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EXHIBIT 4.3
Execution Copy
XXXX.XXX
13 7/8% SENIOR NOTES DUE 2010
REGISTRATION RIGHTS AGREEMENT
March 10, 2000
Xxxxxxx, Xxxxx & Co.,
Bear, Xxxxxxx & Co. Inc.
Chase Securities Inc.
Deutsche Bank Securities Inc.
Warburg Dillon Read LLC
Xxxxxxxxx & Company, Inc.
As representatives of the several Purchasers
named in Schedule I to the Purchase Agreement
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
XXXX.XXX, a California corporation (the "Company"), proposes to issue
and sell to the Purchasers (as defined herein) upon the terms set forth in the
Purchase Agreement (as defined herein) its 13 7/8% Senior Notes due 2010. As an
inducement to the Purchasers to enter into the Purchase Agreement and in
satisfaction of a condition to the obligations of the Purchasers thereunder, the
Company agrees with the Purchasers for the benefit of holders (as defined
herein) from time to time of the Transfer Restricted Securities (as defined
herein) as follows:
1. Certain Definitions. For purposes of this Registration Rights
Agreement, the following terms shall have the following respective meanings:
"Base Interest" means the interest that would otherwise accrue on
the Securities under the terms thereof and the Indenture, without giving effect
to the provisions of this Agreement.
The term "broker-dealer" means any broker or dealer registered
with the Commission under the Exchange Act.
"Closing Date" means the date on which the Securities are
initially issued.
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"Commission" means the United States Securities and Exchange
Commission, or any other federal agency at the time administering the Exchange
Act or the Securities Act, whichever is the relevant statute for the particular
purpose.
"Effective Time," in the case of (i) an Exchange Registration,
means the time and date as of which the Commission declares the Exchange
Registration Statement effective or as of which the Exchange Registration
Statement otherwise becomes effective and (ii) a Shelf Registration, means the
time and date as of which the Commission declares the Shelf Registration
Statement effective or as of which the Shelf Registration Statement otherwise
becomes effective.
"Electing Holder" means any holder of Transfer Restricted
Securities that has returned a completed and signed Notice and Questionnaire to
the Company in accordance with Section 3(d)(ii) or 3(d)(iii) hereof.
"Exchange Act" means the Securities Exchange Act of 1934, or any
successor thereto, as the same shall be amended from time to time.
"Exchange Offer" has the meaning assigned thereto in Section 2(a)
hereof.
"Exchange Registration" has the meaning assigned thereto in
Section 3(c) hereof.
"Exchange Registration Statement" has the meaning assigned
thereto in Section 2(a) hereof.
"Exchange Securities" has the meaning assigned thereto in Section
2(a) hereof.
The term "holder" means each of the Purchasers and other Persons
who acquire Transfer Restricted Securities from time to time (including any
successors or assigns), in each case for so long as such Person owns any
Transfer Restricted Securities.
"Indenture" means the Indenture, dated as of March 10, 2000,
between the Company and State Street Bank and Trust Company of California, N.A.,
as Trustee, as the same shall be amended from time to time.
"Notice and Questionnaire" means a Notice of Registration
Statement and Selling Securityholder Questionnaire substantially in the form of
Exhibit A hereto.
"Person" means a corporation, association, partnership,
organization, business, individual, government or political subdivision thereof
or governmental agency.
"Purchase Agreement" means the Purchase Agreement, dated as of
March 3, 2000, between the Purchasers and the Company relating to the
Securities.
"Purchasers" means the Purchasers named in Schedule I to the
Purchase Agreement.
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"Registration Default" has the meaning assigned thereto in
Section 2(c) hereof.
"Registration Expenses" has the meaning assigned thereto in
Section 4 hereof.
"Resale Period" has the meaning assigned thereto in Section 2(a)
hereof.
"Restricted Holder" means a holder that (i) is prohibited by law
or by Commission policy from participating in the Exchange Offer; (ii) may not
resell the Exchange Securities acquired by it in the Exchange Offer to the
public without delivering a prospectus and the prospectus contained in the
Exchange Registration Statement is not appropriate or available for such
resales; or (iii) is a broker-dealer and owns Securities acquired directly from
the Company or an affiliate of the Company.
"Rule 144," "Rule 405" and "Rule 415" means, in each case, such
rule promulgated under the Securities Act (or any successor provision), as the
same shall be amended from time to time.
"Securities" means, collectively, the 13 7/8% Senior Notes due
2010 of the Company to be issued and sold to the Purchasers, and securities
issued in exchange therefor or in lieu thereof pursuant to the Indenture.
"Securities Act" means the Securities Act of 1933, or any
successor thereto, as the same shall be amended from time to time.
"Shelf Registration" has the meaning assigned thereto in Section
2(b) hereof.
"Shelf Registration Statement" has the meaning assigned thereto
in Section 2(b) hereof.
"Special Interest" has the meaning assigned thereto in Section
2(c) hereof.
"Transfer Restricted Securities" means each Security until (i)
the date on which such Security has been exchanged by a Person other than a
broker-dealer for an Exchange Security in the Exchange Offer; (ii) following the
exchange by a broker-dealer in the Exchange Offer of a Security for an Exchange
Security, until the date on which such Exchange Security is sold to a purchaser
who receives from such broker-dealer on or prior to the date of such sale a copy
of the prospectus contained in the Exchange Registration Statement; (iii) the
date on which such Security has been effectively registered under the Securities
Act and disposed of in accordance with the Self Registration Statement; or (iv)
the date on which such Security is, or may be, distributed to the public
pursuant to Rule 144 under the Securities Act.
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"Trust Indenture Act" means the Trust Indenture Act of 1939, or
any successor thereto, and the rules, regulations and forms promulgated
thereunder, all as the same shall be amended from time to time.
Unless the context otherwise requires, any reference herein to a
"Section" or "clause" refers to a Section or clause, as the case may be, of this
Registration Rights Agreement, and the words "herein," "hereof" and "hereunder"
and other words of similar import refer to this Registration Rights Agreement as
a whole and not to any particular Section or other subdivision.
2. Registration Under the Securities Act. (a) Except as set forth
in Section 2(b) below, the Company agrees to use its commercially reasonable
efforts to file under the Securities Act, as soon as practicable, but no later
than 90 days after the Closing Date, a registration statement relating to an
offer to exchange (such registration statement, the "Exchange Registration
Statement", and such offer, the "Exchange Offer") any and all of the Securities
for a like aggregate principal amount of debt securities issued by the Company,
which debt securities are substantially identical to the Securities (and are
entitled to the benefits of a trust indenture which is substantially identical
to the Indenture or is the Indenture and which has been qualified under the
Trust Indenture Act), except that they have been registered pursuant to an
effective registration statement under the Securities Act and do not contain
provisions for the additional interest contemplated in Section 2(c) below (such
new debt securities hereinafter called "Exchange Securities"); provided that if
at the end of such 90-day period the Company has filed with the Commission a
registration statement with respect to an initial public offering of its common
stock which has not been declared effective by the Commission at such time, the
Company will have an additional 30 days to file an Exchange Registration
Statement. The Company agrees to use its commercially reasonable efforts to
cause the Exchange Registration Statement to become effective under the
Securities Act as soon as practicable, but not later than 180 days after the
Closing Date; provided that if the proviso of the preceding sentence is
applicable, then the Company shall have an additional 30 days to have the
Exchange Registration Statement declared effective. The Exchange Offer will be
registered under the Securities Act on the appropriate form and will comply with
all applicable tender offer rules and regulations under the Exchange Act.
The Company further agrees to use its commercially reasonable
efforts to complete the Exchange Offer on or prior to 30 business days, or
longer, if required by the federal securities laws, after the date on which the
Exchange Registration Statement is declared effective by the Commission. The
Exchange Offer will be deemed to have been "completed" only if the debt
securities received by holders other than Restricted Holders in the Exchange
Offer for Transfer Restricted Securities are, upon receipt, transferable by each
such holder without restriction under the Securities Act and the Exchange Act
and without material restrictions under the blue sky or securities laws of a
substantial majority of the States of the United States of America. The Exchange
Offer shall be deemed to have been completed upon the earlier to occur of (i)
the Company having exchanged the Exchange Securities for all outstanding
Transfer Restricted Securities pursuant to the Exchange Offer and (ii) the
Company having exchanged, pursuant to the Exchange Offer, Exchange Securities
for all Transfer Restricted Securities that
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have been properly tendered and not withdrawn before the expiration of the
Exchange Offer, which shall be on a date that is at least 30 days following the
commencement of the Exchange Offer. Upon the request of any of the Purchasers,
the Company agrees (x) to include in the Exchange Registration Statement a
prospectus for use in any resales by any holder of Exchange Securities that is a
broker-dealer and (y) to keep such Exchange Registration Statement effective for
a period (the "Resale Period") beginning when Exchange Securities are first
issued in the Exchange Offer and ending upon the earlier of the expiration of
the 180th day after the Exchange Offer has been completed or such time as such
broker-dealers no longer own any Transfer Restricted Securities. With respect to
such Exchange Registration Statement, such holders shall have the benefit of the
rights of indemnification and contribution set forth in Sections 6(a), (c), (d)
and (e) hereof.
(b) If (i) the Company is not permitted to consummate the
Exchange Offer because the Exchange Offer is not permitted by applicable law or
Commission policy or (ii) any holder of Securities notifies the Company prior to
the 20th day following consummation of the Exchange Offer that such holder is a
Restricted Holder, the Company shall, in lieu of (or, in the case of clause
(ii), in addition to) conducting the Exchange Offer contemplated by Section
2(a), use its commercially reasonable efforts to file under the Securities Act
as soon as practicable, but not later than 60 days after the time such
obligation to file arises (but in no event earlier than 90 days (or, in the
event the proviso of the first sentence of Section 2(a) is applicable, 120 days)
after the Closing Date), a "shelf" registration statement providing for the
registration of, and the sale on a continuous or delayed basis by the holders
of, all Transfer Restricted Securities, pursuant to Rule 415 or any similar rule
that may be adopted by the Commission (such filing, the "Shelf Registration" and
such registration statement, the "Shelf Registration Statement").
The Company agrees to use its commercially reasonable efforts (x)
to cause the Shelf Registration Statement to become or be declared effective as
soon as practicable, but not later than 150 days after such obligation arises
(but in no event earlier than 180 days (or, in the event that the proviso in the
first sentence of Section 2(a) is applicable, 210 days) after the Closing Date)
and to keep such Shelf Registration Statement continuously effective for a
period ending on the earlier of the second anniversary of the Effective Time or
such time as there are no longer any Transfer Restricted Securities outstanding,
except during a period that a material nonpublic transaction would be required
to disclosed in the Shelf Registration Statement under the Securities Act and
the rules and regulations promulgated thereunder and such disclosure would have
adverse effects on business of the Company (provided that such period shall not
exceed 30 consecutive business days), provided, however, that no holder shall be
entitled to be named as a selling securityholder in the Shelf Registration
Statement or to use the prospectus forming a part thereof for resales of
Transfer Restricted Securities unless such holder is an Electing Holder, and (y)
after the Effective Time of the Shelf Registration Statement, promptly upon the
request of any holder of Transfer Restricted Securities that is not then an
Electing Holder, to take any action reasonably necessary to enable such holder
to use the prospectus forming a part thereof for resales of Transfer Restricted
Securities, including, without limitation, any action necessary to identify such
holder as a selling securityholder in the Shelf Registration Statement,
provided, however, that nothing in this Clause (y) shall relieve any such holder
of the
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obligation to return a completed and signed Notice and Questionnaire to the
Company in accordance with Section 3(d)(iii) hereof. The Company further agrees
to supplement or make amendments to the Shelf Registration Statement, as and
when required by the rules, regulations or instructions applicable to the
registration form used by the Company for such Shelf Registration Statement or
by the Securities Act or rules and regulations thereunder for shelf
registration, and the Company agrees to furnish to each Electing Holder copies
of any such supplement or amendment prior to its being used or promptly
following its filing with the Commission.
(c) In the event that (i) the Company has not filed the Exchange
Registration Statement or Shelf Registration Statement on or before the date on
which such registration statement is required to be filed pursuant to Section
2(a) or 2(b), respectively, or (ii) such Exchange Registration Statement or
Shelf Registration Statement has not become effective or been declared effective
by the Commission on or before the date on which such registration statement is
required to become or be declared effective pursuant to Section 2(a) or 2(b),
respectively, or (iii) the Company fails to consummate the Exchange Offer within
30 business days of the date of effectiveness of the Exchange Registration
Statement (other than with respect to any Securities for which the holder has
failed to tender) or (iv) any Shelf Registration Statement or the Exchange
Registration Statement required by Section 2(a) or 2(b) hereof is filed and
declared effective but thereafter ceases to be effective or usable in connection
with resales of Transfer Restricted Securities during the periods specified in
Section 2(a) or 2(b) hereof (each such event referred to in clauses (i) through
(iv), a "Registration Default" and each period during which a Registration
Default has occurred and is continuing, a "Registration Default Period"), then,
as liquidated damages for such Registration Default, subject to the provisions
of Section 9(b), special interest ("Special Interest"), in addition to the Base
Interest, shall accrue at a per annum rate of 0.25% for the first 90 days of the
Registration Default Period, at a per annum rate of 0.50% for the second 90 days
of the Registration Default Period, at a per annum rate of 0.75% for the third
90 days of the Registration Default Period and at a per annum rate of 1.00%
thereafter for the remaining portion of the Registration Default Period. The
Special Interest shall be payable in cash semiannually in arrears on each
Interest Payment Date (as defined in the Indenture).
(d) The Company shall take all actions necessary or advisable to
be taken by it to ensure that the transactions contemplated herein are effected
as so contemplated.
(e) Any reference herein to a registration statement as of any
time shall be deemed to include any document incorporated, or deemed to be
incorporated, therein by reference as of such time and any reference herein to
any post-effective amendment to a registration statement as of any time shall be
deemed to include any document incorporated, or deemed to be incorporated,
therein by reference as of such time.
3. Registration Procedures. If the Company files a registration
statement pursuant to Section 2(a) or Section 2(b), the following provisions
shall apply:
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(a) At or before the Effective Time of the Exchange Offer or the
Shelf Registration, as the case may be, the Company shall qualify the
Indenture under the Trust Indenture Act of 1939.
(b) 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.
(c) In connection with the Company's obligations with respect to
the registration of Exchange Securities as contemplated by Section 2(a)
(the "Exchange Registration"), if applicable, the Company shall, as soon
as practicable (or as otherwise specified):
(i) prepare and file with the Commission, as soon as
reasonably practicable but in any case within the time periods
specified in Section 2(a), an Exchange Registration Statement on
any form which may be utilized by the Company and which shall
permit the Exchange Offer and resales of Exchange Securities by
broker-dealers during the Resale Period to be effected as
contemplated by Section 2(a), and use its commercially
reasonable efforts to cause such Exchange Registration Statement
to become effective as soon as practicable but in any case
within the time periods specified in Section 2(a);
(ii) as soon as reasonably practicable prepare and file with
the Commission such amendments and supplements to such Exchange
Registration Statement and the prospectus included therein as
may be necessary to effect and maintain the effectiveness of
such Exchange Registration Statement for the periods and
purposes contemplated in Section 2(a) hereof and as may be
required by the applicable rules and regulations of the
Commission and the instructions applicable to the form of such
Exchange Registration Statement, and promptly provide each
broker-dealer holding Exchange Securities with such number of
copies of the prospectus included therein (as then amended or
supplemented), in conformity in all material respects with the
requirements of the Securities Act and the Trust Indenture Act
and the rules and regulations of the Commission thereunder, as
such broker-dealer reasonably may request prior to the
expiration of the Resale Period, for use in connection with
resales of Exchange Securities;
(iii) promptly notify each broker-dealer that has requested
or received copies of the prospectus included in such
registration statement, and confirm such advice in writing, (A)
when such Exchange Registration Statement or the prospectus
included therein or any prospectus amendment or supplement or
post-effective amendment has been filed, and, with respect to
such Exchange Registration Statement or any post-effective
amendment, when the same has become effective, (B) of any
comments by the Commission and by the blue sky or securities
commissioner or regulator of any state with respect thereto or
any
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request by the Commission for amendments or supplements to such
Exchange Registration Statement or prospectus or for additional
information, (C) of the issuance by the Commission of any stop
order suspending the effectiveness of such Exchange Registration
Statement or the initiation or threatening of any proceedings
for that purpose, (D) if at any time the representations and
warranties of the Company contemplated by Section 5 cease to be
true and correct in all material respects, (E) of the receipt by
the Company of any notification with respect to the suspension
of the qualification of the Exchange Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding
for such purpose, or (F) at any time during the Resale Period
when a prospectus is required to be delivered under the
Securities Act, that such Exchange Registration Statement,
prospectus, prospectus amendment or supplement or post-effective
amendment does not conform in all material respects to the
applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder or contains an untrue statement of a material fact or
omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading in
light of the circumstances then existing;
(iv) in the event that the Company would be required,
pursuant to Section 3(e)(iii)(F) above, to notify any
broker-dealers holding Exchange Securities, without delay
prepare and furnish to each such holder a reasonable number of
copies of a prospectus supplemented or amended so that, as
thereafter delivered to purchasers of such Exchange Securities
during the Resale Period, such prospectus shall conform in all
material respects to the applicable requirements of the
Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder and shall not contain
an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading in light of the
circumstances then existing;
(v) use its commercially reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of such
Exchange Registration Statement or any post-effective amendment
thereto at the earliest practicable date;
(vi) use its commercially reasonable efforts to (A) register
or qualify the Exchange Securities under the securities laws or
blue sky laws of such jurisdictions as are contemplated by
Section 2(a) no later than the commencement of the Exchange
Offer, (B) keep such registrations or qualifications in effect
and comply with such laws so as to permit the continuance of
offers, sales and dealings therein in such jurisdictions until
the expiration of the Resale Period and (C) take any and all
other actions as may be reasonably necessary or advisable to
enable each broker-dealer holding Exchange Securities to
consummate the disposition thereof in such jurisdictions;
provided, however, that the Company
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shall not be required for any such purpose to (1) qualify as a
foreign corporation in any jurisdiction wherein it would not
otherwise be required to qualify but for the requirements of
this Section 3(c)(vi), (2) consent to general service of process
in any such jurisdiction or (3) make any changes to its
certificate of incorporation or by-laws or any agreement between
it and its stockholders;
(vii) use its commercially reasonable efforts to obtain the
consent or approval of each governmental agency or authority,
whether federal, state or local, which may be required to effect
the Exchange Registration, the Exchange Offer and the offering
and sale of Exchange Securities by broker-dealers during the
Resale Period;
(viii) provide a CUSIP number for all Exchange Securities,
not later than the applicable Effective Time;
(ix) comply with all applicable rules and regulations of the
Commission, and make generally available to its securityholders
as soon as practicable but no later than eighteen months after
the effective date of such Exchange Registration Statement, an
earning statement of the Company and its subsidiaries complying
with Section 11(a) of the Securities Act (including, at the
option of the Company, Rule 158 thereunder).
(d) In connection with the Company's obligations with respect to
the Shelf Registration, if applicable, the Company shall, as soon as
reasonably practicable (or as otherwise specified):
(i) prepare and file with the Commission, as soon as
reasonably practicable but in any case within the time periods
specified in Section 2(b), a Shelf Registration Statement on any
form which may be utilized by the Company and which shall
register all of the Transfer Restricted Securities for resale by
the holders thereof in accordance with such method or methods of
disposition as may be specified by such of the holders as, from
time to time, may be Electing Holders and use its best efforts
to cause such Shelf Registration Statement to become effective
as soon as practicable but in any case within the time periods
specified in Section 2(b);
(ii) not less than 30 calendar days prior to the Effective
Time of the Shelf Registration Statement, mail the Notice and
Questionnaire to the holders of Transfer Restricted Securities;
no holder shall be entitled to be named as a selling
securityholder in the Shelf Registration Statement as of the
Effective Time, and no holder shall be entitled to use the
prospectus forming a part thereof for resales of Transfer
Restricted Securities at any time, unless such holder has
returned a completed and signed Notice and Questionnaire to the
Company by the deadline for response set forth therein;
provided, however, holders of Transfer Restricted
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Securities shall have at least 28 calendar days from the date on
which the Notice and Questionnaire is first mailed to such
holders to return a completed and signed Notice and
Questionnaire to the Company;
(iii) after the Effective Time of the Shelf Registration
Statement, upon the request of any holder of Transfer Restricted
Securities that is not then an Electing Holder, promptly send a
Notice and Questionnaire to such holder; provided that the
Company shall not be required to take any action to name such
holder as a selling securityholder in the Shelf Registration
Statement or to enable such holder to use the prospectus forming
a part thereof for resales of Transfer Restricted Securities
until such holder has returned a completed and signed Notice and
Questionnaire to the Company;
(iv) as soon as practicable prepare and file with the
Commission such amendments and supplements to such Shelf
Registration Statement and the prospectus included therein as
may be necessary to effect and maintain the effectiveness of
such Shelf Registration Statement for the period specified in
Section 2(b) hereof and as may be required by the applicable
rules and regulations of the Commission and the instructions
applicable to the form of such Shelf Registration Statement, and
furnish to the Electing Holders copies of any such supplement or
amendment simultaneously with or prior to its being used or
filed with the Commission;
(v) comply with the provisions of the Securities Act with
respect to the disposition of all of the Transfer Restricted
Securities covered by such Shelf Registration Statement in
accordance with the intended methods of disposition by the
Electing Holders provided for in such Shelf Registration
Statement;
(vi) provide (A) the Electing Holders, (B) the underwriters
(which term, for purposes of this Registration Rights Agreement,
shall include a Person deemed to be an underwriter within the
meaning of Section 2(a)(11) of the Securities Act), if any,
thereof, (C) any sales or placement agent therefor, (D) counsel
for any such underwriter or agent and (E) not more than one
counsel for all the Electing Holders the opportunity to
participate in the preparation of such Shelf Registration
Statement, each prospectus included therein or filed with the
Commission and each amendment or supplement thereto;
(vii) for a reasonable period prior to the filing of such
Shelf Registration Statement, and throughout the period
specified in Section 2(b), make available at reasonable times at
the Company's principal place of business or such other
reasonable place for inspection by the Persons referred to in
Section 3(d)(vi) who shall certify to the Company that they have
a current intention to sell the Transfer Restricted Securities
pursuant to the Shelf Registration such financial and other
information and books and records of the Company, and cause the
officers,
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employees, counsel and independent certified public accountants
of the Company to respond to such inquiries, as shall be
reasonably necessary, in the judgment of the respective counsel
referred to in such Section, to conduct a reasonable
investigation within the meaning of Section 11 of the Securities
Act; provided, however, that each such party shall be required
to maintain in confidence and not to disclose to any other
Person any information or records reasonably designated by the
Company as being confidential, until such time as (A) such
information becomes a matter of public record (whether by virtue
of its inclusion in such registration statement or otherwise),
or (B) such Person shall be required so to disclose such
information pursuant to a subpoena or order of any court or
other governmental agency or body having jurisdiction over the
matter (subject to the requirements of such order, and only
after such Person shall have given the Company prompt prior
written notice of such requirement), or (C) such information is
required to be set forth in such Shelf Registration Statement or
the prospectus included therein or in an amendment to such Shelf
Registration Statement or an amendment or supplement to such
prospectus in order that such Shelf Registration Statement,
prospectus, amendment or supplement, as the case may be,
complies with applicable requirements of the federal securities
laws and the rules and regulations of the Commission and does
not contain an untrue statement of a material fact or omit to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading in light
of the circumstances then existing;
(viii) promptly notify each of the Electing Holders, any
sales or placement agent therefor and any underwriter thereof
(which notification may be made through any managing underwriter
that is a representative of such underwriter for such purpose)
and confirm such advice in writing, (A) when such Shelf
Registration Statement or the prospectus included therein or any
prospectus amendment or supplement or post-effective amendment
has been filed, and, with respect to such Shelf Registration
Statement or any post-effective amendment, when the same has
become effective, (B) of any comments by the Commission and by
the blue sky or securities commissioner or regulator of any
state with respect thereto or any request by the Commission for
amendments or supplements to such Shelf Registration Statement
or prospectus or for additional information, (C) of the issuance
by the Commission of any stop order suspending the effectiveness
of such Shelf Registration Statement or the initiation or
threatening of any proceedings for that purpose, (D) if at any
time the representations and warranties of the Company
contemplated by Section 3(d)(xvii) or Section 5 cease to be true
and correct in all material respects, (E) of the receipt by the
Company of any notification with respect to the suspension of
the qualification of the Transfer Restricted Securities for sale
in any jurisdiction or the initiation or threatening of any
proceeding for such purpose, or (F) if at any time when a
prospectus is required to be delivered under the Securities Act,
that such Shelf Registration Statement, prospectus, prospectus
amendment or supplement or post-effective
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amendment does not conform in all material respects to the
applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder or contains an untrue statement of a material fact or
omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading in
light of the circumstances then existing;
(ix) use its commercially reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of such
registration statement or any post-effective amendment thereto
at the earliest practicable date;
(x) if requested by any managing underwriter or
underwriters, any placement or sales agent or any Electing
Holder, promptly incorporate in a prospectus supplement or
post-effective amendment such information as is required by the
applicable rules and regulations of the Commission and as such
managing underwriter or underwriters, such agent or such
Electing Holder specifies should be included therein relating to
the terms of the sale of such Transfer Restricted Securities,
including information with respect to the principal amount of
Transfer Restricted Securities being sold by such Electing
Holder or agent or to any underwriters, the name and description
of such Electing Holder, agent or underwriter, the offering
price of such Transfer Restricted Securities and any discount,
commission or other compensation payable in respect thereof, the
purchase price being paid therefor by such underwriters and with
respect to any other terms of the offering of the Transfer
Restricted Securities to be sold by such Electing Holder or
agent or to such underwriters; and make all required filings of
such prospectus supplement or post-effective amendment promptly
after notification of the matters to be incorporated in such
prospectus supplement or post-effective amendment;
(xi) furnish to each Electing Holder, each placement or
sales agent, if any, therefor, each underwriter, if any, thereof
and the respective counsel referred to in Section 3(d)(vi) an
executed copy (or, in the case of an Electing Holder, a
conformed copy) of such Shelf Registration Statement, each such
amendment and supplement thereto (in each case including all
exhibits thereto (in the case of an Electing Holder of Transfer
Restricted Securities, upon request) and documents incorporated
by reference therein) and such number of copies of such Shelf
Registration Statement (excluding exhibits thereto and documents
incorporated by reference therein unless specifically so
requested by such Electing Holder, agent or underwriter, as the
case may be) and of the prospectus included in such Shelf
Registration Statement (including each preliminary prospectus
and any summary prospectus), in conformity in all material
respects with the applicable requirements of the Securities Act
and the Trust Indenture Act and the rules and regulations of the
Commission thereunder, and such other documents, as such
Electing Holder, agent, if any, and underwriter, if any, may
reasonably request in
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order to facilitate the offering and disposition of the Transfer
Restricted Securities owned by such Electing Holder, offered or
sold by such agent or underwritten by such underwriter and to
permit such Electing Holder, agent and underwriter to satisfy
the prospectus delivery requirements of the Securities Act; and
the Company hereby consents to the use of such prospectus
(including such preliminary and summary prospectus) and any
amendment or supplement thereto by each such Electing Holder and
by any such agent and underwriter, in each case in the form most
recently provided to such Person by the Company, in connection
with the offering and sale of the Transfer Restricted Securities
covered by the prospectus (including such preliminary and
summary prospectus) or any supplement or amendment thereto;
(xii) use its commercially reasonable efforts to (A)
register or qualify the Transfer Restricted Securities to be
included in such Shelf Registration Statement under such
securities laws or blue sky laws of such jurisdictions as any
Electing Holder and each placement or sales agent, if any,
therefor and underwriter, if any, thereof shall reasonably
request, (B) keep such registrations or qualifications in effect
and comply with such laws so as to permit the continuance of
offers, sales and dealings therein in such jurisdictions during
the period the Shelf Registration is required to remain
effective under Section 2(b) above and for so long as may be
necessary to enable any such Electing Holder, agent or
underwriter to complete its distribution of Securities pursuant
to such Shelf Registration Statement and (C) take any and all
other actions as may be reasonably necessary or advisable to
enable each such Electing Holder, agent, if any, and
underwriter, if any, to consummate the disposition in such
jurisdictions of such Transfer Restricted Securities; provided,
however, that the Company shall not be required for any such
purpose to (1) qualify as a foreign corporation in any
jurisdiction wherein it would not otherwise be required to
qualify but for the requirements of this Section 3(d)(xii), (2)
consent to general service of process in any such jurisdiction
or (3) make any changes to its certificate of incorporation or
by-laws or any agreement between it and its stockholders;
(xiii) use its commercially reasonable efforts to obtain the
consent or approval of each governmental agency or authority,
whether federal, state or local, which may be required to effect
the Shelf Registration or the offering or sale in connection
therewith or to enable the selling holder or holders to offer,
or to consummate the disposition of, their Transfer Restricted
Securities;
(xiv) Unless any Transfer Restricted Securities shall be in
book-entry only form, cooperate with the Electing Holders and
the managing underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Transfer
Restricted Securities to be sold, which certificates, if so
required by any securities exchange upon which any Transfer
Restricted Securities are listed, shall be penned, lithographed
or engraved, or produced by any combination of such
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methods, on steel engraved borders, and which certificates shall
not bear any restrictive legends; and, in the case of an
underwritten offering, enable such Transfer Restricted
Securities to be in such denominations and registered in such
names as the managing underwriters may request at least two
business days prior to any sale of the Transfer Restricted
Securities;
(xv) provide a CUSIP number for all Transfer Restricted
Securities, not later than the applicable Effective Time;
(xvi) enter into one or more underwriting agreements,
engagement letters, agency agreements, "best efforts"
underwriting agreements or similar agreements, as appropriate,
including customary provisions relating to indemnification and
contribution, and take such other actions in connection
therewith as any Electing Holders aggregating at least 20% in
aggregate principal amount of the Transfer Restricted Securities
at the time outstanding shall request in order to expedite or
facilitate the disposition of such Transfer Restricted
Securities;
(xvii) whether or not an agreement of the type referred to
in Section 3(d)(xvi) hereof is entered into and whether or not
any portion of the offering contemplated by the Shelf
Registration is an underwritten offering or is made through a
placement or sales agent or any other entity, (A) make such
representations and warranties to the Electing Holders and the
placement or sales agent, if any, therefor and the underwriters,
if any, thereof in form, substance and scope as are customarily
made in connection with an offering of debt securities pursuant
to any appropriate agreement or to a registration statement
filed on the form applicable to the Shelf Registration; (B)
obtain an opinion of counsel to the Company in customary form
and covering such matters, of the type customarily covered by
such an opinion, as the managing underwriters, if any, or as any
Electing Holders of at least 20% in aggregate principal amount
of the Transfer Restricted Securities at the time outstanding
may reasonably request, addressed to such Electing Holder or
Electing Holders and the placement or sales agent, if any,
therefor and the underwriters, if any, thereof and dated the
effective date of such Shelf Registration Statement (and if such
Shelf Registration Statement contemplates an underwritten
offering of a part or all of the Transfer Restricted Securities,
dated the date of the closing under the underwriting agreement
relating thereto) (it being agreed that the matters to be
covered by such opinion shall include the due incorporation and
good standing of the Company and its subsidiaries; the
qualification of the Company and its subsidiaries to transact
business as foreign corporations; the due authorization,
execution and delivery of the relevant agreement of the type
referred to in Section 3(d)(xvi) hereof; the due authorization,
execution, authentication and issuance, and the validity and
enforceability, of the Securities; the absence of material legal
or governmental
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proceedings involving the Company; the absence of a breach by
the Company or any of its subsidiaries of, or a default under,
material agreements binding upon the Company or any subsidiary
of the Company; the absence of governmental approvals required
to be obtained in connection with the Shelf Registration, the
offering and sale of the Transfer Restricted Securities, this
Registration Rights Agreement or any agreement of the type
referred to in Section 3(d)(xvi) hereof, except such approvals
as may be required under state securities or blue sky laws; the
material compliance as to form of such Shelf Registration
Statement and any documents incorporated by reference therein
and of the Indenture with the requirements of the Securities Act
and the Trust Indenture Act and the rules and regulations of the
Commission thereunder, respectively; and, as of the date of the
opinion and of the Shelf Registration Statement or most recent
post-effective amendment thereto, as the case may be, the
absence from such Shelf Registration Statement and the
prospectus included therein, as then amended or supplemented,
and from the documents incorporated by reference therein (in
each case other than the financial statements and other
financial information contained therein) of an untrue statement
of a material fact or the omission to state therein a material
fact necessary to make the statements therein not misleading (in
the case of such documents, in the light of the circumstances
existing at the time that such documents were filed with the
Commission under the Exchange Act)); (C) obtain a "cold comfort"
letter or letters from the independent certified public
accountants of the Company addressed to the selling Electing
Holders, the placement or sales agent, if any, therefor or the
underwriters, if any, thereof, dated (i) the effective date of
such Shelf Registration Statement and (ii) the effective date of
any prospectus supplement to the prospectus included in such
Shelf Registration Statement or post-effective amendment to such
Shelf Registration Statement which includes unaudited or audited
financial statements as of a date or for a period subsequent to
that of the latest such statements included in such prospectus
(and, if such Shelf Registration Statement contemplates an
underwritten offering pursuant to any prospectus supplement to
the prospectus included in such Shelf Registration Statement or
post-effective amendment to such Shelf Registration Statement
which includes unaudited or audited financial statements as of a
date or for a period subsequent to that of the latest such
statements included in such prospectus, dated the date of the
closing under the underwriting agreement relating thereto), such
letter or letters to be in customary form and covering such
matters of the type customarily covered by letters of such type;
(D) deliver such documents and certificates, including officers'
certificates, as may be reasonably requested by any Electing
Holders of at least 20% in aggregate principal amount of the
Transfer Restricted Securities at the time outstanding or the
placement or sales agent, if any, therefor and the managing
underwriters, if any, thereof to evidence the accuracy of the
representations and warranties made pursuant to clause (A) above
or those contained in Section 5(a) hereof and the compliance
with or satisfaction of any agreements or conditions contained
in the underwriting agreement or other agreement entered into by
the Company; and (E) undertake
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such obligations relating to expense reimbursement,
indemnification and contribution as are provided in Section 6
hereof;
(xviii)notify in writing each holder of Transfer Restricted
Securities of any proposal by the Company to amend or waive any
provision of this Registration Rights Agreement pursuant to
Section 9(h) hereof and of any amendment or waiver effected
pursuant thereto, each of which notices shall contain the text
of the amendment or waiver proposed or effected, as the case may
be;
(xix) in the event that any broker-dealer registered under
the Exchange Act shall underwrite any Transfer Restricted
Securities or participate as a member of an underwriting
syndicate or selling group or "assist in the distribution"
(within the meaning of the Conduct Rules (the "Conduct Rules) of
the National Association of Securities Dealers, Inc. ("NASD") or
any successor thereto, as amended from time to time) thereof,
whether as a holder of such Transfer Restricted Securities or as
an underwriter, a placement or sales agent or a broker or dealer
in respect thereof, or otherwise, assist such broker-dealer in
complying with the requirements of such Conduct Rules, including
by (A) if such Conduct Rules shall so require, engaging a
"qualified independent underwriter" (as defined in such Conduct
Rules) to participate in the preparation of the Shelf
Registration Statement relating to such Transfer Restricted
Securities, to exercise usual standards of due diligence in
respect thereto and, if any portion of the offering contemplated
by such Shelf Registration Statement is an underwritten offering
or is made through a placement or sales agent, to recommend the
yield of such Transfer Restricted Securities, (B) indemnifying
any such qualified independent underwriter to the extent of the
indemnification of underwriters provided in Section 6 hereof (or
to such other customary extent as may be requested by such
underwriter), and (C) providing such information to such
broker-dealer as may be required in order for such broker-dealer
to comply with the requirements of the Conduct Rules; and
(xx) comply with all applicable rules and regulations of the
Commission, and make generally available to its securityholders
as soon as practicable but in any event not later than eighteen
months after the effective date of such Shelf Registration
Statement, an earning statement of the Company and its
subsidiaries complying with Section 11(a) of the Securities Act
(including, at the option of the Company, Rule 158 thereunder).
(e) In the event that the Company would be required, pursuant to
Section 3(d)(viii)(F) above, to notify the Electing Holders, the
placement or sales agent, if any, therefor and the managing
underwriters, if any, thereof, the Company shall without delay prepare
and furnish to each of the Electing Holders, to each placement or sales
agent, if any, and to each such underwriter, if any, a reasonable number
of copies of a prospectus
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supplemented or amended so that, as thereafter delivered to purchasers
of Transfer Restricted Securities, such prospectus shall conform in all
material respects to the applicable requirements of the Securities Act
and the Trust Indenture Act and the rules and regulations of the
Commission thereunder and shall not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in
light of the circumstances then existing. Each Electing Holder agrees
that upon receipt of any notice from the Company pursuant to Section
3(d)(viii)(F) hereof, such Electing Holder shall forthwith discontinue
the disposition of Transfer Restricted Securities pursuant to the Shelf
Registration Statement applicable to such Transfer Restricted Securities
until such Electing Holder shall have received copies of such amended or
supplemented prospectus, and if so directed by the Company, such
Electing Holder shall deliver to the Company (at the Company's expense)
all copies, other than permanent file copies, then in such Electing
Holder's possession of the prospectus covering such Transfer Restricted
Securities at the time of receipt of such notice.
(f) In the event of a Shelf Registration, in addition to the
information required to be provided by each Electing Holder in its
Notice Questionnaire, the Company may require such Electing Holder to
furnish to the Company such additional information regarding such
Electing Holder and such Electing Holder's intended method of
distribution of Transfer Restricted Securities as may be required in
order to comply with the Securities Act. Each such Electing Holder
agrees to notify the Company as promptly as practicable of any
inaccuracy or change in information previously furnished by such
Electing Holder to the Company or of the occurrence of any event in
either case as a result of which any prospectus relating to such Shelf
Registration contains or would contain an untrue statement of a material
fact regarding such Electing Holder or such Electing Holder's intended
method of disposition of such Transfer Restricted Securities or omits to
state any material fact regarding such Electing Holder or such Electing
Holder's intended method of disposition of such Transfer Restricted
Securities required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing, and promptly to furnish to the Company any additional
information required to correct and update any previously furnished
information or required so that such prospectus shall not contain, with
respect to such Electing Holder or the disposition of such Transfer
Restricted Securities, an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading in light of the circumstances then
existing.
(g) Until the expiration of two years after the Closing Date,
the Company will not, and will not permit any of its "affiliates" (as
defined in Rule 144) it controls to, resell any of the Securities that
have been reacquired by any of them except pursuant to an effective
registration statement under the Securities Act.
4. Registration Expenses. The Company agrees to bear and to pay
or cause to be paid promptly all expenses incident to the Company's performance
of or compliance with
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this Registration Rights Agreement, including (a) all Commission and any NASD
registration, filing and review fees and expenses including fees and
disbursements of counsel for the placement or sales agent or underwriters in
connection with such registration, filing and review, (b) all fees and expenses
in connection with the qualification of the Securities for offering and sale
under the State securities and blue sky laws referred to in Section 3(d)(xii)
hereof and determination of their eligibility for investment under the laws of
such jurisdictions as any managing underwriters or the Electing Holders may
designate, including any fees and disbursements of counsel for the Electing
Holders or underwriters in connection with such qualification and determination,
(c) all expenses relating to the preparation, printing, production, distribution
and reproduction of each registration statement required to be filed hereunder,
each prospectus included therein or prepared for distribution pursuant hereto,
each amendment or supplement to the foregoing, the expenses of preparing the
Securities for delivery and the expenses of printing or producing any
underwriting agreements, agreements among underwriters, selling agreements and
blue sky or legal investment memoranda and all other documents in connection
with the offering, sale or delivery of Securities to be disposed of (including
certificates representing the Securities), (d) messenger, telephone and delivery
expenses relating to the offering, sale or delivery of Securities and the
preparation of documents referred in clause (c) above, (e) fees and expenses of
the Trustee under the Indenture, any agent of the Trustee and any counsel for
the Trustee and of any collateral agent or custodian, (f) internal expenses
(including all salaries and expenses of the Company's officers and employees
performing legal or accounting duties), (g) fees, disbursements and expenses of
counsel and independent certified public accountants of the Company (including
the expenses of any opinions or "cold comfort" letters required by or incident
to such performance and compliance), (h) reasonable fees, disbursements and
expenses of one counsel for the Electing Holders retained in connection with a
Shelf Registration, as selected by the Electing Holders of at least a majority
in aggregate principal amount of the Transfer Restricted Securities held by
Electing Holders (which counsel shall be reasonably satisfactory to the
Company), (i) any fees charged by securities rating services for rating the
Securities, and (j) fees, expenses and disbursements of any other Persons,
including special experts, retained by the Company in connection with such
registration (collectively, the "Registration Expenses"). To the extent that any
Registration Expenses are incurred, assumed or paid by any holder of Transfer
Restricted Securities or any placement or sales agent therefor or underwriter
thereof, the Company shall reimburse such Person for the full amount of the
Registration Expenses so incurred, assumed or paid promptly after receipt of a
request therefor. Notwithstanding the foregoing, the holders of the Transfer
Restricted Securities being registered shall pay all agency fees and commissions
and underwriting discounts and commissions attributable to the sale of such
Transfer Restricted Securities and the fees and disbursements of any counsel or
other advisors or experts retained by such holders (severally or jointly), other
than the counsel and experts specifically referred to above.
5. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Purchaser and each of the holders from time
to time of Transfer Restricted Securities that:
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(a) Each registration statement covering Transfer Restricted
Securities and each prospectus (including any preliminary or summary
prospectus) contained therein or furnished pursuant to Section 3(d) or
Section 3(c) hereof and any further amendments or supplements to any
such registration statement or prospectus, when it becomes effective or
is filed with the Commission, as the case may be, and, in the case of an
underwritten offering of Transfer Restricted Securities, at the time of
the closing under the underwriting agreement relating thereto, will
conform in all material respects to the requirements of the Securities
Act and the Trust Indenture Act and the rules and regulations of the
Commission thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and
at all times subsequent to the Effective Time when a prospectus would be
required to be delivered under the Securities Act, other than from (i)
such time as a notice has been given to holders of Transfer Restricted
Securities pursuant to Section 3(d)(viii)(F) or Section 3(c)(iii)(F)
hereof until (ii) such time as the Company furnishes an amended or
supplemented prospectus pursuant to Section 3(e) or Section 3(c)(iv)
hereof, each such registration statement, and each prospectus (including
any summary prospectus) contained therein or furnished pursuant to
Section 3(d) or Section 3(c) hereof, as then amended or supplemented,
will conform in all material respects to the requirements of the
Securities Act and the Trust Indenture Act and the rules and regulations
of the Commission thereunder and will not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in
the light of the circumstances then existing; provided, however, that
this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by a holder of Transfer Restricted
Securities expressly for use therein.
(b) Any documents incorporated by reference in any prospectus
referred to in Section 5(a) hereof, when they become or became effective
or are or were filed with the Commission, as the case may be, will
conform or conformed in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and none of such
documents will contain or contained an untrue statement of a material
fact or will omit or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and
in conformity with information furnished in writing to the Company by a
holder of Transfer Restricted Securities expressly for use therein.
(c) The compliance by the Company with all of the provisions of
this Registration Rights Agreement and the consummation of the
transactions herein contemplated will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default
under, any material indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Company or any subsidiary
of the Company is a party or by which the Company or any subsidiary of
the Company is
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bound or to which any of the property or assets of the Company or any
subsidiary of the Company is subject, nor will such action result in any
violation of the provisions of the certificate of incorporation, as
amended, or the by-laws of the Company or any statute or any order, rule
or regulation of any court or governmental agency or body having
jurisdiction over the Company or any subsidiary of the Company or any of
their properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the consummation by the Company of the
transactions contemplated by this Registration Rights Agreement, except
the registration under the Securities Act of the Securities,
qualification of the Indenture under the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications as
may be required under State securities or blue sky laws in connection
with the offering and distribution of the Securities.
(d) This Registration Rights Agreement has been duly authorized,
executed and delivered by the Company.
6. Indemnification.
(a) Indemnification by the Company. The Company will indemnify
and hold harmless each of the holders of Transfer Restricted Securities included
in an Exchange Registration Statement, each of the Electing Holders of Transfer
Restricted Securities included in a Shelf Registration Statement and each Person
who participates as a placement or sales agent or as an underwriter in any
offering or sale of such Transfer Restricted Securities against any losses,
claims, damages or liabilities, joint or several, to which such holder, agent or
underwriter may become subject under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in any Exchange Registration Statement or Shelf
Registration Statement, as the case may be, under which such Transfer Restricted
Securities were registered under the Securities Act, or any preliminary, final
or summary prospectus contained therein or furnished by the Company to any such
holder, Electing Holder, agent or underwriter, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse such holder, such
Electing Holder, such agent and such underwriter for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however, that the
Company shall not be liable to any such Person in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in such registration statement, or preliminary, final or summary
prospectus, or amendment or supplement thereto, in reliance upon and in
conformity with written information furnished to the Company by such Person
expressly for use therein.
(b) Indemnification by the Holders and any Agents and
Underwriters. The Company may require, as a condition to including any Transfer
Restricted Securities in any
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registration statement filed pursuant to Section 2(b) hereof and to entering
into any underwriting agreement with respect thereto, that the Company shall
have received an undertaking reasonably satisfactory to it from the Electing
Holder of such Transfer Restricted Securities and from each underwriter named in
any such underwriting agreement, severally and not jointly, to (i) indemnify and
hold harmless the Company, and all other holders of Transfer Restricted
Securities, against any losses, claims, damages or liabilities to which the
Company or such other holders of Transfer Restricted Securities may become
subject, under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in such registration statement, or any preliminary, final or summary
prospectus contained therein or furnished by the Company to any such Electing
Holder, agent or underwriter, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company by such Electing Holder or underwriter expressly for
use therein, and (ii) reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
any such action or claim as such expenses are incurred; provided, however, that
no such Electing Holder shall be required to undertake liability to any Person
under this Section 6(b) for any amounts in excess of the dollar amount of the
proceeds to be received by such Electing Holder from the sale of such Electing
Holder's Transfer Restricted Securities pursuant to such registration.
(c) Notices of Claims, Etc. Promptly after receipt by an
indemnified party under subsection (a) or (b) above of written notice of the
commencement of any action, such indemnified party shall, if a claim in respect
thereof is to be made against an indemnifying party pursuant to the
indemnification provisions of or contemplated by this Section 6, notify such
indemnifying party in writing of the commencement of such action; but the
omission so to notify the indemnifying party shall not relieve it from any
liability which it may have to any indemnified party otherwise than under the
indemnification provisions of or contemplated by Section 6(a) or 6(b) hereof. In
case any such action shall be brought against any indemnified party and it shall
notify an indemnifying party of the commencement thereof, such indemnifying
party shall be entitled to participate therein and, to the extent that it shall
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), and, after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, such indemnifying party shall not be liable to such indemnified party
for any legal expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection with the defense
thereof other than reasonable costs of investigation. No indemnifying party
shall, without the written consent of the indemnified party, effect the
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be
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sought hereunder (whether or not the indemnified party is an actual or potential
party to such action or claim) unless such settlement, compromise or judgment
(i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act by or
on behalf of any indemnified party.
(d) Contribution. If for any reason the indemnification
provisions contemplated by Section 6(a) or Section 6(b) are unavailable to or
insufficient to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative fault of the indemnifying party and the indemnified
party in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative fault of such
indemnifying party and indemnified party shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by such indemnifying party or by such indemnified party,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The parties hereto
agree that it would not be just and equitable if contributions pursuant to this
Section 6(d) were determined by pro rata allocation (even if the holders or any
agents or underwriters or all of them were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in this Section 6(d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages, or
liabilities (or actions in respect thereof) referred to above shall be deemed to
include any legal or other fees or expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 6(d), no holder shall
be required to contribute any amount in excess of the amount by which the dollar
amount of the proceeds received by such holder from the sale of any Transfer
Restricted Securities (after deducting any fees, discounts and commissions
applicable thereto) exceeds the amount of any damages which such holder has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission, and no underwriter shall be required
to contribute any amount in excess of the amount by which the total price at
which the Transfer Restricted Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation. The holders' and any underwriters'
obligations in this Section 6(d) to contribute shall be several in proportion to
the principal amount of Transfer Restricted Securities registered or
underwritten, as the case may be, by them and not joint.
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(e) The obligations of the Company under this Section 6 shall be
in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each officer, director and
partner of each holder, agent and underwriter and each Person, if any, who
controls any holder, agent or underwriter within the meaning of the Securities
Act; and the obligations of the holders and any agents or underwriters
contemplated by this Section 6 shall be in addition to any liability which the
respective holder, agent or underwriter may otherwise have and shall extend,
upon the same terms and conditions, to each officer and director of the Company
(including any Person who, with his consent, is named in any registration
statement as about to become a director of the Company) and to each Person, if
any, who controls the Company within the meaning of the Securities Act.
7. Underwritten Offerings.
(a) Selection of Underwriters. If any of the Transfer Restricted
Securities covered by the Shelf Registration are to be sold pursuant to an
underwritten offering, the managing underwriter or underwriters thereof shall be
designated by Electing Holders holding at least a majority in aggregate
principal amount of the Transfer Restricted Securities to be included in such
offering, provided that such designated managing underwriter or underwriters is
or are reasonably acceptable to the Company.
(b) Participation by Holders. Each holder of Transfer Restricted
Securities hereby agrees with each other such holder that no such holder may
participate in any underwritten offering hereunder unless such holder (i) agrees
to sell such holder's Transfer Restricted Securities on the basis provided in
any underwriting arrangements approved by the Persons entitled hereunder to
approve such arrangements and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements.
8. Rule 144. The Company covenants to the holders of Transfer
Restricted Securities that to the extent it shall be required to do so under the
Exchange Act, the Company shall timely file the reports required to be filed by
it under the Exchange Act or the Securities Act (including the reports under
Section 13 and 15(d) of the Exchange Act referred to in subparagraph (c)(1) of
Rule 144 adopted by the Commission under the Securities Act) and the rules and
regulations adopted by the Commission thereunder, and shall take such further
action as any holder of Transfer Restricted Securities may reasonably request,
all to the extent required from time to time to enable such holder to sell
Transfer Restricted Securities without registration under the Securities Act
within the limitations of the exemption provided by Rule 144 under the
Securities Act, as such Rule may be amended from time to time, or any similar or
successor rule or regulation hereafter adopted by the Commission. Upon the
request of any holder of Transfer Restricted Securities in connection with that
holder's sale pursuant to Rule 144, the Company shall deliver to such holder a
written statement as to whether it has complied with such requirements.
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9. Miscellaneous.
(a) No Inconsistent Agreements. The Company represents, warrants,
covenants and agrees that it has not granted, and shall not grant, registration
rights with respect to Transfer Restricted Securities or any other securities
which would be inconsistent with the terms contained in this Registration Rights
Agreement.
(b) Specific Performance. The parties hereto acknowledge that
there would be no adequate remedy at law if the Company fails to perform any of
its obligations hereunder and that the Purchasers and the holders from time to
time of the Transfer Restricted Securities may be irreparably harmed by any such
failure, and accordingly agree that the Purchasers and such holders, in addition
to any other remedy to which they may be entitled at law or in equity, shall be
entitled to compel specific performance of the obligations of the Company under
this Registration Rights Agreement in accordance with the terms and conditions
of this Registration Rights Agreement, in any court of the United States or any
State thereof having jurisdiction.
(c) Notices. All notices, requests, claims, demands, waivers and
other communications hereunder shall be in writing and shall be deemed to have
been duly given when delivered by hand, if delivered personally or by courier,
or three days after being deposited in the mail (registered or certified mail,
postage prepaid, return receipt requested) as follows: If to the Company, to it
at XXXX.XXX, 0000 Xxxxxx Xxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx
00000-0000, Attention: Xxxxx X. Xxxxxxx, and if to a holder, to the address of
such holder set forth in the security register or other records of the Company,
or to such other address as the Company or any such holder may have furnished to
the other in writing in accordance herewith, except that notices of change of
address shall be effective only upon receipt.
(d) Parties in Interest. All the terms and provisions of this
Registration Rights Agreement shall be binding upon, shall inure to the benefit
of and shall be enforceable by the parties hereto and the holders from time to
time of the Transfer Restricted Securities and the respective successors and
assigns of the parties hereto and such holders. In the event that any transferee
of any holder of Transfer Restricted Securities shall acquire Transfer
Restricted Securities, in any manner, whether by gift, bequest, purchase,
operation of law or otherwise, such transferee shall, without any further
writing or action of any kind, be deemed a beneficiary hereof for all purposes
and such Transfer Restricted Securities shall be held subject to all of the
terms of this Registration Rights Agreement, and by taking and holding such
Transfer Restricted Securities such transferee shall be entitled to receive the
benefits of, and be conclusively deemed to have agreed to be bound by all of the
applicable terms and provisions of this Registration Rights Agreement. If the
Company shall so request, any such successor, assign or transferee shall agree
in writing to acquire and hold the Transfer Restricted Securities subject to all
of the applicable terms hereof.
(e) Survival. The respective indemnities, agreements,
representations, warranties and each other provision set forth in this
Registration Rights Agreement or made pursuant hereto shall remain in full force
and effect regardless of any investigation (or statement
24
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as to the results thereof) made by or on behalf of any holder of Transfer
Restricted Securities, any director, officer or partner of such holder, any
agent or underwriter or any director, officer or partner thereof, or any
controlling Person of any of the foregoing, and shall survive delivery of and
payment for the Transfer Restricted Securities pursuant to the Purchase
Agreement and the transfer and registration of Transfer Restricted Securities by
such holder and the consummation of an Exchange Offer.
(f) GOVERNING LAW. THIS REGISTRATION RIGHTS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(g) Headings. The descriptive headings of the several Sections
and paragraphs of this Registration Rights Agreement are inserted for
convenience only, do not constitute a part of this Registration Rights Agreement
and shall not affect in any way the meaning or interpretation of this
Registration Rights Agreement.
(h) Entire Agreement; Amendments. This Registration Rights
Agreement and the other writings referred to herein (including the Indenture and
the form of Securities) or delivered pursuant hereto which form a part hereof
contain the entire understanding of the parties with respect to its subject
matter. This Registration Rights Agreement supersedes all prior agreements and
understandings between the parties with respect to its subject matter. This
Registration Rights Agreement may be amended and the observance of any term of
this Registration Rights Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively) only by a written
instrument duly executed by the Company and the holders of at least [a majority]
in aggregate principal amount of the Transfer Restricted Securities at the time
outstanding. Each holder of any Transfer Restricted Securities at the time or
thereafter outstanding shall be bound by any amendment or waiver effected
pursuant to this Section 9(h), whether or not any notice, writing or marking
indicating such amendment or waiver appears on such Transfer Restricted
Securities or is delivered to such holder.
(i) Inspection. For so long as this Registration Rights Agreement
shall be in effect, this Registration Rights Agreement and a complete list of
the names and addresses of all the holders of Transfer Restricted Securities
shall be made available for inspection and copying on any business day by any
holder of Transfer Restricted Securities for proper purposes only (which shall
include any purpose related to the rights of the holders of Transfer Restricted
Securities under the Securities, the Indenture and this Agreement) at the
offices of the Company at the address thereof set forth in Section 9(c) above
and at the office of the Trustee under the Indenture.
(j) Counterparts. This agreement may be executed by the parties
in counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
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If the foregoing is in accordance with your understanding, please
sign and return to us nine counterparts hereof, and upon the acceptance hereof
by you, on behalf of each of the Purchasers, this letter and such acceptance
hereof shall constitute a binding agreement between each of the Purchasers and
the Company. It is understood that your acceptance of this letter on behalf of
each of the Purchasers is pursuant to the authority set forth in a form of
Agreement among Purchasers, the form of which shall be submitted to the Company
for examination upon request, but without warranty on your part as to the
authority of the signers thereof.
Very truly yours,
XXXX.XXX
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President and Chief
Executive Officer
Accepted as of the date hereof:
Xxxxxxx, Sachs & Co.
Bear, Xxxxxxx & Co. Inc.
Chase Securities Inc.
Deutsche Bank Securities Inc.
Warburg Dillon Read LLC
Xxxxxxxxx & Company, Inc.
By: /s/ Xxxxxxx, Sachs & Co.
-------------------------------
(Xxxxxxx, Xxxxx & Co.)
On behalf of each of the Purchasers
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EXHIBIT A
XXXX.XXX
INSTRUCTION TO DTC PARTICIPANTS
(DATE OF MAILING)
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: [DATE]*
The Depository Trust Company ("DTC") has identified you as a DTC
Participant through which beneficial interests in the XXXX.XXX (the "Company")
13 7/8% Senior Notes due 2010 (the "Securities") are held.
The Company is in the process of registering the Securities under
the Securities Act of 1933 for resale by the beneficial owners thereof. In order
to have their Securities included in the registration statement, beneficial
owners must complete and return the enclosed Notice of Registration Statement
and Selling Securityholder Questionnaire.
It is important that beneficial owners of the Securities receive
a copy of the enclosed materials as soon as possible as their rights to have the
Securities included in the registration statement depend upon their returning
the Notice and Questionnaire by [Deadline For Response]. Please forward a copy
of the enclosed documents to each beneficial owner that holds interests in the
Securities through you. If you require more copies of the enclosed materials or
have any questions pertaining to this matter, please contact XXXX.XXX.
--------
* Not less than 28 calendar days from date of mailing.
28
XXXX.XXX
NOTICE OF REGISTRATION STATEMENT
AND
SELLING SECURITYHOLDER QUESTIONNAIRE
(DATE)
Reference is hereby made to the Registration Rights Agreement
(the " Registration Rights Agreement") between XXXX.XXX (the "Company") and the
Purchasers named therein. Pursuant to the Registration Rights Agreement, the
Company has filed with the United States Securities and Exchange Commission (the
"Commission") a registration statement on Form [ ] (the "Shelf Registration
Statement") for the registration and resale under Rule 415 of the Securities Act
of 1933, as amended (the "Securities Act"), of the Company's 13 7/8% Senior
Notes due 2010 (the "Securities"). A copy of the Registration Rights Agreement
is attached hereto. All capitalized terms not otherwise defined herein shall
have the meanings ascribed thereto in the Registration Rights Agreement.
Each beneficial owner of Transfer Restricted Securities (as
defined below) is entitled to have the Transfer Restricted Securities
beneficially owned by it included in the Shelf Registration Statement. In order
to have Transfer Restricted Securities included in the Shelf Registration
Statement, this Notice of Registration Statement and Selling Securityholder
Questionnaire ("Notice and Questionnaire") must be completed, executed and
delivered to the Company's counsel at the address set forth herein for receipt
ON OR BEFORE [Deadline for Response]. Beneficial owners of Transfer Restricted
Securities who do not complete, execute and return this Notice and Questionnaire
by such date (i) will not be named as selling securityholders in the Shelf
Registration Statement and (ii) may not use the Prospectus forming a part
thereof for resales of Transfer Restricted Securities.
Certain legal consequences arise from being named as a selling
securityholder in the Shelf Registration Statement and related Prospectus.
Accordingly, holders and beneficial owners of Transfer Restricted Securities are
advised to consult their own securities law counsel regarding the consequences
of being named or not being named as a selling securityholder in the Shelf
Registration Statement and related Prospectus.
The term "Transfer Restricted Securities" is defined in the
Registration Rights Agreement.
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ELECTION
The undersigned holder (the "Selling Securityholder") of Transfer
Restricted Securities hereby elects to include in the Shelf Registration
Statement the Transfer Restricted Securities beneficially owned by it and listed
below in Item (3). The undersigned, by signing and returning this Notice and
Questionnaire, agrees to be bound with respect to such Transfer Restricted
Securities by the terms and conditions of this Notice and Questionnaire and the
Registration Rights Agreement, including, without limitation, Section 6 of the
Registration Rights Agreement, as if the undersigned Selling Securityholder were
an original party thereto.
Upon any sale of Transfer Restricted Securities pursuant to the
Shelf Registration Statement, the Selling Securityholder will be required to
deliver to the Company and Trustee the Notice of Transfer set forth in Appendix
A to the Prospectus and as Exhibit B to the Registration Rights Agreement.
The Selling Securityholder hereby provides the following
information to the Company and represents and warrants that such information is
accurate and complete:
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QUESTIONNAIRE
(1)(a) Full Legal Name of Selling Securityholder:
-----------------------------------------------------------------------
(b) Full Legal Name of Registered Holder (if not the same as in (a) above)
of Transfer Restricted Securities Listed in Item (3) below:
-----------------------------------------------------------------------
(c) Full Legal Name of DTC Participant (if applicable and if not the same as
(b) above) Through Which Transfer Restricted Securities Listed in Item
(3) below are Held:
-----------------------------------------------------------------------
(2) Address for Notices to Selling Securityholder:
Telephone:
---------------------------------
Fax:
---------------------------------------
Contact Person:
----------------------------
(3) Beneficial Ownership of Securities:
Except as set forth below in this Item (3), the undersigned does not
beneficially own any Securities.
(a) Principal amount of Transfer Restricted Securities beneficially
owned:
---------------------------------------------------------
CUSIP No(s). of such Transfer Restricted Securities:
-----------
(b) Principal amount of Securities other than Transfer Restricted
Securities beneficially owned:
---------------------------------------------------------------
CUSIP No(s). of such other Securities:
(c) Principal amount of Transfer Restricted Securities which the
undersigned wishes to be included in the Shelf Registration
Statement:
-----------------------------------------------------
CUSIP No(s). of such Transfer Restricted Securities to be
included in the Shelf Registration Statement:
------------------
(4) Beneficial Ownership of Other Securities of the Company:
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Except as set forth below in this Item (4), the undersigned Selling
Securityholder is not the beneficial or registered owner of any other
securities of the Company, other than the Securities listed above in
Item (3).
State any exceptions here:
(5) Relationships with the Company:
Except as set forth below, neither the Selling Securityholder nor any of
its affiliates, officers, directors or principal equity holders (5% or
more) has held any position or office or has had any other material
relationship with the Company (or its predecessors or affiliates) during
the past three years.
State any exceptions here:
(6) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder
intends to distribute the Transfer Restricted Securities listed above in
Item (3) only as follows (if at all): Such Transfer Restricted
Securities may be sold from time to time directly by the undersigned
Selling Securityholder or, alternatively, through underwriters,
broker-dealers or agents. Such Transfer Restricted Securities may be
sold in one or more transactions at fixed prices, at prevailing market
prices at the time of sale, at varying prices determined at the time of
sale, or at negotiated prices. Such sales may be effected in
transactions (which may involve crosses or block transactions) (i) on
any national securities exchange or quotation service on which the
Registered Securities may be listed or quoted at the time of sale, (ii)
in the over-the-counter market, (iii) in transactions otherwise than on
such exchanges or services or in the over-the-counter market, or (iv)
through the writing of options. In connection with sales of the Transfer
Restricted Securities or otherwise, the Selling Securityholder may enter
into hedging transactions with broker-dealers, which may in turn engage
in short sales of the Transfer Restricted Securities in the course of
hedging the positions they assume. The Selling Securityholder may also
sell Transfer Restricted Securities short and deliver Transfer
Restricted Securities to close out such short positions, or loan or
pledge Transfer Restricted Securities to broker-dealers that in turn may
sell such securities.
State any exceptions here:
2
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By signing below, the Selling Securityholder acknowledges that it understands
its obligation to comply, and agrees that it will comply, with the provisions of
the Exchange Act and the rules and regulations thereunder, particularly
Regulation M.
In the event that the Selling Securityholder transfers all or any portion of the
Transfer Restricted Securities listed in Item (3) above after the date on which
such information is provided to the Company, the Selling Securityholder agrees
to notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Registration Rights
Agreement.
By signing below, the Selling Securityholder consents to the disclosure of the
information contained herein in its answers to Items (1) through (6) above and
the inclusion of such information in the Shelf Registration Statement and
related Prospectus. The Selling Securityholder understands that such information
will be relied upon by the Company in connection with the preparation of the
Shelf Registration Statement and related Prospectus.
In accordance with the Selling Securityholder's obligation under Section 3(d) of
the Registration Rights Agreement to provide such information as may be required
by law for inclusion in the Shelf Registration Statement, the Selling
Securityholder agrees to promptly notify the Company of any inaccuracies or
changes in the information provided herein which may occur subsequent to the
date hereof at any time while the Shelf Registration Statement remains in
effect. All notices hereunder and pursuant to the Registration Rights Agreement
shall be made in writing, by hand-delivery, first-class mail, or air courier
guaranteeing overnight delivery as follows:
(i) To the Company:
-------------------------
-------------------------
-------------------------
-------------------------
-------------------------
(ii) With a copy to:
-------------------------
-------------------------
-------------------------
-------------------------
-------------------------
Once this Notice and Questionnaire is executed by the Selling Securityholder and
received by the Company's counsel, the terms of this Notice and Questionnaire,
and the representations and warranties contained herein, shall be binding on,
shall inure to the benefit of and shall be enforceable by the respective
successors, heirs, personal representatives, and assigns of the Company and the
Selling Securityholder (with respect to the Transfer Restricted Securities
3
33
beneficially owned by such Selling Securityholder and listed in Item (3) above.
This Agreement shall be governed in all respects by the laws of the State of New
York.
4
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IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this
Notice and Questionnaire to be executed and delivered either in person or by its
duly authorized agent.
Dated:
-------------------------------
-----------------------------------------------------------------------
Selling Securityholder
(Print/type full legal name of beneficial owner of Transfer Restricted
Securities)
By:
--------------------------------------------------------------------
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE [DEADLINE FOR RESPONSE] TO THE COMPANY'S COUNSEL AT:
-------------------------
-------------------------
-------------------------
-------------------------
-------------------------
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35
EXHIBIT B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
State Street Bank and Trust
Company of California, N.A.
XXXX.XXX
x/x Xxxxx Xxxxxx Xxxx and Trust
Company
0 Xxxxxx xx Xxxxxxxxx
Xxxxxx, XX 00000-0000
Attention: Xxxxx Xxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
Re: XXXX.XXX (the "Company")
13 7/8% Senior Notes due 2010
Dear Sirs:
Please be advised that _____________________ has transferred
$____ aggregate principal amount of the above-referenced Notes pursuant to an
effective Registration Statement on Form [__] (File No. 333-_____) filed by the
Company.
We hereby certify that the prospectus delivery requirements, if
any, of the Securities Act of 1933, as amended, have been satisfied and that the
above-named beneficial owner of the Notes is named as a "Selling Holder" in the
Prospectus dated ___________, ____ or in supplements thereto, and that the
aggregate principal amount of the Notes transferred are the Notes listed in such
Prospectus opposite such owner's name.
Dated:
Very truly yours,
(Name)
By:
------------------------------------
(Authorized Signature)
