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EXHIBIT 10.11
REGISTRATION RIGHTS AGREEMENT
Dated March 1, 2001
between
AT&T WIRELESS SERVICES, INC.,
AT&T CORP.
and
THE INITIAL PURCHASERS
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "AGREEMENT") is made and entered
into on March 1, 2001, between AT&T Wireless Services, Inc., a Delaware
corporation (the "COMPANY"), AT&T Corp., a New York corporation ("AT&T") and
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxxx Xxxxx Barney Inc.
and the several Persons (as defined below) listed on Schedule I hereto (each, an
"INITIAL PURCHASER" and collectively, the "INITIAL PURCHASERS").
This Agreement is made pursuant to the Purchase Agreement dated March 1,
2001, between the Company, AT&T and the Initial Purchasers (the "PURCHASE
AGREEMENT"), which provides for the sale by the Company to the Initial
Purchasers of an aggregate of $1,000,000,000 principal amount of the Company's
7.350% Senior Notes Due 2006, $3,000,000,000 principal amount of the Company's
7.875% Senior Notes Due 2011 and $2,500,000,000 principal amount of the
Company's 8.750% Senior Notes Due 2031 (the "SECURITIES"). In order to induce
the Initial Purchasers to enter into the Purchase Agreement, the Company has
agreed to provide to the Initial Purchasers and their direct and indirect
transferees the registration rights set forth in this Agreement. The execution
of this Agreement is a condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions
As used in this Agreement, the following capitalized defined terms shall
have the following meanings:
"1933 ACT" shall mean the Securities Act of 1933, as amended from time to
time.
"1934 ACT" shall mean the Securities Exchange Act of 1934, as amended from
time to time.
"CLOSING DATE" shall mean the date of the closing as described in the
Purchase Agreement.
"COMPANY" shall have the meaning set forth in the preamble and shall also
include the Company's successors.
"EXCHANGE OFFER" shall mean the exchange offer by the Company of Exchange
Securities for Registrable Securities pursuant to Section 2(a) hereof.
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"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 Form S-4 (or, if applicable, on another appropriate
form) and all amendments and supplements to such registration statement, in each
case including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"EXCHANGE SECURITIES" shall mean securities issued by the Company under the
Indenture containing terms identical to the Securities (except that (i) interest
thereon shall accrue from the last date on which interest was paid on the
Securities or, if no such interest has been paid, from March 1, 2001 and (ii)
the Exchange Securities will not contain restrictions on transfer) and to be
offered to Holders of Securities in exchange for Securities pursuant to the
Exchange Offer.
"HOLDER" shall mean the Initial Purchasers, for so long as they own any
Registrable Securities, and each of their successors, assigns and direct and
indirect transferees who become registered owners of Registrable Securities
under the Indenture; provided that for purposes of Sections 4 and 5 of this
Agreement, the term "HOLDER" shall include Participating Broker-Dealers (as
defined in Section 4(a)).
"INDENTURE" shall mean the Indenture relating to the Securities dated as of
or around the date hereof between the Company and The Bank of New York, as
trustee, and as the same may be amended from time to time in accordance with the
terms thereof.
"INITIAL PURCHASERS" shall have the meaning set forth in the preamble.
"ISSUE DATE" shall mean the date that the Securities are originally issued
by the Company.
"MAJORITY HOLDERS" shall mean the Holders of a majority of the aggregate
principal amount of outstanding Registrable Securities; provided that whenever
the consent or approval of Holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities held by the Company or
any of its affiliates (as such term is defined in Rule 405 under the 0000 Xxx)
(other than the Initial Purchasers or subsequent Holders of Registrable
Securities if such subsequent holders are deemed to be such affiliates solely by
reason of their holding of such Registrable Securities) shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage or amount.
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"OFFERING MEMORANDUM" shall mean the final offering memorandum dated as of
or around the date hereof prepared by the Company in connection with the
Securities.
"PERSON" shall mean an individual, partnership, limited liability company,
corporation, trust or unincorporated organization, or a government or agency or
political subdivision thereof.
"PROSPECTUS" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration Statement, and by all
other amendments and supplements to such prospectus, and in each case including
all material incorporated by reference therein.
"PURCHASE AGREEMENT" shall have the meaning set forth in the preamble.
"REGISTRABLE SECURITIES" shall mean the Securities; provided, however, that
the Securities shall cease to be Registrable Securities (i) when a Registration
Statement with respect to such Securities shall have been declared effective
under the 1933 Act and such Securities shall have been disposed of pursuant to
such Registration Statement, (ii) when such Securities have been sold to the
public pursuant to Rule 144(k) (or any similar provision then in force, but not
Rule 144A) under the 1933 Act or (iii) when such Securities shall have ceased to
be outstanding.
"REGISTRATION EXPENSES" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC, stock exchange or National Association of
Securities Dealers, Inc. registration and filing fees, (ii) all fees and
expenses incurred in connection with compliance with state securities or blue
sky laws (including reasonable fees and disbursements of counsel for any
underwriters or Holders in connection with blue sky qualification of any of the
Exchange Securities or Registrable Securities), (iii) all expenses of any
Persons in preparing or assisting in preparing, word processing, printing and
distributing any Registration Statement, any Prospectus, any amendments or
supplements thereto, any underwriting agreements, securities sales agreements
and other documents relating to the performance of and compliance with this
Agreement, (iv) all rating agency fees, (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 Company and, in the case of a Shelf
Registration Statement, the fees and disbursements of one counsel for the
Holders (which counsel shall be selected by
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the Majority Holders and which counsel may also be counsel for the Initial
Purchasers) and (viii) the fees and disbursements of the independent public
accountants of the Company, including the expenses of any special audits or
"COLD COMFORT" letters required by or incident to such performance and
compliance, but excluding fees and expenses of counsel to the underwriters
(other than fees and expenses set forth in clause (ii) above) or the Holders and
underwriting discounts and commissions and transfer taxes, if any, relating to
the sale or disposition of Registrable Securities by a Holder.
"REGISTRATION STATEMENT" shall mean any registration statement of the
Company that covers any of the Exchange Securities or Registrable Securities
pursuant to the provisions of this Agreement and all amendments and supplements
to any such Registration Statement, including post-effective amendments, in each
case including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission.
"SHELF REGISTRATION" shall mean a registration effected pursuant to Section
2(b) hereof.
"SHELF REGISTRATION STATEMENT" shall mean a "SHELF" registration statement
of the Company pursuant to the provisions of Section 2(b) of this Agreement
which covers all of the Registrable Securities (but no other securities unless
approved by the Holders whose Registrable Securities are covered by such Shelf
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.
"TRUSTEE" shall mean the trustee with respect to the Securities under the
Indenture.
"UNDERWRITER" shall have the meaning set forth in Section 3 hereof.
"UNDERWRITTEN REGISTRATION" or "UNDERWRITTEN OFFERING" shall mean a
registration in which Registrable Securities are sold to an Underwriter for
reoffering to the public.
2. Registration Under the 1933 Act.
(a) To the extent not prohibited by any applicable law or applicable
interpretation of the Staff of the SEC, the Company shall use its
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reasonable best efforts to cause to be filed within 180 days after the
Issue Date an Exchange Offer Registration Statement covering the offer by
the Company to the Holders to exchange all of the Registrable Securities
for Exchange Securities and to have such Registration Statement be declared
effective within 240 days after the Issue Date and remain effective until
the closing of the Exchange Offer. The Company shall commence the Exchange
Offer promptly after the Exchange Offer Registration Statement has been
declared effective by the SEC and use its reasonable best efforts to have
the Exchange Offer consummated within 270 days of the Issue Date. The
Company shall commence the Exchange Offer by mailing the related exchange
offer Prospectus and accompanying documents to each Holder stating, in
addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this
Registration Rights Agreement and that all Registrable Securities
validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a
period of at least 30 days from the date such notice is mailed) (the
"EXCHANGE DATES");
(iii) that any Registrable Security not tendered will remain
outstanding and continue to accrue interest, but will not retain any
rights under this Registration Rights Agreement;
(iv) that each Holder electing to have a Registrable Security
exchanged pursuant to the Exchange Offer will be required to (A)
surrender such Registrable Security, together with the enclosed
letters of transmittal, to the institution and at the address (located
in the Borough of Manhattan, The City of New York) specified in the
notice prior to the close of business on the last Exchange Date and
(B) represent that (x) it is not an affiliate of the Company as
defined in Rule 405 under the 1933 Act, (y) such Registrable Security
was acquired in the ordinary course of its business and (z) at the
time of the Exchange Offer, it has no arrangement with any Person to
participate in the distribution (within the meaning of the 0000 Xxx)
of the Exchange Securities; and
(v) that Holders will be entitled to withdraw their election, not
later than the close of business on the last Exchange Date, by sending
to the institution and at the address (located in the
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Borough of Manhattan, The City of New York) specified in the notice a
telegram, telex, facsimile transmission or letter setting forth the
name of such Holder, the principal amount of Registrable Securities
delivered for exchange and a statement that such Holder is withdrawing
his election to have such Securities exchanged.
As soon as practicable after the last Exchange Date, the
Company shall:
(i) accept for exchange Registrable Securities or portions
thereof tendered and not validly withdrawn pursuant to the
Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Securities or portions thereof so
accepted for exchange by the Company and issue, and cause the
Trustee to promptly authenticate and mail to each Holder, an
Exchange Security equal in principal amount to the principal
amount of the Registrable Securities surrendered by such Holder.
The Company shall use its reasonable best efforts to complete the
Exchange Offer as provided above and shall comply with the applicable
requirements of the 1933 Act, the 1934 Act and other applicable laws and
regulations in connection with the Exchange Offer. The Exchange Offer shall not
be subject to any conditions, other than that the Exchange Offer does not
violate applicable law or any applicable interpretation of the Staff of the SEC.
The Company shall inform the Initial Purchasers of the names and addresses of
the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall
have the right, subject to applicable law, to contact such Holders and otherwise
facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Company 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 last Exchange 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 270 days of the Issue Date or (iii) in the case
of any Holder that participates in an Exchange Offer that has been
completed, such Holder has not received, in the opinion of counsel for the
Initial Purchasers, Exchange Securities on the Exchange Date that may be
offered or sold without restriction under state and federal securities laws
(other than due solely to the status of such Holder as an affiliate of the
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Company as defined in Rule 405 under the 1933 Act or as a broker-dealer),
the Company shall (A) promptly deliver to the Holders written notice
thereof and (B) use its reasonable best efforts to cause to be filed, at
its sole expense, as soon as practicable after, and in no event later than
90 days after, such determination, date or notice of such opinion of
counsel is given to the Company, as the case may be, a Shelf Registration
Statement providing for the sale by the Holders of all of the Registrable
Securities and to have such Shelf Registration Statement declared effective
by the SEC. In the event the Company 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 Company shall use its
reasonable best efforts to file and have declared effective by the SEC both
an Exchange Offer Registration Statement pursuant to Section 2(a) with
respect to all Registrable Securities and a Shelf Registration Statement
(which may be a combined Registration Statement with the Exchange Offer
Registration Statement) with respect to offers and sales of Registrable
Securities held by the Initial Purchasers after completion of the Exchange
Offer. The Company agrees to use its reasonable best efforts to keep the
Shelf Registration Statement continuously effective until the earlier of
two years (or, if Rule 144(k) is amended to provide a shorter restrictive
period with respect to the Registrable Securities, such shorter period)
after the Issue Date or such shorter period that will terminate when (A)
all of the Registrable Securities covered by the Shelf Registration
Statement have been sold pursuant to the Shelf Registration Statement or
(B) in the case of clause (ii) of the first sentence of this Section 2(b),
when the Exchange Offer is consummated. The Company further agrees to
supplement or amend the Shelf Registration Statement if required by the
rules, regulations or instructions applicable to the registration form used
by the Company for such Shelf Registration Statement or by the 1933 Act or
by any other rules and regulations thereunder for shelf registration or if
reasonably requested by a Holder with respect to information relating to
such Holder, and to use its reasonable best efforts to cause any such
amendment to become effective and such Shelf Registration Statement to
become usable as soon as thereafter practicable. The Company agrees to
furnish to the Holders of Registrable Securities copies of any such
supplement or amendment promptly after its being used or filed with the
SEC.
(c) The Company shall pay all Registration Expenses in connection with
the registration pursuant to Section 2(a) and Section 2(b). Each Holder
shall pay all underwriting discounts and commissions and transfer taxes, if
any, relating to the sale or disposition of such Holder's Registrable
Securities pursuant to the Shelf Registration Statement.
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(d) An Exchange Offer Registration Statement pursuant to Section 2(a)
hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof
will not be deemed to have become effective unless it has been declared
effective by the SEC; provided, however, that, if, after it has been
declared effective, the offering of Registrable Securities pursuant to a
Shelf Registration Statement is interfered with by any stop order,
injunction or other order or requirement of the SEC or any other
governmental agency or court, such Registration Statement will be deemed
not to have become effective during the period of such interference until
the offering of Registrable Securities pursuant to such Registration
Statement may legally resume.
In the event that (i) an Exchange Offer Registration Statement (or a Shelf
Registration Statement pursuant to Section 2(b)) is not filed with the SEC on or
prior to the 180th day following the Issue Date, (ii) an Exchange Offer
Registration Statement is not declared effective on or prior to the 240th day
following the Issue Date (unless a Shelf Registration Statement shall have been
filed pursuant to Section 2(b)) or (iii) the Exchange Offer is not consummated
or a Shelf Registration Statement is not declared effective on or prior to the
270th day following the Issue Date, the interest rate on the Securities will be
increased by 0.25% per annum from and including the next day following the
applicable period referred to in clauses (i) through (iii); provided that the
interest rate on the Securities pursuant to the foregoing will in no event
increase by more than 0.25% per annum in the aggregate; and provided further
that if the Exchange Offer Registration Statement is not declared effective on
or prior to the 240th day following the Issue Date and the Company requests
Holders of the Registrable Securities to provide the information as described in
Section 3(p), the Securities held by Holders who do not deliver such information
to the Company when so requested will not be entitled to any such increase in
the interest rate for any day after the 240th day following the Issue Date. Upon
(A) the filing of an Exchange Offer Registration Statement after the 180-day
period referred to in clause (i), (B) the effectiveness of an Exchange Offer
Registration Statement after the 240-day period referred to in clause (ii) or
(C) the consummation of the Exchange Offer or the effectiveness of a Shelf
Registration Statement, as the case may be, after the 270-day period referred to
in clause (iii), in each case the interest rate on the Securities from the day
of such filing, effectiveness or consummation, as the case may be, shall be
reduced to the original interest rate of the Securities as of the Issue Date.
In the event that a Shelf Registration Statement is declared effective
pursuant to Section 2(b) and the Company fails to keep such Shelf Registration
Statement continuously effective or usable for resales for the period set forth
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Section 2(b) due to any matter contemplated by Section 3(e)(v), and such failure
continues for more than 60 days (whether or not consecutive) in any twelve-month
period, then the interest rate on the Securities will be increased by 0.25% per
annum from the 61st day until the earlier of (x) the date that the Shelf
Registration Statement is again deemed effective or is usable, (y) the date that
is the second anniversary of the Issue Date (or, if Rule 144(k) is amended to
provide a shorter restrictive period, such shorter period), or (z) the date as
of which all the Securities are sold pursuant to the Shelf Registration
Statement.
(e) Without limiting the remedies available to the Initial Purchasers
and the Holders, the Company acknowledges that any failure by the Company
to comply with its obligations under Section 2(a) and Section 2(b) hereof
may result in material irreparable injury to the Initial Purchasers or the
Holders for which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely and that, in the
event of any such failure, the Initial Purchasers or any Holder may obtain
such relief as may be required to specifically enforce the Company's
obligations under Section 2(a) and Section 2(b) hereof.
3. Registration Procedures.
In connection with the obligations of the Company with respect to the
Registration Statements pursuant to Section 2(a) and Section 2(b) hereof, the
Company shall as expeditiously as possible:
(a) prepare and file with the SEC a Registration Statement on the
appropriate form under the 1933 Act, which form (x) shall be selected by
the Company and (y) shall, in the case of a Shelf Registration, be
available for the sale of the Registrable Securities by the selling Holders
thereof and (z) shall comply as to form in all material respects with the
requirements of the applicable form and include all financial statements
required by the SEC to be filed therewith, and use its 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 and cause each
Prospectus to be supplemented by any required prospectus supplement and, as
so supplemented, to be filed pursuant to Rule 424 under the 1933 Act; to
keep each Prospectus current during the period described under Section 4(3)
and Rule 174 under the 1933 Act that is
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applicable to transactions by brokers or dealers with respect to the
Registrable Securities or Exchange Securities;
(c) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, to counsel for the Initial Purchasers, to counsel
for the Holders and to each Underwriter of an Underwritten Offering of
Registrable Securities, if any, without charge, as many copies of each
Prospectus, including each preliminary Prospectus, and any amendment or
supplement thereto and such other documents as such Holder or Underwriter
may reasonably request, in order to facilitate the public sale or other
disposition of the Registrable Securities; and the Company consents to the
use of such Prospectus and any amendment or supplement thereto in
accordance with applicable law by each of the selling Holders of
Registrable Securities and any such Underwriters in connection with the
offering and sale of the Registrable Securities covered by and in the
manner described in such Prospectus or any amendment or supplement thereto
in accordance with applicable law;
(d) use its reasonable best efforts to register or qualify the
Registrable Securities under all applicable state securities or "BLUE SKY"
laws of such jurisdictions as any Holder of Registrable Securities covered
by a Registration Statement shall reasonably request in writing by the time
the applicable Registration Statement is declared effective by the SEC, to
cooperate with such 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 Company shall not be required to (i) qualify as a foreign
corporation or as a dealer in securities in any jurisdiction where it would
not otherwise be required to qualify but for this Section 3(d), (ii) file
any general consent to service of process or (iii) subject itself to
taxation in any such jurisdiction if it is not so subject;
(e) in the case of a Shelf Registration, notify each Holder of
Registrable Securities, counsel for the Holders and counsel for the Initial
Purchasers promptly and, if requested by any such Holder or counsel,
confirm such advice in writing (i) when a Registration Statement has become
effective and when any post-effective amendment thereto has been filed and
becomes effective, (ii) of any request by the SEC or any state securities
authority for amendments and supplements to a Registration Statement and
Prospectus or for additional information after the Registration Statement
has become effective, (iii)of the issuance by the
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SEC or any state securities authority of any stop order suspending the
effectiveness of a Registration Statement or the initiation of any
proceedings for that purpose, (iv) if, between the effective date of a
Registration Statement and the closing of any sale of Registrable
Securities covered thereby, the representations and warranties of the
Company contained in any underwriting agreement, securities sales agreement
or other similar agreement, if any, relating to the offering cease to be
true and correct in all material respects or if the Company receives any
notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation of
any proceeding for such purpose, (v) of the happening of any event during
the period a Shelf Registration Statement is effective which makes any
statement made in such Registration Statement or the related 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, including (A) the fact that the
Registration Statement or the related Prospectus contains an untrue
statement of material fact or omits to state a material fact required or
necessary in order to make the statements therein not misleading and (B)
circumstances relating to pending corporate developments, public filings
with the SEC and similar events that result in such Registration Statement
not being continuously effective or usable for resales during the period
set forth in Section 2(b) and (vi) of any determination by the Company that
a post-effective amendment to a Registration Statement would be
appropriate;
(f) make every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement at the earliest
possible moment and provide immediate notice to each Holder of the
withdrawal of any such order;
(g) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, without charge, at least one conformed copy of each
Registration Statement and any post-effective amendment thereto (without
documents incorporated therein by reference or exhibits thereto, unless
requested);
(h) in the case of a Shelf Registration, cooperate with the selling
Holders of Registrable Securities to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and
not bearing any restrictive legends and enable such Registrable Securities
to be in such denominations (consistent with the provisions of the
Indenture) and registered in such names as the selling Holders may
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reasonably request at least one business day prior to the closing of any
sale of Registrable Securities;
(i) in the case of a Shelf Registration, upon the occurrence of any
matter contemplated by Section 3(e)(v) hereof, use its reasonable best
efforts to prepare and file with the SEC a supplement or post-effective
amendment to a Registration Statement or the related Prospectus or any
document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of the
Registrable Securities, such Prospectus will not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading. The Company agrees to notify the Holders to
suspend use of the Prospectus as promptly as practicable after the
occurrence of such an event, and the Holders hereby agree to suspend use of
the Prospectus until the Company has amended or supplemented the Prospectus
to correct such misstatement or omission. The Company will extend (A) the
period set forth in Section 2(b) during which the Company is required to
keep the Shelf Registration Statement effective and (B) the period set
forth in Section 4(b)(i) during which Participating Broker-Dealers are
authorized to use the Prospectus, 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 Holders receive copies of the supplemented or amended
Prospectus necessary to permit resales of the Securities or to and
including the date on which the Company has given notice that the sale of
the Securities may be resumed, as the case may be;
(j) a reasonable time prior to the filing of any Registration
Statement, any Prospectus, any amendment to a Registration Statement or
amendment or supplement to a Prospectus or any document which is to be
incorporated by reference into a Registration Statement or a Prospectus
after initial filing of a Registration Statement, provide copies of such
document to the Initial Purchasers and their counsel (and, in the case of a
Shelf Registration Statement, the Holders and their counsel) and make such
of the representatives of the Company as shall be reasonably requested by
the Initial Purchasers or their counsel (and, in the case of a Shelf
Registration Statement, the Holders or their counsel) available for
discussion of such document, and shall not at any time file or make any
amendment to the Registration Statement, any Prospectus or any amendment of
or supplement to a Registration Statement or a Prospectus or any document
which is to be incorporated by reference into a Registration Statement or a
Prospectus, of which the Initial Purchasers and their counsel (and, in the
case of a Shelf Registration Statement, the
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Holders and their counsel) shall not have previously been advised and
furnished a copy or to which the Initial Purchasers or their counsel (and,
in the case of a Shelf Registration Statement, the Holders or their
counsel) shall object, except for any amendment or supplement or document
(a copy of which has been previously furnished to the Initial Purchasers
and their counsel (and, in the case of a Shelf Registration Statement, the
Holders and their counsel)) which counsel to the Company shall advise the
Company in writing is required in order to comply with applicable law;
(k) obtain a CUSIP number for all Exchange Securities or Registrable
Securities, as the case may be, not later than the effective date of a
Registration Statement;
(l) 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,
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;
(m) in the case of a Shelf Registration, make available for inspection
by a representative of the Holders of the Registrable Securities, any
Underwriter participating in any disposition pursuant to such Shelf
Registration Statement, and attorneys and accountants designated by the
Holders, at reasonable times and in a reasonable manner, all financial and
other records, pertinent documents and properties of the Company, and cause
the respective officers, directors and employees of the Company to supply
all information reasonably requested by any such representative,
Underwriter, attorney or accountant in connection with a Shelf Registration
Statement;
(n) in the case of a Shelf Registration, use its reasonable best
efforts to cause all Registrable Securities to be listed on any securities
exchange or any automated quotation system on which similar securities
issued by the Company are then listed if requested by the Majority Holders,
to the extent such Registrable Securities satisfy applicable listing
requirements;
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(o) if reasonably requested by any Holder of Registrable Securities
covered by a Registration Statement, (i) promptly incorporate in a
Prospectus supplement or post-effective amendment such information with
respect to such Holder as such Holder reasonably requests to be included
therein and (ii) make all required filings of such Prospectus supplement or
such post-effective amendment as soon as the Company has received
notification of the matters to be incorporated in such filing; and
(p) in the case of a Shelf Registration, enter into such customary
agreements and take all such other actions in connection therewith
(including those requested by the Holders of a majority of the Registrable
Securities being sold) in order to expedite or facilitate the disposition
of such Registrable Securities including, but not limited to, an
Underwritten Offering and in such connection, (i) to the extent possible,
make such representations and warranties to the Holders and any
Underwriters of such Registrable Securities with respect to the business of
the Company and its subsidiaries, the Registration Statement, Prospectus
and documents incorporated by reference or deemed incorporated by
reference, if any, in each case, in form, substance and scope as are
customarily made by issuers to underwriters in underwritten offerings and
confirm the same if and when requested, (ii) obtain opinions of counsel to
the Company (which counsel and opinions, in form, scope and substance,
shall be reasonably satisfactory to the Holders and such Underwriters and
their respective counsel) addressed to each selling Holder and Underwriter
of Registrable Securities, covering the matters customarily covered in
opinions requested in underwritten offerings, (iii) obtain "COLD COMFORT"
letters from the independent certified public accountants of the Company
(and, if necessary, any other certified public accountant of any subsidiary
of the Company, or of any business acquired by the Company for which
financial statements and financial data are or are required to be included
in the Registration Statement) addressed to each selling Holder and
Underwriter of Registrable Securities, such letters to be in customary form
and covering matters of the type customarily covered in "COLD COMFORT"
letters in connection with underwritten offerings, and (iv) deliver such
documents and certificates as may be reasonably requested by the Holders of
a majority in principal amount of the Registrable Securities being sold or
the Underwriters, and which are customarily delivered in underwritten
offerings, to evidence the continued validity of the representations and
warranties of the Company made pursuant to clause (i) above and to evidence
compliance with any customary conditions contained in an underwriting
agreement.
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In the case of a Shelf Registration Statement, (A) a Holder that sells
Registrable Securities pursuant to such Shelf Registration Statement will be
required to be named as a selling security holder in the related Prospectus and
(B) the Company may require each Holder of Registrable Securities to furnish to
the Company such information regarding the Holder and the proposed distribution
by such Holder of such Registrable Securities as the Company may from time to
time reasonably request in writing. The Company will not have any obligation to
include in the Shelf Registration Statement any Holder that does not deliver
such information to the Company.
In the case of a Shelf Registration Statement, each Holder agrees that,
upon receipt of any notice from the Company of the happening of any event of the
kind described in Section 3(e)(v) hereof, such Holder will forthwith discontinue
disposition of Registrable Securities pursuant to a Registration Statement until
such Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 3(i) hereof, and, if so directed by the Company, such
Holder will deliver to the Company (at its expense) all copies in its
possession, other than permanent file copies then in such Holder's possession,
of the Prospectus covering such Registrable Securities current at the time of
receipt of such notice. If the Company shall give any such notice to suspend the
disposition of Registrable Securities pursuant to a Registration Statement, the
Company 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. The Company may give
any such notice only twice during any 365 day period and any such suspensions
may not exceed 30 days for each suspension and there may not be more than two
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 sell such Registrable Securities in an
Underwritten Offering. In any such Underwritten Offering, the investment banker
or investment bankers and manager or managers (the "UNDERWRITERS") that will
administer the offering will be selected by the Majority Holders of the
Registrable Securities included in such offering.
4. Participation of Broker-Dealers in Exchange Offer.
(a) The Staff of the SEC has taken the position that any broker-
dealer that receives Exchange Securities for its own account in the
Exchange Offer in exchange for Securities that were acquired by such
broker-dealer as a result of market-making or other trading activities (a
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"PARTICIPATING BROKER-DEALER"), may be deemed to be an "UNDERWRITER" within
the meaning of the 1933 Act and must deliver a prospectus meeting the
requirements of the 1933 Act in connection with any resale of such Exchange
Securities.
The Company understands that it is the Staff's position that if the
Prospectus contained in the Exchange Offer Registration Statement includes a
plan of distribution containing a statement to the above effect and the means by
which Participating Broker-Dealers may resell the Exchange Securities, without
naming the Participating Broker-Dealers or specifying the amount of Exchange
Securities owned by them, such Prospectus may be delivered by Participating
Broker-Dealers to satisfy their prospectus delivery obligation under the 1933
Act in connection with resales of Exchange Securities for their own accounts, so
long as the Prospectus otherwise meets the requirements of the 1933 Act.
(b) In light of the above, notwithstanding the other provisions of
this Agreement, the Company agrees that the provisions of this Agreement as
they relate to a Shelf Registration shall also apply to an Exchange Offer
Registration to the extent, and with such reasonable modifications thereto
as may be, reasonably requested by the Initial Purchasers or by one or more
Participating Broker-Dealers, in each case as provided in clause (ii)
below, in order to expedite or facilitate the disposition of any Exchange
Securities by Participating Broker-Dealers consistent with the positions of
the Staff recited in Section 4(a) above; provided that:
(i) the Company shall not be required to amend or supplement the
Prospectus contained in the Exchange Offer Registration Statement, as
would otherwise be contemplated by Section 3(i), for a period
exceeding 240 days after the last Exchange Date (as such period may be
extended pursuant to the penultimate paragraph of Section 3 of this
Agreement) and Participating Broker-Dealers shall not be authorized by
the Company to deliver and shall not deliver such Prospectus after
such period in connection with the resales contemplated by this
Section 4; 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 Company by
the Initial Purchasers or with the reasonable request in writing to
the Company by one or more broker-dealers who
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certify to the Initial Purchasers and the Company in writing that they
anticipate that they will be Participating Broker-Dealers; and
provided further that, in connection with such application of the
Shelf Registration procedures set forth in Section 3 to an Exchange
Offer Registration, the Company shall be obligated (x) to pay the fees
and expenses of only one counsel representing the Participating
Broker-Dealers, which shall be counsel to the Initial Purchasers
unless such counsel elects not to so act and (y) to cause to be
delivered only one, if any, "COLD COMFORT" letter with respect to the
Prospectus in the form existing on the last Exchange Date and with
respect to each subsequent amendment or supplement, if any, effected
during the period specified in clause (i) above.
(c) The Initial Purchasers shall have no liability to the Company or any
Holder with respect to any request that it may make pursuant to Section 4(b)
above.
5. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold each Initial Purchaser,
each Holder and each Person, if any, who controls any Initial Purchaser or
any Holder within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, harmless from and against any and all losses, claims,
damages, and liabilities arising because 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 any Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto) contained or is alleged to have contained any untrue
statement of a material fact or omitted or is alleged to have omitted to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading, except as to losses, claims, damages
or liabilities caused by any such untrue statement or omission or alleged
untrue statement or omission made in reliance upon information furnished to
the Company herein or otherwise in writing by or on behalf of any Initial
Purchaser of any Holder for use therein. In connection with any
Underwritten Offering permitted by Section 3, the Company will also
indemnify the Underwriters, if any, selling brokers, dealers and similar
securities industry professionals participating in the distribution, their
officers and directors and each Person who controls such Persons (within
the meaning of the 1933 Act and the 0000 Xxx) to the same extent as
provided above with respect to the indemnification of the Holders, if
requested in connection with any Registration Statement.
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(b) In the event that any Registration Statement is filed pursuant to
this Agreement prior to the consummation of the split-off of AT&T Wireless
Group from AT&T, as described in the Offering Memorandum, AT&T agrees to
indemnify and hold each Initial Purchaser, each Holder and each Person, if
any, who controls any Initial Purchaser or Holder within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, harmless from and
against any and all losses, claims, damages, and liabilities arising
because 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
any Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) contained or is alleged to
have contained any untrue statement of a material fact or omitted or is
alleged to have omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, which
untrue statement or omission or alleged untrue statement or omission was
made in the Registration Statement (or any amendment thereto), including
all documents incorporated therein by reference , or the Prospectus or any
amendment or supplement thereto in reliance upon information furnished to
the Company herein or otherwise in writing by or on behalf of AT&T for use
in connection with the preparation thereof.
(c) Each Holder agrees, severally and not jointly, to indemnify and
hold the Company and AT&T, the Initial Purchasers and the other selling
Holders, and each of their respective directors, officers who sign the
Registration Statement, and each Person who controls the Company, AT&T, any
Initial Purchaser and any other selling Holder within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, harmless from and
against any and all losses, claims, damages and liabilities arising because
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 any
Prospectus (as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) contained any untrue statement of a
material fact or omitted or is alleged to have omitted to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading, which untrue statement or omission or alleged
untrue statement or omission was made in the Registration Statement (or any
amendment thereto), including all documents incorporated therein by
reference, or the Prospectus or any amendment or supplement thereto in
reliance upon information furnished
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to the Company herein or otherwise in writing by or on behalf of such
Initial Purchaser for use in connection with the preparation thereof.
(d) Upon the commencement of any action against any Person in respect
of which indemnity may be sought on account of any indemnity agreement
contained herein, such Person or any Person controlling such Person as
aforesaid, will promptly give written notice of the commencement thereof to
the party or parties against whom indemnity shall be sought, but the
omission so to notify such indemnifying party or parties of any such action
shall not relieve such indemnifying party or parties from any liability
which it or they may have to the indemnified party or parties otherwise
than on account of such indemnity agreement. In case such notice of any
such action shall be so given, such indemnifying party or parties 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 party or parties and satisfactory to the indemnified
party or parties who shall be defendant 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 party or
parties shall not elect to assume the defense of such action, such
indemnifying party or parties will reimburse such indemnified party or
parties for the reasonable fees and expenses of any counsel retained by
them. In the event that the parties to any such action (including impleaded
parties) include both the indemnifying party and the indemnified party and
either (i) the indemnifying party or parties and indemnified party or
parties mutually agree or (ii) representation of both the indemnifying
party or parties and the indemnified party or parties by the same counsel
is inappropriate under applicable standards of professional conduct due to
actual or potential differing interests between them, then the indemnifying
party or parties shall not have the right to assume the defense of such
action on behalf of such indemnified party or parties and will reimburse
such indemnified party or parties for the reasonable fees and expenses of
any counsel retained by them and satisfactory to the indemnifying party or
parties, it being understood that the indemnifying party or parties shall
not, in connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys for all such
indemnified parties, which firm shall be designated in writing by Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and Xxxxxxx Xxxxx Barney Inc.,
jointly, in the case of an action in which one or more Initial Purchasers,
or controlling persons are indemnified parties,
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by the Majority Holders in the case of an action in which the Holders, or
controlling persons are indemnified parties, and by the Company or AT&T in
the case of an action in which the Company or AT&T or any of their
directors, officers or controlling persons are indemnified parties. The
indemnifying party or parties shall not be liable under this Agreement with
respect to any settlement made by any indemnified party or parties without
prior written consent by the indemnifying party or parties to such
settlement.
(e) If the indemnification provided for in paragraph (a) or (c) of
this Section 5 is unavailable to an indemnified party in respect of any
losses, claims, damages, or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims,
damages or liabilities in such proportion as is appropriate to reflect the
relative fault of the indemnified party or parties on the one hand and the
indemnified party or parties on the other in connection with the statements
or omissions or alleged statements or omissions which resulted in such
losses, claims, damages, or liabilities, as well as any other relevant
equitable considerations. The relative fault of the Company on the one hand
and of the Holders on the other 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 Company or by the Holders and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and each Holder
agree that it would not be just and equitable if contribution pursuant to
this paragraph (e) 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 which does not take account of the equitable considerations
referred to above in this paragraph (e). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in this paragraph (e) shall be deemed to include, subject to
the limitations set forth above in this Section 5, any legal or other
expenses reasonably incurred by such indemnified party in connection with
defending any such action or claim. Notwithstanding the provisions of this
paragraph (e), no Holder shall be required to contribute any amount in
excess of the amount by which the total price at which the Registrable
Securities were sold by such Holder exceeds the amount of any damages which
such Holder has been required to pay, otherwise than pursuant to this
paragraph (e), by reason of such untrue or alleged untrue statement or
omission or alleged omission. No Person guilty of fraudulent
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misrepresentation (within the meaning of Section 11(e) of the 0000 Xxx)
shall be entitled to contribution from any Person who was not guilty of
such fraudulent misrepresentation.
(f) In the event that any Registration Statement is filed pursuant to
this Agreement prior to the consummation of the split-off of AT&T Wireless
Group from AT&T, as described in the Offering Memorandum, AT&T agrees with
each Initial Purchaser and Holder that, in the event amounts are payable by
the Company under paragraphs (a) or (e) of this Section 11, and the Company
is unable to satisfy these obligations, AT&T will satisfy these obligations
to the extent they remain unpaid by the Company.
(g) Notwithstanding anything to the contrary in this Agreement, in the
event that the split-off of AT&T Wireless Group from AT&T, as described in
the Offering Memorandum, is consummated prior to the date that any
Registration Statement under this Agreement is declared effective, the
obligations of AT&T under this Agreement shall terminate.
The indemnity and contribution provisions contained in this Section 5 shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by or on behalf of the Initial
Purchasers, any Holder or any Person controlling any Initial Purchaser or any
Holder, or by or on behalf of the Company, its officers or directors or any
Person controlling the Company, (iii) acceptance of any of the Exchange
Securities and (iv) any sale of Registrable Securities pursuant to a Shelf
Registration Statement.
6. Miscellaneous.
(a) No Inconsistent Agreements. The Company has not entered into, and
on or after the date of this Agreement will not enter into, any agreement
which is inconsistent with the rights granted to the Holders of Registrable
Securities in this Agreement or otherwise conflicts with the provisions
hereof. The rights granted to the Holders hereunder do not in any way
conflict with and are not inconsistent with the rights granted to the
holders of the Company's other issued and outstanding securities under any
such agreements.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions
hereof may not be given unless the Company has obtained the written consent
of Holders of at least a majority
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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 5 hereof shall be
effective as against any Holder of Registrable Securities unless consented
to in writing by such Holder.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such
Holder to the Company by means of a notice given in accordance with the
provisions of this Section 6(c), which address initially is, with respect
to the Initial Purchasers, the addresses set forth in the Purchase
Agreement; and (ii) if to the Company, initially at the Company's address
set forth in the Purchase Agreement and thereafter at such other address,
notice of which is given in accordance with the provisions of this Section
6(c).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and on
the next business day if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the Person giving the same to the Trustee, 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, subsequent Holders; provided that nothing herein shall
be deemed to permit any assignment, transfer or other disposition of
Registrable Securities in violation of the terms of the Purchase Agreement.
If any transferee of any Holder shall acquire Registrable Securities, in
any manner, whether by operation of law or otherwise, such Registrable
Securities shall be held subject to all of the terms of this Agreement, and
by taking and holding such Registrable Securities such Person shall be
conclusively deemed to have agreed to be bound by and to perform all of the
terms and provisions of this Agreement and such Person shall be entitled to
receive the benefits hereof. The Initial Purchasers (in their capacity as
Initial Purchasers) shall have no liability or obligation to the
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Company with respect to any failure by a Holder to comply with, or any
breach by any Holder of, any of the obligations of such Holder under this
Agreement.
(e) Purchases and Sales of Securities. The Company shall not, and
shall use its reasonable best efforts to cause its affiliates (as defined
in Rule 405 under the 0000 Xxx) not to, purchase and then resell or
otherwise transfer any Securities.
(f) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company, on the
one hand, and the Initial Purchasers, on the other hand, and shall have the
right to enforce such agreements directly to the extent it deems such
enforcement necessary or advisable to protect its rights or the rights of
Holders hereunder.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same ageement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. This Agreement shall be governed by the laws of the
State of New York.
(j) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
AT&T WIRELESS SERVICES, INC.
By:/s/ Xxxxxx XxXxxx, Jr
-----------------------------------------
Name: Xxxxxx XxXxxx, Jr.
Title: VP and Chief Financial Officer
AT&T CORP.
By:/s/ Xxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: VP and Treasurer
Confirmed and accepted as of
the date first above written:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:/s/ Xxxxxx Xxxx
--------------------------------------------
Name: Xxxxxx Xxxx
Title: Managing Director
XXXXXXX XXXXX BARNEY INC.
By:/s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
Acting severally on behalf of themselves and the several Initial Purchasers
named herein
26
SCHEDULE I - INITIAL PURCHASERS
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxxx Xxxxx Barney Inc.
Banc of America Securities LLC
Banc One Capital Markets, Inc.
Barclays Capital Inc.
BNP Paribas Securities Corp.
Deutsche Banc Alex. Xxxxx Inc.
Xxxxx Securities Inc.
HSBC Securities (USA) Inc.
Xxxxxx Brothers Inc.
Mizuho International plc
The Royal Bank of Scotland plc
Tokyo-Mitsubishi International plc
Xxxxxxxx Capital Partners, L.P.
