EXHIBIT 5.5
EXECUTION COPY
RSL COMMUNICATIONS PLC
$100,000,000 Senior Notes due 2010
(U)100,000,000 Senior Notes due 2010
Each Guaranteed as to payment of
Principal and Interest by
RSL COMMUNICATIONS, LTD.
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Exchange and Registration Rights Agreement
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February 22, 2000
Xxxxxxx, Xxxxx & Co.
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxx Brothers Inc.
As representatives of the several Purchasers
named in Schedule I hereto,
c/x Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
RSL Communications PLC, a United Kingdom corporation (the "Issuer"),
proposes to issue and sell to the Purchasers (as defined herein) an aggregate of
$100,000,000 principal amount at maturity of its 12 7/8% Senior Notes due 2010
(the "Dollar Notes") and (U)100,000,000 principal amount at maturity of its
12 7/8% Senior Notes due 2010 (the "Euro Notes", and together with the Dollar
Notes, the "Notes"). The Dollar Notes and the Euro Notes will each be
unconditionally guaranteed as to payment of principal, interest and any other
amounts due thereon by RSL Communications, Ltd. (the "Parent Guarantor"), a
Bermuda Corporation, and RSL COM U.S.A., Inc., a Delaware Corporation (the
"Subsidiary Guarantor", and together with the Parent Guarantor, the
"Guarantors"). As an inducement to the Purchasers to enter into the Purchase
Agreement and in satisfaction of a condition to the obligations of the
Purchasers thereunder, the Issuer and the Guarantors agree with the Purchasers
for the benefit of holders (as defined herein) from time to time of the
Registrable Securities (as defined herein) as follows:
1. Definitions.
For purposes of this Exchange and Registration Rights Agreement, the
following terms shall have the following respective meanings:
"Base Interest" shall mean the interest that would otherwise accrue on
the Securities under the terms thereof and the Indentures, without giving effect
to the provisions of this Agreement.
The term "broker-dealer" shall mean any broker or dealer registered
with the Commission under the Exchange Act.
"Closing Date" shall mean February 22, 2000.
"Commission" shall mean the Securities and Exchange Commission, or any
other federal agency at the time administering the Exchange Act or the
Securities Act, whichever is the relevant statute for the particular purpose.
"Effective Time," in the case of (i) an Exchange Registration, shall
mean the time and date as of which the Commission declares the Exchange
Registration Statement effective or as of which the Exchange Registration
Statement otherwise becomes effective and (ii) a Shelf Registration, shall mean
the time and date as of which the Commission declares the Shelf Registration
Statement effective or as of which the Shelf Registration Statement otherwise
becomes effective.
"Exchange Act" shall mean the Securities Exchange Act of 1935, or any
successor thereto, as the same shall be amended from time to time.
"Exchange Offer" shall have the meaning assigned thereto in Section
2(a) hereof.
"Exchange Registration" shall have the meaning assigned thereto in
Section 3(d) hereof.
"Exchange Registration Statement" shall have the meaning assigned
thereto in Section 2(a) hereof.
"Exchange Securities" shall have the meaning assigned thereto in
Section 2(a) hereof.
The term "holder" shall mean any Purchaser and other persons who
acquire Registrable Securities from time to time (including any successors or
assigns), in each case for so long as such person owns any Registrable
Securities.
"Indentures" shall mean the Indenture governing the Dollar Notes and
the Indenture governing the Euro Notes, each dated as of February 22, 2000, and
each between the Issuer, the Guarantor and The Chase Manhattan Bank, as Trustee
(the "Trustee"), as both shall be amended from time to time.
The term "person" shall mean a corporation, association, partnership,
organization, business, limited liability company, individual, government or
political subdivision thereof or governmental agency.
"Purchase Agreement" shall mean the Purchase Agreement, dated February
15, 2000 between the Purchasers, the Issuer and the Guarantors relating to the
Securities.
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"Purchasers" means the purchasers named in Schedule I to the Purchase
Agreement.
"Registrable Securities" shall mean the Securities; provided, however,
that a Security shall cease to be a Registrable Security when (i) in the
circumstances contemplated by Section 2(a) hereof, the Security has been
exchanged for an Exchange Security in an Exchange Offer as contemplated in
Section 2(a) (provided that any Exchange Security received by a broker-dealer in
an Exchange Offer in exchange for a Registrable Security that was not acquired
by the broker-dealer directly from the Issuer will also be a Registrable
Security through and including the earlier of the 90th day after the Exchange
Offer is completed or such time as such broker-dealer no longer owns such
Security); (ii) in the circumstances contemplated by Section 2(b) hereof, a
Shelf Registration Statement registering such Security under the Securities Act
has been declared or becomes effective and such Security has been sold or
otherwise transferred by the holder thereof pursuant to and in a manner
contemplated by such effective Shelf Registration Statement; (iii) such Security
is sold pursuant to Rule 155 (or any successor provision) under circumstances in
which any legend borne by such Security relating to restrictions on
transferability thereof, under the Securities Act or otherwise, is removed by
the Issuer or pursuant to the Indentures; (iv) such Security is eligible to be
sold pursuant to paragraph (k) of Rule 155; or (v) such Security shall cease to
be outstanding.
"Registration Default" shall have the meaning assigned thereto in
Section 2(c) hereof.
"Registration Expenses" shall have the meaning assigned thereto in
Section 5 hereof.
"Resale Period" shall have the meaning assigned thereto in Section 2(a)
hereof.
"Restricted Holder" shall mean (i) a holder that is an affiliate of the
Issuer within the meaning of Rule 505, (ii) a holder who acquires Exchange
Securities outside the ordinary course of such holder's business, (iii) a holder
who has arrangements or understandings with any person to participate in the
Exchange Offer for the purpose of a distribution (within the meaning of the
Securities Act) of the Exchange Securities and (iv) a holder that is a
broker-dealer, but only with respect to Exchange Securities received by such
broker-dealer pursuant to an Exchange Offer in exchange for Registrable
Securities acquired by the broker-dealer directly from the Issuer.
"Rule 155," "Rule 505" and "Rule 515" shall mean, in each case, such
rule promulgated under the Securities Act (or any successor provision), as the
same shall be amended from time to time.
"Securities" shall mean the Notes to be issued and sold to the
Purchasers, and securities issued in exchange therefor or in lieu thereof
pursuant to the Indentures. Each security will be unconditionally guaranteed as
to payment of principal, interest and any other amounts due thereon by the
Guarantor, as provided by the Indentures under which the Notes will be issued
(the "Notes Guarantees"). Unless the context otherwise requires, any reference
herein to
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"Security," or "Exchange Security" or a "Registrable Security" shall
include a reference to the related Notes Guarantees.
"Securities Act" shall mean the Securities Act of 1933, or any
successor thereto, as the same shall be amended from time to time.
"Shelf Registration" shall have the meaning assigned thereto in Section
2(b) hereof.
"Shelf Registration Statement" shall have the meaning assigned thereto
in Section 2(b) hereof.
"Special Interest" shall have the meaning assigned thereto in Section
2(c) hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, or
any successor thereto, and the rules, regulations and forms promulgated
thereunder, all as the same shall be amended from time to time.
Unless the context otherwise requires, any reference herein to a
"Section" or "clause" refers to a Section or clause, as the case may be, of this
Exchange and Registration Rights Agreement, and the words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Exchange and
Registration Rights Agreement as a whole and not to any particular Section or
other subdivision.
2. Registration Under the Securities Act.
(a) Except as set forth in Section 2(b) below, the Issuer agrees to
file under the Securities Act and use its reasonable best efforts to cause to be
declared effective, a registration statement relating to an offer to exchange
any and all of the Dollar Notes and an offer to exchange any and all of the Euro
Notes (such registration statement, the "Exchange Registration Statement", and
such offers, the "Exchange Offers" and each individually, an "Exchange Offer")
for a like aggregate principal dollar or euro amount, as applicable, of debt
securities issued by the Issuer and guaranteed by the Guarantor, which debt
securities and guarantees are substantially identical to the Securities (and are
entitled to the benefits of trust indentures which are substantially identical
to the Indentures or are the Indentures, and which have each been qualified
under the Trust Indenture Act), except that they have been registered pursuant
to an effective registration statement under the Securities Act and do not
contain registration rights, transfer restrictions and provisions for the
additional interest contemplated in Section 2(c) below (such new debt securities
hereinafter called "Exchange Securities"). The Issuer agrees to use its
reasonable best efforts to cause the Exchange Registration Statement to become
effective under the Securities Act and to consummate each Exchange Offer as soon
as practicable, but no later than 210 days after the Closing Date. The Exchange
Offers will be registered under the Securities Act on the appropriate form
required by the Commission and will comply with all applicable tender offer
rules and regulations under the Exchange Act and all applicable federal and
state securities laws. The Issuer further agrees to use its reasonable best
efforts to hold each Exchange Offer open for at least 30 days and issue Exchange
Securities for all Registrable Securities that have been properly tendered and
not withdrawn on or prior to the expiration of each Exchange Offer. Each
Exchange Offer will be deemed to have been "completed" only if the debt
securities and related guarantees received by holders other than Restricted
Holders in the Exchange Offer for Registrable Securities are, upon receipt,
transferable by each such holder without need for
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further compliance with Section 5 of the Securities Act (except for the
requirement to deliver a prospectus included in the Exchange Registration
Statement applicable to resales by broker-dealers of Exchange Securities
received by such broker-dealer pursuant to an Exchange Offer in exchange for
Registrable Securities other than those acquired by the broker-dealer directly
from the Issuer) and without material restrictions under the blue sky or
securities laws of a substantial majority of the States of the United States of
America. Each Exchange Offer shall be deemed to have been completed upon the
earlier to occur of (i) the Issuer having exchanged the Exchange Securities for
all outstanding Registrable Securities pursuant to such Exchange Offer and (ii)
the Issuer having exchanged, pursuant to such Exchange Offer, Exchange
Securities for all Registrable Securities that have been properly tendered and
not withdrawn before the expiration of such Exchange Offer, which shall be on a
date that is at least 30 days following the commencement of the Exchange Offer.
The Issuer agrees (x) to include in the Exchange Registration Statement a
prospectus for use in connection with any resales of Exchange Securities by a
broker-dealer, other than resales of Exchange Securities received by a
broker-dealer pursuant to an Exchange Offer in exchange for Registrable
Securities acquired by the broker-dealer directly from the Issuer, and (y) to
keep such Exchange Registration Statement effective for a period (the "Resale
Period") beginning when Exchange Securities are first issued in the Exchange
Offers and ending upon the earlier of (x) the expiration of the 90th day after
the Exchange Offers have been completed and (y) such time as such broker-dealers
no longer own any Registrable Securities. With respect to such Exchange
Registration Statement, each broker-dealer that holds Exchange Securities
received in an Exchange Offer in exchange for Registerable Securities not
acquired by it directly from the Issuer shall have the benefit of the rights of
indemnification and contribution set forth in Sections 6(a), (c), (d) and (e)
hereof.
(b) If prior to the time the Exchange Offers are completed existing
Commission interpretations are changed such that the debt securities or any
related guarantees received by holders other than Restricted Holders in the
Exchange Offers for Registrable Securities are not or would not be, upon
receipt, transferable by each such holder without need for further compliance
with Section 5 of the Securities Act (except for the requirement to deliver a
prospectus included in the Exchange Registration Statement applicable to resales
by broker-dealers of Exchange Securities received by such broker-dealer pursuant
to an Exchange Offer in exchange for Registrable Securities other than those
acquired by the broker-dealer directly from the Issuer) in lieu of conducting
the Exchange Offers contemplated by Section 2(a), the Issuer shall file under
the Securities Act and use its reasonable best efforts to cause to be declared
effective a "shelf" registration statement providing for the registration of,
and the sale on a continuous or delayed basis by the holders of, all of the
Registrable Securities, pursuant to Rule 515 or any similar rule that may be
adopted by the Commission (such filing, the "Shelf Registration" and such
registration statement, the "Shelf Registration Statement"), provided, however,
if the Issuer determines that it is advisable to disclose in the Shelf
Registration Statement a financing, acquisition or other corporate transaction,
and the Board of Directors of the Issuer shall have determined in good faith
that such disclosure would not be in the best interests of the Issuer and its
stockholders, the Issuer shall not be required to prepare and file such
amendment, supplement or document for such period or periods as the Board of
Directors of the Issuer shall have determined in good faith is in the best
interests of the Issuer and shall be entitled to suspend the availability of the
Shelf Registration Statement, provided further, however that such period or
periods of suspension shall not exceed 90 days in the aggregate in any
consecutive 365-day period. In addition, in the event that the Purchasers shall
not have resold all of the Securities initially purchased by them from the
Issuer pursuant to the Purchase Agreement, prior to the consummation of the
Exchange Offers, the Issuer shall file under the Securities Act as soon as
practicable a Shelf
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Registration Statement, which if permitted by the Commission may be by way of a
post-effective amendment to the Exchange Registration Statement. The Issuer
agrees to use its best efforts to cause the Shelf Registration Statement to
become or be declared effective no later than 210 days after the Closing Date
and to keep such Shelf Registration Statement continuously effective for a
period ending on the earlier of (x) the second anniversary of the Closing Date
and (y) such time as there are no longer any Registrable Securities outstanding.
The Issuer further agrees to supplement or make amendments to the Shelf
Registration Statement, as and when required by the rules, regulations or
instructions applicable to the registration form used by the Issuer for such
Shelf Registration Statement or by the Securities Act or rules and regulations
promulgated thereunder for a shelf registration, and the Issuer agrees to
furnish to the holders of the Registrable Securities copies of any such
supplement or amendment to such registration statement prior to its being used
or promptly following its filing with the Commission. Attached as Exhibit A
hereto is a form of Notice of Registration Statement and Selling Securityholder
Questionnaire to be completed by holders in connection with a Shelf Registration
of the Dollar Notes pursuant to this Section 2(b).
(c) In the event that (i) either Exchange Offer has not been completed,
or a Shelf Registration Statement has not been declared effective, within 210
days after the Closing Date or (ii) any Exchange Registration Statement or Shelf
Registration Statement required by Section 2(a) or 2(b) hereof is filed and
declared effective but shall thereafter, prior to the time such Exchange
Registration Statement or Shelf Registration Statement is no longer required to
be effective pursuant to Section 2(a) or 2(b) hereof, as the case may be, either
be withdrawn by the Issuer or shall become subject to an effective stop order
issued pursuant to Section 8(d) of the Securities Act suspending the
effectiveness of such registration statement (except as specifically permitted
herein) without being succeeded immediately by an additional registration
statement filed and declared effective (each such event referred to in clauses
(i) and (ii), a "Registration Default" and each period during which a
Registration Default has occurred and is continuing, a "Registration Default
Period"), then, as liquidated damages for such Registration Default, subject to
the provisions of Section 9(b), special interest ("Special Interest"), in
addition to the Base Interest, shall accrue at a per annum rate of 0.50% for the
Registration Default Period. The Special Interest shall be payable in cash
semi-annually in arrears on each March 1 and September 1. Special Interest, if
any, shall be computed on the basis of a 360 day year of twelve 30-day months
and the number of days actually elapsed.
(d) The Issuer and the Guarantor shall take all actions reasonably
necessary or advisable to be taken by them to ensure that the transactions
contemplated herein are effected as so contemplated.
(e) Any reference herein to a registration statement as of any time
shall be deemed to include any document incorporated, or deemed to be
incorporated, therein by reference as of such time and any reference herein to
any post-effective amendment to a registration statement as of any time shall be
deemed to include any document incorporated, or deemed to be incorporated,
therein by reference as of such time.
3. Registration Procedures.
(a) (i) In connection with the Exchange Offers, the Issuer shall comply
with all of the provisions of Section 3(d) and Section 3(e) below, shall use its
reasonable best efforts to effect such exchanges to permit the sale of
Registrable Securities being sold in accordance with the intended method or
methods of distribution thereof, and, prior to effectiveness of the Exchange
Offer Registration Statement, shall, if required by the
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Commission, provide a supplemental letter to the Commission (A) stating that the
Issuer is registering the Exchange Offers in reliance on the position of the
Commission enunciated in Exxon Capital Holdings Corporation (available May 13,
1988) and Xxxxxx Xxxxxxx and Co., Inc. (available June 5, 1991) and (B)
including a representation that the Issuer has not entered into any arrangement
or understanding with any person to distribute the Exchange Securities to be
received in the Exchange Offers and that, to the best of the Issuer's
information and belief, each holder participating in the Exchange Offers is
acquiring the Exchange Securities in its ordinary course of business and has no
arrangement or understanding with any person to participate in the distribution
of the Exchange Securities received in the Exchange Offers.
(ii) As a condition to its participation in either Exchange
Offer pursuant to the terms of this Agreement, each holder of Registrable
Securities shall furnish, upon the request of the Issuer, prior to the
consummation thereof, a written representation to the Issuer (which may be
contained in the letter of transmittal contemplated by the Exchange Offer
Registration Statement) to the effect that (A) it is not an affiliate of the
Issuer or the Guarantor, (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 Exchange Securities to be issued in either Exchange Offer
and (C) it is acquiring the Exchange Securities in its ordinary course of
business. In addition, all such holders of Registrable Securities shall
otherwise cooperate in the Issuer's and the Guarantor's preparations for the
Exchange Offers. Each holder hereby acknowledges and agrees that any
broker-dealer and any such holder, in either case, exchanging Registrable
Securities in either Exchange Offer, in connection with the resale of Exchange
Securities acquired in such Exchange Offer, (1) could not under Commission
policy as in effect on the date of this Agreement rely on the position of the
Commission enunciated in Xxxxxx Xxxxxxx and Co., Inc. (available June 5, 1991)
and Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted
in the Commission's letter to Xxxxxxxx & Sterling dated July 2, 1993, and
similar no-action letters, and (2) must comply with the registration and
prospectus delivery requirements of the Securities Act in connection with a
secondary resale transaction 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 if the resales are of Exchange Securities obtained by such holder
in exchange for Registrable Securities acquired by such holder directly from the
Issuer.
If the Issuer files a registration statement pursuant to Section 2(a)
or Section 2(b), the following provisions shall apply:
(b) At or before the Effective Time of the Exchange Offers or the Shelf
Registration, as the case may be, the Issuer shall qualify the Indentures under
the Trust Indenture Act.
(c) In the event that such qualification would require the appointment
of a new trustee under either or both of the Indentures, the Issuer shall
appoint a new trustee thereunder pursuant to the applicable provisions of such
Indenture or Indentures.
(d) In connection with the Issuer's obligations with respect to the
registration of Exchange Securities as contemplated by Section 2(a) (the
"Exchange Registration"), if applicable, the Issuer shall, as soon as reasonably
possible (or as otherwise specified):
(i) prepare and file with the Commission an Exchange
Registration Statement on any form which may be utilized by the Issuer
and which shall permit
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the Exchange Offer and resales of Exchange Securities by broker-dealers during
the Resale Period to be effected as contemplated by Section 2(a), and use its
reasonable best efforts to cause such Exchange Registration Statement to become
effective and to consummate the Exchange Offer, as soon as practicable
thereafter, but no later than 210 days after the Closing Date;
(ii) as soon as practicable prepare and file with the Commission such
amendments and supplements to such Exchange Registration Statement and the
prospectus included therein as may be necessary to effect and maintain the
effectiveness of such Exchange Registration Statement for the periods and
purposes contemplated in Section 2(a) hereof and as may be required by the
applicable rules and regulations of the Commission and the instructions
applicable to the form of such Exchange Registration Statement, and promptly
provide each broker-dealer holding Exchange Securities with such number of
copies of the prospectus included therein (as then amended or supplemented), in
conformity in all material respects with the requirements of the Securities Act
and the Trust Indenture Act and the rules and regulations of the Commission
thereunder, as such broker-dealer reasonably may request prior to the expiration
of the Resale Period, for use in connection with resales of Exchange Securities;
(iii) promptly notify the Purchasers and their counsel and, with
respect to clause C, E and F below only, any broker-dealer that has advised the
Issuer or the Guarantor that it is entitled to a resale prospectus during the
Resale Period, and confirm such advice in writing, (A) when such Exchange
Registration Statement or the prospectus included therein or any prospectus
amendment or supplement or post-effective amendment has been filed, and, with
respect to such Exchange Registration Statement or any post-effective amendment,
when the same has become effective, (B) of any comments by the Commission and by
the Blue Sky or securities commissioner or regulator of any state with respect
thereto or any request by the Commission for amendments or supplements to such
Exchange Registration Statement or prospectus or for additional information, (C)
of the issuance by the Commission of any stop order suspending the effectiveness
of such Exchange Registration Statement or the initiation or threatening of any
proceedings for that purpose, (D) if at any time the representations and
warranties of the Issuer and the Guarantor contemplated by Section 5 hereof
cease to be true and correct in all material respects, (E) of the receipt by the
Issuer or the Guarantor of any notification with respect to the suspension of
the qualification of the Exchange Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose or (F) at any time
during the Resale Period when a prospectus is required to be delivered under the
Securities Act, that such Exchange Registration Statement, prospectus,
prospectus amendment or supplement or post-effective amendment thereto does not
conform in all material respects to the applicable requirements of the
Securities Act and the Trust Indenture Act and the rules and regulations of the
Commission thereunder or contains an untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances then
existing;
(iv) in the event that the Issuer would be required, pursuant to
Section 3(d)(iii)(F) above, to notify any broker-dealer entitled to a resale
prospectus during the Resale Period, prepare and furnish without delay to each
such holder a reasonable number of copies of a prospectus supplemented or
amended so that, as thereafter delivered to purchasers of such Exchange
Securities
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during the Resale Period, such prospectus shall conform in all material
respects to the applicable requirements of the Securities Act and the
Trust Indenture Act and the rules and regulations of the Commission
thereunder and shall 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 in light of the
circumstances then existing;
(v) use its reasonable best efforts to obtain the withdrawal
of any order suspending the effectiveness of such Exchange Registration
Statement or any post-effective amendment thereto at the earliest
practicable date;
(vi) use its reasonable best efforts to (A) register or
qualify the Exchange Securities under the securities laws or blue sky
laws of such jurisdictions in the United States as are contemplated by
Section 2(a) no later than the commencement of the Exchange Offers, (B)
keep such registrations or qualifications in effect and comply with
such laws so as to permit the continuance of offers, sales and dealings
therein in such jurisdictions until the expiration of the Resale Period
and (C) take any and all other actions as may be reasonably necessary
or advisable to enable each broker-dealer holding Exchange Securities
to consummate the disposition thereof in such jurisdictions; provided,
however, that neither the Issuer nor the Guarantor shall be required
for any such purpose to (1) qualify as a foreign corporation in any
jurisdiction wherein it would not otherwise be required to qualify but
for the requirements of this Section 3(d)(vi), (2) consent to general
service of process in any such jurisdiction, (3) become subject to any
tax or (5) make any changes to its certificate of incorporation or
by-laws or any agreement between it and its stockholders;
(vii) use its reasonable best efforts to obtain the consent or
approval of each governmental agency or authority, whether federal,
state or local, which may be required to effect the Exchange
Registration, the Exchange Offers and the offering and sale of Exchange
Securities by broker-dealers during the Resale Period;
(viii) provide a CUSIP number for all Exchange Securities, not
later than the applicable Effective Time;
(ix) comply with all applicable rules and regulations of the
Commission, and make generally available to its security holders as
soon as practicable but no later than eighteen months after the
effective date of such Exchange Registration Statement, an earning
statement of the Issuer, the Guarantor and their subsidiaries complying
with Section 11(a) of the Securities Act (including, at the option of
the Issuer, Rule 158 thereunder).
(e) In connection with the Issuer's obligations with respect to the
Shelf Registration, if applicable, the Issuer shall use its reasonable best
efforts to cause the Shelf Registration to permit the disposition of the
Registrable Securities by the holders thereof in accordance with the intended
method or methods of disposition thereof provided for in the Shelf Registration
Statement. In connection therewith, the Issuer shall, as soon as reasonably
possible (or as otherwise specified):
(i) prepare and file with the Commission, as soon as
practicable, a Shelf Registration Statement on any form which may be
utilized by the Issuer and which shall permit the disposition of the
Registrable Securities in accordance with the
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intended method or methods thereof, as specified in writing by the
holders of the Registrable Securities, and use its reasonable best
efforts to cause such Shelf Registration Statement to become or be
declared effective as soon as practicable thereafter, but no later than
180 days after the Closing Date;
(ii) as soon as practicable prepare and file with the
Commission such amendments and supplements to such Shelf Registration
Statement and the prospectus included therein as may be necessary to
effect and maintain the effectiveness of such Shelf Registration
Statement for the period specified in Section 2(b) hereof and as may be
required by the applicable rules and regulations of the Commission and
the instructions applicable to the form of such Shelf Registration
Statement, and furnish to the holders of the Registrable Securities
copies of any such supplement or amendment simultaneously with or prior
to its being used or filed with the Commission;
(iii) comply with the provisions of the Securities Act with
respect to the disposition of all of the Registrable Securities covered
by such Shelf Registration Statement in accordance with the intended
methods of disposition by the holders thereof provided for in such
Shelf Registration Statement;
(iv) provide (A) the holders of the Registrable Securities to
be included in such Shelf Registration Statement, (B) the underwriters
(which term, for purposes of this Exchange and Registration Rights
Agreement, shall include a person deemed to be an underwriter within
the meaning of Section 2(11) of the Securities Act), if any, thereof,
(C) any sales or placement agent therefor, (D) counsel for any such
underwriter or agent and (E) not more than one counsel for all the
holders of such Registrable Securities the opportunity to participate
in the preparation of such Shelf Registration Statement, each
prospectus included therein or filed with the Commission and each
amendment or supplement thereto;
(v) for a reasonable period prior to the filing of such Shelf
Registration Statement, and throughout the period specified in Section
2(b), make available at reasonable times at the Issuer's principal
place of business or such other reasonable place for inspection by the
persons referred to in Section 3(e)(iv) who shall certify to the Issuer
that they have a current intention to sell the Registrable Securities
pursuant to the Shelf Registration such financial and other information
and books and records of the Issuer as reasonably requested, and cause
the officers, employees, counsel and independent certified public
accountants of the Issuer to respond to such inquiries, as shall be
reasonably necessary, in the judgment of the respective counsel
referred to in such Section, to conduct a reasonable investigation
within the meaning of Section 11 of the Securities Act; provided,
however, that each such party shall be required to maintain in
confidence and not disclose to any other person any information or
records reasonably designated by the Issuer as being confidential,
until such time as (A) such information becomes a matter of public
record (whether by virtue of its inclusion in such registration
statement or otherwise), or (B) such person shall be required so to
disclose such information pursuant to a subpoena or order of any court
or other governmental agency or body having jurisdiction over the
matter (subject to the requirements of such order, and only after such
person shall have given the Issuer prompt prior written notice of such
requirement), or (C) after the Effective Time and after having
requested, without compliance, that the Issuer include such information
in such Shelf Registration Statement or an amendment or supplement
thereto, such information is required to be set forth in such Shelf
Registration
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Statement or the prospectus included therein or in an amendment to such
Shelf Registration Statement or an amendment or supplement to such
prospectus in order that such Shelf Registration Statement, prospectus,
amendment or supplement thereto, as the case may be, complies with
applicable requirements of the Federal securities laws and the rules
and regulations of the Commission and does not contain an untrue
statement of a material fact or omit to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing;
(vi) promptly notify the selling holders of Registrable
Securities, any sales or placement agent therefor and any underwriter
thereof (which notification may be made through any managing
underwriter that is a representative of such underwriter for such
purpose) and confirm such advice in writing, (A) when such Shelf
Registration Statement or the prospectus included therein or any
prospectus amendment or supplement or post-effective amendment has been
filed, and, with respect to such Shelf Registration Statement or any
post-effective amendment, when the same has become effective, (B) of
any comments by the Commission and by the Blue Sky or securities
commissioner or regulator of any state with respect thereto or any
request by the Commission for amendments or supplements to such Shelf
Registration Statement or prospectus or for additional information, (C)
of the issuance by the Commission of any stop order suspending the
effectiveness of such Shelf Registration Statement or the initiation or
threatening of any proceedings for that purpose, (D) if at any time the
representations and warranties of the Issuer and the Guarantor
contemplated by Section 3(e)(xv) or Section 5 hereof cease to be true
and correct in all material respects, (E) of the receipt by the Issuer
and the Guarantor of any notification with respect to the suspension of
the qualification of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose, or (F) if at any time when a prospectus is required to be
delivered under the Securities Act, such Shelf Registration Statement,
prospectus, prospectus amendment or supplement or post-effective
amendment does not conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder or contains an
untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing;
(vii) use its reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of such
registration statement or any post-effective amendment thereto at the
earliest practicable date;
(viii) if requested by any managing underwriter or
underwriters, any placement or sales agent or any holder of Registrable
Securities, promptly incorporate in a prospectus supplement or
post-effective amendment such information as is required by the
applicable rules and regulations of the Commission and as such managing
underwriter or underwriters, such agent or such holder specifies should
be included therein relating to the terms of the sale of such
Registrable Securities, including information with respect to the
principal amount of Registrable Securities being sold by such holder or
agent or to any underwriters, the name and description of such holder,
agent or underwriter, the offering price of such Registrable Securities
and any discount, commission or other compensation payable in respect
thereof, the purchase price being paid therefor by such underwriters
and with respect to any other terms of the offering
-11-
of the Registrable Securities to be sold by such holder or agent or to
such underwriters; and make all required filings of such prospectus
supplement or post-effective amendment promptly after notification of
the matters to be incorporated in such prospectus supplement or
post-effective amendment;
(ix) upon request, furnish to each holder of Registrable
Securities, each placement or sales agent, if any, therefor, each
underwriter, if any, thereof and the respective counsel referred to in
Section 3(e)(iv) an executed copy (or, in the case of a holder of
Registrable Securities, a conformed copy) of such Shelf Registration
Statement, each such amendment and supplement thereto (in each case
including all exhibits thereto (in the case of a holder of Registrable
Securities, upon request) and documents incorporated by reference
therein) and such number of copies of such Shelf Registration Statement
(excluding exhibits thereto and documents incorporated by reference
therein unless specifically so requested by such holder, agent or
underwriter, as the case may be) and of the prospectus included in such
Shelf Registration Statement (including each preliminary prospectus and
any summary prospectus), in conformity in all material respects with
the applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder, and such other documents, as such holder, agent, if any,
and underwriter, if any, may reasonably request in order to facilitate
the offering and disposition of the Registrable Securities owned by
such holder, offered or sold by such agent or underwritten by such
underwriter and to permit such holder, agent and underwriter to satisfy
the prospectus delivery requirements of the Securities Act; and,
subject to Sections 2(a) and (b) and 3(e)(vi)(C), (E) and (F), the
Issuer hereby consents to the use of such prospectus (including such
preliminary and summary prospectus) and any amendment or supplement
thereto by each such holder and by any such agent and underwriter, in
each case in the form most recently provided to such person by the
Issuer, in connection with the offering and sale of the Registrable
Securities covered by the prospectus (including such preliminary and
summary prospectus) or any supplement or amendment thereto;
(x) use its reasonable best efforts to (A) register or qualify
the Registrable Securities to be included in such Shelf Registration
Statement under such securities laws or blue sky laws of such
jurisdictions as any holder of such Registrable Securities and each
placement or sales agent, if any, therefor and underwriter, if any,
thereof shall reasonably request, (B) keep such registrations or
qualifications in effect and comply with such laws so as to permit the
continuance of offers, sales and dealings therein in such jurisdictions
during the period the Shelf Registration is required to remain
effective under Section 2(b) above or, if a shorter period, for so long
as may be necessary to enable any such holder, agent or underwriter to
complete its distribution of Securities pursuant to such Shelf
Registration Statement and (C) take any and all other actions as may be
reasonably necessary or advisable to enable each such holder, agent, if
any, and underwriter, if any, to consummate the disposition in such
jurisdictions of such Registrable Securities; provided, however, that
neither the Issuer nor the Guarantor shall be required for any such
purpose to (1) qualify as a foreign corporation in any jurisdiction
wherein it would not otherwise be required to qualify but for the
requirements of this Section 3(e)(x), (2) consent to general service of
process in any such jurisdiction, (3) become subject to any tax or (5)
make any changes to its certificate of incorporation or by-laws or any
agreement between it and its stockholders;
-12-
(xi) use its reasonable best efforts to obtain the consent or
approval of each governmental agency or authority, whether Federal,
state or local, which may be required to effect the Shelf Registration
or the offering or sale in connection therewith or to enable the
selling holder or holders to offer, or to consummate the disposition
of, their Registrable Securities;
(xii) cooperate with the holders of the Registrable Securities
and the managing underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities to be sold, which certificates shall be printed,
lithographed or engraved, or produced by any combination of such
methods, and which shall not bear any restrictive legends; and, in the
case of an underwritten offering, enable such Registrable Securities to
be in such denominations and in such names as the managing underwriters
may request at least two business days prior to any sale of the
Registrable Securities;
(xiii) provide a CUSIP number for all Registrable Securities,
not later than the applicable Effective Time;
(xiv) enter into one or more underwriting agreements,
engagement letters, agency agreements, "best efforts" underwriting
agreements or similar agreements, as appropriate, including customary
provisions relating to indemnification and con tribution, and take such
other actions in connection therewith as any holders of Registrable
Securities aggregating at least 20% aggregate principal amount of the
Registrable Securities at the time outstanding shall reasonably request
in order to expedite or facilitate the disposition of such Registrable
Securities; provided, that the Issuer shall not be required to enter
into any such agreement more than once with respect to all of the
Registrable Securities and may delay entering into such agreement until
the consummation of any underwritten public offering which the Issuer
shall have then engaged;
(xv) whether or not an agreement of the type referred to in
Section 3(e)(xiv) hereof is entered into and whether or not any portion
of the offering contemplated by the Shelf Registration is an
underwritten offering or is made through a placement or sales agent or
any other entity, (A) make such representations and warranties to the
holders of the Registrable Securities covered by such Shelf
Registration and the placement or sales agent, if any, therefor and the
underwriters, if any, thereof in form, substance and scope as are
customarily made in connection with an offering of debt securities
pursuant to any appropriate agreement or to a registration statement
filed on the form applicable to the Shelf Registration; (B) obtain an
opinion of counsel to the Issuer and the Guarantor in customary form
and covering such matters, of the type customarily covered by such an
opinion, as the managing underwriters, if any, or as any holders of at
least 20% in aggregate principal amount of the Registrable Securities
at the time outstanding may reasonably request, addressed to such
holder or holders and the placement or sales agent, if any, therefor
and the underwriters, if any, thereof and dated the effective date of
such Shelf Registration Statement (and if such Shelf Registration
Statement contemplates an underwritten offering of a part or all of the
Registrable Securities, dated the date of the closing under the
underwriting agreement relating thereto) (it being agreed that the
matters to be covered by such opinion shall include the due
incorporation of the Issuer, the Guarantor and their material
subsidiaries; the qualification of the Issuer, the Guarantor and their
material U.S. subsidiaries to transact business as foreign
corporations; the due authorization, execution and delivery of the
relevant agreement of the type
-13-
referred to in Section 3(d)(xiv) hereof; the due authorization,
execution, authentication and issuance, and the validity and
enforceability, of the Registrable Securities; the absence of material
legal or governmental proceedings involving the Issuer; the absence of
a breach by the Issuer or any of its subsidiaries of, or a default
under, material agreements binding upon the Issuer or any subsidiary of
the Issuer; the absence of governmental approvals required to be
obtained in connection with the Shelf Registration, the offering and
sale of the Registrable Securities, this Exchange and Registration
Rights Agreement or any agreement of the type referred to in Section
3(e)(xiv) hereof, except such approvals as may be required under state
securities or blue sky laws; the material compliance as to form of such
Shelf Registration Statement and any documents incorporated by
reference therein and of the Indentures with the requirements of the
Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder, respectively; and, subject to
reasonable and customary limitations and exceptions; and, such counsel
shall also state that, as of the date of the opinion and of the Shelf
Registration Statement or most recent post-effective amendment thereto,
as the case may be, the absence from such Shelf Registration Statement
and the prospectus included therein, as then amended or supplemented,
and from the documents incorporated by reference therein (in each case
other than the financial statements and related footnotes and schedules
and other financial information contained therein) of an untrue
statement of a material fact or the omission to state therein a
material fact necessary to make the statements therein not misleading
(in the case of such documents, in the light of the circumstances
existing at the time that such documents were filed with the Commission
under the Exchange Act)); (C) obtain a "cold comfort" letter or letters
from the independent certified public accountants of the Issuer
addressed to the selling holders of Registrable Securities, the
placement or sales agent, if any, therefor or the underwriters, if any,
thereof, dated (i) the effective date of such Shelf Registration
Statement and (ii) the effective date of any prospectus supplement to
the prospectus included in such Shelf Registration Statement or
post-effective amendment to such Shelf Registration Statement which
includes unaudited or audited financial statements as of a date or for
a period subsequent to that of the latest such statements included in
such prospectus (and, if such Shelf Registration Statement contemplates
an underwritten offering pursuant to any prospectus supplement to the
prospectus included in such Shelf Registration Statement or
post-effective amendment to such Shelf Registration Statement which
includes unaudited or audited financial statements as of a date or for
a period subsequent to that of the latest such state ments included in
such prospectus, dated the date of the closing under the underwriting
agreement relating thereto), such letter or letters to be in customary
form and covering such matters of the type customarily covered by
letters of such type; (D) deliver such documents and certificates,
including officers' certificates, as may be reasonably requested by any
holders of at least a 20% in aggregate principal amount of the
Registrable Securities at the time outstanding or the placement or
sales agent, if any, therefor and the managing underwriters, if any,
thereof to evidence the accuracy of the representations and warranties
made pursuant to clause (A) above or those contained in Section 5(a)
hereof and the compliance with or satisfaction of any agreements or
conditions contained in the underwriting agreement or other agreement
entered into by the Issuer or the Guarantor; and (E) undertake such
obligations relating to expense reimbursement, indemnification and
contribution as are provided in Section 6 hereof;
15
(xvi) notify in writing each holder of Registrable Securities
of any proposal by the Issuer to amend or waive any provision of this
Exchange and Registration Rights Agreement pursuant to Section 9(h)
hereof and of any amendment or waiver effected pursuant thereto, each
of which notices shall contain the text of the amendment or waiver
proposed or effected, as the case may be;
(xvii) in the event that any broker-dealer registered under
the Exchange Act shall underwrite any Registrable Securities or
participate as a member of an underwriting syndicate or selling group
or "assist in the distribution" (within the meaning of the Rules of
Fair Practice and the By-Laws of the National Association of Securities
Dealers, Inc. ("NASD") or any successor thereto, as amended from time
to time) thereof, whether as a holder of such Registrable Securities or
as an underwriter, a placement or sales agent or a broker or dealer in
respect thereof, or otherwise, assist such broker-dealer in complying
with the requirements of such Rules and By-Laws, including by (A) if
such Rules or By-Laws shall so require, engaging a "qualified
independent underwriter" (as defined in the schedules thereto (or any
successor thereto)) to participate in the preparation of the Shelf
Registration Statement relating to such Registrable Securities, to
exercise usual standards of due diligence in respect thereto and, if
any portion of the offering contemplated by such Shelf Registration
Statement is an underwritten offering or is made through a placement or
sales agent, to recommend the yield of such Registrable Securities, (B)
indemnifying any such qualified independent underwriter to the extent
of the indemnification of underwriters provided in Section 6 hereof,
and (C) providing such information to such broker-dealer as may be
required in order for such broker-dealer to comply with the
requirements of the Rules of Fair Practice of the NASD; and
(xviii) comply with all applicable rules and regulations of
the Commission, and make generally available to its security holders as
soon as practicable but in any event not later than eighteen months
after the effective date of such Shelf Registration Statement, an
earning statement of the Issuer, the Guarantor and their subsidiaries
complying with Section 11(a) of the Securities Act (including, at the
option of the Issuer, Rule 158 thereunder).
(f) In the event that the Issuer would be required, pursuant to Section
3(e)(vi)(F) above, to notify the selling holders of Registrable Securities, the
placement or sales agent, if any, therefor and the managing underwriters, if
any, thereof, as applicable, the Issuer shall without delay prepare and furnish
to each such holder, to each placement or sales agent, if any, and to each such
underwriter, if any, a reasonable number of copies of a prospectus supplemented
or amended so that, as thereafter delivered to purchasers of Registrable
Securities, such prospectus shall conform in all material respects to the
applicable requirements of the Securities Act and the Trust Indenture Act and
the rules and regulations of the Commission thereunder and shall 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 in
light of the circumstances then existing. Each holder of Registrable Securities
agrees that upon receipt of any notice from the Issuer pursuant to Section
3(e)(vi)(F) hereof, such holder shall forthwith discontinue the disposition of
Registrable Securities pursuant to the Shelf Registration Statement applicable
to such Registrable Securities until such holder shall have received copies of
such amended or supplemented prospectus, and if so directed by the Issuer, such
holder shall deliver to the Issuer, (at the Issuer's expense) all copies, other
than permanent file
-15-
copies, then in such xxxxxx's possession of the prospectus
covering such Registrable Securities at the time of receipt of such notice.
(g) The Issuer may require each holder of Registrable Securities as to
which any Shelf Registration pursuant to Section 2(b) is being effected to
furnish to the Issuer such information regarding such holder and such xxxxxx's
intended method of distribution of such Registrable Securities as the Issuer may
from time to time reasonably request in writing, but only to the extent that
such information is required in order to comply with the Securities Act. Each
such holder agrees to notify the Issuer as promptly as practicable of any
inaccuracy or change in information previously furnished by such holder to the
Issuer or of the occurrence of any event in either case as a result of which any
prospectus relating to such Shelf Registration contains or would contain an
untrue statement of a material fact regarding such holder or such holder's
intended method of disposition of such Registrable Securities or omits to state
any material fact regarding such holder or such holder's intended method of
disposition of such Registrable Securities required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing, and promptly to furnish to the Issuer any
additional information required to correct and update any previously furnished
information or required so that such prospectus shall not contain, with respect
to such holder or the disposition of such Registrable Securities, 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 in
light of the circumstances then existing.
(h) Until the expiration of two years after the Closing Date, the
Issuer will not, and will not permit any of its "affiliates" (as defined in Rule
155) to, resell any of the Securities that have been reacquired by any of them
except pursuant to an effective registration statement under the Securities Act.
5. Registration Expenses.
The Issuer and the Guarantor, jointly and severally, agree to bear and
to pay or cause to be paid promptly, upon request, all expenses incident to the
Issuer's and the Guarantor's performance of or compliance with this Exchange and
Registration Rights Agreement, including (a) all Commission and any NASD
registration, filing and review fees and expenses, (b) all fees and expenses in
connection with the qualification of the Securities for offering and sale under
the State securities and blue sky laws referred to in Section 3(e)(x) hereof and
determination of their eligibility for investment under the laws of such
jurisdictions as any managing underwriters or the holders of such Registrable
Securities may designate, including any reasonable fees and disbursements of
counsel for the selling holders or underwriters in connection with such
qualification and determination, (c) all expenses relating to the preparation,
printing, production, distribution and reproduction of each registration
statement required to be filed hereunder, each prospectus included therein or
prepared for distribution pursuant hereto, each amendment or supplement to the
foregoing, the expenses of preparing the Securities for delivery and the
expenses of reproducing and distributing any underwriting agreements, agreements
among underwriters, selling agreements and "Blue Sky" or legal investment
memoranda and all other documents in connection with the offering, sale or
delivery of Securities to be disposed of (including certificates representing
the Securities), (d) messenger, telephone and delivery expenses of the Issuer
and the Guarantor relating to the offering, sale or delivery of Securities and
the preparation of documents referred in clause (c) above, (e) fees and expenses
of the Trustee under the Indentures, any agent of the Trustee and any counsel
for the Trustee and of any collateral agent or custodian, (f) internal expenses
of the Issuer and the Guarantors (including all salaries and expenses of
-16-
the Issuer's and the Guarantor's officers and employees performing legal or
accounting duties), (g) fees, disbursements and expenses of counsel and
independent certified public accountants of the Issuer and the Guarantor
(including the expenses of any opinions or "cold comfort" letters
required by or incident to such performance and compliance), (h) reasonable
fees, disbursements and expenses of any "qualified independent underwriter"
engaged pursuant to Section 3(e)(xvii) hereof (i) reasonable fees, disbursements
and expenses of one counsel for the holders of Registrable Securities retained
in connection with an Exchange Registration and a Shelf Registration, as
selected by the holders of at least a majority in aggregate principal amount of
the Registrable Securities being registered (which counsel shall be reasonably
satisfactory to the Issuer), (j) any fees charged by securities rating services
for rating the Securities and (k) fees, expenses and disbursements of any other
persons, including special experts, retained by the Issuer or the Guarantor in
connection with such registration (collectively, the "Registration Expenses").
To the extent that any Registration Expenses are incurred, assumed or paid by
any holder of Registrable Securities or any placement or sales agent therefor or
underwriter thereof, the Issuer and the Guarantor, jointly and severally, shall
reimburse such person for the full amount of the Registration Expenses so
incurred, assumed or paid promptly after receipt of a request therefor. It is
understood, however, that except as provided in this Section and in Section 6,
the holders of the Registrable Securities being registered shall pay all of
their own costs and expenses, including, but not limited to, all agency fees and
commissions and under writing discounts and commissions attributable to the sale
of such Registrable Securities and the fees and disbursements of any counsel or
other advisors or experts retained by such holders (severally or jointly, other
than the counsel and experts specifically refereed to above).
5. Representations and Warranties.
The Issuer and the Guarantor, jointly and severally, represents and
warrants to, and agrees with, the Purchasers and each of the holders from time
to time of Registrable Securities that:
(a) Each registration statement covering Registrable
Securities and each prospectus (including any preliminary or summary
prospectus) contained therein or furnished pursuant to Section 3(e) or
Section 3(d) hereof and any further amendments or supplements to any
such registration statement or prospectus, when it becomes effective or
is filed with the Commission, as the case may be, and, in the case of
an underwritten offering of Registrable Securities, at the time of the
closing under the underwriting agreement relating thereto, will conform
in all material respects to the applicable requirements of the
Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder and will 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 at all times subsequent to the Effective Time when a
prospectus would be required to be delivered under the Securities Act,
other than from (i) such time as a notice has been given to holders of
Registrable Securities pursuant to Section 3(e)(vi)(F) or Section
3(d)(iii)(F) hereof until (ii) such time as the Issuer furnishes an
amended or supplemented prospectus pursuant to Section 3(f) or Section
3(d)(iv) hereof, each such registration statement, and each prospectus
(including any summary prospectus) contained therein or furnished
pursuant to Section 3(e) or Section 3(d) hereof, as then amended or
supplemented, will conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder and will not contain
an untrue statement of a material fact
-17-
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of
the circumstances then existing; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Issuer by or on behalf of a holder of
Registrable Securities expressly for use therein.
(b) Any documents incorporated by reference in any prospectus
referred to in Section 5(a) hereof, when they become or became
effective or are or were filed with the Commission, as the case may be,
will conform or conformed in all material respects to the requirements
of the Securities Act or the Exchange Act, as applicable, and none of
such documents will contain or contained an untrue statement of a
material fact or will omit or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Issuer
by or on behalf of a holder of Registrable Securities expressly for use
therein.
(c) The compliance by the Issuer and the Guarantor with all of
the provisions of this Exchange and Registration Rights Agreement and
the consummation of the transactions herein contemplated will not (i)
result in any violation of the provisions of the Memorandum and
Articles of Association of the Issuer, the Memorandum of Association or
Bye-laws of the Guarantor, (ii) result in a breach or violation of any
of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Issuer or the Guarantor or any of their
subsidiaries is a party or by which the Issuer or the Guarantor or any
of their subsidiaries is bound or to which any of the property or
assets of the Issuer or the Guarantor or any of their subsidiaries is
subject, nor (iii) will such action result in any violation of any
existing statute, order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Issuer, the
Guarantor or any of their subsidiaries or any of their properties
except, in the case of clauses (ii) and (iii) above, such breaches or
violations which would not, individually or in the aggregate, be
reasonably likely to have a material adverse change, in or affecting
the general affairs, management, financial position, shareholders'
equity or results of operations of the Issuer, the Guarantor and their
subsidiaries taken as a whole; and no consent, approval, authorization,
order, registration or qualification of or with any such governmental
agency is required for the issue and sale of the Securities or the
consummation by the Issuer or the Guarantor of the transactions
contemplated by this Registration Rights Agreement, except the
registration under the Securities Act of the Securities, qualification
of the Indenture, under the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under State or foreign securities or blue sky laws in
connection with the offering and distribution of the Securities.
(d) This Exchange and Registration Rights Agreement has been
duly authorized, executed and delivered by the Issuer and the
Guarantor.
6. Indemnification.
(a) Indemnification by the Issuer and the Guarantor. The Issuer and the
Guarantor, jointly and severally, will indemnify and hold harmless each of the
holders of
-18-
Registrable Securities included in a registration statement filed pursuant to
Section 2(a) or 2(b) hereof, and each person who participates as a placement or
sales agent or as an underwriter in any offering or sale of such Registrable
Securities against any losses, claims, damages or liabilities, joint or several,
to which such holder, agent or underwriter may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
registration statement under which such Registrable Securities were registered
under the Securities Act, or any preliminary, final or summary prospectus
contained therein or furnished by the Issuer or the Guarantor to any such
holder, agent or underwriter, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact necessary to make the statements therein not misleading, and will
reimburse such holder, such agent and such underwriter for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that the Issuer and the Guarantor shall not be liable in any such case
to the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement, or preliminary, final or
summary prospectus, or amendment or supplement thereto, in reliance upon and in
conformity with written information furnished to the Issuer or the Guarantor by
or on behalf of holders of Registrable Securities expressly for use therein;
(b) Indemnification by the Holders and any Agents and Underwriters. The
Issuer may require, as a condition to including any Registrable Securities in
any registration statement filed pursuant to Section 2(b) hereof and to entering
into any underwriting agreement with respect thereto, that the Issuer shall have
received an undertaking reasonably satisfactory to it from the holder of such
Registrable Securities and from each underwriter named in any such underwriting
agreement, severally and not jointly, to (i) indemnify and hold harmless the
Issuer and the Guarantor, and all other holders of Registrable Securities,
against any losses, claims, damages or liabilities to which the Issuer or the
Guarantor or such other holders of Registrable Securities may become subject,
under the Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in
such registration statement, or any preliminary, final or summary prospectus
contained therein or furnished by the Issuer to any such holder, agent or
underwriter, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such 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
Issuer or the Guarantor by or on behalf of such holder or underwriter expressly
for use therein, and (ii) reimburse the Issuer or the Guarantor for any legal or
other expenses reasonably incurred by the Issuer or the Guarantor in connection
with investigating or defending any such action or claim as such expenses are
incurred; provided, however, that no such holder shall be required to undertake
liability to any person under this Section 6(b) for any amounts in excess of the
dollar amount of the proceeds to be received by such holder from the sale of
such holder's Registrable Securities pursuant to such registration.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified
party under subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is to be
made against an
-19-
indemnifying party pursuant to the indemnification provisions of or contemplated
by this Section 6, notify such indemnifying party in writing of the commencement
of such action; but the omission so to notify the indemnifying party shall not
relieve it from any liability which it may have to any indemnified party other
than under the indemnification provisions of or contemplated by Section 6(a) or
6(b) hereof. In case any such action shall be brought against any indemnified
party and it shall notify an indemnifying party of the commencement thereof, and
such indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, jointly with any other indemnifying party similarly
noti fied, to assume the defense thereof, with counsel reasonably satisfactory
to such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and, after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, such indemnifying party shall not be liable to such
indemnified party for any legal expenses of other counsel or any other expenses,
in each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the indemnified party,
effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party.
(d) Contribution. If for any reason the indemnification provisions
contemplated by Section 6(a) or Section 6(b) are unavailable to or insufficient
to hold harmless an indemnified party in respect of any losses, claims, damages
or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and the indemnified party in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by
such indemnifying party or by such indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be just
and equitable if contributions pursuant to this Section 6(d) were determined by
pro rata allocation (even if the holders or any agents or underwriters or all of
them were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to in this Section 6(d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, or liabilities (or actions in respect
thereof) referred to above shall be deemed to include any legal or other fees or
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6(d), no holder shall be required to contribute any
amount in excess
-20-
of the amount by which the dollar amount of the proceeds received by such holder
from the sale of any Registrable Securities (after deducting any fees, discounts
and commissions applicable thereto) exceeds the amount of any damages which such
holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission, and no underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Registrable Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The holders' and any underwriters'
obligations in this Section 6(d) to contribute shall be several in proportion to
the principal amount of Registrable Securities registered or underwritten, as
the case may be, by them and not joint.
(e) The obligations of the Issuer and the Guarantor under this Section
6 shall be in addition to any liability which the Issuer or the Guarantor may
otherwise have and shall extend, upon the same terms and conditions, to each
officer, director and partner of each holder, agent and underwriter and each
person, if any, who controls any holder, agent or underwriter within the meaning
of the Securities Act; and the obligations of the holders and any agents or
underwriters contemplated by this Section 6 shall be in addition to any
liability which the respective holder, agent or underwriter may otherwise have
and shall extend, upon the same terms and conditions, to each officer and
director of the Issuer and the Guarantor (including any person who, with his
consent, is named in any registration statement as about to become a director of
the Issuer or the Guarantor) and to each person, if any, who controls the Issuer
or the Guarantor within the meaning of the Securities Act.
7. Underwritten Offerings.
(a) Selection of Underwriters. If any of the Registrable Securities
covered by the Shelf Registration are to be sold pursuant to an underwritten
offering, the managing underwriter or underwriters thereof shall be designated
by the holders of at least a majority in aggregate principal amount of the
Registrable Securities to be included in such offering, provided that such
designated managing underwriter or underwriters is or are reasonably acceptable
to the Issuer.
(b) Participation by Holders. Each holder of Registrable Securities
hereby agrees with each other such holder that no such holder may participate in
any underwritten offering hereunder unless such holder (i) agrees to sell such
holder's Registrable Securities on the basis 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.
8. Rule 155.
Each of the Issuer and the Guarantor covenants to the holders of
Registrable Securities that to the extent it shall be required to do so under
the Exchange Act, it shall timely file the reports required to be filed by it
under the Exchange Act or the Securities Act (including the reports under
Section 13 and 15(d) of the Exchange Act referred to in subparagraph (c)(1) of
Rule 155 adopted by the Commission under the Securities Act) and the rules and
regulations adopted by the Commission thereunder, and shall take such further
action as any holder of Registrable Securities may reasonably request, all to
the extent required from time to time to enable such holder to sell Registrable
Securities without registration under the Securities Act within the limitations
of the exemption provided by Rule 155 under the Securities Act, as such Rule may
be amended from time to time, or any similar or successor rule or regulation
hereafter adopted by the Commis-
-21-
sion. Upon the request of any holder of Registrable Securities in connection
with that holder's sale pursuant to Rule 155, the Issuer or the Guarantor, as
applicable, shall deliver to such holder a written statement as to whether it
has complied with such requirements.
9. Miscellaneous.
(a) No Inconsistent Agreements. The Issuer represents, warrants,
covenants and agrees that it has not granted, and shall not grant, registration
rights with respect to Registrable Securities or any other securities which
would be inconsistent with the terms contained in this Exchange and Registration
Rights Agreement.
(b) Specific Performance. The parties hereto acknowledge that there
would be no adequate remedy at law if any party fails to perform any of their
respective obligations hereunder and that each party may be irreparably harmed
by any such failure, and accordingly agree that each party, in addition to any
other remedy to which they may be entitled at law or in equity, shall be
entitled to compel specific performance of the respective obligations of any
other party under this Exchange and Registration Rights Agreement in accordance
with the terms and conditions of this Exchange and Registration Rights
Agreement, in any court of the United States or any State thereof having
jurisdiction.
(c) Notices. All notices, requests, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered by hand, if delivered personally or by courier, or
three days after being deposited in the mail (registered or certified mail,
postage prepaid, return receipt requested) as follows: If to the Issuer or the
Guarantor, to it at 000 Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000, c/o
RSL Communications, N. America, Inc., Attention: Xxxxx Xxxxxxx, Esq. with a copy
to Debevoise & Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxx Xxxxxxx, Esq., and if to a holder, to the address of such holder set
forth in the security register or other records of the Issuer, or to such other
address as the Issuer or any such holder may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
(d) Parties in Interest. All the terms and provisions of this Exchange
and Registration Rights Agreement shall be binding upon, shall inure to the
benefit of and shall be enforceable by the parties hereto and the holders from
time to time of the Registrable Securities and the respective successors and
assigns of the parties hereto and such holders. In the event that any transferee
of any holder of Registrable Securities shall acquire Registrable Securities, in
any manner, whether by gift, bequest, purchase, operation of law or otherwise,
such transferee shall, without any further writing or action of any kind, be
deemed a beneficiary hereof for all purposes and such Registrable Securities
shall be held subject to all of the terms of this Exchange and Registration
Rights Agreement, and by taking and holding such Registrable Securities such
transferee shall be entitled to receive the benefits of, and be conclusively
deemed to have agreed to be bound by, all of the applicable terms and provisions
of this Exchange and Registration Rights Agreement. If the Issuer shall so
request, any such successor, assign or transferee shall acknowledge in writing
that such successor, assign, or transferee will acquire and hold the Registrable
Securities subject to all of the applicable terms hereof.
(e) Survival. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this Exchange and Registration
Rights Agreement or made pursuant hereto shall remain in full force and effect
regardless of any investigation
-22-
(or statement as to the results thereof) made by or on behalf of the Purchasers
or any holder of Registrable Securities, any director, officer or partner of
such holder, any agent or underwriter or any director, officer or partner
thereof, or any controlling person of any of the foregoing, and shall survive
delivery of and payment for the Registrable Securities pursuant to the Purchase
Agreement and the transfer and registration of Registrable Securities by such
holder and the consummation of each Exchange Offer.
(f) LAW GOVERNING. THIS EXCHANGE AND REGISTRATION RIGHTS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAW OF THE STATE OF NEW YORK.
(g) Headings. The descriptive headings of the several Sections and
paragraphs of this Exchange and Registration Rights Agreement are inserted for
convenience only, do not constitute a part of this Exchange and Registration
Rights Agreement and shall not affect in any way the meaning or interpretation
of this Exchange and Registration Rights Agreement.
(h) Entire Agreement; Amendments. This Exchange and Registration Rights
Agreement and the other writings referred to herein (including the Indentures
and the form of Securities) or delivered pursuant hereto which form a part
hereof contain the entire understanding of the parties with respect to its
subject matter. This Exchange and Registration Rights Agreement supersedes all
prior agreements and understandings between the parties with respect to its
subject matter. This Exchange and Registration Rights Agreement may be amended
and the observance of any term of this Exchange and Registration Rights
Agreement may be waived (either generally or in a particular instance and either
retroactively or prospectively) only by a written instrument duly executed by
the Issuer and the holders of at least a majority in aggregate principal amount
of the Registrable Securities at the time outstanding. Each holder of any
Registrable Securities at the time or thereafter outstanding shall be bound by
any amendment or waiver effected pursuant to this Section 9(h), whether or not
any notice, writing or marking indicating such amendment or waiver appears on
such Registrable Securities or is delivered to such holder. Notwithstanding the
foregoing, a waiver or consent to departure from the provisions hereof that
relates exclusively to the rights of holders whose Registrable Securities are
being tendered pursuant to the Exchange Offer and that does not affect directly
or indirectly the rights of other holders whose Registrable Securities are not
being tendered pursuant to such Exchange Offer may be given by the holders of at
least a majority of the outstanding principal amount of Registrable Securities
being tendered or registered.
(i) Inspection. For so long as this Exchange and Registration Rights
Agreement shall be in effect, this Exchange and Registration Rights Agreement
and a complete list of the names and addresses of all the holders of Registrable
Securities shall be made available for inspection and copying on any business
day by any holder of Registrable Securities for proper purposes only (which
shall include any purpose related to the rights of the holders of Registrable
Securities under the Securities, the Indentures and this Agreement) at the
offices of the Issuer at the address thereof set forth in Section 9(c) above and
at the office of the Trustee under the Indentures.
(j) Counterparts. This agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
-23-
Please confirm that the foregoing correctly sets forth the agreement
between the Issuer, the Guarantors and you.
Very Truly Yours,
RSL Communications PLC
By: /s/ Xxxxxx Xxxxxx
------------------------
Name:
Title:
RSL Communications, Ltd.
By: /s/ Xxxxxx Xxxxxx
-------------------------
Name:
Title:
RSL COM U.S.A., Inc.
By: /s/ Xxxxxx Xxxxxx
--------------------------
Name:
Title:
Xxxxxxx, Xxxxx & Co.
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxx Brothers Inc.
By: /s/ Xxxxxxx, Xxxxx & Co.
----------------------------------
(Xxxxxxx, Xxxxx & Co.)
On Behalf of Each of the Purchasers
Exhibit A
RSL COMMUNICATIONS PLC
RSL COMMUNICATIONS, LTD.
RSL COM U.S.A., INC.
INSTRUCTION TO DTC PARTICIPANTS
(Date of Mailing)
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: [DATE](1)
-------------------------------
The Depository Trust Company ("DTC") has identified you as a
DTC Participant through which beneficial interests in RSL Communications PLC's
(the "Issuer") $100,000,000 aggregate principal amount at maturity 12 7/8%
Senior Notes due 2010 and (U)100,000,000 aggregate principal amount at maturity
12 7/8% Senior Notes due 2010 (collectively, the "Notes") are held. The Notes
are unconditionally guaranteed as to payment of principal, interest and any
other amounts due thereon (the "Notes Guarantees") by RSL Communications, Ltd.
(the "Parent Guarantor") and RSL COM U.S.A., Inc. (the "Subsidiary Guarantor").
The Notes and the Notes Guarantees, collectively, are the "Securities".
The Issuer is in the process of registering the Securities
under the Securities Act of 1933 for resale by the beneficial owners thereof. In
order to have their Securities included in the registration statement,
beneficial owners must complete and return the enclosed Notice of Registration
Statement and Selling Securityholder Questionnaire.
It is important that beneficial owners of the Securities
receive a copy of the enclosed materials as soon as possible as their rights to
have the Securities included in the registration statement depend upon their
returning the Notice and Questionnaire by [DEADLINE FOR RESPONSE]. Please
forward a copy of the enclosed documents to each beneficial owner that holds
interests in the Securities through you. If you require more copies of the
enclosed materials or have any questions pertaining to this matter, please
contact [ ] , Attention:
[ ].
--------
(1) Not less than 28 calendar days from date of mailing.
-25-
RSL Communications PLC
RSL Communications, Ltd.
Notice of Registration Statement
and
Selling Securityholder Questionnaire
(Date)
Reference is hereby made to the Exchange and Registration Rights
Agreement (the "Exchange and Registration Rights Agreement"), between RSL
Communications PLC (the "Issuer"), RSL Communications, Ltd. (the "Parent
Guarantor"), RSL COM U.S.A., Inc. (the "Subsidiary Guarantor") and the
Purchasers named therein. Pursuant to the Exchange and Registration Rights
Agreement, the Issuer has filed with the United States Securities and Exchange
Commission (the "Commission") a registration statement on Form S-1 (the "Shelf
Registration Statement") for the registration and resale under Rule 515 of the
Securities Act of 1933, as amended (the "Securities Act"), of the Issuer's
$100,000,000 aggregate principal amount at maturity 12 7/8% Senior Notes due
2010 and (U)100,000,000 aggregate principal amount at maturity 12 7/8% Senior
Notes due 2010 (collectively, the "Notes"). The Notes are unconditionally
guaranteed as to payment of principal, interest and any other amounts due
thereon (the "Notes Guarantees") by RSL Communications, Ltd. (the "Parent
Guarantor") and RSL COM U.S.A., Inc. (the "Subsidiary Guarantor"). The Notes
Guarantee together with the Notes are the "Securities". A copy of the Exchange
and Registration Rights Agreement is attached hereto. All capitalized terms not
otherwise defined herein shall have the meanings ascribed thereto in the
Exchange and Registration Rights Agreement.
Each beneficial owner of Registrable Securities (as defined
below) is entitled to have the Registrable Securities beneficially owned by it
included in the Shelf Registration Statement. In order to have Registrable
Securities included in the Shelf Registration Statement, this Notice of
Registration Statement and Selling Securityholder Questionnaire ("Notice and
Questionnaire") must be completed, executed and delivered to the Issuer's
counsel at the address set forth herein for receipt ON OR BEFORE [DEADLINE FOR
RESPONSE]. Beneficial owners of Registrable Securities who do not complete,
execute and return this Notice and Questionnaire by such date (i) will not be
named as selling securityholders in the Shelf Registration Statement and (ii)
may not use the Prospectus forming a part thereof for resales of Registrable
Securities.
Certain legal consequences arise from being named as a selling
securityholder in the Shelf Registration Statement and related Prospectus.
Furthermore, pursuant to the Exchange and Registration Rights Agreement, you may
be liable to the Issuer, the Guarantors and other selling securityholders for
any losses that result from inaccuracies or omissions in the information you are
requested to provide herein. Accordingly, holders and beneficial owners of
Registrable Securities are advised to consult their own securities law counsel
regarding the consequences of being named or not being named as a selling
securityholder in the Shelf Registration Statement and related Prospectus.
The term "Registrable Securities" is defined in the Exchange and
Registration Rights Agreement.
-26-
ELECTION
The undersigned holder (the "Selling Securityholder") of
Registrable Securities hereby elects to include in the Shelf Registration
Statement the Registrable Securities beneficially owned by it and listed below
in Item (3). The undersigned, by signing and returning this Notice and
Questionnaire, agrees to be bound with respect to such Registrable Securities by
the terms and conditions of this Notice and Questionnaire and the Exchange and
Registration Rights Agreement, including, without limitation, Section 6 of the
Registration Rights Agreement, as if the undersigned Selling Securityholder were
an original party thereto.
Upon any sale of Registrable Securities pursuant to the Shelf
Registration Statement, the Selling Securityholder will be required to deliver
to the Issuer and Trustee the Notice of Transfer set forth in Appendix A to the
Prospectus and as Exhibit B to the Exchange and Registration Rights Agreement.
The Selling Securityholder hereby provides the following
information to the Issuer and represents and warrants that such information is
accurate and complete:
QUESTIONNAIRE
(a) Full Legal Name of Selling Securityholder:
--------------------------------------------------------
(i) Full Legal Name of Registered Holder (if
not the same as in (a) above) of
Registrable Securities Listed in Item
(3) below:
--------------------------------------------------------
(ii) Full Legal Name of DTC Participant (if
applicable and if not the same as (i)
above) Through Which Registrable
Securities Listed in Item (3) below are
Held:
--------------------------------------------------------
(b) Address for Notices to Selling
Securityholder:
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
Telephone: ----------------------------
Fax: ----------------------------
Contact Person: ----------------------------
(c) Beneficial Ownership of Securities:
Except as set forth below in this Item (3), the undersigned does not
beneficially own any Securities.
(i) Principal amount of Registrable
Securities beneficially owned:
----------
CUSIP No(s). of such Registrable Securities:
------------------
(ii) Principal amount of Securities other
than Registrable Securities
beneficially owned:
CUSIP No(s). of such other Securities:
------------------------
(iii) Principal amount of Registrable
Securities which the undersigned
wishes to be included in the Shelf
Registration Statement:
----------------
CUSIP No(s). of such Registrable Securities to be included in the Shelf
Registration Statement:
------------------------------------------------
(d) Beneficial Ownership of Other Securities of
the Issuer and the Guarantors:
Except as set forth below in this Item (5), the undersigned Selling
Securityholder is not the beneficial or registered owner of any other securities
of the Issuer or either Guarantor, other than the Securities listed above in
Item (3).
State any exceptions here:
(e) Relationships with the Issuer and either
Guarantor:
Except as set forth below, neither the Selling Securityholder nor any
of its affiliates, officers, directors or principal equity holders (5% or more)
has held any position or office or has had any other material relationship with
the Issuer or the Guarantor (or their predecessors or affiliates) during the
past three years.
State any exceptions here:
(f) Plan of Distribution:
Except as set forth below, the undersigned Selling
Securityholder intends to distribute the Registrable Securities listed above in
Item (3) only as follows (if at all): Such Registrable Securities may be sold
from time to time directly by the undersigned Selling Securityholder or,
alternatively, through underwriters, broker-dealers or agents. Such Registrable
Securities may be sold in one or more transactions at fixed prices, at
prevailing market prices at the time of sale, at varying prices determined at
the time of sale, or at negotiated prices. Such sales may be effected in
transactions (which may involve crosses or block transactions) (i) on any
national securities exchange or quotation service on which the Registered
Securities may be listed or quoted at the time of sale, (ii) in the
over-the-counter market, (iii) in transactions otherwise than on such exchanges
or services or in the over-the-counter market, or (iv) through the writing of
options. In connection with sales of the Registrable Securities or otherwise,
the Selling Securityholder may enter into hedging transactions with
broker-dealers, which may in turn engage in short sales of the Registrable
Securities in the course of hedging the positions they assume. The Selling
Securityholder may also sell Registrable Securities short and deliver
Registrable Securities to close out such short positions, or loan or pledge
Registrable Securities to broker-dealers that in turn may sell such securities.
-2-
State any exceptions here:
By signing below, the Selling Securityholder acknowledges that it
understands its obligation to comply, and agrees that it will comply, with the
provisions of the Exchange Act and the rules and regulations thereunder,
particularly Regulation M.
In the event that the Selling Securityholder transfers all or any
portion of the Registrable Securities listed in Item (3) above after the date on
which such information is provided to the Issuer, the Selling Securityholder
agrees to notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Exchange and
Registration Rights Agreement.
By signing below, the Selling Securityholder consents to the disclosure
of the information contained herein in its answers to Items (1) through (6)
above and the inclusion of such information in the Shelf Registration Statement
and related Prospectus. The Selling Securityholder understands that such
information will be relied upon by the Issuer and the Guarantor in connection
with the preparation of the Shelf Registration Statement and related Prospectus.
In accordance with the Selling Securityholder's obligation under
Section 3(d) of the Exchange and Registration Rights Agreement to provide such
information as may be required by law for inclusion in the Shelf Registration
Statement, the Selling Securityholder agrees to promptly notify the Issuer of
any inaccuracies or changes in the information provided herein which may occur
subsequent to the date hereof at any time while the Shelf Registration Statement
remains in effect. All notices hereunder and pursuant to the Exchange and
Registration Rights Agreement shall be made in writing, by hand-delivery,
first-class mail, or air courier guaranteeing overnight delivery as follows:
(i) To the Issuer and the Guarantors:
(c/o RSL Communications, N. America, Inc.)
RSL Communications PLC
RSL Communications, Ltd.
[ ]
[ ]
Attention:
-3-
(ii) With a copy to:
[ ]
[ ]
[ ]
Attention:
Once this Notice and Questionnaire is executed by the Selling
Securityholder and received by the Issuer 's counsel, the terms of this Notice
and Questionnaire, and the representations and warranties contained herein,
shall be binding on, shall inure to the benefit of and shall be enforceable by
the respective successors, heirs, personal representatives, and assigns of the
Issuer, the Guarantor and the Selling Securityholder (with respect to the
Registrable Securities beneficially owned by such Selling Securityholder and
listed
-5-
in Item (3) above. This Agreement shall be governed in all respects by the laws
of the State of New York.
IN WITNESS WHEREOF, the undersigned, by authority duly given, has
caused this Notice and Questionnaire to be executed and delivered either in
person or by its duly authorized agent.
Dated: ________________
------------------------------------------
Selling Securityholder
Print/type full legal name of beneficial
owner of Registrable Securities)
By:
----------------------------------------
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE [DEADLINE FOR RESPONSE] TO THE ISSUER'S COUNSEL AT:
[ ]
[ ]
[ ]
[ ]
-5-
Exhibit B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
RSL Communications PLC
c/o Trustee
[ ]
[ ]
[ ]
Attention: Trust Officer
Re: RSL Communications PLC (the "Issuer")
12 7/8% Senior Notes due 2010
Dear Sirs:
Please be advised that _____________________ has transferred
$___________ aggregate principal amount of the above-referenced Notes pursuant
to an effective Registration Statement on Form [___] (File No. 333-____) filed
by the Issuer.
We hereby certify that the prospectus delivery requirements,
if any, of the Securities Act of 1933, as amended, have been satisfied and that
the above-named beneficial owner of the Notes is named as a "Selling Holder" in
the Prospectus dated ___________, 199_ or in supplements thereto, and that the
aggregate principal amount of the Notes transferred are the Notes listed in such
Prospectus opposite such owner's name.
Dated:
Very truly yours,
------------------------
(Name)
By: ________________________
(Authorized Signature)
