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REGISTRATION RIGHTS AGREEMENT
Dated July 19, 1995
between
PEOPLES TELEPHONE COMPANY, INC.
and
MERRILL LYNCH & CO.,
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement")
is made and entered into July 19, 1995 between PEOPLES
TELEPHONE COMPANY, INC., a New York corporation (the
"Company"), and MERRILL LYNCH & CO., MERRILL LYNCH, PIERCE,
FENNER & SMITH INCORPORATED (the "Purchaser").
This Agreement is made pursuant to the Purchase
Agreement dated July 12, 1995 between the Company and the
Purchaser (the "Purchase Agreement"), which provides for the
sale by the Company to the Purchaser of an aggregate of
$100,000,000 principal amount of the Company's 12 1/4% Senior
Notes due 2002 (the "Securities"). In order to induce the
Purchaser to enter into the Purchase Agreement, the Company has
agreed to provide to the Purchaser and its direct and indirect
transferees the registration rights 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:
"Additional Interest" shall have the meaning set
forth in Section 2(e) hereof.
"Advice" shall have the meaning set forth in the last
paragraph of Section 3 hereof.
"Applicable Period" shall have the meaning set forth
in Section 3(t) hereof.
"Closing Time" shall mean the Closing Time as defined
in the Purchase Agreement.
"Company" shall have the meaning set forth in the
preamble to this Agreement and also includes the Company's
successors.
"Depositary" shall mean The Depository Trust Company,
or any other depositary appointed by the Company; provided
that such depositary must have an address in the Borough
of Manhattan, in the City of New York.
"Effectiveness Period" shall have the meaning set
forth in Section 2(b) hereof.
"Event Date" shall have the meaning set forth in
Section 2(e) hereof.
"Exchange Offer" shall mean the exchange offer by the
Company of Exchange Securities for Securities pursuant to
Section 2(a) hereof.
"Exchange Offer Registration" shall mean a
registration under the 1933 Act effected pursuant to
Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an
exchange offer registration statement on Form S-4 (or, if
applicable, on another appropriate form), and all
amendments and supplements to such registration statement,
in each case including the Prospectus contained therein,
all exhibits thereto and all material incorporated by
reference therein.
"Exchange Period" shall have the meaning set forth in
Section 2(a) hereof.
"Exchange Securities" shall mean the 12 1/4% Senior
Notes due 2002, Series B issued by the Company under the
Indenture containing terms identical to the Securities
(except that (i) interest thereon shall accrue from the
last date on which interest was paid on the Securities or,
if no such interest has been paid, from July 19, 1995 and
(ii) the transfer restrictions thereon shall be
eliminated) to be offered to Holders of Securities in
exchange for Securities pursuant to the Exchange Offer.
"Holder" shall mean the Purchaser, for so long as it
owns any Registrable Securities, and each of its
successors, assigns and direct and indirect transferees
who become registered owners of Registrable Securities
under the Indenture.
"Indenture" shall mean the Indenture relating to the
Securities dated as of July 15, 1995 between the Company,
as issuer, and First Union National Bank of North
Carolina, as trustee, as the same may be amended from time
to time in accordance with the terms thereof.
2
"Inspectors" shall have the meaning set forth in
Section 3(n) hereof.
"Majority Holders" shall mean the Holders of a
majority of the aggregate principal amount of outstanding
(as determined under the Indenture) Registrable
Securities.
"1933 Act" shall mean the Securities Act of 1933, as
amended from time to time.
"1934 Act" shall mean the Securities Exchange Act of
1934, as amended from time to time.
"Participating Broker-Dealer" shall have the meaning
set forth in Section 3(t) hereof.
"Person" shall mean an individual, partnership,
corporation, trust or unincorporated organization, or a
government or agency or political subdivision thereof.
"Private Exchange" shall have the meaning set forth
in Section 2(a) hereof.
"Private Exchange Securities" shall have the meaning
set forth in Section 2(a) hereof.
"Prospectus" shall mean the prospectus included in a
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 Securities
covered by a Shelf Registration Statement, and by all
other amendments and supplements to a prospectus,
including post-effective amendments, and in each case
including all material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth
in the preamble to this Agreement.
"Purchaser" shall have the meaning set forth in the
preamble to this Agreement.
"Records" shall have the meaning set forth in
Section 3(n) hereof.
3
"Registrable Securities" shall mean the Securities
and, if issued, the Private Exchange Securities; provided
that Securities or Private Exchange Securities, as the
case may be, shall cease to be Registrable Securities when
(i) a Registration Statement with respect to such
Securities or Private Exchange Securities or the resale
thereof, as the case may be, shall have been declared
effective under the 1933 Act and such Securities or
Private Exchange Securities, as the case may be, shall
have been disposed of pursuant to such Registration
Statement, (ii) such Securities or Private Exchange
Securities, as the case may be, shall have been sold to
the public pursuant to Rule 144(k) (or any similar
provision then in force, but not Rule 144A) under the 1933
Act, (iii) such Securities or Private Exchange Securities,
as the case may be, shall have ceased to be outstanding or
(iv) with respect to the Securities, such Securities have
been exchanged for Exchange Securities upon consummation
of the Exchange Offer.
"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. (the "NASD") registration and
filing fees, including, if applicable, the fees and
expenses of any "qualified independent underwriter" (and
its counsel) that is required to be retained by any Holder
of Registrable Securities in accordance with the rules and
regulations of the NASD, (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
Exchange Securities or Registrable Securities) and
compliance with the rules of the NASD, (iii) all expenses
of any Persons in preparing or assisting in preparing,
word processing, printing and distributing any
Registration Statement, any Prospectus and any amendments
or supplements thereto, and in preparing or assisting in
preparing, printing and distributing any underwriting
agreements, securities sales agreements and other
documents relating to the performance of and compliance
with this Agreement, (iv) all rating agency fees, (v) the
fees and disbursements of counsel for the Company and of
the independent certified public accountants of the
Company, including the expenses of any "cold comfort"
letters required by or
4
incident to such performance and compliance, (vi) the fees
and expenses of the Trustee, and any exchange agent or
custodian, (vii) all fees and expenses incurred in connection
with the listing, if any, of any of the Registrable
Securities on any securities exchange or exchanges, and
(viii) any fees and disbursements of any underwriter
customarily required to be paid by issuers or sellers of
securities and the reasonable fees and expenses of any
special experts retained by the Company in connection with
any Registration Statement, but excluding fees of counsel to
the underwriters or the Holders and underwriting discounts
and commissions and transfer taxes, if any, relating to
the sale or disposition of Registrable Securities by a
Holder.
"Registration Statement" shall mean any registration
statement of the Company which covers any of the Exchange
Securities or Registrable Securities pursuant to the
provisions of this Agreement, and all amendments and
supplements to any such Registration Statement, including
post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"SEC" shall mean the Securities and Exchange
Commission.
"Securities" shall have the meaning set forth in the
preamble to this Agreement.
"Shelf Registration" shall mean a registration
effected pursuant to Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf"
registration statement of the Company pursuant to the
provisions of Section 2(b) of this Agreement which covers
all of the Registrable Securities or all of the Private
Exchange Securities, as the case may be, on an appropriate
form under Rule 415 under the 1933 Act, or any similar
rule that may be adopted by the SEC, and all amendments
and supplements to such registration statement, including
post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"TIA" shall have the meaning set forth in Section
3(l).
5
"Trustee" shall mean the trustee with respect to the
Securities under the Indenture.
2. Registration Under the 1933 Act.
(a) Exchange Offer. To the extent not prohibited by
any applicable law or applicable interpretation of the staff of
the SEC, the Company shall, for the benefit of the Holders, at
the Company's cost, use its best efforts to cause to be filed
with the SEC within 30 days after the Closing Time an Exchange
Offer Registration Statement on an appropriate form under the
1933 Act covering the offer by the Company to the Holders to
exchange all of the Registrable Securities (other than Private
Exchange Securities) for a like principal amount of Exchange
Securities, to have such Exchange Offer Registration Statement
declared effective under the 1933 Act by the SEC not later than
the date which is 90 days after the Closing Time, to have such
Registration Statement remain effective until the closing of
the Exchange Offer and to cause the Exchange Offer to be
consummated not later than 120 days after the Closing Time.
The Exchange Securities will be issued under the Indenture.
Upon the effectiveness of the Exchange Offer Registration
Statement, the Company shall promptly commence the Exchange
Offer, it being the objective of such Exchange Offer to enable
each Holder eligible and electing to exchange Registrable
Securities for Exchange Securities (assuming that such Holder
is not an affiliate of the Company within the meaning of Rule
405 under the 1933 Act and is not a broker-dealer tendering
Registrable Securities acquired directly from the Company for
its own account, acquires the Exchange Securities in the
ordinary course of such Holder's business and has no
arrangements or understandings with any Person to participate
in the Exchange Offer for the purpose of distributing the
Exchange Securities) to transfer such Exchange Securities from
and after their receipt without any limitations or restrictions
under the 1933 Act and under state securities or blue sky laws.
In connection with the 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 Exchange Offer open for acceptance for
a period of not less than 30 days after the date notice
6
thereof is mailed to the Holders (or longer if required by
applicable law) (such period referred to herein as the
"Exchange Period");
(iii) utilize the services of the Depositary for the
Exchange Offer;
(iv) permit Holders to withdraw tendered Securities
at any time prior to the close of business, New York time,
on the last business day of the Exchange Period, by
sending to the institution specified in the notice, a
telegram, telex, facsimile transmission or letter setting
forth the name of such Holder, the principal amount of
Securities delivered for exchange, and a statement that
such Holder is withdrawing his election to have such
Securities exchanged;
(v) notify each Holder that any Security not
tendered will remain outstanding and continue to accrue
interest, but will not retain any rights under this
Agreement (except in the case of the Purchaser and
Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all
applicable laws relating to the Exchange Offer.
If, prior to consummation of the Exchange Offer, the
Purchaser holds any Securities acquired by it and having the
status of an unsold allotment in the initial distribution, the
Company upon the request of the Purchaser shall, simultaneously
with the delivery of the Exchange Securities in the Exchange
Offer, issue and deliver to the Purchaser, in exchange (the
"Private Exchange") for the Securities held by the Purchaser, a
like principal amount of debt securities of the Company that
are identical (except that such securities shall bear
appropriate transfer restrictions) to the Exchange Securities
(the "Private Exchange Securities") and which are issued
pursuant to the Indenture (which will provide that the Exchange
Securities will not be subject to the transfer restrictions set
forth in the Indenture and that the Exchange Securities, the
Private Exchange Securities and the Securities will vote and
consent together on all matters as one class and that neither
the Exchange Securities, the Private Exchange Securities nor
the Securities will have the right to vote or consent as a
separate class on any matter). The Private Exchange Securities
shall be of the same series as and shall bear the same CUSIP
number as the Exchange Securities.
7
As soon as practicable after the close of the
Exchange Offer or the Private Exchange, as the case may be, the
Company shall:
(i) accept for exchange all Securities or portions
thereof tendered and not validly withdrawn pursuant to the
Exchange Offer;
(ii) accept for exchange all Securities duly tendered
pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the
Trustee for cancellation all Securities or portions
thereof so accepted for exchange by the Company, and
issue, and cause the Trustee under the Indenture to
promptly authenticate and deliver to each Holder, a new
Exchange Security or Private Exchange Security, as the
case may be, equal in principal amount to the principal
amount of the Securities surrendered by such Holder.
To the extent not prohibited by any law or applicable
interpretation of the staff of the SEC, the Company shall use
its best efforts to complete the Exchange Offer as provided
above, and shall comply with the applicable requirements of the
1933 Act, the 1934 Act and other applicable laws in connection
with the Exchange Offer. The Exchange Offer shall not be
subject to any conditions, other than that the Exchange Offer
does not violate applicable law or any applicable
interpretation of the staff of the SEC. Each Holder of
Registrable Securities who wishes to exchange such Registrable
Securities for Exchange Securities in the Exchange Offer will
be required to make certain customary representations in
connection therewith, including representations that such
Holder is not an affiliate of the Company within the meaning of
Rule 405 under the 1933 Act, that any Exchange Securities to be
received by it will be acquired in the ordinary course of
business and that at the time of the commencement of the
Exchange Offer it has no arrangement with any Person to
participate in the distribution (within the meaning of the 1933
Act) of the Exchange Securities. The Company shall inform the
Purchaser, after consultation with the Trustee and the
Purchaser, of the names and addresses of the Holders to whom
the Exchange Offer is made, and the Purchaser shall have the
right to contact such Holders and otherwise facilitate the
tender of Registrable Securities in the Exchange Offer.
Upon consummation of the Exchange Offer in accordance
with this Section 2(a), the provisions of this Agreement shall
8
continue to apply, mutatis mutandis, solely with respect to
Registrable Securities that are Private Exchange Securities and
Exchange Securities held by Participating Broker-Dealers, and
the Company shall have no further obligation to register
Registrable Securities (other than Private Exchange Securities)
pursuant to Section 2(b) of this Agreement.
(b) Shelf Registration. In the event that (i) the
Company or the Majority Holders reasonably determine, after
conferring with counsel (which may be in-house counsel), that
the Exchange Offer Registration provided in Section 2(a) above
is not available or may not be consummated as soon as
practicable after the last day of the Exchange Period because
it would violate applicable securities laws or because the
applicable interpretations of the staff of the SEC would not
permit the Company to effect the Exchange Offer, or (ii) the
Exchange Offer is not for any other reason consummated within
120 days of the Closing Time, or (iii) the Company or the
Majority Holders reasonably determine, after conferring with
counsel (which may be in-house counsel), that the Exchange
Securities would not, upon receipt, be freely tradeable by such
Holders which are not affiliates of the Company without
restriction under the 1933 Act and without restrictions under
applicable blue sky or state securities laws, or a Holder is
not permitted to participate in the Exchange Offer or (iv) upon
the request of the Purchaser with respect to any Registrable
Securities which it acquired directly from the Company and,
with respect to other Registrable Securities held by it, if the
Purchaser is not permitted, in the opinion of counsel to the
Purchaser, pursuant to applicable law or applicable
interpretations of the Staff of the SEC, to participate in the
Exchange Offer, the Company shall, at its cost, cause to be
filed as promptly as practicable after such determination or
date, as the case may be, and, in any event, within 30 days
thereafter, a Shelf Registration Statement providing for the
sale by the Holders of all of the Registrable Securities, and
shall use its best efforts to have such Shelf Registration
Statement declared effective by the SEC as soon as practicable.
No Holder of Registrable Securities may include any of its
Registrable Securities in any Shelf Registration pursuant to
this Agreement unless and until such Holder furnishes to the
Company in writing, within 15 days after receipt of a request
therefor, such information as the Company may, after conferring
with counsel with regard to information relating to Holders
that would be required by the SEC to be included in such Shelf
Registration Statement or Prospectus included therein,
reasonably request for inclusion in any Shelf Registration
Statement or Prospectus included
9
therein. Each Holder as to which any Shelf Registration is being
effected agrees to furnish promptly to the Company all information
to be disclosed in the applicable Shelf Registration Statement or
Prospectus included therein in order to make the information
previously furnished to the Company by such Holder not
materially misleading.
The Company agrees to use its best efforts to keep
the Shelf Registration Statement continuously effective for a
period of three years from the date of issuance of the
Securities (subject to extension pursuant to the last paragraph
of Section 3) (the "Effectiveness Period"); provided that if
such Shelf Registration Statement has been filed solely at the
request of the Purchaser pursuant to clause (iv) above, the
Company shall only be required to use its best efforts to keep
such Shelf Registration Statement continuously effective for a
period of one year from the date of issuance of the Securities
(subject to extension pursuant to the last paragraph of Section
3 hereof) or for such shorter period which will terminate when
all of the Registrable Securities covered by the Shelf
Registration Statement have been sold pursuant to the Shelf
Registration Statement or cease to be outstanding. The Company
shall not permit any securities other than Registrable
Securities to be included in the Shelf Registration. The
Company further agrees, if necessary, to supplement or amend
the Shelf Registration Statement, if required by the rules,
regulations or instructions applicable to the registration form
used by the Company for such Shelf Registration Statement or by
the 1933 Act or by any other rules and regulations thereunder
for shelf registrations, and the Company agrees to furnish to
the Holders of Registrable Securities copies of any such
supplement or amendment promptly after its being used or filed
with the SEC.
(c) Expenses. The Company shall pay all
Registration Expenses in connection with the registration
pursuant to Section 2(a) or 2(b) and will reimburse the
Purchaser for the reasonable fees and disbursements of Cahill
Gordon & Reindel incurred in connection with the Registered
Exchange Offer and any one counsel designated in writing by the
Majority Holders to act as counsel for the Holders of the
Registrable Securities in connection with a Shelf Registration
Statement. Each Holder shall pay all expenses of its counsel,
underwriting discounts and commissions and transfer taxes, if
any, relating to the sale or disposition of such Holder's
Registrable Securities pursuant to the Shelf Registration
Statement.
10
(d) Effective Registration Statement. An Exchange
Offer Registration Statement pursuant to Section 2(a) hereof or
a Shelf Registration Statement pursuant to Section 2(b) hereof
will not be deemed to have become effective unless it has been
declared effective by the SEC; provided that if, after it has
been declared effective, the offering of Registrable Securities
pursuant to a Shelf Registration Statement is interfered with
by any stop order, injunction or other order or requirement of
the SEC or any other governmental agency or court, such
Registration Statement will be deemed not to have been
effective during the period of such interference, until the
offering of Registrable Securities pursuant to such
Registration Statement may legally resume. The Company will be
deemed not to have used its reasonable efforts to cause the
Exchange Offer Registration Statement or the Shelf Registration
Statement, as the case may be, to become, or to remain,
effective during the requisite period if it voluntarily takes
any action that would result in any such Registration Statement
not being declared effective or in the Holders of Registrable
Securities covered thereby not being able to exchange or offer
and sell such Registrable Securities during that period unless
such action is required by applicable law.
(e) Additional Interest. In the event that either
(i) the Exchange Offer Registration Statement is not filed with
the SEC on or prior to the 30th calendar day following the
Closing Time, (ii) the Exchange Offer Registration Statement is
not declared effective on or prior to the 90th calendar day
following the Closing Time, (iii) the Exchange Offer is not
consummated on or prior to the 120th calendar day following the
Closing Time or (iv) if the law or applicable interpretations
of the SEC thereof prohibit a Holder from participating in the
Exchange Offer or if such Holder does not receive freely
tradeable Exchange Securities pursuant to the Exchange Offer or
if for any reason the Exchange Offer is not consummated within
120 days of the Closing Time, and if by 150 days after the
Closing Time a Shelf Registration Statement is not declared
effective, the interest rate borne by the Securities shall be
increased (the "Additional Interest") by one-quarter of one
percent per annum from and including the 31st day following the
Closing Time in the case of (i) above, from and including the
91st day following the Closing Time in the case of clause (ii)
above, from and including the 121st day following the Closing
Time in the case of (iii) above or, solely with respect to
Securities which could not be exchanged as set forth above,
Exchange Securities that are not freely tradeable and Private
Exchange Securities, from and including the 151st day after the
Closing Time
11
in the case of clause (iv) above. Upon (w) the filing of the
Exchange Offer Registration Statement in the case of clause (i)
above, (x) the effectiveness of the Exchange Offer Registration
Statement in the case of clause (ii) above, (y) the date of the
consummation of the Exchange Offer in the case of clause (iii)
above or (z) the effectiveness of a Shelf Registration Statement
in the case of clause (iv) above, and provided that none of the
conditions set forth in clauses (i), (ii), (iii) and (iv) above
continues to exist, the interest rate borne by the Securities
from the date of such filing, effectiveness or consummation, as
the case may be, will be reduced to the original interest rate.
In addition, such interest rate shall be increased by an
additional one-quarter of one percent per annum for each 90-day
period that any Additional Interest continues to accrue pursuant
to this Section 2(e); provided that the aggregate increase in
such interest rate pursuant to this Section 2(e) will in no event
exceed one percent per annum.
In the event that the Shelf Registration Statement
has been declared effective and subsequently ceases to be
effective prior to the end of the Effectiveness Period, or if
such a Shelf Registration Statement was filed solely at the
request of the Purchaser pursuant to Section 2(b)(iv) hereof,
one year after the date of issuance of the Securities (in each
instance, subject to extension pursuant to the last paragraph
of Section 3 hereof), for a period in excess of 15 days,
whether or not consecutive, in any given year, then, the
interest rate borne by the Securities, or the Private Exchange
Securities, as the case may be, shall be increased by an
additional one-quarter of one percent per annum on the 16th day
in the applicable year such Shelf Registration Statement ceases
to be effective. Such interest rate shall be increased by an
additional one-quarter of one percent per annum for each
additional 90 days that such Shelf Registration Statement is
not effective, subject to the same aggregate maximum increase
in the interest rate per annum of one percent referred to
above. Upon the effectiveness of a Shelf Registration
Statement, the interest rate borne by the Securities, or the
Private Exchange Securities, as the case may be, shall be
reduced to their original interest rate unless and until
increased as described in this paragraph.
The Company shall notify the Trustee within three
business days after each and every date on which an event
occurs in respect of which Additional Interest is required to
be paid (an "Event Date"). Additional Interest shall be paid
by depositing with the Trustee, in trust, for the benefit of
12
the Holders of Securities or of Private Exchange Securities, as
the case may be, on or before the applicable semiannual
interest payment date, immediately available funds in sums
sufficient to pay the Additional Interest then due. The
Additional Interest due shall be payable on each interest
payment date to the record Holder of Securities entitled to
receive the interest payment to be paid on such date as set
forth in the Indenture. Each obligation to pay Additional
Interest shall be deemed to accrue from and including the day
following the applicable Event Date.
(f) Specific Enforcement. Without limiting the
remedies available to the Purchaser and the Holders, the
Company acknowledges that any failure by the Company to comply
with its obligations under Section 2(a) and Section 2(b) hereof
may result in material irreparable injury to the Purchaser or
the Holders for which there is no adequate remedy at law, that
it would not be possible to measure damages for such injuries
precisely and that, in the event of any such failure, the
Purchaser or any Holder may obtain such relief as may be
required to specifically enforce the Company's obligations
under Section 2(a) and Section 2(b) hereof.
3. Registration Procedures. In connection with the
obligations of the Company with respect to the Registration
Statements pursuant to Sections 2(a) and 2(b) hereof, the
Company shall:
(a) prepare and file with the SEC a Registration
Statement or Registration Statements as prescribed by
Sections 2(a) and 2(b) hereof within the relevant time
period specified in Section 2 hereof on the appropriate
form under the 1933 Act, which form (i) shall be selected
by the Company, (ii) shall, in the case of a Shelf
Registration, be available for the sale of the Registrable
Securities by the selling Holders thereof and (iii) shall
comply as to form in all material respects with the
requirements of the applicable form and include all
financial statements required by the SEC to be filed
therewith; and use its best efforts to cause such
Registration Statement to become effective and remain
effective in accordance with Section 2 hereof; provided
that if (1) such filing is pursuant to Section 2(b), or
(2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2(a) is
required to be delivered under the 1933 Act by any
Participating Broker-Dealer who seeks to sell Exchange
Securities, before filing any Registration
13
Statement or Prospectus or any amendments or supplements
thereto, the Company shall furnish to and afford the
Holders of the Registrable Securities and each such
Participating Broker-Dealer, as the case may be, covered
by such Registration Statement, their counsel and the
managing underwriters, if any, a reasonable opportunity
to review copies of all such documents (including copies
of any documents to be incorporated by reference therein
and all exhibits thereto) proposed to be filed (at least
10 business days prior to such filing). The Company shall
not file any Registration Statement or Prospectus or any
amendments or supplements thereto in respect of which the
Holders must be afforded an opportunity to review prior to
the filing of such document if the Majority Holders or such
Participating Broker-Dealer, as the case may be, their
counsel or the managing underwriters, if any, shall
reasonably object;
(b) prepare and file with the SEC such amendments
and post-effective amendments to each Registration
Statement as may be necessary to keep such Registration
Statement effective for the Effectiveness Period or the
Applicable Period, as the case may be; and cause each
Prospectus to be supplemented by any required prospectus
supplement and as so supplemented to be filed pursuant to
Rule 424 (or any similar provision then in force) under
the 1933 Act, and comply with the provisions of the 1933
Act, the 1934 Act and the rules and regulations
promulgated thereunder applicable to it with respect to
the disposition of all securities covered by each
Registration Statement during the Effectiveness Period or
the Applicable Period, as the case may be, in accordance
with the intended method or methods of distribution by the
selling Holders thereof described in this Agreement
(including sales by any Participating Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify
each Holder of Registrable Securities, at least three
business days prior to filing, that a Shelf Registration
Statement with respect to the Registrable Securities is
being filed and advising such Holder that the distribution
of Registrable Securities will be made in accordance with
the method selected by the Majority Holders; (ii) furnish
to each Holder of Registrable Securities and to each
underwriter of an underwritten offering of Registrable
Securities, if any, without charge, as many copies of each
Prospectus, including each preliminary Prospectus, and any
14
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 Securities; and (iii) hereby consent to
the use of the Prospectus or any amendment or supplement
thereto by each of the selling Holders of Registrable
Securities in connection with the offering and sale of the
Registrable Securities covered by the Prospectus or any
amendment or supplement thereto;
(d) in the case of a Shelf Registration, use its
best efforts to register or qualify the Registrable
Securities under all applicable state securities or "blue
sky" laws of such jurisdictions by the time the applicable
Registration Statement is declared effective by the SEC as
any Holder of Registrable Securities covered by a
Registration Statement and each underwriter of an
underwritten offering of Registrable Securities shall
reasonably request in advance of such date of
effectiveness, and do any and all other acts and things
which may be reasonably necessary or advisable to enable
such Holder and underwriter to consummate the disposition
in each such jurisdiction of such Registrable Securities
owned by such Holder; provided 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(d), (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;
(e) in the case of (1) a Shelf Registration or
(2) Participating Broker-Dealers who have notified the
Company that they will be utilizing the Prospectus
contained in the Exchange Offer Registration Statement as
provided in Section 3(t) hereof, are seeking to sell
Exchange Securities and are required to deliver Prospec-
tuses, notify each Holder of Registrable Securities, or
such Participating Broker-Dealers, as the case may be,
their counsel and the managing underwriters, if any,
promptly and confirm such notice in writing (i) when a
Registration Statement has become effective and when any
post-effective amendments and supplements thereto become
effective, (ii) of any request by the SEC or any state
securities authority for amendments and supplements to a
Registration Statement or Prospectus or for additional
information after the Registration Statement has become
15
effective, (iii) of the issuance by the SEC or any state
securities authority of any stop order suspending the
effectiveness of a Registration Statement or the
initiation of any proceedings for that purpose, (iv) in
the case of a Shelf Registration, if, between the
effective date of a Registration Statement and the closing
of any sale of Registrable Securities 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 such offering
cease to be true and correct in all material respects,
(v) if the Company receives any notification with respect
to the suspension of the qualification of the Registrable
Securities or the Exchange Securities to be sold by any
Participating Broker-Dealer for offer or sale in any
jurisdiction or the initiation of any proceeding for such
purpose, (vi) of the happening of any event or the failure
of any event to occur or the discovery of any facts or
otherwise, during the period a Shelf Registration
Statement is effective which makes any statement made in
such Registration Statement or the related Prospectus
untrue in any material respect or which causes such
Registration Statement or Prospectus to omit to state a
material fact necessary to make the statements therein, in
the light of the circumstances under which they were made,
not misleading and (vii) the Company's reasonable
determination that a post-effective amendment to the
Registration Statement would be appropriate;
(f) make every reasonable effort to obtain the
withdrawal of any order suspending the effectiveness of a
Registration Statement at the earliest possible moment;
(g) in the case of a Shelf Registration, furnish to
each Holder of Registrable Securities, without charge, at
least one conformed copy of each Registration Statement
and any post-effective amendment thereto (without
documents incorporated therein by reference or exhibits
thereto, unless requested);
(h) in the case of a Shelf Registration, cooperate
with the selling Holders of Registrable Securities to
facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be
sold and not bearing any restrictive legends; and cause
such Registrable Securities to be in such denominations
(consistent with the provisions of the Indenture) and
registered in
16
such names as the selling Holders or the underwriters may
reasonably request at least two business days prior to the
closing of any sale of Registrable Securities;
(i) in the case of a Shelf Registration or an
Exchange Offer Registration, upon the occurrence of any
circumstance contemplated by Section 3(e)(ii), 3(e)(iii),
3(e)(v), 3(e)(vi) or 3(e)(vii) hereof, use its best
efforts to prepare a supplement or post-effective
amendment to a 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
Securities, 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 the
light of the circumstances under which they were made, not
misleading. The Company agrees to notify each Holder to
suspend use of the Prospectus as promptly as practicable
after the occurrence of such an event, and each Holder
hereby agrees to suspend use of the Prospectus until the
Company has amended or supplemented the Prospectus to
correct such misstatement or omission;
(j) in the case of a Shelf Registration, a
reasonable time prior to the filing of any document which
is to be incorporated by reference into a Registration
Statement or a Prospectus after the initial filing of a
Registration Statement, provide a reasonable number of
copies of such document to the Purchaser on behalf of such
Holders; and make such of the representatives of the
Company as shall be reasonably requested by the Holders of
Registrable Securities or the Purchaser on behalf of such
Holders available for discussion of such document;
(k) obtain a CUSIP number for all Exchange
Securities or Registrable Securities, as the case may be,
not later than the effective date of a Registration
Statement, and provide the Trustee with printed
certificates for the Exchange Securities or the
Registrable Securities, as the case may be, in a form
eligible for deposit with the Depositary;
(l) cause the Indenture to be qualified under the
Trust Indenture Act of 1939 (the "TIA") in connection with
the registration of the Exchange Securities or Registrable
Securities, as the case may be, cooperate with the Trustee
17
and the Holders to effect such changes to the Indenture as
may be required for the Indenture to be so qualified in
accordance with the terms of the TIA and execute, and use
its best efforts to cause the Trustee to execute, all
documents as may be required to effect such changes, and
all other forms and documents required to be filed with
the SEC to enable the Indenture to be so qualified in a
timely manner;
(m) in the case of a Shelf Registration, enter into
such agreements (including underwriting agreements) as are
customary in underwritten offerings and take all such
other appropriate actions as are reasonably requested in
order to expedite or facilitate the registration or the
disposition of such Registrable Securities, and in such
connection, whether or not an underwriting agreement is
entered into and whether or not the registration is an
underwritten registration: (i) make such representations
and warranties to Holders of such Registrable Securities
and the underwriters (if any), with respect to the
business of the Company and its subsidiaries and the
Registration Statement, Prospectus and documents, if any,
incorporated or deemed to be incorporated by reference
therein, in each case, as are customarily made by issuers
to underwriters in underwritten offerings, and confirm the
same if and when requested; (ii) obtain opinions of
counsel to the Company and updates thereof in form and
substance reasonably satisfactory to the managing
underwriters (if any) and the Holders of a majority in
principal amount of the Registrable Securities being sold,
addressed to each selling Holder and the underwriters (if
any) covering the matters customarily covered in opinions
requested in underwritten offerings and such other matters
as may be reasonably requested by such Holders and
underwriters; (iii) obtain "cold comfort" letters and
updates thereof in form and substance reasonably
satisfactory to the managing underwriters from the
independent certified public accountants of the Company
(and, if necessary, any other independent certified public
accountants of any subsidiary of the Company or of any
business acquired by the Company for which financial
statements and financial data are, or are required to be,
included in the Registration Statement), addressed to the
selling Holders of Registrable Securities and to each of
the underwriters, 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 such other matters as
18
reasonably requested by such selling Holders and underwriters;
and (iv) if an underwriting agreement is entered into, the
same shall contain indemnification provisions and procedures
no less favorable than those set forth in Section 4 hereof (or
such other provisions and procedures acceptable to Holders
of a majority in aggregate principal amount of Registrable
Securities covered by such Registration Statement and the
managing underwriters or agents) with respect to all
parties to be indemnified pursuant to said Section. The
above shall be done at each closing under such underwriting
agreement, or as and to the extent required thereunder;
(n) if (1) a Shelf Registration is filed pursuant to
Section 2(b) or (2) a Prospectus contained in an Exchange
Offer Registration Statement filed pursuant to Section
2(a) is required to be delivered under the 1933 Act by any
Participating Broker-Dealer who seeks to sell Exchange
Securities during the applicable period, make available
for inspection by any selling Holder of such Registrable
Securities being sold, or each such Participating Broker-
Dealer, as the case may be, any underwriter participating
in any such disposition of Registrable Securities, if any,
and any attorney, accountant or other agent retained by
any such selling Holder or each such Participating Broker-
Dealer, as the case may be, or underwriter (collectively,
the "Inspectors"), at the offices where normally kept,
during reasonable business hours, all financial and other
records, pertinent corporate documents and properties of
the Company and its subsidiaries (collectively, the
"Records") as shall be reasonably necessary to enable them
to exercise any applicable due diligence responsibilities,
and cause the officers, directors and employees of the
Company and its subsidiaries to supply all information in
each case reasonably requested by any such Inspector in
connection with such Registration Statement. Records
which the Company determines, in good faith, to be
confidential and any Records which it notifies the
Inspectors are confidential shall not be disclosed by the
Inspectors unless (i) the disclosure of such Records is
necessary to avoid or correct a misstatement or omission
in such Registration Statement, (ii) the release of such
Records is ordered pursuant to a subpoena or other order
from a court of competent jurisdiction or (iii) the
information in such Records has been made generally
available to the public. Each selling Holder of such
Registrable Securities and each such Participating Broker-
Dealer will be required to
19
agree that information obtained by it as a result of such
inspections shall be deemed confidential and shall not be
used by it as the basis for any market transactions in the
securities of the Company unless and until such is made
generally available to the public. Each selling Holder of
such Registrable Securities and each such Participating
Broker-Dealer will be required to further agree that it
will, upon learning that disclosure of such Records is
sought in a court of competent jurisdiction, give notice
to the Company and allow the Company at its expense to
undertake appropriate action to prevent disclosure of the
Records deemed confidential;
(o) comply with all applicable rules and regulations
of the SEC and make generally available to its security-
holders earnings statements satisfying the provisions of
Section 11(a) of the 1933 Act and Rule 158 thereunder (or
any similar rule promulgated under the 1933 Act) no later
than 45 days after the end of any 12-month period (or 90
days after the end of any 12-month period if such period
is a fiscal year) (i) commencing at the end of any fiscal
quarter in which Registrable Securities are sold to
underwriters in a firm commitment or best efforts
underwritten offering and (ii) if not sold to underwriters
in such an offering, commencing on the first day of the
first fiscal quarter of the Company after the effective
date of a Registration Statement, which statements shall
cover said 12-month periods;
(p) upon consummation of an Exchange Offer or a
Private Exchange, obtain an opinion of counsel to the
Company addressed to the Trustee for the benefit of all
Holders of Registrable Securities participating in the
Exchange Offer or the Private Exchange, as the case may
be, and which includes an opinion that (i) the Company has
duly authorized, executed and delivered the Exchange
Securities and Private Exchange Securities and the
Indenture, and (ii) each of the Exchange Securities or the
Private Exchange Securities, as the case may be, and the
Indenture constitute a legal, valid and binding obligation
of the Company, enforceable against the Company in
accordance with its respective terms (in each case, with
customary exceptions);
(q) if an Exchange Offer or a Private Exchange is to
be consummated, upon delivery of the Registrable
Securities by Holders to the Company (or to such other
Person as
20
directed by the Company) in exchange for the
Exchange Securities or the Private Exchange Securities, as
the case may be, the Company shall mark, or cause to be
marked, on such Registrable Securities delivered by such
Holders that such Registrable Securities are being
cancelled in exchange for the Exchange Securities or the
Private Exchange Securities, as the case may be; in no
event shall such Registrable Securities be marked as paid
or otherwise satisfied;
(r) cooperate with each seller of Registrable
Securities covered by any Registration Statement and each
underwriter, if any, participating in the disposition of
such Registrable Securities and their respective counsel
in connection with any filings required to be made with
the NASD;
(s) use its best efforts to take all other steps
necessary to effect the registration of the Registrable
Securities covered by a Registration Statement
contemplated hereby;
(t) (A) in the case of the Exchange Offer
Registration Statement (i) include in the Exchange Offer
Registration Statement a section entitled "Plan of
Distribution," which section shall be reasonably
acceptable to the Purchaser or another representative of
the Participating Broker-Dealers, and which shall contain
a summary statement of the positions taken or policies
made by the staff of the SEC with respect to the potential
"underwriter" status of any broker-dealer (a
"Participating Broker-Dealer") that holds Registrable
Securities acquired for its own account as a result of
market-making activities or other trading activities and
that will be the beneficial owner (as defined in Rule
13d-3 under the Exchange Act) of Exchange Securities to be
received by such broker-dealer in the Exchange Offer,
whether such positions or policies have been publicly
disseminated by the staff of the SEC or such positions or
policies, in the reasonable judgment of the Purchaser or
such other representative, represent the prevailing views
of the staff of the SEC, including a statement that any
such broker-dealer who receives Exchange Securities for
Registrable Securities pursuant to the Exchange Offer may
be deemed a statutory underwriter and must deliver a
prospectus meeting the requirements of the 1933 Act in
connection with any resale of such Exchange Securities,
(ii) furnish to each Participating
21
Broker-Dealer who has delivered to the Company the notice
referred to in Section 3(e), without charge, as many
copies of each Prospectus included in the Exchange Offer
Registration Statement, including any preliminary
prospectus, and any amendment or supplement thereto, as such
Participating Broker-Dealer may reasonably request, (iii)
hereby consent to the use of the Prospectus forming part of
the Exchange Offer Registration Statement or any amendment
or supplement thereto, by any Person subject to the
prospectus delivery requirements of the SEC, including all
Participating Broker-Dealers, in connection with the sale or
transfer of the Exchange Securities covered by the Prospectus
or any amendment or supplement thereto, (iv) use its best
efforts to keep the Exchange Offer Registration Statement
effective and to amend and supplement the Prospectus
contained therein, in order to permit such Prospectus to
be lawfully delivered by all Persons subject to the
prospectus delivery requirements of the 1933 Act for such
period of time as such Persons must comply with such
requirements in order to resell the Exchange Securities;
provided that such period shall not be required to exceed
180 days (or such longer period if extended pursuant to
the last sentence of Section 3 hereof) (the "Applicable
Period"), and (v) include in the transmittal letter or
similar documentation to be executed by an exchange
offeree in order to participate in the Exchange Offer (x)
the following provision:
"If the exchange offeree is a broker-dealer holding
Registrable Securities acquired for its own account as a
result of market-making activities or other trading
activities, it will deliver a prospectus meeting the
requirements of the 1933 Act in connection with any resale
of Exchange Securities received in respect of such
Registrable Securities pursuant to the Exchange Offer";
and
(y) a statement to the effect that by a broker-dealer
making the acknowledgment described in clause (x) and by
delivering a Prospectus in connection with the exchange of
Registrable Securities, the broker-dealer will not be
deemed to admit that it is an underwriter within the
meaning of the 1933 Act; and
(B) in the case of any Exchange Offer
Registration Statement, the Company agrees to deliver to
the Purchaser or to another representative of the
Participating
22
Broker-Dealers on behalf of the Participating Broker-
Dealers upon consummation of the Exchange Offer (i) an
opinion of counsel substantially in the form attached
hereto as Exhibit A, (ii) an officers certificate containing
certifications substantially similar to those set forth in
Section 7(e)(i) of the Purchase Agreement and such additional
certifications as are customarily delivered in a public
offering of debt securities and (iii) as well as upon the
effectiveness of the Exchange Offer Registration Statement, a
comfort letter, in each case, in customary form if permitted
by Statement on Auditing Standards No. 72 of the American
Institute of Certified Public Accountants.
The Company may require each seller of Registrable
Securities as to which any registration is being effected to
furnish to the Company such information regarding such seller
and the proposed distribution of such Registrable Securities,
as the Company may from time to time reasonably request in
writing. The Company may exclude from such registration the
Registrable Securities of any seller who unreasonably fails to
furnish such information within a reasonable time after
receiving such request.
In the case of (1) a Shelf Registration Statement or
(2) Participating Broker-Dealers who have notified the Company
that they will be utilizing the Prospectus contained in the
Exchange Offer Registration Statement as provided in Section
3(t) hereof, are seeking to sell Exchange Securities and are
required to deliver Prospectuses, each Holder agrees that, upon
receipt of any notice from the Company of the happening of any
event of the kind described in Section 3(e)(ii), 3(e)(iii),
3(e)(v), 3(e)(vi) or 3(e)(vii) hereof, such Holder will
forthwith discontinue disposition of Registrable Securities
pursuant to a Registration Statement until such Holder's
receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 3(i) hereof or until it is advised in
writing (the "Advice") by the Company that the use of the
applicable Prospectus may be resumed, and, if so directed by
the Company, such Holder will deliver to the Company (at the
Company's expense) all copies in such Holder's possession,
other than permanent file copies then in such Holder's
possession, of the Prospectus covering such Registrable
Securities or Exchange Securities, as the case may be, current
at the time of receipt of such notice. If the Company shall
give any such notice to suspend the disposition of Registrable
Securities or Exchange Securities, as the case may be, pursuant
to a Registration Statement, the Company shall use its best
efforts to file and
23
have declared effective (if an amendment) as soon as practicable
an amendment or supplement to the Registration Statement and shall
extend the period during which such Registration Statement shall be
maintained effective pursuant to this Agreement by the number of
days in the period from and including the date of the giving of
such notice to and including the date when the Company shall have
made available to the Holders (x) copies of the supplemented or
amended Prospectus necessary to resume such dispositions or (y)
the Advice.
4. Indemnification and Contribution. (a) The
Company shall indemnify and hold harmless the Purchaser, each
Holder, each Participating Broker-Dealer, each underwriter who
participates in an offering of Registrable Securities, their
respective affiliates, each Person, if any, who controls any of
such parties within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act and each of their respective
directors, officers, employees and agents, as follows:
(i) from and against any and all loss, liability,
claim, damage and expense whatsoever, joint or several, as
incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in any
Registration Statement (or any amendment thereto),
covering Registrable Securities or Exchange Securities,
including all documents incorporated therein by reference,
or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary
to make the statements therein not misleading or arising
out of any untrue statement or alleged untrue statement of
a material fact contained in any Prospectus (or any
amendment or supplement thereto) or the omission or
alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) from and against any and all loss, liability,
claim, damage and expense whatsoever, joint or several, as
incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or
proceeding by any court or governmental agency or body,
commenced or threatened, or of any claim whatsoever based
upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement
is effected with the prior written consent of the Company;
and
24
(iii) from and against any and all expenses
whatsoever, as incurred (including reasonable fees and
disbursements of counsel chosen by the Purchaser, such
Holder, such Participating Broker-Dealer or any
underwriter (except to the extent otherwise expressly
provided in Section 4(c) hereof)), reasonably incurred in
investigating, preparing or defending against any
litigation, or any investigation or proceeding by any
court or governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense
is not paid under subparagraph (i) or (ii) of this Section
4(a);
provided that this indemnity does not apply to any loss,
liability, claim, damage or expense to the extent arising out
of an untrue statement or omission or alleged untrue statement
or omission (i) made in reliance upon and in conformity with
written information furnished to the Company by the Purchaser,
such Holder, such Participating Broker-Dealer or any
underwriter in writing expressly for use in the Registration
Statement (or any amendment thereto) or any Prospectus (or any
amendment or supplement thereto) or (ii) contained in any
preliminary prospectus if the Purchaser, such Holder, such
Participating Broker-Dealer or such underwriter failed to send
or deliver a copy of the Prospectus (in the form it was first
provided to such parties for confirmation of sales) to the
Person asserting such losses, claims, damages or liabilities on
or prior to the delivery of written confirmation of any sale of
securities covered thereby to such Person in any case where
such delivery is required by the 1933 Act and a court of
competent jurisdiction in a judgment not subject to appeal or
final review shall have determined that such Prospectus would
have corrected such untrue statement or omission. Any amounts
advanced by the Company to an indemnified party pursuant to
this Section 4 as a result of such losses shall be returned to
the Company if it shall be finally determined by such a court
in a judgment not subject to appeal or final review that such
indemnified party was not entitled to indemnification by the
Company.
(b) Each Holder agrees, severally and not jointly,
to indemnify and hold harmless the Company, the Purchaser, each
underwriter who participates in an offering of Registrable
Securities and the other selling Holders and each of their
respective directors, officers (including each officer of the
Company who signed the Registration Statement), employees and
agents and each Person, if any, who controls the Company, the
25
Purchaser, any underwriter or any other selling Holder within
the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act, from and against any and all loss, liability, claim,
damage and expense whatsoever described in the indemnity
contained in Section 4(a) hereof, as incurred, but only with
respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or
any amendment thereto) or any Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such selling
Holder expressly for use in the Registration Statement (or any
amendment thereto), or any such Prospectus (or any amendment or
supplement thereto); provided, however, that, in the case of
Shelf Registration Statement, no such Holder shall be liable
for any claims hereunder in excess of the amount of net
proceeds received by such Holder from the sale of Registrable
Securities pursuant to such Shelf Registration Statement.
(c) Each indemnified party shall give prompt notice
to each indemnifying party of any action commenced against it
in respect of which indemnity may be sought hereunder,
enclosing a copy of all papers properly served on such
indemnified party, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any
liability which it may have other than on account of this
indemnity agreement. An indemnifying party may participate at
its own expense in the defense of any such action. If an
indemnifying party so elects within a reasonable time after
receipt of such notice, such indemnifying party, jointly with
any other indemnifying party, may assume the defense of such
action with counsel chosen thereby and approved by the
indemnified parties defendant in such action, provided that if
any such indemnified party reasonably determines that there may
be legal defenses available to such indemnified party which are
different from or in addition to those available to such
indemnifying party or that representation of such indemnifying
party and any indemnified party by the same counsel would
present a conflict of interest, then such indemnifying party or
parties shall not be entitled to assume such defense. If an
indemnifying party is not entitled to assume the defense of
such action as a result of the proviso to the preceding
sentence, counsel for such indemnifying party shall be entitled
to conduct the defense of such indemnifying party and counsel
for each indemnified party or parties shall be entitled to
conduct the defense of such indemnified party or parties. If
an indemnifying party assumes the defense of an action in
accordance with and as permitted by the provisions of this
paragraph, such indemnifying party shall not
26
be liable for any fees and expenses of counsel for the
indemnified parties incurred thereafter in connection with
such action. In no event shall the indemnifying party or
parties be liable for the fees and expenses of more than one
counsel (in addition to any local counsel), separate from its
own counsel, for all indemnified parties in connection with
any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general
allegations or circumstances.
(d) In order to provide for just and equitable
contribution in circumstances under which any of the indemnity
provisions set forth in this Section 4 is for any reason held
to be unavailable to the indemnified parties although
applicable in accordance with its terms, the Company, the
Purchaser and the Holders shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature
contemplated by such indemnity agreement incurred by the
Company, the Purchaser and the Holders, as incurred; provided
that 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 that was not guilty of such
fraudulent misrepresentation. As between the Company, the
Purchaser and the Holders, such parties shall contribute to
such aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by such indemnity agreement
in such proportion as shall be appropriate to reflect the
relative fault of the Company, on the one hand, and the
Purchaser and the Holders, on the other hand, with respect to
the statements or omissions which resulted in such loss,
liability, claim, damage or expense, or action in respect
thereof, as well as any other relevant equitable
considerations. The relative fault of the Company, on the one
hand, and of the Purchaser and the Holders, on the other hand,
shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company, on the
one hand, or by or on behalf of the Purchaser or the Holders,
on the other, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent
such statement or omission. The Company, the Purchaser and the
Holders of the Registrable Securities agree that it would not
be just and equitable if contribution pursuant to this
Section 4 were to be determined by pro rata allocation or by
any other method of allocation that does not take into account
the relevant equitable considerations. For purposes of this
Section 4, each affiliate of the Purchaser or Holder, and
27
each director, officer, employee, agent and Person, if any, who
controls a Purchaser or Holder or such affiliate within the
meaning of Section 15 of the 1933 Act shall have the same
rights to contribution as such Purchaser or Holder, and each
director of the Company, each officer of the Company who signed
the Registration Statement, and each Person, if any, who
controls the Company within the meaning of Section 15 of the
1933 Act shall have the same rights to contribution as the
Company.
5. Participation in Underwritten Registrations. No
Holder may participate in any underwritten registration
hereunder unless such Holder (a) agrees to sell such Holder's
Registrable Securities on the basis provided in any
underwriting arrangements approved by the Persons entitled
hereunder to approve such arrangements and (b) completes and
executes all reasonable questionnaires, powers of attorney,
indemnities, underwriting agreements, lock-up letters and other
documents reasonably required under the terms of such
underwriting arrangements.
6. Selection of Underwriters. The Holders of
Registrable Securities covered by the Shelf Registration
Statement who desire to do so may sell the securities covered
by such Shelf Registration in an underwritten offering. In any
such underwritten offering, the underwriter or underwriters and
manager or managers that will administer the offering will be
selected by the Holders of a majority in aggregate principal
amount of the Registrable Securities included in such offering;
provided that such underwriters and managers must be reasonably
satisfactory to the Company.
7. Miscellaneous.
(a) Rule 144 and Rule 144A. For so long as the
Company is subject to the reporting requirements of Section 13
or 15 of the 1934 Act and any Registrable Securities remain
outstanding, the Company covenants that it will file the
reports required to be filed by it under the 1933 Act and
Section 13(a) or 15(d) of the 1934 Act and the rules and
regulations adopted by the SEC thereunder, that if it ceases to
be so required to file such reports, it will upon the request
of any Holder of Registrable Securities (a) make publicly
available such information as is necessary to permit sales
pursuant to Rule 144 under the 1933 Act, (b) deliver such
information to a prospective purchaser as is necessary to
permit sales pursuant to Rule 144A under the 1933 Act and it
will take such further action as any Holder of Registrable
Securities may reasonably request,
28
and (c) take such further action that is reasonable in the
circumstances, in each case, to the extent required from time
to time to enable such Holder to sell its Registrable Securities
without registration under the 1933 Act within the limitation of
the exemptions provided by (i) Rule 144 under the 1933 Act, as
such rule may be amended from time to time, (ii) Rule 144A under
the 1933 Act, as such rule may be amended from time to time, or
(iii) any similar rules or regulations hereafter adopted by the
SEC. Upon the request of any Holder of Registrable Securities,
the Company will deliver to such Holder a written statement as
to whether it has complied with such requirements.
(b) No Inconsistent Agreements. The Company has
not entered into nor will the Company on or after the date of
this Agreement enter into any agreement which is inconsistent
with the rights granted to the Holders of Registrable
Securities 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 principal amount of the
outstanding Registrable Securities affected by such amendment,
modification, supplement, waiver or departure; provided no
amendment, modification or supplement or waiver or consent to
the departure with respect to the provisions of Section 4
hereof shall be effective as against any Holder of Registrable
Securities unless consented to in writing by such Holder of
Registrable Securities.
(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 7(d), which address initially is,
with respect to the Purchaser, the address set forth in the
Purchase Agreement; and (ii) if to the Company, initially at
the Company's address set forth in the Purchase Agreement and
thereafter
29
at such other address, notice of which is given in accordance
with the provisions of this Section 7(d).
All such notices and communications shall be deemed
to have been duly given: at the time delivered by hand, if
personally delivered; five 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 Trustee, at the address specified in the
Indenture.
(e) Successors and Assigns. This Agreement shall
inure to the benefit of and be binding upon the successors,
assigns and transferees of the Purchaser, 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 Securities in violation of the terms of the
Purchase Agreement or the Indenture. If any transferee of any
Holder shall acquire Registrable Securities, in any manner,
whether by operation of law or otherwise, such Registrable
Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable
Securities, 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.
(f) Third Party Beneficiary. The Purchaser shall be
a third party beneficiary of the agreements made hereunder
between the Company, on the one hand, and the Holders, on the
other hand, and 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.
(g) 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.
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(h) Headings. The headings in this Agreement are
for convenience of reference only and shall not limit or
otherwise affect the meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED
TO HAVE BEEN MADE IN THE STATE OF NEW YORK. THE VALIDITY AND
INTERPRETATION OF THIS AGREEMENT, AND THE TERMS AND CONDITIONS
SET FORTH HEREIN, SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAWS.
EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION
OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(j) 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.
(k) Securities Held by the Company or Its
Affiliates. Whenever the consent or approval of Holders of a
specified percentage of Registrable Securities is required
hereunder, Registrable Securities held by the Company or its
affiliates (as such term is defined in Rule 405 under the 1933
Act) shall not be counted in determining whether such consent
or approval was given by the Holders of such required
percentage.
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IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
PEOPLES TELEPHONE COMPANY, INC.
By:
-------------------------
Name:
Title:
Confirmed and accepted as of
the date first above
written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:
---------------------------
Name:
Title:
32
Exhibit A
Form of Opinion of Counsel
1. Each of the Exchange Offer Registration
Statement and the Prospectus (other than the financial
statements, notes or schedules thereto and other financial and
statistical data and supplemental schedules included or
referred to therein or omitted therefrom and the Form T-1, as
to which such counsel need express no opinion), complies as to
form in all material respects with the applicable requirements
of the 1933 Act and the applicable rules and regulations
promulgated under the 1933 Act.
2. In the course of such counsel's review and
discussion of the contents of the Exchange Offer Registration
Statement and the Prospectus with certain officers and other
representatives of the Company and representatives of the
independent certified public accountants of the Company, but
without independent check or verification or responsibility for
the accuracy, completeness or fairness of the statements
contained therein, on the basis of the foregoing (relying as to
materiality to a large extent upon representations and opinions
of officers and other representatives of the Company), no facts
have come to such counsel's attention which cause such counsel
to believe that the Exchange Offer Registration Statement
(other than the financial statements, notes and schedules
thereto and other financial and statistical information
contained or referred to therein and the Form T-1, as to which
such counsel need express no belief), at the time the Exchange
Offer Registration Statement became effective, contained an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to
make the statements contained therein not misleading, or that
the Prospectus (other than the financial statements, notes and
schedules thereto and other financial and statistical
information contained or referred to therein, as to which such
counsel need express no belief) contains any untrue statement
of a material fact or omits to state a material fact necessary
to make the statements contained therein, in the light of the
circumstances under which they were made, not misleading.