CINCINNATI BELL INC. EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
$100,000,000
CINCINNATI
XXXX INC.
8
3/8% Senior Subordinated Notes due 2014
February
16, 0000
XXXX XX
XXXXXXX SECURITIES LLC
As
Representative of the Several Purchasers,
c/o Banc of
America Securities LLC
0 Xxxx 00xx
Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx
Xxxx 00000
Dear
Sirs:
Cincinnati
Xxxx Inc., an Ohio corporation (f/k/a Broadwing Inc.) (the “Issuer”), proposes
to issue and sell to the several purchasers (collectively, the “Purchasers”)
named in Schedule A attached to the purchase agreement dated as of February
2, 2005 (the “Purchase Agreement”), upon the terms set forth in the Purchase
Agreement, $100,000,000 aggregate principal amount of its 8
3/8% Senior
Subordinated Notes due 2014 (the “Initial Securities”) to be unconditionally
guaranteed (the “Guarantees”) by the Company’s subsidiaries listed on Schedule B
attached to the Purchase Agreement (the “Guarantors” and together with the
Issuer, the “Company”). The Initial Securities will be issued pursuant to an
Indenture, dated as of November 19, 2003, (the “Indenture”) among the Issuer,
the Guarantors named therein and The Bank of New York (the “Trustee”). As an
inducement to the Purchasers, the Company agrees with the Purchasers, for the
benefit of the holders of the Initial Securities (including, without limitation,
the Purchasers), the Exchange Securities (as defined below) and the Private
Exchange Securities (as defined below) (collectively the “Holders”), as
follows:
1. Registered
Exchange Offer. Unless
not permitted by applicable law, the Company shall, at its own cost, prepare
and, use its reasonable efforts to, not later than 150 days after (or if the
150th day is not a business day, the first business day thereafter, such date
being a “Exchange Filing Deadline”) the date of original issue of the Initial
Securities (the “Issue Date”), file with the Securities and Exchange Commission
(the “Commission”) a registration statement (the “Exchange Offer Registration
Statement”) on an appropriate form under the Securities Act of 1933, as amended
(the “Securities Act”), with respect to a proposed offer (the “Registered
Exchange Offer”) to the Holders of Transfer Restricted Securities (as defined in
Section 6 hereof), who are not prohibited by any law or policy of the
Commission from participating in the Registered Exchange
Offer, to
issue and deliver to such Holders, in exchange for the Initial Securities, a
like aggregate
principal amount of debt securities (the “Exchange Securities”) of the Company
issued under the Indenture and identical in all material respects to the Initial
Securities (except for the transfer restrictions relating to the Initial
Securities and the provisions relating to the matters described in Section 6
hereof) that would be registered under the Securities Act. The Company shall use
its reasonable efforts to cause such Exchange Offer Registration Statement to
become effective under the Securities Act within 210 days (or if the 210th day
is not a business day, the first business day thereafter, such date being an
“Exchange Effectiveness Deadline”) after the Issue Date of the Initial
Securities and shall keep the Exchange Offer Registration Statement effective
for not less than 20 business days (or longer, if required by applicable
law) after the date notice of the Registered Exchange Offer is mailed to the
Holders (such period being called the “Exchange Offer Registration
Period”).
If the
Company effects the Registered Exchange Offer, the Company will be entitled to
close the Registered Exchange Offer 20 business days after the commencement
thereof, provided that the Company has accepted all the Initial Securities
theretofore validly tendered in accordance with the terms of the Registered
Exchange Offer.
Following
the declaration of the effectiveness of the Exchange Offer Registration
Statement, the Company shall promptly commence the Registered Exchange Offer, it
being the objective of such Registered Exchange Offer to enable each Holder of
Transfer Restricted Securities electing to exchange the Initial Securities for
Exchange Securities (assuming that such Holder is not an affiliate of the
Company within the meaning of the Securities Act, acquires the Exchange
Securities in the ordinary course of such Holder’s business and has no
arrangements with any person to participate in the distribution of the Exchange
Securities and is not prohibited by any law or policy of the Commission from
participating in the Registered Exchange Offer) to trade 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 the several states of the United States.
The
Company acknowledges that, pursuant to current interpretations by the
Commission’s staff of Section 5 of the Securities Act, in the absence of an
applicable exemption therefrom, (i) each Holder which is a broker-dealer
electing to exchange Securities, acquired for its own account as a result of
market making activities or other trading activities, for Exchange Securities
(an “Exchanging Dealer”), is required to deliver a prospectus containing the
information set forth in (a) Annex A hereto on the cover, (b) Annex B hereto in
the “Exchange Offer Procedures” section and the “Purpose of the Exchange Offer”
section, and (c) Annex C hereto in the “Plan of Distribution” section of such
prospectus in connection with a sale of any such Exchange Securities received by
such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an
Initial Purchaser that elects to sell Exchange Securities acquired in exchange
for Securities constituting any portion of an unsold allotment is required to
deliver a prospectus containing the information required by Items 507 or 508 of
Regulation S-K under the Securities Act, as applicable, in connection with such
sale.
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The
Company shall use its reasonable efforts to keep the Exchange Offer Registration
Statement effective and to amend and supplement the prospectus contained
therein, in order to permit such prospectus to be lawfully delivered by all
persons subject to the prospectus delivery requirements of the Securities Act
for such period of time as such persons must comply with such requirements in
order to resell the Exchange Securities; provided,
however, that
(i) in the case where such prospectus and any amendment or supplement thereto
must be delivered by an Exchanging Dealer or an Initial Purchaser, such period
shall be the lesser of 180 days and the date on which all Exchanging Dealers and
the Purchasers have sold all Exchange Securities held by them (unless such
period is extended pursuant to Section 3(j) below) and (ii) the Company shall
make such prospectus and any amendment or supplement thereto, available to any
broker-dealer for use in connection with any resale of any Exchange Securities
for a period of not less than 90 days after the consummation of the Registered
Exchange Offer.
If, upon
consummation of the Registered Exchange Offer, any Initial Purchaser holds
Initial Securities acquired by it as part of its initial distribution, the
Company, simultaneously with the delivery of the Exchange Securities pursuant to
the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser
upon the written request of such Initial Purchaser, in exchange (the “Private
Exchange”) for the Initial Securities held by such Initial Purchaser, a like
principal amount of debt securities of the Company issued under the Indenture
and identical in all material respects (including the existence of restrictions
on transfer under the Securities Act and the securities laws of the several
states of the United States, but excluding provisions relating to the matters
described in Section 6 hereof) to the Initial Securities (the “Private Exchange
Securities”). The Initial Securities, the Exchange Securities and the Private
Exchange Securities are herein collectively called the
“Securities”.
In connection
with the Registered Exchange Offer, the Company shall:
(a) 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;
(b) keep the
Registered Exchange Offer open for not less than 20 business days (or longer, if
required by applicable law)
after the
date notice thereof is mailed to the Holders;
(c) utilize
the services of a depositary for the Registered Exchange Offer with an address
in the Borough of Manhattan, The
City of New
York, which may be the Trustee or an affiliate of the Trustee;
(d) permit
Holders to withdraw tendered Securities at any time prior to the close of
business, New York time, on the last
business day
on which the Registered Exchange Offer shall remain open; and
(e) otherwise
comply with all applicable laws.
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As soon as
practicable after the close of the Registered Exchange Offer or the Private
Exchange, as the case may be, the Company
shall:
(x) accept
for exchange all the Securities validly tendered and not withdrawn pursuant to
the Registered Exchange Offer and the Private
Exchange;
(y) deliver
to the Trustee for cancellation all the Initial Securities so accepted for
exchange; and
(z) cause the
Trustee to authenticate and deliver promptly to each Holder of the Initial
Securities, Exchange Securities or Private Exchange
Securities, as the case may be, equal in principal amount to the Initial
Securities of such Holder so accepted for exchange.
The Indenture will provide that the Exchange Securities will not be subject to
the transfer restrictions set forth in the Indenture and that all the Securities
will vote and consent together on all matters as one class and that none of the
Securities will have the right to vote or consent as a class separate from one
another on any matter.
Interest
on each Exchange Security and Private Exchange Security issued pursuant to the
Registered Exchange Offer and in the Private Exchange will accrue from the last
interest payment date on which interest was paid on the Initial Securities
surrendered in exchange therefor or, if no interest has been paid on the Initial
Securities, from January 15, 2005.
Each
Holder participating in the Registered Exchange Offer shall be required to
represent to the Company that at the time of the consummation of the Registered
Exchange Offer (i) any Exchange Securities received by such Holder will be
acquired in the ordinary course of business, (ii) such Holder will have no
arrangements or understanding with any person to participate in the distribution
of the Securities or the Exchange Securities within the meaning of the
Securities Act, (iii) such Holder is not an “affiliate,” as defined in
Rule 405 of the Securities Act, of the Company or if it is an affiliate,
such Holder will comply with the registration and prospectus delivery
requirements of the Securities Act to the extent applicable, (iv) if such
Holder is not a broker-dealer, that it is not engaged in, and does not intend to
engage in, the distribution of the Exchange Securities and (v) if such Holder is
a broker-dealer, that it will receive Exchange Securities for its own account in
exchange for Initial Securities that were acquired as a result of market-making
activities or other trading activities and that it will be required to
acknowledge that it will deliver a prospectus in connection with any resale of
such Exchange Securities.
Notwithstanding
any other provisions hereof, the Company will use its reasonable efforts to
ensure that (i) any Exchange Offer Registration Statement and any amendment
thereto and any prospectus forming part thereof and any supplement thereto
complies in all material respects with the Securities Act and the rules and
regulations thereunder, (ii) any Exchange Offer Registration Statement and any
amendment thereto does not, when it
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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 Exchange
Offer Registration Statement, and any supplement to such prospectus, does not
include an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
2. Shelf
Registration. If, (i)
because of any change in law or in applicable interpretations thereof by the
staff of the Commission, the Company is not permitted to effect a Registered
Exchange Offer, as contemplated by Section 1 hereof, (ii) the Registered
Exchange Offer is not consummated within 240 days of the Issue Date (the
“Consummation Deadline”), (iii) any Initial Purchaser so requests with respect
to the Initial Securities (or the Private Exchange Securities) not eligible to
be exchanged for Exchange Securities in the Registered Exchange Offer and held
by it following consummation of the Registered Exchange Offer or (iv) any Holder
(other than an Exchanging Dealer) is not eligible to participate in the
Registered Exchange Offer and such Holder notifies the Company within 90 days
following consummation of the Registered Exchange Offer or, in the case of any
Holder (other than an Exchanging Dealer) that participates in the Registered
Exchange Offer, such Holder does not receive freely tradeable Exchange
Securities on the date of the exchange and any such Holder so requests within 90
days following consummation of the Registered Exchange Offer, the Company shall
take the following actions (the date on which any of the conditions described in
the foregoing clauses (i) through (iv) occur, including in the case of
clauses (iii) or (iv) the receipt of the required notice, being a “Trigger
Date”):
(a) The
Company shall, at its cost, as promptly as practicable (but in no event more
than 30 days after the Trigger Date, such date being a “Shelf Filing Deadline,”
each of the Exchange Filing Deadline and the Shelf Filing Deadline, a “Filing
Deadline”) file with the Commission and thereafter shall use its reasonable
efforts to cause to be declared effective no later than 180 days after the
Trigger Date (such 180th day being a “Shelf Effectiveness Deadline,” each of
the Exchange Effectiveness Deadline and the Shelf Effectiveness Deadline, an
“Effectiveness Deadline”) a registration statement (the “Shelf Registration
Statement” and, together with the Exchange Offer Registration Statement, a
“Registration Statement”) on an appropriate form under the Securities Act
relating to the offer and sale of the Transfer Restricted Securities (as defined
in Section 6 hereof) by the Holders thereof from time to time in accordance with
the methods of distribution set forth in the Shelf Registration Statement and
Rule 415 under the Securities Act (hereinafter, the “Shelf Registration”);
provided,
however, that no
Holder (other than an Initial Purchaser) shall be entitled to have the
Securities held by it covered by such Shelf Registration Statement unless such
Holder agrees in writing to be bound by all the provisions of this Agreement
applicable to such Holder.
(b) The
Company shall use its reasonable efforts to keep the Shelf Registration
Statement continuously effective in order to permit the prospectus
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included
therein to be lawfully delivered by the Holders of the relevant Securities, for
a period of two years (or for such longer
period if extended pursuant to Section 3(j) below) from the date of its
effectiveness or such shorter period that will terminate when all the
Securities covered by the Shelf Registration Statement (i) have been sold
pursuant thereto or (ii) are no longer restricted securities (as
defined in Rul e 144 under the Securities Act, or any successor rule
thereof). The Company shall be deemed not to have used its reasonable
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 such action
is required by applicable law.
(c) Notwithstanding
any other provisions of this Agreement to the contrary, the Company shall cause
the Shelf Registration Statement and the related prospectus and any amendment or
supplement thereto, as of the effective date of the Shelf Registration
Statement, amendment or supplement, (i) to comply in all material respects with
the applicable requirements of the Securities Act and the rules and regulations
of the Commission and (ii) not to contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading.
3. Registration
Procedures. In
connection with any Shelf Registration contemplated by Section 2 hereof and, to
the extent applicable, any Registered Exchange Offer contemplated by Section 1
hereof, the following provisions shall apply:
(a) The
Company shall (i) furnish to each Initial Purchaser, prior to the filing
thereof with the Commission, a copy of the Registration Statement and each
amendment thereof and each supplement, if any, to the prospectus included
therein and, in the event that an Initial Purchaser (with respect to any portion
of an unsold allotment from the original offering) is participating in the
Registered Exchange Offer or the Shelf Registration Statement, the Company shall
use its reasonable efforts to reflect in each such document, when so filed with
the Commission, such comments as such Initial Purchaser reasonably may propose;
(ii) include the information set forth in Annex A hereto on the cover, in Annex
B hereto in the “Exchange Offer Procedures” section and the “Purpose of the
Exchange Offer” section and in Annex C hereto in the “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; (iii) if
requested by an Initial Purchaser, include the information required by Items 507
or 508 of Regulation S-K under the Securities Act, as applicable, in the
prospectus forming a part of the Exchange Offer Registration Statement;
(iv) include within the prospectus contained in the Exchange Offer
Registration Statement a section entitled “Plan of Distribution,” reasonably
acceptable to the Purchasers, which shall contain a summary statement of the
positions taken or policies made by the staff of the
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Commission with respect to the potential “underwriter” status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of Exchange Securities received by such broker-dealer in the Registered Exchange Offer (a “Participating Broker-Dealer”), whether such positions or policies have been publicly disseminated by the staff of the Commission or such positions or policies, in the reasonable judgment of the Purchasers based upon advice of counsel (which may be in-house counsel), represent the prevailing views of the staff of the Commission; and (v) in the case of a Shelf Registration Statement, include the names of the Holders, who propose to sell Securities pursuant to the Shelf Registration Statement, as selling security holders.
(b) The
Company shall give written notice to the Purchasers, the Holders of the
Securities and any Participating Broker-Dealer from whom the Company has
received prior written notice that it will be a Participating Broker-Dealer in
the Registered Exchange Offer (which notice pursuant to clauses (ii)-(v)
hereof shall be accompanied by an instruction to suspend the use of the
prospectus until the requisite changes have been made):
(i) when the
Registration Statement or any amendment thereto has been filed with the
Commission and when the Registration Statement or any post-effective amendment
thereto has become effective;
(ii) of any
request by the Commission for amendments or supplements to the Registration
Statement or the prospectus included therein or for additional
information;
(iii) 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;
(iv) of the
receipt by the Company or its legal counsel of any notification with respect to
the suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose; and
(v) of the
happening of any event that requires the Company to make changes in the
Registration Statement or the prospectus in order that the Registration
Statement or the prospectus do not contain an untrue statement of a material
fact nor 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.
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(c) The
Company shall make every reasonable effort to obtain the withdrawal at the
earliest possible time, of any order suspending the effectiveness of the
Registration Statement.
(d) The
Company shall furnish to each Holder of Securities included within the coverage
of the Shelf Registration, without charge, at least one copy of the 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 (including those, if any, incorporated by
reference).
(e) The
Company shall deliver to each Exchanging Dealer and each Initial Purchaser, and
to any other Holder who 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, and, if any Initial Purchaser or
any such Holder requests, all exhibits thereto (including those incorporated by
reference).
(f) The
Company shall, during the Shelf Registration Period, deliver to each Holder of
Securities included within the coverage of the Shelf Registration, without
charge, as many copies of the prospectus (including each preliminary prospectus)
included in the Shelf Registration Statement and any amendment or supplement
thereto as such person may reasonably request. The Company consents, subject to
the provisions of this Agreement, to the use of the prospectus or any amendment
or supplement thereto by each of the selling Holders of the Securities in
connection with the offering and sale of the Securities covered by the
prospectus, or any amendment or supplement thereto, included in the Shelf
Registration Statement.
(g) The
Company shall deliver to each Initial Purchaser, any Exchanging Dealer, any
Participating Broker-Dealer and such other persons required to deliver a
prospectus following the Registered Exchange Offer, without charge, as many
copies of the final prospectus included in the Exchange Offer Registration
Statement and any amendment or supplement thereto as such persons may reasonably
request. The Company consents, subject to the provisions of this Agreement, to
the use of the prospectus or any amendment or supplement thereto by any Initial
Purchaser, if necessary, any Participating Broker-Dealer and such other persons
required to deliver a prospectus following the Registered Exchange Offer in
connection with the offering and sale of the Exchange Securities covered by the
prospectus, or any amendment or supplement thereto, included in such Exchange
Offer Registration Statement.
(h) Prior to
any public offering of the Securities, pursuant to any Registration Statement,
the Company shall register or qualify or cooperate with the Holders of the
Securities included therein and their respective counsel in connection with the
registration or qualification of the Securities for offer and sale under the
securities or “blue sky” laws of such states of the United States as any Holder
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of the Securities reasonably requests in writing and do any and all other acts
or things necessary or advisable to enable the offer and
sale in such jurisdictions of the Securities covered by such Registration
Statement; provided,
however, that
the Company shall not be
required to (i) qualify generally to do business in any jurisdiction where it is
not then so qualified or (ii) take any action which would
subject it to general service of process or to taxation in any jurisdiction
where it is not then so subject.
(i) The
Company shall cooperate with the Holders of the Securities to facilitate the
timely preparation and delivery of certificates representing the Securities to
be sold pursuant to any Registration Statement free of any restrictive legends
and in such denominations and registered in such names as the Holders may
request a reasonable period of time prior to sales of the Securities pursuant to
such Registration Statement.
(j) Upon the
occurrence of any event contemplated by paragraphs (ii) through (v) of
Section 3(b) above during the period for which the Company is required to
maintain an effective Registration Statement, the Company shall promptly prepare
and file a post-effective amendment to the Registration Statement or a
supplement to the related prospectus and any other required document so that, as
thereafter delivered to Holders of the Securities or purchasers of Securities,
the prospectus will not contain an untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading. If the Company notifies the Purchasers, the Holders of the
Securities and any known Participating Broker-Dealer in accordance with
paragraphs (ii) through (v) of Section 3(b) above to suspend the use of the
prospectus until the requisite changes to the prospectus have been made, then
the Purchasers, the Holders of the Securities and any such Participating
Broker-Dealers shall suspend use of such prospectus, and the period of
effectiveness of the Shelf Registration Statement provided for in Section 2(b)
above and the Exchange Offer Registration Statement provided for in Section 1
above shall each be extended by the number of days from and including the date
of the giving of such notice to and including the date when the Purchasers, the
Holders of the Securities and any known Participating Broker-Dealer shall have
received such amended or supplemented prospectus pursuant to this
Section 3(j).
(k) Not later
than the effective date of the applicable Registration Statement, the Company
will provide a CUSIP number for the Initial Securities, the Exchange Securities
or the Private Exchange Securities, as the case may be, and provide the
applicable trustee with printed certificates for the Initial Securities, the
Exchange Securities or the Private Exchange Securities, as the case may be, in a
form eligible for deposit with The Depository Trust Company.
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(l) The
Company will use commercially reasonable efforts to obtain the same CUSIP number
for the Exchange Securities as the outstanding registered 8 3/8% Notes.
(m) The
Company will comply with all rules and regulations of the Commission to the
extent and so long as they are applicable to the Registered Exchange Offer or
the Shelf Registration and will make generally available to its security holders
(or otherwise provide in accordance with Section 11(a) of the Securities Act) an
earnings statement satisfying the provisions of Section 11(a) of the Securities
Act, no later than 45 days after the end of a 12-month period (or 90 days, if
such period is a fiscal year) beginning with the first month of the Company’s
first fiscal quarter commencing after the effective date of the Registration
Statement, which statement shall cover such 12-month period.
(n) The
Company shall cause the Indenture to be qualified under the Trust Indenture Act
of 1939, as amended, in a timely manner and containing such changes, if any, as
shall be necessary for such qualification. In the event that such qualification
would require the appointment of a new trustee under the Indenture, the Company
shall appoint a new trustee thereunder pursuant to the applicable provisions of
the Indenture.
(o) The
Company may require each Holder of Securities to be sold pursuant to the Shelf
Registration Statement to furnish to the Company such information regarding the
Holder and the distribution of the Securities as the Company may from time to
time reasonably require for inclusion in the Shelf Registration Statement, and
the Company may exclude from such registration the Securities of any Holder that
unreasonably fails to furnish such information within a reasonable time after
receiving such request.
(p) The
Company shall enter into such customary agreements (including, if requested, an
underwriting agreement in customary form) and take all such other action, if
any, as any Holder of the Securities shall reasonably request in order to
facilitate the disposition of the Securities pursuant to any Shelf
Registration.
(q) In the
case of any Shelf Registration, the Company shall (i) make reasonably available
for inspection by the Holders of the Securities, any underwriter participating
in any disposition pursuant to the Shelf Registration Statement and any
attorney, accountant or other agent retained by the Holders of the Securities or
any such underwriter all relevant financial and other records, pertinent
corporate documents and properties of the Company and (ii) cause the Company’s
officers, directors, employees, accountants and auditors to supply all relevant
information reasonably requested by the Holders of the Securities or any such
underwriter, attorney, accountant or agent in connection with the Shelf
Registration Statement, in each case, as shall be reasonably necessary to enable
such persons, to conduct a reasonable investigation within the meaning of
Section 11 of the Se-
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curities Act; provided,
however, (A)
that the foregoing inspection and information gathering shall be coordinated on
behalf of the
Purchasers by you and on behalf of the other parties, by one counsel designated
by and on behalf of such other parties as described
in Section 4 hereof and (B) the Company may require each Holder, underwriter,
attorney, accountant or other agent to keep
confidential any material non-public information relating to the Company
received by such persons and to abstain from trading in
violation of the applicable securities laws on the basis of such
information.
(r) In the
case of any Shelf Registration, the Company, if requested by any Holder of
Securities covered thereby, shall cause (i) its counsel to deliver an
opinion and updates thereof relating to the Securities in customary form
addressed to such Holders and the managing underwriters, if any, thereof and
dated, in the case of the initial opinion, the effective date of such Shelf
Registration Statement (it being agreed that the matters to be covered by such
opinion shall include, without limitation, the due incorporation and good
standing of the Company and its subsidiaries; the qualification of the Company
and its subsidiaries to transact business as foreign corporations; the due
authorization, execution and delivery of the relevant agreement of the type
referred to in Section 3(o) hereof; the due authorization, execution,
authentication and issuance, and the validity and enforceability, of the
applicable Securities; the absence of material legal or governmental proceedings
involving the Company and its subsidiaries; the absence of governmental
approvals required to be obtained in connection with the Shelf Registration
Statement, the offering and sale of the applicable Securities, or any agreement
of the type referred to in Section 3(o) hereof; the compliance as to form
of such Shelf Registration Statement and any documents incorporated by reference
therein and of the Indenture with the requirements of the Securities Act and the
Trust Indenture Act, respectively; and, as of the date of the opinion and as of
the effective date of the Shelf Registration Statement or most recent
post-effective amendment thereto, as the case may be, the absence from such
Shelf Registration Statement and the prospectus included therein, as then
amended or supplemented, and from any documents incorporated by reference
therein of an untrue statement of a material fact or the omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading (in the case of any such documents, in the
light of the circumstances existing at the time that such documents were filed
with the Commission under the Exchange Act); (ii) its officers to execute
and deliver all customary documents and certificates and updates thereof
requested by any underwriters of the applicable Securities and (iii) its
independent public accountants to provide to the selling Holders of the
applicable Securities and any underwriter therefor a comfort letter in customary
form and covering matters of the type customarily covered in comfort letters in
connection with primary underwritten offerings, subject to receipt of
appropriate documentation as contemplated, and only if permitted, by Statement
of Auditing Standards No. 72.
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(s) In the
case of the Registered Exchange Offer, if requested by any Initial Purchaser or
any known Participating Broker-Dealer, the Company shall cause (i) its counsel
to deliver to such Initial Purchaser or such Participating Broker-Dealer a
signed opinion in the form set forth in Section 6(c)-(e) of the Purchase
Agreement with such changes as are customary in connection with the preparation
of a Registration Statement and (ii) its independent public accountants to
deliver to such Initial Purchaser or such Participating Broker-Dealer a comfort
letter, in customary form, meeting the requirements as to the substance thereof
as set forth in Section 6(a) of the Purchase Agreement, with appropriate
date changes.
(t) If a
Registered Exchange Offer or a Private Exchange is to be consummated, upon
delivery of the Initial Securities by Holders to the Company (or to such other
Person as directed by the Company) in exchange for the Exchange Securities or
the Private Exchange Securities, as the case may be, the Company shall xxxx, or
caused to be marked, on the Initial Securities so exchanged that such Initial
Securities are being canceled in exchange for the Exchange Securities or the
Private Exchange Securities, as the case may be; in no event shall the Initial
Securities be marked as paid or otherwise satisfied.
(u) The
Company will use its reasonable efforts to (a) if the Initial Securities have
been rated prior to the initial sale of such Initial Securities, confirm such
ratings will apply to the Securities covered by a Registration Statement, or (b)
if the Initial Securities were not previously rated, cause the Securities
covered by a Registration Statement to be rated with the appropriate rating
agencies, if so requested by Holders of a majority in aggregate principal amount
of Securities covered by such Registration Statement, or by the managing
underwriters, if any.
(v) In the
event that any broker-dealer registered under the Exchange Act shall underwrite
any Securities or participate as a member of an underwriting syndicate or
selling group or “assist in the distribution” (within the meaning of the Conduct
Rules (the “Rules”) of the National Association of Securities Dealers, Inc.
(“NASD”)) thereof, whether as a Holder of such Securities or as an underwriter,
a placement or sales agent or a broker or dealer in respect thereof, or
otherwise, the Company will assist such broker-dealer in complying with the
requirements of such Rules, including, without limitation, by (i) if such
Rules, including Rule 2720, shall so require, engaging a “qualified independent
underwriter” (as defined in Rule 2720) to participate in the preparation of the
Registration Statement relating to such Securities, to exercise usual standards
of due diligence in respect thereto and, if any portion of the offering
contemplated by such Registration Statement is an underwritten offering or is
made through a placement or sales agent, to recommend the yield of such
Securities, (ii) indemnifying any such qualified independent underwriter to
the extent of the indemnification of underwriters provided in Section 5
hereof and (iii) providing such information to
-12-
such
broker-dealer as may be required in order for such broker-dealer to comply with
the requirements of the Rules.
(w) The
Company shall use its reasonable efforts to take all other steps necessary to
effect the registration of the Securities covered by a Registration Statement
contemplated hereby.
4. Registration
Expenses. The
Company shall bear all fees and expenses incurred in connection with the
performance of its obligations under Sections 1 through 3 hereof (including the
reasonable fees and expenses, if any, of Xxxxxx Xxxxxx & Xxxxxxx
LLP, counsel
for the Purchasers, incurred in connection with the Registered Exchange Offer),
whether or not the Registered Exchange Offer or a Shelf Registration is filed or
becomes effective, and, in the event of a Shelf Registration, shall bear or
reimburse the Holders of the Securities covered thereby for the reasonable fees
and disbursements of one firm of counsel designated by the Holders of a majority
in principal amount of the Initial Securities covered thereby to act as counsel
for the Holders of the Initial Securities in connection therewith.
5. Indemnification.
(a) The
Company agrees to indemnify and hold harmless each Holder of the Securities, any
Participating Broker-Dealer and each person, if any, who controls such Holder or
such Participating Broker-Dealer within the meaning of the Securities Act or the
Exchange Act (each Holder, any Participating Broker-Dealer and such controlling
persons are referred to collectively as the “Indemnified Parties”) from and
against any losses, claims, damages or liabilities, joint or several, or any
actions in respect thereof (including, but not limited to, any losses, claims,
damages, liabilities or actions relating to purchases and sales of the
Securities) to which each Indemnified Party may become subject under the
Securities Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in a
Registration Statement or prospectus or in any amendment or supplement thereto
or in any preliminary prospectus relating to a Shelf Registration, 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 shall reimburse, as incurred, the Indemnified
Parties for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action in respect thereof; provided,
however, that
(i) the Company shall not be liable in any such case to the extent that
such loss, claim, damage or liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in a
Registration Statement or prospectus or in any amendment or supplement thereto
or in any preliminary prospectus relating to a Shelf Registration in reliance
upon and in conformity with written information pertaining to such Holder and
furnished to the Company by or on behalf of such Holder specifically for
inclusion therein and (ii) with respect to any untrue statement or omission
or alleged untrue statement or omission made in any preliminary prospectus
relating to a Shelf Registration Statement, the indemnity agreement contained in
this subsection (a) shall not inure to the benefit of any Holder or
Participating Broker-Dealer from whom the person asserting any such losses,
claims,
-13-
damages
or liabilities purchased the Securities concerned, to the extent that a
prospectus relating to such Securities was required to be delivered by such
Holder or Participating Broker-Dealer under the Securities Act in connection
with such purchase and any such loss, claim, damage or liability of such Holder
or Participating Broker-Dealer results from the fact that there was not sent or
given to such person, at or prior to the written confirmation of the sale of
such Securities to such person, a copy of the final prospectus if the Company
had previously furnished copies thereof to such Holder or Participating
Broker-Dealer; provided
further,
however, that
this indemnity agreement will be in addition to any liability which the Company
may otherwise have to such Indemnified Party. The Company shall also indemnify
underwriters, their officers and directors and each person who controls such
underwriters within the meaning of the Securities Act or the Exchange Act to the
same extent as provided above with respect to the indemnification of the Holders
of the Securities if requested by such Holders.
(b) Each
Holder of the Securities, severally and not jointly, will indemnify and hold
harmless the Company and each person, if any, who controls the Company within
the meaning of the Securities Act or the Exchange Act from and against any
losses, claims, damages or liabilities or any actions in respect thereof, to
which the Company or any such controlling person may become subject under the
Securities Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in a
Registration Statement or prospectus or in any amendment or supplement thereto
or in any preliminary prospectus relating to a Shelf Registration, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact necessary to make the statements therein not misleading, but in
each case only to the extent that the untrue statement or omission or alleged
untrue statement or omission was made in reliance upon and in conformity with
written information pertaining to such Holder and furnished to the Company by or
on behalf of such Holder specifically for inclusion therein; and, subject to the
limitation set forth immediately preceding this clause, shall reimburse, as
incurred, the Company for any legal or other expenses reasonably incurred by the
Company or any such controlling person in connection with investigating or
defending any loss, claim, damage, liability or action in respect thereof. This
indemnity agreement will be in addition to any liability which such Holder may
otherwise have to the Company or any of its controlling persons.
(c) Promptly
after receipt by an indemnified party under this Section 5 of notice of the
commencement of any action or proceeding (including a governmental
investigation), such indemnified party will, if a claim in respect thereof is to
be made against the indemnifying party under this Section 5, notify the
indemnifying party of the commencement thereof; but the failure to notify the
indemnifying party shall not relieve the indemnifying party from any liability
that it may have under subsection (a) or (b) above except to the extent that it
has been materially prejudiced (through the forfeiture of substantive rights or
defenses) by such failure; provided
further,
however, that the
failure to notify the indemnifying party shall not relieve it from any liability
that it may have to an indemnified party otherwise than under subsection (a) or
(b) above. In case any such
-14-
action is
brought against any indemnified party, and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof the indemnifying party will not be liable to such
indemnified party under this Section 5 for any legal or other expenses, other
than reasonable costs of investigation, subsequently incurred by such
indemnified party in connection with the defense thereof. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement (i) includes
an unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action, 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) If the
indemnification provided for in this Section 5 is unavailable or insufficient to
hold harmless an indemnified party under subsections (a) or (b) above, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to in subsection (a) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits received by
the indemnifying party or parties on the one hand and the indemnified party on
the other from the exchange of the Securities, pursuant to the Registered
Exchange Offer, or (ii) if the allocation provided by the foregoing clause (i)
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the indemnifying party or parties on the one hand and the
indemnified party on the other in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities (or actions in
respect thereof) as well as any other relevant equitable considerations. The
relative fault of the parties shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or such Holder or such other indemnified
party, as the case may be, on the other, and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid by an indemnified party as a result of
the losses, claims, damages or liabilities referred to in the first sentence of
this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this subsection (d).
Notwithstanding any other provision of this Section 5(d), the Holders of the
Securities shall not be required to contribute any amount in excess of the
amount by which the net proceeds received by such Holders from the sale of the
Securities pursuant to a Registration Statement exceeds the amount of damages
which such Holders have otherwise been required
-15-
to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For purposes
of this paragraph (d), each person, if any, who controls such indemnified party
within the meaning of the Securities Act or the Exchange Act shall have the same
rights to contribution as such indemnified party and each person, if any, who
controls the Company within the meaning of the Securities Act or the Exchange
Act shall have the same rights to contribution as the Company.
(e) The
agreements contained in this Section 5 shall survive the sale of the Securities
pursuant to a Registration Statement and shall remain in full force and effect,
regardless of any termination or cancellation of this Agreement or any
investigation made by or on behalf of any indemnified party.
6. Additional
Interest Under Certain Circumstances.
(a)
Additional interest (the “Additional Interest”) with respect to the Initial
Securities shall be assessed as follows if any of the following events occur
(each such event in clauses (i) through (iv) below a “Registration
Default”):
(i) the
Company has not filed any Registration Statement required by this Agreement with
the Commission on or prior to the applicable Filing Deadline;
(ii) any
Registration Statement required by this Agreement has not become effective on or
prior to the applicable Effectiveness Deadline;
(iii) the
Registered Exchange Offer has not been consummated on or prior to the
Consummation Deadline;
or
(iv) if after
either the Exchange Offer Registration Statement or the Shelf Registration
Statement is declared effective (A) such Registration Statement thereafter
ceases to be effective; or (B) such Registration Statement or the related
prospectus ceases to be usable (except as permitted in paragraph (b)) in
connection with resales of Transfer Restricted Securities during the periods
specified herein because either (1) any event occurs as a result of which
the related prospectus forming part of such Registration Statement would include
any 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, or (2) it shall be necessary to amend
such Registration Statement or supplement the related prospectus, to comply with
the Securities Act or the Exchange Act or the respective rules
thereunder.
Additional
Interest shall accrue on the Initial Securities over and above the interest set
forth in the title of the Securities from and including the date on which any
such Registration Default shall occur to but excluding the date on which all
such Registration Defaults have been cured, at a rate of 0.25% per annum for the
first 90-day period immediately
-16-
following
the occurrence of a Registration Default, which rate shall increase by an
additional 0.25% per annum with respect to each subsequent 90-day period until
all Registration Defaults have been cured, up to a maximum rate of 1.0% per
annum.
(b) A
Registration Default referred to in Section 6(a)(iv)(B) hereof shall be
deemed not to have occurred and be continuing in relation to a Shelf
Registration Statement or the related prospectus if (i) such Registration
Default has occurred solely as a result of (x) the filing of a post-effective
amendment to such Shelf Registration Statement to incorporate annual audited
financial information with respect to the Company where such post-effective
amendment is not yet effective and needs to be declared effective to permit
Holders to use the related prospectus or (y) other material events, with respect
to the Company that would need to be described in such Shelf Registration
Statement or the related prospectus and (ii) in the case of clause (y), the
Company is proceeding promptly and in good faith to amend or supplement such
Shelf Registration Statement and related prospectus to describe such events;
provided,
however, that in
any case if such Registration Default occurs for a continuous period in excess
of 30 days, Additional Interest shall be payable in accordance with the above
paragraph from the day such Registration Default occurs until such Registration
Default is cured.
(c) Any
amounts of Additional Interest due pursuant to clause (i), (ii) or (iii) of
Section 6(a) above will be payable in cash on the regular interest payment dates
with respect to the Initial Securities. The amount of Additional Interest will
be determined by multiplying the applicable Additional Interest rate by the
principal amount of the Initial Securities, multiplied by a fraction, the
numerator of which is the number of days such Additional Interest rate was
applicable during such period (determined on the basis of a 360-day year
comprised of twelve 30-day months), and the denominator of which is
360.
(d) “Transfer
Restricted Securities” means each Security until (i) the date on which such
Transfer Restricted Security has been exchanged by a person other than a
broker-dealer for a freely transferable Exchange Security in the Registered
Exchange Offer, (ii) following the exchange by a broker-dealer in the Registered
Exchange Offer of a Initial Security for an Exchange Note, the date on which
such Exchange Note is sold to a purchaser who receives from such broker-dealer
on or prior to the date of such sale a copy of the prospectus contained in the
Exchange Offer Registration Statement, (iii) the date on which such Initial
Security has been effectively registered under the Securities Act and disposed
of in accordance with the Shelf Registration Statement or (iv) the date on which
such Initial Securities is distributed to the public pursuant to Rule 144 under
the Securities Act or is saleable pursuant to Rule 144(k) under the Securities
Act.
7. Rules
144 and 144A. The
Company shall use its reasonable efforts to file the reports required to be
filed by it under the Securities Act and the Exchange Act in a timely manner
and, if at any time the Company is not required to file such reports, it will,
upon the request of any Holder of Initial Securities, make publicly available
other information so long as necessary to permit sales of their securities
pursuant to Rules 144 and 144A. The Company covenants that it will take
such further action as any Holder of Initial Securities may reasonably request,
all to the extent required from time to time to en
-17-
able such
Holder to sell Initial Securities without registration under the Securities Act
within the limitation of the exemptions provided by Rules 144 and 144A
(including the requirements of Rule 144A(d)(4)). The Company will provide a
copy of this Agreement to prospective purchasers of Initial Securities
identified to the Company by the Purchasers upon request. Upon the request of
any Holder of Initial Securities, the Company shall deliver to such Holder a
written statement as to whether it has complied with such requirements.
Notwithstanding the foregoing, nothing in this Section 7 shall be deemed to
require the Company to register any of its securities pursuant to the Exchange
Act.
8. Underwritten
Registrations. If
any of the Transfer Restricted Securities covered by any Shelf Registration are
to be sold in an underwritten offering, the investment banker or investment
bankers and manager or managers that will administer the offering (“Managing
Underwriters”) will be selected by the Holders of a majority in aggregate
principal amount of such Transfer Restricted Securities to be included in such
offering.
No person
may participate in any underwritten registration hereunder unless such person
(i) agrees to sell such person’s Transfer Restricted Securities on the basis
reasonably provided in any underwriting arrangements approved by the persons
entitled hereunder to approve such arrangements and (ii) completes and executes
all questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements.
9. Suspension. (a)Notwithstanding
any of the other provisions of this Agreement, but subject to Section 9(b)
hereof, the Company shall have the right on one or more occasions to delay the
filing, amendment or effectiveness of a Shelf Registration Statement or, if the
Shelf Registration Statement has become effective, to suspend the effectiveness
of such Registration Statement in the event that the board of directors of the
Company determines in its reasonable good faith judgment that (i) the
filing, declaration of effectiveness or continued effectiveness of such Shelf
Registration Statement at such time would require the Company to disclose
therein a proposed or consummated financing, reorganization or recapitalization,
or pending or consummated negotiations relating to a merger, consolidation,
acquisition or similar transaction or other business transaction, or other
material event, which disclosure in the reasonable judgment of the Company,
would adversely affect the Company or (ii) pro forma and/or historical
financial statements meeting the requirements of the Securities Act as a result
of any transaction described in clause (i) above are not available at such
time. Any delay or suspension period pursuant to this Section 9(a) shall begin
on the date specified in a written notice given by the Company to the Holders
and shall end on the date specified in a subsequent written notice given by the
Company to the Holders. If the Company shall exercise its right to delay the
filing, amendment or effectiveness of a Shelf Registration Statement pursuant to
this Section 9(a), the period within which such Shelf Registration Statement
must be declared effective or during which the effectiveness of such Shelf
Registration Statement must be maintained pursuant to this Agreement shall be
extended by the number of days of the delay or suspension period.
-18-
(b) The
Company may give a delay or suspension notice pursuant to Section 9(a) hereof at
any time and from time to time; provided,
however, that
the aggregate of all delay and suspension periods shall not exceed 45 days in
any three-month period or 90 days in the aggregate in any 12-month
period.
10. Miscellaneous.
(a) Amendments
and Waivers. The
provisions of this Agreement may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given,
except by the Company and the written consent of the Holders of a majority in
principal amount of the Securities affected by such amendment, modification,
supplement, waiver or consents.
(b) Notices. All
notices and other communications provided for or permitted hereunder shall be
made in writing by hand delivery, first-class mail, facsimile transmission, or
air courier which guarantees overnight delivery:
(1) if to a
Holder of the Securities, at the most current address given by such Holder to
the Company.
(2) if to the
Purchasers:
Banc of
America Securities LLC
0 Xxxx
00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Fax No.:
(000) 000-0000
Attention:
Legal Department
with a
copy to:
Xxxxxx
Xxxxxx & Xxxxxxx LLP
00 Xxxx
Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000-0000
Fax No.:
(000) 000-0000
Attention:
Xxxx X. Xxxxxx, Esq.
(3) if to the
Company, at its address as follows:
Cincinnati
Xxxx Inc.
000 Xxxx
Xxxxxx Xxxxxx
Xxxxxxxxxx,
Xxxx 00000
Attention:
General Counsel
with a
copy to:
Cravath,
Swaine & Xxxxx LLP
Worldwide
Plaza
-19-
000
Xxxxxx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000-0000
Fax. No.:
(000) 000-0000
Attention:
Xxxxxxx X. Xxxx, Esq.
All such
notices and communications shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; three business days after being
deposited in the mail, postage prepaid, if mailed; when receipt is acknowledged
by recipient’s facsimile machine operator, if sent by facsimile transmission;
and on the day delivered, if sent by overnight air courier guaranteeing next day
delivery.
(c) No
Inconsistent Agreements. The
Company has not, as of the date hereof, entered into, nor shall it, on or after
the date hereof, enter into, any agreement with respect to its securities that
is inconsistent with the rights granted to the Holders herein or otherwise
conflicts with the provisions hereof.
(d) Successors
and Assigns. This
Agreement shall be binding upon the Company and its successors and
assigns.
(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 WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAWS.
(h) Severability. If any
one or more of the provisions contained herein, or the application thereof in
any circumstance, is held invalid, illegal or unenforceable, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions contained herein shall not be affected or impaired
thereby.
(i) Securities
Held by the Company.
Whenever the consent or approval of Holders of a specified percentage of
principal amount of Securities is required hereunder, Securities held by the
Company or its affiliates (other than subsequent Holders of Securities if such
subsequent Holders are deemed to be affiliates solely by reason of their
holdings of such Securities) shall not be counted in determining whether such
consent or approval was given by the Holders of such required
percentage.
(j) Submission
to Jurisdiction. By the
execution and delivery of this Agreement, the Company submits to the
nonexclusive jurisdiction of the
Federal and state
-20-
courts in
the Borough of Manhattan in The City of New York in any suit or proceeding
arising out of or relating to this Agreement or the transactions contemplated
hereby.
If the
foregoing is in accordance with your understanding of our agreement, please sign
and return to the Issuer a counterpart hereof, whereupon this instrument, along
with all counterparts, will become a binding agreement among the several
Purchasers, the Issuer and the Guarantors in accordance with its
terms.
[Signature
Pages Follow]
-21-
| Very truly yours, | |
| CINCINNATI XXXX INC. | |
|
By:______________________________ | |
| Name: Xxxx Xxxxxxxx | |
| Title: Vice President and Treasurer | |
-22-
|
BRFS
LLC,
BRCOM
Inc.,
BCSI
Inc.,
BRHI
Inc.,
Xxxxxxxx.Xxx
Inc.,
Cincinnati
Xxxx Any Distance Inc.,
Cincinnati
Xxxx Wireless Company,
Cincinnati
Xxxx Wireless Holdings LLC,
IXC
Business Services, LLC,
BCSIVA
Inc.,
IXC
Internet Services, Inc.,
Cincinnati
Xxxx Technology Solutions Inc.,
Cincinnati
Xxxx Public Communications Inc.,
Cincinnati
Xxxx Telecommunications
Services, LLC,
BRW
SVCS LLC,
BRWL,
LLC,
Cincinnati
Xxxx Complete Protection Inc.,
as
Guarantors
| |
|
By: ____________________________ | |
|
Name: Xxxx
Xxxxxxxx | |
|
Title: Treasurer | |
-23-
The
foregoing Exchange and
Registration Rights Agreement is
hereby confirmed and accepted as
of
the date first above written.
BANC OF
AMERICA SECURITIES LLC
Acting on behalf of themselves and as the
Representative of the several Purchasers
By: BANC
OF AMERICA SECURITIES LLC
By: __________________________
Name:
Title:
-24-
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 Initial Securities
where such Initial Securities were acquired by such broker-dealer as a result of
market-making activities or other trading activities. The Company has agreed
that, for a period of 90 days after the Expiration Date (as defined herein), 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 Initial 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
PLAN OF
DISTRIBUTION
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
Initial Securities where such Initial Securities were acquired as a result of
market-making activities or other trading activities. The Company has agreed
that, for a period of 90 days 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 [ ], 200[
], all dealers effecting transactions in the Exchange Securities may be required
to deliver a prospectus.1 In
addition, the legend required by Item 502(e) of Regulation S-K will
appear on the back cover page of the Exchange Offer
prospectus.
The
Company will not receive any proceeds from any sale of Exchange Securities by
broker-dealers. Exchange Securities received by broker-dealers for their own
account pursuant to the Exchange Offer may be sold from time to time in one or
more transactions in the over-the-counter market, in negotiated transactions,
through the writing of options on the Exchange Securities or a combination of
such methods of resale, at market prices prevailing at the time of resale, at
prices related to such prevailing market prices or negotiated prices. Any such
resale may be made directly to purchasers or to or through brokers or dealers
who may receive compensation in the form of commissions or concessions from any
such broker-dealer or the purchasers of any such Exchange Securities. Any
broker-dealer that resells Exchange Securities that were received by it for its
own account pursuant to the Exchange Offer and any broker or dealer that
participates in a distribution of such Exchange Securities may be deemed to be
an “underwriter” within the meaning of the Securities Act and any profit on any
such resale of Exchange Securities and any commission or concessions received by
any such persons may be deemed to be underwriting compensation under the
Securities Act. The Letter of Transmittal states that, by acknowledging that it
will deliver and by delivering a prospectus, a broker-dealer will not be deemed
to admit that it is an “underwriter” within the meaning of the Securities
Act.
For a
period of 90 days after the Expiration Date the Company will promptly send
additional copies of this Prospectus and any amendment or supplement to this
Prospectus to any broker-dealer that requests such documents in the Letter of
Transmittal. The
1 In
addition, the legend required by Item 502(e) of Regulation S-K will appear on
the back cover page of the Exchange Offer
prospectus
Company
has agreed to pay all expenses incident to the Exchange Offer (including the
expenses of one counsel for the Holders of the Securities) other than
commissions or concessions of any brokers or dealers and will indemnify the
Holders of the Securities (including any broker-dealers) against certain
liabilities, including liabilities under the Securities Act.
ANNEX
D
o CHECK
HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE
PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
|
Name:
____________________________________ |
|
Address: __________________________________ |
| ____________________________________ |
If the
undersigned is not a broker-dealer, the undersigned represents that it is not
engaged in, and does not intend to engage in, a distribution of Exchange
Securities. If the undersigned is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Initial Securities that were
acquired as a result of market-making activities or other trading activities, it
acknowledges that it will deliver a prospectus in connection with any resale of
such 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.
