amount of Transfer Restricted Securities held by such Holder.
If one or more Suspension Periods occur, the two-year time period
referenced in the first sentence of this Section 2(b) shall be extended
by the number of days included in each such Suspension Period.
(c) Notwithstanding any other provisions hereof, the
Company and the Guarantors will ensure that (i) any Shelf Registration
Statement and any amendment thereto and any prospectus forming part
thereof and any supplement thereto complies in all material respects
with the Securities Act and the rules and regulations of the Commission
thereunder, (ii) any Shelf Registration Statement and any amendment
thereto (in either case, other than with respect to information
included therein in reliance upon or in conformity with written
information furnished to the Company by or on behalf of any Holder
specifically for use therein (the "Holders' Information")) does not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading and (iii) any prospectus forming part
of any Shelf Registration Statement, and any supplement to such
prospectus (in either case, other than with respect to Holders'
Information), does not include an untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
3. ADDITIONAL INTEREST. (a) The parties hereto agree
that the Holders of Transfer Restricted Securities will suffer damages if the
Company and the Guarantors fail to fulfill their obligations under Section 1 or
Section 2, as applicable, and that it would not be feasible to ascertain the
extent of such damages. Accordingly, if (i) the Shelf Registration Statement is
not declared effective on or prior to 180 days after the Issue Date (or in the
case of a Shelf Registration Statement required to be filed in response to a
change in law or the applicable interpretations of Commission's staff, if later,
on or prior to 60 days after publication of the change in law or
interpretation), (ii)
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the Registered Exchange Offer is not consummated on or prior to 180 days after
the Issue Date, or (iii) the Shelf Registration Statement is filed and declared
effective on or prior to 180 days after the Issue Date (or in the case of a
Shelf Registration Statement required to be filed in response to a change in law
or the applicable interpretations of Commission's staff, if later, on or prior
to 60 days after publication of the change in law or interpretation) but shall
thereafter cease to be effective (at any time that the Company and the
Guarantors are obligated to maintain the effectiveness thereof) without being
succeeded within 45 days by an additional Registration Statement filed and
declared effective (each such event referred to in clauses (i) through (iii), a
"Registration Default"), the Company and the Guarantors will be jointly and
severally obligated to pay additional interest (collectively referred to herein
as "Additional Interest") to each Holder of Transfer Restricted Securities,
during the period of one or more such Registration Defaults, in an amount equal
to $ 0.192 per week per $1,000 principal amount of Transfer Restricted
Securities held by such Holder until (i) the Registered Exchange Offer is
consummated, (ii) the Shelf Registration Statement is declared effective or
(iii) the Shelf Registration Statement again becomes effective, as the case may
be. Following the cure of all Registration Defaults, the accrual of Additional
Interest will cease. As used herein, the term "Transfer Restricted Securities"
means (i) each Security until the date on which such Security has been exchanged
for a freely transferable Exchange Security in the Registered Exchange Offer,
(ii) each Security until the date on which it has been effectively registered
under the Securities Act and disposed of in accordance with the Shelf
Registration Statement or (iii) each Security until the date on which it is
distributed to the public pursuant to Rule 144 under the Securities Act or is
saleable pursuant to Rule 144(k) under the Securities Act. Notwithstanding
anything to the contrary in this Section 3(a), the Company and the Guarantors
shall not be required to pay Additional Interest to a Holder of Transfer
Restricted Securities if such Holder failed to comply with its obligations to
make the representations set forth in the second to last paragraph of Section 1
or failed to provide the information required to be provided by it, if any,
pursuant to Section 4(n).
(b) The Company shall notify the Trustee and the Paying
Agent under the Indenture immediately upon the happening of each and
every Registration Default. The Company and the Guarantors shall pay
the Additional Interest due on the Transfer Restricted Securities by
depositing with the Paying Agent (which may not be the Company for
these purposes), in trust, for the benefit of the Holders thereof,
prior to 10:00 a.m., New York City time, on the next interest payment
date specified by the Indenture and the Securities, sums sufficient to
pay the Additional Interest then due. The Additional Interest due shall
be payable on each interest payment date specified by the Indenture and
the Securities to the record holder entitled to receive the interest
payment to be made on such date. Each obligation to pay Additional
Interest shall be deemed to accrue from and including the date of the
applicable Registration Default.
(c) The parties hereto agree that the Additional Interest
provided for in this Section 3 constitute a reasonable estimate of and
are intended to constitute the sole damages that will be suffered by
Holders of Transfer Restricted Securities by reason of the failure of
(i) the Shelf Registration Statement or the Exchange Offer
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Registration Statement to be filed, (ii) the Shelf Registration
Statement to remain effective or (iii) the Exchange Offer Registration
Statement to be declared effective and the Registered Exchange Offer to
be consummated, in each case to the extent required by this Agreement.
4. REGISTRATION PROCEDURES. In connection with any
Registration Statement, the following provisions shall apply:
(a) The Company shall (i) furnish to each Initial
Purchaser, prior to the filing thereof with the Commission, a copy of
the Registration Statement and each amendment thereof and each
supplement, if any, to the prospectus included therein and shall use
its reasonable best efforts to reflect in each such document, when so
filed with the Commission, such comments as any Initial Purchaser may
reasonably propose; (ii) include the information set forth in Annex A
hereto on the cover, in Annex B hereto in the "Exchange Offer
Procedures" section and the "Purpose of the Exchange Offer" section and
in Annex C hereto in the "Plan of Distribution" section of the
prospectus forming a part of the Exchange Offer Registration Statement,
and include the information set forth in Annex D hereto in the Letter
of Transmittal delivered pursuant to the Registered Exchange Offer; and
(iii) if requested by any Initial Purchaser, include the information
required by Items 507 or 508 of Regulation S-K, as applicable, in the
prospectus forming a part of the Exchange Offer Registration Statement.
(b) The Company shall advise each Initial Purchaser, each
Exchanging Dealer and the Holders (if applicable) and, if requested by
any such person, confirm such advice in writing (which advice pursuant
to clauses (ii)-(v) hereof shall be accompanied by an instruction to
suspend the use of the prospectus until the requisite changes have been
made):
(i) when any Registration Statement and any
amendment thereto has been filed with the Commission and when
such Registration Statement or any post-effective amendment
thereto has become effective;
(ii) of any request by the Commission for
amendments or supplements to any Registration Statement or the
prospectus included therein or for additional information;
(iii) of the issuance by the Commission of any
stop order suspending the effectiveness of any Registration
Statement or the initiation of any proceedings for that
purpose;
(iv) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of the Securities or the Exchange Securities for
sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose; and
(v) of the happening of any event that requires
the making of any changes in any Registration Statement so
that (A) the Registration
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Statement and any amendment thereto does not, when it becomes
effective, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or (B)
any prospectus forming part of any Registration Statement, and
any supplement to such prospectus, does not include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading.
(c) The Company and the Guarantors will use their
reasonable best efforts to obtain the withdrawal at the earliest
possible time of any order suspending the effectiveness of any
Registration Statement.
(d) The Company will furnish to each Holder of Transfer
Restricted Securities included within the coverage of any Shelf
Registration Statement, without charge, at least one conformed copy of
such Shelf Registration Statement and any post-effective amendment
thereto, including financial statements and schedules and, if any such
Holder so requests in writing, all exhibits thereto (including those,
if any, incorporated by reference).
(e) The Company will, during the Shelf Registration
Period, promptly deliver to each Holder of Transfer Restricted
Securities included within the coverage of any Shelf Registration
Statement, without charge, as many copies of the prospectus (including
each preliminary prospectus) included in such Shelf Registration
Statement and any amendment or supplement thereto as such Holder may
reasonably request; and the Company consents to the use of such
prospectus or any amendment or supplement thereto by each of the
selling Holders of Transfer Restricted Securities in connection with
the offer and sale of the Transfer Restricted Securities covered by
such prospectus or any amendment or supplement thereto.
(f) The Company will furnish to each Initial Purchaser
and each Exchanging Dealer, and to any other Holder who so requests,
without charge, at least one conformed copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto,
including financial statements and schedules and, if any Initial
Purchaser or Exchanging Dealer or any such Holder so requests in
writing, all exhibits thereto (including those, if any, incorporated by
reference).
(g) The Company will, during the Exchange Offer
Registration Period or the Shelf Registration Period, as applicable,
promptly deliver to each Initial Purchaser, each Exchanging Dealer and
such other persons that are required to deliver a prospectus following
the Registered Exchange Offer, without charge, as many copies of the
final prospectus included in the Exchange Offer Registration Statement
or the Shelf Registration Statement and any amendment or supplement
thereto as such Initial Purchaser, Exchanging Dealer or other persons
may reasonably request; and the Company and the Guarantors consent to
the use of
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such prospectus or any amendment or supplement thereto by any such
Initial Purchaser, Exchanging Dealer or other persons, as applicable,
as aforesaid.
(h) Prior to the effective date of any Registration
Statement, the Company and the Guarantors will use their reasonable
best efforts to register or qualify, or cooperate with the Holders of
Securities or Exchange Securities included therein and their respective
counsel in connection with the registration or qualification of, such
Securities or Exchange Securities for offer and sale under the
securities or blue sky laws of such jurisdictions as any such Holder
reasonably requests in writing and do any and all other acts or things
necessary or advisable to enable the offer and sale in such
jurisdictions of the Securities or Exchange Securities covered by such
Registration Statement; PROVIDED that the Company and the Guarantors
will not be required to qualify generally to do business in any
jurisdiction where they are not then so qualified or to take any action
which would subject them to general service of process or to taxation
in any such jurisdiction where they are not then so subject.
(i) The company and the Guarantors will cooperate with
the Holders of Securities or Exchange Securities to facilitate the
timely preparation and delivery of certificates representing Securities
or Exchange Securities to be sold pursuant to any Registration
Statement free of any restrictive legends and in such denominations and
registered in such names as the Holders thereof may request in writing
prior to sales of Securities or Exchange Securities pursuant to such
Registration Statement.
(j) If any event contemplated by Section 4(b)(ii) through
(v) occurs during the period for which the Company and the Guarantors
are required to maintain an effective Registration Statement, the
Company and the Guarantors will promptly prepare and file with the
Commission a post-effective amendment to the Registration Statement or
a supplement to the related prospectus or file any other required
document so that, as thereafter delivered to purchasers of the
Securities or Exchange Securities from a Holder, the prospectus will
not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(k) Not later than the effective date of the applicable
Registration Statement, the Company will provide CUSIP and ISIN numbers
for the Securities and the Exchange Securities, as the case may be, and
provide the applicable trustee with printed certificates for the
Securities or the Exchange Securities, as the case may be, in a form
eligible for deposit with The Depository Trust Company.
(l) The Company and the Guarantors will comply in all
material respects with all applicable rules and regulations of the
Commission and the Company will make generally available to its
security holders as soon as practicable after the effective date of the
applicable Registration Statement an
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earning statement satisfying the provisions of Section 11(a) of the
Securities Act; PROVIDED that in no event shall such earning statement
be delivered later than 45 days after the end of a 12-month period (or
90 days, if such period is a fiscal year) beginning with the first
month of the Company's first fiscal quarter commencing after the
effective date of the applicable Registration Statement, which
statement shall cover such 12-month period.
(m) The Company and the Guarantors will cause the
Indenture or the Exchange Securities Indenture, as the case may be, to
be qualified under the Trust Indenture Act as required by applicable
law in a timely manner.
(n) The Company may require each Holder of Transfer
Restricted Securities to be registered pursuant to any Shelf
Registration Statement to furnish to the Company such information
concerning the Holder and the distribution of such Transfer Restricted
Securities as the Company may from time to time reasonably require for
inclusion in such Shelf Registration Statement, and the Company may
exclude from such registration the Transfer Restricted Securities of
any Holder that fails to furnish such information within a reasonable
time after receiving such request.
(o) In the case of a Shelf Registration Statement, each
Holder of Transfer Restricted Securities to be registered pursuant
thereto agrees by acquisition of such Transfer Restricted Securities
that, upon receipt of any notice from the Company pursuant to Section
4(b)(ii) through (v), such Holder will discontinue disposition of such
Transfer Restricted Securities until such Holder's receipt of copies of
the supplemental or amended prospectus or other document contemplated
by Section 4(j) or until advised in writing (the "Advice") by the
Company that the use of the applicable prospectus may be resumed. If
the Company shall give any notice under Section 4(b)(ii) through (v)
during the period that the Company is required to maintain an effective
Registration Statement (the "Effectiveness Period"), such Effectiveness
Period shall be extended by the number of days during such period from
and including the date of the giving of such notice to and including
the date when each seller of Transfer Restricted Securities covered by
such Registration Statement shall have received (x) the copies of the
supplemental or amended prospectus or other document contemplated by
Section 4(j) (if an amended or supplemental prospectus or other
document is required) or (y) the Advice (if no amended or supplemental
prospectus or other document is required).
(p) In the case of a Shelf Registration Statement, the
Company and the Guarantors shall enter into such customary agreements
(including, if requested, an underwriting agreement in customary form)
and take all such other action, if any, as Holders of a majority in
aggregate principal amount of the Securities and Exchange Securities
being sold or the managing underwriters (if any) shall reasonably
request in order to facilitate any disposition of Securities or
Exchange Securities pursuant to such Shelf Registration Statement.
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(q) In the case of a Shelf Registration Statement, the
Company shall (i) make reasonably available for inspection by a
representative of, and Special Counsel (as defined in Section 5) acting
for, Holders of a majority in aggregate principal amount of the
Securities and Exchange Securities being sold and any underwriter
participating in any disposition of Securities or Exchange Securities
pursuant to such Shelf Registration Statement, all relevant financial
and other records, pertinent corporate documents and properties of the
Company and the Guarantors and (ii) use its reasonable best efforts to
have its officers, directors, employees, accountants and counsel supply
all relevant information reasonably requested by such representative,
Special Counsel or any such underwriter (an "Inspector") in connection
with such Shelf Registration Statement, in either case to the extent
reasonably requested by such representative, Special Counsel or
underwriter for the purpose of conducting customary due diligence with
respect to the Company and the Guarantors.
(r) In the case of a Shelf Registration Statement, the
Company shall, if requested by Holders of a majority in aggregate
principal amount of the Securities and Exchange Securities being sold,
their Special Counsel or the managing underwriters (if any) in
connection with such Shelf Registration Statement, use its reasonable
best efforts to cause (i) its counsel to deliver an opinion relating to
the Shelf Registration Statement and the Securities or Exchange
Securities, as applicable, in customary form, (ii) its officers to
execute and deliver all customary documents and certificates requested
by Holders of a majority in aggregate principal amount of the
Securities and Exchange Securities being sold, their Special Counsel or
the managing underwriters (if any) and (iii) its independent public
accountants to provide a comfort letter or letters in customary form,
subject to receipt of appropriate documentation as contemplated, and
only if permitted, by Statement of Auditing Standards No. 72.
5. REGISTRATION EXPENSES. The Company and the Guarantors
will jointly and severally bear all expenses incurred in connection with the
performance of its obligations under Sections 1, 2, 3 and 4 and the Company will
reimburse the Initial Purchasers and the Holders for the reasonable fees and
disbursements of one firm of attorneys (in addition to any local counsel) chosen
by the Holders of a majority in aggregate principal amount of the Securities and
the Exchange Securities to be sold pursuant to each Registration Statement (the
"Special Counsel") acting for the Initial Purchasers or Holders in connection
therewith.
6. INDEMNIFICATION. (a) In the event of a Shelf
Registration Statement or in connection with any prospectus delivery pursuant to
an Exchange Offer Registration Statement by an Initial Purchaser or Exchanging
Dealer, as applicable, the Company and the Guarantors shall jointly and
severally indemnify and hold harmless each Holder (including, without
limitation, any such Initial Purchaser or Exchanging Dealer), its affiliates,
their respective officers, directors, employees, representatives and agents, and
each person, if any, who controls such Holder within the meaning of the
Securities Act or the Exchange Act (collectively referred to for purposes of
this Section 6 and Section 7 as a Holder) from and against any loss, claim,
damage or liability, joint or several, or any
13
action in respect thereof (including, without limitation, any loss, claim,
damage, liability or action relating to purchases and sales of Securities or
Exchange Securities), to which that Holder may become subject, whether commenced
or threatened, under the Securities Act, the Exchange Act, any other federal or
state statutory law or regulation, at common law or otherwise, insofar as such
loss, claim, damage, liability or action arises out of, or is based upon, (i)
any untrue statement or alleged untrue statement of a material fact contained in
any such Registration Statement or any prospectus forming part thereof or in any
amendment or supplement thereto or (ii) the omission or alleged omission to
state therein 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, and shall reimburse each Holder promptly
upon demand for any legal or other expenses reasonably incurred by that Holder
in connection with investigating or defending or preparing to defend against or
appearing as a third party witness in connection with any such loss, claim,
damage, liability or action as such expenses are incurred; PROVIDED, HOWEVER,
that the Company and the Guarantors shall not be liable in any such case to the
extent that any such loss, claim, damage, liability or action arises out of, or
is based upon, an untrue statement or alleged untrue statement in or omission or
alleged omission from any of such documents in reliance upon and in conformity
with any Holders' Information; and PROVIDED, FURTHER, that with respect to any
such untrue statement in or omission from any related preliminary prospectus,
the indemnity agreement contained in this Section 6(a) shall not inure to the
benefit of any Holder from whom the person asserting any such loss, claim,
damage, liability or action received Securities or Exchange Securities to the
extent that such loss, claim, damage, liability or action of or with respect to
such Holder results from the fact that both (A) a copy of the final prospectus
was not sent or given to such person at or prior to the written confirmation of
the sale of such Securities or Exchange Securities to such person and (B) the
untrue statement in or omission from the related preliminary prospectus was
corrected in the final prospectus unless, in either case, such failure to
deliver the final prospectus was a result of non-compliance by the Company with
Section 4(d), 4(e), 4(f) or 4(g).
(b) In the event of a Shelf Registration Statement, each
Holder shall indemnify and hold harmless the Company and the
Guarantors, their affiliates, their respective officers, directors,
employees, representatives and agents, and each person, if any, who
controls the Company or any Guarantor within the meaning of the
Securities Act or the Exchange Act (collectively referred to for
purposes of this Section 6(b) and Section 7 as the "Company"), from and
against any loss, claim, damage or liability, joint or several, or any
action in respect thereof, to which the Company may become subject,
whether commenced or threatened, under the Securities Act, the Exchange
Act, any other federal or state statutory law or regulation, at common
law or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained in any such
Registration Statement or any prospectus forming part thereof or in any
amendment or supplement thereto or (ii) the omission or alleged
omission to state therein 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, but in
each case only to the extent that the untrue statement
14
or alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity with any Holders' Information furnished
to the Company by such Xxxxxx, and shall reimburse the Company for any
legal or other expenses reasonably incurred by the Company in
connection with investigating or defending or preparing to defend
against or appearing as a third party witness in connection with any
such loss, claim, damage, liability or action as such expenses are
incurred; PROVIDED, HOWEVER, that no such Holder shall be liable for
any indemnity claims hereunder in excess of the amount of net proceeds
received by such Holder from the sale of Securities or Exchange
Securities pursuant to such Shelf Registration Statement.
(c) Promptly after receipt by an indemnified party under
this Section 6 of notice of any claim or the commencement of any
action, the indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party pursuant to Section 6(a) or
6(b), notify the indemnifying party in writing of the claim or the
commencement of that action; PROVIDED, HOWEVER, that the failure to
notify the indemnifying party shall not relieve it from any liability
which it may have under this Section 6 or otherwise except to the
extent that it has been materially prejudiced by such failure. If any
such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party
shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party,
to assume the defense thereof with counsel reasonably satisfactory to
the indemnified party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such claim
or action, the indemnifying party shall not be liable to the
indemnified party under this Section 6 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the
defense thereof other than the reasonable costs of investigation;
PROVIDED, HOWEVER, that an indemnified party shall have the right to
employ its own counsel in any such action, but the fees, expenses and
other charges of such counsel for the indemnified party will be at the
expense of such indemnified party unless (1) the employment of counsel
by the indemnified party has been authorized in writing by the
indemnifying party, (2) the indemnified party has reasonably concluded
(based upon advice of counsel to the indemnified party) that there may
be legal defenses available to it or other indemnified parties that are
different from or in addition to those available to the indemnifying
party, (3) a conflict or potential conflict exists (based upon advice
of counsel to the indemnified party) between the indemnified party and
the indemnifying party (in which case the indemnifying party will not
have the right to direct the defense of such action on behalf of the
indemnified party) or (4) the indemnifying party has not in fact
employed counsel reasonably satisfactory to the indemnified party to
assume the defense of such action within a reasonable time after
receiving notice of the commencement of the action, in each of which
cases the reasonable fees, disbursements and other charges of counsel
will be at the expense of the indemnifying party or parties. It is
understood that the indemnifying party or parties shall not, in
connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees, disbursements and
other
15
charges of more than one separate firm of attorneys (in addition to any
local counsel) at any one time for all such indemnified party or
parties. Each indemnified party, as a condition of the indemnity
agreements contained in Sections 6(a) and 6(b), shall use all
reasonable efforts to cooperate with the indemnifying party in the
defense of any such action or claim. No indemnifying party shall be
liable for any settlement of any such action effected without its
written consent (which consent shall not be unreasonably withheld), but
if settled with its written consent or if there be a final judgment for
the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment. No
indemnifying party shall, without the prior written consent of the
indemnified party (which consent shall not be unreasonably withheld),
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 on claims that are the subject
matter of such proceeding and does not include a statement as to, or an
admission of, fault, culpability or failure to act, by or on behalf of
any indemnified party.
7. CONTRIBUTION. If the indemnification provided for in
Section 6 is unavailable or insufficient to hold harmless an indemnified party
under Section 6(a) or 6(b), then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the Company from the initial offering
and sale of the Securities, on the one hand, and by a Holder from receiving
Securities or Exchange Securities as applicable, registered under the Securities
Act, on the other, or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company and the Guarantors, on the one hand, and such Holder, on
the other, with respect to the statements or omissions that resulted in such
loss, claim, damage or liability, or action in respect thereof, as well as any
other relevant equitable considerations. The relative fault shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to the Company and the Guarantors or information supplied
by the Company and the Guarantors, on the one hand, or to any Holders'
Information supplied by such Holder, on the other, the intent of the parties and
their relative knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The parties hereto agree that it
would not be just and equitable if contributions pursuant to this Section 7 were
to be determined by PRO RATA allocation or by any other method of allocation
that does not take into account the equitable considerations referred to herein.
The amount paid or payable by an indemnified party as a result of the loss,
claim, damage or liability, or action in respect thereof, referred to above in
this Section 7 shall be deemed to include, for purposes of this Section 7, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending or
16
preparing to defend any such action or claim. Notwithstanding the provisions of
this Section 7, an indemnifying party that is a Holder of Securities or Exchange
Securities or shall not be required to contribute any amount in excess of the
amount by which the total price at which the Securities or Exchange Securities
or sold by such indemnifying party to any purchaser exceeds the amount of any
damages which such indemnifying party has otherwise paid or become liable to pay
by reason of any 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 Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
8. RULES 144 AND 144A. The Company shall use its
reasonable best efforts to file the reports required to be filed by it under the
Securities Act and the Exchange Act in a timely manner and, if at any time the
Company is not required to file such reports, it will, upon the written request
of any Holder of Transfer Restricted Securities, make publicly available other
information so long as necessary to permit sales of such Holder's securities
pursuant to Rules 144 and 144A. The Company and the Guarantors covenant that
they will 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 limitation of the exemptions
provided by Rules 144 and 144A (including, without limitation, the requirements
of Rule 144A(d)(4)). Upon the written request of any Holder of Transfer
Restricted Securities, the Company and the Guarantors shall deliver to such
Holder a written statement as to whether they have complied with such
requirements. Notwithstanding the foregoing, nothing in this Section 8 shall be
deemed to require the Company to register any of its securities pursuant to the
Exchange Act.
9. UNDERWRITTEN REGISTRATIONS. If any of the Transfer
Restricted Securities covered by any Shelf Registration Statement are to be sold
in an underwritten offering, the investment banker or investment bankers and
manager or managers that will administer the offering will be selected by the
Holders of a majority in aggregate principal amount of such Transfer Restricted
Securities included in such offering, subject to the consent of the Company
(which shall not be unreasonably withheld or delayed), and such Holders shall be
responsible for all underwriting commissions and discounts in connection
therewith.
No person may participate in any underwritten registration
hereunder unless such person (i) agrees to sell such person's Transfer
Restricted Securities on the basis reasonably provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
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
17
obtained the written consent of Holders of a majority in aggregate principal
amount of the Securities and the Exchange Securities, taken as a single class.
Notwithstanding the foregoing, a waiver or consent to depart from the provisions
hereof with respect to a matter that relates exclusively to the rights of
Holders whose Securities or Exchange Securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the
rights of other Holders may be given by Holders of a majority in aggregate
principal amount of the Securities and the Exchange Securities being sold by
such Holders pursuant to such Registration Statement.
(b) NOTICES. All notices and other communications
provided for or permitted hereunder shall be made in writing by
hand-delivery, first-class mail, telecopier or air courier guaranteeing
next-day delivery:
(i) if to a Holder, at the most current address
given by such Holder to the Company in accordance with the
provisions of this Section 10(b), which address initially is,
with respect to each Holder, the address of such Holder
maintained by the Registrar under the Indenture, with a copy
in like manner to J.P. Securities Inc., CIBC World Markets
Corp., Citigroup Global Markets Inc., Xxxxxxxx & Company,
Inc., and Xxxxxxx Xxxxx & Associates, Inc.;
(ii) if to an Initial Purchaser, initially at its
address set forth in the Purchase Agreement; and
(iii) if to the Company, initially at the address
of the Company set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; one business
day after being delivered to a next-day air courier; five business days after
being deposited in the mail; and when receipt is acknowledged by the recipient's
telecopier machine, if sent by telecopier.
(c) SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon the Company, the Guarantors and their respective
successors and assigns.
(d) COUNTERPARTS. This Agreement may be executed in any
number of counterparts (which may be delivered in original form or by
telecopier) 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.
(e) DEFINITION OF TERMS. For purposes of this Agreement,
(a) the term "business day" means any day on which the New York Stock
Exchange, Inc. is open for trading, (b) the term "subsidiary" has the
meaning set forth in Rule 405 under the Securities Act and (c) except
where otherwise expressly provided, the term "affiliate" has the
meaning set forth in Rule 405 under the Securities Act.
18
(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.
(h) REMEDIES. In the event of a breach by the Company,
any Guarantor or by any Holder of any of their obligations under this
Agreement, each Holder, the Company or any Guarantor, as the case may
be, in addition to being entitled to exercise all rights granted by
law, including recovery of damages (other than the recovery of damages
for a breach by the Company or any Guarantor of its obligations under
Sections 1 or 2 hereof for which Additional Interest has been paid
pursuant to Section 3 hereof), will be entitled to specific performance
of its rights under this Agreement. The Company, the Guarantors and
each Holder agree that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by each such
person of any of the provisions of this Agreement and hereby further
agree that, in the event of any action for specific performance in
respect of such breach, each such person shall waive the defense that a
remedy at law would be adequate.
(i) NO INCONSISTENT AGREEMENTS. The Company and each
Guarantor represents, warrants and agrees that (i) it has not entered
into, and shall not on or after the date of this Agreement, enter into
any agreement that is inconsistent with the rights granted to the
Holders in this Agreement or otherwise conflicts with the provisions
hereof, (ii) it has not previously entered into any agreement which
remains in effect granting any registration rights with respect to any
of its debt securities to any person and (iii) (with respect to the
Company) without limiting the generality of the foregoing, without the
written consent of the Holders of a majority in aggregate principal
amount of the then outstanding Transfer Restricted Securities, it shall
not grant to any person the right to request the Company to register
any debt securities of the Company under the Securities Act unless the
rights so granted are not in conflict or inconsistent with the
provisions of this Agreement.
(j) NO PIGGYBACK ON REGISTRATIONS. Neither the Company
nor any of its security holders (other than the Holders of Transfer
Restricted Securities in such capacity) shall have the right to include
any securities of the Company in any Shelf Registration or Registered
Exchange Offer other than Transfer Restricted Securities.
(k) SEVERABILITY. The remedies provided herein are
cumulative and not exclusive of any remedies provided by law. If any
term, provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction to be invalid, illegal, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and
shall in no way be affected, impaired or invalidated, and the parties
hereto shall
19
use their reasonable best efforts to find and employ an alternative
means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It is
hereby stipulated and declared to be the intention of the parties that
they would have executed the remaining terms, provisions, covenants and
restrictions without including any of such that may be hereafter
declared invalid, illegal, void or unenforceable.
20
Please confirm that the foregoing correctly sets forth the agreement
among the Company, the Guarantors and the Initial Purchasers.
Very truly yours,
ALASKA COMMUNICATIONS
SYSTEMS HOLDINGS, INC.,
By /s/ Xxxxx X. Xxxxxxxx
______________________________
Name: Xxxxx X. Xxxxxxxx
Title: CFO, Treasurer, Sr. VP
ALASKA COMMUNICATIONS
SYSTEMS GROUP, INC.,
By /s/ Xxxxx X. Xxxxxxxx
______________________________
Name: Xxxxx X. Xxxxxxxx
Title: CFO, Treasurer, Sr. VP
21
ACS OF THE NORTHLAND, INC.
ACS OF ALASKA, INC.
ACS OF FAIRBANKS, INC.
ACS OF ANCHORAGE, INC.
ACS WIRELESS, INC.
ACS LONG DISTANCE, INC.
ACS INTERNET, INC.
ACS MESSAGING, INC.
ACS INFOSOURCE, INC.
ACS OF ALASKA LICENSE SUB, INC.
ACS OF THE NORTHLAND LICENSE SUB, INC.
ACS OF FAIRBANKS LICENSE SUB, INC.
ACS OF ANCHORAGE LICENSE SUB, INC.
ACS WIRELESS LICENSE SUB, INC.
ACS LONG DISTANCE LICENSE SUB, INC.
ACS TELEVISION LICENSE SUB, INC.
ACS SERVICES, INC.
by /s/ Xxxxx X. Xxxxxxxx
___________________________________
Name: Xxxxx X. Xxxxxxxx
Title: CFO, Treasurer, Sr. VP
ACS TELEVISION, L.L.C.,
by: ACS of Anchorage, Inc.,
its sole member,
by Xxxxx X. Xxxxxxxx
___________________________________
Name: Xxxxx X. Xxxxxxxx
Title: CFO, Treasurer, Sr. VP
22
Accepted:
X.X.XXXXXX SECURITIES INC.
FOR ITSELF AND ON BEHALF OF
THE INITIAL PURCHASERS
by /s/ Xxxxxxx X. Xxxxxxx
__________________________
Authorized Signatory
23
ANNEX A
Each broker-dealer that receives Exchange Securities for its
own account pursuant to the Registered Exchange Offer must acknowledge that it
will deliver a prospectus in connection with any resale of such Exchange
Securities. The Letter of Transmittal states that by so acknowledging and by
delivering a prospectus, a broker-dealer will not be deemed to admit that it is
an "underwriter" within the meaning of the Securities Act. This Prospectus, as
it may be amended or supplemented from time to time, may be used by a
broker-dealer in connection with resales of Exchange Securities received in
exchange for Securities where such Securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities. The Company has agreed that, for a period of 180 days after the
consummation of the Registered Exchange Offer, it will make this Prospectus
available to any broker-dealer for use in connection with any such resale. See
"Plan of Distribution".
24
ANNEX B
Each broker-dealer that receives Exchange Securities for its
own account in exchange for Securities, where such Securities were acquired by
such broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities. See "Plan of Distribution".
25
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its
own account pursuant to the Registered Exchange Offer must acknowledge that it
will deliver a prospectus in connection with any resale of such Exchange
Securities. This Prospectus, as it may be amended or supplemented from time to
time, may be used by a broker-dealer in connection with resales of Exchange
Securities received in exchange for Securities where such Securities were
acquired as a result of market-making activities or other trading activities.
The Company has agreed that, for a period of 180 days after the consummation of
the Registered Exchange Offer, it will make this prospectus, as amended or
supplemented, available to any broker-dealer for use in connection with any such
resale. In addition, until August 13, 1999, all dealers effecting transactions
in the Exchange Securities may be required to deliver a prospectus.
The Company will not receive any proceeds from any sale of
Exchange Securities by broker-dealers. Exchange Securities received by
broker-dealers for their own account pursuant to the Registered Exchange Offer
may be sold from time to time in one or more transactions in the
over-the-counter market, in negotiated transactions, through the writing of
options on the Exchange Securities or a combination of such methods of resale,
at market prices prevailing at the time of resale, at prices related to such
prevailing market prices or at negotiated prices. Any such resale may be made
directly to purchasers or to or through brokers or dealers who may receive
compensation in the form of commissions or concessions from any such
broker-dealer or the purchasers of any such Exchange Securities. Any
broker-dealer that resells Exchange Securities that were received by it for its
own account pursuant to the Registered Exchange Offer and any broker or dealer
that participates in a distribution of such Exchange Securities may be deemed to
be an "underwriter" within the meaning of the Securities Act and any profit on
any such resale of Exchange Securities and any commission or concessions
received by any such persons may be deemed to be underwriting compensation under
the Securities Act. The Letter of Transmittal states that, by acknowledging that
it will deliver and by delivering a prospectus, a broker-dealer will not be
deemed to admit that it is an "underwriter" within the meaning of the Securities
Act.
For a period of 180 days after the consummation of the
Registered Exchange Offer the Company will promptly send additional copies of
this Prospectus and any amendment or supplement to this Prospectus to any
broker-dealer that requests such documents in the Letter of Transmittal. The
Company has agreed to pay all expenses incident to the Registered Exchange Offer
(including the expenses of one counsel for the Holders of the Securities) other
than commissions or concessions of any broker-dealers and will indemnify the
Holders of the Securities (including any broker-dealers) against certain
liabilities, including liabilities under the Securities Act.
26
ANNEX D
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE
10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY
AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
Address:
If the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Securities. If the undersigned is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Securities that were acquired as
a result of market-making activities or other trading activities, it
acknowledges that it will deliver a prospectus in connection with any resale of
such Exchange Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
