EXHIBIT 4.5
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "AGREEMENT") is made and
entered into as of December 12, 2001 by and between Cingular Wireless LLC, a
Delaware limited liability company ("ISSUER") and Xxxxxx Brothers Inc., Xxxxxxx,
Sachs & Co. and X.X. Xxxxxx Securities Inc., as representatives of the several
initial purchasers listed in Schedule I to the Purchase Agreement (as defined
below) (the "INITIAL PURCHASERS").
This Agreement is made pursuant to the Purchase Agreement dated
December 6, 2001, between the Issuer and the Initial Purchasers (the "PURCHASE
AGREEMENT"), which provides for the sale by the Issuer to the Initial Purchasers
of $500,000,000 aggregate principal amount of the Issuer's 5.625% Senior Notes
due 2006, $750,000,000 aggregate principal amount of the Issuer's 6.50% Senior
Notes due 2011 and $750,000,000 aggregate principal amount of the Issuer's
7.125% Senior Notes due 2031 (collectively, the "SECURITIES"). The Securities
are to be issued by the Issuer pursuant to the provisions of an indenture dated
as of December 12, 2001 (as amended, supplemented or otherwise modified from
time to time, the "INDENTURE") between the Issuer and Bank One Trust Company,
N.A., as trustee (the "TRUSTEE").
In order to induce the Initial Purchasers to enter into the Purchase
Agreement, the Issuer has agreed to provide to the Initial Purchasers and their
direct and indirect transferees the registration rights with respect to the
Securities set forth in this Agreement. The execution and delivery of this
Agreement is a condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions.
As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"1933 ACT" shall mean the Securities Act of 1933, as amended from time
to time.
"1934 ACT" shall mean the Securities Exchange Act of 1934, as amended
from time to time.
"BUSINESS DAY" shall have the meaning set forth in the Indenture.
"CLOSING DATE" shall mean the Closing Date as defined in the Purchase
Agreement.
"CONSUMMATE" shall have the meaning set forth in Section 2(a) hereof.
"EXCHANGE DATE" shall have the meaning set forth in Section 2(a)(ii)
hereof.
"EXCHANGE OFFER" shall mean an exchange offer by the Issuer of Exchange
Securities for all Securities of an applicable series that are Registrable
Securities pursuant to Section 2(a) hereof.
"EXCHANGE OFFER REGISTRATION" shall mean a registration under the 1933
Act effected pursuant to Section 2(a) hereof.
"EXCHANGE OFFER REGISTRATION STATEMENT" shall mean an exchange offer
registration statement on an appropriate form under the 1933 Act and all
amendments and supplements to such registration statement, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"EXCHANGE SECURITIES" shall mean securities issued by the Issuer under
the Indenture and containing terms identical to the Securities of an applicable
series (except that (i) interest thereon shall accrue from the last date on
which interest was paid on the Securities (or, if the Exchange Securities are
authenticated between a record date and an interest payment date, from such
interest payment date (it being understood that interest to be paid on such
interest payment date will be paid on the Securities in accordance with the
terms thereof)) or, if no such interest has been paid, from December 12, 2001
and (ii) the Exchange Securities will not provide for additional interest
accruing thereon following a failure to register such Exchange Securities under
the 1933 Act and will not contain terms with respect to transfer restrictions)
and to be offered to Holders of Securities in exchange for Securities pursuant
to the Exchange Offer.
"HOLDERS" shall mean the Initial Purchasers, but only for so long as
they own any Registrable Securities, and their successors, assigns and direct
and indirect transferees who are owners of Registrable Securities under the
Indenture, provided that for purposes of Section 5 of this Agreement, the term
"HOLDERS" shall also include Participating Broker-Dealers.
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"INDEMNIFIED PERSON" shall have the meaning set forth in Section 5(c)
hereof.
"INDEMNIFYING PERSON" shall have the meaning set forth in Section 5(c)
hereof.
"INDENTURE" shall have the meaning set forth in the preamble.
"INITIAL PURCHASERS" shall have the meaning set forth in the preamble.
"MAJORITY HOLDERS" shall mean, with respect to a series of Securities,
the Holders of a majority of the aggregate principal amount of outstanding
Registrable Securities of such series; provided that, for purposes of this
Agreement, whenever the consent or approval of Holders of a specified percentage
of Registrable Securities of a series is required hereunder, Registrable
Securities held by the Issuer or any affiliates (as such term is defined in Rule
405 under the 0000 Xxx) of the Issuer shall not be counted in determining
whether such consent or approval was given by the Holders of such required
percentage or amount.
"OFFER TERMINATION DATE" shall have the meaning set forth in Section
2(a)(iv) hereof.
"PARTICIPATING BROKER-DEALER" shall have the meaning set forth in
Section 4(a) hereof.
"PERSON" shall mean an individual, partnership, limited liability
company, corporation, trust or unincorporated organization, or a government or
agency or political subdivision thereof.
"PURCHASE AGREEMENT" shall mean the Purchase Agreement, dated December
6, 2001, between the Company and Xxxxxx Brothers Inc., Xxxxxxx, Xxxxx & Co. and
X.X. Xxxxxx Securities Inc., as representatives of the several Initial
Purchasers named in Schedule I thereto.
"PROSPECTUS" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration Statement, and by all
other amendments and supplements to such prospectus, and in each case including
all material incorporated by reference therein.
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"REGISTRABLE SECURITIES" shall mean the Securities; provided, however,
that a Security shall cease to be a Registrable Security when (i) such Security
shall have been exchanged in an Exchange Offer for an Exchange Security; (ii) a
Shelf Registration Statement with respect to such Security shall have been
declared effective under the 1933 Act and such Security shall have been disposed
of pursuant to such Registration Statement, (iii) such Security has been sold or
is saleable pursuant to Rule 144(k) (or any similar provision then in force, but
not Rule 144A) under the 1933 Act or has been distributed to the public pursuant
to Rule 144 or (iv) such Security shall have ceased to be outstanding.
"REGISTRATION DEFAULT" shall have the meaning set forth in Section 2(e)
hereof.
"REGISTRATION EXPENSES" shall mean any and all expenses incident to
performance of or compliance by the Issuer with this Agreement, including
without limitation: (i) all SEC, stock exchange and National Association of
Securities Dealers, Inc. registration and filing fees, (ii) all fees and
expenses incurred in connection with compliance with state securities or "blue
sky" laws (including reasonable fees and disbursements of counsel for any
underwriters or Holders in connection with blue sky qualification of the
Exchange Securities or Registrable Securities), (iii) all expenses incident to
preparing or assisting in preparing, word processing, printing and distributing
any Registration Statement, any Prospectus, any amendments or supplements
thereto, any underwriting agreements, securities sales agreements and other
documents relating to the performance of and compliance with this Agreement,
(iv) all rating agency fees, (v) all fees and disbursements relating to the
qualification of the Indenture under applicable securities laws, (vi) the fees
and disbursements of the Trustee and its counsel, (vii) the fees and
disbursements of counsel for the Issuer and, in the case of a Shelf Registration
Statement, the reasonable fees and disbursements of one counsel for the Holders
(which counsel shall be counsel to the Initial Purchasers unless another
nationally recognized law firm is selected by the Issuer and is reasonably
acceptable to the Majority Holders ("COUNSEL FOR THE HOLDERS")), and (viii) the
fees and disbursements of the independent public accountants of the Issuer,
including the expenses of any special audits or "cold comfort" letters required
by or incident to such performance and compliance, but excluding underwriting
discounts, if any, and commissions and transfer taxes, if any, relating to the
sale or disposition of Registrable Securities by a Holder.
"REGISTRATION STATEMENT" shall mean any registration statement of the
Issuer that covers any of the Exchange Securities or the Registrable Securities
pursuant to the provisions of this Agreement and all amendments and supplements
to any such Registration Statement, including post-effective amendments, in each
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case including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission.
"SHELF REGISTRATION" shall mean a registration effected pursuant to
Section 2(b) hereof.
"SHELF REGISTRATION STATEMENT" shall mean a "shelf" registration
statement of the Issuer pursuant to the provisions of Section 2(b) of this
Agreement which covers Registrable Securities (but no other securities unless
approved by the Holders whose Registrable Securities are covered by such
Registration Statement) on an appropriate form under Rule 415 under the 1933
Act, or any similar rule that may be adopted by the SEC, and all amendments and
supplements to such registration statement, including post-effective amendments,
in each case including the Prospectus contained therein, all exhibits thereto
and all material incorporated by reference therein.
"TIA" shall have the meaning set forth in Section 3(l) hereof.
"TRUSTEE" shall have the meaning set forth in the preamble.
"UNDERWRITERS" shall have the meaning set forth in Section 3 hereof.
"UNDERWRITTEN OFFERING" shall mean a registration in which Registrable
Securities are sold to an Underwriter for reoffering to the public.
2. Registration under the 0000 Xxx.
(a) To the extent not prohibited by any applicable law or
applicable interpretation of the staff of the SEC, the Issuer shall (x)
file or cause to be filed, on or prior to the date that is 210 days
after the Closing Date, an Exchange Offer Registration Statement
covering the offer by the Issuer to the Holders to exchange all of the
Registrable Securities (held by persons who are not prohibited by law or
SEC policy from participating) for Exchange Securities, and (y) use its
reasonable best efforts to have such Registration Statement declared
effective by the SEC on or prior to the date that is 285 days after the
Closing Date and remain effective until the closing of the Exchange
Offer and to consummate the Exchange Offer with respect to each series
of Securities on or prior to the date that is 315 days after the Closing
Date. For purposes hereof, "CONSUMMATE" shall mean, with respect to a
series of Securities, that the Exchange Offer
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Registration Statement shall have been declared effective, the period
of the Exchange Offer provided in accordance with clause 2(a)(ii) below
shall have expired and all Registrable Securities of such series
validly tendered and not withdrawn in connection with such Exchange
Offer shall have been exchanged for Exchange Securities. The Issuer
shall commence the Exchange Offer with respect to each series of
Securities by mailing the related exchange offer Prospectus and
accompanying documents to each Holder stating, in addition to such
other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made
pursuant to this Agreement and that all Registrable Securities
of such series validly tendered and not withdrawn will be
accepted for exchange;
(ii) the dates of acceptance for exchange (which
shall be a period of at least 20 Business Days from the date
such notice is mailed) (each such date being an "EXCHANGE
DATE");
(iii) that any Registrable Security of such series
not tendered will remain outstanding and continue to accrue
interest, but will not retain any rights under this Agreement,
unless the Holder of such Registrable Security delivers a
notice pursuant to Section 2(b)(iii);
(iv) that Holders electing to have a Registrable
Security exchanged pursuant to the Exchange Offer will be
required to surrender, or make book-entry delivery of, such
Registrable Security and deliver (including via an agent's
message) the enclosed letters of transmittal to the
institution and at the address specified in the notice prior
to the close of business on the last Exchange Date (the "OFFER
TERMINATION DATE"); and
(v) that Holders will be entitled to withdraw
their election, not later than the close of business on the
Offer Termination Date, by sending to the institution and at
the address specified in the notice a telegram, telex,
facsimile transmission or letter setting forth the name of
such Holder, the principal amount of Registrable Securities
delivered for exchange and a statement that such Holder is
withdrawing the prior election to have such Registrable
Securities exchanged.
As soon as practicable after the Offer Termination Date, the Issuer shall:
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(A) accept for exchange Registrable
Securities or portions thereof tendered and not
validly withdrawn pursuant to the Exchange Offer; and
(B) deliver, or cause to be delivered,
to the Trustee for cancellation all Registrable
Securities or portions thereof so accepted for
exchange by the Issuer and issue, and cause the
Trustee to promptly authenticate and deliver to each
Holder, an Exchange Security equal in aggregate
principal amount to the aggregate principal amount of
the Registrable Securities surrendered by such
Holder.
The Issuer shall use its reasonable best efforts to complete the
Exchange Offer with respect to each series as provided above and shall comply
with the applicable requirements of the 1933 Act, the 1934 Act and other
applicable laws and regulations in connection with the Exchange Offer. The
Exchange Offers shall not be subject to any conditions, other than that the
Exchange Offers shall not violate applicable law or any applicable
interpretation of the staff of the SEC.
As a condition to its participation in an Exchange Offer, each Holder
of Registrable Securities (including, without limitation, any Holder who is a
Participating Broker Dealer) shall furnish, upon the request of the Issuer,
prior to the consummation of the Exchange Offer, 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 (w) that such Holder
is not an affiliate of the Issuer (as defined in Rule 405 under the Securities
Act) or a broker dealer tendering Securities acquired directly from the Issuer
for its own account, (x) such Holder will have no arrangement or understanding
with any person to participate in the distribution of the Securities or the
Exchange Securities within the meaning of the Act, (y) if the Holder is not a
broker dealer or is a broker dealer but will not receive Exchange Securities for
its own account in exchange for Securities, neither the Holder nor any such
other Person is engaged in or intends to participate in a distribution of the
Exchange Securities, and (z) any Exchange Securities received by such Holder
will be acquired in the ordinary course of its business. If the Holder is a
Participating Broker Dealer that will receive Exchange Securities for its own
account in exchange for Securities, it will represent that the Securities to be
exchanged for the Exchange Securities were acquired by it as a result of
market-making activities or other trading activities, and will acknowledge that
it will deliver a prospectus meeting the requirements of the Securities Act in
connection with any resale of such Exchange Securities. It is understood that,
by acknowledging that it will deliver, and by delivering, a prospectus meeting
the requirements of the Securities Act in connection with any
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resale of such Exchange Securities, the Holder is not admitting that it is an
"underwriter" within the meaning of the Act.
(b) In the event that (i) the Issuer determines that the
Exchange Offer Registration provided for in Section 2(a) above is not
available or may not be consummated as soon as practicable after the
Offer Termination Date because it would violate applicable law or the
applicable interpretations of the staff of the SEC, (ii) the Exchange
Offer is not for any other reason consummated within 315 days after the
Closing Date (other than failure of a Holder to tender under
circumstances other than those described in the following clause (iii))
or (iii) any Holder of Registrable Securities shall notify the Issuer
prior to the consummation of the Exchange Offer that (A) such Holder
was prohibited by law or SEC policy from participating in the
applicable Exchange Offer and provides an opinion of counsel to the
Issuer to that effect or (B) such Holder is a broker-dealer and holds
Securities acquired directly from the Issuer or any of its affiliates,
the Issuer shall cause to be filed as soon as reasonably practicable
after such determination, date or notice is given to the Issuer, as the
case may be, a Shelf Registration Statement providing for the sale by
the Holders of all of the Registrable Securities (except as provided in
the next succeeding sentence) and use its reasonable best efforts to
have such Shelf Registration Statement declared effective by the SEC.
In the event the Issuer is required to file a Shelf Registration
Statement solely as a result of the matters referred to in clause (iii)
of the preceding sentence, the Issuer shall file and use its reasonable
best efforts to have declared effective by the SEC both an Exchange
Offer Registration Statement pursuant to Section 2(a) with respect to
all Registrable Securities not held by Holders who delivered the notice
and a Shelf Registration Statement (which may be a combined
Registration Statement with the Exchange Offer Registration Statement
or may be a separate Registration Statement) with respect to offers and
sales of Registrable Securities held by the Holders who delivered the
notice. The Issuer agrees, so long as Registrable Securities are
outstanding, to use its reasonable best efforts to keep the Shelf
Registration Statement continuously effective until the earlier of (x)
two years after the Closing Date or (y) such time as all of the
Registrable Securities covered by the Shelf Registration Statement have
been sold pursuant to the Shelf Registration Statement. The Issuer
further agrees to supplement or amend the Shelf Registration Statement
if required by the rules, regulations or instructions applicable to the
registration form used by the Issuer for such Shelf Registration
Statement or by the 1933 Act or by any other rules and regulations
thereunder for shelf registration or if reasonably requested by a
Holder with respect to information relating solely to such Holder, and
to use its reasonable best
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efforts to cause any such amendment to become effective and such Shelf
Registration Statement to become usable as soon as practicable
thereafter. The Issuer agrees to furnish to the Holders of Registrable
Securities copies of any such supplement or amendment promptly after it
being used or filed with the SEC.
No Holder of Registrable Securities may include any of its
Registrable Securities in any Shelf Registration Statement pursuant to
this Agreement unless and until such Holder furnishes to the Issuer in
writing, within 20 days after receipt of a request therefor, the
information specified in Item 507 or 508 of Regulation S-K, as
applicable, of the Act for use in connection with any Shelf
Registration Statement or Prospectus or preliminary Prospectus included
therein. No Holder of Registrable Securities shall be entitled to
additional interest pursuant to Section 2(e) hereof unless and until
such Holder shall have provided all such information which is required
by rules of the SEC to be included in the Shelf Registration Statement
prior to the time it is declared effective. Each selling Holder agrees
to promptly furnish additional information required to be disclosed in
order to make the information previously furnished to the Issuer by
such Holder not materially misleading.
(c) The Issuer shall pay all Registration Expenses in
connection with the registration pursuant to Section 2(a) or Section
2(b). Each Holder shall pay all underwriting discounts, if any, and
commissions and transfer taxes, if any, relating to the sale or
disposition of such Holder's Registrable Securities pursuant to a Shelf
Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to
Section 2(a) hereof or a Shelf Registration Statement pursuant to
Section 2(b) hereof will not be deemed to have become effective unless
it has been declared effective by the SEC; provided, however, that, if,
after it has been declared effective, the offering of Registrable
Securities pursuant to a Shelf Registration Statement is interfered
with by any stop order, injunction or other order or requirement of the
SEC or any other governmental agency or court, such Registration
Statement will be deemed not to be effective during the period of such
interference until the offering of Registrable Securities pursuant to
such Registration Statement may legally resume.
(e) Without duplication of the provisions set forth in
the Indenture, in the event that
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(i) the Exchange Offer Registration Statement relating to
the Exchange Offer with respect to any series of
Securities is not filed with the SEC on or prior to
the date that is 210 days after the Closing Date, or,
if a Shelf Registration Statement is required to be
filed in response to a change in applicable law or
the applicable interpretations of the staff of the
SEC, the Shelf Registration Statement is not filed
within 210 days after the later to occur of
publication of the change in law or interpretation
and the Closing Date,
(ii) the Exchange Offer Registration Statement with
respect to any series of Securities is not declared
effective on or prior to the date that is 285 days
after the Closing Date, or, if a Shelf Registration
Statement is required to be filed in response to a
change in applicable law or the applicable
interpretations of the staff of the SEC, the Shelf
Registration Statement is not declared effective
within 285 days after the later to occur of
publication of the change in law or interpretation
and the Closing Date, or
(iii) the Exchange Offer with respect to any series of
Securities is not consummated on or prior to the date
that is 315 days after the Closing Date unless
applicable law or the applicable interpretations of
the staff of the SEC do not permit the Issuer to
effect the Exchange Offer
(each such event referred to in clauses (i) through (iii), a
"REGISTRATION DEFAULT"), then the Issuer will pay additional interest
(in addition to, and at the same time, in the same manner and
calculated on the same basis as, the interest otherwise due on the
Securities) on the principal amount of each Registrable Security of the
applicable series at an annual rate equal to 0.25% commencing on the
date of such Registration Default. Such additional interest will cease
accruing on such Securities (x) upon filing of the Exchange Offer
Registration Statement (and/or, if applicable, the Shelf Registration
Statement), in the case of clause (i) above, (y) upon the effectiveness
of the Exchange Offer Registration Statement (and/or, if applicable,
the Shelf Registration Statement), in the case of clause (ii) above or
(z) upon consummation of the Exchange Offer, in the case of clause
(iii) above. Notwithstanding the existence of more than one
Registration Default with respect to any series of Securities, the
interest rate applicable to the Securities of such series shall not be
increased by more than the annual rate of 0.25%.
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(f) Without limiting the remedies available to the
Initial Purchasers and the Holders, the Issuer acknowledges that any
failure by the Issuer to comply with its obligations under Section 2(a)
and Section 2(b) hereof may result in material irreparable injury to
the Initial Purchasers or the Holders for which there is no adequate
remedy at law, that it will not be possible to measure damage for such
injuries precisely and that, in the event of any such failure, any
Initial Purchaser or Holder may obtain such relief as may be required
to specifically enforce the Issuer's obligations under Section 2(a) and
Section 2(b) hereof.
3. Registration Procedures.
In connection with the obligations of the Issuer with respect to the
Registration Statements pursuant to Section 2(a) and Section 2(b) hereof and
subject to the terms and conditions thereof, the Issuer shall as soon as
reasonably practicable:
(a) prepare and file with the SEC a Registration
Statement on the appropriate form under the 1933 Act, which
Registration Statement shall (x) be on a form selected by the Issuer,
(y) in the case of a Shelf Registration, be on a form available for the
sale of the Registrable Securities by the selling Holders thereof and
(z) comply as to form in all material respects with the requirements of
the applicable form and include all financial statements required by
the SEC to be filed therewith, and use its reasonable best efforts to
cause such Registration Statement to become effective and remain
effective in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be
necessary to keep such Registration Statement effective for the
applicable period set forth herein and cause each Prospectus to be
supplemented by any required prospectus supplement and, as so
supplemented, to be filed pursuant to Rule 424 under the 1933 Act; and
to keep each Prospectus current during the period described under
Section 4(3) and Rule 174 under the 1933 Act that is applicable to
transactions by brokers or dealers with respect to the Registrable
Securities or Exchange Securities;
(c) in the case of a Shelf Registration, furnish to each
Holder of Registrable Securities, to counsel for the Holders and
counsel for the Initial Purchasers and to each Underwriter of an
Underwritten Offering of Registrable Securities, if any, without
charge, as many copies of each Prospectus, including each preliminary
Prospectus and any amendment or supplement thereto and such other
documents as such Holder or
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Underwriter may reasonably request, in order to facilitate the public
sale or other disposition of the Registrable Securities; and the Issuer
consents, subject to the provisions of this Agreement, to the use of
such Prospectus and any amendment or supplement thereto in accordance
with applicable law by each of the selling Holders of Registrable
Securities and any such Underwriters in connection with the offering
and sale of the Registrable Securities covered by and in the manner
described in such Prospectus or any amendment or supplement thereto in
accordance with applicable law;
(d) use its reasonable best efforts (i) to register or
qualify the Registrable Securities under all applicable state
securities or "blue sky" laws of such jurisdictions as any Holder of
Registrable Securities covered by a Registration Statement shall
reasonably request in writing by the time the applicable Registration
Statement is declared effective by the SEC and (ii) to cooperate with
such Holders in connection with any filings required to be made with
the National Association of Securities Dealers, Inc. and do any and all
other acts and things which may be reasonably necessary or advisable to
enable such Holder to consummate the disposition in each such
jurisdiction of such Registrable Securities owned by such Holder;
provided, however, that the Issuer shall not be required to (A)
register or qualify as a foreign corporation or as a dealer in
securities in any jurisdiction where it would not otherwise be required
to register or qualify but for this Section, (B) file any general
consent to service of process or (C) subject itself to taxation in any
such jurisdiction;
(e) in the case of a Shelf Registration, notify each
Holder of Registrable Securities, counsel for the Holders and counsel
for the Initial Purchasers promptly and, if requested by such Persons,
confirm such advice in writing, (i) when a Registration Statement has
become effective and when any post-effective amendment thereto has been
filed and becomes effective, (ii) of any request by the SEC or any
state securities authority for amendments and supplements to a
Registration Statement and Prospectus or for additional information
after the Registration Statement has become effective, (iii) of the
issuance by the SEC or any state securities authority of any stop order
suspending the effectiveness of a Registration Statement or the
initiation of any proceedings for that purpose, (iv) if, between the
effective date of a Registration Statement and the closing of any sale
of Registrable Securities covered thereby, the Issuer receives any
notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation
of any proceeding for such purpose, and (v) of the happening of any
event during the period a Shelf Registration Statement is effective
which makes any statement made in such Registration Statement or the
related
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Prospectus untrue in any material respect or which requires the making
of any changes in such Registration Statement or Prospectus in order to
make the statements therein not misleading;
(f) make every reasonable effort to obtain the withdrawal
of any order suspending the effectiveness of a Registration Statement
at the earliest possible moment and provide immediate notice to each
Holder of the withdrawal of any such order;
(g) in the case of a Shelf Registration, cooperate with
the selling Holders of Registrable Securities to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any restrictive legends (unless
required by applicable securities laws) and enable such Registrable
Securities to be in such denominations (consistent with the provisions
of the Indenture) and registered in such names as the selling Holders
may reasonably request at least one business day prior to the closing
of any sale of Registrable Securities;
(h) upon the occurrence of any event contemplated by
Section 3(e)(v) hereof, use its reasonable best efforts to prepare a
supplement or post-effective amendment to a Registration Statement or
the related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Securities, such
Prospectus will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The Issuer
agrees to notify the Holders and any Participating Broker Dealers to
suspend use of the Prospectus as promptly as reasonably practicable
after the occurrence of such an event, and the Holders and
Participating Broker Dealers hereby agree to suspend use of the
Prospectus until the Issuer has amended or supplemented the Prospectus
to correct such misstatement or omission;
(i) not less than two Business Days prior to the filing
of any Registration Statement or any Prospectus, and not less than one
Business day prior to the filing of any amendment to a Registration
Statement or amendment or supplement to a Prospectus or any document
which is to be incorporated by reference into a Registration Statement
or Prospectus after the initial filing of a Registration Statement,
provide copies of such document to the Initial Purchasers and their
counsel (and, in the case of a Shelf Registration Statement, one
counsel on behalf of all of the Holders) and make such of the
representatives of the Issuer as shall be reasonably
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requested by the Initial Purchasers or their counsel (and, in the case
of a Shelf Registration Statement, one counsel on behalf of all of the
Holders) available for discussion of such document, and shall not at
any time file or make any amendment to the Registration Statement, any
Prospectus or any amendment of or supplement to a Registration
Statement or a Prospectus or any document which is to be incorporated
by reference into a Registration Statement or a Prospectus, of which
the Initial Purchasers and their counsel (and, in the case of a Shelf
Registration Statement, counsel for the Holders) shall not have
previously been advised and furnished a copy or to which the Initial
Purchasers or their counsel (and, in the case of a Shelf Registration
Statement, one counsel on behalf of all of the Holders) shall
reasonably object within one business day of their receipt of such
copy; provided that the requirements of this paragraph shall not apply
to the Issuer's annual report on Form 10-K, its Quarterly Report on
Form 10-Q, its current reports on Form 8-K, or any other documents
filed pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange
Act ("Exchange Act Documents"), or any supplement to any Prospectus
based on Exchange Act Documents, except for such Exchange Act Documents
specifically relating to the offering of the Securities;
(j) obtain a CUSIP number for all Exchange Securities or
Registrable Securities, as the case may be, of each series, not later
than the effective date of a Registration Statement;
(k) cause the Indenture to be qualified under the Trust
Indenture Act of 1939, as amended (the "TIA"), in connection with the
registration of the Exchange Securities or Registrable Securities, as
the case may be, and cooperate with the Trustee and the Holders to
effect such changes to the Indenture as may be required for the
Indenture to be so qualified in accordance with the terms of the TIA
and execute, and use its reasonable best efforts to cause the Trustee
to execute, all documents as may be required to effect such changes and
all other forms and documents required to be filed with the SEC to
enable the Indenture to be so qualified in a timely manner;
(l) in the case of a Shelf Registration, make available
for inspection by a representative of the Holders of the Registrable
Securities, any Underwriter participating in any disposition pursuant
to such Shelf Registration Statement, and accountants designated by and
counsel for the Holders, at reasonable times and in a reasonable
manner, all financial and other records, pertinent documents and
properties of the Issuer, and cause the respective officers, directors
and employees of the Issuer to supply all information reasonably
requested by any such representative, Underwriter,
14
attorney or accountant in connection with a Shelf Registration
Statement, in each case that would customarily be reviewed or examined
in connection with a "due diligence" review of the Issuer; provided
that such persons shall first agree in writing with the Issuer, on a
form typically used by the Issuer for these purposes, to the effect
that any information that is reasonably and in good faith designated by
the Issuer in writing as confidential at the time of delivery of such
information shall be kept confidential by such persons, unless (i)
disclosure of such information is required by court or administrative
order or is necessary to respond to inquiries of regulatory
authorities, (ii) disclosure of such information is required by law
(including any disclosure requirements pursuant to federal securities
laws in connection with the filing of such Registration Statement or
the use of any Prospectus), (iii) such information becomes generally
available to the public other than as a result of a disclosure or
failure to safeguard such information by such person or (iv) such
information becomes available to such person from a source other than
the Issuer and its subsidiaries and such source is not known, after due
inquiry, by such person to be bound by a confidentiality agreement;
provided further, that the foregoing investigation shall be coordinated
on behalf of such persons by one representative designated by and on
behalf of such persons and any such confidential information shall be
available from such representative to such persons so long as any
person agrees to be bound by such confidentiality agreement;
(m) if reasonably requested by any Holder of Registrable
Securities covered by a Registration Statement, (i) promptly
incorporate in a Prospectus supplement or post-effective amendment such
information with respect to such Holder as such Holder reasonably
requests to be included therein and (ii) make all required filings of
such Prospectus supplement or such post-effective amendment as soon as
reasonably practicable following the receipt by the Issuer of
notification of the matters to be incorporated in such filing; and
(n) use reasonable best efforts to cause all Registrable
Securities covered by a Shelf Registration Statement, if not
theretofore rated in connection with the initial issuance thereof, to
be rated with the appropriate rating agencies, if so requested by the
Majority Holders.
In the case of a Shelf Registration Statement, each Holder and
Participating Broker Dealer agrees that, upon receipt of any notice from the
Issuer (a) of the happening of any event of the kind described in Section
3(e)(iii), (iv) or (v) hereof or (b) that they have determined that the
continued effectiveness and use of the Shelf Registration Statement would
require the disclosure of
15
confidential information or interfere with any equity or debt financing,
acquisition, reorganization or other material transaction involving the Issuer,
such Holder or Participating Broker Dealer will forthwith discontinue
disposition of Registrable Securities pursuant to a Registration Statement until
such Holder's or Participating Broker Dealer's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 3(i) hereof or of a
notice permitting the resumption of disposition of Registrable Securities, and,
if so directed by the Issuer, such Holder and Participating Broker Dealer will
deliver to the Issuer (at the Issuer's expense) or destroy all copies in its
possession, other than permanent file copies then in its possession, of the
Prospectus covering such Registrable Securities current at the time of receipt
of such notice.
If the Issuer shall give any such notice to suspend the disposition of
Registrable Securities pursuant to a Registration Statement, the Issuer shall
extend the period during which the Registration Statement shall be maintained
effective pursuant to this Agreement by the number of days during the period
from and including the date of the giving of such notice to and including the
date when the Holders shall have received copies of the supplemented or amended
Prospectus necessary to resume such dispositions or advice from the Issuer that
delivery may be resumed. The Issuer may give any such notice only three times
during any 365 day period and any such suspensions may not exceed 30 days for
each suspension and there may not be more than three suspensions in effect
during any 365 day period.
The Holders of Registrable Securities covered by a Shelf Registration
Statement who desire to do so may (unless they are permitted to sell pursuant to
Rule 144 (k) within 90 days thereof) sell such Registrable Securities in an
Underwritten Offering, provided that such Underwritten Offering has been
demanded by the Holders of a majority in principal amount of Registrable
Securities. In any such Underwritten Offering, the investment banker or
investment bankers and manager or managers (the "UNDERWRITERS") that will
administer the offering will be selected by the Holders of a majority in
principal amount of the Registrable Securities proposed to be included in such
offering with the prior written consent of the Issuer, provided that the Issuer
shall have the right, in its sole discretion, to veto the selection of any
underwriter other than one of Xxxxxx Brothers Inc., Xxxxxxx, Sachs & Co., and
X.X. Xxxxxx Securities Inc. In the case of any Underwritten Offering, the Issuer
shall provide written notice to the Holders of all Registrable Securities
covered by the applicable Shelf Registration Statement of such Underwritten
Offering at least 20 days prior to the filing of a prospectus supplement for
such Underwritten Offering. Such notice shall (x) offer each such Holder the
right to participate in such Underwritten Offering, (y) specify a date, which
shall be no earlier than 10 days following the date of such notice, by which
such Holder must inform the Issuer of its intent to
16
participate in such Underwritten Offering and (z) include the instructions such
Holder must follow in order to participate in such Underwritten Offering. No
Holder may participate in any Underwritten Offering under the Agreement unless
such Holder (a) agrees to sell such Holder's Registrable Securities on the basis
provided in any underwriting arrangements approved by the Persons entitled under
this Agreement to approve such arrangements and (b) completes and executes all
questionnaires, powers of attorneys, confidentiality agreements (if
appropriate), indemnities, underwriting agreements, lock-up letters and other
documents reasonably required under the terms of such underwriting arrangements.
In the case of an Underwritten Offering, the Issuer shall enter into
such customary agreements to indemnify any underwriters and their control
persons and take all such other customary actions in connection therewith
(including those requested by counsel for the Holders) in order to expedite or
facilitate the disposition of such Registrable Securities and in such
connection, (i) make such customary representations and warranties to the
Holders and any Underwriters of such Registrable Securities with respect to the
business of the Issuer and its subsidiaries, the Registration Statement,
Prospectus and documents incorporated by reference or deemed incorporated by
reference, if any, in each case in substance similar to those set forth in
Section 4 of the Purchase Agreement, (ii) obtain opinions of counsel to the
Issuer covering matters similar to those set forth in Sections 6(e) and 6(f) of
the Purchase Agreement addressed to each selling Holder and Underwriter of
Registrable Securities, (iii) obtain "cold comfort" letters from the independent
certified public accountants of the Issuer (and, if necessary, any other
certified public accountant of any subsidiary of the Issuer or any business
acquired by the Issuer for which financial statements and financial data are or
are required to be included in the Registration Statement) addressed to each
selling Holder and Underwriter of Registrable Securities, such letters to be in
customary form and covering matters of the type customarily covered in "cold
comfort" letters in connection with underwritten offerings, and (iv) deliver
such documents and certificates as may be reasonably requested by counsel for
the Holders of a majority in principal amount of the Registrable Securities
being sold or the Underwriters to evidence the continued validity of the
representations and warranties of the Issuer made pursuant to clause (i) above
and to evidence compliance with any customary conditions in an underwriting
agreement.
4. Participation of Broker-Dealers in Exchange Offer.
(a) The Issuer understands that the Staff of the SEC has
taken the position that any broker-dealer that receives Exchange
Securities for its own account in the Exchange Offer in exchange for
Securities that were
17
acquired by such broker-dealer as a result of market-making or other
trading activities (a "PARTICIPATING BROKER-DEALER"), may be deemed to
be an "underwriter" within the meaning of the 1933 Act in connection
with any resale of such Exchange Securities.
The Issuer understands that it is the Staff's position that if
the Prospectus contained in the Exchange Offer Registration Statement
includes a plan of distribution containing a statement to the above
effect and the means by which Participating Broker-Dealers may resell
the Exchange Securities, without naming the Participating
Broker-Dealers or specifying the amount of Exchange Securities owned by
them, such Prospectus may be delivered by Participating Broker-Dealers
to satisfy its prospectus delivery obligation under the 1933 Act in
connection with resales of Exchange Securities for their own accounts,
so long as the Prospectus otherwise meets the requirements of the 1933
Act.
(b) In light of the above, notwithstanding the other
provisions of this Agreement, the Issuer agrees that the provisions of
this Agreement as they relate to a Shelf Registration shall also apply
to an Exchange Offer Registration, and with such reasonable
modifications thereto as may be reasonably requested by the Initial
Purchasers or one or more Participating Broker-Dealers pursuant to
clause 4(b)(ii) below in order to expedite or facilitate the
disposition of any Exchange Securities by Participating Broker-Dealers
consistent with the positions of the Staff recited in Section 4(a)
above; provided that:
(i) the Issuer shall not be required to amend or
supplement the Prospectus contained in the Exchange Offer
Registration Statement, as would otherwise be contemplated by
Section 3(i), for a period exceeding 180 days after the Offer
Termination Date (as such period may be extended pursuant to
the penultimate paragraph of Section 3) and Participating
Broker-Dealers shall not be authorized by the Issuer to
deliver, and shall not deliver, such Prospectus after such
period in connection with the resales contemplated by this
Section; and
(ii) the application of the Shelf Registration
procedures set forth in Section 3 of this Agreement to an
Exchange Offer Registration, to the extent not required by the
positions of the staff of the SEC or the 1933 Act and the
rules and regulations thereunder, will be in conformity with
the reasonable request to the Issuer by the Initial Purchasers
or with the reasonable request in writing to the Issuer by the
broker-dealers who certify to the Initial
18
Purchasers and the Issuer in writing that they anticipate that
they will be Participating Broker-Dealers; and provided
further that, in connection with such application of the Shelf
Registration procedures set forth in Section 3 to an Exchange
Offer Registration, the Issuer shall be obligated (x) to deal
only with a single representative of the Participating
Broker-Dealers, which shall be X.X. Xxxxxx Securities Inc.,
unless it elects not to act as such representative, in which
case, the representative shall be selected by a majority of
the Participating Broker-Dealers, (y) to pay the reasonable
fees and expenses of only one counsel representing the
Participating Broker-Dealers, which shall be counsel to the
Initial Purchasers unless another nationally recognized law
firm is selected by the Issuer and is reasonably acceptable to
the Majority Holders, and (z) to cause to be delivered only
one, if any, "cold comfort" letter with respect to the
Prospectus in the form existing on the Offer Termination Date
and with respect to each amendment or supplement thereof, if
any, effected during the period specified in Section 4(b)(i)
above.
5. Indemnification and Contribution.
(a) The Issuer agrees to indemnify and hold harmless each
Holder and each Person, if any, who controls any Holder within the
meaning of either Section 15 of the 1933 Act or Section 20 of the 1934
Act from and against any and all losses, claims, damages and
liabilities (including without limitation the legal fees and other
expenses incurred in connection with any suit, action or proceeding or
any claim asserted) caused by any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement
(or any amendment thereto pursuant to which Exchange Securities or
Registrable Securities were registered under the 1933 Act, including
all documents incorporated therein by reference), or caused by any
omissions or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, or caused by any untrue statement or alleged untrue
statement of a material fact contained in any Prospectus (as amended or
supplemented if the Issuer shall have furnished any amendments or
supplements thereto, including all documents incorporated therein by
reference), or caused by any omission or alleged omission to state
therein a material fact necessary to make the statements therein in the
light of the circumstances under which they were made not misleading,
except insofar as such losses, claims, damages or liabilities are
caused by any untrue statement or omission or alleged untrue statement
or omission which has been made therein or omitted therefrom in
reliance
19
upon and in conformity with the information relating to such or Holder
furnished in writing to the Issuer by or on behalf of such or Holder
expressly for use in connection therewith provided that, with respect
to any untrue statement or alleged untrue statement or omission or
alleged omission made in any preliminary prospectus relating to a Shelf
Registration Statement, the foregoing indemnity agreement shall not
inure to the benefit of any Holder (and any Person controlling such
Holder), who failed to deliver a final prospectus to the person
asserting any losses, claims, damages or liabilities to the extent that
any loss, claim, damage or liability resulted from the fact that there
was not given or sent to such person, at or prior to the time of
written confirmation of sale of such Securities to such person, a copy
of the final prospectus (so long as such prospectus was previously
provided by the Issuer to the Holders) that corrects the misstatement
or omission.
(b) Each Holder agrees, severally and not jointly, to
indemnify and hold harmless the Issuer, its respective directors and
officers, and any Person who controls the Issuer within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, to the same
extent as the foregoing indemnity from the Issuer to the Holders, but
only with respect to information relating to such Holder furnished in
writing by or on behalf of such Holder expressly for use in any
Registration Statement (or any amendment thereto) or any Prospectus (or
any amendment or supplement thereto).
(c) If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand shall be
brought or asserted against any Person in respect of which indemnity
may be sought pursuant to either of the two preceding paragraphs, such
Person (the "INDEMNIFIED PERSON") shall promptly notify the Person
against whom such indemnity may be sought (the "INDEMNIFYING PERSON")
in writing; provided that any failure to so notify the Indemnifying
Person shall not relieve it from any liability which it may have under
this Section except to the extent that it has been materially
prejudiced (through the forfeiture of substantive rights or defenses)
by such failure; and provided further that the failure to notify the
Indemnifying Person shall not relieve it from any liability which it
may have to an Indemnified Person other than under this Section. In
case such notice of any such action shall be so given, the Indemnifying
Person or Persons shall be entitled to participate at its or their own
expense in the defense of such action, or, if it or they so elect, to
assume the defense of such action, and in the latter event such defense
shall be conducted by counsel chosen by such Indemnifying Person or
Persons and reasonably satisfactory to the Indemnified Person or
Persons who shall be defendant
20
or defendants in such action, and such defendant or defendants shall
bear the fees and expenses of any additional counsel retained by them,
but if the Indemnifying Person or Persons shall not elect to assume the
defense of such action, such Indemnifying Person or Persons will
reimburse such Indemnified Person or Persons for the reasonable fees
and expenses of any counsel retained by them. In the event that the
parties to any such action (included impleaded parties) include both
the Indemnifying Person and the Indemnified Person and either (i) the
Indemnifying Person and the Indemnified Person shall have mutually
agreed to the contrary or (ii) any representation of both parties by
the same counsel would be inappropriate under applicable standards of
professional conduct due to actual or potential differing interests
between them, then the Indemnified Person shall have the right to
retain its own counsel, which counsel shall be reasonably satisfactory
to the Indemnifying Person, at the expense of the Indemnifying Party,
subject to the following sentence. It is understood that the
Indemnifying Person shall not, in connection with any proceeding or
related proceeding in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm (in
addition to any local counsel) for all Indemnified Persons, which
counsel shall be reasonably satisfactory to the Indemnifying Persons,
and that all such fees and expenses shall be reimbursed within a
reasonable time following their incurrence. Any such separate firm for
the Initial Purchasers and all Persons, if any, who control any of the
Initial Purchasers within the meaning of either Section 15 of the 1933
Act or Section 20 of the 1934 Act shall be designated in writing by
Xxxxxx Brothers Inc., Xxxxxxx, Xxxxx & Co. and X.X. Xxxxxx Securities
Inc., acting together, and any such separate firm for the Holders and
all Persons, if any, who control Holders within the meaning of either
such Section shall be designated in writing by the Majority Holders,
and any such separate firm for the Issuer, its directors, its officers
and each Person, if any, who controls the Issuer within the meaning of
either such Section shall be designated in writing by the Issuer. The
Indemnifying Person shall not be liable for any settlement of any
proceeding effected without its prior written consent, but if settled
with such consent or if there be a final judgment for the plaintiff,
the Indemnifying Person agrees to indemnify any Indemnified Person from
and against any loss or liability by reason of such settlement or
judgment. No Indemnifying Person shall, without the prior written
consent of the Indemnified Person, effect any settlement of any pending
or threatened proceeding in respect of which any Indemnified Person is
or could have been a party and indemnity could have been sought
hereunder by such Indemnified Person; provided, that so long as the
Indemnifying Person has used commercially reasonable best efforts to
include in any settlement an unconditional release of such Indemnified
Person from all liability on
21
claims that are the subject matter of such proceeding, such
Indemnifying Person shall consent in writing to any reasonable
settlement of such proceeding.
(d) If the indemnification provided for in this Section
is unavailable to an Indemnified Person under paragraphs (a) or (b)
hereof or insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each Indemnifying Person under
such paragraph, in lieu of indemnifying such Indemnified Person
thereunder, shall contribute to the amount paid or payable by such
Indemnified Person as a result of such losses, claims, damages or
liabilities in such proportion as is appropriate to reflect the (i) the
relative benefits received by the Issuer, on the one hand, and the
Holders, on the other hand, from its sale of Registrable Securities or
(ii) if the allocation provided by clause 5(d)(i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause 5(d)(i) above but also
the relative fault of the Issuer on the one hand and the Holders on the
other hand in connection with the statements or omissions that resulted
in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits of the Issuer
on the one hand and the Holders on the other hand with respect to such
offering and sale shall be deemed to be in the same respective
proportions as the total net proceeds from the offering or sale thereof
(before deducting expenses) received by such Person. The relative fault
of the Issuer on the one hand and the Holders on the other hand shall
be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information
supplied by the Issuer on the one hand or by the Holders on the other
hand and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
(e) The Issuer and each Holder agree that it would not be
just or equitable if contribution pursuant to this Section were
determined by pro rata allocation (even if the Holders were treated as
one entity for such purpose) or by any other method of allocation that
does not take account of the equitable considerations referred to in
Section 5(d) above. The amount paid or payable by an Indemnified Person
as a result of the losses, claims, damages and liabilities referred to
in Section 5(d) above shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses incurred by
such Indemnified Person in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this
Section, no Holder shall be required to indemnify or
22
contribute any amount in excess of the amount by which the total price
at which Registrable Securities were sold by such Holder exceeds the
amount of any damages that such Holder has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 0000 Xxx) shall be entitled
to contribution from any Person who was not guilty of such fraudulent
misrepresentation. The Holders' obligations to contribute pursuant to
this Section are several in proportion to the aggregate principal
amount of Registrable Securities sold by them pursuant to such
Registration Statement. The remedies provided for in this Section 5 are
not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution agreements contained
in this Section and the representations and warranties of the Issuer
set forth in this Agreement shall remain operative and in full force
and effect, regardless of (i) any investigation made by or on behalf of
any Holder or any Person controlling any Holder, the Issuer's directors
or officers or any Person controlling the Issuer, (ii) acceptance of
any Exchange Securities, (iii) any termination of this Agreement and
(iv) any sale of Registrable Securities pursuant to a Shelf
Registration Statement.
6. Miscellaneous.
(a) No Inconsistent Agreements. The Issuer has not
entered into, and on or after the date of this Agreement will not enter
into, any agreement which is inconsistent with the rights granted to
the Holders of Registrable Securities in this Agreement or otherwise
conflicts with the provisions hereof. The rights granted to the Holders
hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of the Issuer's other issued and
outstanding securities under any such agreements.
(b) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be
amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given unless the
Issuer has obtained the written consent of Holders of at least a
majority in aggregate principal amount of the outstanding Registrable
Securities affected by such amendment, modification, supplement, waiver
or consent; provided, however, that no amendment, modification,
supplement, waiver or consent to any departure from the provisions of
Section 2(e) hereof or this Section
23
6(b) shall be effective as against any Holder of Registrable Securities
unless consented to in writing by such Holder.
(c) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by
hand-delivery, registered first-class mail, telex, telecopier, or any
courier guaranteeing overnight delivery (i) if to a Holder, at the most
current address given by such Holder to the Issuer by means of a notice
given in accordance with the provisions of this Section, which address
initially is, with respect to the Initial Purchasers, the address set
forth in the Purchase Agreement; and (ii) if to the Issuer, initially
at the Issuer's address set forth in the Purchase Agreement and
thereafter at such other address, notice of which is given in
accordance with the provisions of this Section.
All such notices and communications shall be deemed to have
been duly given at the time delivered, if personally delivered; five
business days after being deposited in the mail, postage pre-paid, if
mailed; when answered back, if telexed; when receipt is acknowledged,
if telecopied; and on the next business day if timely delivered to an
air courier guaranteeing overnight delivery.
Copies of all such notices, demands, or other communications
shall be concurrently delivered by the Person giving the same to the
Trustee, at the address specified in the Indenture.
(d) Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors, assigns and
transferees of each of the parties, including, without limitation and
without the need for an express assignment or assumption, subsequent
Holders; provided that nothing herein shall be deemed to permit any
assignment, transfer or other disposition of Registrable Securities in
violation of the terms of the Purchase Agreement and the Indenture. The
Initial Purchasers shall have no liability or obligation to the Issuer,
and the Issuer shall have no liability or obligation to the Initial
Purchasers, with respect to any failure by a Holder to comply with, or
any breach by any Holder of, the obligations of such Holder under this
Agreement, except to the extent that an Initial Purchaser is a Holder.
(e) Third Party Beneficiary. Each Holder shall be a third
party beneficiary to the agreements made hereunder between the Issuer,
on the one hand, and the Initial Purchasers, on the other hand, and
subject to the terms hereof shall have the right to enforce such
agreements directly to the
24
extent it deems such enforcement necessary or advisable to protect its
rights or the rights of Holders hereunder.
(f) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the
same agreement.
(g) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
(h) Governing Law. This Agreement shall be governed by
laws of the State of New York.
(i) Severability. In the event that one or more of the
provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable the validity,
legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be
affected or impaired thereby.
25
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
CINGULAR WIRELESS LLC
By: Cingular Wireless Corporation
By: /s/ Xxxx Xxxxx
--------------------------------------
Name: Xxxx Xxxxx
Title: Vice President - Treasurer
Acting severally on behalf of themselves
and the several Initial Purchasers.
XXXXXX BROTHERS INC.
By: /s/ Xxxxxx Xxxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Senior Vice President
XXXXXXX, SACHS & CO.
/s/ Xxxxxxx, Xxxxx & Co.
-------------------------------------
(Xxxxxxx, Sachs & Co.)
X.X. XXXXXX SECURITIES INC.
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Managing Director
26
CROSS-REFERENCE TARGET LIST
NOTE: DUE TO THE NUMBER OF TARGETS SOME TARGET NAMES MAY NOT APPEAR IN THE
TARGET PULL-DOWN LIST.
(This list is for the use of the wordprocessor only,
is not a part of this document and may be discarded.)
ARTICLE/SECTION TARGET NAME ARTICLE/SECTION TARGET NAME ARTICLE/SECTION TARGET NAME ARTICLE/SECTION TARGET NAME
=============== =========== =============== =========== =============== =========== =============== ===========
2.....................reg.1933
2(a)........exch.off.statement
2(a)(ii).........Xxxxxxxx.Xxxx
2(a)(iv)..............Reg.Note
2(b).........reg.placement.agt
2(b)............exch.offer.reg
2(e)..................w/o.dupl
3...................Reg.proced
3(e)(v)......shelf.reg.changes
3(i)............shelf.reg.supp
3(l)..........trust.indent.act
3(o).....reg.Securities.listed
3(p)..........reg.note.issuers
4..........Part.Broker.Dealers
4(a)........part.brok.deal.und
4(b).......part.brok.deal.exch
4(b)(ii).........xxxxx.xxx.xxx
5................Indem.contrib
5(d).............indem.damages
6(b).............Amend.waivers
