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Exhibit 4.13
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REGISTRATION RIGHTS AGREEMENT
Dated December 23, 1998
between
NEXTEL COMMUNICATIONS, INC.
and
GOLDMAN, SACHS & CO.
MORGAN STANLEY & CO. INCORPORATED
NATIONSBANC MONTGOMERY SECURITIES LLC
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered
into December 23, 1998, between NEXTEL COMMUNICATIONS, INC., a Delaware
corporation (the "Company"), and GOLDMAN, SACHS & CO., MORGAN STANLEY & CO.
INCORPORATED and NATIONSBANC MONTGOMERY SECURITIES LLC (the "Initial
Purchasers").
This Agreement is made pursuant to the Purchase Agreement dated December
17, 1998, between the Company and the Initial Purchasers (the "Purchase
Agreement"), which provides for the sale by the Company to the Initial
Purchasers of 591,308 shares of Zero Coupon Convertible Preferred Stock due
2013 of the Company plus up to an additional 147,827 shares in the event the
Initial Purchasers exercise the over-allotment option in full (the "Preferred
Stock"), which will be mandatorily redeemable on December 23, 2013 (the
"Shares"), as set forth in the Certificate of Designation of the Powers,
Preferences and Relative Participating, Optional and Other Rights relating to
the Shares (the "Certificate of Designation"). The Shares will be convertible,
at the option of the holder thereof, in whole or in part, into Class A Common
Stock, par value $.001 per share, of the Company. In order to induce the
Initial Purchasers to enter into the Purchase Agreement, the Company has agreed
to provide to the Initial Purchasers and their direct and indirect transferees
the registration rights with respect to the Shares and the Common Shares (as
defined herein) set forth in this Agreement. The execution of this Agreement
is a condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions.
As used in this Agreement, the following capitalized defined terms shall
have the following meanings:
"1933 Act" shall mean the Securities Act of 19333, as amended from time to
time.
"1934 Act" shall mean the Securities Exchange Act of 1934, as amended from
time to time.
"Accrual Date" shall have the meaning set forth in the Certificate of
Designation.
"Additional Shares" shall mean any Shares issued in payment of Liquidated
Damages to any Holder.
"Certificate of Designation" shall have the meaning set forth in the
preamble.
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"Closing Date" shall mean the Closing Date as defined in the
Purchase Agreement.
"Common Shares" shall mean any shares of Class A Common Stock, par
value $.001 per share, of the Company issued in payment of Liquidated
Damages or upon conversion, repurchase or redemption of the Preferred
Stock at the rate and in the manner described in the Certificate of
Designation and any other capital stock of the Company into which such
Common Shares may be converted, or reclassified or that may be issued in
respect of, in exchange for or in substitution of, such Common Shares by
reason of any stock splits, stock dividends, distributions, mergers,
consolidations or other like events.
"Company" shall have the meaning set forth in the preamble and shall
also include the Company's successors.
"Company Representative " means the Company's Corporate Counsel - SEC
Finance, 1505 Farm Credit Drive, McLean, Virginia 22102, phone: (703)
394-4000 or such different person and or such different address and/or
phone number as the Company may specify in a notice to the Purchaser
Representative given in accordance with the provisions of Section 5(d).
"Conversion Rate" shall have the meaning set forth in the
Certificate of Designation.
"Effectiveness Period" shall have the meaning set forth in Section
2(a) hereof.
"Effective Time" means the date on which the SEC declares the Resale
Registration Statement effective or on which the Resale Registration
Statement otherwise becomes effective.
"Electing Holder" shall mean any holder of Registrable Shares that
has returned a properly completed and signed Notice and Questionnaire to
the Company in accordance with Section 3(A)(a)(i) or 3(A)(a)(ii) hereof.
"Filing Notice" shall have the meaning set forth in Section 3(A)(g)
hereof.
"Holder" shall mean the Initial Purchasers, for so long as they own
any Registrable Shares, and each of their successors, assigns and direct
and indirect transferees who become registered owners of Registrable
Shares under and in compliance with the Certificate of Designation.
"Initial Purchaser" shall have the meaning set forth in the
preamble.
"Liquidated Damage" shall have the meaning set forth in Section 2(c)
hereof.
"Liquidation Preference" shall have the meaning set forth in the
Certificate of Designation.
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"Market Price" shall have the meaning set forth in the Certificate
of Designation.
"NASD Rules" means the Rules of the National Association of
Securities Dealers, Inc., as amended from time to time.
"Notice and Questionnaire" means a Notice of Registration Statement
and Securityholder Questionnaire substantially in the form of Exhibit A
hereto.
"Person" shall mean an individual, partnership, corporation, trust
or unincorporated organization, or a government or agency or political
subdivision thereof.
"Prospectus" shall mean the prospectus included in the Resale
Registration Statement, including any preliminary prospectus, and any
such prospectus as amended or supplemented by any prospectus supplement,
including a prospectus supplement with respect to the terms of the
offering of any portion of the Registrable Shares covered by the Resale
Registration Statement, and by all other amendments and supplements to
such prospectus, and in each case including all material incorporated by
reference therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble.
"Purchaser Representative" means a representative of Goldman, Sachs
& Co., on behalf of the Initial Purchasers or such other persons as may
be appointed from time to time.
"Registrable Shares" shall mean the Shares, the Additional Shares
and the Common Shares; provided, however, that the Shares, the Additional
Shares and the Common Shares shall cease to be Registrable Shares (i)
when the Resale Registration Statement with respect to such Shares, such
Additional Shares and such Common Shares shall have been declared
effective under the 1933 Act and such Shares, such Additional Shares and
such Common Shares, as applicable, shall have been disposed of pursuant
to such Resale Registration Statement, (ii) when such Shares, such
Additional Shares or such Common Shares are saleable to the public
pursuant to Rule 144(k) (or any similar provision then in force, but not
Rule 144(A) under the 1933 Act, (iii) when such Shares, such Additional
Shares and such Common Shares shall have ceased to be outstanding or (iv)
on December 23, 2000.
"Registration Default" shall have the meaning set forth in Section
2(c) hereof.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement,
including without limitation: (i) all SEC, stock exchange or National
Association of Securities Dealers, Inc. registration and filing fees,
(ii) all fees and expenses incurred in connection with compliance with
state securities or blue sky laws (including reasonable fees and
disbursements of counsel for any Underwriters or Holders in connection
with blue sky qualification of any of the Registrable Shares), (iii) all
expenses of any Persons in preparing or assisting in preparing, word
processing, printing and distributing the Resale Registration Statement,
any Prospectus, any
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amendments or supplements thereto, any underwriting agreements,
securities sales agreements and other documents relating to the
performance of and compliance with this Agreement, (iv) all rating agency
fees, if any, (v) the fees and disbursements of the Transfer Agent and
its counsel, if any, (vi) the fees and disbursements of counsel for the
Company, the fees and disbursements of one counsel for the Electing
Holders (which counsel shall be selected by the Electing Holders holding
a majority of the Registrable Shares and which counsel may also be
counsel for the Initial Purchasers) and in the case of an Underwritten
Offering, the fees and disbursements of one counsel for the Electing
Holders (which counsel shall be selected by a plurality of the Electing
Holders (which plurality shall be not less than 25% of the Registrable
Shares to be included in such Underwritten Offering) to represent them in
connection therewith and which counsel may also be counsel for the
Initial Purchasers) and (vii) the fees and disbursements of the
independent public accountants of the Company, including the expenses of
any special audits or "cold comfort" letters required by or incident to
such performance and compliance, but excluding fees and expenses of
counsel to the Underwriters (other than fees and expenses set forth in
clause (ii) above) or the Electing Holders and underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or
disposition of Registrable Shares by an Electing Holder.
"Resale Registration Statement" shall have the meaning set forth in
Section 2(a) hereof.
"SEC" shall mean the Securities and Exchange Commission.
"Transfer Agent" shall mean First Chicago Trust Company of New York,
or such other transfer agent as shall be appointed by the Company from
time to time as transfer agent for the Shares and/or the Common Shares,
and who is designated as such in a written notice sent by the Company to
the Holders.
"Underwriters" shall have the meaning set forth in Section 3(D)
hereof.
"Underwritten Registration" or "Underwritten Offering" shall mean a
registration in which Registrable Shares are sold to an Underwriter for
reoffering to the public.
2. Registration Under the 1933 Act.
(a) The Company shall file as soon as practicable after the Closing
Date a Resale Registration Statement (the "Resale Registration Statement")
providing for the offer and sale of the Registrable Shares. The Company
shall use its best efforts:
(i) to cause such Resale Registration Statement to be declared
effective by the SEC as promptly as is practicable after filing and in any
event, within 180 days after the Closing Date; provided, however, that no
Holder shall be entitled to be named as a selling securityholder in the
Resale Registration Statement or to use the Prospectus forming a part
thereof for resales of Registrable Shares unless such Holder is an
Electing Holder;
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(ii) to keep the Resale Registration Statement continuously
effective (subject to the last sentence of Section 3(A)(k) and 3(C)
hereof) until the earliest of (w) the expiration of the period referred
to in Rule 144(k) (or any successor provision thereto) with respect to
all Registrable Shares held by Persons that are not Affiliates of the
Company, (x) such time as all of the Registrable Shares covered by the
Resale Registration Statement have been sold pursuant to the Resale
Registration Statement, (y) the date on which all Registrable Shares have
ceased to be outstanding as such and (z) December 23, 2000 (the
"Effectiveness Period");
(iii) upon receipt of a properly completed Notice and Questionnaire,
after the Effective Time of the Resale Registration Statement (subject to
Section 3(A)(k) hereof) and promptly upon the request of any Electing
Holder of Registrable Shares to take any action reasonably necessary to
enable such Electing Holder to use the Prospectus forming a part thereof
for resales of Registrable Shares, including, without limitation, any
action necessary to identify such Electing Holder as a selling
securityholder in the Resale Registration Statement; provided, however,
that nothing in this subparagraph shall relieve such Electing Holder of
the obligation to return a properly completed and signed Notice and
Questionnaire to the Company in accordance with Section 3(A)(a)(ii)
hereof; and
(iv) if at any time prior to the end of the Effectiveness Period the
Shares, pursuant to the Certificate of Designation, are convertible into
securities other than Common Shares, the Company shall, or shall cause
any successor under the Certificate of Designation to, cause such
securities to be included in the Resale Registration Statement no later
than the date on which the Shares may then be convertible into such
securities.
The Company further agrees to supplement or amend the Resale Registration
Statement if required by the rules, regulations or instructions applicable to
the registration form used by the Company for such Resale Registration Statement
or by the 1933 Act or by any other rules and regulations thereunder for shelf
registration or if reasonably requested by an Electing Holder with respect to
information timely furnished to the Company in writing by, and relating to such
Electing Holder, and to use its best efforts to cause any such amendment to
become effective and such Resale Registration Statement to become usable as soon
as thereafter practicable. The Company agrees to furnish to the Electing
Holders of Registrable Shares a reasonable number of copies of any such
supplement or amendment promptly after its being used or filed with the SEC.
(b) The Company shall pay all Registration Expenses in connection
with the registration pursuant to Sections 2 and 3. Each Electing Holder shall
pay all underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of such Electing Holder's Registrable Shares
pursuant to the Resale Registration Statement.
(c) A Resale Registration Statement pursuant to Section 2(a) hereof
will not be deemed to have become effective unless it has been declared
effective by the SEC; provided, however, that if, after it has been declared
effective, the offering of Registrable Shares pursuant to a Resale Registration
Statement is interfered with by any stop order, injunction or other order or
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requirement of the SEC or any other governmental agency or court, such Resale
Registration Statement will be deemed not to have become effective during the
period of such interference until the offering of Registrable Shares pursuant
to such Resale Registration Statement may legally resume. As provided for in
the Certificate of Designation, in the event (w) the Resale Registration
Statement with respect to all Registrable Shares is not declared effective on
or prior to 180 days after the Closing Date, (x) prior to the end of the
Effectiveness Period the Prospectus is unavailable (including pursuant to any
suspension under Section 3(A)(k) for periods in excess of those specified in
Section 3(C)), (y) the Company fails to make any filing within the periods
required under Section 3(A)(a)(ii) (x) or (z) any filing required pursuant to
Section 3(A)(a)(ii) (y) is a post-effective amendment required to be declared
under the 1933 Act and such amendment is not declared effective within 45 days
of the filing thereof (each, a "Registration Default"), then the Company shall
pay liquidated damages ("Liquidated Damages") to the Holders of Shares and
Common Shares (but in the case of any Registration Default described in clauses
(x), (y) and (z), such Liquidated Damages shall only be paid to the Holders of
Shares and Common Shares that are Registrable Shares and that are, by reason of
such Registration Default, not entitled (or legally permitted) to effect sales
of such Registrable Shares pursuant to the Resale Registration Statement) from
and including the day on which such Registration Default first occurs to (but
excluding) the day on which such Registration Default is cured. Such
Liquidated Damages shall accrue (i) in respect of any such Shares, at a rate
per annum equal to 0.5% of the Liquidation Preference thereof as of the
preceding Accrual Date and (ii) in respect of each such Common Share, at a rate
per annum, equal to 0.5% of the Liquidation Preference of a Share divided by
the Conversion Rate. Liquidated Damages may be paid in Additional Shares
having an aggregate Liquidation Preference equal thereto or in Common Shares
having an aggregate Market Price equal thereto. Any such Liquidated Damages
shall be payable on the next succeeding Accrual Date following the occurrence
of a Registration Default to the holders of record on the fifth business day
prior to such Accrual Date of the Shares and/or Common Shares entitled to
receive such Liquidated Damages.
(d) Without limiting the remedies available to the Initial Purchasers and
the Electing Holders, the Company acknowledges that any failure by the Company
to comply with its obligations under Section 2(a) hereof may result in material
irreparable injury to the Initial Purchasers or the Electing Holders for which
there is no adequate remedy at law, that it will not be possible to measure
damages for such injuries precisely and that, in the event of any such failure,
the Initial Purchasers or any Electing Holder may obtain such relief as may be
required to specifically enforce the Company's obligations under Section 2(a)
hereof.
3. Registration Procedures.
(A) In connection with the obligations of the Company with respect to the
Resale Registration Statement pursuant to Section 2(a) hereof (and subject to
Section 3(A)(k) hereof), the Company shall as promptly as possible:
(a) (i) on the date of the Filing Notice, mail the Notice and
Questionnaire to the Holders of Registrable Shares as of such date. Any Person
that acquires any Registrable Shares from an Electing Holder in compliance with
the applicable provisions of the
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Certificate of Designation (excluding any Registrable Shares that were
not identified in the Notice and Questionnaire delivered by such Electing
Holder) will be entitled to have such Registrable Shares included in the
Resale Registration Statement so long as such transferee provides the
Company with an updated Notice and Questionnaire. If any such Electing
Holder's or transferee's Notice and Questionnaire is received on or prior
to the tenth day prior to the Effective Time, such Electing Holder or
transferee will be entitled to have such Electing Holder's or
transferee's Registrable Shares included in the Resale Registration
Statement at the Effective Time; if such Electing Holder's or
transferee's Notice and Questionnaire is received subsequent to such
tenth day, the Registrable Shares covered by such Notice and
Questionnaire will be included in the Resale Registration Statement
reasonably promptly after receipt (which date of inclusion may be
subsequent to the Effective Time), as provided in Section 3(A)(a)(ii)
below. No Holder shall be entitled to be named as a selling
securityholder in the Resale Registration Statement as of the Effective
Time and no Holder shall be entitled to use the Prospectus forming a part
thereof for resales of Registrable Shares at any time, unless such Holder
has returned a properly completed and signed Notice and Questionnaire to
the Company by the deadline for response set forth therein; provided,
however, Holders of Registrable Shares shall have 30 calendar days from
the date on which the Notice and Questionnaire is first mailed to such
Holders to return a completed and signed Notice and Questionnaire to the
Company.
(ii) After the Effective Time of the Resale Registration Statement
and prior to the end of the Effectiveness Period, the Company shall, upon
the request of any Holder of Registrable Shares that is not then an
Electing Holder, promptly send a Notice and Questionnaire to such Holder.
The Company shall not be required to take any action to name such Holder
as a selling securityholder in the Resale Registration Statement or to
enable such Holder to use the Prospectus forming a part thereof for
resales of Registrable Shares until such holder has returned a properly
completed and signed Notice and Questionnaire to the Company. Upon
receipt of a properly completed and signed Notice and Questionnaire,
together with such other information as may be reasonably requested by
the Company, from a Holder following the Effective Time and prior to the
end of the Effectiveness Period, the Company will (x) as promptly as
practicable but in any event within five business days of such receipt,
file such amendments to the Resale Registration Statement or supplements
to the Prospectus as are necessary to permit such holder to deliver the
Prospectus to purchasers of Registrable Shares (subject to the Company's
right to suspend the use of the Prospectus as provided in Section 3(C)
hereof) and (y) if a post-effective amendment to the Resale Registration
Statement is required to be declared effective under the Securities Act,
use its best efforts to cause such amendment to be declared effective
within 45 days of the filing thereof;
(b) prepare and file with the SEC the Resale Registration Statement
on the appropriate form under the 1933 Act (x) which form shall be
selected by the Company, (y) which form shall be available for the sale of
the Registrable Shares by the Electing Holders and (z) which Resale
Registration Statement and any amendment thereto and the Prospectus
forming part thereof and any amendment or supplement thereto (and each
other document
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incorporated therein by reference in each case) shall comply as to form
in all material respects with the 1933 Act and the 1934 Act and the
respective rules and regulations thereunder and shall include (or
incorporate by reference) all financial statements required by the SEC to
be filed therewith, and use its best efforts to cause such Resale
Registration Statement to become effective and remain effective in
accordance with Section 2 hereof;
(c) promptly take such action as may be necessary so that (x) each
of the Resale 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 (y) each of
the Prospectus forming part of the Resale Registration Statement, and any
amendment or supplement to such Prospectus, does not at any time during
the Effectiveness Period in which such Prospectus or amendment or
supplement thereto is furnished and available for use as provided herein,
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading ;
(d) prepare and file with the SEC such amendments and post-effective
amendments to the Resale Registration Statement as may be necessary to
keep such Resale Registration Statement effective for the Effectiveness
Period and cause each Prospectus to be supplemented by any required
prospectus supplement and, as so supplemented, to be filed pursuant to
Rule 424 under the 1933 Act; to keep each Prospectus current during the
period described under Section 4(3) and Rule 174 under the 1933 Act that
is applicable to transactions by brokers or dealers with respect to the
Registrable Shares;
(e) (i) furnish to each Electing Holder of Registrable Shares, to
counsel for the initial Purchasers, to counsel for the Electing Holders
and to each Underwriter of an Underwritten Offering of Registrable
Shares, if any, without charge, as many copies, as reasonable, of each
Prospectus, including each preliminary Prospectus, and any amendment or
supplement thereto and such other documents as such Holder or Underwriter
may reasonably request, in order to facilitate the public sale or other
disposition of the Registrable Shares and (ii) if requested, promptly
include or incorporate in a Prospectus supplement or post-effective
amendment to the Resale Registration Statement such information as the
Underwriters reasonably agree should be included therein (provided that
such information is timely furnished to the Company in writing for
inclusion therein (A) by any underwriter, concerning such underwriter,
the underwriting arrangements or similar matters or (B) by any Electing
Holder, relating to such Electing Holder or such holder's participation
in the Underwritten Offering), and to which the Company does not
reasonably object and make all required filings of such Prospectus
supplement or post-effective amendment as soon as practicable after the
Company is notified of (and furnished appropriate information in writing
concerning) the matters to be included or incorporated in such Prospectus
supplement or post-effective amendment; and the Company consents to the
use of such Prospectus and any amendment or supplement thereto (except
during the continuance of any event described in Section 3(A)(g)(vii)) in
accordance with applicable law by each of the selling Electing
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Holders of Registrable Shares and any such Underwriters in connection
with the offering and sale of the Registrable Shares covered by and in
the manner described in such Prospectus or any amendment or supplement
thereto in accordance with applicable law;
(f) register or qualify the Registrable Shares under all applicable
state securities or "blue sky" laws of such jurisdictions as any Electing
Holder of Registrable Shares covered by the Resale Registration Statement
shall reasonably request in writing by the time the Resale Registration
Statement is declared effective by the SEC, to cooperate with such Holder
in connection with any filings required to be made with the National
Association of Securities Dealers, Inc. and do any and all other acts and
things which may be reasonably necessary or advisable to enable such
Electing Holder to consummate the disposition in each such jurisdiction
of such Registrable Shares owned by such Electing Holder, provided,
however, that the Company shall not be required to (i) qualify as a
foreign corporation or as a dealer in securities in any jurisdiction
where it would not otherwise be required to qualify but for this Section
3(f), (ii) file any general consent to service of process or (iii)
subject itself to taxation in any such jurisdiction if it is not so
subject;
(g) notify the Purchaser Representative, counsel for the Electing
Holders and counsel for the Initial Purchasers promptly and, if requested
by any such Purchaser Representative or counsel, confirm such advice in
writing (i) when the Resale Registration Statement and any amendment
thereto has been filed with the SEC (a "Filing Notice") and when the
Resale Registration Statement or any post-effective amendment thereto has
become effective, in each case making a public announcement thereof by
release made to Reuters Economic Services and Bloomberg Business News,
(ii) of any request by the SEC or any state securities authority for
amendments and supplements to the Resale Registration Statement and
Prospectus or for additional information after the Resale Registration
Statement has become effective, (iii) of the issuance by the SEC or any
state securities authority of any stop order suspending the effectiveness
of the Resale Registration Statement or the initiation of any proceedings
for that purpose, (iv) if, between the effective date of the Resale
Registration Statement and the closing of any sale of Registrable Shares
covered thereby, the representations and warranties of the Company
contained in any underwriting agreement, securities sales agreement or
other similar agreement, if any, relating to the offering cease to be
true and correct in all material respects or if the Company receives any
notification with respect to the suspension of the qualification of the
Registrable Shares for sale in any jurisdiction or the initiation of any
proceeding for such purpose, (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Registrable Shares included in the Resale Registration Statement for sale
in any jurisdiction or the initiation of any proceeding for such purpose,
(vi) of the happening of any event during the period the Resale
Registration Statement is effective which makes any statement made in
such Resale Registration Statement or the related Prospectus untrue in
any material respect or which requires the making of any changes in such
Resale Registration Statement or Prospectus in order to make the
statements therein not misleading and (vii) of any determination by the
Company that a post-effective amendment to the Resale Registration
Statement would be appropriate;
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(h) make every reasonable effort to prevent the issuance and, if
issued to obtain the withdrawal of, any order suspending the
effectiveness of the Resale Registration Statement at the earliest
possible moment and provide immediate notice to each Electing Holder of
the withdrawal of any such order;
(i) upon request, furnish to each Electing Holder of Registrable
Shares, without charge, at least one conformed copy of the Resale
Registration Statement and any post-effective amendment thereto (without
documents incorporated therein by reference or exhibits thereto, unless
requested);
(j) cooperate with the selling Electing Holders of Registrable
Shares to facilitate the timely preparation and delivery of certificates
representing Registrable Shares to be sold and not bearing any
restrictive legends, other than those relating to restrictions imposed on
"Non-U.S. Holders" with respect to the Shares under the Certificate of
Designation, and enable such Registrable Shares to be in such
denominations (consistent with the provisions of the Certificate of
Designation) and registered in such names as the selling Electing Holders
may reasonably request at least two business days prior to the closing of
any sale of Registrable Shares;
(k) upon the occurrence of any event contemplated by Section
3(g)(vi) hereof, use its best efforts to prepare and file with the SEC a
supplement or post-effective amendment to the Resale Registration
Statement or the related Prospectus or any document incorporated therein
by reference or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Shares, such Prospectus
will not contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. The Company
agrees to notify the Purchaser Representative to suspend use of the
Prospectus as promptly as practicable after the occurrence of such an
event, and the Electing Holders will not be permitted to use of the
Prospectus until the Company has amended or supplemented the Prospectus
to correct such misstatement or omission;
(l) a reasonable time prior to the filing of the Resale Registration
Statement, any Prospectus, any amendment to the Resale Registration
Statement or amendment or supplement to a Prospectus or any document
which is to be incorporated by reference into the Resale Registration
Statement (other than filings pursuant to the 1934 Act) or a Prospectus
after the initial filing of the Resale Registration Statement, provide
upon request a reasonable number of copies of such document to the
Initial Purchasers, their counsel, the Purchaser Representative or its
counsel and make such of the representatives of the Company as shall be
reasonably requested by the Initial Purchasers, their counsel, the
Electing Holders or their counsel available for discussion of such
document, and shall not at any time file or make any amendment to the
Resale Registration Statement, any Prospectus or any amendment of or
supplement to the Resale Registration Statement or a Prospectus or any
document which is to be incorporated by reference into the Resale
Registration Statement (other than filings pursuant to the 1934 Act) or a
Prospectus, of which the Initial Purchasers,
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their counsel, the Purchaser Representative or its counsel shall not have
previously been advised and furnished a copy or to which the Initial
Purchasers, their counsel, the Purchaser Representative or its counsel
shall object;
(m) obtain a CUSIP number, and, if applicable, a CINS number, for
all Registrable Shares not later than the effective date of the Resale
Registration Statement;
(n) use its best efforts to comply with all applicable rules and
regulations under the 1933 Act and the 1934 Act, and to make generally
available to its securityholders as soon as practicable, but in any event
not later than eighteen months after (i) the Effective Time, (ii) the
effective date of each post-effective amendment to the Resale
Registration Statement and (iii) the date of each filing by the Company
with the SEC of an Annual Report on Form 10-K that is incorporated by
reference in the Resale Registration Statement, an earning statement of
the Company and its subsidiaries complying with Section 11(a) of the 1933
Act and the rules and regulations of the SEC thereunder (including, at
the option of the Company, Rule 158);
(o) (i) make available for inspection by the Purchaser
Representative, any Underwriter participating in any disposition pursuant
to the Resale Registration Statement, and attorneys and accountants
designated by the Electing Holders, at reasonable times and in a
reasonable manner, all financial and other records, pertinent documents
and properties of the Company, and cause the respective officers,
directors and employees of the Company to supply all information
reasonably requested by any such Purchaser Representative, Underwriter,
attorney or accountant in connection with the Resale Registration
Statement and (ii) cause the Company's officers, directors and employees
to supply all information reasonably requested by such Purchaser
Representative, Underwriter, attorney or accountant in connection with
the Resale Registration Statement, in each case, as is customary for
similar due diligence examinations; provided, however, that all records,
information and documents that are designated in writing by the Company,
in good faith, as confidential shall be kept confidential by such
Electing Holders and any such Purchaser Representative, Underwriter,
attorney or accountant, unless such disclosure is made in connection with
a court proceeding or required by law, or such records, information or
documents become available to the public generally or through a third
party without an accompanying obligation of confidentiality; and
provided, further that, if the foregoing inspection and information
gathering would otherwise disrupt the Company's conduct of its business,
such inspection and information gathering shall, to the greatest extent
possible, be coordinated on behalf of the Electing Holders through a
single counsel and the other parties entitled thereto by one counsel
designated by and on behalf of Electing Holders and other parties;
(p) use its best efforts to cause all Common Shares to be listed on
any securities exchange or any automated quotation system on which
similar securities issued by the Company are then listed, to the extent
such Common Shares satisfy applicable listing requirements on or prior to
the Effective Time;
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13
(q) use its best efforts to cause the Registrable Shares to be rated
by two nationally recognized statistical rating organizations (as such
term is defined in Rule 436(g)(2) under the 1933 Act);
(r) if reasonably requested by any Electing Holder of Registrable
Shares covered by the Resale Registration Statement, (i) promptly
incorporate in a Prospectus supplement or post-effective amendment such
information with respect to such Electing Holder as such Electing Holder
furnished in writing to the Company to be included therein and (ii) make
all required filings of such Prospectus supplement or such post-effective
amendment as soon as the Company has received notification of the matters
to be incorporated in such filing;
(s) enter into such customary agreements and take all such other
actions in connection therewith (including those requested by the
Electing Holders of a majority of the Registrable Shares being sold) in
order to expedite or facilitate the disposition of such Registrable
Shares including, but not limited to, an Underwritten Offering and in
such connection, (i) if an underwriting agreement is entered into, cause
the same to contain indemnification provisions and procedures
substantially identical to those set forth in Section 4 hereof with
respect to all parties to be indemnified pursuant to Section 4 hereof,
(ii) to the extent possible, make such representations and warranties to
the Holders and any Underwriters of such Registrable Shares with respect
to the business of the Company and its subsidiaries, the Resale
Registration Statement, Prospectus and documents incorporated by
reference or deemed incorporated by reference, if any, in each case, in
form, substance and scope as are customarily made by issuers to
underwriters in underwritten offerings and confirm the same if and when
requested, (iii) obtain opinions of counsel to the Company (which counsel
and opinions, in form, scope and substance, shall be reasonably
satisfactory to the Electing Holders and such Underwriters and their
respective counsel) addressed to each selling Electing Holder and
Underwriter of Registrable Shares, covering the matters customarily
covered in opinions requested in underwritten offerings, (iv) obtain
"cold comfort" letters from the independent certified public accountants
of the Company (and, if necessary, any other certified public accountant
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 Resale Registration Statement) addressed
to each selling Electing Holder and Underwriter of Registrable Shares,
such letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with
underwritten offerings, and (v) deliver such documents and certificates
as may be reasonably requested by the Electing Holders of a majority of
the Registrable Shares being sold or the Underwriters, and which are
customarily delivered in underwritten offerings, to evidence the
continued validity of the representations and warranties of the Company
made pursuant to clause (ii) above and to evidence compliance with any
customary conditions contained in an underwriting agreement; and
(t) in the event that any broker-dealer registered under the 1934
Act shall be an "affiliate" (as defined in Rule 2720(b)(1) of the NASD
Rules (or any successor provision thereto)) of the Company or has a
"conflict of interest" (as defined in Rule 2720(b)(7) of the
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NASD Rules (or any successor provision thereto)) and such
broker-dealer shall underwrite, participate as a member of an
underwriting syndicate or selling group or assist in the
distribution of any Registrable Shares covered by the Resale
Registration Statement, whether as a holder of such Registrable
Shares or as an underwriter, a placement or sales agent or a
broker or dealer in respect thereof, or otherwise, the Company
shall assist such broker-dealer in complying with the requirements
of the NASD Rules, including, without limitation, by (i) engaging
a "qualified independent underwriter" (as defined in Rule
2720(b)(15) of the NASD Rules (or any successor provision
thereto)) to participate in the preparation of the Resale
Registration Statement, to exercise usual standards of due
diligence in respect thereto and to recommend the public offering
price of such Registrable Shares, (ii) indemnifying such qualified
independent underwriter to the extent of the indemnification of
underwriters provided in Section 4 hereof and (iii) providing such
information to such broker-dealer as may be required in order for
such broker-dealer to comply with the requirements of the NASD
Rules.
(B) The Company may require each Electing Holder of Registrable
Shares to furnish to the Company in writing such information regarding the
Electing Holder and the proposed distribution by such Electing Holder of
such Registrable Shares as the Company may from time to time reasonably
request in writing.
(C) Each Holder agrees that, upon receipt of any notice from the
Company or being advised by the Purchaser Representative of the happening
of any event of the kind described in Section 3(A)(g)(vi) hereof, such
Electing Holder will forthwith discontinue disposition of Registrable
Shares pursuant to the Resale Registration Statement until such Electing
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 3(A)(k) hereof, and, if so directed by the Company
or by the Purchaser Representative such Electing Holder will deliver to
the Company (at its expense) all copies in its possession, other than
permanent file copies then in such Electing Holder's possession, of the
Prospectus covering such Registrable Shares current at the time of receipt
of such notice. The Company will be permitted to suspend the use of the
Prospectus (x) in connection with pending corporate developments, public
filings with the SEC and similar events, for a period not to exceed 30
days in any three-month period or 90 days (whether or not consecutive) in
any twelve-month period or (y) in connection with any corporate
acquisition or similar transaction, for a period not to exceed 60 days in
any three-month period or 90 days (whether or not consecutive) in any
twelve-month period.
In the event use of the Prospectus is suspended due to the
occurrence of any event described in Subsection 3(A)(g)(vi), the Company
shall deliver written notice thereof to the Purchaser Representative as
promptly as practicable thereafter. Absence of the receipt of any such
notice by the Purchaser Representative shall constitute a deemed
representation by the Company to the Purchaser Representative and the
Electing Holders that no such suspension is in effect. Prior to selling
Registrable Shares pursuant to the Resale Registration Statement an
Electing Holder must, at any time during the Effectiveness Period, contact
the Company Representative or the Purchaser Representative, prior to
selling any Registrable Shares pursuant to the Prospectus, in order to
determine whether the Prospectus is available for use at such time. The
Company shall comply with
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the procedures set forth in Annex II hereto with respect to notification of the
Purchaser Representative as to the availability for use of any Resale
Registration Statement.
(D) The Electing Holders whose Registrable Shares are covered by the
Resale Registration Statement and who desire to do so may sell such Registrable
Shares in an Underwritten Offering upon request to the Company. Upon receipt
of such a request, the Company shall provide all Holders of Registrable Shares
written notice of the request, which notice shall inform such Holders that they
have the opportunity to participate in the offering. In any such Underwritten
Offering, the investment banker or investment bankers and manager or managers
(the "Underwriters") that will administer the offering will be selected by the
Electing Holders holding a majority of the Registrable Shares to be included in
such offering. No Holder that is not an Electing Holder may participate in any
Underwritten Offering and no Electing Holder may participate in any
Underwritten Offering contemplated hereby unless (i) such Electing Holder
agrees to sell such Holders Registrable Shares to be included in the
Underwritten Offering in accordance with any approved underwriting
arrangements, (ii) such Holder completes and executes all reasonable
questionnaires, powers of attorney, indemnities, underwriting agreements,
lock-up letters and other documents required under the terms of such approved
underwriting arrangements, and (iii) if such Holder is not then an Electing
Holder, such Holder returns a completed and signed Notice and Questionnaire to
the Company in accordance with Section 3(A)(a)(i) hereof within a reasonable
amount of time before such Underwritten Offering. The Electing Holders
participating in any Underwritten Offering shall be responsible for any
underwriting discounts and commissions and fees. The Company shall pay all
expenses customarily borne by issuers, including but not limited to filing
fees, the fees and disbursements of its counsel and independent public
accountants and any printing expenses incurred in connection with such
Underwritten Offering. Notwithstanding the foregoing or the provisions of
Section 3(A)(e)(ii) hereof, upon receipt of a request from the Underwriters or
a representative of the Electing Holders holding a majority of the Registrable
Shares to be included in an Underwritten Offering to prepare and file an
amendment or supplement to the Resale Registration Statement and Prospectus in
connection with an Underwritten Offering, the Company may delay the filing of
any such amendment or supplement for up to 90 days if the Board of Directors of
the Company shall have determined in good faith that the Company has a bona
fide business reason for such delay.
4. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless the Initial
Purchasers, each Electing Holder and each Person, if any, who controls any
Initial Purchaser or any Electing Holder within the meaning of either Section
15 of the 1933 Act or Section 20 of the 1934 Act, or is under common control
with, or is controlled by, any Initial Purchaser or any Electing Holder, from
and against all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred by the Initial
Purchasers, any Electing Holder or any such controlling or affiliated Person in
connection with defending or investigating any such action or claim) caused by
any untrue statement or alleged untrue statement of a material fact contained
in any Resale Registration Statement (or any amendment thereto) pursuant to
which Registrable Shares were registered under the 1933 Act, including all
documents incorporated therein by reference, or
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caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or caused by any untrue statement or alleged untrue statement of a
material fact contained in any Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact necessary
to make the statements therein in light of the circumstances under which they
were made not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to the Initial
Purchasers or any Electing Holder furnished to the Company in writing by the
Initial Purchasers or any selling Electing Holder expressly for use therein.
In connection with any Underwritten Offering permitted by Section 3(D) of this
Agreement, the Company will also indemnify the Underwriters, if any, selling
brokers, dealers and similar securities industry professionals participating in
the distribution, their officers and directors and each Person who controls
such Persons (within the meaning of the 1933 Act and the 1934 Act) to the same
extent as provided above with respect to the indemnification of the Electing
Holders, if requested in connection with any Resale Registration Statement.
(b) Each Electing Holder agrees, severally and not jointly, to indemnify
and hold harmless the Company, the Initial Purchasers and the other selling
Electing Holders, and each of their respective directors, officers who sign the
Resale Registration Statement and each Person, if any, who controls the
Company, any Initial Purchaser and any other selling Electing Holder within the
meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act to
the same extent as the foregoing indemnity from the Company to the Initial
Purchasers and the Electing Holders, but only with reference to information
relating to such Electing Holder furnished to the Company in writing by such
Electing Holder expressly for use in any Resale Registration Statement (or any
amendment hereto) or any Prospectus (or any amendment or supplement thereto).
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any Person in respect of which indemnity may be
sought pursuant to either paragraph (a) or paragraph (b) above, such Person
(the "indemnified party") shall promptly notify the Person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding
and shall pay the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be
at the expense of such indemnified party unless (i) the indemnifying party and
the indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for (a)
the fees and expenses of more than one separate firm (in addition to any local
counsel) for the Initial Purchasers and all Persons, if any, who control any
Initial Purchaser within the meaning of either Section 15 of
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the 1933 Act or Section 20 of the 1934 Act, (b) the fees and expenses of more
than one separate firm (in addition to any local counsel) for the Company, its
directors, its officers who sign the Resale Registration Statement and each
Person, if any, who controls the Company within the meaning of either such
Section and (c) the fees and expenses of more than one separate firm (in
addition to any local counsel) for all Electing Holders and all Persons, if
any, who control any Electing Holders within the meaning of either such
Section, and that all such fees and expenses shall be reimbursed as they are
incurred. In such case involving the Initial Purchasers and Persons who
control any Initial Purchaser, such firm shall be designated in writing by
Goldman, Sachs & Co. In such case involving the Electing Holders and such
Persons who control Electing Holders, such firm shall be designated in writing
by the Electing Holders holding a majority of the Registrable Shares. In all
other cases, such firm shall be designated by the Company. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent (which consent shall not be unreasonably withheld) but, if
settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by, reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than 45 days after receipt
by such indemnifying party of the aforesaid request (ii) such indemnifying
party shall have received notice of the terms of such settlement at least 30
days prior to such settlement being entered into and (iii) such indemnifying
party shall not have reimbursed the indemnified party for such fees and
expenses of counsel in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which such indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement (i) includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding; provided that such unconditional release may be subject to a
parallel release of a claimant or plaintiff by such indemnified party from all
liability in respect of claims or counterclaims asserted by such indemnified
party and (ii) does not include a statement as to, or as admission of, fault,
culpability or a failure to act by or on behalf of such indemnified party.
(d) If the indemnification provided for in paragraph (a) or paragraph (b)
of this Section 4 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities, then each indemnifying
party under such paragraph, in lieu of indemnifying such indemnified party
thereunder, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party or parties on the one hand and of the indemnified party or parties on the
other hand in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company and the Electing Holders
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the
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Company or by the Electing Holders and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Electing Holders' obligations to contribute pursuant to this
Section 4(d) are several in proportion to the liquidation preference of the
Shares and/or the number of Common Shares, as applicable, of such Electing
Holder that were registered pursuant to the Resale Registration Statement.
(e) The Company and each Electing Holder agree that it would not be just
or equitable if contribution pursuant to this Section 4 were determined by pro
rata allocation or by any other method of allocation that does not take account
of the equitable considerations referred to in paragraph (d) above. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in paragraph (d) above shall be deemed to
include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 4, no Electing Holder shall be required to indemnify
or contribute any amount in excess of the amount by which the total price at
which Registrable Shares were sold by such Electing Holder exceeds the amount
of any damages that such Electing Holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11 (f) of the 1933 Act) shall be entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation. The remedies
provided for in this Section 4 are not exclusive and shall not limit any rights
or remedies which may otherwise be available to any indemnified party at law or
in equity.
The indemnity and contribution provisions contained in this Section 4
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
the Initial Purchasers, any Electing Holder or any Person controlling any
Initial Purchaser or any Electing Holder, or by or on behalf of the Company,
its officers or directors or any Person controlling the Company and (iii) any
sale of Registrable Shares pursuant to the Resale Registration Statement.
5. Miscellaneous.
(a) Other Registration Rights. The Company may grant registration rights
that would permit any Person that is a third party the right to piggy-back on
any Resale Registration Statement; provided that if the Underwriters of any
underwritten offering conducted pursuant to Section 3(D) hereof notifies the
Company and the Electing Holders that the total amount of securities which the
Electing Holders and the holders of such piggy-back rights intend to include in
any Resale Registration Statement is so large as to materially threaten the
success of such offering (including the price at which such securities can be
sold), then the amount, number or kind of securities to be offered for the
account of holders of such piggy-back rights will be reduced to the extent
necessary to reduce the total amount of securities to be included in such
offering to the amount, number and kind recommended by the Underwriters prior
to any reduction in the amount of Registrable Shares to be included in such
Resale Registration Statement.
-17-
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(b) No Inconsistent Agreements. The Company has not entered into, and on
or after the date of this Agreement will not enter into, any agreement which is
inconsistent with the rights granted to the Holders of Registrable Shares in
this Agreement or otherwise conflicts with the provisions hereof. The rights
granted to the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Company's other
issued and outstanding securities under any such agreements.
(c) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, 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 Holders of at
least a majority in aggregate liquidation preference, in respect of the Shares,
and a majority of the Common Shares, of the outstanding Registrable Shares
affected by such amendment modification, supplement, waiver or consent;
provided, however, that no amendment, modification, supplement, waiver or
consents to any departure from the provisions of Section 4 hereof shall be
effective as against any Holder of Registrable Shares unless consented to in
writing by such Holder.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder to
the Company by means of a notice given in accordance with the provisions of this
Section 5(d), which address initially is, with respect to the Initial
Purchasers, the address set forth in the Purchase Agreement; (ii) if to the
Company, initially at the Company's address set forth in the Purchase Agreement
and thereafter at such other address, notice of which is given in accordance
with the provisions of this Section 5(d) and (iii) if to the Purchaser
Representative at: Goldman, Sachs & Co., New York Plaza, 50th Floor, New York,
New York 10004, Attention: Michael D. Ryan, (212) 902-2378 or Jeffrey J.
Zajkowski, (212) 902-4652.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; two business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and on
the next business day if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the person giving the same to the Transfer Agent, at
First Chicago Trust Company of New York, 525 Washington Blvd., Jersey City, New
Jersey 07311, (212) 222-4368, Attention: Bob Hohman, or to such other Transfer
Agent as may be appointed by the Company from time to time at the address
indicated in writing by the Company to the Holders.
(e) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders; provided that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable
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Shares in violation of the terms of the Purchase Agreement. If any transferee
of any Holder shall acquire Registrable Shares, in any manner, whether by
operation of law or otherwise, such Registrable Shares shall be held subject to
all of the terms of this Agreement, and by taking and holding such Registrable
Shares such person shall be conclusively deemed to have agreed to be bound by
and to perform all of the terms and provisions of this Agreement and such
person shall be entitled to receive the benefits hereof. The Initial
Purchasers (in their capacity as Initial Purchasers) shall have no liability or
obligation to the Company with respect to any failure by a Holder to comply
with, or any breach by any Holder of, any of the obligations of such Holder
under this Agreement.
(f) Purchases and Sales of Registrable Shares. The Company shall not, and
shall use its best efforts to cause its affiliates (as defined in Rule 405
under the 1933 Act) not to, purchase and then resell or otherwise transfer any
Registrable Shares.
(g) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company, on the one
hand, and the Initial Purchasers, on the other hand, and each Holder shall have
the right to enforce such agreements directly to the extent it deems such
enforcement necessary or advisable to protect its rights or the rights of
Holders hereunder.
(h) 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.
(i) Heading. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(j) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(k) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
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NEXTEL COMMUNICATIONS, INC.
By: /s/ Steven M. Shindler
-----------------------------
Name: Steven M. Shindler
Title: Vice President
Confirmed and accepted as of
the date first above written:
GOLDMAN, SACHS & CO.
MORGAN STANLEY & CO. INCORPORATED
NATIONSBANC MONTGOMERY SECURITIES LLC
By Goldman, Sachs & Co.
By: __________________________
Name:
Title:
22
NEXTEL COMMUNICATIONS, INC.
By: ______________________________
Name:
Title:
Confirmed and accepted as of
the date first above written:
GOLDMAN, SACHS & CO.
MORGAN STANLEY & CO. INCORPORATED
NATIONSBANC MONTGOMERY SECURITIES LLC
By Goldman, Sachs & Co.
By: /s/ Goldman, Sachs & Co.
-------------------------------
Name:
Title: