EXHIBIT 4.3
XXXXX XXXXXXX NATURAL GAS CORP.
6.875% Senior Notes Due 2007
REGISTRATION AGREEMENT
New York, New York
December 11, 1997
Xxxxxxx Xxxxx Xxxxxx
Xxxxxxx Brothers Inc
Chase Securities Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
NationsBanc Xxxxxxxxxx Securities, Inc.
Xxxxxxx Xxxxx Securities Inc.
In care of Salomon Brothers Inc
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Xxxxx Xxxxxxx Natural Gas Corp., an Oklahoma corporation (the "Company"),
proposes to issue and sell to Salomon Brothers Inc, Chase Securities Inc.,
Xxxxxx Xxxxxxx & Co. Incorporated, NationsBanc Xxxxxxxxxx Securities, Inc.
and Xxxxxxx Xxxxx Securities Inc. (collectively, the "Initial Purchasers"),
upon the terms set forth in a purchase agreement of even date herewith (the
"Purchase Agreement"), its 6.875% Senior Notes Due 2007 (the "Securities")
(the "Initial Placement"). As an inducement to the Initial Purchasers to
enter into the Purchase Agreement and in satisfaction of a condition to the
Initial Purchasers' obligations thereunder, the Company agrees with the
Initial Purchasers, (i) for the benefit of the Initial Purchasers and (ii)
for the benefit of the holders from time to time of the Securities until such
time as such Securities have been sold pursuant to an Exchange Offer
Registration Statement or Shelf Registration Statement (as defined below)
(including the Initial Purchasers) (each of the foregoing a "Holder" and
together the "Holders"), as follows:
1. DEFINITIONS. Capitalized terms used herein without definition shall
have their respective meanings set forth in the Purchase Agreement. As used
in this Agreement, the following capitalized defined terms shall have the
following meanings:
"ACT" means the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.
"AFFILIATE" of any specified person means any other person which, directly
or indirectly, is in control of, is controlled by, or is under common control
with, such specified person. For purposes of this definition, control of a
person means the power, direct or indirect, to direct or cause the direction
of the management and policies of such person whether by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"CLOSING DATE" has the meaning set forth in the Purchase Agreement.
"COMMISSION" means the Securities and Exchange Commission.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"EXCHANGE OFFER REGISTRATION PERIOD" means the 180 day period following
the consummation of the Registered Exchange Offer, exclusive of any period
during which any stop order shall be in effect suspending the effectiveness
of the Exchange Offer Registration Statement.
"EXCHANGE OFFER REGISTRATION STATEMENT" means a registration statement of
the Company on an appropriate form under the Act with respect to the
Registered Exchange Offer, 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.
"EXCHANGING DEALER" means any Holder (which may include the Initial
Purchasers) which is a broker-dealer, electing to exchange Securities
acquired for its own account as a result of market-making activities or other
trading activities, for New Securities.
"HOLDER" has the meaning set forth in the preamble hereto.
"INDENTURE" means the Indenture relating to the Securities dated as of
December 11, 1997, between the Company and LaSalle National Bank, as trustee,
as the same may be amended from time to time in accordance with the terms
thereof.
"INITIAL PLACEMENT" has the meaning set forth in the preamble hereto.
"MAJORITY HOLDERS" means the Holders of a majority of the aggregate
principal amount of Securities registered under a Registration Statement.
"MANAGING UNDERWRITERS" means the investment banker or investment bankers
and manager or managers that shall administer an underwritten offering.
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"NEW SECURITIES" means debt securities of the Company identical in all
material respects to the Securities (except that the cash interest and
interest rate step-up provisions and the transfer restrictions will be
modified or eliminated, as appropriate), to be issued under the Indenture or
the New Securities Indenture.
"NEW SECURITIES INDENTURE" means an indenture between the Company and the
New Securities Trustee, identical in all material respects with the Indenture
(except that the cash interest and interest rate step-up provisions will be
modified or eliminated, as appropriate).
"NEW SECURITIES TRUSTEE" means a bank or trust company reasonably
satisfactory to the Initial Purchasers, as trustee with respect to the New
Securities under the New Securities Indenture.
"OFFERING MEMORANDUM" has the meaning set forth in the Purchase Agreement.
"PROSPECTUS" means the prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act), as amended
or supplemented by any prospectus supplement, with respect to the terms of
the offering of any portion of the Securities or the New Securities, covered
by such Registration Statement, and all amendments and supplements to the
Prospectus, including post-effective amendments.
"REGISTERED EXCHANGE OFFER" means the proposed offer to the Holders to
issue and deliver to such Holders, in exchange for the Securities, a like
principal amount of the New Securities.
"REGISTRATION STATEMENT" means any Exchange Offer Registration Statement
or Shelf Registration Statement that covers any of the Securities or the New
Securities pursuant to the provisions of this Agreement, 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.
"XXXXXXX XXXXX BARNEY" shall mean Xxxxx Xxxxxx Inc. or Salomon Brothers
Inc to the extent that any such party is a signatory to this Agreement.
"SECURITIES" has the meaning set forth in the preamble hereto.
"SHELF REGISTRATION" means a registration effected pursuant to Section 3
hereof.
"SHELF REGISTRATION PERIOD" has the meaning set forth in Section 3(b)
hereof.
"SHELF REGISTRATION STATEMENT" means a "shelf" registration statement of
the Company pursuant to the provisions of Section 3 hereof which covers some
or all of the Securities or New Securities, as applicable, on an appropriate
form under Rule 415 under the Act, or any similar rule that may be adopted by
the Commission, amendments and supplements to such registration
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statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"TRUSTEE" means the trustee with respect to the Securities under the
Indenture.
"UNDERWRITER" means any underwriter of Securities in connection with an
offering thereof under a Shelf Registration Statement.
2. REGISTERED EXCHANGE OFFER; RESALES OF NEW SECURITIES BY EXCHANGING
DEALERS; PRIVATE EXCHANGE. (a) The Company shall prepare and, not later
than 150 days following the date of original issuance of the Securities,
shall file with the Commission the Exchange Offer Registration Statement with
respect to the Registered Exchange Offer. The Company shall use its best
efforts to cause the Exchange Offer Registration Statement to become
effective under the Act within 180 days of the date of original issuance of
the Securities.
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Company shall promptly commence the Registered Exchange
Offer, it being the objective of such Registered Exchange Offer to
enable each Holder electing to exchange Securities for New Securities
(assuming that such Holder is not an affiliate of the Company within the
meaning of the Act, acquires the New Securities in the ordinary course
of such Holder's business and has no arrangements with any person to
participate in the distribution of the New Securities) to trade such New
Securities from and after their receipt without any limitations or
restrictions under the Act and without material restrictions under the
securities laws of a substantial proportion of the several states of the
United States.
(c) In connection with the Registered Exchange Offer, the Company
shall:
(i) mail to each Holder a copy of the Prospectus forming part
of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) keep the Registered Exchange Offer open for not less than
30 days after the date notice thereof is mailed to the Holders (or
longer if required by applicable law);
(iii) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan, The
City of New York; and
(iv) comply in all respects with all applicable laws.
(d) As soon as practicable after the close of the Registered
Exchange Offer, the Company shall:
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(i) accept for exchange all Securities tendered and not
validly withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver to the Trustee for cancelation all Securities so
accepted for exchange; and
(iii) cause the Trustee or the New Securities Trustee, as the
case may be, promptly to authenticate and deliver to each Holder of
Securities New Securities equal in principal amount to the
Securities of such Holder so accepted for exchange.
(e) The Initial Purchasers and the Company acknowledge that,
pursuant to interpretations by the Commission's staff of Section 5 of
the Act, and in the absence of an applicable exemption therefrom, each
Exchanging Dealer is required to deliver a Prospectus in connection with
a sale of any New Securities received by such Exchanging Dealer pursuant
to the Registered Exchange Offer in exchange for Securities acquired for
its own account as a result of market-making activities or other trading
activities. Accordingly, the Company shall:
(i) include the information set forth in Annex A hereto on the
cover of the Exchange Offer Registration Statement, in Annex B
hereto in the forepart of the Exchange Offer Registration Statement
in a section setting forth details of the Exchange Offer, and in
Annex C hereto in the underwriting or plan of distribution section
of the Prospectus forming a part of the Exchange Offer Registration
Statement, and include the information set forth in Annex D hereto
in the Letter of Transmittal delivered pursuant to the Registered
Exchange Offer; and
(ii) use its best efforts to keep the Exchange Offer
Registration Statement continuously effective under the Act during
the Exchange Offer Registration Period for delivery by Exchanging
Dealers in connection with sales of New Securities received
pursuant to the Registered Exchange Offer, as contemplated by
Section 4(h) below.
(f) In the event that any Initial Purchaser determines that it is not
eligible to participate in the Registered Exchange Offer with respect to
the exchange of Securities constituting any portion of an unsold
allotment, at the request of such Initial Purchaser, the Company shall
issue and deliver to such Initial Purchaser or the party purchasing New
Securities registered under a Shelf Registration Statement as
contemplated by Section 3 hereof from such Initial Purchaser, in
exchange for such Securities, a like principal amount of New Securities.
The Company shall seek to cause the CUSIP Service Bureau to issue the
same CUSIP number for such New Securities as for New Securities issued
pursuant to the Registered Exchange Offer.
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3. SHELF REGISTRATION. If, (i) because of any change in law or
applicable interpretations thereof by the Commission's staff, the Company
determines upon advice of its outside counsel that it is not permitted to
effect the Registered Exchange Offer as contemplated by Section 2 hereof, or
(ii) if for any other reason the Registered Exchange Offer is not declared
effective within 180 days following the date of original issuance of the
Securities, or (iii) if any Initial Purchaser so requests with respect to
Securities held by it constituting any portion of an allotment remaining
unsold after 30 days following the date hereof, or (iv) in the case of any
Initial Purchaser that participates in the Registered Exchange Offer or
acquires New Securities pursuant to Section 2(f) hereof, such Initial
Purchaser does not receive freely tradeable New Securities in exchange for
Securities constituting any portion of an unsold allotment (it being
understood that, for purposes of this Section 3, (x) the requirement that an
Initial Purchaser deliver a Prospectus containing the information required by
Items 507 and/or 508 of Regulation S-K under the Act in connection with sales
of New Securities acquired in exchange for such Securities shall result in
such New Securities being not "freely tradeable" but (y) the requirement that
an Exchanging Dealer deliver a Prospectus in connection with sales of New
Securities acquired in the Registered Exchange Offer in exchange for
Securities acquired as a result of market-making activities or other trading
activities shall not result in such New Securities being not "freely
tradeable"), the following provisions shall apply:
(a) The Company shall, at its cost, as promptly as practicable, file
with the Commission and thereafter shall use its best efforts to cause
to be declared effective by the 210th day after the original date of
issuance of the Securities under the Act a Shelf Registration Statement
relating to the offer and sale of the Securities or the New Securities,
as applicable, by the Holders from time to time in accordance with the
methods of distribution set forth in such Shelf Registration Statement
and Rule 415 under the Act; provided that with respect to New Securities
received by an Initial Purchaser in exchange for Securities constituting
any portion of an unsold allotment, the Company may, if permitted by
current interpretations by the Commission's staff, file a post-effective
amendment to the Exchange Offer Registration Statement containing the
information required by Regulation S-K Items 507 and/or 508, as
applicable, in satisfaction of its obligations under this paragraph (a)
with respect thereto, and any such Exchange Offer Registration
Statement, as so amended, shall be referred to herein as, and governed
by the provisions herein applicable to, a Shelf Registration Statement;
PROVIDED, FURTHER, that no Holder (other than an Initial Purchaser)
shall be entitled to have the Securities held by it covered by such
Shelf Registration Statement unless such Holder agrees in writing to be
bound by all the provisions of this Agreement applicable to such Holder
as provided in a written notice and questionnaire delivered to all
Holders (including the Initial Purchasers) notifying such Holders that a
Shelf Registration Statement will be filed by the Company, requesting
such information with respect to the Holders as required to be disclosed
by the Shelf Registration Statement and setting forth a deadline for
response therein (which in no event shall be less than 30 calendar days).
(b) The Company shall use its best efforts to keep the Shelf
Registration Statement continuously effective in order to permit the
Prospectus forming part thereof to
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be lawfully delivered by Holders until the earliest of (x) the second
anniversary of the date of original issuance of the Securities (or the
first anniversary of the effective date if such Shelf Registration
Statement is filed at the request of the Initial Purchasers), (y) the
time when the Securities registered thereunder can be sold by
non-affiliates pursuant to Rule 144 under the Securities Act without
limitation under clauses (c), (e), (f) and (h) of Rule 144, or (z) such
time as all the Securities registered thereunder have been sold (in any
such case, such period being called the "Shelf Registration Period").
During any consecutive 365-day period, the Company will have the ability
to suspend the availability of the Shelf Registration Statement for up
to two periods of up to 45 consecutive days, but no more than an
aggregate of 60 days during any 365-day period. The Company shall be
deemed not to have used its best efforts to keep the Shelf Registration
Statement effective during the requisite period if it voluntarily takes
any action that would result in Holders of Securities covered thereby
not being able to offer and sell such Securities during that period,
unless (i) such action is required by applicable law, or (ii) upon the
occurrence of any event contemplated by paragraph 4(c)(2)(iii) below,
such action is taken by the Company in good faith and for valid business
reasons (not including avoidance of the Company's obligations
hereunder), so long as the Company promptly thereafter complies with the
requirements of Section 4(k) hereof, if applicable, if the Company has
determined in good faith that there are no material legal or commercial
impediments in so doing.
4. REGISTRATION PROCEDURES. In connection with any Shelf Registration
Statement and, to the extent applicable, any Exchange Offer Registration
Statement, the following provisions shall apply:
(a) The Company shall (i) furnish to each Initial Purchaser, prior to
the filing thereof with the Commission, a copy of any Shelf Registration
Statement and any Exchange Offer Registration Statement, and each
amendment thereof and each amendment or supplement, if any, to the
Prospectus included therein, (ii) in the event that an Initial Purchaser
(with respect to any portion of an unsold allotment from the original
offering) is participating in the Registration Statement, use its best
efforts to reflect in each such document, when so filed with the
Commission, such comments as the Initial Purchasers reasonably may
propose and (iii) include the names of the Holders who propose to sell
Securities pursuant to the Shelf Registration Statement, as selling
securityholders.
(b) Notwithstanding any other provisions of this Agreement to the
contrary, the Company shall ensure that (other than with respect to
information required to be supplied by the selling Holders pursuant to
this Agreement) (i) any Registration Statement and any amendment thereto
and any Prospectus forming part thereof and any amendment or supplement
thereto complies in all material respects with the applicable
requirements of the Act and the rules and regulations of the Commission
thereunder, (ii) any Registration Statement and any amendment thereto
does not, when it becomes effective, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading and
(iii) any Prospectus forming part
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of any Registration Statement, and any amendment or supplement to such
Prospectus, does not contain, as of the date of such prospectus or
amendment or supplement, any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(c)(1) The Company shall advise the Initial Purchasers in writing
and, in the case of a Shelf Registration Statement, the Holders of
Securities covered thereby:
(i) when a Registration Statement and any amendment thereto has
been filed with the Commission and when the Registration Statement
or any post-effective amendment thereto has become effective; and
(ii) of any request by the Commission for amendments or
supplements to the Registration Statement or the Prospectus
included therein or for additional information.
(2) The Company shall advise the Initial Purchasers in writing and, in
the case of a Shelf Registration Statement, the Holders of Securities covered
thereby, and, in the case of an Exchange Offer Registration Statement, any
Exchanging Dealer which has provided in writing to the Company a telephone or
facsimile number and address for notices:
(i) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
(ii) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Securities
included therein for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and
(iii) of the happening of any event that requires the Company to
make any changes in the Registration Statement or the Prospectus so
that, as of such date, the statements therein do not contain an
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading (which
written notice shall be accompanied by an instruction to suspend
the use of the Prospectus until the requisite changes have been
made and which need not provide any detail as to the nature of such
event).
(d) The Company shall use reasonable commercial efforts to obtain the
withdrawal of any order suspending the effectiveness of any Registration
Statement at the earliest possible time.
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(e) The Company shall furnish to each Holder of Securities included
within the coverage of any Shelf Registration Statement, without charge,
one copy of such Shelf Registration Statement and any post-effective
amendment thereto, including financial statements and schedules, and, if
the Holder so requests in writing, all exhibits thereto (other than
those, if any, incorporated by reference).
(f) The Company shall, during the Shelf Registration Period, deliver
to each Holder of Securities included within the coverage of any Shelf
Registration Statement, without charge, as many copies of the Prospectus
(including each preliminary Prospectus) included in such Shelf
Registration Statement and any amendment or supplement thereto as such
Holder may reasonably request; and the Company consents, subject to the
provisions of this Agreement, to the use of the Prospectus or any
amendment or supplement thereto by each of the selling Holders of
Securities in connection with the offering and sale of the Securities
covered by the Prospectus, or any amendment or supplement thereto,
included in the Shelf Registration Statement.
(g) The Company shall furnish to each Exchanging Dealer which so
requests, without charge, at least one copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto,
including financial statements and schedules, any documents incorporated
by reference therein, and, if the Exchanging Dealer so requests in
writing, all exhibits thereto (other than those, if any, incorporated by
reference).
(h) The Company shall, during the Exchange Offer Registration Period,
promptly deliver to each Exchanging Dealer, without charge, as many
copies of the Prospectus included in such Exchange Offer Registration
Statement and any amendment or supplement thereto as such Exchanging
Dealer may reasonably request for delivery by such Exchanging Dealer in
connection with a sale of New Securities received by it pursuant to the
Registered Exchange Offer; and the Company consents to the use of the
Prospectus or any amendment or supplement thereto by any such Exchanging
Dealer, as aforesaid.
(i) Prior to the Registered Exchange Offer or any other offering of
Securities pursuant to any Registration Statement, the Company shall
register or qualify or cooperate with the Holders of the Securities
included therein and their respective counsel in connection with the
registration or qualification of such Securities for offer and sale
under the securities or blue sky laws of such states of the United
States as any such Holders reasonably request in writing and do any and
all other acts or things necessary or advisable to enable the offer and
sale in such jurisdictions of the Securities covered by such
Registration Statement; PROVIDED, HOWEVER, that the Company will not be
required to qualify generally to do business in any jurisdiction where
it is not then so qualified or to take any action which would subject it
to general service of process or to taxation in any such jurisdiction
where it is not then so subject.
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(j) The Company shall cooperate with the Holders of Securities to
facilitate the timely preparation and delivery of certificates
representing Securities to be sold pursuant to any Registration
Statement free of any restrictive legends and in such denominations and
registered in such names as Holders may request prior to sales of
Securities pursuant to such Registration Statement.
(k) Upon the occurrence of any event contemplated by paragraph (c)
above during the period for which the Company is required to maintain an
effective Registration Statement, the Company shall promptly prepare a
post-effective amendment to any Registration Statement or an amendment
or supplement to the related Prospectus or file any other required
document so that, as thereafter delivered to purchasers of the
Securities included therein, the Prospectus will not include an untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If the
Company notifies the Initial Purchasers or the Holders in accordance
with paragraphs (i) through (iii) of Section 4(c)(2) above to suspend
the use of the Prospectus until the requisite changes to the Prospectus
have been made, then the Initial Purchasers and the Holders shall
suspend use of such prospectus.
(l) Not later than the effective date of any such Registration
Statement hereunder, the Company shall provide a CUSIP number for the
Securities or New Securities, as the case may be, registered under such
Registration Statement, and provide the applicable trustee with printed
certificates for such Securities or New Securities, in a form eligible
for deposit with The Depository Trust Company.
(m) The Company will comply with all rules and regulations of the
Commission to the extent and so long as they are applicable to the
Registration Statement and will make generally available to its security
holders (or otherwise provide in accordance with Section 11(a) of the
Securities Act) an earnings statement satisfying the provisions of
Section 11(a) of the Securities Act, no later than 45 days after the end
of a 12-month period (or 90 days, if such period is a fiscal year)
beginning with the first month of the Company's first fiscal quarter
commencing after the effective date of the Registration Statement, which
statement shall cover such 12-month period.
(n) The Company shall cause the Indenture or the New Securities
Indenture, as the case may be, to be qualified under the Trust Indenture
Act in a timely manner, containing such changes, if any, as shall be
necessary for such qualification. In the event that such qualification
would require the appointment of a new trustee under the Indenture, the
Company shall appoint a new trustee thereunder pursuant to the
applicable provisions of the Indenture.
(o) The Company may require each Holder of Securities to be sold
pursuant to any Shelf Registration Statement to furnish to the Company
such information regarding the
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Holder and the distribution of such Securities as the Company may from
time to time reasonably require for inclusion in such Registration
Statement, and the Company may exclude from such registration the
Securities of any Holder that fails to furnish such information within a
reasonable time after receiving such request.
(p) The Company shall, if requested, promptly incorporate in a
Prospectus supplement or post-effective amendment to a Shelf
Registration Statement, such information as the Majority Holders
reasonably agree should be included therein and shall make all required
filings of such Prospectus supplement or post-effective amendment as
soon as notified of the matters to be incorporated in such Prospectus
supplement or post-effective amendment.
(q) In the case of any Shelf Registration Statement, the Company
shall enter into such agreements and shall use reasonable commercial
efforts to take all other steps in order to expedite or facilitate the
registration or the disposition of the Securities.
(r) In the case of any Shelf Registration Statement, the Company
shall (i) make reasonably available for inspection by the Holders of the
Securities to be registered thereunder, and any attorney, accountant or
other agent retained by the Holders, all relevant financial and other
records, pertinent corporate documents and properties of the Company;
and (ii) cause the Company's officers, directors, employees, accountants
and auditors to supply all relevant information reasonably requested by
the Holders or any such attorney, accountant or agent in connection with
any such Registration Statement, in each case as shall be reasonably
necessary to enable such persons to conduct a reasonable investigation
within the meaning of Section 11 of the Securities Act; provided,
however, that any information that is designated in writing by the
Company, in good faith, as confidential at the time of delivery of such
information shall be kept confidential by the Holders or any such
attorney, accountant or agent, unless such disclosure is made in
connection with a court proceeding or required by law, or such
information becomes available to the public generally or through a third
party without an accompanying obligation of confidentiality and that the
foregoing inspection and information gathering (i) shall be coordinated
on behalf of the Initial Purchasers by you and on behalf of the other
parties, by one counsel (the "Designated Counsel") designated by the
Holders of a majority in principal amount of the Securities covered by
the Registration Statement and (ii) shall not be available for any such
Holder that is a competitor of the Company.
(s) In the case of any Exchange Offer Registration Statement, the
Company shall (i) make reasonably available for inspection by the
Initial Purchasers, and any attorney, accountant or other agent retained
by the Initial Purchasers, all relevant financial and other records,
pertinent corporate documents and properties of the Company; and (ii)
cause the Company's officers, directors, employees, accountants and
auditors to supply all relevant information reasonably requested by the
Initial Purchasers or any such attorney, accountant or agent in
connection with any such Registration Statement, in each case as shall
be
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reasonably necessary to enable such persons to conduct a reasonable
investigation within the meaning of Section 11 of the Securities Act;
PROVIDED, HOWEVER, that any information that is designated in writing by
the Company, in good faith, as confidential at the time of delivery of
such information shall be kept confidential by the Initial Purchasers or
any such attorney, accountant or agent, unless such disclosure is made
in connection with a court proceeding or required by law, or such
information becomes available to the public generally or through a third
party without an accompanying obligation of confidentiality and that the
foregoing inspection and information gathering (i) shall be coordinated
on behalf of the Initial Purchasers by you and on behalf of the other
parties by one counsel (the "Designated Counsel") designated by the
Holders of a majority in principal amount of the Securities covered by
the Registration Statement and (ii) shall not be available for any such
Holder that is a competitor of the Company.
(t) The Company, if requested by the Designated Counsel, shall cause
(i) its counsel to deliver an opinion and updates thereof relating to
the Securities in customary form addressed to such Holders, and dated,
in the case of the initial opinion, the effective date of such
Registration Statement (it being agreed that the matters to be covered
by such opinion shall include, without limitation, the due incorporation
and good standing in its jurisdiction of incorporation of the Company
and its Significant Subsidiaries (as defined in the Act); the due
authorization, execution, authentication and issuance, and the validity
and enforceability, of the applicable Securities; the absence of
material legal or governmental proceedings involving the Company and its
subsidiaries; the absence of governmental approvals required to be
obtained in connection with the Registration Statement, or the offering
and sale of the applicable Securities; the compliance as to form of such
Registration Statement and any documents incorporated by reference
therein and of the Indenture with the requirements of the Securities Act
and the Trust Indenture Act, respectively; and, as of the date of the
opinion and as of the effective date of the Registration Statement or
most recent post-effective amendment thereto, as the case may be, to
confirm, in customary form and substance of such counsel, the absence
from such Registration Statement and the prospectus included therein (in
each case other than the financial statements and other financial
information contained therein, as to which such counsel need express no
opinion), as then amended or supplemented, and from any documents
incorporated by reference therein, of an untrue statement of a material
fact or the omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading (in the case of any such documents, in the light of the
circumstances existing at the time that such documents were filed with
the Commission under the Exchange Act), (ii) its officers to execute and
deliver all customary documents and certificates and updates thereof
requested by the Designated Counsel and (iii) its independent public
accountants and the independent public accountants with respect to any
other entity for which financial information is provided in the
Registration Statement to provide to the selling Holders of the
applicable Securities a comfort letter in customary form and covering
matters of the type customarily covered in comfort letters in connection
with primary underwritten offerings, subject to receipt of
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appropriate documentation as contemplated, and only if permitted, by
Statement of Auditing Standards No. 72.
(v) The Company will use its best efforts to continue to have the
Securities rated by the rating agencies that rated the Securities in
connection with the sale to the Initial Purchasers and, at the request
of any Holder, confirm to such Holder the current rating of the
Securities at the time of such request.
(w) The Company shall use reasonable commercial efforts to take all
other steps necessary to effect the registration of the Securities
covered by the Registration Statement contemplated hereby.
5. REGISTRATION EXPENSES. The Company shall bear all expenses incurred in
connection with the performance of its obligations under Sections 2, 3 and 4
hereof, whether or not the Shelf Registration Statement is filed or becomes
effective, and shall bear or reimburse the Holders of the Securities covered
by the Shelf Registration Statement for the reasonable fees and disbursements
of the Designated Counsel, if any, and, in the case of any Exchange Offer
Registration Statement, will reimburse the Initial Purchasers for the
reasonable fees and disbursements of the Designated Counsel, if any, acting
in connection therewith.
6. INDEMNIFICATION AND CONTRIBUTION. (a) In connection with any
Registration Statement, the Company agrees to indemnify and hold harmless
each Holder of securities covered thereby (including each Initial Purchaser
and, with respect to any Prospectus delivery as contemplated in Section 4(h)
hereof, each Exchanging Dealer), and each person, if any, who controls any
such Holder within the meaning of either the Act or the Exchange Act (each
Holder and such controlling persons are referred to collectively as the
"Indemnified Parties") from and against any and all losses, claims, damages
or liabilities, joint or several, or any actions in respect thereof
(including but not limited to, any losses claims, damages, liabilities or
actions relating to purchases and sales of the Securities) to which each
Indemnified Party becomes subject under the Act, the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement as originally filed or in any amendment thereof, or in any
preliminary Prospectus or Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and subject to
subsection (c), reimburse, as incurred, the Indemnified Parties for any legal
or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action
in respect thereof; PROVIDED, HOWEVER, that (i) the Company will not be
liable in any such case to the extent that such loss, claim, damage or
liability arises out of or is based upon (x) the use of any prospectus in
violation of the last sentence of Section 4(k), or (y) any such untrue
statement or alleged untrue statement or omission or alleged omission made in
the Shelf Registration Statement or prospectus or in any amendment or
supplement thereto or in any preliminary prospectus relating to the Shelf
Registration in reliance upon and in conformity with
13
written information pertaining to such Holder and furnished to the Company by
or on behalf of such Holder specifically for inclusion therein and (ii) with
respect to any untrue statement or omission or alleged untrue statement or
omission made in any preliminary prospectus relating to the Registration
Statement, the indemnity agreement contained in this subsection (a) shall not
inure to the benefit of any Holder from whom the person asserting any such
losses, claims, damages or liabilities purchased the Securities concerned, to
the extent that a prospectus relating to such Securities was required to be
delivered by such Holder under the Securities Act in connection with such
purchase and any such loss, claim, damage or liability of such Holder results
from the fact that there was not sent or given to such person, at or prior to
the written confirmation of the sale of such Securities to such person, a
copy of the final prospectus if the Company had previously furnished copies
thereof in sufficient quantity to such Holder; PROVIDED FURTHER, HOWEVER,
that this indemnity agreement will be in addition to any liability which the
Company may otherwise have to such Indemnified Party.
(b) Each Holder of Securities covered by a Shelf Registration Statement
severally and not jointly, will indemnify and hold harmless the Company and
each person who controls the Company within the meaning of either the Act or
the Exchange Act to the same extent as the foregoing indemnity from the
Company to each such Holder, but only with reference to written information
relating to such Holder furnished to the Company by or on behalf of such
Holder specifically for inclusion in the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
6 of notice of the commencement of any action or proceeding (including a
governmental investigation), such indemnified party will, if a claim in
respect thereof is to be made against the indemnifying party under this
Section 6, notify the indemnifying party in writing of the commencement
thereof; but the failure so to notify the indemnifying party will not,
in any event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation provided in
subsections (a) or (b) above. In case any such action is brought
against any indemnified party, and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party
(who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party if the representation of both such
parties by the same counsel would constitute a conflict of interest),
and after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof the indemnifying party
will not be liable to such indemnified party under this Section 6 for
any legal or other expenses, other than reasonable costs of
investigation, subsequently incurred by such indemnified party in
connection with the defense thereof. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have
been sought hereunder by such indemnified party unless
14
such settlement includes an unconditional release of such indemnified party
from all liability on any claims that are the subject matter of such action.
(d) In the event that the indemnity provided in (a) or (b) of this
Section 6 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying
party, shall contribute to the amount paid or payable by such
indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to in subsections
(a) or (b) above (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company from the offering and sale of
the Securities, on the one hand, and a Holder with respect to the sale
by such Holder of Securities or New Securities, on the other hand;
PROVIDED, HOWEVER, that in no case shall any Initial Purchaser or any
subsequent Holder of any Security or New Security be responsible, in the
aggregate, for any amount in excess of the amount by which the net
proceeds received by such Holders from the sale of the Securities
pursuant to the Shelf Registration Statement exceeds the amount of
damages which such Holders have otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged
omission. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the indemnifying party and the
indemnified party shall contribute in such proportion as is appropriate
to reflect not only such relative benefits but also the relative fault
of such indemnifying party, on the one hand, and such indemnified party,
on the other hand, in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in
respect thereof) as well as any other relevant equitable considerations.
Relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information provided by the indemnifying party, on the one hand or by
the indemnified party, on the other hand and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The amount paid by an indemnified
party as a result of the losses, claims, damages or liabilities referred
to in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any
action or claim which is the subject of this subsection (d).
Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this
Section 6, each person, if any, who controls such Indemnified Party
within the meaning of either the Act or the Exchange Act shall have the
same rights to contribution as such indemnified party, and each person,
if any, who controls the Company within the meaning of either the Act or
the Exchange Act shall have the same rights to contribution as the
Company.
(e) The agreements contained in this Section 6 will survive the sale
by a Holder of Securities covered by a Registration Statement and shall
remain in full force and effect,
15
regardless of any termination or cancelation of this Agreement or any
investigation made by or on behalf of any indemnified party.
7. RULES 144 AND 144A. The Company shall use its best efforts to file
the reports required to be filed by it under the Securities Act and the
Exchange Act in a timely manner and, if at any time the Company is not
required to file such reports, it will, upon the request of any Holder of
Securities, make publicly available other information so long as necessary to
permit sales of their Securities pursuant to Rules 144 and 144A. The Company
covenants that, if in the event the Company is no longer subject to Sections
13 or 15(d) of the Exchange Act, it will take such further action as any
Holder of Securities may reasonably request, all to the extent required from
time to time to enable such Holder to sell Securities without registration
under the Securities Act within the limitation of the exemptions provided by
Rules 144 and 144A (including the requirements of Rule 144A(d)(4)). The
Company will provide a copy of this Agreement to prospective purchasers of
Securities identified to the Company by the Initial Purchasers upon request.
Notwithstanding the foregoing, nothing in this Section 7 shall be deemed to
require the Company to register any of its Securities pursuant to the
Exchange Act.
8. ADDITIONAL INTEREST UNDER CERTAIN CIRCUMSTANCES. (a) Interest in
addition to the stated interest (the "Additional Interest") with respect to the
Securities shall be assessed as follows if any of the following events occur
(each such event in clauses (i) through (iii) below being herein called a
"Registration Default"):
(i) by the 150th day following the date of original issuance
of the Securities, the Exchange Offer Registration Statement is not
filed with the Commission;
(ii) by the 180th day following the date of original issuance
of the Securities, neither the Exchange Offer Registration
Statement is declared effective nor (if the Exchange Offer is not
permitted as described above) the Shelf Registration Statement is
filed with the Commission; or
(iii) by the 210th day following the date of original issuance
of the Securities, the Exchange Offer is not consummated or the
Shelf Registration Statement is not declared effective with respect
thereto,
Additional Interest shall accrue on the Securities over and above the
interest set forth in the title of the Securities from and including the date
on which any such Registration Default shall occur, to but excluding the date
on which all such Registration Defaults have been cured, at a rate of 0.25%
per annum of the principal amount of such Securities for each Registration
Default.
(b) The aggregate amount of Additional Interest payable pursuant to the
above provisions will in no event exceed 0.25% per annum of the principal
amount of the Securities which, except as otherwise provided herein, shall be
the sole and exclusive remedy for such
16
Registration Default. Upon (x) the filing of the Exchange Offer Registration
Statement after the 150-day period described in clause (i) of subsection (a),
(y) the effectiveness of the Exchange Offer Registration Statement or the
filing of the Shelf Registration Statement after the 180-day period described
in clause (ii) of subsection (a) or (z) the consummation of the Exchange
Offer for such Securities or the effectiveness of a Shelf Registration
Statement, as the case may be, after the 210-day period described in clause
(iii) of subsection (a), the Additional Interest payable on such Securities
as a result of the applicable Registration Default will cease to accrue. For
purposes of the preceding sentence, the curing of a Registration Default by
the means described in clause (y) of this subsection shall constitute a cure
of the Registration Defaults described in clauses (i) and (ii) of subsection
(a), and the curing of a Registration Default by the means described in
clause (z) of this subsection shall constitute a cure of the Registration
Defaults described in clauses (i), (ii) and (iii) of subsection (a).
(c) In the event that a Shelf Registration Statement is declared
effective, if the Company fails to keep such Registration Statement
continuously effective (except as permitted under Section 3(b)) for the Shelf
Registration Period, then from such time as the Shelf Registration Statement
is no longer effective until the earlier of
(i) the date that the Shelf Registration Statement is again
deemed effective and
(ii) the date that is the earliest of (x) the second anniversary
of the date of original issuance of the Securities (or until the
first anniversary of the effective date if the Shelf Registration
Statement is filed at the request of the Initial Purchasers), (y)
the time when the Securities registered thereunder can be sold by
non-affiliates pursuant to Rule 144 under the Securities Act
without any limitation under clauses (c), (e), (f) and (h) of Rule
144, or (z) the date as of which all such Securities are sold
pursuant to the Shelf Registration Statement,
Additional Interest shall accrue at a rate per annum equal to 0.25% of the
principal amount of the Securities which, except as otherwise provided herein,
shall be the sole and exclusive remedy for such Registration Default.
(d) Any amounts of Additional Interest due pursuant to clause (a)(i),
(a)(ii), (a)(iii) or (c) of this Section 8 will be payable in cash
semiannually in arrears on the regular interest payment dates with respect to
the Securities. The amount of Additional Interest will be determined by
multiplying the applicable Additional Interest rate by the principal amount
of the Securities, multiplied by a fraction, the numerator of which is the
number of days such Additional Interest rate was applicable during such
period (determined on the basis of a 360-day year comprised of twelve 30-day
months), and the denominator of which is 360.
17
(e) Notwithstanding anything to the contrary contained in this
Agreement, it is hereby acknowledged and agreed that the Company will
have no other liabilities for monetary damages to the Initial Purchasers
or any Holder for any breaches, failures to comply or violations by it
of Sections 3 and 4 hereof; provided, however, that in the event the
Company breaches, fails to comply with or violates certain provisions of
this Agreement, the holders shall be entitled to, and the Company shall
not oppose the granting of, equitable relief, including injunction and
specific performance.
9. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. The Company has not, as of the
date hereof, entered into, nor shall it, on or after the date hereof,
enter into, any agreement with respect to its Securities that is
inconsistent with the rights granted to the Holders herein or otherwise
conflicts with the provisions hereof.
(b) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended,
qualified, 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 the Holders of at least a
majority of the then outstanding aggregate principal amount of
Securities (or, after the consummation of any Exchange Offer in
accordance with Section 2 hereof, of New Securities); PROVIDED that,
with respect to any matter that directly or indirectly affects the
rights of any Initial Purchaser hereunder, the Company shall obtain the
written consent of each such Initial Purchaser against which such
amendment, qualification, supplement, waiver or consent is to be
effective. Notwithstanding the foregoing (except the foregoing
proviso), a waiver or consent to departure from the provisions hereof
with respect to a matter that relates exclusively to the rights of
Holders whose Securities are being sold pursuant to a Registration
Statement and that does not directly or indirectly affect the rights of
other Holders may be given by the Majority Holders, determined on the
basis of Securities being sold rather than registered under such
Registration Statement.
(c) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery,
first-class mail, telex, telecopier, or air courier guaranteeing
overnight delivery:
(i) if to a Holder, at the most current address given by such
holder to the Company in accordance with the provisions of this Section
9(c), which address initially is, with respect to each Holder, the
address of such Holder maintained by the Registrar under the Indenture,
with a copy in like manner to Xxxxxxx Xxxxx Xxxxxx as follows;
Xxxxxxx Xxxxx Barney
000 Xxxxxxxxx Xxxxxx
00
Xxx Xxxx, Xxx Xxxx, 00000
with a copy to:
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax No.: (000) 000-0000
Attention: Xxxx X. Xxxxx, Esq.
(ii) if to the Initial Purchasers, initially at the addresses set forth
above; and
(iii) if to the Company, at its address as follows:
Xxxxx Xxxxxxx Natural Gas Corp.
00000 Xxxxx Xxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
Fax No: (000) 000-0000
Attention: Chief Financial Officer
with a copy to:
Xxxxx & Xxxxxxx
0000 Mid-America Tower
00 X. Xxxxxxxx
Xxxxxxxx Xxxx, XX 00000
Fax. No: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered;
three business days after being deposited in the mail, postage prepaid,
if mailed; when receipt is acknowledged by recipient's facsimile machine
operator, if sent by facsimile transmission; and on the day delivered,
if sent by overnight air courier guaranteeing next day delivery.
The Initial Purchasers or the Company by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
(d) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including, without the need for an express assignment or any
consent by the Company thereto, subsequent Holders of
19
Securities and/or New Securities. The Company hereby agrees to extend
the benefits of this Agreement to any Holder of Securities and/or New
Securities and any such Holder may specifically enforce the provisions
of this Agreement as if an original party hereto.
(e) 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.
(f) HEADINGS. The headings in this agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning
hereof.
(g) GOVERNING LAW. This agreement shall be governed by and construed
in accordance with the internal laws of the State of New York without
regard to principles of conflicts of laws.
(h) SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any respect
for any reason, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions hereof
shall not be in any way impaired or affected thereby, it being intended
that all of the rights and privileges of the parties shall be
enforceable to the fullest extent permitted by law.
(i) SECURITIES HELD BY THE COMPANY, ETC. Whenever the consent or
approval of Holders of a specified percentage of principal amount of
Securities or New Securities is required hereunder, Securities or New
Securities, as applicable, held by the Company or its Affiliates (other
than subsequent Holders of Securities or New Securities if such
subsequent Holders are deemed to be Affiliates solely by reason of their
holdings of such Securities or New Securities) shall not be counted in
determining whether such consent or approval was given by the Holders of
such required percentage.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement among the several Initial Purchasers and the Company in accordance
with its terms.
Very truly yours,
XXXXX XXXXXXX NATURAL GAS CORP.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President and
Chief Financial Officer
20
The foregoing Registration
Rights Agreement is hereby confirmed
and accepted as of the date first
above written.
SALOMON BROTHERS INC
CHASE SECURITIES INC.
XXXXXX XXXXXXX & CO. INCORPORATED
NATIONSBANC XXXXXXXXXX SECURITIES, INC.
XXXXXXX XXXXX SECURITIES INC.
By: SALOMON BROTHERS INC
By: /s/ Xxxxxx X. Xxxx
---------------------
Name: Xxxxxx X. Xxxx
Title: Associate
21
ANNEX A
Each broker-dealer that receives New Securities for its own account pursuant
to the Exchange Offer must acknowledge that it will deliver a prospectus in
connection with any resale of such New Securities. The Letter of Transmittal
states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within
the meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of New Securities received in exchange for Securities where such
New Securities were acquired by such broker-dealer as a result of
market-making activities or other trading activities. The Company has agreed
that, starting on the Expiration Date (as defined herein) and ending on the
close of business on the 180th day following the Expiration Date, it will
make this Prospectus available to any broker-dealer for use in connection
with any such resale. See "Plan of Distribution."
ANNEX B
Each broker-dealer that receives New Securities for its own account in
exchange for Securities, where such Securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such New Securities. See "Plan of Distribution."
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives New Securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Securities. The
Prospectus, as it may be amended or supplemented from time to time, may be
used by a broker-dealer in connection with resales of New Securities received
in exchange for Securities where such Securities were acquired as a result of
market-making activities or other trading activities. The Company has agreed
that, starting on the Expiration Date and ending on the close of business on
the 180th day following the Expiration Date, it will make this Prospectus, as
amended or supplemented, available to any broker-dealer for use in connection
with any such resale. In addition, until __________, 199__, all dealers
effecting transactions in the Exchange Securities may be required to deliver
a prospectus. */
The Company will not receive any proceeds from any sale of New
Securities by broker-dealers. New Securities received by broker-dealers for
their own account pursuant to the Exchange Offer may be sold from time to
time in one or more transactions in the over-the-counter market, in
negotiated transactions, through the writing of options on the New Securities
or a combination of such methods of resale, at market prices prevailing at
the time of resale, at prices related to such prevailing market prices or
negotiated prices. Any such resale may be made directly to purchasers or to
or through brokers or dealers who may receive compensation in the form of
commissions or concessions from any such broker-dealer and/or the purchasers
of any such New Securities. Any broker-dealer that resells New Securities
that were received by it for its own account pursuant to the Exchange Offer
and any broker or dealer that participates in a distribution of such New
Securities may be deemed to be an "underwriter" within the meaning of the
Securities Act and any profit of any such resale of New Securities and any
commissions or concessions received by any such persons may be deemed to be
underwriting compensation under the Securities Act. The Letter of
Transmittal states that by acknowledging that it will deliver and by
delivering a prospectus, a broker-dealer will not be deemed to admit that it
is an "underwriter" within the meaning of the Securities Act.
For a period of 180 days after the Expiration Date, the Company will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such
documents in the Letter of Transmittal. The Company has agreed to pay all
expenses incident to the Exchange Offer (including the expenses of one
counsel for the holders of the Securities) other than commissions or
concessions of any brokers or dealers and will indemnify the holders of the
Securities (including any broker-dealers) against certain liabilities,
including liabilities under the Securities Act.
---------------
* In addition, the legend required by Item 502(e) of Regulation S-K will
appear on the back cover page of the Exchange Offer prospectus.
[If applicable, add information required by Regulation S-K Items 507
and/or 508.]
2
ANNEX D
RIDER A
- CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS
THERETO.
Name:
------------------------------------------------
Address:
------------------------------------------------
------------------------------------------------
RIDER B
If the undersigned is not a broker-dealer, the undersigned represents that it
is not engaged in, and does not intend to engage in, a distribution of New
Securities. If the undersigned is a broker-dealer that will receive New
Securities for its own account in exchange for Securities that were acquired
as a result of market-making activities or other trading activities, it
acknowledges that it will deliver a prospectus in connection with any resale
of such New Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
3
