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EXHIBIT 4.6
EXECUTION COPY
BRESNAN COMMUNICATIONS GROUP LLC
BRESNAN CAPITAL CORPORATION
8% Senior Notes due 2009
9 1/4% Senior Discount Notes due 2009
REGISTRATION RIGHTS AGREEMENT
New York, New York
January 25, 1999
Xxxxxxx Xxxxx Xxxxxx Inc.
Xxxxx Securities Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
TD Securities (USA) Inc.
In care of:
Xxxxxxx Xxxxx Xxxxxx Inc.
Seven World Trade Center
New York, New York 10048
Ladies and Gentlemen:
Bresnan Communications Group LLC, a limited liability company
organized under the laws of Delaware (the "Company"), and Bresnan Capital
Corporation, a corporation organized under the laws of Delaware ("BCC"), propose
to issue and sell to certain purchasers (the "Initial Purchasers"), upon the
terms set forth in a purchase agreement of even date herewith (the "Purchase
Agreement"), $170,000,000 aggregate principal amount of their 8% Senior Notes
due 2009 (the "Senior Notes") and $275,000,000 aggregate principal amount at
maturity (approximately $175,021,000 gross proceeds) of their 9 1/4% Senior
Discount Notes due 2009 (the "Senior Discount Notes" and, together with the
Senior Notes, the "Securities") relating to the initial placement of the
Securities (the "Initial Placement"). To induce the Initial Purchasers to enter
into the Purchase Agreement and to satisfy a condition of your obligations
thereunder, each of the Company and BCC agrees with you for your benefit and the
benefit of the holders from time to time of the Securities (including the
Initial Purchasers) (each a "Holder" and, together, the "Holders"), as follows:
1. Definitions. Capitalized terms used herein without
definition shall have the respective meanings set forth in the Purchase
Agreement. As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"Act" shall mean the Securities Act of 1933, as amended, and
the rules and
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regulations of the Commission promulgated thereunder.
"Affiliate" of any specified person shall mean any other
person that, directly or indirectly, is in control of, is controlled by, or is
under common control with, such specified person. For purposes of this
definition, control of a person shall mean 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"
shall have meanings correlative to the foregoing.
"Broker-Dealer" shall mean any broker or dealer registered as
such under the Exchange Act.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or trust
companies are authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange
Commission.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Exchange Offer Prospectus" shall mean the prospectus included
in the Exchange Offer Registration Statement, as amended or supplemented by any
prospectus supplement, with respect to the terms of the offering of any portion
of the New Securities covered by such Exchange Offer Registration Statement, and
all amendments and supplements thereto and all material incorporated by
reference therein.
"Exchange Offer Registration Period" shall mean the one-year
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" shall mean a
registration statement of the Company and BCC 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
thereto, in each case including the Exchange Offer Prospectus contained therein,
all exhibits thereto and all material incorporated by reference therein.
"Exchanging Dealer" shall mean any Holder (which may include
any Initial Purchaser) that is a Broker-Dealer electing to exchange for New
Securities any Securities that it acquired for its own account as a result of
market-making activities or other trading activities (but not directly from the
Company, BCC or any Affiliate of the Company or BCC) for New Securities.
"Holder" shall have the meaning set forth in the preamble
hereto.
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"Indenture" shall mean the Indenture relating to the
Securities, dated as of February 2, 1999, among the Company, BCC 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" shall have the meaning set forth in the
preamble hereto.
"Initial Purchaser" shall have the meaning set forth in the
preamble hereto.
"Losses" shall have the meaning set forth in Section 6(d)
hereof.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of Securities registered under a Registration
Statement.
"Managing Underwriters" shall mean the investment banker or
investment bankers and manager or managers that shall administer an underwritten
offering.
"New Securities" shall mean debt securities of the Company and
BCC identical in all material respects to the Securities (except that the
interest rate step-up provisions and the transfer restrictions shall be modified
or eliminated, as appropriate) and to be issued under the Indenture or the New
Securities Indenture.
"Prospectus" shall mean 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 thereto and
all material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble hereto.
"Registered Exchange Offer" shall mean the proposed offer by
the Company and BCC to issue and deliver to the Holders of the Securities that
are not prohibited by any law or policy of the Commission from participating in
such offer, in exchange for the Securities, a like aggregate principal amount of
the New Securities.
"Registration Statement" shall mean any Exchange Offer
Registration Statement or Shelf Registration Statement that covers any of the
Securities or the New Securities pursuant to the provisions of this Agreement,
any 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" shall have the meaning set forth in the preamble
hereto.
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"Shelf Registration" shall mean a registration effected
pursuant to Section 3 hereof.
"Shelf Registration Period" has the meaning set forth in
Section 3(b) hereof.
"Shelf Registration Statement" shall mean a "shelf"
registration statement of the Company and BCC 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.
"Trustee" shall mean the trustee with respect to the
Securities under the Indenture.
"underwriter" shall mean any underwriter of Securities in
connection with an offering thereof under a Shelf Registration Statement.
2. Registered Exchange Offer. (a) The Company and BCC shall
use their reasonable best efforts to prepare and, not later than 120 days after
the date of the original issuance of the Securities, shall file with the
Commission the Exchange Offer Registration Statement with respect to the
Registered Exchange Offer. The Company and BCC shall cause the Exchange Offer
Registration Statement to become effective under the Act not later than 180 days
after the date of the original issuance of the Securities.
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Company and BCC 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 or BCC, acquires the New Securities in
the ordinary course of such Holder's business, has no arrangements with any
person to participate in the distribution of the New Securities and is not
prohibited by any law or policy of the Commission from participating in the
Registered Exchange Offer) to trade such New Securities from and after their
receipt without any limitations or restrictions under the Act and without
material restrictions under the securities laws of a substantial proportion of
the several states of the United States.
(c) In connection with the Registered Exchange Offer, the
Company and BCC 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
20 days (or longer if required by applicable law) after the date notice
thereof is mailed to the Holders;
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(iii) use its reasonable best efforts to keep the Exchange
Offer Registration Statement continuously effective, supplemented and
amended as required, under the Act to ensure that it is available for
sales of New Securities by Exchanging Dealers during the Exchange Offer
Registration Period;
(iv) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan in New York
City, which may be the Trustee or an Affiliate of the Trustee;
(v) 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 is open;
(vi) prior to effectiveness of the Exchange Offer Registration
Statement, if requested or required by the Commission, provide a
supplemental letter to the Commission (A) stating that the Company and
BCC are conducting the Registered Exchange Offer in reliance on the
position of the Commission in Exxon Capital Holdings Corporation (pub.
avail. May 13, 1988) and Xxxxxx Xxxxxxx and Co., Inc. (pub. avail. June
5, 1991); and (B) including a representation that neither the Company
nor BCC have entered into any arrangement or understanding with any
person to distribute the New Securities to be received in the
Registered Exchange Offer and that, to the best of each of the
Company's and BCC's information and belief, each Holder participating
in the Registered Exchange Offer is acquiring the New Securities in the
ordinary course of business and has no arrangement or understanding
with any person to participate in the distribution of the New
Securities; and
(vii) comply in all respects with all applicable laws.
(d) As soon as practicable after the close of the Registered
Exchange Offer, the Company and BCC shall:
(i) accept for exchange all Securities tendered and not
validly withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation in accordance
with Section 4(s) all Securities so accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and deliver
to each Holder of Securities a principal amount or principal amount at
maturity, as the case may be, of New Securities equal to the principal
amount or principal amount at maturity, as the case may be, of the
Securities of such Holder so accepted for exchange.
(e) Each Holder hereby acknowledges and agrees that any such
Holder using the Registered Exchange Offer to participate in a distribution of
the New Securities (x) could not
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under Commission policy as in effect on the date of this Agreement rely on the
position of the Commission in Xxxxxx Xxxxxxx and Co., Inc. (pub. avail. June 5,
1991) and Exxon Capital Holdings Corporation (pub. avail. May 13, 1988), as
interpreted in the Commission's letter to Xxxxxxxx & Sterling dated July 2, 1993
and similar no-action letters; and (y) must comply with the registration and
prospectus delivery requirements of the Act in connection with any secondary
resale transaction which must be covered by an effective registration statement
containing the selling security holder information required by Item 507 or 508,
as applicable, of Regulation S-K under the Act if the resales are of New
Securities obtained by such Holder in exchange for Securities acquired by such
Holder directly from the Company, BCC or one of their respective Affiliates.
Accordingly, each Holder participating in the Registered Exchange Offer shall be
required to represent to the Company and BCC that, at the time of the
consummation of the Registered Exchange Offer:
(i) any New Securities received by such Holder will be
acquired in the ordinary course of business;
(ii) such Holder will have no arrangement or understanding
with any person to participate in the distribution of the Securities or
the New Securities within the meaning of the Act; and
(iii) such Holder is not an Affiliate of the Company or BCC.
(f) If any Initial Purchaser determines that it is not
eligible to participate in the Registered Exchange Offer with respect to the
exchange of Securities constituting any portion of an unsold allotment, at the
request of such Initial Purchaser, the Company and BCC shall issue and deliver
to such Initial Purchaser or the person purchasing New Securities registered
under a Shelf Registration Statement as contemplated by Section 3 hereof from
such Initial Purchaser, in exchange for such Securities, a like principal amount
or principal amount of maturity, as the case may be, of New Securities. The
Company and BCC shall use their respective best efforts 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.
3. Shelf Registration. (a) If (i) due to any change in law or
applicable interpretations thereof by the Commission's staff, either the Company
or BCC determines upon advice of its outside counsel that it is not permitted to
effect the Registered Exchange Offer as contemplated by Section 2 hereof; (ii)
for any other reason the Registered Exchange Offer is not consummated within 210
days after the date of original issuance of the Securities; (iii) any Initial
Purchaser so requests with respect to Securities that are not eligible to be
exchanged for New Securities in the Registered Exchange Offer and that are held
by it following consummation of the Registered Exchange Offer; (iv) any Holder
(other than an Initial Purchaser) is not eligible to participate in the
Registered Exchange Offer or does not receive freely tradeable New Securities in
the Registered Exchange Offer other than by reason of such Holder being an
affiliate of the Company or BCC within the meaning of the Act; or (v) in the
case of any Initial Purchaser that participates in the Registered Exchange Offer
or acquires New Securities pursuant to Section 2(f) hereof, such Initial
Purchaser does not receive freely tradeable New Securities in exchange for
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Securities constituting any portion of an unsold allotment (it being understood
that (x) the requirement that an Initial Purchaser deliver a Prospectus
containing the information required by Item 507 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"; and
(y) the requirement that an Exchanging Dealer deliver an Exchange Offer
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 Company and BCC shall effect a Shelf
Registration Statement in accordance with subsection (b) below.
(b) (i) The Company and BCC shall as promptly as practicable
(but in no event more than 60 days after so required or requested pursuant to
this Section 3), file with the Commission and thereafter shall use their
reasonable best efforts to cause to be declared effective under the Act a Shelf
Registration Statement relating to the offer and sale of the Securities or the
New Securities, as applicable, by the Holders thereof from time to time in
accordance with the methods of distribution elected by such Holders and set
forth in such Shelf Registration Statement; 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 of the provisions of this Agreement applicable to
such Holder; and provided further, that with respect to New Securities received
by an Initial Purchaser in exchange for Securities constituting any portion of
an unsold allotment, the Company and BCC 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
Item 507 or 508 of Regulation S-K, as applicable, in satisfaction of its
obligations under this subsection 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.
(ii) The Company and BCC shall use their respective reasonable
best efforts to keep the Shelf Registration Statement continuously effective,
supplemented and amended as required by the Act, in order to permit the
Prospectus forming part thereof to be usable by Holders for a period of two
years from the date of original issuance of the Securities or 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 Company and BCC shall be deemed not to
have used their respective reasonable best efforts to keep the Shelf
Registration Statement effective during the requisite period if they voluntarily
take any action that would result in Holders of Securities covered thereby not
being able to offer and sell such Securities during that period, unless (A) such
action is required by applicable law; or (B) such action is taken by the Company
or BCC in good faith and for valid business reasons (not including avoidance of
either the Company's or BCC's obligations hereunder), including the acquisition
or divestiture of assets, so long as the Company and BCC promptly thereafter
comply with the requirements of Section 4(k) hereof, if applicable.
4. Additional Registration Procedures. In connection with any
Shelf Registration
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Statement and, to the extent applicable, any Exchange Offer Registration
Statement, the following provisions shall apply.
(a) The Company and BCC shall:
(i) furnish to you, as soon as practicable prior to the filing
thereof with the Commission, a copy of any Exchange Offer Registration
Statement and any Shelf Registration Statement, and each amendment
thereof and each amendment or supplement, if any, to the Prospectus
included therein (including all documents incorporated by reference
therein after the initial filing) and shall use their best efforts to
reflect in each such document, when so filed with the Commission, such
comments as you reasonably propose;
(ii) include the information set forth in Annex A hereto on
the facing page of the Exchange Offer Registration Statement, in Annex
B hereto in the forepart of the Exchange Offer Registration Statement
in a section setting forth details of the Exchange Offer, in Annex C
hereto in the underwriting or plan of distribution section of the
Prospectus contained in the Exchange Offer Registration Statement, and
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 Item 507 or 508 of Regulation S-K, as
applicable, in the Exchange Offer Prospectus contained in the Exchange
Offer Registration Statement; and
(iv) in the case of a Shelf Registration Statement, include
the names of the Holders that propose to sell Securities pursuant to
the Shelf Registration Statement as selling security holders.
(b) The Company and BCC 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;
(ii) any Registration Statement and any amendment thereto does
not, when it becomes effective, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and
(iii) any Prospectus forming part of any Registration
Statement, 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 therein, in
light of the circumstances under which they were made, not misleading.
(c) The Company and BCC shall advise you, the Holders of
Securities covered by
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any Shelf Registration Statement and any Exchanging Dealer under any Exchange
Offer Registration Statement that has provided in writing to the Company or BCC
a telephone or facsimile number and address for notices, and, if requested by
you or any such Holder or Exchanging Dealer, shall confirm such advice in
writing (which notice pursuant to clauses (ii) through (v) hereof shall be
accompanied by an instruction to suspend the use of the Prospectus until the
Company and BCC shall have remedied the basis for such suspension):
(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;
(ii) of any request by the Commission for any amendment or
supplement to the Registration Statement or the Prospectus 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 BCC of any notification
with respect to the suspension of the qualification of the securities
included therein for sale in any jurisdiction or the initiation of any
proceeding for such purpose; and
(v) of the happening of any event that requires any change to
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.
(d) The Company and BCC shall use their respective best
efforts to obtain the withdrawal of any order suspending the effectiveness of
any Registration Statement or the qualification of the securities therein for
sale in any jurisdiction at the earliest possible time.
(e) The Company and BCC shall furnish to each Holder of
Securities covered by any Shelf Registration Statement, without charge, at least
one copy of such Shelf Registration Statement and any post-effective amendment
thereto, including all material incorporated therein by reference, and, if the
Holder so requests in writing, all exhibits thereto (including exhibits
incorporated by reference therein).
(f) The Company and BCC shall, during the Shelf Registration
Period, deliver to each Holder of Securities covered by any Shelf Registration
Statement, without charge, as many copies of the Prospectus (including each
preliminary Prospectus) included in such Shelf Registration Statement and any
amendment or supplement thereto as such Holder may reasonably request. Each of
the Company and BCC consents to the use of the Prospectus or any amendment or
supplement thereto by each of the selling Holders of Securities in connection
with the offering and sale of the Securities covered by the Prospectus, or any
amendment or
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supplement thereto, included in the Shelf Registration Statement.
(g) The Company and BCC 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
all material incorporated by reference therein, and, if the Exchanging Dealer so
requests in writing, all exhibits thereto (including exhibits incorporated by
reference therein).
(h) The Company and BCC shall promptly deliver to each Initial
Purchaser, each Exchanging Dealer and each other person required to deliver a
Prospectus during the Exchange Offer Registration Period, without charge, as
many copies of the Prospectus included in such Exchange Offer Registration
Statement and any amendment or supplement thereto as any such person may
reasonably request. Each of the Company and BCC consents to the use of the
Prospectus or any amendment or supplement thereto by any Initial Purchaser, any
Exchanging Dealer and any such other person that may be required to deliver a
Prospectus following the Registered Exchange Offer in connection with the
offering and sale of the New Securities covered by the Prospectus, or any
amendment or supplement thereto, included in the Exchange Offer Registration
Statement.
(i) Prior to the Registered Exchange Offer or any other
offering of Securities pursuant to any Registration Statement, the Company and
BCC shall arrange, if necessary, for the qualification of the Securities or the
New Securities for sale under the laws of such jurisdictions as any Holder shall
reasonably request and shall perform any and all other acts or things reasonably
necessary or advisable to enable the offer and sale in such jurisdictions of the
Securities or New Securities, as applicable; provided that in no event shall the
Company or BCC be obligated to qualify to do business in any jurisdiction where
it is not then so qualified or to take any action that would subject it to
service of process in suits, other than those arising out of the Initial
Placement, the Registered Exchange Offer or any offering pursuant to a Shelf
Registration Statement, or to taxation in any such jurisdiction where it is not
then so subject.
(j) The Company and BCC shall cooperate with the Holders of
Securities to facilitate the timely preparation and delivery of certificates
representing New Securities or Securities to be issued or sold pursuant to any
Registration Statement free of any restrictive legends and in such denominations
and registered in such names as Holders may request prior to sales of Securities
pursuant to such Registration Statement.
(k) Upon the occurrence of any event contemplated by
subsections (c)(ii) through (v) above, the Company and BCC shall promptly
prepare a post-effective amendment to the applicable Registration Statement or
an amendment or supplement to the related Prospectus or file any other required
document so that, as thereafter delivered to purchasers of the securities
included therein, the Prospectus will not include an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. In such circumstances, the period of effectiveness of the
Exchange Offer Registration Statement provided for in Section 2 and the Shelf
Registration Statement provided for in Section 3(b) shall each be extended by
the number of days
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from and including the date of the giving of a notice of suspension pursuant to
Section 4(c) to and including the date when the Initial Purchasers, the Holders
of the Securities and any known Exchanging Dealer shall have received such
amended or supplemented Prospectus pursuant to this Section.
(l) Not later than the effective date of any Registration
Statement, the Company and BCC shall provide a CUSIP number for the Securities
or the New Securities, as the case may be, registered under such Registration
Statement and provide the Trustee with printed certificates for such Securities
or New Securities, in a form eligible for deposit with The Depository Trust
Company.
(m) The Company and BCC shall use their best efforts to comply
with all applicable 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 shall make generally available to its security holders as soon
as practicable after the effective date of the applicable Registration Statement
an earnings statement satisfying the provisions of Section 11(a) of the Act.
(n) The Company and BCC shall cause the Indenture, to be
qualified under the Trust Indenture Act on or prior to the effective date of any
Shelf Registration Statement or Exchange Offer Registration Statement.
(o) The Company and BCC may require each Holder of Securities
to be sold pursuant to any Shelf Registration Statement to furnish to the
Company or BCC such information regarding the Holder and the distribution of
such Securities as the Company and BCC may from time to time reasonably require
for inclusion in such Registration Statement. The Company and BCC may exclude
from such Shelf Registration Statement the Securities of any Holder that
unreasonably fails to furnish such information within a reasonable time after
receiving such request.
(p) In the case of any Shelf Registration Statement, the
Company and BCC shall enter into such agreements (including if requested an
underwriting agreement in customary form) 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 (or such other provisions and
procedures acceptable to the Majority Holders and the Managing Underwriters, if
any) with respect to all parties to be indemnified pursuant to Section 6.
(q) In the case of any Shelf Registration Statement, the
Company and BCC shall:
(i) make reasonably available for inspection by the Holders of
Securities to be registered thereunder, any underwriter participating
in any disposition pursuant to such Registration Statement, and any
attorney, accountant or other agent retained by the Holders or any such
underwriter all relevant financial and other records, pertinent
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corporate documents and properties of the Company, BCC and their
respective subsidiaries;
(ii) cause the Company's and BCC's officers, directors and
employees to supply all relevant information reasonably requested by
the Holders or any such underwriter, attorney, accountant or agent in
connection with any such Registration Statement as is customary for
similar due diligence examinations; provided, however, that any
information that is designated in writing by the Company and BCC, in
good faith, as confidential at the time of delivery of such information
shall be kept confidential by the Holders or any such underwriter,
attorney, accountant or agent, unless such disclosure is made in
connection with a court proceeding or required by law, or such
information becomes available to the public generally or through a
third party without an accompanying obligation of confidentiality;
(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;
(iv) obtain opinions of counsel to the Company and BCC (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 Company (and, if
necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company
for which financial statements and financial data are, or are required
to be, included in the Registration Statement), addressed to each
selling Holder of Securities registered thereunder and the
underwriters, if any, in customary 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) and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Company
and BCC.
The actions set forth in clauses (iii), (iv), (v) and (vi) of this Section 4(q)
shall be performed on (A) the effective date 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.
(r) In the case of any Exchange Offer Registration Statement,
the Company and
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BCC shall:
(i) make reasonably available for inspection by such Initial
Purchaser, and any attorney, accountant or other agent retained by such
Initial Purchaser, all relevant financial and other records, pertinent
corporate documents and properties of the Company, BCC and their
respective subsidiaries;
(ii) cause the Company's and BCC's officers, directors and
employees to supply all relevant information reasonably requested by
such Initial Purchaser or any such attorney, accountant or agent in
connection with any such Registration Statement as is customary for
similar due diligence examinations; provided, however, that any
information that is designated in writing by the Company or BCC, in
good faith, as confidential at the time of delivery of such information
shall be kept confidential by such Initial Purchaser or any such
attorney, accountant or agent, unless such disclosure is made in
connection with a court proceeding or required by law, or such
information becomes available to the public generally or through a
third party without an accompanying obligation of confidentiality;
(iii) make such representations and warranties to such Initial
Purchaser, in form, substance and scope as are customarily made by
issuers to underwriters in primary underwritten offerings;
(iv) obtain opinions of counsel to the Company and BCC (which
counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to such Initial Purchaser and its counsel, addressed to
such Initial Purchaser, covering such matters as are customarily
covered in opinions requested in underwritten offerings;
(v) obtain "cold comfort" letters and updates thereof from the
independent certified public accountants of the Company (and, if
necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company
for which financial statements and financial data are, or are required
to be, included in the Registration Statement), addressed to such
Initial Purchaser, in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with
primary underwritten offerings, or if requested by such Initial
Purchaser or its 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 Initial Purchaser or its
counsel; and
(vi) deliver such documents and certificates as may be
reasonably requested by such Initial Purchaser or its counsel,
including those to evidence compliance with Section 4(k) and with
conditions customarily contained in underwriting agreements.
The foregoing actions set forth in clauses (iii), (iv), (v), and (vi) of this
Section 4(r) 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.
14
(s) If a Registered Exchange Offer is to be consummated, upon
delivery of the Securities by Holders to the Company or BCC (or to such other
person as directed by the Company and BCC) in exchange for the New Securities,
the Company and BCC shall mark, or cause to be marked, on the Securities so
exchanged that such Securities are being canceled in exchange for the New
Securities. In no event shall the Securities be marked as paid or otherwise
satisfied.
(t) The Company and BCC will use their respective commercially
reasonable efforts if the Securities have been rated prior to the initial sale
of such Securities, to confirm such ratings will apply to the Securities or the
New Securities, as the case may be, covered by a Registration Statement.
(u) In the event that any Broker-Dealer 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 Rules of Fair
Practice and the By-Laws of the National Association of Securities Dealers,
Inc.) 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,
assist such Broker-Dealer in complying with the customary requirements of an
underwritten offering and the registered offerings contemplated by this
Agreement, including the requirements under such Rules and By-Laws.
(v) The Company and BCC shall use their respective best
efforts to take all other steps necessary to effect the registration of the
Securities or the New Securities, as the case may be, covered by a Registration
Statement.
5. Registration Expenses. The Company and BCC 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, will reimburse the Holders for the reasonable fees and disbursements
of one firm or counsel (in addition to one local counsel in each jurisdiction)
designated by the Majority Holders to act as counsel for the Holders in
connection therewith, and, in the case of any Exchange Offer Registration
Statement, will reimburse the Initial Purchasers for the reasonable fees and
disbursements of counsel acting in connection therewith, in an amount not to
exceed $50,000.
6. Indemnification and Contribution. (a) Each of the Company
and BCC agree to indemnify and hold harmless each Holder of Securities or New
Securities, as the case may be, covered by any Registration Statement (including
each Initial Purchaser and, 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 Section 15 of the Act or Section 20
of 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
15
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 the 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 to reimburse each such indemnified
party, as incurred, for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that (i) the Company and BCC will not be
liable in any case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company and BCC by or on
behalf of any such Holder specifically for inclusion therein and (ii) that with
respect to any untrue statement or omission of a material fact made in any
preliminary Prospectus, the indemnity agreement contained in this Section 6
shall not inure to the benefit of any indemnified party under this indemnity
agreement from whom the person asserting any such loss, claim, damage or
liability purchased the Securities concerned, to the extent that any such loss,
claim, damage or liability of such indemnified party occurs under circumstances
where it shall have been determined by a court of competent jurisdiction by
final and nonappealable judgment that (i) the Company and/or BCC had previously
furnished copies of the Prospectus to such indemnified party; (ii) delivery of
the Prospectus was required under the Act to be made to such person; (iii) the
untrue statement or omission of a material fact contained in the preliminary
Prospectus was corrected in the Prospectus; and (iv) there was not sent or given
to such person, at or prior to the written confirmation of the sale by the
indemnified party of such Securities to such person, a copy of the Prospectus.
This indemnity agreement will be in addition to any liability which the Company
and BCC may otherwise have.
The Company and BCC, also agree to indemnify or contribute as
provided in Section 6(d) to Losses of each underwriter of Securities or New
Securities, as the case may be, registered under a Shelf Registration Statement,
their directors, officers, employees or agents and each person who controls such
underwriter on substantially the same basis as that of the indemnification of
the Initial Purchasers and the selling Holders provided in this Section 6(a) and
shall, if requested by any Holder, enter into an underwriting agreement
reflecting such agreement, as provided in Section 4(p) hereof.
(b) Each Holder of securities covered by a Registration
Statement (including each Initial Purchaser and, with respect to any Prospectus
delivery as contemplated in Section 4(h) hereof, each Exchanging Dealer)
severally and not jointly agrees to indemnify and hold harmless the Company, BCC
each of their respective directors, each of their respective officers who signs
such Registration Statement and each person who controls the Company or BCC
within the meaning of either Section 15 of the Act or Section 20 of the Exchange
Act, to the same extent as the foregoing indemnity from the Company and BCC to
each such Holder, but only with reference to written information relating to
such Holder furnished to the Company or BCC 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.
16
(c) Promptly after receipt by an indemnified party under this
Section 6 or 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 it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses;
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ one separate counsel (and one local counsel in
each jurisdiction), 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, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying 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 Initial Purchaser or any subsequent
Holder of any Security or New Security be responsible, in the aggregate, for any
amount in excess of the
17
purchase discount or commission applicable to such Security, or in the case of a
New Security, applicable to the Security that 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 and BCC shall be deemed to be
equal to the total net proceeds from the Initial Placement (before deducting
expenses) as set forth on the cover page of the Final Memorandum. Benefits
received by the Initial Purchasers shall be deemed to be equal to the total
purchase discounts and commissions as set forth on the cover page of the Final
Memorandum, and benefits received by any other Holders shall be deemed to be
equal to the value of receiving Securities or 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, among other things, 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 intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The parties agree that it would not be just
and equitable if contribution were determined by pro rata allocation (even if
the Holders were treated as one entity for such purpose) or any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section, 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 Company
or BCC within the meaning of either the Act or the Exchange Act, each officer of
the Company or BCC who shall have signed the Registration Statement and each
director of the Company or BCC shall have the same rights to contribution as the
Company and BCC, 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 Company, BCC or any of the directors, officers, employees, agents or
controlling persons referred to in this Section 6, and will survive the sale by
a Holder of securities covered by a Registration Statement.
7. Underwritten Registrations. (a) If any of the Securities or
New Securities, as the case may be, covered by any Shelf Registration Statement
are to be sold in an underwritten offering, the Managing Underwriters shall be
selected by the Majority Holders after good faith consultation with the Company
and BCC.
(b) No person may participate in any underwritten offering
pursuant to any Shelf Registration Statement, unless such person (i) agrees to
sell such person's Securities or New Securities, as the case may be, on the
basis reasonably provided in any underwriting arrangements approved by the
persons entitled hereunder to
18
approve such arrangements; and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements.
8. No Inconsistent Agreements. Neither the Company nor BCC
has, 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.
9. Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company and BCC have obtained the
written consent of the Holders of at least a majority of the then outstanding
aggregate principal amount of Senior Notes or aggregate principal amount at
maturity of Senior Discount Notes (or, in each case, after the consummation of
any Registered Exchange Offer in accordance with Section 2 hereof, of the
applicable class of New Securities); provided that, with respect to any matter
that directly or indirectly affects the rights of any Initial Purchaser
hereunder, the Company and BCC 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 or New Securities, as the case may be, 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 or New Securities, as the case may be, being sold rather
than registered under such Registration Statement.
10. 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:
(a) if to a Holder, at the most current address given by such
Holder to the Company or BCC in accordance with the provisions of this Section
10, which address initially is, with respect to each Holder, the address of such
Holder maintained by the Registrar under the Indenture, with a copy in like
manner to Xxxxxxx Xxxxx Xxxxxx Inc.;
(b) if to you, initially at the respective addresses set forth
in the Purchase Agreement; and
(c) if to the Company or BCC, initially at their respective
addresses 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 Company or BCC by notice to the
other parties may designate additional or different addresses for subsequent
notices or communications.
11. Successors. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties,
including, without the need for an express assignment or any consent by the
Company and BCC thereto, subsequent Holders of Securities and the New
Securities. The Company and BCC hereby agree to extend the benefits of this
Agreement to any Holder of Securities and the New Securities, and any such
Holder may specifically enforce the provisions of this Agreement as if an
original party hereto.
12. Counterparts. This Agreement may be in signed
counterparts, each of which
19
shall an original and all of which together shall constitute one and the same
agreement.
13. Headings. The headings used herein are for convenience
only and shall not affect the construction hereof.
14. Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed in the State of New York.
15. Severability. In the event that any one of more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
16. Securities Held by the Company, etc. Whenever the consent
or approval of Holders of a specified percentage of principal amount or
principal amount at maturity, as the case may be, of Securities or New
Securities is required hereunder, Securities or New Securities, as applicable,
held by the Company, BCC or their respective Affiliates shall be disregarded and
deemed not to be outstanding in determining whether such consent or approval was
given by the Holders of such required percentage.
17. Termination. This Agreement shall automatically terminate,
without any further action on the part of the Company, BCC or the Initial
Purchasers, upon (i) the termination or cancellation of the Purchase Agreement
prior to the Closing Date or (ii) upon the completion of the Special Mandatory
Redemption pursuant to paragraph 5(b) of the Securities and Article III of the
Indenture and, with respect to a termination pursuant to clause (i) only, this
Agreement shall no longer be in force and effect and no party shall have any
further liability or obligation hereunder.
20
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company, BCC and the several Initial Purchasers.
Very truly yours,
BRESNAN COMMUNICATIONS GROUP LLC
By Bresnan Communications Company Limited
Partnership, its sole member
By BCI (USA), L.L.C., managing general
partner
By Bresnan Communications, Inc., member
By /s/ Xxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President & General Counsel
Bresnan Capital Corporation
By /s/ Xxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Representative
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
Xxxxxxx Xxxxx Xxxxxx Inc.
Xxxxx Securities Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
TD Securities (USA) Inc.
By: Xxxxxxx Xxxxx Xxxxxx Inc.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
21
ANNEX A
Each Broker-Dealer that receives New Securities for its own account pursuant to
the Exchange Offer must acknowledge that it will deliver a prospectus in
connection with any resale of such New Securities. The Letter of Transmittal
states that by so acknowledging and by delivering a prospectus, a Broker-Dealer
will not be deemed to admit that it is an "underwriter" within the meaning of
the Securities Act. This Prospectus, as it may be amended or supplemented from
time to time, may be used by a Broker-Dealer in connection with resales of New
Securities received in exchange for Securities where such Securities were
acquired by such Broker-Dealer as a result of market-making activities or other
trading activities. The Company and BCC have agreed that, starting on the
Expiration Date (as defined herein) and ending on the close of business one year
after the Expiration Date, it will make this Prospectus available to any Broker-
Dealer for use in connection with any such resale. See "Plan of Distribution".
22
ANNEX B
Each Broker-Dealer that receives New Securities for its own account in exchange
for Securities, where such Securities were acquired by such Broker-Dealer as a
result of market-making activities or other trading activities, must acknowledge
that it will deliver a prospectus in connection with any resale of such New
Securities. See "Plan of Distribution".
23
ANNEX C
PLAN OF DISTRIBUTION
Each Broker-Dealer that receives New Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a Broker-Dealer in connection with resales of New Securities received in
exchange for Securities where such Securities were acquired as a result of
market-making activities or other trading activities. The Company and BCC have
agreed that, starting on the Expiration Date and ending on the close of business
one year after the Expiration Date, they will make this Prospectus, as amended
or supplemented, available to any Broker-Dealer for use in connection with any
such resale. In addition, until __________, 199__, all dealers effecting
transactions in the New Securities may be required to deliver a prospectus.
Neither the Company nor BCC will receive any proceeds from any
sale of New Securities by brokers-dealers. New Securities received by
Broker-Dealers for their own account pursuant to the Exchange Offer may be sold
from time to time in one or more transactions in the over-the-counter market, in
negotiated transactions, through the writing of options on the New Securities or
a combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such Broker-Dealer and/or the purchasers of any such New
Securities. Any Broker-Dealer that resells New Securities that were received by
it for its own account pursuant to the Exchange Offer and any broker or dealer
that participates in a distribution of such New Securities may be deemed to be
an "underwriter" within the meaning of the Securities Act and any profit
resulting from any such resale of New Securities and any commissions or
concessions received by any such persons may be deemed to be underwriting
compensation under the Securities Act. The Letter of Transmittal states that by
acknowledging that it will deliver and by delivering a prospectus, a
Broker-Dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act.
For a period of one year after the Expiration Date, the
Company and BCC will promptly send additional copies of this Prospectus and any
amendment or supplement to this Prospectus to any Broker-Dealer that requests
such documents in the Letter of Transmittal. The Company and BCC have agreed to
pay all expenses incident to the Exchange Offer (including the expenses of one
counsel for the Holder 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.
[If applicable, add information required by Regulation S-K
Items 507 and/or 508.]
24
ANNEX D
Rider A
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS
THERETO.
Name:
Address:
Rider B
If the undersigned is not a Broker-Dealer, the undersigned represents that it
acquired the New Securities in the ordinary course of its business, it is not
engaged in, and does not intend to engage in, a distribution of New Securities
and it has no arrangements or understandings with any person to participate in a
distribution of the New Securities. If the undersigned is a Broker-Dealer that
will receive New Securities for its own account in exchange for Securities, it
represents that the Securities to be exchanged for New Securities were acquired
by it as a result of market-making activities or other trading activities and
acknowledges that it will deliver a prospectus in connection with any resale of
such New Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
