Exhibit 4.5
$430,000,000
KMART CORPORATION
9-7/8% NOTES DUE 2008
REGISTRATION RIGHTS AGREEMENT
June 19, 2001
Credit Suisse First Boston Corporation
J.P. Morgan Securities Inc.
BNY Capital Markets, Inc.
Fleet Securities, Inc.
Banc One Capital Markets, Inc.
c/o Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, New York 10010-3629
Ladies and Gentlemen:
Kmart Corporation, a Michigan corporation (the "Company"), proposes to
issue and sell to Credit Suisse First Boston Corporation, J.P. Morgan
Securities Inc., BNY Capital Markets, Inc., Fleet Securities, Inc. and Banc
One Capital Markets, Inc. (collectively, the "Initial Purchasers"), upon
the terms set forth in a purchase agreement of even date herewith (the
"Purchase Agreement"), U.S. $430,000,000 aggregate principal amount of its
9-7/8% Notes due 2008 (the "Initial Securities"). The Initial Securities
will be issued pursuant to an indenture, dated as of December 13, 1999, as
supplemented by a third supplemental indenture, dated as of June 19, 2001
(collectively, the "Indenture"), among the Company and The Bank of New
York, as trustee (the "Trustee"). As an inducement to the Initial
Purchasers to enter into the Purchase Agreement, the Company agrees with
the Initial Purchasers, for the benefit of the Initial Purchasers and the
holders of the Securities (as defined below) (collectively the "Holders"),
as follows:
1. Registered Exchange Offer. Unless not permitted by applicable
law (after the Company has complied with the ultimate paragraph of this
Section 1), the Company shall prepare and, not later than 90 days (such
90th day being a "Filing Deadline") after the date on which the Initial
Purchasers purchase the Initial Securities pursuant to the Purchase
Agreement (the "Closing Date"), file with the Securities and Exchange
Commission (the "Commission") a registration statement (the "Exchange Offer
Registration Statement") on an appropriate form under the Securities Act of
1933, as amended (the "Securities Act"), with respect to a proposed offer
(the "Registered Exchange Offer") to the Holders of Transfer Restricted
Securities (as defined in Section 6 hereof), who are not prohibited by any
law or policy of the Commission from participating in the Registered
Exchange Offer, to issue and deliver to such Holders, in exchange for the
Initial Securities, a like aggregate principal amount of debt securities of
the Company issued under the Indenture, identical in all material respects
to the Initial Securities and registered under the Securities Act (the
"Exchange Securities"). The Company shall use its best efforts to (i) cause
such Exchange Offer Registration Statement to become effective under the
Securities Act within 180 days after the Closing Date (such 180th day being
an "Effectiveness Deadline") and (ii) keep the Exchange Offer Registration
Statement effective for not less than 30 days (or longer, if required by
applicable law) after the date notice of the Registered Exchange Offer is
mailed to the Holders (such period being called the "Exchange Offer
Registration Period").
If the Company commences the Registered Exchange Offer, the
Company (i) will be entitled to consummate the Registered Exchange Offer 30
days after such commencement (provided that the Company has accepted all
the Initial Securities theretofore validly tendered in accordance with the
terms of the Registered Exchange Offer) and (ii) will be required to
consummate the Registered Exchange Offer no later than 90 days after the
date on which the Exchange Offer Registration Statement is declared
effective (such 90th day being the "Consummation Deadline").
Following the declaration of the effectiveness of the Exchange
Offer Registration Statement, the Company shall promptly commence the
Registered Exchange Offer, it being the objective of such Registered
Exchange Offer to enable each Holder of Transfer Restricted Securities
electing to exchange the Initial Securities for Exchange Securities
(assuming that such Holder is not an affiliate of the Company within the
meaning of the Securities Act, acquires the Exchange Securities in the
ordinary course of such Holder's business and has no arrangements with any
person to participate in the distribution of the Exchange Securities and is
not prohibited by any law or policy of the Commission from participating in
the Registered Exchange Offer) to trade such Exchange Securities from and
after their receipt without any limitations or restrictions under the
Securities Act and without material restrictions under the securities laws
of the several states of the United States.
The Company acknowledges that, pursuant to current interpretations
by the Commission's staff of Section 5 of the Securities Act, in the
absence of an applicable exemption therefrom, (i) each Holder which is a
broker-dealer electing to exchange Initial Securities, acquired for its own
account as a result of market making activities or other trading
activities, for Exchange Securities (an "Exchanging Dealer"), is required
to deliver a prospectus containing the information set forth in (a) Annex A
hereto on the cover, (b) Annex B hereto in the "Exchange Offer Procedures"
section and the "Purpose of the Exchange Offer" section, and (c) Annex C
hereto in the "Plan of Distribution" section of such prospectus in
connection with a sale of any such Exchange Securities received by such
Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an
Initial Purchaser that elects to sell Securities (as defined below)
acquired in exchange for Initial Securities constituting any portion of an
unsold allotment, is required to deliver a prospectus containing the
information required by Items 507 or 508 of Regulation S-K under the
Securities Act, as applicable, in connection with such sale.
The Company shall 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 Securities Act for such period of time as such persons must comply with
such requirements in order to resell the Exchange Securities; provided,
however, that (i) in the case where such prospectus and any amendment or
supplement thereto must be delivered by an Exchanging Dealer or an Initial
Purchaser, such period shall be the lesser of 180 days and the date on
which all Exchanging Dealers and the Initial Purchasers have sold all
Exchange Securities held by them (unless such period is extended pursuant
to Section 3(j) below) and (ii) the Company shall make such prospectus and
any amendment or supplement thereto available to any broker-dealer for use
in connection with any resale of any Exchange Securities for a period of
not less than 180 days after the consummation of the Registered Exchange
Offer.
If, upon consummation of the Registered Exchange Offer, any
Initial Purchaser holds Initial Securities acquired by it as part of its
initial distribution, the Company, simultaneously with the delivery of the
Exchange Securities pursuant to the Registered Exchange Offer, shall issue
and deliver to such Initial Purchaser upon the written request of such
Initial Purchaser, in exchange (the "Private Exchange") for the Initial
Securities held by such Initial Purchaser, a like principal amount of debt
securities of the Company issued under the Indenture and identical in all
material respects to the Initial Securities (the "Private Exchange
Securities"). The Initial Securities, the Exchange Securities and the
Private Exchange Securities are herein collectively called the
"Securities."
In connection with the Registered Exchange Offer, the Company
shall:
(a) mail to each Holder a copy of the prospectus forming
part of the Exchange Offer Registration Statement, together with
an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less
than 30 days (or longer, if required by applicable law) after the
date notice thereof is mailed to the Holders;
(c) utilize the services of a depositary for the
Registered Exchange Offer with an address in the Borough of
Manhattan, The City of New York, which may be the Trustee or an
affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any
time prior to the close of business, New York time, on the last
business day on which the Registered Exchange Offer shall remain
open; and
(e) otherwise comply with all applicable laws.
As soon as practicable after the close of the Registered Exchange
Offer or the Private Exchange, as the case may be, the Company shall:
(x) accept for exchange all the Securities validly
tendered and not withdrawn pursuant to the Registered Exchange
Offer and the Private Exchange;
(y) deliver to the Trustee for cancellation all the
Initial Securities so accepted for exchange; and
(z) cause the Trustee to authenticate and deliver
promptly to each Holder of the Initial Securities, Exchange
Securities or Private Exchange Securities, as the case may be,
equal in principal amount to the Initial Securities of such Holder
so accepted for exchange.
The Indenture will provide that the Exchange Securities will not
be subject to the transfer restrictions set forth in the Indenture and that
all the Securities (as defined below) will vote and consent together on all
matters as one class and that none of the Securities will have the right to
vote or consent as a class separate from one another on any matter.
Interest on each Exchange Security and Private Exchange Security
issued pursuant to the Registered Exchange Offer and in the Private
Exchange will accrue from the last interest payment date on which interest
was paid on the Initial Securities surrendered in exchange therefor or, if
no interest has been paid on the Initial Securities, from the date of
original issue of the Initial Securities.
Each Holder participating in the Registered Exchange Offer shall
be required to represent to the Company that at the time of the
consummation of the Registered Exchange Offer (i) any Exchange Securities
received by such Holder will be acquired in the ordinary course of
business, (ii) such Holder will have no arrangements or understanding with
any person to participate in the distribution of the Securities or the
Exchange Securities within the meaning of the Securities Act, (iii) such
Holder is not an "affiliate," as defined in Rule 405 of the Securities Act,
of the Company or if it is an affiliate, such Holder will comply with the
registration and prospectus delivery requirements of the Securities Act to
the extent applicable, (iv) if such Holder is not a broker-dealer, that it
is not engaged in, and does not intend to engage in, the distribution of
the Exchange Securities and (v) if such Holder is a broker-dealer, that it
will receive Exchange Securities for its own account in exchange for
Initial Securities that were acquired as a result of market-making
activities or other trading activities and that it will be required to
acknowledge that it will deliver a prospectus in connection with any resale
of such Exchange Securities.
Notwithstanding any other provisions hereof, the Company will
ensure that (i) any Exchange Offer Registration Statement and any amendment
thereto and any prospectus forming part thereof and any supplement thereto
complies in all material respects with the Securities Act and the rules and
regulations thereunder, (ii) any Exchange Offer Registration Statement and
any amendment thereto does not, when it becomes effective, contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading and (iii) any prospectus forming part of any Exchange Offer
Registration Statement, and any supplement to such prospectus, does not
include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
2. Shelf Registration. If, (i) because of any change in law or in
applicable interpretations thereof by the staff of the Commission, the
Company is not permitted to effect a Registered Exchange Offer, as
contemplated by Section 1 hereof, (ii) the Registered Exchange Offer is not
consummated by the 220th day after the Closing Date, (iii) any Initial
Purchaser so requests with respect to the Initial Securities (or the
Private Exchange Securities) not eligible to be exchanged for Exchange
Securities in the Registered Exchange Offer and held by it following
consummation of the Registered Exchange Offer or (iv) any Holder (other
than an Exchanging Dealer) is not eligible to participate in the Registered
Exchange Offer or, in the case of any Holder (other than an Exchanging
Dealer) that participates in the Registered Exchange Offer, such Holder
does not receive freely tradeable Exchange Securities on the date of the
exchange, the Company shall take the following actions (the date on which
any of the conditions described in the foregoing clauses (i) through (iv)
occur, including in the case of clauses (iii) or (iv) the receipt of the
required notice, being a "Trigger Date"):
(a) The Company shall as promptly as practicable (but in
no event more than 60 days after the Trigger Date (such 60th day
being a "Filing Deadline")) file with the Commission and
thereafter use its best efforts to cause to be declared effective
no later than 180 days after the Trigger Date (such 140th day
being an "Effectiveness Deadline") a registration statement (the
"Shelf Registration Statement" and, together with the Exchange
Offer Registration Statement, a "Registration Statement") on an
appropriate form under the Securities Act relating to the offer
and sale of the Transfer Restricted Securities by the Holders
thereof from time to time in accordance with the methods of
distribution set forth in the Shelf Registration Statement and
Rule 415 under the Securities Act (hereinafter, the "Shelf
Registration"); provided, however, that no Holder (other than an
Initial Purchaser) shall be entitled to have the Securities held
by it covered by such Shelf Registration Statement unless such
Holder agrees in writing to be bound by all the provisions of this
Agreement applicable to such Holder.
(b) The Company shall use its best efforts to keep the
Shelf Registration Statement continuously effective in order to
permit the prospectus included therein to be lawfully delivered by
the Holders of the relevant Securities, for a period of two years
(or for such longer period if extended pursuant to Section 3(j)
below) from the date of its effectiveness or such shorter period
that will terminate when all the Securities covered by the Shelf
Registration Statement (i) have been sold pursuant thereto or (ii)
are no longer restricted securities (as defined in Rule 144 under
the Securities Act, or any successor rule thereof) (the "Shelf
Registration Period"). The Company shall be deemed not to have
used its best efforts to keep the Shelf Registration Statement
effective during the requisite period if it voluntarily takes any
action that would result in Holders of Securities covered thereby
not being able to offer and sell such Securities during that
period, unless such action is required by applicable law.
(c) Notwithstanding any other provisions of this
Agreement to the contrary, the Company shall cause the Shelf
Registration Statement and the related prospectus and any
amendment or supplement thereto, as of the effective date of the
Shelf Registration Statement, amendment or supplement, (i) to
comply in all material respects with the applicable requirements
of the Securities Act and the rules and regulations of the
Commission and (ii) not to contain any untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made,
not misleading.
3. Registration Procedures. In connection with any Shelf
Registration contemplated by Section 2 hereof and, to the extent
applicable, any Registered Exchange Offer contemplated by Section 1 hereof,
the following provisions shall apply:
(a) The Company shall (i) furnish to each Initial
Purchaser, prior to the filing thereof with the Commission, a copy
of the Registration Statement and each amendment thereof and each
supplement, if any, to the prospectus included therein and, in the
event that an Initial Purchaser (with respect to any portion of an
unsold allotment from the original offering) is participating in
the Registered Exchange Offer or the Shelf Registration Statement,
the Company shall use its best efforts to reflect in each such
document, when so filed with the Commission, such comments as such
Initial Purchaser reasonably may propose; (ii) include the
information substantially to the effect set forth in Annex A
hereto on the cover, in Annex B hereto in the "Exchange Offer
Procedures" section and the "Purpose of the Exchange Offer"
section and in Annex C hereto in the "Plan of Distribution"
section of the prospectus forming a part of the Exchange Offer
Registration Statement and include the information set forth in
Annex D hereto in the Letter of Transmittal delivered pursuant to
the Registered Exchange Offer; (iii) if requested by an Initial
Purchaser, include the information required by Items 507 or 508 of
Regulation S-K under the Securities Act, as applicable, in the
prospectus forming a part of the Exchange Offer Registration
Statement; (iv) include within the prospectus contained in the
Exchange Offer Registration Statement a section entitled "Plan of
Distribution," reasonably acceptable to the Initial Purchasers,
which shall contain a summary statement of the positions taken or
policies made by the staff of the Commission with respect to the
potential "underwriter" status of any broker-dealer that is the
beneficial owner (as defined in Rule 13d-3 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) of Exchange
Securities received by such broker-dealer in the Registered
Exchange Offer (a "Participating Broker-Dealer"), whether such
positions or policies have been publicly disseminated by the staff
of the Commission or such positions or policies, in the reasonable
judgment of the Initial Purchasers based upon advice of counsel
(which may be in-house counsel), represent the prevailing views of
the staff of the Commission; and (v) in the case of a Shelf
Registration Statement, include the names of the Holders who
propose to sell Securities pursuant to the Shelf Registration
Statement as selling securityholders.
(b) The Company shall give written notice to the Initial
Purchasers, the Holders of the Securities and any Participating
Broker-Dealer from whom the Company has received prior written
notice that it will be a Participating Broker-Dealer in the
Registered Exchange Offer (which notice pursuant to clauses
(ii)-(v) hereof shall be accompanied by an instruction to suspend
the use of the prospectus until the requisite changes have been
made):
(i) when the Registration Statement or any
amendment thereto has been filed with the Commission and
when the Registration Statement or any post-effective
amendment thereto has become effective;
(ii) of any request by the Commission for
amendments or supplements to the Registration Statement
or the prospectus included therein or for additional
information;
(iii) of the issuance by the Commission of any
stop order suspending the effectiveness of the
Registration Statement or the initiation of any
proceedings for that purpose;
(iv) of the receipt by the Company or its legal
counsel of any notification with respect to the
suspension of the qualification of the Securities for
sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose; and
(v) of the happening of any event that requires
the Company to make changes in the Registration Statement
or the prospectus in order that the Registration
Statement or the prospectus do not contain an untrue
statement of a material fact nor omit to state a material
fact required to be stated therein or necessary to make
the statements therein (in the case of the prospectus, in
light of the circumstances under which they were made)
not misleading.
(c) The Company shall make every reasonable effort to
obtain the withdrawal at the earliest possible time, of any order
suspending the effectiveness of the Registration Statement.
(d) The Company shall furnish to each Holder of
Securities included within the coverage of the Shelf Registration,
without charge, at least one copy of the Shelf Registration
Statement and any post-effective amendment thereto, including
financial statements and schedules, and, if the Holder so requests
in writing, all exhibits thereto (including those, if any,
incorporated by reference).
(e) The Company shall deliver to each Exchanging Dealer
and each Initial Purchaser, and to any other Holder who so
requests, without charge, at least one copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto,
including financial statements and schedules, and, if any Initial
Purchaser or any such Holder requests, all exhibits thereto
(including those incorporated by reference).
(f) The Company shall, during the Shelf Registration
Period, deliver to each Holder of Securities included within the
coverage of the Shelf Registration, without charge, as many copies
of the prospectus (including each preliminary prospectus) included
in the Shelf Registration Statement and any amendment or
supplement thereto as such person may reasonably request. The
Company consents, subject to the provisions of this Agreement, to
the use of the prospectus or any amendment or supplement thereto
by each of the selling Holders of the Securities in connection
with the offering and sale of the Securities covered by the
prospectus, or any amendment or supplement thereto, included in
the Shelf Registration Statement.
(g) The Company shall deliver to each Initial Purchaser,
any Exchanging Dealer, any Participating Broker-Dealer and such
other persons required to deliver a prospectus following the
Registered Exchange Offer, without charge, as many copies of the
final prospectus included in the Exchange Offer Registration
Statement and any amendment or supplement thereto as such persons
may reasonably request. The Company consents, subject to the
provisions of this Agreement, to the use of the prospectus or any
amendment or supplement thereto by any Initial Purchaser, if
necessary, any Participating Broker-Dealer and such other persons
required to deliver a prospectus following the Registered Exchange
Offer in connection with the offering and sale of the Exchange
Securities covered by the prospectus, or any amendment or
supplement thereto, included in such Exchange Offer Registration
Statement.
(h) Prior to any public offering of the Securities
pursuant to any Registration Statement the Company shall register
or qualify or cooperate with the Holders of the Securities
included therein and their respective counsel in connection with
the registration or qualification of the Securities for offer and
sale under the securities or "blue sky" laws of such states of the
United States as any Holder of the Securities reasonably requests
in writing and do any and all other acts or things necessary or
advisable to enable the offer and sale in such jurisdictions of
the Securities covered by such Registration Statement; provided,
however, that the Company shall not be required to (i) qualify
generally to do business in any jurisdiction where it is not then
so qualified or (ii) take any action which would subject it to
general service of process or to taxation in any jurisdiction
where it is not then so subject.
(i) The Company shall cooperate with the Holders of the
Securities to facilitate the timely preparation and delivery of
certificates representing the Securities to be sold pursuant to
any Registration Statement free of any restrictive legends and in
such denominations and registered in such names as the Holders may
request a reasonable period of time prior to sales of the
Securities pursuant to such Registration Statement.
(j) Upon the occurrence of any event contemplated by
paragraphs (ii) through (v) of Section 3(b) above during the
period for which the Company is required to maintain an effective
Registration Statement, the Company shall promptly prepare and
file a post-effective amendment to the Registration Statement or a
supplement to the related prospectus and any other required
document so that, as thereafter delivered to Holders of the
Securities or purchasers of Securities, the prospectus will not
contain an untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under
which they were made, not misleading. If the Company notifies the
Initial Purchasers, the Holders of the Securities and any known
Participating Broker-Dealer in accordance with paragraphs (ii)
through (v) of Section 3(b) above to suspend the use of the
prospectus until the requisite changes to the prospectus have been
made, then the Initial Purchasers, the Holders of the Securities
and any such Participating Broker-Dealers shall suspend use of
such prospectus, and the period of effectiveness of the Shelf
Registration Statement provided for in Section 2(b) above and the
Exchange Offer Registration Statement provided for in Section 1
above shall each be extended by the number of days from and
including the date of the giving of such notice to and including
the date when the Initial Purchasers, the Holders of the
Securities and any known Participating Broker-Dealer shall have
received such amended or supplemented prospectus pursuant to this
Section 3(j).
(k) Not later than the effective date of the applicable
Registration Statement, the Company will provide a CUSIP number
for the Initial Securities, the Exchange Securities or the Private
Exchange Securities, as the case may be, and provide the
applicable trustee with printed certificates for the Initial
Securities, the Exchange Securities or the Private Exchange
Securities, as the case may be, in a form eligible for deposit
with The Depository Trust Company.
(l) The Company will comply with all rules and
regulations of the Commission to the extent and so long as they
are applicable to the Registered Exchange Offer or the Shelf
Registration and will make generally available to its security
holders (or otherwise provide in accordance with Section 11(a) of
the Securities Act) an earnings statement satisfying the
provisions of Section 11(a) of the Securities Act, no later than
45 days after the end of a 12-month period (or 90 days, if such
period is a fiscal year) beginning with the first month of the
Company's first fiscal quarter commencing after the effective date
of the Registration Statement, which statement shall cover such
12-month period.
(m) The Company shall cause the Indenture to be qualified
under the Trust Indenture Act of 1939, as amended, in a timely
manner and containing such changes, if any, as shall be necessary
for such qualification. In the event that such qualification would
require the appointment of a new trustee under the Indenture, the
Company shall appoint a new trustee thereunder pursuant to the
applicable provisions of the Indenture.
(n) The Company may require each Holder of Securities to
be sold pursuant to the Shelf Registration Statement to furnish to
the Company such information regarding the Holder and the
distribution of the Securities as the Company may from time to
time reasonably require for inclusion in the Shelf Registration
Statement, and the Company may exclude from such registration the
Securities of any Holder that unreasonably fails to furnish such
information within a reasonable time after receiving such request.
(o) The Company shall enter into such customary
agreements (including, if requested, an underwriting agreement in
customary form) and take all such other action, if any, as any
Holder of the Securities shall reasonably request in order to
facilitate the disposition of the Securities pursuant to any Shelf
Registration.
(p) In the case of any Shelf Registration, the Company
shall (i) make reasonably available for inspection by the Holders
of the Securities, any underwriter participating in any
disposition pursuant to the Shelf Registration Statement and any
attorney, accountant or other agent retained by the Holders of the
Securities or any such underwriter all relevant financial and
other records, pertinent corporate documents and properties of the
Company and (ii) cause the Company's officers, directors,
employees, accountants and auditors to supply all relevant
information reasonably requested by the Holders of the Securities
or any such underwriter, attorney, accountant or agent in
connection with the Shelf Registration Statement, in each case, as
shall be reasonably necessary to enable such persons, to conduct a
reasonable investigation within the meaning of Section 11 of the
Securities Act; provided, however, that the foregoing inspection
and information gathering shall be coordinated on behalf of the
Initial Purchasers by you and on behalf of the other parties, by
one counsel designated by and on behalf of such other parties as
described in Section 4 hereof.
(q) In the case of any Shelf Registration, the Company,
if requested by any Holder of Securities covered thereby, shall
cause (i) its counsel to deliver an opinion and updates thereof
relating to the Securities in customary form addressed to such
Holders and the managing underwriters, if any, thereof and dated,
in the case of the initial opinion, the effective date of such
Shelf Registration Statement (it being agreed that the matters to
be covered by such opinion shall include, without limitation, the
due incorporation and good standing of the Company and its
subsidiaries; the qualification of the Company and its
subsidiaries to transact business as foreign corporations; the due
authorization, execution and delivery of the relevant agreement of
the type referred to in Section 3(o) hereof; the due
authorization, execution, authentication and issuance, and the
validity and enforceability, of the applicable Securities; the
absence of material legal or governmental proceedings involving
the Company and its subsidiaries; the absence of governmental
approvals required to be obtained in connection with the Shelf
Registration Statement, the offering and sale of the applicable
Securities, or any agreement of the type referred to in Section
3(o) hereof; the compliance in all material respects as to form of
such Shelf Registration Statement and any documents incorporated
by reference therein and of the Indenture with the requirements of
the Securities Act and the Trust Indenture Act, respectively; and,
as of the date of the opinion and as of the effective date of the
Shelf Registration Statement or most recent post-effective
amendment thereto, as the case may be, the absence from such Shelf
Registration Statement and the prospectus included therein, as
then amended or supplemented, and from any documents incorporated
by reference therein of an untrue statement of a material fact or
the omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading (in the case of any such documents, in the light of the
circumstances existing at the time that such documents were filed
with the Commission under the Exchange Act); (ii) its officers to
execute and deliver all customary documents and certificates and
updates thereof requested by any underwriters of the applicable
Securities and (iii) its independent public accountants to provide
to the selling Holders of the applicable Securities and any
underwriter therefor a comfort letter in customary form and
covering matters of the type customarily covered in comfort
letters in connection with primary underwritten offerings, subject
to receipt of appropriate documentation as contemplated, and only
if permitted, by Statement of Auditing Standards No. 72.
(r) In the case of the Registered Exchange Offer, if
requested by any Initial Purchaser or any known Participating
Broker-Dealer, the Company shall cause (i) its counsel to deliver
to such Initial Purchaser or such Participating Broker-Dealer a
signed opinion in the form set forth in Section 6(c)-(d) of the
Purchase Agreement with such changes as are customary in
connection with the preparation of a Registration Statement and
(ii) its independent public accountants to deliver to such Initial
Purchaser or such Participating Broker-Dealer a comfort letter, in
customary form, meeting the requirements as to the substance
thereof as set forth in Section 6(a) of the Purchase Agreement,
with appropriate date changes.
(s) If a Registered Exchange Offer or a Private Exchange
is to be consummated, upon delivery of the Initial Securities by
Holders to the Company (or to such other Person as directed by the
Company) in exchange for the Exchange Securities or the Private
Exchange Securities, as the case may be, the Company shall mark,
or caused to be marked, on the Initial Securities so exchanged
that such Initial Securities are being canceled in exchange for
the Exchange Securities or the Private Exchange Securities, as the
case may be; in no event shall the Initial Securities be marked as
paid or otherwise satisfied.
(t) The Company will use its best efforts to (a) if the
Initial Securities have been rated prior to the initial sale of
such Initial Securities, confirm such ratings will apply to the
Securities covered by a Registration Statement, or (b) if the
Initial Securities were not previously rated, cause the Securities
covered by a Registration Statement to be rated with the
appropriate rating agencies, if so requested by Holders of a
majority in aggregate principal amount of Securities covered by
such Registration Statement, or by the managing underwriters, if
any.
(u) In the event that any broker-dealer registered under
the Exchange Act shall underwrite any Securities or participate as
a member of an underwriting syndicate or selling group or "assist
in the distribution" (within the meaning of the Conduct Rules (the
"Rules") of the National Association of Securities Dealers, Inc.
("NASD")) thereof, whether as a Holder of such Securities or as an
underwriter, a placement or sales agent or a broker or dealer in
respect thereof, or otherwise, the Company will assist such
broker-dealer in complying with the requirements of such Rules,
including, without limitation, by (i) if such Rules, including
Rule 2720, shall so require, engaging a "qualified independent
underwriter" (as defined in Rule 2720) to participate in the
preparation of the Registration Statement relating to such
Securities, to exercise usual standards of due diligence in
respect thereto and, if any portion of the offering contemplated
by such Registration Statement is an underwritten offering or is
made through a placement or sales agent, to recommend the yield of
such Securities, (ii) indemnifying any such qualified independent
underwriter to the extent of the indemnification of underwriters
provided in Section 5 hereof and (iii) providing such information
to such broker-dealer as may be required in order for such
broker-dealer to comply with the requirements of the Rules.
(v) The Company shall use its best efforts to take all
other steps necessary to effect the registration of the Securities
covered by a Registration Statement contemplated hereby.
4. Registration Expenses. (a) All expenses incident to the
Company's performance of and compliance with this Agreement will be borne
by the Company, regardless of whether a Registration Statement is ever
filed or becomes effective, including without limitation;
(i) all registration and filing fees and expenses;
(ii) all fees and expenses of compliance with federal
securities and state "blue sky" or securities laws;
(iii) all expenses of printing (including printing
certificates for the Securities to be issued in the Registered
Exchange Offer and the Private Exchange and printing of
Prospectuses), messenger and delivery services and telephone;
(iv) all fees and disbursements of counsel for the
Company;
(v) all application and filing fees in connection with
listing the Exchange Securities on a national securities exchange
or automated quotation system pursuant to the requirements hereof;
and
(vi) all fees and disbursements of independent certified
public accountants of the Company (including the expenses of any
special audit and comfort letters required by or incident to such
performance).
The Company will bear its internal expenses (including, without limitation,
all salaries and expenses of its officers and employees performing legal or
accounting duties), the expenses of any annual audit and the fees and
expenses of any person, including special experts, retained by the Company.
(b) In connection with any Registration Statement required by this
Agreement, the Company will reimburse the Initial Purchasers and the
Holders of Transfer Restricted Securities who are tendering Initial
Securities in the Registered Exchange Offer and/or selling or reselling
Securities pursuant to the "Plan of Distribution" contained in the Exchange
Offer Registration Statement or the Shelf Registration Statement, as
applicable, for the reasonable fees and disbursements of not more than one
counsel, who shall be Dewey Ballantine LLP unless another firm shall be
chosen by the Holders of a majority in principal amount of the Transfer
Restricted Securities for whose benefit such Registration Statement is
being prepared.
5. Indemnification. (a) The Company agrees to indemnify and hold
harmless each Holder of the Securities, any Participating Broker-Dealer and
each person, if any, who controls such Holder or such Participating
Broker-Dealer within the meaning of the Securities Act or the Exchange Act
(each Holder, any Participating Broker-Dealer and such controlling persons
are referred to collectively as the "Indemnified Parties") from and against
any losses, claims, damages or liabilities, joint or several, or any
actions in respect thereof (including, but not limited to, any losses,
claims, damages, liabilities or actions relating to purchases and sales of
the Securities) to which each Indemnified Party may become subject under
the Securities Act, the Exchange Act or otherwise, insofar as such losses,
claims, damages, liabilities or actions arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained
in a Registration Statement or prospectus or in any amendment or supplement
thereto or in any preliminary prospectus relating to a Shelf Registration,
or arise out of, or are based upon, the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and shall reimburse, as
incurred, the Indemnified Parties for any legal or other expenses
reasonably incurred by them in connection with investigating or defending
any such loss, claim, damage, liability or action in respect thereof;
provided, however, that (i) the Company shall not be liable in any such
case to the extent that such loss, claim, damage or liability arises out of
or is based upon any untrue statement or alleged untrue statement or
omission or alleged omission made in a Registration Statement or prospectus
or in any amendment or supplement thereto or in any preliminary prospectus
relating to a Shelf Registration in reliance upon and in conformity with
written information pertaining to such Holder and furnished to the Company
by or on behalf of such Holder specifically for inclusion therein and (ii)
with respect to any untrue statement or omission or alleged untrue
statement or omission made in any preliminary prospectus relating to a
Shelf Registration Statement, the indemnity agreement contained in this
subsection (a) shall not inure to the benefit of any Holder or
Participating Broker-Dealer from whom the person asserting any such losses,
claims, damages or liabilities purchased the Securities concerned, to the
extent that a prospectus relating to such Securities was required to be
delivered by such Holder or Participating Broker-Dealer under the
Securities Act in connection with such purchase and any such loss, claim,
damage or liability of such Holder or Participating Broker-Dealer results
from the fact that there was not sent or given to such person, at or prior
to the written confirmation of the sale of such Securities to such person,
a copy of the final prospectus if the Company had previously furnished
copies thereof to such Holder or Participating Broker-Dealer; provided
further, however, that this indemnity agreement will be in addition to any
liability which the Company may otherwise have to such Indemnified Party.
The Company shall also indemnify underwriters, their officers and directors
and each person who controls such underwriters within the meaning of the
Securities Act or the Exchange Act to the same extent as provided above
with respect to the indemnification of the Holders of the Securities if
requested by such Holders.
(b) Each Holder of the Securities, severally and not jointly, will
indemnify and hold harmless the Company and each person, if any, who
controls the Company within the meaning of the Securities Act or the
Exchange Act from and against any losses, claims, damages or liabilities or
any actions in respect thereof, to which the Company or any such
controlling person may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, claims, damages,
liabilities or actions arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in a Registration
Statement or prospectus or in any amendment or supplement thereto or in any
preliminary prospectus relating to a Shelf Registration, or arise out of or
are based upon the omission or alleged omission to state therein a material
fact necessary to make the statements therein not misleading, but in each
case only to the extent that the untrue statement or omission or alleged
untrue statement or omission was made in reliance upon and in conformity
with written information pertaining to such Holder and furnished to the
Company by or on behalf of such Holder specifically for inclusion therein;
and, subject to the limitation set forth immediately preceding this clause,
shall reimburse, as incurred, the Company for any legal or other expenses
reasonably incurred by the Company or any such controlling person in
connection with investigating or defending any loss, claim, damage,
liability or action in respect thereof. This indemnity agreement will be in
addition to any liability which such Holder may otherwise have to the
Company or any of its controlling persons.
(c) Promptly after receipt by an indemnified party under this
Section 5 of notice of the commencement of any action or proceeding
(including a governmental investigation), such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
this Section 5, notify the indemnifying party of the commencement thereof;
but the omission so to notify the indemnifying party will not, in any
event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above, unless and to the extent the indemnifying party
did not otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses. In
case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the
extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party),
and after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof the indemnifying party will
not be liable to such indemnified party under this Section 5 for any legal
or other expenses, other than reasonable costs of investigation,
subsequently incurred by such indemnified party in connection with the
defense thereof. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement includes an unconditional release
of such indemnified party from all liability on any claims that are the
subject matter of such action, and does not include a statement as to or an
admission of fault, culpability or a failure to act by or on behalf of any
indemnified party..
(d) If the indemnification provided for in this Section 5 is
unavailable or insufficient to hold harmless an indemnified party under
subsections (a) or (b) above, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof)
referred to in subsection (a) or (b) above (i) in such proportion as is
appropriate to reflect the relative benefits received by the indemnifying
party or parties on the one hand and the indemnified party on the other
from the exchange of the Securities, pursuant to the Registered Exchange
Offer, or (ii) if the allocation provided by the foregoing clause (i) is
not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the indemnifying party or parties on the one
hand and the indemnified party on the other in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof) as well as any other relevant
equitable considerations. The relative fault of the parties shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company on the one hand or such Holder or such other indemnified party, as
the case may be, on the other, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or omission. The amount paid by an indemnified party as a result of the
losses, claims, damages or liabilities referred to in the first sentence of
this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding any other provision of this Section 5(d),
the Holders of the Securities shall not be required to contribute any
amount in excess of the amount by which the net proceeds received by such
Holders from the sale of the Securities pursuant to a Registration
Statement exceeds the amount of damages which such Holders have otherwise
been required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. For purposes of this paragraph (d),
each person, if any, who controls such indemnified party within the meaning
of the Securities Act or the Exchange Act shall have the same rights to
contribution as such indemnified party and each person, if any, who
controls the Company within the meaning of the Securities Act or the
Exchange Act shall have the same rights to contribution as the Company.
(e) The agreements contained in this Section 5 shall survive the
sale of the Securities pursuant to a Registration Statement and shall
remain in full force and effect, regardless of any termination or
cancellation of this Agreement or any investigation made by or on behalf of
any indemnified party.
6. Additional Interest Under Certain Circumstances. (a) Additional
interest (the "Additional Interest") with respect to the Securities shall
be assessed as follows if any of the following events occur (each such
event in clauses (i) through (iv) below being herein called a "Registration
Default"):
(i) any Registration Statement required by this Agreement is
not filed with the Commission on or prior to the
applicable Filing Deadline;
(ii) any Registration Statement required by this Agreement is
not declared effective by the Commission on or prior to
the applicable Effectiveness Deadline;
(iii) the Registered Exchange Offer has not been consummated on
or prior to the Consummation Deadline; or
(iv) any Registration Statement required by this Agreement has
been declared effective by the Commission but (A) such
Registration Statement thereafter ceases to be effective
or (B) such Registration Statement or the related
prospectus ceases to be usable in connection with resales
of Transfer Restricted Securities during the periods
specified herein because either (1) any event occurs as a
result of which the related prospectus forming part of
such Registration Statement would include any untrue
statement of a material fact or omit to state any
material fact necessary to make the statements therein in
the light of the circumstances under which they were made
not misleading, or (2) it shall be necessary to amend
such Registration Statement or supplement the related
prospectus, to comply with the Securities Act or the
Exchange Act or the respective rules thereunder.
Each of the foregoing will constitute a Registration Default whatever the
reason for any such event and whether it is voluntary or involuntary or is
beyond the control of the Company or pursuant to operation of law or as a
result of any action or inaction by the Commission .
Additional Interest shall accrue on the Securities over and above
the interest set forth in the title of the Securities from and including
the date on which any such Registration Default shall occur to but
excluding the date on which all such Registration Defaults have been cured,
at a rate of 0.50% per annum (the "Additional Interest Rate") for the first
90-day period immediately following the occurrence of such Registration
Default. The Additional Interest Rate shall thereafter increase by an
additional 0.50% per annum until all Registration Defaults have been cured,
up to a maximum Additional Interest Rate of 1.0% per annum.
(b) A Registration Default referred to in Section 6(a)(iv) hereof
shall be deemed not to have occurred and be continuing in relation to a
Shelf Registration Statement or the related prospectus if (i) such
Registration Default has occurred solely as a result of (x) the filing of a
post-effective amendment to such Shelf Registration Statement to
incorporate annual audited financial information with respect to the
Company where such post-effective amendment is not yet effective and needs
to be declared effective to permit Holders to use the related prospectus or
(y) other material events, with respect to the Company that would need to
be described in such Shelf Registration Statement or the related prospectus
and (ii) in the case of clause (y), the Company is proceeding promptly and
in good faith to amend or supplement such Shelf Registration Statement and
related prospectus to describe such events; provided, however, that in any
case if such Registration Default occurs for a continuous period in excess
of 30 days, Additional Interest shall be payable in accordance with the
above paragraph from the day such Registration Default occurs until such
Registration Default is cured.
(c) Any amounts of Additional Interest due pursuant to Section
6(a) will be payable in cash on the regular interest payment dates with
respect to the Securities. The amount of Additional Interest will be
determined by multiplying the applicable Additional Interest Rate by the
principal amount of the Securities and further multiplied by a fraction,
the numerator of which is the number of days such Additional Interest Rate
was applicable during such period (determined on the basis of a 360-day
year comprised of twelve 30-day months), and the denominator of which is
360.
(d) "Transfer Restricted Securities" means each Security until (i)
the date on which such Security has been exchanged by a person other than a
broker-dealer for a freely transferable Exchange Security in the Registered
Exchange Offer, (ii) following the exchange by a broker-dealer in the
Registered Exchange Offer of an Initial Security for an Exchange Note, the
date on which such Exchange Note is sold to a purchaser who receives from
such broker-dealer on or prior to the date of such sale a copy of the
prospectus contained in the Exchange Offer Registration Statement, (iii)
the date on which such Security has been effectively registered under the
Securities Act and disposed of in accordance with the Shelf Registration
Statement or (iv) the date on which such Security is distributed to the
public pursuant to Rule 144 under the Securities Act or is saleable
pursuant to Rule 144(k) under the Securities Act.
7. Rules 144 and 144A. The Company shall use its best efforts to
file the reports required to be filed by it under the Securities Act and
the Exchange Act in a timely manner and, if at any time the Company is not
required to file such reports, it will, upon the request of any Holder of
Securities, make publicly available other information so long as necessary
to permit sales of their securities pursuant to Rules 144 and 144A. The
Company covenants that it will take such further action as any Holder of
Securities may reasonably request, all to the extent required from time to
time to enable such Holder to sell Securities without registration under
the Securities Act within the limitation of the exemptions provided by
Rules 144 and 144A (including the requirements of Rule 144A(d)(4)). The
Company will provide a copy of this Agreement to prospective purchasers of
Initial Securities identified to the Company by the Initial Purchasers upon
request. Upon the request of any Holder of Initial Securities, the Company
shall deliver to such Holder a written statement as to whether it has
complied with such requirements. Notwithstanding the foregoing, nothing in
this Section 7 shall be deemed to require the Company to register any of
its securities pursuant to the Exchange Act.
8. Underwritten Registrations. If any of the Transfer Restricted
Securities covered by any Shelf Registration are to be sold in an
underwritten offering, the investment banker or investment bankers and
manager or managers that will administer the offering ("Managing
Underwriters") will be selected by the Holders of a majority in aggregate
principal amount of such Transfer Restricted Securities to be included in
such offering with the consent of the Company (which consent shall not be
unreasonably withheld).
No person may participate in any underwritten registration
hereunder unless such person (i) agrees to sell such person's Transfer
Restricted Securities on the basis reasonably provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements.
9. Miscellaneous.
(a) Remedies. The Company acknowledges and agrees that any failure
by the Company to comply with its obligations under Section 1 and 2 hereof
may result in material irreparable injury to the Initial Purchasers or the
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 Holder may obtain
such relief as may be required to specifically enforce the Company's
obligations under Sections 1 and 2 hereof.
(b) No Inconsistent Agreements. The Company will not on or after
the date of this Agreement enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders 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 securities under any agreement in effect on the date hereof.
(c) Amendments and Waivers. The provisions of this Agreement may
not be amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, except by the
Company and the written consent of the Holders of a majority in principal
amount of the Securities affected by such amendment, modification,
supplement, waiver or consents.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first-class
mail, facsimile transmission, or air courier which guarantees overnight
delivery:
(1) if to a Holder of the Securities, at the most current
address given by such Holder to the Company.
(2) if to the Initial Purchasers;
Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, NY 10010-3629
Fax No.: (212) 325-8278
Attention: Transactions Advisory Group
with a copy to:
Dewey Ballantine LLP
1301 Avenue of Americas
New York, NY 10019
Fax No.: (212) 259-6333
Attention: Morton A. Pierce, Esq.
(3) if to the Company, at its address as follows:
Kmart Corporation
3100 West Big Beaver Road
Troy, MI 48084-3163
Fax No.: (248) 463-1054
Attention: General Counsel
with a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, NY 10036
Fax No.: (212) 735-2000
Attention: Vince Pisano, Esq.
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; three
business days after being deposited in the mail, postage prepaid, if
mailed; when receipt is acknowledged by recipient's facsimile machine
operator, if sent by facsimile transmission; and on the day delivered, if
sent by overnight air courier guaranteeing next day delivery.
(e) Third Party Beneficiaries. 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 shall have the
right to enforce such agreements directly to the extent they may deem such
enforcement necessary or advisable to protect their rights or the rights of
Holders hereunder.
(f) Successors and Assigns. This Agreement shall be binding upon
the Company and its successors and assigns.
(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.
(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 GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
(j) Severability. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid,
illegal or unenforceable, the validity, legality and enforceability of any
such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) Securities Held by the Company. Whenever the consent or
approval of Holders of a specified percentage of principal amount of
Securities is required hereunder, Securities held by the Company or its
affiliates (other than subsequent Holders of Securities if such subsequent
Holders are deemed to be affiliates solely by reason of their holdings of
such Securities) shall not be counted in determining whether such consent
or approval was given by the Holders of such required percentage.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a
binding agreement among the several Initial Purchasers and the Company in
accordance with its terms.
Very truly yours,
KMART CORPORATION
By /s/ John T. McDonald, Jr.
-------------------------------
Name: John T. McDonald, Jr.
Title: Senior Vice President
and Treasurer
The foregoing Registration
Rights Agreement is hereby
confirmed and accepted as of
the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
J.P. MORGAN SECURITIES INC.
BNY CAPITAL MARKETS, INC.
FLEET SECURITIES, INC.
BANC ONE CAPITAL MARKETS, INC.
By CREDIT SUISSE FIRST BOSTON CORPORATION
By /s/ Joseph D. Fashano
------------------------------------
Name: Joseph D. Fashano
Title: Director
ANNEX A
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will
deliver a prospectus in connection with any resale of such Exchange
Securities. The Letter of Transmittal states that by so acknowledging and
by delivering a prospectus, a broker-dealer will not be deemed to admit
that it is an "underwriter" within the meaning of the Securities Act. This
Prospectus, as it may be amended or supplemented from time to time, may be
used by a broker-dealer in connection with resales of Exchange Securities
received in exchange for Initial Securities where such Initial Securities
were acquired by such broker-dealer as a result of market-making activities
or other trading activities. The Company has agreed that, for a period of
180 days after the Expiration Date (as defined herein), it will make this
Prospectus available to any broker-dealer for use in connection with any
such resale. See "Plan of Distribution."
ANNEX B
Each broker-dealer that receives Exchange Securities for its own
account in exchange for Initial Securities, where such Initial Securities
were acquired by such broker-dealer as a result of market-making activities
or other trading activities, must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. See
"Plan of Distribution."
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will
deliver a prospectus in connection with any resale of such Exchange
Securities. This Prospectus, as it may be amended or supplemented from time
to time, may be used by a broker-dealer in connection with resales of
Exchange Securities received in exchange for Initial Securities where such
Initial Securities were acquired as a result of market-making activities or
other trading activities. The Company has agreed that, for a period of 180
days after the Expiration Date, it will make this prospectus, as amended or
supplemented, available to any broker-dealer for use in connection with any
such resale. In addition, until , 20__ , all dealers effecting
transactions in the Exchange Securities may be required to deliver a
prospectus.(1)
The Company will not receive any proceeds from any sale of Exchange
Securities by broker-dealers. Exchange Securities received by
broker-dealers for their own account pursuant to the Exchange Offer may be
sold from time to time in one or more transactions in the over-the-counter
market, in negotiated transactions, through the writing of options on the
Exchange Securities or a combination of such methods of resale, at market
prices prevailing at the time of resale, at prices related to such
prevailing market prices or negotiated prices. Any such resale may be made
directly to purchasers or to or through brokers or dealers who may receive
compensation in the form of commissions or concessions from any such
broker-dealer or the purchasers of any such Exchange Securities. Any
broker-dealer that resells Exchange Securities that were received by it for
its own account pursuant to the Exchange Offer and any broker or dealer
that participates in a distribution of such Exchange Securities may be
deemed to be an "underwriter" within the meaning of the Securities Act and
any profit on any such resale of Exchange Securities and any commission or
concessions received by any such persons may be deemed to be underwriting
compensation under the Securities Act. The Letter of Transmittal states
that, by acknowledging that it will deliver and by delivering a prospectus,
a broker-dealer will not be deemed to admit that it is an "underwriter"
within the meaning of the Securities Act.
For a period of 180 days after the Expiration Date the Company will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such
documents in the Letter of Transmittal. The Company has agreed to pay all
expenses incident to the Exchange Offer (including the expenses of one
counsel for the Holders of the Securities) other than commissions or
concessions of any brokers or dealers and will indemnify the Holders of the
Securities (including any broker-dealers) against certain liabilities,
including liabilities under the Securities Act.
-----------------
(1) In addition, the legend required by Item 502(e) of Regulation S-K will
appear on the back cover page of the Exchange Offer prospectus.
ANNEX D
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS
THERETO.
Name:
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Address:
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If the undersigned is not a broker-dealer, the undersigned represents that
it is not engaged in, and does not intend to engage in, a distribution of
Exchange Securities. If the undersigned is a broker-dealer that will
receive Exchange Securities for its own account in exchange for Initial
Securities that were acquired as a result of market-making activities or
other trading activities, it acknowledges that it will deliver a prospectus
in connection with any resale of such Exchange Securities; however, by so
acknowledging and by delivering a prospectus, the undersigned will not be
deemed to admit that it is an "underwriter" within the meaning of the
Securities Act.