Exhibit 10.18
METROMEDIA FIBER NETWORK, INC.
10% Senior Notes Due 2008
REGISTRATION RIGHTS AGREEMENT
New York, New York
November 25, 1998
Salomon Smith Barney
Chase Securities Inc.
Deutsche Bank Securities Inc
Donaldson Lufkin & Jenrette Securities Corporation
As Representatives of the Initial Purchasers
c/o Salomon Smith Barney Inc.
388 Greenwich Street
New York, NY 10013
Dear Sirs:
Metromedia Fiber Network, Inc., a corporation organized under the laws of
Delaware (the "Company"), proposes to issue and sell (the "Initial Placement")
to certain purchasers (the "Initial Purchasers"), upon the terms set forth in a
purchase agreement, dated November 20, 1998 (the "Purchase Agreement"),
$650,000,000 aggregate principal amount of 10% Senior Notes due 2008 (the
"Securities"). To induce the Initial Purchasers to enter into the Purchase
Agreement and to satisfy a condition of your obligations thereunder, the Company
agrees with you for your benefit and the benefit of the holders from time to
time of the Securities (including the Initial Purchasers) (each a "Holder" and,
together, the "Holders"), as follows:
1. Definitions. Capitalized terms used herein without definition shall have
their respective meanings set forth in the Purchase Agreement. As used in this
Agreement, the following capitalized defined terms shall have the following
meanings:
"Act" shall mean the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.
"Affiliate" of any specified Person shall have the meaning set forth under
Rule 405 promulgated under the Act.
"Broker-Dealer" shall mean any broker or dealer registered as such under
the Exchange Act.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Exchange Offer Registration Period" shall mean the 180 day period
following the consummation of the Registered Exchange Offer, exclusive of any
period during which any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement.
"Exchange Offer Registration Statement" shall mean a registration statement
of the Company on an appropriate form under the Act with respect to the
Registered Exchange Offer, all amendments and supplements to such registration
statement, including post-effective amendments thereto, in each case including
the Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"Exchanging Dealer" shall mean any Holder (which may include any Initial
Purchaser) that is a Broker-Dealer and elects to exchange for New Securities any
Securities that it acquired for its own account as a result of market-making
activities or other trading activities (but not directly from the Company or any
Affiliate of the Company).
"Final Memorandum" shall have the meaning set forth in the Purchase
Agreement.
"Holder" shall have the meaning set forth in the preamble hereto.
"Indenture" shall mean the Indenture relating to the Securities and the New
Securities, dated as of November 25, 1998, between the Company and IBJ
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Schroder Bank & Trust Company, as trustee, as the same may be amended from time
to time in accordance with the terms thereof.
"Initial Placement" shall have the meaning set forth in the preamble
hereto.
"Initial Purchaser" shall have the meaning set forth in the preamble
hereto.
"Losses"' shall have the meaning set forth in Section 6(d) hereof.
"Majority Holders" shall mean the Holders of a majority of the aggregate
principal amount of Transfer Restricted Securities or New Securities, as
applicable, registered under a Registration Statement.
"Managing Underwriters" shall mean the investment banker or investment
bankers and manager or managers that shall administer an underwritten offering.
"New Securities" shall mean debt securities of the Company identical in all
material respects to the Securities (except that (i) the liquidated damages
provisions and the transfer restrictions shall be modified or eliminated, as
appropriate and (ii) interest on the New Securities shall accrue from the last
date on which interest was paid on the Securities or, if no such interest has
been paid, from the date hereof) and to be issued under the Indenture.
"Prospectus" shall mean the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Transfer Restricted Securities or the New
Securities covered by such Registration Statement, and all amendments and
supplements thereto and all material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble
hereto.
"Registered Exchange Offer" shall mean the proposed offer of the Company to
issue and deliver to the Holders of the Transfer Restricted Securities
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that are not prohibited by any law or policy of the Commission from
participating in such offer in exchange for the Transfer Restricted Securities,
a like aggregate principal amount of the New Securities pursuant to Section 2
hereof.
"Registration Statement" shall mean any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the Transfer
Restricted Securities or the New Securities pursuant to the provisions of this
Agreement, any amendments and supplements to such registration statement,
including post-effective amendments (in each case including the Prospectus
contained therein), all exhibits thereto and all material incorporated by
reference therein.
"Securities" shall have the meaning set forth in the preamble hereto.
"Shelf Registration" shall mean a registration effected pursuant to Section
3 hereof.
"Shelf Registration Period" has the meaning set forth in Section 3 (b)
hereof.
"Shelf Registration Statement" shall mean a "shelf" registration statement
of the Company pursuant to the provisions of Section 3 hereof, which covers some
or all of the Transfer Restricted Securities or New Securities, as applicable,
on an appropriate form under Rule 415 under the Act, or any similar rule that
may be adopted by the Commission, amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Transfer Restricted Securities" shall mean each Security until (i) the
date on which such Security has been exchanged by a person other than a Broker-
Dealer for a New Security in the Registered Exchange Offer, (ii) following the
exchange by a Broker-Dealer in the Registered Exchange Offer of a Security for a
New Security, the date on which such New Security 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 Act and
disposed of in accordance with the Shelf Registration Statement, (iv) the date
on which such Security is distributed to the public under Rule 144 promulgated
under the Act or (v) the date on which such Note is eligible for resale pursuant
to Rule 144 without volume restrictions.
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"Trustee" shall mean the trustee with respect to the Securities and, when
issued, the New Securities, under the Indenture.
"Underwriter" shall mean any underwriter of Transfer Restricted Securities,
or New Securities, as applicable, in connection with an offering thereof under a
Shelf Registration Statement.
2. Registered Exchange Offer. (a) To the extent not prohibited by any
applicable law or applicable interpretation of the Commission, the Company shall
prepare and, not later than 90 days following the date of the original issuance
of the Securities (or if such 90th day is not a Business Day, the next
succeeding Business Day) shall file with the Commission the Exchange Offer
Registration Statement with respect to the Registered Exchange Offer. The
Company shall use its reasonable best efforts to cause the Exchange Offer
Registration Statement to become effective under the Act within 180 days of the
date of the original issuance of the Securities (or if such 180th day is not a
Business Day, the next succeeding Business Day).
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Company shall promptly commence the Registered Exchange
Offer, it being the objective of such Registered Exchange Offer to enable
each Holder electing to exchange Transfer Restricted Securities for New
Securities (assuming that such Holder is not an Affiliate of the Company,
is not a Broker-Dealer that purchases New Securities from the Company to
resell pursuant to Rule 144A promulgated under the Act or any other
available exemption, acquires the New Securities in the ordinary course of
such Holder's business, has no arrangements or understanding with any
Person to participate in the distribution of the New Securities and is not
participating in, and does not intend to participate in the distribution of
such New Securities and is not prohibited by any law or policy of the
Commission from participating in the Registered Exchange Offer) to trade
such New Securities from and after their receipt without any limitations or
restrictions under the Act and without material restrictions under the
securities laws of a substantial proportion of the several states of the
United States.
(c) In connection with the Registered Exchange Offer, the Company
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;
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(ii) keep the Registered Exchange Offer open for not less than 20
Business Days after the date notice thereof is mailed to the Holders
(or longer if required by applicable law);
(iii) use its reasonable best efforts to keep the Exchange Offer
Registration Statement continuously effective under the Act,
supplemented and amended as required, to ensure that it is available
for sales of New Securities by Exchanging Dealers during the Exchange
Offer Registration Period;
(iv) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan in New York
City, which may be the Trustee or its Affiliates;
(v) permit Holders to withdraw tendered Securities at any time
prior to the close of business, New York time, on the last Business
Day on which the Registered Exchange Offer is open;
(vi) prior to effectiveness of the Exchange Offer Registration
Statement, provide a supplemental letter to the Commission (A) stating
that the Company is conducting the Registered Exchange Offer in
reliance on the position of the Commission in Exxon Capital Holdings
Corporation (pub. avail. May 13, 1988), Morgan Stanley and Co., Inc.
(pub. avail. June 5, 1991); and (B) including a representation that
the Company has not entered into any arrangement or understanding with
any Person to distribute the New Securities to be received in the
Registered Exchange Offer and that, to the best of the Company's
information and belief, each Holder participating in the Registered
Exchange Offer is acquiring the New Securities in the ordinary course
of business and has no arrangement or understanding with any Person to
participate in the distribution of the New Securities; and
(vii) comply in all respects with all applicable laws.
(d) As soon as practicable after the close of the Registered Exchange
Offer, the Company shall:
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(i) accept for exchange all Transfer Restricted Securities
tendered and not validly withdrawn pursuant to the Registered
Exchange Offer in accordance with the terms of the Exchange Offer
Registration Statement and the letter of transmittal which is an
exhibit thereto;
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation in accordance with Section 4(s) all Transfer Restricted
Securities so accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and deliver to
each Holder of Transfer Restricted Securities an aggregate principal
amount of New Securities equal to the aggregate principal amount of
the Transfer Restricted Securities of such Holder so accepted for
exchange.
(e) Each Holder hereby acknowledges and agrees that any Broker-Dealer
and any such Holder using the Registered Exchange Offer to participate in a
distribution of the New Securities (x) could not under Commission policy as
in effect on the date of this Agreement rely on the position of the
Commission in Morgan Stanley and Co.. Inc. (pub. avail. June 5, 1991) and
Exxon Capital Holdings Corporation (pub. avail. May 13, 1988), as
interpreted in the Commission's letter to Shearman & Sterling dated July 2,
1993 and similar no-action letters; and (y) must comply with the
registration and prospectus delivery requirements of the Act in connection
with any secondary resale transaction and that such a secondary resale
transaction must be covered by an effective registration statement
containing the selling security holder information required by Item 507 or
508, as applicable, of Regulation S-K under the Act, if the resales are of
New Securities obtained by such Holder in exchange for Securities acquired
by such Holder directly from the Company or one of its Affiliates.
Accordingly, 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 New Securities received by such Holder is acquired in the
ordinary course of business;
(ii) such Holder has no arrangement or understanding with any
Person to participate in the distribution of the New Securities and
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is not participating in, and does not intend to participate in the
distribution of such New Securities within the meaning of the Act;
and
(iii) such Holder is not an Affiliate of the Company.
In addition, any such Holder shall be required to make such other
representations as may be reasonably necessary under applicable rules,
regulations or interpretations of the Commission to render the use of Form S-4
or other applicable form under the Act available.
(f) If any Initial Purchaser determines that it is not eligible to
participate in the Registered Exchange Offer with respect to the exchange
of Transfer Restricted Securities constituting any portion of an unsold
allotment, at the request of such Initial Purchaser, the Company shall
issue and deliver to such Initial Purchaser or the Person purchasing New
Securities registered under a Shelf Registration Statement as contemplated
by Section 3 hereof from such Initial Purchaser, in exchange for such
Securities, a like aggregate principal amount of New Securities (except
that such New Securities will contain the transfer restrictions contained
in the Securities). The Company shall use its reasonable best efforts to
cause the CUSIP Service Bureau to issue the same CUSIP number for such New
Securities as for New Securities issued pursuant to the Registered Exchange
Offer.
3. Shelf Registration. (a) If (i) due to any change in law or applicable
interpretations thereof by the Commission's staff, the Company determines upon
advice of its outside counsel that it is not permitted to effect the Registered
Exchange Offer as contemplated by Section 2 hereof; or (ii) for any other reason
the Registered Exchange Offer is not consummated within 180 days of the date
hereof; or (iii) if any Holder of Transfer Restricted Securities shall notify
the Company within 20 days following the consummation of the Registered Exchange
Offer that (A) such Holder was prohibited by law or Commission policy from
participating in the Registered Exchange Offer or (B) such Holder may not resell
the New Securities acquired by it in the Registered Exchange Offer to the public
without delivering a prospectus and the Prospectus contained in the Exchange
Offer Registration Statement is not appropriate or available for such resale (it
being understood that (x) the requirement that an Initial Purchaser deliver a
prospectus containing the information required by Item 507 or 508 of Regulation
S-K under the Act in connection with sales of New Securities acquired in
exchange for such Securities shall result in the Prospectus contained in the
Exchange Offer Registration Statement being not appropriate for such resale; and
(y) the requirement that an Exchanging Dealer
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deliver a prospectus in connection with sales of New Securities acquired in the
Registered Exchange Offer in exchange for Securities acquired as a result of
market-making activities or other trading activities shall not result in such
Prospectus being not appropriate for such resale) or (C) such Holder is a
Broker-Dealer and holds Securities acquired directly from the Company or any of
its Affiliates, the Company shall effect a Shelf Registration Statement in
accordance with subsection (b) below.
(b)(i) The Company shall use its reasonable best efforts to
as promptly as practicable (but in no event more than 30 days after so
required or requested pursuant to this Section 3), file the Shelf
Registration Statement with the Commission and thereafter shall use its
reasonable best efforts to cause such Shelf Registration Statement to
be declared effective under the Act within 120 days after the Company
is required to file a Shelf Registration Statement relating to the
offer and sale of the Transfer Restricted Securities or the New
Securities, as applicable, by the Holders thereof from time to time in
accordance with the methods of distribution elected by such Holders and
set forth in such Shelf Registration Statement; provided, however that
no Holder (other than an Initial Purchaser) shall be entitled to have
the Transfer Restricted Securities or the New Securities, as
applicable, held by it covered by such Shelf Registration Statement
unless such Holder agrees in writing to be bound by all of the
provisions of this Agreement applicable to such Holder; and provided
further, that with respect to New Securities received by an Initial
Purchaser in exchange for Securities constituting any portion of an
unsold allotment, the Company may, if permitted by current
interpretations by the Commission's staff, file a post-effective
amendment to the Exchange Offer Registration Statement containing the
information required by Item 507 or 508 of Regulation S-K, as
applicable, in satisfaction of its obligations under this subsection
with respect thereto, and any such Exchange Offer Registration
Statement, as so amended, shall be referred to herein as, and governed
by the provisions herein applicable to, a Shelf Registration Statement.
(ii) The Company shall use its reasonable best efforts to
keep the Shelf Registration Statement continuously effective,
supplemented and amended as required by the Act, in order to
permit the Prospectus forming part thereof to be usable by
Holders for a period of two years from the date the Shelf
Registration Statement is declared effective by the Commission or
such shorter period that will terminate when all the Transfer
Restricted Securities or New Securi-
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ties, as applicable, covered by the Shelf Registration Statement
have been sold pursuant to the Shelf Registration Statement (in
any such case, such period being called the "Shelf Registration
Period"). The Company shall be deemed not to have used its
reasonable 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 (A) such action is required by applicable law or
this Agreement; or (B) such action is taken by the Company in
good faith and for valid business reasons (not including
avoidance of the Company's obligations hereunder), including the
acquisition or divestiture of assets, so long as the Company
promptly thereafter complies with the requirements of Section
4(k) hereof, if applicable.
(iii) 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 or such amendment or supplement, (A) to
comply in all material respects with the applicable requirements
of the Act; and (B) 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 the light of the circumstances under which they were
made, not misleading.
4. Additional Registration Procedures. In connection with any Shelf
Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply.
(a) The Company shall:
(i) furnish to you, not less than five Business Days prior
to the filing thereof with the Commission, a draft copy of any
Exchange Offer Registration Statement and any Shelf Registration
Statement, and furnish to you each amendment thereof and each
amendment or supplement, if any, to the Prospectus included
therein (including all documents incorporated by reference
therein after the initial filing) and shall use its reasonable
best efforts to reflect in each such document, when so filed with
the Commission, such comments as you reasonably propose;
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(ii) include the information set forth in Annex A hereto on the
inside front cover page of the Prospectus included in the Exchange
Offer Registration Statement, in Annex B hereto in the forepart of the
Exchange Offer Registration Statement in a section setting forth
details of the Exchange Offer, in Annex C hereto in the underwriting
or plan of distribution section of the Prospectus contained in the
Exchange Offer Registration Statement, and in Annex D hereto in the
letter of transmittal delivered pursuant to the Registered Exchange
Offer, in each case, only to the extent allowed by the rules and
regulations issued by, and the interpretations of, the Commission and
with such changes as are required by such rules, regulations and
interpretations as the Company shall determine in its sole
discretion;
(iii) if requested by an Initial Purchaser, include the
information required by Item 507 or 508 of Regulation S-K, as
applicable, in the Prospectus contained in the Exchange Offer
Registration Statement; and
(iv) in the case of a Shelf Registration Statement, include the
names of the Holders that propose to sell Securities pursuant to the
Shelf Registration Statement as selling security holders.
(b) The Company shall ensure that (other than with respect to the
information required to be supplied by the selling Holders pursuant to this
Agreement):
(i) any Registration Statement and any amendment thereto and any
Prospectus forming part thereof and any amendment or supplement
thereto complies in all material respects with the Act; and
(ii) any Registration Statement and any amendment thereto does
not, when it becomes effective, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(c) The Company shall advise you, the Holders of Securities covered by
any Shelf Registration Statement and any Exchanging Dealer under any
Exchange Offer Registration Statement that has provided in
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writing to the Company a telephone or facsimile number and address for
notices, and, if requested by you or any such Holder or Exchanging Dealer,
shall confirm such advice in writing (which notice pursuant to clauses
(ii)-(v) hereof shall be accompanied by an instruction to suspend the use
of the Prospectus until the Company shall have remedied the basis for such
suspension):
(i) when a Registration Statement and any amendment thereto has
been filed with the Commission and when the Registration Statement or
any post-effective amendment thereto has become effective;
(ii) of any request by the Commission for any amendment or
supplement to the Registration Statement or the Prospectus or for
additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the securities
included therein for sale in any jurisdiction or the initiation of any
proceeding for such purpose; and
(v) of the happening of any event that requires any change in the
Registration Statement or the Prospectus so that, as of such date, the
statements therein are not misleading and do not omit to state a
material fact required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in the light of the
circumstances under which they were made) not misleading.
(d) The Company shall use its reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of any Registration
Statement or the qualification of the securities therein for sale in any
jurisdiction, at the earliest possible time.
(e) The Company shall furnish to each Holder of Transfer Restricted
Securities or New Securities, as applicable, covered by any Shelf
Registration Statement, without charge, at least one copy of such Shelf
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Registration Statement and any post-effective amendment thereto, including
all material incorporated therein by reference, and, if the Holder so
requests in writing, all exhibits thereto (including exhibits incorporated
by reference therein).
(f) The Company shall, during the Shelf Registration Period, deliver
to each Holder of Transfer Restricted Securities or New Securities, as
applicable, covered by any Shelf Registration Statement, without charge, as
many copies of the Prospectus (including each preliminary Prospectus)
included in such Shelf Registration Statement and any amendment or
supplement thereto as such Holder may reasonably request. The Company
consents to the use of the Prospectus or any amendment or supplement
thereto by each of the selling Holders of Transfer Restricted Securities or
New Securities, as applicable, in connection with the offering and sale of
the Transfer Restricted Securities or New Securities, as applicable,
covered by the Prospectus, or any amendment or supplement thereto, included
in the Shelf Registration Statement.
(g) The Company shall furnish to each Exchanging Dealer which so
requests, without charge, at least one copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto, including
all material incorporated by reference therein, and, if the Exchanging
Dealer so requests in writing, all exhibits thereto (including exhibits
incorporated by reference therein).
(h) The Company shall promptly deliver to each Initial Purchaser, each
Exchanging Dealer which so requests, and each other Person required to
deliver a Prospectus during the Exchange Offer Registration Period, without
charge, as many copies of the Prospectus included in such Exchange Offer
Registration Statement and any amendment or supplement thereto as any such
Person may reasonably request. The Company consents to the use of the
Prospectus or any amendment or supplement thereto by any Initial Purchaser,
any Exchanging Dealer and any such other Person that may be required to
deliver a prospectus following the Registered Exchange Offer in connection
with the offering and sale of the New Securities covered by the Prospectus,
or any amendment or supplement thereto, included in the Exchange Offer
Registration Statement.
(i) Prior to the Registered Exchange Offer or any other offering of
Transfer Restricted Securities or New Securities, as applicable, pursuant
to
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any Registration Statement, the Company shall arrange, if necessary, for
the qualification of the Transfer Restricted Securities or the New
Securities for sale under the securities or blue sky laws of such
jurisdictions as any Holder shall reasonably request in writing and will
maintain such qualification in effect so long may be required 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 the
Registration Statement; provided that in no event shall the Company be
obligated to qualify to do business in any jurisdiction where it is not
then so qualified or to take any action that would subject it to service of
process in suits, other than those arising out of the Initial Placement,
the Registered Exchange Offer or any offering pursuant to a Shelf
Registration Statement, in any such jurisdiction where it is not then so
subject; and provided, further, that where New Securities are held by an
Exchanging Dealer, or Securities or New Securities are offered pursuant to
an underwritten offering, counsel to the Initial Purchasers shall, at the
cost and expense of the Company, perform the blue-sky investigations and
file the registration and qualifications required to be filed pursuant to
this provision.
(j) The Company shall cooperate with the Holders of Securities to
facilitate the timely preparation and delivery of certificates representing
New Securities or Securities to be issued or sold pursuant to any
Registration Statement free of any restrictive legends and in such
denominations and registered in such names as Holders may request.
(k) Upon the occurrence of any event contemplated by subsections (c)
(ii) through (v) above during the period for which the Company is required
to maintain an effective Registration Statement, the Company shall promptly
prepare a post-effective amendment to the applicable Registration Statement
or an amendment or supplement to the related Prospectus or file any other
required document so that, as thereafter delivered to Initial Purchasers
of the securities included therein, the Prospectus will not include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading. In such circumstances, the
period of effectiveness of the Exchange Offer Registration Statement
provided for in Section 2 and the Shelf Registration Statement provided for
in Section 3 (b) shall each be extended by the number of days from and
including the date of the giving of a notice of suspension pursuant to
Section 4(c) to and including the date when the Initial Purchasers, the
Holders of the Securities and any
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known Exchanging Dealer shall have received such amended or supplemented
Prospectus pursuant to this Section.
(l) Not later than the effective date of any Shelf Registration
Statement and the expiration date of the Registered Exchange Offer under an
Exchange Offer Registration Statement, the Company shall provide a CUSIP
number for the Transfer Restricted Securities or the New Securities, as the
case may be, registered under such Registration Statement and shall,
promptly thereafter provide the Trustee with certificates for such
Securities or New Securities, in a form eligible for deposit with The
Depository Trust Company.
(m) The Company shall comply with all applicable rules and regulations
of the Commission and shall make generally available to its security
holders as soon as practicable after the effective date of the applicable
Registration Statement an earnings statement satisfying the provisions of
Section 11 (a) of the Act and Rule 158 thereunder, to the extent and so
long as they are applicable to the Registration Statement.
(n) The Company shall cause the Indenture or to be qualified under the
Trust Indenture Act, as required by applicable law, in a timely manner.
(o) The Company may require each Holder of Transfer Restricted
Securities or New Securities, as applicable, to be sold pursuant to any
Shelf Registration Statement to furnish to the Company such information
regarding the Holder and the distribution of such securities as the Company
may from time to time reasonably require for inclusion in such Registration
Statement. The Company may exclude from such Shelf Registration Statement
the Transfer Restricted Securities or New Securities, as applicable, of any
Holder that unreasonably fails to furnish such information within a
reasonable time after receiving such request.
(p) In the case of any Shelf Registration Statement, the Company shall
enter into such agreements and take all other appropriate actions
(including if requested an underwriting agreement in customary form) in
order to expedite or facilitate the registration or the disposition of the
Securities, and in connection therewith, if an underwriting agreement is
entered into, cause the same to contain indemnification provisions and
procedures no less favorable than those set forth in Section 7 (or such
other
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provisions and procedures acceptable to the Majority Holders and the
Managing Underwriters, if any), with respect to all parties to be
indemnified pursuant to Section 6.
(q) The Company shall, if requested, promptly incorporate in a
Prospectus supplement or post-effective amendment to a Shelf Registration
Statement, such information as the Managing Underwriters and Majority
Holders reasonably agree should be included therein and shall make all
required filings of such Prospectus supplement or post-effective amendment
as soon as is reasonably practicable after receipt of notice of the matter
to be incorporated in such Prospectus supplement or post effective
amendment.
(r) In the case of any Shelf Registration Statement, the Company
shall:
(i) make reasonably available for inspection by the Holders of
Transfer Restricted Securities or New Securities, as applicable, to be
registered thereunder, any underwriter participating in any
disposition pursuant to such Shelf Registration Statement, and any
attorney, accountant or other agent retained by the Holders or any
such under writer, all relevant financial and other records, pertinent
corporate documents and properties of the Company and its
subsidiaries;
(ii) cause the Company's officers, directors and employees to
supply all relevant information reasonably requested by the Holders or
any such underwriter, attorney, accountant or agent in connection with
any such Registration Statement as is customary for similar due
diligence examinations; provided, however that any information that is
designated in writing by the Company, in good faith, as confidential
at the time of delivery of such information shall be kept confidential
by the Holders or any such underwriter, attorney, accountant or agent,
unless such disclosure is made in connection with a court proceeding
or required by law, or such information becomes available to the
public generally or through a third party without an accompanying
obligation of confidentiality and 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 firm of
counsel (the "Designated Counsel") designated by the Majority Holders;
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(iii) make such representations and warranties to the Holders of
Securities registered thereunder and the underwriters, if any, in
form, substance and scope as are customarily made by issuers to
underwriters in primary underwritten offerings and covering matters
including, but not limited to, those set forth in the Purchase
Agreement;
(iv) obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the Managing Underwriters, if any)
addressed to each selling Holder and the underwriters, if any,
covering such matters as are customarily covered in opinions requested
in underwritten offerings and such other matters as may be reasonably
requested by such Holders and underwriters;
(v) obtain "cold comfort" letters and updates thereof from the
independent certified public accountants of the Company (and, if
necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company
for which financial statements and financial data are, or are required
to be, included in the Registration Statement), addressed to each
selling Holder of Securities registered thereunder and the under-
writers, if any, in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with
primary underwritten offerings; and
(vi) deliver such documents and certificates as may be reasonably
requested by the Majority Holders and the Managing Underwriters, if
any, including those to evidence compliance with Section 4(k) and with
any customary conditions contained in the underwriting agreement or
other agreement entered into by the Company.
The actions set forth in clauses (iii), (iv), (v) and (vi) of this Section
shall be performed at (A) the effectiveness of such Registration Statement and
each post-effective amendment thereto; and (B) each closing under any
underwriting or similar agreement as and to the extent required thereunder.
17
(s) In the case of any Exchange Offer Registration Statement, the
Company shall:
(i) make reasonably available for inspection by such Initial
Purchaser, and any attorney, accountant or other agent retained by
such Initial Purchaser, all relevant financial and other records,
pertinent corporate documents and properties of the Company and its
subsidiaries;
(ii) cause the Company's officers, directors and employees to
supply all relevant information reasonably requested by such Initial
Purchaser or any such attorney, accountant or agent in connection with
any such Registration Statement as is customary for similar due
diligence examinations; provided, however, that any information that
is designated in writing by the Company, in good faith, as
confidential at the time of delivery of such information shall be kept
confidential by such Initial Purchaser or any such attorney,
accountant or agent, unless such disclosure is made in connection with
a court proceeding or required by law, or such information becomes
available to the public generally or through a third party without an
accompanying obligation of confidentiality and 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 Designated Counsel;
(iii) make such representations and warranties to such Initial
Purchaser, in form, substance and scope as are customarily made by
issuers to underwriters in primary underwritten offerings and covering
matters including, but not limited to, those set forth in the Purchase
Agreement;
(iv) obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to such Initial Purchaser and its
counsel, addressed to such initial Purchaser, covering such matters as
are customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably requested by
such Initial Purchaser or its counsel;
18
(v) obtain "cold comfort" letters and updates thereof from the
independent certified public accountants of the Company (and, if
necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company
for which financial statements and financial data are, or are required
to be, included in the Registration Statement), addressed to such
Initial Purchaser, in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with
primary underwritten offerings, or if requested by such Initial
Purchaser or its counsel in lieu of a "cold comfort" letter, an
agreed-upon procedures letter under Statement on Auditing Standards
No. 35, covering matters requested by such Initial Purchaser or its
counsel; and
(vi) deliver such documents and certificates as may be reasonably
requested by such Initial Purchaser or its counsel, including those to
evidence compliance with Section 4(k) and with conditions customarily
contained in underwriting agreements.
The foregoing actions set forth in clauses (iii), (iv), (v), and (vi) of
this Section shall be performed at the close of the Registered Exchange Offer
and the effective date of any post-effective amendment to the Exchange Offer
Registration Statement.
(t) In the case of a Shelf Registration Statement, each Holder of
Transfer Restricted Securities or New Securities, as applicable, to be
registered pursuant thereto agrees by acquisition of such Transfer
Restricted Securities or New Securities, as the case may be, that, upon the
occurrence of any event contemplated by subsections (c)(ii) through (v)
above during the period for which the Company is required to maintain
effective the Shelf Registration Statement, such Holder will, upon notice
thereof from the Company, discontinue disposition of such Transfer
Restricted Securities or New Securities, as applicable, until such Holder's
receipt of copies of the supplemental or amended prospectus contemplated in
subsection (k) above, or until advised in writing by the Company that the
use of the applicable Prospectus may be resumed.
(u) If a Registered Exchange Offer is to be consummated, upon delivery
of the Transfer Restricted Securities by Holders to the Company (or to such
other Person as directed by the Company) in exchange for the New
19
Securities, the Company shall mark, or caused to be marked, on the
Securities so exchanged that such Securities are being canceled in exchange
for the New Securities. In no event shall the Securities be marked as paid
or otherwise satisfied.
(v) The Company will use its reasonable best efforts (i) if the
Securities have been rated prior to the initial sale of such Securities, to
confirm such ratings will apply to the Transfer Restricted Securities or
the New Securities, as the case may be, covered by a Registration
Statement; or (ii) if the Transfer Restricted Securities were not
previously rated, to cause the Transfer Restricted Securities covered by a
Registration Statement to be rated with at least one nationally recognized
statistical rating agency, if so requested by Majority Holders with respect
to the related Registration Statement or by any Managing Underwriters.
(w) In the event that any Broker-Dealer shall underwrite any
Securities or participate as a member of an underwriting syndicate or
selling group or "assist in the distribution" (within the meaning of the
Rules of Fair Practice and the By-Laws of the National Association of
Securities Dealers, Inc.) thereof, whether as a Holder of such Securities
or as an underwriter, a placement or sales agent or a broker or dealer in
respect thereof, or otherwise, assist such Broker-Dealer in complying with
the requirements of such Rules and By-Laws, including, without limitation,
by:
(i) if such Rules or By-Laws shall so require, engaging a
"qualified independent underwriter" (as defined in such Rules) to
participate in the preparation of the Registration Statement, to
exercise usual standards of due diligence with 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
6 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 such Rules.
20
(x) The Company shall use its reasonable best efforts to take
all other steps necessary to effect the registration of the Transfer
Restricted Securities or the New Securities, as the case may be,
covered by a Registration Statement.
5. Registration Expenses. The Company shall bear all expenses incurred in
connection with the performance of its obligations under Sections 2, 3 and 4
hereof and, in the case of any Shelf Registration Statement, will reimburse the
Holders for the reasonable fees and disbursements of the Designated Counsel,
and, in the case of any Exchange Offer Registration Statement, will reimburse
the Initial Purchasers for the reasonable fees and disbursements of one counsel
or the Designated Counsel, if any, acting in connection therewith.
6. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Holder of
Securities or New Securities, as the case may be, covered by any
Registration Statement (including each Initial Purchaser and, with respect
to any Prospectus delivery as contemplated in Section 4(h) hereof, each
Exchanging Dealer), the directors, officers, employees and agents of each
such Holder and each Person who controls any such Holder within the meaning
of either the Act or the Exchange Act, against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement as
originally filed or in any amendment thereof, or in any preliminary
Prospectus or the Prospectus, or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, and agrees to reimburse each
such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending
any such loss, claim, damage, liability or action; provided, however, that
the Company will not be liable in any case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on
21
behalf of any such Holder specifically for inclusion therein. This
indemnity agreement will be in addition to any liability which the Company
may otherwise have.
The Company also agrees to indemnify or contribute as provided in Section
6(d) to Losses of each underwriter of Securities or New Securities, as the case
may be, registered under a Shelf Registration Statement, their directors,
officers, employees or agents and each Person who controls such underwriter on
substantially the same basis as that of the indemnification of the Initial
Purchasers and the selling Holders provided in this Section 6(a) and shall, if
requested by any Holder, enter into an underwriting agreement reflecting such
agreement, as provided in Section 4(p) hereof.
(b) Each Holder of Securities or New Securities, as the case may be,
covered by any Registration Statement (including each Initial Purchaser
and, with respect to any Prospectus delivery as contemplated in Section
4(h) hereof, each Exchanging Dealer) severally agrees to indemnify and hold
harmless (i) the Company (ii) each of its directors (iii) each of its
officers, directors, employers and agents and (iv) each Person who controls
the Company within the meaning of either the Act or the Exchange Act, to
the same extent as the foregoing indemnity from the Company to each such
Holder, but only with reference to written information relating to such
Holder furnished to the Company by or on behalf of such Holder specifically
for inclusion in the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which any such
Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
6 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under this Section, notify the indemnifying party in writing of the
commencement thereof, but the failure so to notify the indemnifying party
(i) will not relieve it from liability under paragraph (a) or (b) above
unless and to the extent it did not otherwise learn of such action and such
failure results in the forfeiture by the indemnifying party of substantial
rights and defenses as determined by a court of competent jurisdiction; and
(ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The indemnifying party
shall be entitled to assume the defense of such action and appoint counsel
of the indemnifying
22
party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in
which case the indemnifying party shall not thereafter be responsible for
the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below); provided, however, that such
counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to assume the defense of
such action or appoint counsel to represent the indemnified party in an
action, the indemnified party shall have the right to employ separate
counsel (including local counsel), and the indemnifying party shall bear
the reasonable fees, costs and expenses of such separate counsel if (i) the
use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of interest,
which has not been waived; (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have been reasonably
advised by such counsel that there are legal defenses available to it
and/or other indemnified parties which are different from or additional to
those available to the indemnifying party; (iii) the indemnifying party
shall not have assumed the defense of the action or employed counsel
reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution
of such action; or (iv) the indemnifying party shall authorize the
indemnified party to employ separate counsel at the expense of the
indemnifying party. In any such case, the indemnifying party shall not, in
connection with any one action or separate but substantially similar
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more
than one separate firm of attorneys (in addition to any local counsel) for
all indemnified parties. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent
to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified
parties are actual or potential parties to such claim or action) unless
such settlement, compromise or consent includes an unconditional release of
each indemnified party from all liability arising out of such claim,
action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 6 is unavailable to or insufficient to hold harmless an
indemnified party for any losses, claims, damages or liabilities referred
to
23
herein, then each applicable indemnifying party shall have a joint
and several obligation to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same)
(collectively "Losses") to which such indemnified party may be
subject in such proportion as is appropriate to reflect the relative
benefits received by such indemnifying party, on the one hand, and
such indemnified party, on the other hand, from the Initial Placement
and the Registration Statement which resulted in such Losses;
provided, however, that in no case shall any Initial Purchaser or any
subsequent Holder of any Security or New Security be responsible, in
the aggregate, for any amount in excess of the purchase discount or
commission applicable to such Security, or in the case of a New
Security, applicable to the Security that was exchange able into such
New Security, as set forth on the cover page of the Final Memorandum,
nor shall any underwriter be responsible for any amount in excess of
the underwriting discount or commission applicable to the securities
purchased by such underwriter under the Registration Statement which
resulted in such Losses. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the indemnifying
party and the indemnified party shall contribute in such proportion as
is appropriate to reflect not only such relative benefits but also the
relative fault of such indemnifying party, on the one hand, and such
indemnified party, on the other hand, in connection with the
statements or omissions or alleged statements or omissions which
resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by any underwriter shall be deemed
to be equal to the total underwriting discounts and commissions, as
set forth on the cover page of the Prospectus forming a part of the
Registration Statement which resulted in such Losses. Relative fault
shall be determined by reference to, among other things, whether any
untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information
provided by the indemnifying party, on the one hand, or by the
indemnified party, on the other hand, the intent of the parties and
their relative knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission or alleged untrue
statement or omission. The parties agree that it would not be just and
equitable if contribution were determined by pro rata allocation (even
if the Holders were treated as one entity for such purpose) or any
other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no Person guilty of fraudulent
misrepresentation (within the meaning of Section 11 (f) of the Act)
shall be entitled to contribution from
24
any Person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section, each Person who controls a Holder within the
meaning of either the Act or the Exchange Act and each director, officer,
employee and agent of such Holder shall have the same rights to
contribution as such Holder, and each Person who controls the Company
within the meaning of either the Act or the Exchange Act, each officer,
director, employee or agent of the Company shall have the same rights to
contribution as the Company, subject in each case to the applicable terms
and conditions of this paragraph (d).
(e) The provisions of this Section 6 will remain in full force
and effect, regardless of any investigation made by or on behalf of
any Holder or the Company or any of the officers, directors or
controlling Persons referred to in this Section hereof, and will
survive the sale by a Holder of securities covered by a Registration
Statement.
7. Underwritten Registrations.
(a) If any of the Transfer Restricted Securities or New
Securities, as the case may be, covered by any Shelf Registration
Statement are to be sold in an underwritten offering, the Managing
Underwriters shall be selected by the Majority Holders, subject,
unless the Managing Underwriter is Salomon Smith Barney, to the
consent of the Company which shall not be unreasonably withheld.
(b) No Person may participate in any underwritten offering
pursuant to any Shelf Registration Statement, unless such Person (i)
agrees to sell such Person's Transfer Restricted Securities or New
Securities, as the case may be, on the basis reasonably provided in
any underwriting arrangements approved by the Persons entitled
hereunder to approve such arrangements; and (ii) completes and
executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under
the terms of such underwriting arrangements.
8. No Inconsistent Agreements. The Company has not, as of the date hereof,
entered into, nor shall it, on or after the date hereof, enter into, any
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders herein or otherwise conflicts with the provisions hereof.
25
9. Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, qualified, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of the
Majority Holders; provided that, with respect to any matter that directly or
indirectly affects the rights of any Initial Purchaser hereunder, the Company
shall obtain the written consent of each such Initial Purchaser against which
such amendment, qualification, supplement, waiver or consent is to be effective.
Notwithstanding the foregoing (except the foregoing proviso), a waiver or
consent to departure from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders whose Securities or New Securities,
as the case may be, are being sold pursuant to a Registration Statement and that
does not directly or indirectly affect the rights of other Holders may be given
by the Majority Holders, determined on the basis of Securities or New
Securities, as the case may be, being sold rather than registered under such
Registration Statement.
10. Notices. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivery, first-class mail, telex,
telecopier or air courier guaranteeing overnight delivery:
(a) if to a Holder, at the most current address given by such holder
to the Company in accordance with the provisions of this Section, which
address initially is, with respect to each Holder, the address of such
Holder maintained by the Registrar under the Indenture, with a copy in like
manner to Salomon Smith Barney Inc.;
(b) if to you, initially at the respective addresses set forth in the
Purchase Agreement; and
(c) if to the Company, initially at its address set forth in the
Purchase Agreement with a copy to Paul, Weiss, Rifkind, Wharton & Garri
son, at 1285 Avenue of the Americas, New York, New York 10019, attention:
James M. Dubin, Esq.
All such notices and communications shall be deemed to have been duly given
when: 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 sender's facsimile, if sent by facsimile transmission; and on
the day delivered if sent by overnight courier guaranteeing next day delivery.
26
The Initial Purchasers or the Company by notice to the other parties may
designate additional or different addresses for subsequent notices or
communications.
11. Successors. This Agreement shall inure to the benefit of and be binding
upon the successors and assigns of each of the parties, including, without the
need for an express assignment or any consent by the Company thereto, subsequent
Holders of Securities and the New Securities. The Company hereby agrees to
extend the benefits of this Agreement to any Holder of Securities and the New
Securities, and any such Holder may specifically enforce the provisions of this
Agreement as if an original party hereto.
12. Counterparts. This agreement may be in signed counterparts, each of
which shall an original and all of which together shall constitute one and the
same agreement.
13. Headings. The headings used herein are for convenience only and shall
not affect the construction hereof.
14. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed in the State of New York.
15. Severability. In the event that any one of more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
shall be enforceable to the fullest extent permitted by law.
16. Securities Held by the Company, etc.. Whenever the consent or approval
of Holders of a specified percentage of principal amount of Securities or New
Securities is required hereunder, Securities or New Securities, as applicable,
held by the Company or its Affiliates (other than subsequent Holders of
Securities or New Securities if such subsequent Holders are deemed to be
Affiliates solely by reason of their holdings of such Securities or New
Securities) shall not be counted in determining whether such consent or approval
was given by the Holders of such required percentage.
27
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a building agreement among the
Company and the several Initial Purchasers.
28
Very truly yours,
METROMEDIA FIBER NETWORK, INC.
By: /s/ Howard M. Finkelstein
---------------------------------
Name: Howard M. Finkelstein
Title: President, Chief Operating Officer
and Director
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
SALOMON SMITH BARNEY INC.
CHASE SECURITIES INC.
DEUTSCHE BANK SECURITIES INC.
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION.
By: SALOMON SMITH BARNEY INC.
By: /s/ Robert E. Doherty
------------------------------------
Name: Robert E. Doherty
Title: Vice President
For themselves and the Initial Purchasers.
ANNEX A
Each Broker-Dealer that receives New Securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Securities. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
Broker-Dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Act. This Prospectus, as it may be amended or supplemented from
time to time, may be used by a Broker-Dealer in connection with resales of New
Securities received in ex change for Securities where such Securities were
acquired by such Broker-Dealer as a result of market-making activities or other
trading activities. The Company has agreed that starting on the Expiration Date
(as defined herein) and ending on the close of business 180 days after the
Expiration Date, it will make this Prospectus available to any Broker-Dealer for
use in connection with any such resale. See "Plan of Distribution".
ANNEX B
Each Broker-Dealer that receives New Securities for its own account in
exchange for Securities, where such Securities were acquired by such
Broker-Dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such New Securities. See "Plan of Distribution".
ANNEX C
PLAN OF DISTRIBUTION
Each Broker-Dealer that receives New Securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a Broker-Dealer in connection with resales of New Securities received in
exchange for Securities where such Securities were acquired as a result of
market-making activities or other trading activities. The Company has agreed
that, starting on the Expiration Date and ending on the close of business 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_______, 199_, all dealers effecting transactions
in the New Securities may be required to deliver a prospectus.
The Company will not receive any proceeds from any sale of New Securities
by brokers-dealers. New Securities received by Broker-Dealers for their own
account pursuant to the Exchange Offer may be sold from time to time in one or
more transactions in the over-the-counter market, in negotiated transactions,
through the writing of options on the New Securities or a combination of such
methods of resale, at market prices prevailing at the time of resale, at prices
related to such prevailing market prices or negotiated prices. Any such resale
may be made directly to purchasers or to or through brokers or dealers who may
receive compensation in the form of commissions or concessions from any such
Broker-Dealer and/or the purchasers of any such New Securities. Any
Broker-Dealer that resells New Securities that were received by it for its own
account pursuant to the Exchange Offer and any broker or dealer that
participates in a distribution of such New Securities may be deemed to be an
"underwriter" within the meaning of the Act and any profit of any such resale of
New Securities and any commissions or concessions received by any such Persons
may be deemed to be underwriting compensation under the Act. The Letter of
Transmittal states that by acknowledging that it will deliver and by delivering
a prospectus, a Broker-Dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Act.
For a period of 180 days after the Expiration Date, the Company will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any Broker-Dealer that requests such documents
in the Letter of Transmittal. The Company has agreed to pay all expenses
incident to the Exchange Offer (including the expenses of one counsel for the
holder of the Securities) other than commissions or concessions of any brokers
or dealers and will
indemnify the holders of the Securities (including any Broker-Dealers) against
certain liabilities, including liabilities under the Act.
[If applicable, add information required by Regulation S-K Items 507 and/or
508.]
ANNEX D
Rider A
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS
THERETO.
Name:
------------------------------------
Address:
---------------------------------
Rider B
If the undersigned is not a Broker-Dealer, the undersigned represents that
it is not an Affiliate of the Company, it acquired the New Securities in the
ordinary course of its business, it is not engaged in, and it has no
arrangements or understandings with any Person to participate in a distribution
of the New Securities, and is not participating in, and does not intend to
participate in the distribution of such New Securities. If the undersigned is a
Broker-Dealer that will receive New Securities for its own account in exchange
for Securities, it acknowledges that it represents that the Securities to be
exchanged for New Securities were acquired by it as a result of market-making
activities or other trading activities and acknowledges that it will deliver a
prospectus in connection with any resale of such New Securities; however, by so
acknowledging and by delivering a prospectus, the undersigned will not be deemed
to admit that it is an "underwriter" within the meaning of the Act.