EXHIBIT A
XXXXXX COMMUNICATIONS CORPORATION
13% SENIOR EXCHANGEABLE PREFERRED STOCK
DUE 2009
REGISTRATION RIGHTS AGREEMENT
May 5, 1999
Xxxxxx Brothers Inc.
Three World Financial Center
New York, New York 10285
Ladies and Gentlemen:
Xxxxxx Communications Corporation, an Oklahoma corporation (the
"Company"), proposes to issue and sell (the "Initial Placement") to Xxxxxx
Brothers Inc. (the "Initial Purchaser") upon terms set forth in a purchase
agreement dated as of April 29, 1999 (the "Purchase Agreement") among the
Company and the Initial Purchaser, its 12 1/4% Senior Exchangeable Preferred
Stock due 2009 (the "Preferred Stock" and together with the PIK Shares (as
defined herein), the "Securities"), which will be mandatorily redeemable on
May 1, 2009, as set forth in the Certificate of Designation relating to the
Securities (the "Certificate of Designation"). The Securities will be
exchangeable, at the option of the Company, in whole but not in part, into
Senior Subordinated Debentures due 2009 to be issued, if applicable, pursuant to
an Indenture to be dated as of the date of such exchange. As an inducement to
you to enter into the Purchase Agreement and purchase the Securities and in
satisfaction of a condition to your obligations under the Purchase Agreement,
the Company agrees with you for the benefit of the holders from time to time of
the Securities (including the Initial Purchaser) (each of the foregoing a
"Holder" and together the "Holders"), as follows:
1. DEFINITIONS. Capitalized terms used herein without definition
shall have their respective meanings set forth in the Purchase Agreement. As
used in this Agreement, the following capitalized defined terms shall have the
following meanings:
"AFFILIATE" of any specified person means any other person that,
directly or indirectly, is in control of, is controlled by, or is under
common control with, such specified person. For purposes of this
definition, control of a person means the power, direct or indirect, to
direct or cause the direction of the management and policies of such
person whether by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"CERTIFICATE OF DESIGNATION" has the meaning set forth in the
preamble.
"CLOSING DATE" has the meaning set forth in the Purchase
Agreement.
"COMMISSION" means the Securities and Exchange Commission.
"COMPANY" has the meaning set forth in the preamble hereto.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"EXCHANGE OFFER" means the proposed offer to the Holders to issue
and deliver to such Holders, in exchange for the Securities, a like
aggregate liquidation value of Exchange Securities.
"EXCHANGE OFFER REGISTRATION PERIOD" means the longer of (A) the
period until the consummation of the Exchange Offer and (B) two years
after effectiveness of the Exchange Offer Registration Statement,
exclusive of any period during which any stop order shall be in effect
suspending the effectiveness of the Exchange Offer Registration
Statement; PROVIDED, HOWEVER, that in the event that all resales of
Exchange Securities (including, subject to the time periods set forth
herein, any resales by Exchanging Dealers) covered by such Exchange Offer
Registration Statement have been made, the Exchange Offer Registration
Statement need not remain continuously effective for the period set forth
in clause (B) above.
"EXCHANGE OFFER REGISTRATION STATEMENT" means a Registration
Statement of the Company on an appropriate form under the Securities Act
with respect to the Exchange Offer, all amendments and supplements to
such Registration Statement, including post-effective amendments, in each
case including the Prospectus contained therein, all exhibits thereto and
all material incorporated by reference therein.
"EXCHANGE SECURITIES" means securities issued by the Company,
identical in all material respects to the Securities (except that
(i) dividends thereon shall accrue from the last date on which dividends
were paid on the Securities or, if no such dividends have been paid, from
August 1, 1999 and (ii) the liquidated damages provisions and the
transfer restrictions pertaining to the Securities will be modified or
eliminated, as appropriate, in the Exchange Securities), to be issued
under the Certificate of Designation.
"EXCHANGING DEALER" means any Holder (which may include the
Initial Purchaser) that is a broker-dealer, electing to exchange
Securities acquired for its own account as a result of market-making
activities or other trading activities for Exchange Notes.
"FINAL MEMORANDUM" has the meaning set forth in the Purchase
Agreement.
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"HOLDER" has the meaning set forth in the preamble hereto.
"INITIAL PLACEMENT" has the meaning set forth in the preamble
hereto.
"INITIAL PURCHASER" has the meaning set forth in the preamble
hereto.
"LOSSES" has the meaning set forth in Section 6(d) hereto.
"MAJORITY HOLDERS" means the Holders of a majority of the
aggregate liquidation value of Securities registered under a Registration
Statement.
"MANAGING UNDERWRITERS" means the investment banker or investment
bankers and manager or managers that shall administer an underwritten
offering under a Shelf Registration Statement.
"PIK SHARES" means any additional Preferred Stock issued as
payment in kind dividends to any Holder of the Preferred Stock.
"PREFERRED STOCK" has the meaning set forth in the preamble
hereto.
"PROSPECTUS" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A under the
Securities Act), as amended or supplemented by any prospectus supplement,
with respect to the terms of the offering of any portion of the Notes or
the Exchange Notes covered by such Registration Statement, and all
amendments and supplements to the Prospectus, including post-effective
amendments.
"PURCHASE AGREEMENT" has the meaning set forth in the preamble
hereto.
"REGISTRATION STATEMENT" means any Exchange Offer Registration
Statement or Shelf Registration Statement pursuant to the provisions of
this Agreement, amendments and supplements to such registration
statement, including post-effective amendments, in each case including
the Prospectus contained therein, all exhibits thereto, and all material
incorporated by reference therein.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"SHELF REGISTRATION" means a registration effected pursuant to
Section 3 hereof.
"SHELF REGISTRATION PERIOD" has the meaning set forth in Section
3(b) hereof.
"SHELF REGISTRATION STATEMENT" means a "shelf" registration
statement of
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the Company pursuant to the provisions of Section 3 hereof, which
covers some or all of the Securities or Exchange Securities, as
applicable, on an appropriate form under Rule 415 under the Securities
Act, or any similar rule that may be adopted by the Commission,
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated
by reference therein.
"TRANSFER AGENT" means United States Trust Company of New York and
any successors thereto.
"UNDERWRITER" means any underwriter of Securities in connection
with an offering thereof under a Shelf Registration Statement.
2. EXCHANGE OFFER; RESALES OF EXCHANGE SECURITIES BY EXCHANGING
DEALERS; PRIVATE EXCHANGE.
(a) The Company shall prepare and file with the Commission the
Exchange Offer Registration Statement with respect to the Exchange Offer.
The Company shall use its best efforts (i) to cause the Exchange Offer
Registration Statement to be declared effective under the Securities Act
and remain effective until the closing of the Exchange Offer and (ii) to
consummate the Exchange Offer on or prior to the 180th calendar day
following the Closing Date.
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Company shall promptly commence the Exchange Offer, it
being the objective of such Exchange Offer to enable each Holder electing
to exchange Securities for Exchange Securities (assuming that such Holder
(x) is not an "affiliate" of the Company within the meaning of the
Securities Act, (y) is not a broker-dealer that acquired the Securities
in a transaction other than as a part of its market-making or other
trading activities and (z) if such Holder is not a broker-dealer,
acquires the Exchange Securities in the ordinary course of such Holder's
business, is not participating in the distribution of the Exchange
Securities and has no arrangements or understandings with any person to
participate in the distribution of the Exchange Securities) to resell
such Exchange Securities from and after their receipt without any
limitations or restrictions under the Securities Act and without material
restrictions under the securities laws of a substantial proportion of the
several states of the United States.
(c) In connection with the Exchange Offer, the Company shall
mail to each Holder a copy of the Prospectus forming part of the Exchange
Offer Registration Statement, together with an appropriate letter of
transmittal and related documents, stating, in addition to such other
disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to
this Agreement and that all Securities validly tendered will be
accepted for exchange;
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(ii) the dates of acceptance for exchange;
(iii) that any Securities not tendered will remain
outstanding and continue to accrue dividends, but will not retain
any rights under this Agreement;
(iv) that Holders electing to have Securities exchanged
pursuant to the Exchange Offer will be required to surrender such
Securities, together with the enclosed letters of transmittal, to
the institution and at the address (located in the Borough of
Manhattan, The City of New York) specified in the notice prior to
the close of business on the last day of acceptance for exchange;
and
(v) that Holders will be entitled to withdraw their
election, not later than the close of business on the last day of
acceptance for exchange, by sending to the institution and at the
address (located in the Borough of Manhattan, The City of New
York) specified in the notice a telegram, telex, facsimile
transmission or letter setting forth the name of such Holder, the
aggregate liquidation value of Securities delivered for exchange
and a statement that such Holder is withdrawing his election to
have such Securities exchanged; and shall keep the Exchange Offer
open for acceptance for not less than 30 days and not more than 45
days (or longer if required by applicable law) after the date
notice thereof is mailed to the Holders; utilize the services of a
depositary for the Exchange Offer with an address in the Borough
of Manhattan, The City of New York; and comply in all respects
with all applicable laws relating to the Exchange Offer.
(d) As soon as practicable after the close of the Exchange
Offer, the Company shall:
(i) accept for exchange all Securities duly tendered and
not validly withdrawn pursuant to the Exchange Offer;
(ii) deliver to the Transfer Agent for cancellation all
Securities so accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and
deliver to each Holder Exchange Securities equal in liquidation
value to the Securities of such Holder so accepted for exchange.
(e) The Initial Purchaser and the Company acknowledge that,
pursuant to interpretations by the staff of the Commission of Section 5
of the Securities Act, and in the absence of an applicable exemption
therefrom, each Exchanging Dealer is required to deliver a Prospectus in
connection with a sale of any Exchange Securities received by such
Exchanging Dealer pursuant to the Exchange Offer in exchange for
Securities acquired for its own account as a result of market-making
activities or other trading activities. Accordingly, the Company
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shall:
(i) include the information set forth in Annex A hereto
on the cover of the Exchange Offer Registration Statement, in
Annex B hereto in the forepart of the Exchange Offer Registration
Statement in a section setting forth details of the Exchange
Offer, in Annex C hereto in the underwriting or plan of
distribution section of the Prospectus forming a part of the
Exchange Offer Registration Statement, and in Annex D hereto in
the letter of transmittal delivered pursuant to the Exchange
Offer; and
(ii) use its best efforts to keep the Exchange Offer
Registration Statement continuously effective under the Securities
Act during the Exchange Offer Registration Period for delivery of
the prospectus included therein by Exchanging Dealers in
connection with sales of Exchange Securities received pursuant to
the Exchange Offer, as contemplated by Section 4(h) below;
PROVIDED, HOWEVER, that the Company shall not be required to
maintain the effectiveness of the Exchange Offer Registration
Statement for more than 30 days following the consummation of the
Exchange Offer unless the Company has been notified in writing on
or prior to the 30th day following the consummation of the
Exchange Offer by one or more Exchanging Dealers that such Holder
has received Exchange Securities as to which it will be required
to deliver a prospectus upon resale.
(f) In the event that the Initial Purchaser determines that it
is not eligible to participate in the Exchange Offer with respect to the
exchange of Securities constituting any portion of an unsold allotment,
upon the effectiveness of the Shelf Registration Statement as
contemplated by Section 3 hereof and at the request of the Initial
Purchaser, the Company shall issue and deliver to the Initial Purchaser,
or to the party purchasing Securities registered under the Shelf
Registration Statement from the Initial Purchaser, in exchange for such
Securities, a like liquidation value of Exchange Securities. The Company
shall use its best efforts to cause the CUSIP Service Bureau to issue the
same CUSIP number for such Exchange Securities as for Exchange Securities
issued pursuant to the Exchange Offer.
(g) The Company shall use its best efforts to complete the
Exchange Offer as provided above and shall comply with the applicable
requirements of the Securities Act, the Exchange Act and other applicable
laws and regulations in connection with the Exchange Offer. The Exchange
Offer shall not be subject to any conditions, other than that (i) the
Exchange Offer does not violate applicable law or any applicable
interpretation of the staff of the Commission, (ii) no action or
proceeding shall have been instituted or threatened in any court or by
any governmental agency which might materially impair the ability of the
Company to proceed with the Exchange Offer, and no material adverse
development shall have occurred in any existing action or proceeding with
respect to the Company and (iii) all governmental approvals shall have
been obtained, which approvals the Company deems necessary for the
consummation of the Exchange Offer. The
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Company shall inform the Initial Purchaser, upon their request, of the
names and addresses of the Holders to whom the Exchange Offer is made,
and the Initial Purchaser shall have the right, subject to applicable
law, to contact such Holders and otherwise facilitate the tender of
Securities in the Exchange Offer.
3. SHELF REGISTRATION. If (i) because of any change in law or
applicable interpretations thereof by the Commission's staff, the Company
determines upon advice of its outside counsel that it is not permitted to effect
the Exchange Offer as contemplated by Section 2 hereof, or (ii) for any reason
other than those specified in clause (i) above, the Exchange Offer is not
consummated within 180 days of the Closing Date, or (iii) the Initial Purchaser
so requests with respect to Securities held by them within 90 days following
consummation of the Exchange Offer, or (iv) any Holder (other than the Initial
Purchaser) is not eligible to participate in the Exchange Offer or has
participated in the Exchange Offer and has received Exchange Securities that are
not freely tradeable or (v) in the case where the Initial Purchaser participates
in the Exchange Offer or acquires Exchange Securities pursuant to Section 2(f)
hereof, the Initial Purchaser does not receive freely tradeable Exchange
Securities in exchange for Securities constituting any portion of an unsold
allotment (it being understood that, for purposes of this Section 3, (x) the
requirement that the Initial Purchaser deliver a Prospectus containing the
information required by Items 507 and/or 508 of Regulation S-K under the
Securities Act in connection with sales of Exchange Securities acquired in
exchange for such Securities shall result in such Exchange Securities being not
"freely tradeable" and (y) the requirement that an Exchanging Dealer deliver a
Prospectus in connection with sales of Exchange Securities acquired in the
Exchange Offer in exchange for Securities acquired as a result of market-making
activities or other trading activities shall not result in such Exchange
Securities being not "freely tradeable"), the following provisions shall apply:
(a) The Company shall, as promptly as practicable, file with
the Commission a Shelf Registration Statement relating to the offer and
sale of the Securities or the Exchange Securities, as applicable, by the
Holders from time to time in accordance with the methods of distribution
elected by such Holders and set forth in such Shelf Registration
Statement and Rule 415 under the Securities Act, PROVIDED that, with
respect to Exchange Securities received by the Initial Purchaser in
exchange for Securities constituting any portion of an unsold allotment,
the Company may, if permitted by current interpretations by the
Commission's staff, file a post-effective amendment to the Exchange Offer
Registration Statement containing the information required by Regulation
S-K Items 507 and/or 508, as applicable, in satisfaction of its
obligations under this paragraph (a) with respect thereto, and any such
Exchange Offer Registration Statement, as so amended, shall be referred
to herein as, and governed by the provisions herein applicable to, a
Shelf Registration Statement.
(b) The Company shall use its best efforts to cause the Shelf
Registration Statement to be declared effective under the Securities Act
as promptly as possible after filing such Shelf Registration Statement
pursuant to this Section 3 and to keep such Shelf Registration Statement
continuously effective in order to permit the Prospectus contained
therein to be usable by
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Holders for a period of two years from the date the Shelf Registration
Statement is declared effective by the Commission or such shorter
period that will terminate when all the Securities or Exchange
Securities, as applicable, covered by the Shelf Registration Statement
have been sold pursuant to the Shelf Registration Statement (in any
such case, such period being called the "Shelf Registration Period").
The Company shall be deemed not to have used its best efforts to keep
the Shelf Registration Statement effective during the requisite period
if it voluntarily takes any action that would result in Holders of
Securities covered thereby not being able to offer and sell such
Securities during that period, unless (i) such action is required by
applicable law, (ii) the Company complies with this Agreement or (iii)
such action is taken by the Company in good faith and for valid
business reasons (not including avoidance of the Company's obligations
hereunder), including the acquisition or divestiture of assets, so
long as the Company promptly thereafter complies with the requirements
of Section 4(l) hereof, if applicable.
4. REGISTRATION PROCEDURES. In connection with any Shelf
Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply:
(a) The Company shall, within a reasonable time prior to the
filing of any Registration Statement, any Prospectus, any amendment to a
Registration Statement or amendment or supplement to a Prospectus or any
document which is to be incorporated by reference into a Registration
Statement or a Prospectus after initial filing of a Registration
Statement, provide copies of such document to the Initial Purchaser and
its counsel (and, in the case of a Shelf Registration Statement, the
Holders and their counsel, upon their request) and make such
representatives of the Company as shall be reasonably requested by the
Initial Purchaser or its counsel (and, in the case of a Shelf
Registration Statement, the Majority Holders or their counsel) available
for discussion of such document, and shall not at any time file or make
any amendment to the Registration Statement, any Prospectus or any
amendment of or supplement to a Registration Statement or a Prospectus or
any document which is to be incorporated by reference into a Registration
Statement or a Prospectus, of which the Initial Purchaser and its counsel
(and, in the case of a Shelf Registration Statement, the Holders and
their counsel) shall not have previously been advised and furnished a
copy or to which the Initial Purchaser or its counsel (and, in the case
of a Shelf Registration Statement, the Holders or their counsel) shall
object, except for any amendment or supplement or document (a copy of
which has been previously furnished to the Initial Purchaser and its
counsel (and, in the case of a Shelf Registration Statement, the Majority
Holders and their counsel, upon their request)) which counsel to the
Company shall advise the Company, in the form of a written opinion, is
required in order to comply with applicable law; the Initial Purchaser
agrees that, if it receives timely notice and drafts under this clause
(a), it will not take actions or make objections pursuant to this clause
(a) such that the Company is unable to comply with its obligations under
Section 2.
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(b) The Company shall ensure that:
(i) any Registration Statement and any amendment thereto
and any Prospectus contained therein and any amendment or
supplement thereto complies in all material respects with the
Securities Act and the rules and regulations thereunder;
(ii) any Registration Statement and any amendment thereto
does not, when it becomes effective, contain an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; and
(iii) any Prospectus forming part of any Registration
Statement, including any amendment or supplement to such
Prospectus, does not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements therein, in light of the circumstances under which
they were made, not misleading.
(c) (1) The Company shall advise the Initial Purchaser and, in
the case of a Shelf Registration Statement, the Holders of Securities
covered thereby, and, if requested by the Initial Purchaser or any such
Holder, confirm such advice in writing:
(i) when a Registration Statement and any amendment
thereto has been filed with the Commission and when the
Registration Statement or any post-effective amendment thereto has
become effective; and
(ii) of any request by the Commission for amendments or
supplements to the Registration Statement or the Prospectus
included therein or for additional information.
(2) During the Shelf Registration Period or the Exchange Offer
Registration Period, as applicable, the Company shall advise the Initial
Purchaser and, in the case of a Shelf Registration Statement, the Holders
of Securities covered thereby, and, in the case of an Exchange Offer
Registration Statement, any Exchanging Dealer that has provided in
writing to the Company a telephone or facsimile number and address for
notices, and, if requested by the Initial Purchaser or any such Holder or
Exchanging Dealer, confirm such advice in writing:
(i) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
(ii) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the
Securities included therein for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose; and
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(iii) of the happening of any event that requires the
making of any changes in the Registration Statement or the
Prospectus so that, as of such date, the Registration Statement or
the Prospectus does not include an untrue statement of a material
fact or omit to state a material fact necessary to make the
statements therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading (which
advice shall be accompanied by an instruction to suspend the use
of the Prospectus until the requisite changes have been made).
(d) The Company shall use its best efforts to obtain the
withdrawal of any order suspending the effectiveness of any Registration
Statement at the earliest possible time.
(e) The Company shall furnish to each Holder of Securities
covered by any Shelf Registration Statement that so requests, without
charge, at least one copy of such Shelf Registration Statement and any
post-effective amendment thereto, including financial statements and
schedules, and, if the Holder so requests in writing, all exhibits
thereto.
(f) The Company shall, during the Shelf Registration Period,
deliver to each Holder of Securities covered by any Shelf Registration
Statement, without charge, as many copies of the Prospectus (including
each preliminary Prospectus) included in such Shelf Registration
Statement and any amendment or supplement thereto as such Holder may
reasonably request; and the Company consents to the use of the Prospectus
or any amendment or supplement thereto by each of the selling Holders of
Securities in connection with the offering and sale of the Securities
covered by the Prospectus or any amendment or supplement thereto.
(g) The Company shall furnish to each Exchanging Dealer that so
requests, without charge, at least one copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto,
including financial statements and schedules, any documents incorporated
by reference therein and, if the Exchanging Dealer so requests in
writing, all exhibits thereto.
(h) The Company shall, during the Exchange Offer Registration
Period, promptly deliver to each Exchanging Dealer, without charge, as
many copies of the Prospectus included in such Exchange Offer
Registration Statement and any amendment or supplement thereto as such
Exchanging Dealer may reasonably request for delivery by such Exchanging
Dealer in connection with a sale of Exchange Securities received by it
pursuant to the Exchange Offer; and the Company consents to the use of
the Prospectus or any amendment or supplement thereto by any such
Exchanging Dealer, as provided in Section 2(e) above.
(i) Each Holder of Securities and each Exchange Dealer agrees
by its acquisition of such Securities or Exchange Securities to be sold
by such Exchange Dealer, as the case may be, that, upon actual receipt of
any notice from the Company of the happening of any event of the kind
described in paragraph (c)(2)(i), (c)(2)(ii), or (c)(2)(iii) of this
Section 4, such Holder will forthwith
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discontinue disposition of such Securities covered by such Registration
Statement or Prospectus or Exchange Securities to be sold by such
Holder or Exchange Dealer, as the case may be, until such Holder's or
Exchange Dealer's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 4(l) hereof, or until it is advised
in writing by the Company that the use of the applicable Prospectus
may be resumed, and has received copies of any amendments or
supplements thereto. In the event that the Company shall give any
such notice, the Exchange Offer Registration Period shall be extended
by the number of days during such periods from and including the date
of the giving of such notice to and including the date when each
seller of the Exchange Securities covered by such Registration
Statement or Exchange Securities to be sold by such Exchange Dealer,
as the case may be, shall have received (x) the copies of the
supplemented or amended Prospectus contemplated by Section 4(l) hereof
or (y) the advice in writing.
(j) Prior to the Exchange Offer or any other offering of
Securities pursuant to any Registration Statement, the Company shall
register or qualify or cooperate with the Holders of Securities included
therein and their respective counsel in connection with the registration
or qualification of such Securities for offer and sale under the
securities or blue sky laws of such states as any such Holders reasonably
request in writing and do any and all other acts or things necessary or
advisable to enable the offer and sale in such states of the Securities
covered by such Registration Statement; PROVIDED, HOWEVER, that the
Company will not be required to qualify as a foreign corporation or as a
dealer in securities in any jurisdiction in which it is not then so
qualified, to file any general consent to service of process or to take
any action that would subject it to general service of process in any
such jurisdiction where it is not then so subject or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is
not otherwise so subject.
(k) The Company shall cooperate with the Holders to facilitate
the timely preparation and delivery of certificates representing
Securities to be sold pursuant to any Registration Statement free of any
restrictive legends and in denominations of $1,000 or an integral
multiple thereof and registered in such names as Holders may request
prior to sales of Securities pursuant to such Registration Statement.
(l) Upon the occurrence of any event contemplated by paragraph
(c)(2)(iii) of this Section 4, the Company shall promptly prepare and
file a post-effective amendment to any Registration Statement or an
amendment or supplement to the related Prospectus or any other required
document so that, as thereafter delivered to purchasers of the Securities
included therein, the Prospectus will not include an untrue statement of
a material fact or omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading and, in the case of a Shelf Registration Statement,
notify the Holders to suspend use of the Prospectus as promptly as
practicable after the occurrence of such an event. Notwithstanding
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the foregoing, the Company shall not be required to amend or supplement
a Shelf Registration Statement, any related Prospectus or any document
incorporated therein by reference, for a period not to exceed an
aggregate of 30 days in any calendar year, if the Company determines in
its good faith judgment that the disclosure of such event at such time
would have a material adverse effect on the business, operations, or
prospects of the Company or the disclosure otherwise related to a pending
material business transaction that has not yet been publicly disclosed.
(m) Not later than the effective date of any such Registration
Statement hereunder, the Company shall provide a CUSIP number for the
Securities or Exchange Securities, as the case may be, registered under
such Registration Statement, and provide the Trustee with certificates
for such Securities or Exchange Securities, in a form eligible for
deposit with The Depository Trust Company.
(n) The Company shall use its best efforts to comply with all
applicable rules and regulations of the Commission and shall make
generally available to its security holders as soon as practicable after
the effective date of the applicable Registration Statement an earnings
statement meeting the requirements of Rule 158 under the Securities Act.
(o) The Company may require each Holder of Securities to be
sold pursuant to any Shelf Registration Statement to furnish to the
Company such information regarding the Holder and the distribution of
such Securities as the Company may from time to time reasonably require
for inclusion in such Registration Statement.
(p) The Company shall, if requested, promptly incorporate in a
Prospectus supplement or post-effective amendment to a Shelf Registration
Statement, such information as the Managing Underwriters, if any, and
Majority Holders reasonably agree should be included therein, and shall
make all required filings of such Prospectus supplement or post-effective
amendment promptly upon notification of the matters to be incorporated in
such Prospectus supplement or post-effective amendment.
(q) In the case of any Shelf Registration Statement, the
Company shall enter into such agreements (including underwriting
agreements) and take all other appropriate actions in order to expedite
or to facilitate the registration or the disposition of any Securities
included therein, and in connection therewith, if an underwriting
agreement is entered into, cause the same to contain indemnification
provisions and procedures no less favorable than those set forth in
Section 6 (or such other provisions and procedures acceptable to the
Majority Holders and the Managing Underwriters, if any) with respect to
all parties to be indemnified pursuant to Section 6.
(r) In the case of any Shelf Registration Statement, the
Company shall:
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(i) make reasonably available for inspection by the
Holders of Securities to be registered thereunder, any underwriter
participating in any disposition pursuant to such Shelf
Registration Statement, and any attorney, accountant or other
agent retained by the Holders or any such underwriter all relevant
financial and other records, pertinent corporate documents and
properties of the Company and any of its subsidiaries;
(ii) cause the Company's officers, directors and
employees to supply all relevant information reasonably requested
by the Holders or any such underwriter, attorney, accountant or
agent in connection with any such Registration Statement as is
customary for similar due diligence examinations and make such
representatives of the Company as shall be reasonably requested by
the Initial Purchaser or Managing Underwriters, if any, available
for discussion of any such Registration Statement; PROVIDED,
HOWEVER, that any non-public information that is designated in
writing by the Company, in good faith, as confidential at the time
of delivery of such information shall be kept confidential by the
Holders or any such underwriter, attorney, accountant or agent,
unless such disclosure is made in connection with a court
proceeding or required by law, or such information becomes
available to the public generally or through a third party without
an accompanying obligation of confidentiality other than as a
result of a disclosure of such information by any such Holder,
underwriter, attorney, accountant or agent;
(iii) make such representations and warranties to the
Holders of Securities registered thereunder and the underwriters,
if any, in form, substance and scope as are customarily made by
issuers to underwriters in similar underwritten offerings as may
be reasonably requested by them;
(iv) obtain opinions of counsel to the Company and
updates thereof (which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to the Managing
Underwriters, if any) addressed to each selling Holder and the
underwriters, if any, covering such matters as are customarily
covered in opinions requested in similar underwritten offerings
and such other matters as may be reasonably requested by such
Holders and underwriters;
(v) obtain "cold comfort" letters and updates thereof
from the independent certified public accountants of the Company
(and, if necessary, any other independent certified public
accountants of any subsidiary of the Company or of any business
acquired by the Company for which financial statements and
financial data are, or are required to be, included in the
Registration Statement), addressed to the underwriters, if any,
and use reasonable efforts to have such letter addressed to the
selling Holders of Securities registered thereunder (to the extent
consistent with Statement on Auditing Standards No. 72 of the
American Institute of Certified Public Accountants (AICPA) ("SAS
72")), in customary form
13
and covering matters of the type customarily covered in "cold
comfort" letters in connection with similar underwritten
offerings, or if the provision of such "cold comfort" letters
is not permitted by SAS 72 or if requested by the Initial
Purchaser or its counsel in lieu of a "cold comfort" letter, an
agreed-upon procedures letter under Statement on Auditing
Standards No. 75 of the AICPA, covering matters requested by
the Initial Purchaser or its counsel; and
(vi) deliver such documents and certificates as may be
reasonably requested by the Majority Holders and the Managing
Underwriters, if any, and customarily delivered in similar
offerings, including those to evidence compliance with Section
4(l) and with any conditions contained in the underwriting
agreement or other agreement entered into by the Company.
The foregoing actions set forth in clauses (iii), (iv), (v) and
(vi) of this Section 4(r) shall be performed at (A) the effectiveness of
such Shelf Registration Statement and each post-effective amendment
thereto and (B) each closing under any underwriting or similar agreement
as and to the extent required thereunder.
(s) The Company shall, in the case of a Shelf Registration, use
their best efforts to cause all Securities to be listed on any securities
exchange or any automated quotation system on which similar securities
issued by the Company are then listed if requested by the Majority
Holders, to the extent such Securities satisfy applicable listing
requirements.
5. REGISTRATION EXPENSES; REMEDIES.
(a) The Company shall bear all expenses incurred in connection
with the performance of its obligations under Sections 2, 3 and 4 hereof,
including without limitation: (i) all Commission, stock exchange or
National Association of Securities Dealers, Inc. registration and filing
fees, (ii) all fees and expenses incurred in connection with compliance
with state securities or blue sky laws (including reasonable fees and
disbursements of counsel for any underwriters or Holders in connection
with blue sky qualification of any of the Exchange Securities or
Securities), (iii) all expenses of any persons in preparing or assisting
in preparing, word processing, printing and distributing any Registration
Statement, any Prospectus, any amendments or supplements thereto, any
underwriting agreements, securities sales agreements and other documents
relating to the performance of and compliance with this Agreement,
(iv) all fees relating to the filing of the Certificate of Designation
with the Secretary of State of Oklahoma, (v) the fees and disbursements
of the Transfer Agent and its counsel, (vi) the fees and disbursements of
counsel for the Company and, in the case of a Shelf Registration
Statement, the fees and disbursements of one counsel for the Holders
(which counsel shall be selected by the Majority Holders and which
counsel may also be counsel for the Initial Purchaser) and in the case
of any Exchange Offer Registration Statement, the fees and expenses of
counsel to
14
the Initial Purchaser acting in connection therewith and (vii) the
fees and disbursements of the independent public accountants of the
Company and Sygnet Wireless, Inc., including the expenses of any
special audits or "cold comfort" letters required by or incident to
such performance and compliance, but excluding fees and expenses of
counsel to the underwriters (other than fees and expenses set forth in
clause (ii) above) or the Holders and underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or
disposition of Securities by a Holder.
(b) The Securities provide that if the Exchange Offer is not
consummated on or prior to the 180th calendar day following the Closing
Date or a Shelf Registration Statement is not declared effective when
required, the annual dividend rate on the Securities will increase by
0.5% per annum until the consummation of the Exchange Offer or the
effectiveness of a Shelf Registration Statement, as the case may be.
(c) Without limiting the remedies available to the Initial
Purchaser and the Holders, the Company acknowledges that any failure by
the Company to comply with its obligations under Sections 2 and 3 hereof
may result in material irreparable injury to the Initial Purchaser or the
Holders for which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely and that, in the
event of any such failure, the Initial Purchaser or any Holder may obtain
such relief as may be required to specifically enforce the Company's
obligations under Sections 2 and 3 hereof.
6. INDEMNIFICATION AND CONTRIBUTION.
(a) In connection with any Registration Statement, the Company
agrees to indemnify and hold harmless each Holder of Securities covered
thereby (including the Initial Purchaser and, with respect to any
Prospectus delivery as contemplated by Sections 2(e) and 4(h) hereof,
each Exchanging Dealer) the directors, officers, employees and agents of
such Holder and each person who controls such Holder within the meaning
of either the Securities Act or the Exchange Act, against any and all
losses, claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the Securities Act, the Exchange
Act or other federal or state statutory law or regulation, at common law
or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in
such Registration Statement as originally filed or in any amendment
thereof, or in any preliminary Prospectus or Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein
(in the case of the Prospectus, in light of the circumstances under which
they were made) not misleading, and agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending
any such loss, claim, damage or
15
liability (or action in respect thereof); PROVIDED, HOWEVER, that the
Company will not be liable in any case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any
such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with
written information furnished to the Company by or on behalf of any
such indemnified party specifically for inclusion therein; PROVIDED
FURTHER, HOWEVER, that the Company will not be liable in any case with
respect to any untrue statement or omission or alleged untrue
statement or omission made in any preliminary Prospectus or
Prospectus, or in any amendment thereof or supplement thereto to the
extent that any such loss, claim, damage or liability (or action in
respect thereof) resulted from the fact that any indemnified party
sold Securities or Exchange Securities to a person to whom there was
not sent or given, at or prior to the written confirmation of such
sale, a copy of the Prospectus as then amended or supplemented, if the
Company had previously complied with the provisions of Section 4(c)(2)
and 4(f) or 4(h) hereof and if the untrue statement contained in or
omission from such preliminary Prospectus or Prospectus was corrected
in the Prospectus as then amended or supplemented. This indemnity
agreement will be in addition to any liability that the Company may
otherwise have.
The Company also agrees to indemnify or contribute to Losses of,
as provided in Section 6(d) hereof, any underwriters of Securities
registered under a Shelf Registration Statement, their employees,
officers, directors and agents and each person who controls such
underwriters on the same basis as that of the indemnification of the
Initial Purchaser and the selling Holders provided in this Section 6(a)
and shall, if requested by any Holder, enter into an underwriting
agreement reflecting such agreement, as provided in Section 4(q) hereof.
(b) Each Holder of Securities covered by a Registration
Statement (including the Initial Purchaser and, with respect to any
Prospectus delivery as contemplated by Sections 2(e) and 4(h) hereof,
each Exchanging Dealer) severally agrees to indemnify and hold harmless
(i) the Company, (ii) each of the directors of the Company, (iii) each of
the officers of the Company who signs such Registration Statement and
(iv) each Person who controls the Company within the meaning of either
the Securities Act or the Exchange Act to the same extent as the
foregoing indemnity from the Company to each such Holder, but only with
respect to written information furnished to the Company by or on behalf
of such Holder specifically for inclusion in the documents referred to in
the foregoing indemnity. This indemnity agreement will be in addition to
any liability that any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 6, notify the indemnifying party in
writing of the commencement thereof; but the failure so to notify the
indemnifying party (i) will not relieve the indemnifying party from
liability under paragraph (a) or (b) above unless and to
16
the extent it did not otherwise learn of such action and such failure
results in the forfeiture by the indemnifying party of substantial
rights and defenses, and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other
than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel
(including local counsel) of the indemnifying party's choice at the
indemnifying party's expense to represent the indemnified party in any
action for which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for the fees
and expenses of any separate counsel retained by the indemnified party
or parties except as set forth below); PROVIDED, HOWEVER, that such
counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel
to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local
counsel), and the indemnifying party shall bear the reasonable fees,
costs and expenses of such separate counsel (and local counsel) if (i)
the use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of,
any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or
other indemnified parties that are different from or additional to
those available to the indemnifying party, (iii) the indemnifying
party shall not have employed counsel satisfactory to the indemnified
party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. It is
understood that the indemnifying party shall not, in connection with
any proceeding or related proceedings in the same jurisdiction, be
liable for the fees and expenses of more than one separate firm (in
addition to any local counsel) for all such indemnified parties and
that all such fees and expenses shall be reimbursed as they are
incurred. An indemnifying party will not, without the prior written
consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification
or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or
action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 6 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, then each applicable
indemnifying party, in lieu of indemnifying such indemnified party, shall
have a joint and several obligation to contribute to the aggregate
losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or
defending the same) (collectively "Losses") to which such indemnified
party may be subject in such proportion as is appropriate to reflect the
relative benefits
17
received by such indemnifying party, on the one hand, and such
indemnified party, on the other hand, from the Initial Placement and
the Registration Statement that resulted in such Losses; PROVIDED,
HOWEVER, that in no case shall the Initial Purchaser or any subsequent
Holder of any Security or Exchange Security be responsible, in the
aggregate, for any amount in excess of the purchase discount or
commission applicable to such Security, or in the case of an Exchange
Note, applicable to the Security that was exchangeable into such
Exchange Security, as set forth on the cover page of the Final
Memorandum, nor shall any underwriter be responsible for any amount in
excess of the underwriting discount or commission applicable to the
Securities purchased by such underwriter under the Registration
Statement that resulted in such Losses. If the allocation provided by
the immediately preceding sentence is unavailable for any reason, the
indemnifying party and the indemnified party shall contribute in such
proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of such indemnifying party, on
the one hand, and such indemnified party, on the other hand, in
connection with the statements or omissions that resulted in such
Losses as well as any other relevant equitable considerations.
Benefits received by the Company shall be deemed to be equal to the
total net proceeds from the Initial Placement (before deducting
expenses) as set forth on the cover page of the Final Memorandum.
Benefits received by the Initial Purchaser shall be deemed to be equal
to the total purchase discounts and commissions as set forth on the
cover page of the Final Memorandum, and benefits received by any other
Holders shall be deemed to be equal to the value of receiving
Securities or Exchange Securities, as applicable, registered under the
Securities Act. Benefits received by any underwriter shall be deemed
to be equal to the total underwriting discounts and commissions, as
set forth on the cover page of the Prospectus forming a part of the
Registration Statement that resulted in such Losses. Relative fault
shall be determined by reference to whether any alleged untrue
statement or omission relates to infrmation provided by the
indemnifying party, on the one hand, or by the indemnified party, on
the other hand. The parties agree that it would not be just and
equitable if contribution were determined by pro rata allocation or
any other method of allocation that did not take account of the
equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), 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. For purposes of
this Section 6, each person who controls a Holder within the meaning
of either the Securities Act or the Exchange Act and each director,
officer, employee and agent of such Holder shall have the same rights
to contribution as such Holder, and each person who controls the
Company within the meaning of either the Securities Act or the
Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall have the
same rights to contribution as the Company, subject in each case to
the applicable terms and conditions of this paragraph (d).
(e) The provisions of this Section 6 will remain in full force
and effect,
18
regardless of any investigation made by or on behalf of any Holder or
the Company or any of the officers, directors or controlling persons
referred to in Section 6 hereof, and will survive the sale by a Holder
of Securities covered by a Registration Statement.
7. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENT. The Company has not, as of the
date hereof, entered into, nor shall it, on or after the date hereof,
enter into, any agreement that conflicts with the rights granted to the
Holders herein or otherwise conflicts with the provisions hereof.
(b) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company has obtained the
written consent of the Holders of at least a majority of the then
outstanding aggregate liquidation value of Securities (or, after the
consummation of any Exchange Offer in accordance with Section 2 hereof,
of Exchange Securities); PROVIDED that, with respect to any matter that
directly or indirectly affects the rights of the Initial Purchaser
hereunder, the Company shall obtain the written consent of the Initial
Purchaser. Notwithstanding the foregoing (except the foregoing proviso),
a waiver or consent to departure from the provisions hereof with respect
to a matter that relates exclusively to the rights of Holders whose
Securities are being sold pursuant to a Registration Statement and that
does not directly or indirectly affect the rights of other Holders may be
given by the Majority Holders, determined on the basis of Securities
being sold rather than registered under such Registration Statement.
(c) NOTICES. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery,
first-class mail, telex, telecopier, or air courier guaranteeing
overnight delivery:
(i) if to a Holder, at the most current address given by
such Holder to the Company in accordance with the provisions of
this Section 7(c), which address initially is, with respect to
each Holder, the address of such Holder maintained by the Transfer
Agent, with a copy in like manner to Xxxxxx Brothers Inc.;
(ii) if to the Initial Purchaser, at Xxxxxx Brothers
Inc., Three World Financial Center, New York, New York 10285,
Attention: Xxxxxxxx Xxxxxx, with a copy to Weil, Gotshal & Xxxxxx
LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxx X. Xxxxxxx; and
(iii) if to the Company, Xxxxxx Communications
Corporation, 00000 X. Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxx
Xxxx, Xxxxxxxx 00000, Attention: Xxxxx X. Xxxxxxxxxx, with a copy
to McAfee & Xxxx A
19
Professional Corporation, 000 Xxxxx Xxxxxxxx, Xxxxx 0000, Xxxxxxxx
Xxxx, Xxxxxxxx 00000, Attention: Xxxxxxxx X. Xxxx.
All such notices and communications shall be deemed to have been
duly given when received. The Initial Purchaser, on the one hand, or the
Company, on the other, by notice to the other party or parties may
designate additional or different addresses for subsequent notices or
communications.
(d) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including, without the need for an express assignment or any
consent by the Company thereto, subsequent Holders of Securities and/or
Exchange Securities. The Company hereby agrees to extend the benefits of
this Agreement to any Holder of Securities and/or Exchange Securities and
any such Holder may specifically enforce the provisions of this Agreement
as if an original party hereto.
(e) COUNTERPARTS. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same Agreement.
(f) HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(g) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(h) SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any respect
for any reason, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions hereof
shall not be in any way impaired or affected thereby, it being intended
that all of the rights and privileges of the parties shall be enforceable
to the fullest extent permitted by law.
(i) SECURITIES HELD BY THE COMPANY, ETC. Whenever the consent
or approval of Holders of a specified percentage of the aggregate
liquidation value of Securities or Exchange Securities is required
hereunder, Securities or Exchange Securities, as applicable, held by the
Company or its Affiliates (other than subsequent Holders of Securities or
Exchange Securities if such subsequent Holders are deemed to be
Affiliates solely by reason of their holdings of such Securities or
Exchange Securities) shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage.
Please confirm that the foregoing correctly sets forth the
agreement between the Company and you.
20
Very truly yours,
XXXXXX COMMUNICATIONS CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chief Executive Officer
The foregoing Agreement is hereby
accepted as of the date first above written.
XXXXXX BROTHERS INC.
By: /s/ X. Xxxxx Xxxxxxx
-------------------------------
Name: X. Xxxxx Xxxxxxx
Title:
21
ANNEX A
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver
a prospectus in connection with any resale of such Exchange Securities. The
Letter of Transmittal states that by so acknowledging and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act. This Prospectus, as
it may be amended or supplemented from time to time, may be used by a
broker-dealer in connection with resales of Exchange Securities received in
exchange for Securities where such Securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities. The Company has agreed that, starting on the Expiration Date (as
defined herein) and ending on the close of business one year after the
Expiration Date, it will make this Prospectus available to any broker-dealer
for use in connection with any such resale. See "Plan of Distribution."
ANNEX B
Each broker-dealer that receives Exchange Securities for its own
account in exchange for Securities, where such Securities were acquired by
such broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities. See "Plan of Distribution."
ANNEX C
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver
a prospectus in connection with any resale of such Exchange Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be
used by a broker-dealer in connection with resales of Exchange Securities
received in exchange for Securities where such Securities were acquired as a
result of market-making activities or other trading activities. The Company
has agreed that, starting on the Expiration Date and ending on the close of
business one year after the Expiration Date, it will make this Prospectus, as
amended or supplemented, available to any broker-dealer for use in connection
with any such resale. In addition, until such date all dealers effecting
transactions in the Exchange Securities may be required to deliver a
prospectus.
ANNEX D
If the undersigned is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Securities, it represents that
the Securities to be exchanged for the Exchange Securities were acquired by
it as a result of market-making activities or other trading activities and
acknowledges that it will deliver a prospectus in connection with any resale
of such Exchange Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
