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EXHIBIT 4.15
OPTEL, INC.
11-1/2% SENIOR NOTES DUE 2008
REGISTRATION AGREEMENT
New York, New York
July 7, 1998
SALOMON BROTHERS INC
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
CIBC OPPENHEIMER CORP.
c/o Salomon Brothers Inc
Seven ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
OpTel, Inc., a Delaware corporation (the "Company"), proposes
to issue and sell (such issuance and sale, the "Initial Placement") to you (the
"Initial Purchasers"), upon the terms set forth in a purchase agreement dated
as of June 29, 1998 (the "Purchase Agreement"), $200,000,000 aggregate
principal amount of its 11-1/2% Senior Notes Due 2008 (the "Securities"). In
satisfaction of a condition to your obligations under the Purchase Agreement,
the Company agrees with you, (i) for your benefit and the benefit of the other
Initial Purchasers and (ii) for the benefit of the holders from time to time of
the Securities (including you and the other Initial Purchasers) (each of the
foregoing 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" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Affiliate" of any specified person means any other person
which, directly or indirectly, is in control of, is controlled by, or is under
common control with, such specified person. For purposes of this definition,
control of a person means the power, direct or indirect, to direct or cause the
direction of the management and policies of such person whether by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Closing Date" has the meaning set forth in the Purchase
Agreement.
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"Commission" means the Securities and Exchange Commission.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Exchange Offer Registration Period" means the period ending
on the earlier of (x) one (1) year 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 or (y) when all Exchange Securities received by Exchanging Dealers
have been sold or (z) if there are no Exchange Securities held by Exchanging
Dealers on the date of consummation of the Exchange Offer.
"Exchange Offer Registration Statement" means a registration
statement of the Company on an appropriate form under the Act with respect to
the Registered Exchange Offer, all amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Exchange Securities" means debt securities of the Company
identical in all material respects to the Securities (except that the cash
interest and interest rate step-up provisions and the transfer restrictions
will be modified or eliminated, as appropriate), to be issued under the
Indenture or the Exchange Securities Indenture.
"Exchange Securities Indenture" means an indenture between the
Company and the Exchange Securities Trustee, identical in all material respects
with the Indenture (except that the cash interest and interest rate step-up
provisions will be modified or eliminated, as appropriate).
"Exchange Securities Trustee" means U.S. Trust Company of
Texas, N.A. or such other bank or trust company reasonably satisfactory to the
Initial Purchasers, as trustee with respect to the Exchange Securities under
the Exchange Securities Indenture.
"Exchanging Dealer" means any Holder (which may include the
Initial Purchasers) which is a broker-dealer, electing to exchange Securities
acquired for its own account as a result of market-making activities or
other trading activities for Exchange Securities.
"Final Memorandum" has the meaning set forth in the Purchase
Agreement.
"Holder" has the meaning set forth in the preamble hereto.
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"Indenture" means the Indenture relating to the Securities
dated as of July 7, 1998, between the Company and U.S. Trust Company of Texas,
N.A., as trustee, as the same may be amended from time to time in accordance
with the terms thereof.
"Initial Placement" has the meaning set forth in the preamble
hereto.
"Majority Holders" means the Holders of a majority of the
aggregate principal amount of securities registered under a Registration
Statement.
"Managing Underwriters" means the investment banker or
investment bankers and manager or managers selected by the Majority Holders to
administer an underwritten offering.
"Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Securities or the Exchange Securities, covered
by such Registration Statement, and all amendments and supplements to the
Prospectus, including post-effective amendments.
"Registered Exchange Offer" means the proposed offer to the
Holders to issue and deliver to such Holders, in exchange for the Securities, a
like principal amount of the Exchange Securities.
"Registration Statement" means any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the Securities or
the Exchange Securities pursuant to the provisions of this Agreement,
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" has the meaning set forth in the preamble hereto.
"Shelf Registration" means a registration effected pursuant to
Section 3 hereof.
"Shelf Registration Period" has the meaning set forth in
Section 3(b) hereof.
"Shelf Registration Statement" means a "shelf" registration
statement of the Company pursuant to the provisions of Section 3 hereof which
covers some or all of the Securities or Exchange Securities, as applicable, on
an appropriate form under Rule 415
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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.
"Trustee" means the trustee with respect to the Securities
under the Indenture.
"Underwriter" means any underwriter of Securities in
connection with an offering thereof under a Shelf Registration Statement.
"Underwritten Offering" means a registration and offering in
which Securities are sold to an Underwriter for reoffering to the public.
2. Registered Exchange Offer; Resales of Exchange
Securities by Exchanging Dealers; Private Exchange.
(a) The Company shall prepare and, not later than 75 days
following the Closing Date, shall file with the Commission the Exchange Offer
Registration Statement with respect to the Registered Exchange Offer. The
Company shall use its best efforts to cause the Exchange Offer Registration
Statement to become effective under the Act not later than 135 days after the
Closing Date.
(b) Upon the effectiveness of the Exchange Offer
Registration Statement, the Company shall promptly commence the Registered
Exchange Offer, it being the objective of such Registered Exchange Offer to
enable each Holder electing to exchange Securities for Exchange Securities
(assuming that such Holder is not an affiliate of the Company within the
meaning of the 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) to trade such Exchange
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 30 days (or longer if required by applicable law) after the date
notice thereof is mailed to the Holders;
(iii) utilize the services of a depositary for the
Registered Exchange Offer with an address in the Borough of Manhattan,
The City of New York; and
(iv) comply in all respects with all applicable laws.
(d) As soon as practicable after the close of the
Registered Exchange Offer, the Company shall:
(i) accept for exchange all Securities tendered and not
validly withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation all
Securities so accepted for exchange; and
(iii) cause the Trustee or the Exchange Securities Trustee,
as the case may be, promptly to authenticate and deliver to each
Holder of Securities Exchange Securities equal in principal amount to
the Securities of such Holder so accepted for exchange.
(e) The Initial Purchasers and the Company acknowledge
that, pursuant to interpretations by the Commission's staff of Section 5 of the
Act, and in the absence of an applicable exemption therefrom, each Exchanging
Dealer is required to deliver a Prospectus in connection with a sale of any
Exchange Securities received by such Exchanging Dealer pursuant to the
Registered Exchange Offer in exchange for Securities acquired for its own
account as a result of market-making activities or other trading activities.
Accordingly, the Company shall:
(i) include the information set forth in Annex A hereto
on the cover of 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, and in Annex C
hereto in the underwriting or 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; and
(ii) use its best efforts to keep the Exchange Offer
Registration Statement continuously effective under the Act during the
Exchange Offer Registration Period for delivery by Exchanging Dealers
in connection with sales of Exchange Securities
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received pursuant to the Registered Exchange Offer, as contemplated by
Section 5(h) below.
(f) In the event that any Initial Purchaser determines
that it is not eligible to participate in the Registered Exchange Offer with
respect to the exchange of 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 party purchasing Exchange
Securities registered under a Shelf Registration Statement as contemplated by
Section 3 hereof from such Initial Purchaser, in exchange for such Securities,
a like principal amount of Exchange Securities. The Company shall seek to
cause the CUSIP Service Bureau to issue the same CUSIP number for such Exchange
Securities as for Exchange Securities issued pursuant to the Registered
Exchange Offer.
3. Shelf Registration. If, (i) because of 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) if for any other reason the Registered Exchange Offer is not consummated
within 165 days of the Closing Date, or (iii) if any Initial Purchaser so
requests with respect to Securities not eligible to be exchanged for Exchange
Securities in the Registered Exchange Offer, or (iv) upon request by such
Holder, if any Holder (other than an Initial Purchaser) is not eligible to
participate in the Registered Exchange Offer or (v) upon request by such
Initial Purchaser, in the case of any Initial Purchaser that participates in
the Registered Exchange Offer or acquires Exchange Securities pursuant to
Section 2(f) hereof, such Initial Purchaser does not receive freely tradeable
Exchange Securities in exchange for Securities constituting any portion of an
unsold allotment (it being understood that, for purposes of this Section 3, (x)
the requirement that an Initial Purchaser deliver a Prospectus containing the
information required by Items 507 and/or 508 of Regulation S-K under the Act in
connection with sales of Exchange Securities acquired in exchange for such
Securities shall result in such Exchange Securities being not "freely
tradeable" but (y) the requirement that an Exchanging Dealer deliver a
Prospectus in connection with sales of Exchange 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
Exchange Securities being not "freely tradeable"), the following provisions
shall apply:
(a) The Company shall, as promptly as practicable (but
in no event more than 30 days after so required or requested pursuant to this
Section 3; it being understood that any delay by a Holder or Initial Purchaser
in requesting a shelf registration pursuant to this Section 3 shall not in any
way prejudice or impair such Holder's or Initial Purchaser's rights under this
Agreement), file with the Commission and thereafter shall use its best efforts
to cause to be declared effective under the Act by the 180th day after the
Closing
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Date a Shelf Registration Statement relating to the offer and sale of the
Securities or the Exchange Securities, as applicable, by the Holders from time
to time in accordance with the methods of distribution elected by such Holders
and set forth in such Shelf Registration Statement; provided that with respect
to Exchange 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 Regulation S-K Items 507 and/or 508, as
applicable, in satisfaction of its obligations under this paragraph (a) with
respect thereto, and any such Exchange Offer Registration Statement, as so
amended, shall be referred to herein as, and governed by the provisions herein
applicable to, a Shelf Registration Statement.
(b) The Company shall use its best efforts to keep the
Shelf Registration Statement continuously effective in order to permit the
Prospectus forming part thereof to be usable by Holders for a period of two
years from the date the Shelf Registration Statement is declared effective by
the Commission or such shorter period that will terminate when all the
Securities or Exchange Securities, 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 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 (i) such action is required by applicable law, or (ii) such
action is taken by the Company in good faith and for valid business reasons
(not including avoidance of the Company's obligations hereunder), including the
acquisition or divestiture of assets, so long as the Company promptly
thereafter complies with the requirements of Section 5(k) hereof, if
applicable.
(c) The Holders of Securities may elect to sell their
Securities pursuant to one or more Underwritten Offerings; provided, however,
that in no event shall any Holder commence any such Underwritten Offering if a
period of less than 180 days has elapsed since the consummation of the most
recent Underwritten Offering hereunder. No Holder may participate in any
Underwritten Offering hereunder unless such Holder agrees to sell such Holder's
Securities on the basis provided in customary underwriting arrangements entered
into in connection therewith and completes and executes all reasonable and
customary agreements and documents required under the terms of such
underwriting arrangements.
4. Liquidated Damages.
(a) The Company and the Initial Purchasers agree that the
Holders will suffer damages if the Company fails to fulfill its obligations
under Section 2 or Section 3
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hereof and that it would not be feasible to ascertain the extent of such
damages with precision. Accordingly, the Company agrees to pay, as liquidated
damages, additional interest on the Securities ("Liquidated Damages") under the
circumstances and to the extent set forth below:
(i) if neither the Exchange Offer Registration Statement
nor the Shelf Registration Statement has been filed on or prior to the
75th day after the Closing Date, then, commencing on the 76th day
after the Closing Date, Liquidated Damages shall accrue on the
Securities over and above the stated interest at a rate of 0.50% per
annum of the principal amount of the Securities for the first 90 days
immediately following the 75th day after the Closing Date, such
Liquidated Damages rate increasing by an additional 0.25% per annum of
the principal amount of the Securities at the beginning of each
subsequent 90-day period;
(ii) if the Exchange Offer Registration Statement is not
declared effective by the Commission on or prior to the 135th day
after the Closing Date, then, unless the applicable interpretations of
the Commission do not permit the Company to effect the Registered
Exchange Offer, commencing on the 136th day after the Closing Date,
Liquidated Damages shall accrue on the Securities included or which
should have been included in such Registration Statement over and
above the stated interest at a rate of 0.50% per annum of the
principal amount of the Securities for the first 90 days immediately
following the 135th day after the Closing Date, such Liquidated
Damages increasing by an additional 0.25% per annum of the principal
amount of the Securities at the beginning of each subsequent 90-day
period; and
(iii) if (A) the Company has not exchanged Exchange
Securities for all Securities validly tendered in accordance with the
terms of the Registered Exchange Offer prior to the 165th day after
the Closing Date or the Shelf Registration Statement has not been
declared effective by the Commission on or prior to the 180th day
after the Closing Date or (B) the Exchange Offer Registration
Statement, or, if applicable, the Shelf Registration Statement, has
been declared effective and such Registration Statement ceases to be
effective at any time during the period specified in Section 2(c)(ii)
hereof (in the case of the Exchange Offer Registration Statement) or
during the Shelf Registration Period (in the case of the Shelf
Registration Statement) (it being agreed that if such event occurs by
reason of a post-effective amendment to such Registration Statement
having been filed but not declared effective within 30 days of such
Registration Statement ceasing to be effective, Liquidated Damages
referred to below shall not be payable for such 30-day period;
provided that if for any reason such post-effective amendment is not
declared effective within the requisite 30-day period and Liquidated
Damages thereafter become payable, the Liquidated Damages will be
payable and calculated from the
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date the Registration Statement becomes ineffective), unless all the
Securities have previously been sold or exchanged thereunder, as the
case may be, then Liquidated Damages shall accrue (over and above any
interest otherwise payable on the Securities affected thereby) at a
rate of 0.50% per annum of the principal amount of such affected
Securities for the first 90 days commencing on (x) the 166th day after
the Closing Date with respect to the Securities validly tendered and
not exchanged by the Company or the 181st day after the Closing Date
with respect to the effectiveness of the Shelf Registration Statement,
in the case of (A) above or (y) the day such Exchange Offer
Registration Statement or Shelf Registration Statement ceases to be
effective in the case of (B) above, such Liquidated Damages rate
increasing by an additional 0.25% per annum of the principal amount of
such affected Securities at the beginning of each such subsequent
90-day period (it being understood and agreed that, in the case of (B)
above, so long as any Security is then covered by an effective Shelf
Registration Statement, no Liquidated Damages shall accrue on such
Security);
provided, however, for the purposes of this Section 4(a), that the Liquidated
Damages rate on any affected Security may not exceed at any one time in the
aggregate 2.0% per annum of the principal amount of such affected Security; and
provided, further, that (1) upon the filing of the Exchange Offer Registration
Statement or a Shelf Registration Statement (in the case of clause (i) of this
Section 4(a)), (2) upon the effectiveness of the Exchange Offer Registration
Statement (in the case of clause (ii) of this Section 4(a)), (3) upon the
exchange of the Exchange Securities for all Securities tendered or the
effectiveness of the Shelf Registration Statement (in the case of clause
(iii)(A) of this Section 4(a)), or (4) upon the effectiveness of the Exchange
Offer Registration Statement or the Shelf Registration Statement which had
ceased to remain effective (in the case of clause (iii)(B) of this Section
4(a)), Liquidated Damages on the affected Securities as a result of such clause
(or the relevant subclause thereof), as the case may be, shall cease to accrue.
(b) The Company shall notify the Trustee within one
business day after each and every date on which an event occurs in respect of
which Liquidated Damages are required to be paid (an "Event Date"). Any
Liquidated Damages due pursuant to clauses (a)(i), (a)(ii) or (a)(iii) of this
Section 4 will be payable to the Holders of affected Securities in cash
semi-annually on each January 1 and July 1 (to the holders of record on the
December 15 and June 15 immediately preceding such dates), commencing with the
first such date occurring after any such Liquidated Damages commence to accrue.
The amount of Liquidated Damages will be determined by multiplying the
applicable Liquidated Damages rate by the principal amount of the affected
Securities of such Holders, multiplied by a fraction, the numerator of which is
the number of days such Liquidated Damages rate was applicable during such
period (determined on the basis of a 360-day year comprised of twelve 30-day
months and, in the case of a partial month, the actual number of days elapsed),
and the denominator of which is 360.
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5. Registration Procedures. In connection with any
Shelf Registration Statement and, to the extent applicable, any Exchange offer
Registration Statement, the following provisions shall apply:
(a) The Company shall furnish to you, prior to the filing
thereof with the Commission, a copy of any Shelf Registration
Statement and any Exchange Offer Registration Statement, and each
amendment thereof and each amendment or supplement, if any, to the
Prospectus included therein and shall use its best efforts to reflect
in each such document, when so filed with the Commission, such
comments as you reasonably may propose.
(b) The Company shall ensure that (i) any Registration
Statement and any amendment thereto and any Prospectus forming part
thereof and any amendment or supplement thereto complies in all
material respects with the Act and the rules and regulations
thereunder, (ii) any Registration Statement and any amendment thereto
does not, when it becomes effective, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading and
(iii) any Prospectus forming part of any Registration Statement, and
any amendment or supplement to such Prospectus, does not include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements, in the light of the
circumstances under which they were made, not misleading.
(c) (1) The Company shall advise you and, in the case of
a Shelf Registration Statement, the Holders of securities covered
thereby, and, if requested by you or any such Holder, confirm such
advice in writing:
(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; and
(ii) of any request by the Commission for
amendments or supplements to the Registration Statement or the
Prospectus included therein or for additional information.
(2) The Company shall advise you and, in the case
of a Shelf Registration Statement, the Holders of securities covered
thereby, and, in the case of an Exchange Offer Registration Statement,
any Exchanging Dealer which has provided in writing to the Company a
telephone or facsimile number and address for notices, and, if
requested by you or any such Holder or Exchanging Dealer, confirm such
advice in writing:
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(i) 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;
(ii) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of the securities included therein for sale in
any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and
(iii) of the happening of any event that requires
the making of any changes in the Registration Statement or the
Prospectus so that, as of such date, the statements therein
are not misleading and do not omit to state a material fact
required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in light of
the circumstances under which they were made) not misleading
(which advice shall be accompanied by an instruction to
suspend the use of the Prospectus until the requisite changes
have been made).
(d) The Company shall use its best efforts to obtain the
withdrawal of any order suspending the effectiveness of any
Registration Statement at the earliest possible time.
(e) The Company shall furnish to each Holder of
securities included within the coverage of any Shelf Registration
Statement, without charge, at least one copy of such Shelf
Registration Statement and any post-effective amendment thereto,
including financial statements and schedules, and, if the Holder so
requests, in writing, all exhibits (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 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; and the
Company consents to the use of the Prospectus or any amendment or
supplement thereto by each of the selling Holders of securities in
connection with the offering and sale of the securities covered by the
Prospectus or any amendment or supplement thereto.
(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 financial statements
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and schedules, any documents incorporated by reference therein, and,
if the Exchanging Dealer so requests in writing, all exhibits
(including those incorporated by reference).
(h) The Company shall, during the Exchange Offer
Registration Period, promptly deliver to each Exchanging Dealer,
without charge, as many copies of the Prospectus included in such
Exchange Offer Registration Statement and any amendment or supplement
thereto as such Exchanging Dealer may reasonably request for delivery
by such Exchanging Dealer in connection with a sale of Exchange
Securities received by it pursuant to the Registered Exchange Offer;
and the Company consents to the use of the Prospectus or any amendment
or supplement thereto by any such Exchanging Dealer, as aforesaid.
(i) Prior to the Registered Exchange Offer or any other
offering of securities pursuant to any Registration Statement, the
Company shall register or qualify or cooperate with the Holders of
securities included therein and their respective counsel in connection
with the registration or qualification of such securities for offer
and sale under the securities or blue sky laws of such jurisdictions
as any such Holders reasonably request 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 will not
be required to qualify generally to do business in any jurisdiction
where it is not then so qualified or to take any action which would
subject it to general service of process or to taxation in any such
jurisdiction where it is not then so subject.
(j) The Company shall cooperate with the Holders of
Securities to facilitate the timely preparation and delivery of
certificates representing Securities to be sold pursuant to any
Registration Statement free of any restrictive legends and in such
denominations and registered in such names as Holders may request
prior to sales of securities pursuant to such Registration Statement.
(k) Upon the occurrence of any event contemplated by
paragraph (c)(2)(iii) above, the Company shall promptly prepare a
post-effective amendment to any Registration Statement or an amendment
or supplement to the related Prospectus or file any other required,
document so that, as thereafter delivered to purchasers of the
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.
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(l) Not later than the effective date of any such
Registration Statement hereunder, the Company shall provide a CUSIP
number for the Securities or Exchange Securities, as the case may be,
registered under such Registration Statement, and provide the
applicable trustee with printed certificates for such Securities or
Exchange Securities, in a form eligible for deposit with The
Depository Trust Company.
(m) The Company shall use its best efforts to comply with
all applicable rules and regulations of the Commission and shall make
generally available to its security holders 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.
(n) The Company shall cause the Indenture or the Exchange
Securities Indenture, as the case may be, to be qualified under the
Trust Indenture Act in a timely manner.
(o) The Company may require each Holder of securities to
be sold pursuant to any Shelf Registration Statement to furnish to the
Company in writing, within 20 Business Days after receipt of a request
therefor, such information specified in item 507 of Regulation S-K
under the Act for use in connection with any Shelf Registration
Statement or Prospectus or preliminary Prospectus included therein.
No Holder of Securities shall be entitled to Liquidated Damages
pursuant to Section 4 hereof unless and until such Holder shall have
provided all such information required to be provided by such Holder
for inclusion therein. Each Holder as to which any Shelf Registration
Statement is being effected agrees to furnish on a timely basis to the
Company, for so long as the Registration Statement is effective, all
information required to be disclosed in order to make the information
previously furnished to the Company by such Holder not materially
misleading.
(p) The Company shall, if requested, promptly incorporate
in a Prospectus supplement or post-effective amendment to a Shelf
Registration Statement, such information as the Managing Underwriters
and Majority Holders reasonably agree should be included therein and
shall make all required filings of such Prospectus supplement or
post-effective amendment as soon as notified of the matters to be
incorporated in such Prospectus supplement or post-effective
amendment.
(q) In the case of any Shelf Registration Statement, the
Company shall enter into such agreements (including underwriting
agreements) and take all other appropriate actions in order to
expedite or facilitate the registration or the disposition
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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 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 7 by Holders of
Securities or the Company).
(r) In the case of any Shelf Registration Statement, the
Company shall (i) make reasonably available for inspection by the
Holders of securities to be registered thereunder, any underwriter
participating in any disposition pursuant to such Registration
Statement, and any attorney, accountant or other agent retained by the
Holders or any such underwriter 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;
(iii) if requested by the Holders or the underwriters, if any, 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) if
requested by the Holders or the underwriters, if any, 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) if requested by the Holders or the
underwriters, if any, 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 underwriters, if any, in customary form and
covering matters of the type customarily
15
-15-
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 5(k) and with any customary conditions
contained in the underwriting agreement or other agreement entered
into by the Company. The foregoing actions set forth in clauses
(iii), (iv), (v) and (vi) of this Section 5(r) 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.
(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;
(iii) if requested by the Initial Purchasers, 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) if
requested by the Initial Purchasers, 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; (v) if requested
by the Initial Purchasers, 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
16
-16-
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 5(k) and with
conditions customarily contained in underwriting agreements. The
foregoing actions set forth in clauses (iii), (iv), (v), and (vi) of
this Section 5(s) 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.
6. Registration Expenses. The Company shall bear all
expenses incurred in connection with the performance of its obligations under
Sections 2, 3, 4 and 5 hereof and, in the event of any Shelf Registration
Statement, will reimburse the Holders for the reasonable fees and disbursements
of one firm or counsel designated by the Majority Holders to act as counsel for
the Holders in connection therewith.
7. Indemnification and Contribution. (a) In connection
with any Registration Statement, the Company agrees to indemnify and hold
harmless each Holder of securities covered thereby (including each Initial
Purchaser and, with respect to any Prospectus delivery as contemplated in
Section 5(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 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 behalf of any such Holder
specifically for inclusion therein; and provided further, 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
17
-17-
omission made in the Preliminary Memorandum which is corrected or contained, as
the case may be, in the Final Memorandum and the Initial Purchaser fails to
deliver the Final Memorandum. This indemnity agreement will be in addition to
any liability which the Company may otherwise have.
The Company also agrees to indemnify or contribute to Losses
of, as provided in Section 7(d), any underwriters of securities registered
under a Shelf Registration Statement, their officers and directors and each
person who controls such underwriters on substantially the same basis as that
of the indemnification of the Initial Purchaser and the selling Holders
provided in this Section 7(a) and shall, if requested by any Holder, enter into
an underwriting agreement reflecting such agreement, as provided in Section
5(q) hereof.
(b) Each Holder of securities covered by a Registration
Statement (including each Initial Purchaser and, with respect to any Prospectus
delivery as contemplated in Section 5(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 who signs such Registration Statement
and (iv) each person who controls the Company within the meaning of either the
Act or the Exchange Act to the same extent as the foregoing indemnity from the
Company to each such Holder, but only with reference to written information
relating to such Holder furnished to the Company by or on behalf of such Holder
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under
this Section 7 or 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 6, 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 and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of the indemnifying
party's choice at the indemnifying party's expense to represent the indemnified
party in any action for which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ one
additional and separate counsel (and one additional
18
-18-
and separate local counsel), and the indemnifying party shall bear the
reasonable fees, costs and expenses of such separate counsel (and local
counsel) if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be 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 employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. 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 7 is unavailable to or insufficient to hold harmless
an indemnified party for any reason, then each applicable indemnifying party,
in lieu of indemnifying such indemnified party, shall have a joint and several
obligation to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) (collectively "Losses") to
which such indemnified party may be subject in such proportion as is
appropriate to reflect the relative benefits received by such indemnifying
party, on the one hand, and such indemnified party, on the other hand, from the
Initial Placement and the Registration Statement which resulted in such Losses;
provided, however, that in no case shall any Initial Purchaser or any
subsequent Holder of any Security or Exchange 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 Exchange Security, applicable
to the Security which was exchangeable into such Exchange 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 which resulted in such Losses as well as any other relevant equitable
19
-19-
considerations. Benefits received by the Company shall be deemed to be equal
to the sum of (x) the total net proceeds from the Initial Placement (before
deducting expenses) as set forth on the cover page of the Final Memorandum and
(y) the total amount of additional interest which the Company was not required
to pay as a result of registering the securities covered by the Registration
Statement which resulted in such Losses. Benefits received by the Initial
Purchasers shall be deemed to be equal to the total purchase discounts and
commissions as set forth on the cover page of the Final Memorandum, and
benefits received by any other Holders shall be deemed to be equal to the value
of receiving Securities or Exchange Securities, as applicable, registered under
the Act. Benefits received by any underwriter shall be deemed to be equal to
the total underwriting discounts and commissions, as set forth on the cover page
of the Prospectus forming a part of the Registration Statement which resulted
in such Losses. Relative fault shall be determined by reference to whether any
alleged untrue statement or omission relates to information provided by the
indemnifying party, on the one hand, or by the indemnified party, on the other
hand. The parties agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method of
allocation 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 any person who was not guilty
of such fraudulent misrepresentation. For purposes of this Section 7, 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 of the Company who shall have signed the Registration Statement
and each director of the Company shall have the same rights to contribution as
the Company, subject in each case to the applicable terms and conditions of
this paragraph (d).
(e) The provisions of this Section 7 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 Section 7 hereof, and will survive the sale by a Holder of
securities covered by a Registration Statement.
8. Miscellaneous.
(a) No Inconsistent Agreements. The Company has not, as
of the date hereof, entered into, nor shall it, on or after the date hereof,
enter into, any agreement with respect to its securities that is inconsistent
with the rights granted to the Holders herein or otherwise conflicts with the
provisions hereof.
(b) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be amended,
qualified, modified or
20
-20-
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of the
Holders of at least a majority of the then outstanding aggregate principal
amount of Securities (or, after the consummation of any Exchange Offer in
accordance with Section 2 hereof, of Exchange Securities); 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 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 being sold rather than registered under such Registration Statement.
(c) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by hand-delivery,
first-class mail, telex, telecopier, or air courier guaranteeing overnight
delivery:
(1) if to a Holder, at the most current address given by
such holder to the Company in accordance with the provisions of this
Section 8(c), 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 Brothers Inc;
(2) if to you, initially at the respective addresses set
forth in the Purchase Agreement; and
(3) if to the Company, initially at its address set forth
in the Purchase Agreement.
All such notices and communications shall be deemed to have
been duly given when received.
The Initial Purchasers or the Company by notice to the other
may designate additional or different addresses for subsequent notices or
communications.
(d) Successors and Assigns. This Agreement shall inure
to the benefit of and be binding upon the successors and assigns of each of the
parties, including, without the need for an express assignment or any consent
by the Company thereto, subsequent Holders of Securities and/or Exchange
Securities. The Company hereby agrees to extend the benefits of this Agreement
to any Holder of Securities and/or Exchange Securities and any such Holder may
specifically enforce the provisions of this Agreement as if an original party
hereto.
21
-21-
(e) Counterparts. This agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(f) Headings. The headings in this agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(g) Governing Law. This agreement shall be governed by
and construed in accordance with the internal laws of the State of New York
applicable to agreements made and to be performed in said State.
(h) 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.
(i) Securities Held by the Company, etc. Whenever the
consent or approval of Holders of a specified percentage of principal amount of
Securities or Exchange Securities is required hereunder, Securities or Exchange
Securities, as applicable, held by the Company or its Affiliates (other than
subsequent Holders of Securities or Exchange Securities if such subsequent
Holders are deemed to be Affiliates solely by reason of their holdings of such
Securities or Exchange Securities) shall not be counted in determining whether
such consent or approval was given by the Holders of such required percentage.
[Signature Page Follows]
22
S-1
Please confirm that the foregoing correctly sets forth the
agreement between the Company and you.
Very truly yours,
OPTEL, INC.
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
SALOMON BROTHERS INC
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
CIBC ▇▇▇▇▇▇▇▇▇▇▇ CORP.
By: Salomon Brothers Inc
By:
-----------------------------
Name:
Title:
23
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 Securities where such Exchange 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 on the earlier of first
anniversary of the Expiration Date or the date upon which all such Exchange
Securities have been sold by such participating broker-dealer, it will make
this Prospectus available to any broker-dealer for use in connection with any
such resale. See "Plan of Distribution."
24
ANNEX B
Each broker-dealer that receives Exchange 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 Exchange Securities. See "Plan of Distribution."
25
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 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 earlier of
the close of business on the first anniversary of the Expiration Date or the
date upon which all Exchange Securities have been sold by such participating
broker-dealer (the "Registration Period"), 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 ________, _____, all dealers
effecting transactions in the Exchange Securities may be required to deliver a
prospectus.
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 and/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 of any such resale of Exchange
Securities and any commissions 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 the Registration Period, 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
26
2
brokers or dealers and will indemnify the holders of the Securities (including
any broker-dealers) against certain liabilities, including liabilities under
the Securities Act.
[If applicable, add information required by Regulation S-K Items 507 and/or
508.]
27
ANNEX D
Rider A
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL COPIES
OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
--------------------------
Address:
-----------------------
-----------------------
Rider B
If the undersigned is not a broker-dealer, the undersigned represents that it
is not engaged in, and does not intend to engage in, a distribution of Exchange
Securities. If the undersigned is a broker-dealer that will receive Exchange
Securities for its own account in exchange for securities, it represents that
the Securities to be exchanged for Exchange 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
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.