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EXHIBIT 10.15
[FORM OF REGISTRATION RIGHTS AGREEMENT]
PTC INTERNATIONAL FINANCE II S.A.
* -- % SENIOR SUBORDINATED GUARANTEED NOTES DUE 2009
REGISTRATION RIGHTS AGREEMENT
November 23, 1999
Xxxxxxx Xxxxx International
Xxxxxxxxx Xxxxx
00 Xxxxxxxxx Xxxxxx
Xxxxxx
XX0X 0XX
Salomon Brothers International Limited
Victoria Plaza
000 Xxxxxxxxxx Xxxxxx Xxxx
Xxxxxx
XX0X 0XX
Xxxxxxx
Ladies and Gentlemen:
PTC International Finance II S.A., a Luxembourg corporation with limited
liability (the "Issuer"), proposes to issue and sell to you (the "Initial
Purchasers"), upon the terms set forth in a purchase agreement of even date
herewith (the "Purchase Agreement") among the Initial Purchasers, the Issuer,
PTC International Finance (Holding) B.V. ("Holdings") and Polska Telefonia
Cyfrowa Sp. z o.o. (the "Company"), its * -- % Senior Subordinated Guaranteed
Notes due 2009 (the "Securities"), unconditionally guaranteed by the Company
(the "Initial Placement"). As an inducement to the Initial Purchasers to enter
into the Purchase Agreement and in satisfaction of a condition to your
obligations thereunder, the Issuer and the Company agree with you, (i) for your
benefit and the benefit of any other Initial Purchasers and (ii) for the benefit
of the holders from time to time of the Transfer Restricted Securities (as
defined herein) (including, if and for so long as an Initial Purchaser holds
Transfer Restricted Securities, such Initial Purchaser) (each of the foregoing
holders a "Holder" and together the "Holders"), as follows:
1. DEFINITIONS. Capitalized terms used herein without definition shall
have their respective meanings set forth in the Purchase Agreement. As used in
this Agreement, the following capitalized defined terms shall have the following
meanings:
"Act "means the U.S. Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.
"Affiliate" of any specified person means any other person which, directly
or indirectly, is in control of, is controlled by, or is under common control
with, such specified person. For purposes of this definition, control of a
person means the power, direct or indirect, to direct or cause the direction of
the management and policies of such person whether by contract or otherwise; and
the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Commission" means the U.S. Securities and Exchange Commission.
"Designated Counsel" has the meaning set forth in Section 5 hereof.
"Exchange Act" means the U.S. Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder.
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"Exchange Offer Registration Period" means the 180-day period following the
consummation of the Registered Exchange Offer, exclusive of any period during
which any stop order shall be in effect suspending the effectiveness of the
Exchange Offer Registration Statement.
"Exchange Offer Registration Statement" means a registration statement of
the Company on an appropriate form under the Act with respect to the Registered
Exchange Offer, all amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
"Exchanging Dealer" means any Holder (which may include the Initial
Purchasers) which is a broker-dealer, electing to exchange in the Registered
Exchange Offer Securities acquired for its own account as a result of
market-making activities or other trading activities, for New Securities.
"Final Memorandum" has the meaning set forth in the Purchase Agreement.
"Holder" has the meaning set forth in the preamble hereto.
"Indenture" means the Indenture relating to the Securities, dated as of
November -- 1999 and among the Issuer, the Company and State Street Bank and
Trust Company, as trustee, as the same may be amended from time to time in
accordance with the terms thereof.
"Initial Placement" has the meaning set forth in the preamble hereto.
"Initial Purchaser" has the meaning set forth in the preamble hereto.
"Losses" has the meaning set forth in Section 6(d) hereof.
"Majority Holders" means the Holders of a majority of the aggregate
principal amount of securities eligible to be registered under a Shelf
Registration Statement pursuant to this Agreement.
"Managing Underwriters" means the investment banker or investment bankers
and manager or managers, appointed by the Majority Holders, that shall
administer an underwritten offering, if any.
"New Securities" means debt securities of the Company identical in all
material respects to the Securities (except that the cash interest and interest
rate step-up provisions and the transfer restrictions will be modified or
eliminated, as appropriate), to be issued under the Indenture.
"Prospectus" means the prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A under the Act), as amended or supplemented
by any prospectus supplement, with respect to the terms of the offering of any
portion of the Securities or the New Securities covered by such Registration
Statement, and all amendments and supplements to the Prospectus, including post-
effective amendments.
"Registered Exchange Offer" means the proposed offer to the Holders to
issue and deliver to such Holders, in exchange for the Securities, a like
principal amount of the New Securities.
"Registration Statement" means any Exchange Offer Registration Statement or
Shelf Registration Statement filed with the Commission that covers any of the
Securities or the New Securities pursuant to the provisions of this Agreement,
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"Securities" has the meaning set forth in the preamble hereto.
"Securities Board" means the Securities Board of The Netherlands
("Stichting Toezicht Effectenverkeer").
"Shelf Registration" means a registration effected pursuant to Section 3
hereof.
"Shelf Registration Period" has the meaning set forth in Section 3(b)
hereof.
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"Shelf Registration Statement" means a "shelf" registration statement of
the Company pursuant to the provisions of Section 3 hereof which covers some or
all of the Securities or New Securities, as applicable, on an appropriate form
under Rule 415 under the Act, or any similar rule that may be adopted by the
Commission, amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"Transfer Restricted Security" means (i) each Security until the date on
which such Security has been exchanged by a person other than a broker-dealer
for a New Security in the Registered Exchange Offer, (ii) each New Security that
is received by a broker-dealer in the Registered Exchange Offer, until the date
on which such New Security is sold to a purchaser, (iii) in the case of a
Security registered on a Shelf Registration Statement, such security until the
date on which such security has been disposed of in accordance with the Shelf
Registration Statement; provided, however, that in the case of each of (i), (ii)
and (iii) above, such Security or New Security shall cease to be a Transfer
Restricted Security on the date (if such date occurs prior to the event referred
to in (i), (ii) and (iii) above) on which such security is sold in reliance on
Rule 144 under the Act or is saleable pursuant to Rule 144(k) under the Act.
"Trustee" means the trustee with respect to the Securities under the
Indenture.
"Underwriter" means any underwriter of Securities in connection with an
offering thereof under a Shelf Registration Statement.
2. REGISTERED EXCHANGE OFFER; RESALES OF NEW SECURITIES BY EXCHANGING
DEALERS; PRIVATE EXCHANGE.
(a) The Issuer and the Company shall prepare and, not later than 90 days
following the original issuance date of the Securities, shall file
with the Commission the Exchange Offer Registration Statement with
respect to the Registered Exchange Offer. The Issuer and the Company
shall take all reasonable steps to cause the Exchange Offer
Registration Statement to become effective under the Act within 150
days after the date of original issuance of the Securities. The
Issuer and the Company shall take all reasonable steps to consummate
the Registered Exchange Offer within 180 days after the date of
original issuance of the Securities.
(b) Upon the effectiveness of the Exchange Offer Registration Statement,
the Issuer and the Company shall promptly commence the Registered
Exchange Offer, it being the objective of such Registered Exchange
Offer to enable each Holder electing to exchange Securities for New
Securities (assuming that such Holder is not an affiliate of the
Company within the meaning of the Act, acquires the New Securities in
the ordinary course of such Holder's business and has no arrangements
with any person to participate in the distribution of the New
Securities) to trade such New Securities from and after their receipt
without any limitations or restrictions under the Act and without
material restrictions under the securities laws of a substantial
proportion of the several states of the United States.
(c) In connection with the Registered Exchange Offer, the Issuer and the
Company shall:
(i) mail to each Holder a copy of the Prospectus forming part of the
Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) keep the Registered Exchange Offer open for not less than 30 days
after the date notice thereof is mailed to the Holders (or longer
if required by applicable law);
(iii) utilize the services of a depositary for the Registered Exchange
Offer with an address in the Borough of Manhattan, The City of
New York; and
(iv) comply in all respects with all laws of the United States,
Luxembourg, The Netherlands and Poland applicable to the
Registered Exchange Offer.
(d) As soon as practicable after the close of the Registered Exchange
Offer, the Issuer shall:
(i) accept for exchange all Securities properly tendered and not
validly withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation all Securities so
accepted for exchange; and
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(iii) cause the Trustee promptly to authenticate and deliver to each
Holder of Securities, New Securities equal in principal amount to
the Securities of such Holder so accepted for exchange.
(e) The Initial Purchasers, the Issuer and the Company acknowledge that,
pursuant to interpretations by the Commission's staff of Section 5 of
the Act, and in the absence of an applicable exemption therefrom,
each Exchanging Dealer is required to deliver a Prospectus in
connection with a sale of any New Securities received by such
Exchanging Dealer pursuant to the Registered Exchange Offer in
exchange for Securities acquired for its own account as a result of
market-making activities or other trading activities. Accordingly,
the Issuer and the Company shall:
(i) include the information set forth in Annex A hereto on the cover
of the Exchange Offer Registration Statement, in Annex B hereto in
the forepart of the Exchange Offer Registration Statement in a
section setting forth details of the Exchange Offer, and in Annex
C hereto in the underwriting or plan of distribution section of
the Prospectus forming a part of the Exchange Offer Registration
Statement, and include the information set forth in Annex D hereto
in the Letter of Transmittal delivered pursuant to the Registered
Exchange Offer; and
(ii) take all reasonable steps to keep the Exchange Offer Registration
Statement continuously effective under the Act during the
Exchange Offer Registration Period for delivery of the Prospectus
contained therein by Exchanging Dealers in connection with sales
of New Securities received pursuant to the Registered Exchange
Offer, as contemplated by Section 4(h) below.
The Issuer and the Company shall be deemed not to have taken all
reasonable steps to keep the Exchange Offer Registration Statement
effective during the Exchange Offer Registration Period if they
voluntarily take any action that would result in Exchanging Dealers
holding New Securities received in the Registered Exchange Offer being
unable to offer and sell such securities during that period, unless (x)
such action is required by applicable law, or (y) such action is taken
by the Issuer or the Company in good faith and for valid business
reasons (not including avoidance of the Issuer's or the Company's
obligations hereunder), including the acquisition or divestiture of
assets, so long as the Issuer and the Company promptly thereafter comply
with the requirements of Section 4(k), if applicable.
(f) In the event that any Initial Purchaser determines that it is not
eligible to participate in the Registered Exchange Offer with respect
to the exchange of Securities constituting any portion of an unsold
allotment, at the request of such Initial Purchaser, the Issuer and
the Company shall as soon as possible issue and deliver to such
Initial Purchaser, for distribution pursuant to a Shelf Registration
Statement as contemplated by Section 3 hereof, or to the party
purchasing New Securities registered under such Shelf Registration
Statement, in exchange for such Securities, a like principal amount
of New Securities. The Issuer and the Company shall seek to cause the
CUSIP Service Bureau to issue the same CUSIP number for such New
Securities as for New Securities issued pursuant to the Registered
Exchange Offer.
(g) The Issuer and the Company shall submit the Exchange Offer
Registration Statement or a Shelf Registration Statement, as the case
may be, to the Securities Board not later than 90 days following the
date of original issuance of the Securities and shall take all
reasonable steps to cause the Securities Board to grant a
dispensation with respect thereto so that the transfer restrictions
imposed by Netherlands law shall cease to apply within 150 days after
the date of original issuance of the Securities.
3. SHELF REGISTRATION. If, (i) because of any change in law or applicable
interpretations thereof by the Commission's staff, the Issuer determines upon
advice of outside counsel that it is not permitted to effect the Registered
Exchange Offer as contemplated by Section 2 hereof, or (ii) if for any other
reason the Registered Exchange Offer is not consummated within 180 days after
the date of original issuance of the Securities, or (iii) if any Holder (other
than an Initial Purchaser) is not eligible under U.S. state or federal
securities laws to participate in the Registered Exchange Offer (other than
because such Holder is unable or unwilling to make the representation set forth
in Rider B to Annex D hereto) or (iv) any Initial Purchaser that holds any
Securities
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constituting any portion of an unsold allotment or otherwise acquired by such
Initial Purchaser in connection with the Initial Placement (or any New
Securities issued in exchange therefor in the Registered Exchange Offer to such
Initial Purchaser) so requests (it being understood that, for purposes of this
Section 3, (x) the requirement that an Initial Purchaser deliver a Prospectus
containing the information required by Items 507 and/or 508 of Regulation S-K
under the Act in connection with sales of New Securities acquired in exchange
for such Securities shall result in such New Securities being not "freely
tradeable" but (y) the requirement that an Exchanging Dealer deliver a
Prospectus in connection with sales of New Securities acquired in the Registered
Exchange Offer in exchange for Securities acquired as a result of market-making
activities or other trading activities shall not result in such New Securities
being not "freely tradeable"), the following provisions shall apply:
(a) The Issuer and the Company shall as promptly as practicable (but in
no event more than 30 days after so required or requested pursuant to
this Section 3), file with the Commission and thereafter shall take
all reasonable steps to cause to be declared effective under the Act
by the 180th day after the original issuance of the Securities a
Shelf Registration Statement relating to the offer and sale of the
Securities or the New Securities, as applicable, by the Holders from
time to time in accordance with the methods of distribution elected
by such Holders and set forth in such Shelf Registration Statement;
provided, that with respect to New Securities received by an Initial
Purchaser in exchange for Securities constituting any portion of an
unsold allotment, the Issuer and 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 their obligations under
this paragraph (a) with respect thereto, and any such Exchange Offer
Registration Statement, as so amended, shall be referred to herein
as, and governed by the provisions herein applicable to, a Shelf
Registration Statement; provided, further, that the Company and the
Issuer shall not be required to file more than one Shelf Registration
Statement pursuant to this Agreement.
(b) The Issuer and the Company shall take all reasonable steps to keep
the Shelf Registration Statement continuously effective in order to
permit the Prospectus forming part thereof to be usable by Holders
for a period from the date of its effectiveness until (i) two years
from the Issue Date, (ii) if such Shelf Registration Statement is
filed at the request of an Initial Purchaser, one year from the Issue
Date, or (iii) if applicable, such shorter period that will terminate
when all the Securities or New 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 Issuer and the Company shall be
deemed not to have taken all reasonable steps to keep the Shelf
Registration Statement effective during the requisite period if
either of them voluntarily takes any action that would result in
Holders of securities covered thereby not being able to offer and
sell such securities during that period, unless (i) such action is
required by applicable law, or (ii) such action is taken by the
Company in good faith and for valid business reasons (not including
avoidance of the Issuer's or the Company's obligations hereunder),
including the acquisition or divestiture of assets, so long as the
Issuer and the Company promptly thereafter comply with the
requirements of Section 4(k) 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 Issuer and the Company shall furnish to you, prior to the filing
thereof with the Commission, a copy of any Shelf Registration
Statement and any Exchange Offer Registration Statement, and each
amendment thereof and each amendment or supplement, if any, to the
Prospectus included therein and shall use its reasonable best efforts
to reflect in each such document, when so filed with the Commission,
such comments as you reasonably and timely may propose.
(b) The Issuer and the Company shall ensure that (i) any Registration
Statement and any amendment thereto and any Prospectus forming part
thereof and any amendment or supplement thereto complies in all
material respects with the Act and the rules and regulations
thereunder, (ii) any Registration
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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, and 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,
in the light of the circumstances under which they were made, not
misleading.
(c)(1) The Issuer and the Company shall advise you and, in the case of a
Shelf Registration Statement, the Holders of securities covered
thereby, and, if requested by you 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) The Issuer and the Company shall advise you and, in the case of a
Shelf Registration Statement, the Holders of securities covered
thereby, and, in the case of an Exchange Offer Registration
Statement, any Exchanging Dealer which has provided in writing to the
Issuer or the Company a telephone or facsimile number and address for
notices, and, if requested by you 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 Issuer or the Company of any notification
with respect to the suspension of the qualification of the
securities included therein for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose; and
(iii) of the happening of any event that requires the making of any
changes in the Registration Statement or the Prospectus so that,
as of such date, the statements therein are not misleading and do
not omit to state a material fact required to be stated therein
or necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they were
made) not misleading (which advice shall be accompanied by an
instruction to suspend the use of the Prospectus until the
requisite changes have been made).
(d) The Issuer and the Company shall take all reasonable steps to obtain
the withdrawal of any order suspending the effectiveness of any
Registration Statement at the earliest possible time.
(e) The Issuer and the Company shall furnish to each Holder of securities
included within the coverage of any Shelf Registration Statement,
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 (including those incorporated by reference).
(f) The Issuer and the Company shall, during the applicable Shelf
Registration Period, deliver to each Holder of Securities registered
pursuant to any Shelf Registration Statement, without charge, as many
copies of the Prospectus (including preliminary Prospectus) included
in such Shelf Registration Statement and any amendment or supplement
thereto as such Holder may reasonably request; and each of the Issuer
and the Company consents to the use of such Prospectus or any
amendment or supplement thereto by each of the Holders of Transfer
Restricted Securities in connection with the offering and sale of the
Securities covered by such Prospectus or any amendment or supplement
thereto.
(g) The Issuer and the Company shall furnish to each Exchanging Dealer
which so requests, without charge, at least one copy of the Exchange
Offer Registration Statement and any post-effective amendment
thereto, including financial statements and schedules, any documents
incorporated by
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reference therein, and, if the Exchanging Dealer so requests in writing,
all exhibits (including those incorporated by reference).
(h) The Issuer and the Company shall, during the Exchange Offer
Registration Period, promptly deliver to each Exchanging Dealer,
without charge, as many copies of the Prospectus included in such
Exchange Offer Registration Statement and any amendment or supplement
thereto as such Exchanging Dealer may reasonably request for delivery
by such Exchanging Dealer in connection with a sale of New Securities
received by it pursuant to the Registered Exchange Offer; and each of
the Issuer and the Company consents to the use of such Prospectus or
any amendment or supplement thereto by any such Exchanging Dealer in
connection with the offering and sale of the New Securities covered
by such Prospectus or any amendment or supplement thereto, as
aforesaid.
(i) The Issuer and the Company shall register or qualify or cooperate
with the Exchanging Dealers that are holders of New Securities
covered by the Prospectus contemplated by Section 2(g) hereof and
with the Holders of Securities registered on any Shelf Registration
Statement and their Designated Counsel in connection with the
registration or qualification of such securities for offer and sale
under the securities or blue sky laws of such jurisdictions in the
United States as any such Holders reasonably request in writing and
do any and all other acts or things necessary or advisable to enable
the offer and sale in such jurisdictions of the securities covered by
such Registration Statement or Prospectus, as the case may be;
provided, however, that neither the Issuer nor the Company will be
required to qualify generally to do business in any jurisdiction
where it is not then so qualified or to take any action which would
subject it to general service of process or to taxation in any such
jurisdiction where it is not then so subject.
(j) The Issuer and the Company shall cooperate with the Holders of
Securities to facilitate the timely preparation and delivery of
certificates representing Securities or New Securities, as the case
may be, to be sold pursuant to any Registration Statement free of any
restrictive legends and in such denominations (subject only to the
provisions of the Indenture regarding minimum denominations) and
registered in such names as Holders may request prior to sales of
securities pursuant to such Registration Statement.
(k) Upon the occurrence of any event contemplated by paragraph
(c)(2)(iii) above, the Issuer and the Company shall promptly prepare
a post-effective amendment to any Registration Statement or an
amendment or supplement to the related Prospectus or file any other
required document so that, as thereafter delivered to purchasers of
the Securities or New Securities, as the case may be, included
therein, the Prospectus will not include an untrue statement of a
material fact or omit to state any material fact necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading.
(1) Not later than the effective date of any such Registration Statement
hereunder, the Issuer and the Company shall provide a CUSIP number
for the Securities or New Securities, as the case may be, registered
under such Registration Statement, and provide the applicable trustee
with printed certificates for such Securities or New Securities, in a
form eligible for deposit with The Depository Trust Company.
(m) The Issuer and the Company shall take all reasonable steps to comply
with all applicable rules and regulations of the Commission and the
Securities Board and shall make generally available to Holders as soon
as practicable after the effective date of the applicable Registration
Statement an earnings statement (which need not be audited) satisfying
the provisions of Section 11(a) under the Act.
(n) The Issuer and the Company shall cause the Indenture to be qualified
under the Trust Indenture Act of 1939, as amended, in a timely
manner.
(o) The Issuer and 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.
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(p) The Issuer and the Company shall promptly incorporate in a Prospectus
supplement or post-effective amendment to a Shelf Registration
Statement, such information as the Managing Underwriters and Majority
Holders agree and reasonably request should be included therein and
shall make all required filings of such Prospectus supplement or
post-effective amendment as soon as notified of the matters to be
incorporated in such Prospectus supplement or post-effective
amendment.
(q) In the case of any Shelf Registration Statement, the Issuer and the
Company shall, if requested by the Majority Holders, enter into such
agreements (including underwriting agreements) and take all other
appropriate actions in order to expedite or facilitate the
registration or the disposition of the Securities, 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 hereof (or such other
provisions and procedures reasonably acceptable to the Majority
Holders and the Managing Underwriters, if any, with respect to all
parties to be indemnified pursuant to Section 6 hereof.
(r) In the case of any Shelf Registration Statement, the Issuer and the
Company shall (i) make reasonably available for inspection by the
Holders of Securities to be registered thereunder who shall certify
to the Company that they have a current intent to sell such
securities pursuant to such Registration Statement, any underwriter
participating in any disposition pursuant to such Registration
Statement, and any attorney, accountant or other agent retained by
the Majority Holders or any such underwriter, all relevant financial
and other records, pertinent corporate documents and properties of
the Company and its subsidiaries; (ii) cause the Issuer's, the
Company's and the Company's subsidiaries' officers, directors and
employees to supply all relevant information reasonably requested by
the Majority Holders or any such underwriter, attorney, accountant or
agent in connection with any such Registration Statement as is
customary for similar due diligence examinations; provided, however,
that any information provided pursuant to clause (i) or clause (ii)
hereof that is designated in writing by the Issuer or the Company, in
good faith, as confidential at the time of delivery of such
information shall be kept confidential by the Holders and any such
underwriter, attorney, accountant or agent (from whom the Company and
the Issuer shall be entitled to receive written confidentiality
undertakings substantially to the same effect as those set forth in
this Section 4(r)), unless such disclosure is required to be made in
connection with a court proceeding pursuant to the subpoena or order
of any court or other governmental agency or body having jurisdiction
over the matter or is required by law (in which case such party shall
promptly and prior to such disclosure notify the Company of such
disclosure requirement and cooperate with the Company and the Issuer
in seeking to stay or limit such disclosure requirement), or such
information becomes available to the public generally or through a
third party without an obligation of confidentiality; (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 primary underwritten offerings and covering matters
including, but not limited to, those set forth in the Purchase
Agreement; (iv) obtain opinions of counsel to the Issuer, Holdings
and 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 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 Issuer and
the Company (and, if necessary, any other independent certified
public accountants of any subsidiary of the Issuer or the Company or
of any business acquired by the Issuer, Holdings or the Company for
which financial statements and financial data are, or are required to
be, included in such Registration Statement), addressed to each
selling Holder of securities registered thereunder and the
underwriters, if any, in form and covering matters of the type
customarily covered in "cold comfort" letters in connection with
primary underwritten offerings; and (vi) deliver such documents and
certificates as may be reasonably requested by the Majority Holders
and the Managing Underwriters, if any, including those to evidence
compliance with Section 4(k) hereof and with any customary conditions
contained in the underwriting agreement or other agreement entered
into by the Issuer, Holdings or
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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 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) In the case of any Exchange Offer Registration Statement, the Issuer
and the Company shall (i) make reasonably available for inspection by
each Exchanging Dealer, and any counsel, accountant or other agent
retained by Exchanging Dealers holding a majority of the aggregate
principal amount of New Securities for which delivery of a Prospectus
as contemplated by Section 2(e) hereof is required, all relevant
financial and other records, pertinent corporate documents and
properties of the Company and its subsidiaries; (ii) cause the
Issuer's, the Company's and the Company's subsidiaries' officers,
directors and employees to supply all relevant information reasonably
requested by such Exchanging Dealers or any such counsel, accountant
or agent, in connection with any such Registration Statement as is
customary for similar due diligence examinations; provided, however,
that any information provided pursuant to clause (i) or clause (ii)
hereof that is designated in writing by the Issuer or the Company, in
good faith, as confidential at the time of delivery of such
information shall be kept confidential by each Exchanging Dealer or
any such counsel, accountant or agent (from whom the Company and the
Issuer shall be entitled to receive written confidentiality
undertakings substantially-to the same effect as those set forth in
this Section 4(s)), 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
obligation of confidentiality; (iii) make such representations and
warranties to such Exchanging Dealers, in form, substance and scope
as are customarily made by issuers to underwriters in primary
underwritten offerings and covering matters including, but not
limited to, those set forth in the Purchase Agreement; (iv) obtain
opinions of counsel to the Issuer, Holdings and the Company and
updates thereof (which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to such Exchanging
Dealers and such counsel), addressed to such Exchanging Dealers,
covering such matters as are customarily covered in opinions
requested in underwritten offerings and such other matters as may be
reasonably requested by such Exchanging Dealers or such counsel; (v)
obtain "cold comfort" letters and updates thereof from the
independent certified public accountants of the Issuer, Holdings and
the Company (and, if necessary, any other independent certified
public accountants of any subsidiary of the Issuer or the Company or
of any business acquired by the Issuer, Holdings or the Company for
which financial statements and financial data are, or are required to
be, included in the Registration Statement), addressed to such
Exchanging Dealers, in customary form and covering matters of the
type customarily covered in "cold comfort" letters in action with
primary underwritten offerings, or if requested by such Exchanging
Dealers or such counsel in lieu of a "cold comfort" letter, an
agreed-upon procedures letter under Statement on Auditing Standards
No. 35, covering matters requested by such Exchanging Dealers or such
counsel; and (vi) deliver such documents and certificates as may be
reasonably requested by such Exchanging Dealers or such counsel,
including those to evidence compliance with Section 4(k) hereof and
with conditions customarily contained in underwriting agreements. The
foregoing actions set forth in clauses (iii), (iv), (v), and (vi) of
this Section 4(s) shall be performed at the close of the Registered
Exchange Offer and the effective date of any post-effective amendment
to the Exchange Offer Registration Statement.
5. REGISTRATION EXPENSES. The Issuer and the Company shall bear all
expenses incurred in connection with the performance of its obligations under
Sections 2, 3 and 4 hereof and, in the event of any Shelf Registration Statement
or any requirement for an Exchanging Dealer to deliver a Prospectus included in
the Exchange Offer Registration Statement, will reimburse the Holders for the
reasonable fees and disbursements of one firm or counsel designated by the
Majority Holders or by Exchanging Dealers holding a majority of the aggregate
principal amount of New Securities covered by such Prospectus, as the case may
be, to act as counsel for the Holders in connection therewith ("Designated
Counsel").
6. INDEMNIFICATION AND CONTRIBUTION. (a) In connection with any
Registration Statement, the Issuer and the Company agree, and the Company agrees
to cause Holdings, to indemnify and hold harmless each Holder
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selling securities covered thereby (including with respect to any Prospectus
delivery as contemplated in Section 4(h) hereof, each Exchanging Dealer), the
directors, officers, employees and agents of each such Holder and each person
who controls any such Holder within the meaning of either the 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 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 the Registration
Statement as originally filed or in any amendment thereof, or in any preliminary
Prospectus or Prospectus, or in any amendment thereof or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, and agrees, and the Company agrees to cause
Holdings, to reimburse each such indemnified party for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Issuer, Holdings and 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 Issuer, Holdings or the Company by or on behalf of
any such Holder specifically for inclusion therein; provided, further, that
neither the Issuer nor Holdings nor the Company will be liable in any such case
to the extent that any such loss, claim, damage or liability arises out of or is
based on an untrue statement or omission in any Prospectus which was corrected
in a subsequent Prospectus where the relevant Exchanging Dealer sold the
securities to a person to whom it is established that such Exchanging Dealer
failed to send or otherwise deliver, at or prior to the written confirmation of
such sale, a copy of the subsequent Prospectus, as then amended or supplemented.
This indemnity shall not extend to any losses, damages, claims or other
liabilities that may result from the settlement or compromise by any indemnified
party of any action or claim, or any admission by such indemnified party of any
liability, in each case without the prior consent of the Company, which consent
shall not be unreasonably withheld or delayed. This indemnity agreement will be
in addition to any liability which the Issuer and the Company may otherwise
have.
The Issuer and the Company also agree, if requested by the Majority
Holders, to enter into an underwriting agreement that includes an undertaking 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 officers and directors and each person who controls such underwriters on
substantially the same basis as that of the indemnification of the selling
Holders provided in this Section 6(a), as provided in Section 4(q) hereof.
(b) Each Holder of securities covered by a Registration Statement
(including with respect to any Prospectus delivery as contemplated in
Section 4(h) hereof, each Exchanging Dealer) severally agrees to
indemnify and hold harmless (i) the Issuer, (ii) the Company, (ii)
Holdings, (iii) each of their respective directors, (iv) each of
their respective officers who signs such Registration Statement and
(v) each person who controls the Issuer, Holdings or the Company
within the meaning of either the Act or the Exchange Act to the same
extent as the foregoing indemnity from the Issuer, Holdings and the
Company to each such Holder, but only with reference to written
information relating to such Holder furnished to the Issuer, Holdings
or the Company by or on behalf of such Holder specifically for
inclusion in the documents referred to in the foregoing indemnity.
This indemnity agreement will be in addition to any liability which
any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 6
of notice of the commencement of any action, 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 it from liability
under paragraph (a) or (b) above unless and to the extent 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 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
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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 counsel (including local counsel) separate from counsel
appointed by the indemnifying party, 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 which are different from or additional to those
available to the indemnifying party, (iii) the indemnifying party shall
not have employed counsel reasonably 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. An indemnifying party will not,
without the prior written consent of the indemnified parties (which
consent shall not be unreasonably withheld), 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 (i) includes an
unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding 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) 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
same) (collectively "Losses") to which such indemnified party may be
subject in such proportion as is appropriate to reflect the relative
benefits 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 which resulted in such Losses;
provided, however, that in no case shall any Holder of any Security
or New 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 a New Security, applicable to the
Security which was exchangeable into such New 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 which 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 which 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 selling
Holders shall be deemed to be equal to the value of receiving
Securities or New Securities, as applicable, registered under the
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 which resulted in such Losses. Relative fault shall be
determined by reference to whether any alleged untrue statement or
omission relates to information 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 which does not
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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 ll(f) of
the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this
Section 6, each person who controls a Holder within the meaning of
either the 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 Issuer, Holdings or the
Company within the meaning of either the Act or the Exchange Act, each
officer of the Issuer, Holdings or the Company who shall have signed the
Registration Statement and each director of the Issuer, Holdings or the
Company shall have the same rights to contribution as the Issuer,
Holdings and 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, regardless of any investigation made by or on behalf of any
Holder or the Issuer, Holdings 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 Agreements. Each of the Issuer, the Company and the
Company's subsidiaries has not, as of the date hereof, entered into,
nor shall it, on or after the date hereof, enter into, any agreement
with respect to its securities that is inconsistent with the rights
granted to the Holders herein or otherwise conflicts with the
provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, unless the Issuer or the
Company has obtained the written consent of the Holders of at least a
majority of the then outstanding aggregate principal amount of
Securities (or, after the consummation of any Exchange Offer in
accordance with Section 2 hereof, of New Securities); provided that,
with respect to any matter that directly or indirectly affects the
rights of any Initial Purchaser hereunder, the Issuer and the Company
shall obtain the written consent of each such Initial Purchaser
against which such amendment, qualification, supplement, waiver or
consent is to be effective. Notwithstanding the foregoing (except the
foregoing proviso), a waiver or consent to departure from the
provisions hereof with respect to a matter that relates exclusively
to the rights of Holders whose securities are being sold pursuant to
a Registration Statement and that does not directly or indirectly
affect the rights of other Holders may be given by the Majority
Holders determined on the basis of securities being sold rather than
registered under such Registration Statement.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery,
first-class mail, telex, telecopier, or air courier guaranteeing
overnight delivery.
(1) if to a Holder, at the address of such Holder maintained by the
Registrar under the relevant Indenture;
(2) if to you or another Initial Purchaser, initially at the
respective addresses set forth in the Purchase Agreement; and
(3) if to the Issuer, initially at its address set forth in the
Purchase Agreement.
(4) if to the Company, initially at its address set forth in the
Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given when received.
The Initial Purchasers, the Issuer or the Company by notice to the other
may designate additional or different addresses for subsequent notices
or communications.
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(d) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and permitted assigns of each of
the parties, including, without the need for an express assignment or
any consent by the Issuer or the Company thereto, subsequent Holders
of Securities and/or New Securities. The Issuer and the Company
hereby agree to extend the benefits of this Agreement to any Holder
of Securities and/or New Securities and any such Holder may
specifically enforce the provisions of this Agreement as if an
original party hereto.
(e) Counterparts. This agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all
of which taken together shall constitute one and the same agreement.
(f) Headings. The headings in this agreement are for convenience or
reference only and shall not limit or otherwise affect the meaning
hereof.
(g) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE
TO AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE.
(h) Jurisdiction. Each of the Issuer and the Company agrees that any
suit, action or proceeding against the Issuer or the Company brought
by any Initial Purchaser, the directors, officers, employees and
agents of any Initial Purchaser, or by any person who controls any
Initial Purchaser, arising out of or based upon this Agreement or the
transactions contemplated hereby may be instituted in any state or
federal court in the Borough of Manhattan, City of New York, New
York, and waives any objection which it may now or hereafter have to
the laying of venue of any such proceeding, and irrevocably submits
to the nonexclusive jurisdiction of such courts in any suit, action
or proceeding. Each of the Issuer and the Company has appointed CT
Corporation System, with offices on the date hereof at 000 Xxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as its authorized agent (the
"Authorized Agent"), upon whom process may be served in any suit,
action or proceeding arising out of or based upon this Agreement or
the transactions contemplated herein which may be instituted in any
state or federal court in the Borough of Manhattan, City of New York,
New York, by any Initial Purchaser, the directors, officers,
employees and agents of any Initial Purchaser, or by any person, if
any, who controls any Initial Purchaser, and expressly accepts the
nonexclusive jurisdiction of any such court in respect of any such
suit, action or proceeding. Each of the Issuer and the Company hereby
represents and warrants that the Authorized Agent has accepted such
appointment and has agreed to act as said agent for service of
process, and each of the Issuer and the Company agrees to take any
and all action, including the filing of any and all documents that
may be necessary to continue such appointment in full force and
effect as aforesaid. Service of process upon the Authorized Agent
shall be deemed, in every respect, effective service of process upon
the Issuer and the Company. Notwithstanding the foregoing, any action
involving the Company arising out of or based upon this Agreement may
be instituted by any Initial Purchaser, the directors, officers,
employees and agents of any Initial Purchaser, or by any person who
controls any Initial Purchaser in any court of competent jurisdiction
in Luxembourg, The Netherlands or the Republic of Poland.
(i) Severability. In the event that any one of more of the provisions
contained herein, or the application thereof in any circumstances, is
held valid, 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.
(j) Securities Held by the Company, etc. Whenever the consent or
approval of Holders of a specified percentage of principal amount of
Securities or New Securities is required hereunder, Securities or New
Securities, as applicable, held by the Company or its Affiliates
(other than subsequent Holders of Securities or New Securities if
such subsequent Holders are deemed to be Affiliates solely by reason
of their holdings of such Securities or New Securities) shall not be
counted in determining whether such consent or approval was given by
the Holders of such required percentage.
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Please confirm that the foregoing correctly sets forth the agreement
between the Issuer, the Company and you.
Very truly yours,
PTC INTERNATIONAL FINANCE II S.A.
By:
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Name:
Title:
By:
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Name:
Title:
POLSKA TELEFONIA CYFROWA SP. Z 0.0
By:
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Name:
Title:
By:
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Name:
Title:
The foregoing Agreement is
hereby accepted as of the date
first above written.
XXXXXXX XXXXX INTERNATIONAL
By:
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Name:
Title:
SALOMON BROTHERS INTERNATIONAL
LIMITED
By:
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Name:
Title:
