EXHIBIT 4.19
EXECUTION COPY
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300,000,000 POUNDS STERLING
10-3/4% SENIOR DEFERRED COUPON NOTES DUE 2008
REGISTRATION RIGHTS AGREEMENT
Dated as of March 13, 1998
by and among
NTL INCORPORATED
and
DONALDSON, LUFKIN & JENRETTE INTERNATIONAL
MORGAN STANLEY & CO. INTERNATIONAL LIMITED
BT ALEX. BROWN INTERNATIONAL,
DIVISION OF BANKERS TRUST INTERNATIONAL PLC
CHASE SECURITIES INC.
SALOMON BROTHERS INTERNATIONAL LIMITED
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This Registration Rights Agreement (this "Agreement") is made and entered
into as of March 13, 1998 by and among NTL Incorporated, a Delaware corporation
(the "Company"), and Donaldson, Lufkin & Jenrette International, Morgan Stanley
& Co. International Limited, BT Alex. Brown International, Division of Bankers
Trust International PLC, Chase Securities Inc. and Salomon Brothers
International Limited (each an "Initial Purchaser" and collectively, the
"Initial Purchasers"). The Company proposes to issue and sell to the Initial
Purchasers (the "Initial Placement") 300,000,000 pounds sterling aggregate
principal amount at maturity of its 10-3/4% Senior Deferred Coupon Notes due
2008 (the "Notes"). As an inducement to the Initial Purchasers to enter into the
purchase agreement, dated as of March 6, 1998 ( the "Purchase Agreement"), and
in satisfaction of a condition to the Initial Purchasers' obligations
thereunder, the Company agrees with the Initial Purchasers, (i) for the benefit
of the Initial Purchasers and (ii) for the benefit of the holders from time to
time of the Notes whose names appear in the register maintained by the Registrar
in accordance with the provisions of the Indenture (as defined in Section 1
hereof) (including the Initial Purchasers), as follows:
SECTION 1. DEFINITIONS
Capitalized terms used herein without definition shall have their
respective meanings set forth in the Purchase Agreement. As used in this
Agreement, the following capitalized defined terms shall have the following
meanings:
"Act" means the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.
"Affiliate" of any specified person means any other person which, directly
or indirectly, is in control of, is controlled by, or is under common control
with, such specified person. For purposes of this definition, control of a
person means the power, direct or indirect, to direct or cause the direction of
the management and policies of such person whether by contract or otherwise; and
the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Closing Date" has the meaning set forth in the Purchase Agreement.
"Commission" means the Securities and Exchange Commission.
"Commission Delay Period" has the meaning set forth in Section 3(a) hereof.
"Consummate" means the occurrence of (i) the filing and effectiveness under
the Act of the Exchange Offer Registration Statement relating to the Exchange
Notes to be issued in the Registered Exchange Offer, (ii) the maintenance of
such Registration Statement continuously effective and the keeping of the
Registered Exchange Offer open for a period not less than the minimum period
required pursuant to Section 3(c)(ii) hereof, and (iii) the delivery by the
Company to the Registrar under the Indenture or the Exchange Notes Indenture, as
the case may be, of Exchange Notes in the same aggregate principal amount as the
aggregate principal amount of Notes that were tendered by Holders thereof and
accepted for exchange pursuant to the Registered Exchange Offer.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Exchange Notes" means debt securities of the Company identical in all
material respects to the Notes (except that interest will accrue on the Exchange
Notes from the last day on which interest was paid on the Notes prior to the
date of original issuance of the Exchange Notes or, if no such interest has been
paid, from April 1, 2003, and paragraph 2 of, and the transfer restrictions on,
the Notes will be eliminated), to be issued under the Indenture or the Exchange
Notes Indenture.
"Exchange Notes Indenture" means an indenture between the Company and the
Exchange Notes Trustee, identical in all material respects to the Indenture
(except that interest will accrue on the Exchange Notes from the last day on
which interest was paid on the Notes prior to the date of original issuance of
the Exchange Notes or, if no such interest has been paid, from April 1, 2003,
and paragraph 2 of, and the transfer restrictions on, the Notes will be
eliminated).
"Exchange Notes Trustee" means a bank or trust company reasonably
satisfactory to the Initial Purchasers, as trustee with respect to the Exchange
Notes under the Exchange Notes Indenture.
"Exchange Offer Registration Period" means a period expiring upon the
earliest to occur of (i) the one year period following the Consummation of the
Registered Exchange Offer, (ii) the date on which, in the opinion of counsel to
the Company, all of the Transfer Restricted Securities then held by the Holders
may be sold by such Holders in the public United States securities markets in
the absence of a registration statement covering such sales and (iii) the date
on which there ceases to be outstanding any Transfer Restricted Securities.
"Exchange Offer Registration Statement" means a registration statement of
the Company on an appropriate form under the Act with respect to the Registered
Exchange Offer, all amendments and supplements to such registration statement,
including post-effective amendments, and in each case, including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
"Exchanging Dealer" means any Holder (which may include the Initial
Purchasers) that is a broker-dealer, electing to exchange Transfer Restricted
Securities, acquired for its own account as a result of market-making activities
or other trading activities, for Exchange Notes.
"Holder" has the meaning set forth in Section 2 hereof.
"Indenture" means the Indenture, dated as of March 13, 1998, between the
Company and the Trustee, relating to the Notes, as the same may be amended from
time to time in accordance with the terms thereof.
"Initial Placement" has the meaning set forth in the preamble hereto.
"Losses" has the meaning set forth in Section 8(d) hereof.
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"Majority Holders" means the Holders of a majority of the aggregate
principal amount of securities registered under a Registration Statement.
"Managing Underwriters" means the investment banker or investment bankers
and manager or managers that shall administer an underwritten offering.
"Notes" has the meaning set forth in the preamble hereto.
"Prospectus" means the prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A under the Act), as amended or supplemented
by any prospectus supplement, with respect to the terms of the offering of any
portion of Transfer Restricted Securities or the Exchange Notes, covered by such
Registration Statement, and all amendments and supplements to the Prospectus,
including post-effective amendments.
"Registered Exchange Offer" means the proposed offer to the Holders to
issue and deliver to such Holders, in exchange for Notes, a like principal
amount of the Exchange Notes.
"Registration Statement" means any Exchange Offer Registration Statement or
any Shelf Registration Statement, which is filed pursuant to the provisions
hereof, and in each case, including the Prospectus contained therein, all
amendments and supplements thereto, including post-effective amendments, and all
exhibits and material incorporated by reference therein.
"Shelf Registration" means a registration effected pursuant to Section 4
hereof.
"Shelf Registration Period" has the meaning set forth in Section 4(b)
hereof.
"Shelf Registration Statement" means a "shelf" registration statement of
the Company pursuant to the provisions of Section 4 hereof that covers some or
all of the Transfer Restricted 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, and in each case, including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"Supplement Delay Period" means any period commencing on the date of
receipt by a Holder of Transfer Restricted Securities or Exchange Notes of any
notice from the Company of the existence of any fact or event of the kind
described in Section 5(b)(2) hereof and ending on the date of receipt by such
Holder of an amended or supplemented Registration Statement or Prospectus, as
contemplated by Section 5(j) hereof, or the receipt by such Holder of written
notice from the Company (the "Advice") that the use of the Prospectus may be
resumed, and the receipt of copies of any additional or supplemental filings
that are incorporated by reference in the Prospectus.
"Transfer Restricted Securities" means each Note until (i) the date on
which such Note has been exchanged by a person other than a broker-dealer for an
Exchange Note in the
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Registered Exchange Offer, (ii) following the exchange by an Exchanging Dealer
in the Registered Exchange Offer of a Note 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 Note has been effectively registered under the Act and disposed of in
accordance with the Shelf Registration Statement (iv) the date on which such
Note is distributed to the public pursuant to Rule 144 under the Act (or any
similar provision then in effect) or is saleable pursuant to Rule 144(k) under
the Act or (v) the date upon which such Note ceases to be outstanding.
"Trustee" means the trustee with respect to the Notes under the Indenture.
"underwriter" means any underwriter of Notes in connection with an offering
thereof under a Shelf Registration Statement.
SECTION 2. HOLDERS
A person is deemed to be a holder of Transfer Restricted Securities (each,
a "Holder") whenever such person becomes the registered holder of such Notes
under the Indenture and includes broker-dealers that hold Transfer Restricted
Securities (i) as a result of market making activities and other trading
activities and (ii) which were acquired directly from the Company or an
Affiliate.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) The Company shall prepare and, on or prior to 90 days following the
Closing Date, shall file with the Commission the Exchange Offer Registration
Statement with respect to the Registered Exchange Offer. The Company shall use
its best efforts to cause the Exchange Offer Registration Statement to become
effective under the Act on or prior to 270 days after the Closing Date; provided
that, if as a result of there being no federal governmental budget for any year
following the 1997 fiscal year, the Commission ceases to review registration
statements like the Registration Statements in the time within which the
Commission normally reviews such registration statements in the ordinary course
(a "Commission Delay Period"), then such 270 day period during which the Company
must cause the Exchange Offer Registration Statement to become effective shall
be extended by the number of days of which the Commission Delay Period is
comprised. The Company shall use its best efforts to Consummate the Registered
Exchange Offer on or prior to 310 days after the Closing Date.
(b) Upon 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 electing to
exchange Transfer Restricted Securities for Exchange Notes (assuming that such
Holder is not an Affiliate of the Company within the meaning of the Act,
acquires the Exchange Notes in the ordinary course of such Holder's business and
has no arrangements with any person to participate in the distribution of the
Exchange Notes) to trade such Exchange Notes from and after their receipt
without any
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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 shall:
(i) mail to each Holder a copy of the Prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter
of transmittal and related documents;
(ii) keep the Registered Exchange Offer open for not less than 30 days
and not more than 45 days after the date notice thereof is mailed to the
Holders (or longer if required by applicable law);
(iii) utilize the services of one or more depositaries or exchange
agents (which, in either case, may be the Trustee) for the Registered
Exchange Offer with an address (A) in the Borough of Manhattan, The City of
New York and (B) if the Notes are then listed on the Luxembourg Stock
Exchange and the rules of the Luxembourg Stock Exchange so require,
Luxembourg; and
(iv) comply in all material respects with all applicable laws.
(d) As soon as practicable after the close of the Registered Exchange
Offer, the Company shall:
(i) accept for exchange all Transfer Restricted Securities tendered
and not validly withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation all Transfer Restricted
Securities so accepted for exchange; and
(iii) cause the Trustee or the Exchange Notes Trustee, as the case may
be, promptly to authenticate and deliver to each Holder of Transfer
Restricted Securities, Exchange Notes of a like principal amount to the
Transfer Restricted Securities of such Holder so accepted for exchange.
(e) The Initial Purchasers and the Company acknowledge that, pursuant to
interpretations by the Commission's staff of Section 5 of the Act, and in the
absence of an applicable exemption therefrom, each Exchanging Dealer is required
to deliver a Prospectus in connection with a sale of any Exchange Notes received
by such Exchanging Dealer pursuant to the Registered Exchange Offer in exchange
for Transfer Restricted Securities acquired for its own account as a result of
market-making activities or other trading activities. Accordingly, the Company
shall:
(i) include the information set forth in (A) Annex A hereto on the
cover of the Exchange Offer Registration Statement, (B) Annex B hereto in
the forepart of the Exchange Offer Registration Statement in a section
setting forth details of the Registered
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Exchange Offer, (C) Annex C hereto in the "Plan of Distribution" section of
the Prospectus contained in the Exchange Offer Registration Statement and
(D) Annex D hereto in the Letter of Transmittal delivered pursuant to the
Registered Exchange Offer and
(ii) use its best efforts to keep the Exchange Offer Registration
Statement continuously effective (subject to the existence of a Supplement
Delay Period) under the Act during the Exchange Offer Registration Period
for delivery by Exchanging Dealers in connection with sales of Exchange
Notes received pursuant to the Registered Exchange Offer, as contemplated
by Section 5(g) below.
(f) In the event that any Initial Purchaser determines that it is not
eligible to participate in the Registered Exchange Offer with respect to the
exchange of Transfer Restricted Securities constituting any portion of an unsold
allotment of Notes, at the written request of such Initial Purchaser, the
Company shall issue and deliver to such Initial Purchaser or the party
purchasing Transfer Restricted Securities registered under a Shelf Registration
Statement as contemplated by Section 4 hereof from such Initial Purchaser, in
exchange for such Transfer Restricted Securities, a like principal amount of
Exchange Notes. Exchange Notes issued in exchange for Transfer Restricted
Securities constituting any portion of an unsold allotment of Notes that are not
registered under a Shelf Registration Statement as contemplated by Section 4
hereof shall bear a legend as to restrictions on transfer. The Company shall
seek to cause the CUSIP Service Bureau to issue the same CUSIP number for such
Exchange Notes as for Exchange Notes issued pursuant to the Registered Exchange
Offer.
SECTION 4. SHELF REGISTRATION
If, (i) the Company is not required to file the Exchange Offer Registration
Statement nor permitted to Consummate the Registered Exchange Offer because the
Registered Exchange Offer is not permitted by applicable law or Commission
policy or (ii) any Holder of Transfer Restricted Securities notifies the Company
in writing within 10 business days of the filing and effectiveness under the Act
of the Exchange Offer Registration Statement that (A) it is prohibited by law or
Commission policy from participating in the Registered Exchange Offer, (B) it
may not resell the Exchange Notes acquired by it in the Registered Exchange
Offer to the public without delivering a prospectus, and the prospectus
contained in the Exchange Offer Registration Statement is not appropriate or
available for such resales or (C) it is a broker-dealer and owns Notes acquired
directly from the Company or an Affiliate (it being understood that, for
purposes of this Section 4, (x) the requirement that an Initial Purchaser
deliver a Prospectus containing the information required by Items 507 and/or 508
of Regulation S-K under the Act in connection with sales of Exchange Notes
acquired in exchange for such Notes shall result in such Exchange Notes being
not "freely tradeable" but (y) the requirement that an Exchanging Dealer deliver
a Prospectus in connection with sales of Exchange Notes acquired in the
Registered Exchange Offer in exchange for Notes acquired as a result of
market-making activities or other trading activities shall not result in such
Exchange Notes being not "freely tradeable"), the following provisions shall
apply:
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(a) The Company shall as promptly as practicable, file with the Commission
and thereafter shall use its best efforts to cause to be declared effective
under the Act on or prior to 270 days (plus any additional days allowed as a
result of a Commission Delay Period) after the date of original issuance of the
Notes, a Shelf Registration Statement relating to the offer and sale of the
Transfer Restricted Securities by the Holders from time to time in accordance
with the methods of distribution elected by such Holders and set forth in such
Shelf Registration Statement; provided, however, that with respect to Exchange
Notes received by an Initial Purchaser in exchange for Transfer Restricted
Securities constituting any portion of an unsold allotment of Notes, the Company
may, if permitted by current interpretations by the Commission's staff, file a
post-effective amendment to the Exchange Offer Registration Statement containing
the information required by Regulation S-K Items 507 and/or 508, as applicable,
in satisfaction of its obligations under this paragraph (a) with respect
thereto, and any such Exchange Offer Registration Statement, as so amended,
shall be referred to herein as, and governed by the provisions herein applicable
to, a Shelf Registration Statement.
(b) The Company shall use its best efforts to keep the Shelf Registration
Statement continuously effective in order to permit the Prospectus forming part
thereof to be usable by Holders for a period of two years from the date the
Shelf Registration statement is declared effective by the Commission (or until
one year after such effective date if such Shelf Registration Statement is filed
at the request of an Initial Purchaser) or such shorter period that will
terminate when (i) all the Transfer Restricted Securities covered by the Shelf
Registration Statement have been sold pursuant to the Shelf Registration
Statement, (ii) the date on which, in the opinion of counsel to the Company, all
of the Transfer Restricted Securities then held by the Holders may be sold by
such Holders in the public United States securities markets in the absence of a
registration statement covering such sales or (iii) the date on which there
ceases to be outstanding any Transfer Restricted Securities (in any such case,
such period being called the "Shelf Registration Period"). The Company shall be
deemed not to have used its best efforts to keep the Shelf Registration
Statement effective during the requisite period if it voluntarily takes any
action that would result in Holders of Transfer Restricted Securities covered
thereby not being able to offer and sell such securities during that period,
unless (i) such action is required by applicable law, (ii) such action is taken
by the Company in good faith and for valid business reasons (not including
avoidance of the Company's obligations hereunder), including the acquisition or
divestiture of assets, so long as the Company promptly thereafter complies with
the requirements of Section 5(j) hereof, if applicable or (iii) such action is
taken because of any fact or circumstance giving rise to a Supplement Delay
Period.
SECTION 5. REGISTRATION PROCEDURES
In connection with any Shelf Registration Statement and, to the extent
applicable, any Exchange Offer Registration Statement, the following provisions
shall apply:
(a) The Company shall ensure that (i) any Registration Statement and any
amendment thereto and any Prospectus forming part thereof and any amendment or
supplement thereto complies in all material respects with the Act and the rules
and regulations thereunder, (ii) any Registration Statement and any amendment
thereto does not, when it becomes effective, contain
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an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
and (iii) any Prospectus forming part of any Registration Statement, and any
amendment or supplement to such Prospectus, does not include an untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements, in the light of the circumstances under which they were made,
not misleading.
(b) (1) The Company shall advise the Initial Purchasers and, in the case of
a Shelf Registration Statement, the Holders of Transfer Restricted Securities
covered thereby, and, if requested by the Initial Purchasers or any such Holder,
confirm such advice in writing 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.
(2) The Company shall advise the Initial Purchasers and, in the case of a
Shelf Registration Statement, the Holders of Transfer Restricted Securities
covered thereby, and, in the case of an Exchange Offer Registration Statement,
any Exchanging Dealer which has provided in writing to the Company a telephone
or facsimile number and address for notices, and, if requested by the Initial
Purchasers or any such Holder or Exchanging Dealer, confirm such advice in
writing:
(i) of any request by the Commission for amendments or supplements to
the Registration Statement or the Prospectus included therein or for
additional information;
(ii) of the initiation by the Commission of proceedings relating to a
stop order suspending the effectiveness of the Registration Statement;
(iii) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement;
(iv) of the receipt by the Company of any notification with respect to
the suspension of the qualification of the securities included therein for
sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose; and
(v) of the existence of any fact and the happening of any event
(including, without limitation, pending negotiations relating to, or the
consummation of, a transaction or the occurrence of any event which would
require additional disclosure of material non-public information by the
Company in the Shelf Registration Statement as to which the Company has a
bona fide business purpose for preserving confidential or which renders the
Company unable to comply with Commission requirements) that, in the opinion
of the Company, makes untrue any statement of a material fact made in its
Shelf Registration Statement, the Prospectus or any amendment or supplement
thereto or any document incorporated by reference therein or requires the
making of any changes in the Registration Statement or the Prospectus so
that, as of such date, the statements therein are not misleading and do not
omit to state a material fact required to be stated therein or necessary to
make the statements therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading.
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Such advice may be accompanied by an instruction to suspend the use of the
Prospectus until the requisite changes have been made.
(c) The Company shall use its best efforts to obtain the withdrawal of any
order suspending the effectiveness of any Registration Statement at the earliest
possible time.
(d) The Company shall use its best efforts to furnish to each selling
Holder included within the coverage of any Shelf Registration Statement who so
requests in writing and who has provided to the Company an address for notices,
without charge, at least one conformed copy of such Shelf Registration Statement
and any post-effective amendment thereto, including financial statements and, if
the Holder so requests in writing, all exhibits and schedules (including those
incorporated by reference).
(e) The Company shall, during the Shelf Registration Period, deliver to
each Holder of Transfer Restricted Securities covered by any Shelf Registration
Statement and who has provided to the Company an address for notices, without
charge, as many copies of the Prospectus (including each preliminary Prospectus)
contained in such Shelf Registration Statement and any amendment or supplement
thereto as such Holder may reasonably request; subject to any notice by the
Company in accordance with Section 6(b) hereof, the Company consents to the use
of the Prospectus or any amendment or supplement thereto by each of the selling
Holders for the purposes of offering and resale of the Transfer Restricted
Securities covered by the Prospectus in accordance with the applicable
regulations promulgated under the Act.
(f) The Company shall furnish to each Exchanging Dealer, which so requests
in writing, without charge, at least one copy of the Exchange Offer Registration
Statement and any post-effective amendment thereto, including financial
statements, and, if the Exchanging Dealer so requests in writing, any documents
incorporated by reference therein and all exhibits and schedules (including
those incorporated by reference).
(g) The Company shall, during the Exchange Offer Registration Period,
promptly deliver to each Exchanging Dealer, without charge, as many copies of
the Prospectus included in such Exchange Offer Registration Statement and any
amendment or supplement thereto as such Exchanging Dealer may reasonably request
for delivery by such Exchanging Dealer in connection with a sale of Exchange
Notes received by it pursuant to the Registered Exchange Offer; the Company
consents to the use of the Prospectus or any amendment or supplement thereto by
any such Exchanging Dealer for the purposes contemplated by the Act or the
applicable regulations promulgated under the Act.
(h) Prior to the Registered Exchange Offer or any offering of Transfer
Restricted Securities pursuant to any Registration Statement, the Company shall
register or qualify or cooperate with the Holders of Transfer Restricted
Securities named therein and their respective counsel in connection with the
registration or qualification of such Transfer Restricted Securities for offer
and sale under the securities or blue sky laws of such jurisdictions of the
United States as any such Holders reasonably request in writing not later than
the date that is five business days prior to the date upon which this Agreement
specifies that the Registration Statement shall
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become effective; provided, however, that the Company will not be required to
qualify generally to do business in any jurisdiction where it is not then so
qualified or to take any action which would subject it to general service of
process or to taxation in any such jurisdiction where it is not then so subject.
(i) The Company shall endeavor to cooperate with the Holders of Transfer
Restricted Securities to facilitate the timely preparation and delivery of
certificates representing Transfer Restricted Securities to be sold pursuant to
any Registration Statement free of any restrictive legends and in such
denominations and registered in such names as Holders may request in writing at
least two business days prior to sales of securities pursuant to such
Registration Statement.
(j) Upon the occurrence of any event contemplated by paragraph (b)(2)(v)
hereof, the Company shall promptly prepare a post-effective amendment to any
Registration Statement or an amendment or supplement to the related Prospectus
or file any other required document so that as thereafter delivered to
purchasers of the Transfer Restricted Securities covered thereby, 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; provided that in the
event of a material business transaction (including, without limitation, pending
negotiations relating to such a transaction) which would, in the opinion of
counsel to the Company, require disclosure by the Company in the Shelf
Registration Statement of material non-public information for which the Company
has a bona fide business purpose for not disclosing, then for so long as such
circumstances exist, the Company shall not be required to prepare and file a
supplement or post-effective amendment hereunder.
(k) Not later than the effective date of any such Registration Statement
hereunder, the Company shall cause to be provided a CUSIP number for the Notes
or Exchange Notes, as the case may be, registered under such Registration
Statement, and provide the applicable trustee with printed certificates for such
Notes or Exchange Notes, in a form eligible for deposit with The Depository
Trust Company.
(l) The Company shall use its best efforts to comply with all applicable
rules and regulations of the Commission and shall make generally available to
its security holders in a regular filing on Form 10-Q or 10-K an earnings
statement satisfying the provisions of Rule 158 (which need not be audited) for
the twelve-month period commencing after effectiveness of the Shelf Registration
Statement.
(m) The Company shall cause the Indenture or the Exchange Notes Indenture,
as the case may be, to be qualified under the Trust Indenture Act in a timely
manner.
(n) The Company may require each Holder of Transfer Restricted Securities,
which are to be sold pursuant to any Shelf Registration Statement, to furnish to
the Company within 20 business days after written request for such information
has been made by the Company, such information regarding the Holder and the
distribution of such securities as the Company may from time to time reasonably
require for inclusion in such Registration Statement and such other
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information as may be necessary or advisable in the reasonable opinion of the
Company and its counsel, in connection with such Shelf Registration Statement.
No Holder of Transfer Restricted Securities shall be entitled to use the
Prospectus unless and until such Holder shall have furnished the information
required by this Section 5(n) and all such information required to be disclosed
in order to make the information previously furnished to the Company by such
Holder not materially misleading.
(o) The Company shall, if requested, promptly incorporate in a Prospectus
supplement or post-effective amendment to a Shelf Registration Statement, such
information as the Managing Underwriters and Majority Holders reasonably agree
should be included therein and shall make all required filings of such
Prospectus supplement or post-effective amendment as soon as notified of the
matters to be incorporated in such Prospectus supplement or post-effective
amendment; provided, however, that the Company shall not be required to take any
action pursuant to this Section 5(o) that would, in the opinion of counsel for
the Company, violate applicable law or to include information the disclosure of
which at the time would have an adverse effect on the business or operations of
the Company and/or its subsidiaries, as determined in good faith by the Company.
(p) In the case of any Shelf Registration Statement, the Company shall
enter into such agreements (including underwriting agreements) and take all
other reasonably appropriate actions in order to expedite or facilitate the
registration or the disposition of the Transfer Restricted 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 8 (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 8 from Holders of Notes to the
Company.
(q) In the case of any Shelf Registration Statement, the Company shall:
(i) make reasonably available for inspection by representatives of the
Holders of Transfer Restricted Securities to be registered thereunder, the
Managing Underwriter participating in any disposition pursuant to such
Registration Statement, and any attorney, accountant or other agent
retained by the Holders or any such Managing Underwriter, at the office
where normally kept during normal business hours, all financial and other
records, pertinent corporate documents and properties of the Company and
its subsidiaries, and cause the Company's officers, directors and employees
to supply all relevant information reasonably requested by the Holders or
any Managing Underwriter, attorney, accountant or other agent in connection
with any such Registration Statement as is customary for similar due
diligence examinations; provided, however, that the foregoing inspection
and information gathering shall be coordinated by the Managing
Underwriters, if any, or by one counsel designated by the Holders and that
such persons shall first agree in writing with the Company that any
information that is designated in writing by the Company, in good faith, as
confidential at the time of delivery of such information shall be kept
confidential by such person, unless such disclosure is made in connection
with a court proceeding or required by law, or such information becomes
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available to the public generally or through a third party without an
accompanying obligation of confidentiality;
(ii) make such representations and warranties to the Holders of
Transfer Restricted Securities registered thereunder and the underwriters,
if any, in form, substance and scope as are customarily made by issuers to
underwriters in underwritten offerings and covering matters including, but
not limited to, those set forth in the Purchase Agreement;
(iii) obtain opinions of counsel to the Company and updates thereof
(which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the Managing Underwriters, if any), addressed to
each selling Holder and the underwriters, if any, covering such matters as
are customarily covered in opinions requested in underwritten offerings and
such other matters as may be reasonably requested by such Holders and
underwriters;
(iv) obtain "cold comfort" letters (or, in the case of any person that
does not satisfy the conditions for receipt of a "cold comfort" letter
specified in Statement on Auditing Standards No. 72, an "agreed-upon
procedures letter") 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 where reasonably practicable to each selling Holder
of Transfer Restricted 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
(v) 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 5(j) and with any
customary conditions contained in the underwriting agreement or other
agreement entered into by the Company.
The foregoing actions set forth in clauses (ii), (iii), (iv) and (v)
of this Section 5(q) shall, if reasonably requested by the Majority Holder
or the Majority Underwriters, be performed at (A) the effectiveness of such
Registration Statement and each post-effective amendment thereto and (B)
each closing under any underwriting or similar agreement, as to the extent
required thereunder.
(vi) The Company may offer securities of the Company other than the
Notes or the Exchange Notes under the Shelf Registration Statement, except
where such offer would conflict with the terms of the Purchase Agreement.
12
SECTION 6. HOLDERS' AGREEMENTS
Each Holder of Transfer Restricted Securities and Exchange Notes, by the
acquisition of such Transfer Restricted Securities or Exchange Notes, as the
case may be, agrees:
(a) To furnish the information required to be furnished pursuant to Section
5(n) hereof within the time period set forth therein.
(b) That upon receipt of a notice of the commencement of a Supplement Delay
Period, it will keep the fact of such notice confidential, forthwith discontinue
disposition of its Transfer Restricted Securities or Exchange Notes, as the case
may be, pursuant to the Registration Statement, and will not deliver any
Prospectus forming a part thereof until receipt of the amended or supplemented
Registration Statement or Prospectus, as applicable, as contemplated by Section
5(j) hereof, or until receipt of the Advice. If a Supplement Delay Period should
occur, the Exchange Offer Registration Period or the Shelf Registration Period,
as applicable, shall be extended by the number of days of which the Supplement
Delay Period is comprised; provided that the Shelf Registration Period shall not
be extended if the Company has received an opinion of counsel (which counsel, if
different from counsel to the Company referred to in Section 6(a) and (b) of the
Purchase Agreement, shall be reasonably satisfactory to the Majority Holders of
the Transfer Restricted Securities named in the Shelf Registration Period) to
the effect that the Transfer Restricted Securities can be freely tradeable
without the continued effectiveness of the Shelf Registration Statement.
(c) If so directed by the Company in a notice of the commencement of a
Supplement Delay Period, each Holder of Transfer Restricted Securities or
Exchange Notes, as the case may be, will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
Holder's possession, of the Prospectus covering the Transfer Restricted
Securities or Exchange Notes, as the case may be.
(d) Sales of such Transfer Restricted Securities pursuant to a Registration
Statement shall only be made in the manner set forth in such currently effective
Registration Statement.
SECTION 7. REGISTRATION EXPENSES
The Company shall bear all expenses incurred in connection with the
performance of its obligations under Sections 3, 4 and 5 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 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. Notwithstanding the foregoing or anything in this
Agreement to the contrary, each Holder shall pay all underwriting discounts and
commission of any underwriters with respect to any Transfer Restricted
Securities sold by it.
13
SECTION 8. INDEMNIFICATION AND CONTRIBUTION
(a) In connection with Registration Statement, the Company agrees to
indemnify and hold harmless each Holder of Transfer Restricted Securities
covered thereby (including each Initial Purchaser and, with respect to any
Prospectus delivery as contemplated in Section 5(g) hereof, each Exchanging
Dealer), the directors, officers, employees, partners, representatives 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 alleged untrue
statement of a material fact contained in the Registration Statement as
originally filed or in any amendment thereof, or in any preliminary Prospectus
or Prospectus, or in any amendment thereof or supplement thereto, or arise out
of, or are based upon, the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and 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 will not be liable
in any case to the extent that any such loss, claim, damage or liability arises
out of, or is based upon, any such untrue statement or alleged untrue statement
or omission or alleged omission made therein in reliance upon and in conformity
with written information furnished to the Company by or on behalf of any such
Holder or by the Managing Underwriters specifically for inclusion therein and
(ii) the Company will not be liable to any indemnified party under this
indemnity agreement with respect to the Registration Statement or Prospectus to
the extent that any such loss, claim, damage or liability of such indemnified
party results solely from an untrue statement of a material fact contained in,
or the omission of a material fact from, the Registration Statement or
Prospectus, which untrue statement or omission was corrected in an amended or
supplemented Registration Statement or Prospectus, if the person alleging such
loss, claim, damage or liability was not sent or given, at or prior to the
written confirmation of such sale, a copy of the amended or supplemented
Registration Statement or Prospectus if the Company had previously furnished
copies thereof to such indemnified party and if delivery of a prospectus is
required by the Act and was not so made. This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
The Company also agrees to indemnify or contribute to Losses of, as
provided in Section 8(d), any underwriters of Notes registered under a Shelf
Registration Statement, their officers and directors and each person who
controls such underwriters on substantially the same basis as that of the
indemnification of the Initial Purchasers and the selling Holders provided in
this Section 8(a) and shall, if requested by any Holder, enter into an
underwriting agreement reflecting such agreement, as provided in Section 5(p)
hereof.
(b) Each Holder of Transfer Restricted Securities or Exchange Notes covered
by a Registration Statement (including each Initial Purchaser and, with respect
to any Prospectus delivery as contemplated in Section 5(g) hereof, each
Exchanging Dealer) severally agrees to
14
indemnify and hold harmless (i) the Company, (ii) each of its directors, (iii)
each of its officers who signs such Registration Statement and (iv) each person
who controls the Company within the meaning of either the Act or the Exchange
Act to the same extent as the foregoing indemnity from the Company to each such
Holder, but only with reference to written information relating to such Holder
furnished to the Company by or on behalf of such Holder specifically for
inclusion in the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which any such Holder
may otherwise have. In no event shall any Holder, its directors, officers or any
person who controls such Holder be liable or responsible for any amount in
excess of the amount by which the total amount received by such Holder with
respect to its sale of Transfer Restricted Securities pursuant to a Registration
Statement exceeds (i) the amount paid by such Holder for such Transfer
Restricted Securities and (ii) the amount of any damages that such Holder, its
directors, officers or any person who controls such Holder has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission.
(c) Promptly after receipt by an indemnified party under this Section 8 or
notice of the commencement of any action, the indemnified party will, if a claim
in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the failure to so 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
separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel (and local
counsel) if (i) the use of counsel chosen by the indemnifying party to represent
the indemnified party would present such counsel with a conflict of interest,
(ii) the actual or potential defendants in, or targets of, any such action
include both the indemnified party and the indemnifying party, and the
indemnified party reasonably concluded that there may be legal defenses
available to it and/or other indemnified parties that are different from or
additional to those available to the indemnifying party, (iii) the indemnifying
party did not employ counsel satisfactory to the indemnified party to represent
the indemnified party within a reasonable time after notice of the institution
of such action or (iv) the indemnifying party authorized the indemnified party
to employ separate counsel at the expense of the indemnifying party. An
indemnifying party shall 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 for which indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or potential parties to such
claim or
15
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 and does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on behalf of the
indemnified party.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 8 is unavailable or insufficient to hold harmless an indemnified
party for any reason, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall have a joint and several obligation
to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which such
indemnified party may be subject in such proportion as is appropriate to reflect
the relative benefits received by such indemnifying party, on the one hand, and
such indemnified party, on the other hand, from the Initial Placement and the
Registration Statement that resulted in such Losses; provided, however, that in
no case shall any Initial Purchaser or any subsequent Holder of any Note or
Exchange Note be responsible, in the aggregate, for any amount in excess of the
purchase discount or commission applicable to such Note, or in the case of an
Exchange Note, applicable to the Note which was exchangeable into such Exchange
Note, as set forth on the cover page of the Final Offering Memorandum, nor shall
any underwriter be responsible for any amount in excess of the underwriting
discount or commission applicable to the securities purchased by such
underwriter under the Registration Statement that resulted in such Losses. If
the allocation provided by the immediately preceding sentence is unavailable for
any reason, the indemnifying party and the indemnified party shall contribute in
such proportion as is appropriate to reflect not only such relative benefits,
but also the relative fault of such indemnifying party, on the one hand, and
such indemnified party, on the other hand, in connection with the statements or
omissions which resulted in such Losses, as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be equal to
the sum of (x) the total net proceeds from the Initial Placement (before
deducting expenses) as set forth on the cover page of the Final Offering
Memorandum and (y) the total amount of additional interest that the Company was
not required to pay as a result of registering the securities covered by the
Registration Statement that resulted in such Losses. 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 Offering Memorandum,
and benefits received by any other Holders shall be deemed to be equal to the
value of receiving Notes or Exchange Notes, 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 that resulted in
such Losses. Relative fault shall be determined by reference to whether any
alleged untrue statement or omission relates to information provided by the
indemnifying party, on the one hand, or by the indemnified party, on the other
hand. The parties agree that it would not be just and equitable if contribution
were determined by pro rata allocation or any other method of allocation that
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 guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person who
controls a Holder within the meaning of either the Act or the
16
Exchange Act and each director, officer, employee and agent of such Holder shall
have the same rights to contribution as such Holder, and each person who
controls the Company within the meaning of either the Act or the Exchange Act,
each officer of the Company who shall have signed the Registration Statement and
each director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this
paragraph (d).
(e) The provisions of this Section 8 shall remain in full force and effect,
regardless of any investigation made by or on behalf of any Holder or the
Company or any of the officers, directors or controlling persons referred to in
Section 8 hereof, and will survive the sale by a Holder of Transfer Restricted
Securities or Exchange Notes.
SECTION 9. RULE 144A AND RULE 144
The Company agrees with each Holder, for so long as any Transfer Restricted
Securities remain outstanding and during any period in which the Company (i) is
not subject to Section 13 or 15(d) of the Exchange Act, to make available, upon
request of any Holder, to such Holder or beneficial owner of Transfer Restricted
Securities in connection with any sale thereof and any prospective purchaser of
such Transfer Restricted Securities designated by such Holder or beneficial
owner, the information required by Rule 144A(d)(4) under the Act in order to
permit resales of such Transfer Restricted Securities pursuant to Rule 144A, and
(ii) is subject to Section 13 or 15 (d) of the Exchange Act, to make all filings
required thereby in a timely manner in order to permit resales of such Transfer
Restricted Securities pursuant to Rule 144.
SECTION 10. MISCELLANEOUS
(a) 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.
(b) Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, qualified, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of the
Holders of at least a majority of the then outstanding aggregate principal
amount of Notes (or, after the consummation of any Registered Exchange Offer in
accordance with Section 3 hereof, of Exchange Notes); provided, however, that
with respect to any matter that directly or indirectly affects the rights of any
Initial Purchaser hereunder, the Company shall obtain the written consent of
each such Initial Purchaser against which such amendment, qualification,
supplement, waiver or consent is to be effective. Notwithstanding the foregoing
(except the foregoing proviso), a waiver or consent to depart from the
provisions hereof, with respect to a matter, which relates exclusively to the
rights of Holders whose securities are being sold pursuant to a Registration
Statement and does not directly or indirectly affect the rights of other
Holders, may be given by the Majority Holders, determined on the basis of Notes
being sold rather than registered under such Registration Statement.
17
(c) Notices. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivery, first-class mail, telex,
telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the most current address given by such holder
to the Company in accordance with the provisions of this Section 10(c),
which address initially is, with respect to each Holder, the address of
such Holder maintained by the registrar under the Indenture or the Exchange
Note Indenture, as the case may be, with a copy in like manner to Morgan
Stanley & Co. International Limited;
(ii) if to the Initial Purchasers, initially at the respective
addresses set forth in the Purchase Agreement; and
(iii) if to the Company, initially at its address set forth in the
Purchase Agreement.
All such notices and communications shall be deemed to have been duly given
when received.
The Initial Purchasers or the Company by notice to the other may designate
additional or different addresses for subsequent notices or communications.
(d) Successors and Assigns. This Agreement shall inure to the benefit of,
and be binding upon, the successors and assigns of each of the parties hereto,
including, without the need for an express assignment or any consent by the
Company thereto, subsequent Holders of Notes and/or Exchange Notes. The Company
hereby agrees to extend the benefits of this Agreement to any Holder of Notes
and/or Exchange Notes and any such Holder may specifically enforce the
provisions of this Agreement as if an original party hereto.
(e) Counterparts. This agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original, and all of which taken
together shall constitute one and the same agreement.
(f) Headings. The headings in this agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. This agreement shall be governed by and construed in
accordance with the internal laws of the State of New York applicable to
agreements made and to be performed in said State (without reference to the
conflict of law rules thereof).
(h) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and the
remaining provisions hereof shall not be in any way impaired or affected
18
thereby, it being intended that all of the rights and privileges of the parties
shall be enforceable to the fullest extent permitted by law.
(i) Notes Held by the Company, etc. Whenever the consent or approval of
Holders of a specified percentage of principal amount of Notes or Exchange Notes
is required hereunder, Notes or Exchange Notes, as applicable, held by the
Company or its Affiliates (other than subsequent Holders of Notes or Exchange
Notes if such subsequent Holders are deemed to be Affiliates solely by reason of
their holdings of such Notes or Exchange Notes) shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage.
(j) Entire Agreement. This Agreement is intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto with respect
to the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
19
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
NTL INCORPORATED
By: /s/ Richard J. Lubasch
---------------------------------
Name: Richard J. Lubasch
Title: Senior Vice President
DONALDSON LUFKIN & JENRETTE
INTERNATIONAL
MORGAN STANLEY & CO.
INTERNATIONAL LIMITED
BT ALEX. BROWN INTERNATIONAL,
DIVISION OF BANKERS TRUST
INTERNATIONAL PLC
CHASE SECURITIES INC.
SALOMON BROTHERS
INTERNATIONAL LIMITED
By: MORGAN STANLEY & CO.
INTERNATIONAL LIMITED
By: /s/ Harry Stanley
- ---------------------------------------
Name: Harry Stanley
Title: Vice President
20
ANNEX A
Each broker-dealer that receives Exchange Notes for its own account pursuant to
the Registered Exchange Offer must acknowledge that it will deliver a prospectus
in connection with any resale of such Exchange Notes. 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 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
Notes received in exchange for Notes where such Exchange Notes were acquired by
such broker-dealer as a result of market-making activities or other trading
activities. The Company has agreed that, starting on the Expiration Date (as
defined herein) and ending on the close of business on the 180th day following
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."
A-1
ANNEX B
Each broker-dealer that receives Exchange Notes for its own account in exchange
for Notes, where such Notes 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 Notes.
See "Plan of Distribution."
B-1
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Registered Exchange Offer must acknowledge that it will deliver
a prospectus in connection with any resale of such Exchange Notes. The
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 Notes received in
exchange for Notes where such Notes were acquired as a result of market-making
activities or other trading activities. The Company has agreed that, starting on
the Expiration Date and ending on the close of business on the 180th day
following 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.
The Company will not receive any proceeds from any sale of Exchange Notes
by broker-dealers. Exchange Notes 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 Notes or by 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 at negotiated prices. Any such
resale may be made directly to purchaser 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 Exchange Notes. Any broker-
dealer that resells Exchange Notes that were received by it for its own account
pursuant to the Registered Exchange Offer and any broker or dealer that
participates in a distribution of such Exchange Notes may be deemed to be an
"underwriter" within the meaning of the Act and any profit of any such resale of
Exchange Notes and any commissions or concessions received by any such persons
may be deemed to be underwriting compensation under the 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 Act.
For a period of 180 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 Company has agreed to pay all expenses
incident to the Registered Exchange Offer (including the expenses of one counsel
for the holders of the Notes) other than commissions or concessions of any
brokers or dealers and will indemnify the holders of the Notes (including any
broker-dealers) against certain liabilities, including liabilities under the
Act.
[Add information required by Regulation S-K Items 507 and/or 508.]
C-1
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 is
not engaged in, and does not intend to engage in, a distribution of Exchange
Notes. If the undersigned is a broker-dealer that will receive Exchange Notes
for its own account in exchange for Notes 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 Notes;
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 Act.
D-1