EXHIBIT 4.2
▇▇▇▇▇▇ INDUSTRIES, INC.
$275,000,000 5.375% SENIOR NOTES DUE 2012
REGISTRATION RIGHTS AGREEMENT
New York, New York
August 22, 2002
▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
▇▇▇▇▇▇ Industries, Inc., a corporation organized under the laws of the
State of Delaware (the "Company"), proposes to issue and sell to ▇▇▇▇▇▇ Brothers
Inc. (the "Initial Purchaser"), upon the terms set forth in a purchase
agreement, dated August 22, 2002 (the "Purchase Agreement"), $275,000,000
aggregate principal amount of its 5.375% Senior Notes due 2012 (the "Notes")
relating to the initial placement of the Notes (the "Initial Placement"). The
Notes will be unconditionally guaranteed (the "Guarantees" and together with the
Notes, the "Securities") on a senior basis by ▇▇▇▇▇▇ Industries Ltd., a Bermuda
company (the "Guarantor"). Concurrently with Initial Placement of the Notes,
▇▇▇▇▇▇ Holdings 1, ULC, an indirect, wholly-owned subsidiary of the Guarantor,
is offering an aggregate of $225,000,000 of its 4.875% Senior Notes due 2009,
guaranteed by each of the Guarantor and ▇▇▇▇▇▇ Industries, Inc., a Delaware
corporation, to Qualified Institutional Buyers under Rule 144A (the "Concurrent
Offering"). The consummation of the Initial Placement of the Notes and the
Concurrent Offering are not conditioned upon each other. To satisfy a condition
to the obligations of the Initial Purchaser under the Purchase Agreement, the
Company and the Guarantor agree with the Initial Purchaser for the benefit of
the holders from time to time of the Securities (including the Initial
Purchaser) and the New Securities (as defined herein) (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 same meaning as in Rule
501(b) of Regulation D of the Securities 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.
"Closing Date" shall mean the date on which the Securities are initially
issued.
"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, or such shorter
period as will terminate when all New Securities held by Exchanging Dealers or
Initial Purchaser have been sold pursuant thereto.
"Exchange Offer Registration Statement" shall mean a registration statement
of the Company and the Guarantor 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 the 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).
"Holder" shall have the meaning set forth in the preamble hereto.
"Indenture" shall mean the Indenture relating to the Securities, dated as
of August 22, 2002, among the Company, the Guarantor and Bank One, N.A., 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 7(d) hereof.
"Majority Holders" shall mean the Holders of a majority of the aggregate
principal amount of Notes and/or New Notes, 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.
"Memorandum" shall have the meaning set forth in the Purchase Agreement.
"New Notes" shall mean debt securities of the Company, guaranteed by the
Guarantor, identical in all material respects to the Notes (except that the cash
interest and interest rate step-up provisions and the transfer restrictions
shall be modified or eliminated, as appropriate) and to be issued under the
Indenture or the New Securities Indenture.
"New Securities" shall mean debt securities of the Company and the related
guarantees of the Guarantor, identical in all material respects to the
Securities (except that the cash interest and interest rate step-up provisions
and the transfer restrictions shall be modified or eliminated, as appropriate)
and to be issued under the Indenture or the New Securities Indenture.
"New Securities Indenture" shall mean an indenture among the Company, the
Guarantor and the New Securities Trustee, identical in all material respects to
the Indenture (except that the interest rate step-up provisions will be modified
or eliminated, as appropriate).
"New Securities Trustee" shall mean a bank or trust company reasonably
satisfactory to the Initial Purchaser, as trustee with respect to the New
Securities under the New Securities 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 Securities or the New Securities covered by such
Registration Statement, and all amendments and supplements thereto and all
material incorporated by reference therein.
2
"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 Securities that are not prohibited by
any law or policy of the Commission from participating in such offer, in
exchange for the Securities, a like aggregate principal amount of the New Notes
and Related Guarantees.
"Registration Statement" shall mean any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the 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.
"Related Guarantees" shall mean the guarantees of the Guarantor to be
issued under the Indenture or the New Securities Indenture in respect of New
Notes.
"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 and the Guarantor pursuant to the provisions of Section 3 hereof
which covers some or all of the Securities and/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.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission promulgated thereunder
and any successor act, rules and regulations.
"Trustee" shall mean the trustee with respect to the Securities and New
Securities under the Indenture.
"Underwriter" shall mean any underwriter of Securities or New Securities in
connection with an offering thereof under a Registration Statement.
2. Registered Exchange Offer.
(a) Except as set forth in Section 3 below, the Company and the Guarantor
shall prepare, at their cost, and, not later than 90 days following the Closing
Date (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 and the Guarantor
shall use their reasonable best efforts to cause the Exchange Offer Registration
Statement to become effective under the Act not later December 2, 2002.
(b) Upon the effectiveness of the Exchange Offer Registration Statement,
the Company and the Guarantor shall promptly commence the Registered Exchange
Offer.
(c) In connection with the Registered Exchange Offer, the Company and the
Guarantor shall:
(i) mail to each Holder a copy of the Prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter
of transmittal and related documents;
(ii) commence and use their reasonable best efforts to complete the
Registered Exchange Offer promptly, but no later than December 31, 2002,
and hold the Registered Exchange Offer open for not less than 20 Business
Days;
(iii) use their reasonable best efforts to keep the Exchange Offer
Registration Statement continuously effective under the Act, supplemented
and amended as required, under the Act to ensure
3
that it is available for sales of New Securities by Exchanging Dealers or
the Initial Purchaser 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, the New Securities Trustee or an Affiliate of either of
them;
(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 and the Guarantor are conducting the Registered Exchange Offer
in reliance on the position of the Commission in Exxon Capital Holdings
Corporation (pub. avail. May 13, 1988), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc. (pub.
avail. June 5, 1991); and (B) including a representation to the effect that
the Company and the Guarantor have 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 their
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 material respects with all applicable laws.
(d) As soon as practicable after the close of the Registered Exchange
Offer, the Company and the Guarantor shall:
(i) accept for exchange all Notes tendered and not validly withdrawn
pursuant to the Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation in accordance with
Section 5(r) all Notes so accepted for exchange; and
(iii) cause the Trustee or New Securities Trustee, as the case may be,
promptly to authenticate and deliver to each Holder of Securities a
principal amount of New Notes equal to the principal amount of the Notes 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
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 which 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 and the Guarantor that, at the time of the consummation
of the Registered Exchange Offer:
(i) any New Securities received by such Holder will be acquired in the
ordinary course of business;
(ii) such Holder will have no arrangement or understanding with any
Person to participate in the distribution of the Securities or the New
Securities within the meaning of the Act;
(iii) such Holder is not an Affiliate of the Company or any of the
Guarantor or if it is an Affiliate, such Holder will comply with the
registration and prospectus delivery requirements of the Act to the extent
applicable;
4
(iv) if such Holder is not a Broker-Dealer, that it is not engaged in,
and does not intend to engage in, the distribution of the New Securities;
and
(v) if such Holder is a Broker-Dealer, that it will receive New
Securities for its own account in exchange for Securities that were
acquired as a result of market-making activities or other trading
activities and that it will deliver a prospectus in connection with any
resale of such New Securities.
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; (ii) for any other reason the Exchange Offer
Registration Statement is not declared effective by December 2, 2002 or the
Registered Exchange Offer is not consummated by December 31, 2002; (iii) the
Initial Purchaser determines upon advice of its counsel that a Shelf
Registration Statement must be filed in connection with any public offering or
sale of Securities that are not eligible to be exchanged for New Securities in
the Registered Exchange Offer and that are held by it following consummation of
the Registered Exchange Offer; or (iv) any Holder (other than the Initial
Purchaser) is not eligible to participate in the Registered Exchange Offer or
does not receive freely tradeable New Securities in the Registered Exchange
Offer other than by reason of such Holder being an Affiliate of the Company (it
being understood that the requirement that a participating Broker-Dealer deliver
the prospectus contained in the Exchange Offer Registration Statement in
connection with sales of New Securities shall not result in such New Securities
being not "freely tradeable"), the Company and the Guarantor shall effect a
Shelf Registration Statement in accordance with subsection (b) below.
(b) If required pursuant to subsection (a) above,
(i) the Company and the Guarantor, at their cost, shall as promptly as
practicable, but in no event later than 90 days after such obligation to
file arises, file with the Commission and thereafter shall use their
reasonable best efforts to cause to be declared effective under the Act as
soon as practicable, but in no event later than December 31, 2002, a Shelf
Registration Statement relating to the offer and sale of the 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 the Initial Purchaser) shall be entitled to have the
Securities or New Securities 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 the Initial
Purchaser in exchange for Securities constituting any portion of an unsold
allotment, the Company and the Guarantor 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 their 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 and the Guarantor shall use their 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 the
earlier of (A) the time when all of the Securities or New Securities, as
applicable, covered by the Shelf Registration Statement can be sold
pursuant to Rule 144 without limitation under clauses (c), (e), (f) and (h)
of Rule 144, (B) the date on which all the Securities or New Securities, as
applicable, covered by the Shelf Registration Statement have been sold
pursuant to the Shelf Registration Statement, and (C) the date two years
from the date the Shelf Registration Statement is declared effective by the
Commission (in any such case, such period being called the "Shelf
Registration Period"). The Company and the Guarantor shall be deemed not to
have used their reasonable best efforts to keep the Shelf Registration
Statement effective during the requisite period if they voluntarily
5
take any action that would result in Holders of Securities or New
Securities covered thereby not being able to offer and sell such Securities
or New Securities during that period, unless (A) such action is required by
applicable law; or (B) such action is taken by the Company and the
Guarantor in good faith and for valid business reasons (not including
avoidance of the Company's and the Guarantor' obligations hereunder),
including, but not limited to, the acquisition or divestiture of assets, so
long as the Company and the Guarantor promptly thereafter comply with the
requirements of Section 5(k) hereof, if applicable.
(iii) the Company and the Guarantor 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 Securities Act and the rules and
regulations of the Commission; 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. Special Interest. If (a) on or prior to December 31, 2002, the
Registered Exchange Offer has not been consummated, or (b) after either the
Exchange Offer Registration Statement or the Shelf Registration Statement has
been declared effective, such Registration Statement thereafter ceases to be
effective or usable in connection with resales of Securities or New Securities
in accordance with and during the periods specified in this Agreement (each such
event referred to in clauses (a) and (b), a ("Registration Default"), then, as
liquidated damages, interest ("Special Interest") will accrue on the principal
amount of the Securities and the New Securities (in addition to the stated
interest on the Securities and New Securities) from and including the date on
which any such Registration Default shall occur to but excluding the date on
which all Registration Defaults have been cured. Special Interest will accrue at
a rate of 0.25% per annum.
All obligations of the Company and the Guarantor set forth in the preceding
paragraph that are outstanding with respect to any Security at the time such
Security is exchanged for a New Security shall survive until such time as all
such obligations with respect to such Security have been satisfied in full.
5. 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 and the Guarantor shall:
(i) furnish to the Initial Purchaser, 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 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 their reasonable best efforts to reflect in each such document, when
so filed with the Commission, such comments as the Initial Purchaser
reasonably proposes;
(ii) include the information set forth in Annex A hereto on the
front page of the Prospectus contained 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;
(iii) if requested by the 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
6
(iv) in the case of a Shelf Registration Statement, include the
names of the Holders that propose to sell Securities or New Securities,
as applicable, pursuant to the Shelf Registration Statement as selling
security holders.
(b) The Company and the Guarantor 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 respects with the Act and the rules and regulations
thereunder; 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 not misleading.
(c) The Company and the Guarantor shall advise the Initial Purchaser,
the Holders of Securities or New Securities covered by any Shelf
Registration Statement and any Exchanging Dealer under any Exchange Offer
Registration Statement that has provided in writing to the Company and the
Guarantor a telephone or facsimile number and address for notices, and, if
requested by the Initial Purchaser 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 and the Guarantor 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 and the Guarantor of any
notification with respect to the suspension of the qualification of the
Securities or New 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 and the Guarantor shall use their reasonable best
efforts to obtain the withdrawal of any order suspending the effectiveness
of any Registration Statement or the qualification of the Securities or New
Securities therein for sale in any jurisdiction at the earliest possible
time.
(e) The Company and the Guarantor shall furnish to each Holder of
Securities or New Securities covered by any Shelf Registration Statement,
without charge, at least one copy of such Shelf Registration Statement and
any post-effective amendment thereto, and, if the Holder so requests in
writing, all material incorporated therein by reference and all exhibits
thereto (including exhibits incorporated by reference therein).
(f) The Company and the Guarantor shall, during the Shelf Registration
Period, deliver to each Holder of Securities or New Securities 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 and the Guarantor consent to the
use of the Prospectus or any amendment or
7
supplement thereto by each of the selling Holders of Securities or New
Securities in connection with the offering and sale of the Securities or
New Securities covered by the Prospectus, or any amendment or supplement
thereto, included in the Shelf Registration Statement.
(g) The Company and the Guarantor shall furnish to each Exchanging
Dealer or the Initial Purchaser 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 and the Guarantor shall promptly deliver to the
Initial Purchaser, each Exchanging Dealer 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 and the Guarantor consent to the
use of the Prospectus or any amendment or supplement thereto by the 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
Securities or New Securities pursuant to any Registration Statement, the
Company and the Guarantor shall arrange, if necessary, for the
qualification of the Securities or the New Securities for sale under the
laws of such jurisdictions as any Holder shall reasonably request and will
maintain such qualification in effect so long as required; provided that in
no event shall the Company and the Guarantor be obligated to qualify to do
business in any jurisdiction where they are not then so qualified or to
take any action that would subject them to service of process in suits or
taxation, 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 they are not then so subject.
(j) The Company and the Guarantor shall cooperate with the Holders of
Securities and New 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, the Company and the Guarantor 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 the Initial Purchaser
or Exchanging Dealers, 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 5(c) to and including the date
when the Initial Purchaser, the Holders of the Securities or New Securities
and any known Exchanging Dealer shall have received such amended or
supplemented Prospectus pursuant to this Section.
(l) Not later than the effective date of any Registration Statement,
the Company and the Guarantor shall provide a CUSIP number for the
Securities or the New Securities, as the case may be, registered under such
Registration Statement and provide the Trustee with printed certificates
for such Securities or New Securities, in a form eligible for deposit with
The Depository Trust Company.
(m) The Company and the Guarantor shall comply with all applicable
rules and regulations of the Commission and shall make generally available
to their security holders as soon as practicable
8
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 and the Guarantor shall cause the Indenture or the New
Securities Indenture, as the case may be, to be qualified under the Trust
Indenture Act in a timely manner.
(o) The Company and the Guarantor may require each Holder of Securities
or New Securities to be sold pursuant to any Shelf Registration Statement to
furnish to the Company and the Guarantor such information regarding the Holder
and the distribution of such Securities as the Company and the Guarantor may
from time to time reasonably require for inclusion in such Registration
Statement. The Company and the Guarantor may exclude from such Shelf
Registration Statement the Securities or New Securities of any Holder that
fails to furnish such information within a reasonable time after receiving
such request.
(p) In the case of any Shelf Registration Statement, the Company and
the Guarantor 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 or New 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).
(q) In the case of any Shelf Registration Statement, the Company and
the Guarantor shall use their reasonable best efforts to:
(i) make reasonably available for inspection by the Holders of
Securities or New 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) make such representations and warranties to the Holders of
Securities or New 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 the Guarantor
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
9
which financial statements and financial data are, or are required to
be, included in the Registration Statement), addressed to each selling
Holder of Securities or New Securities registered thereunder and the
Underwriters, 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 5(k) and with any
customary conditions contained in the underwriting agreement or other
agreement entered into by the Company and the Guarantor.
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.
(r) If a Registered Exchange Offer is to be consummated, upon delivery
of the Securities by Holders to the Company (or to such other Person as
directed by the Company) in exchange for the New Securities, the Company
shall ▇▇▇▇, 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.
(s) If any Broker-Dealer shall underwrite any Securities or New
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 New 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 or New Securities;
(ii) indemnifying any such qualified independent underwriter to the
extent of the indemnification of Underwriters provided in Section 7
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.
(t) The Company and the Guarantor shall use their reasonable best
efforts to take all other steps necessary to effect the registration of the
Securities or the New Securities, as the case may be, covered by a
Registration Statement.
6. Registration Expenses. The Company and the Guarantor shall bear all
expenses incurred in connection with the performance of their obligations under
Sections 2, 3 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, but excluding fees and expenses of counsel
to the Initial Purchaser or the Holders, all agency fees and commissions,
underwriting discounts and commissions and transfer taxes attributable to the
sale or disposition of Securities by a Holder.
10
7. Indemnification and Contribution.
(a) The Company and the Guarantor agree, jointly and severally, to
indemnify and hold harmless (i) the Initial Purchaser, (ii) each Holder of
Securities or New Securities, as the case may be, covered by any Registration
Statement (including with respect to any Prospectus delivery as contemplated in
Section 5(h) hereof, each Exchanging Dealer), (iii) each Person, if any, who
controls (within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act) any of the foregoing (any of the Persons
referred to in this clause (iii) being hereinafter referred to as a "controlling
person"), and (iv) the respective officers, directors, partners, employees,
representatives and agents of the Initial Purchaser, the Holders (including
predecessor Holders) or any controlling person (any person referred to in clause
(i), (ii), (iii) or (iv) may hereinafter be referred to as an "Indemnified
Holder"), from and against any and all losses, claims, damages, and liabilities
(including, without limitation, reasonable legal fees and other expenses
incurred in connection with any suit, action or proceeding or any claim
asserted) (collectively "Losses") caused by any untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement or
Prospectus, or any amendment or supplement thereto or any related preliminary
prospectus, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with information
relating to any Indemnified Holder furnished to the Company or the Guarantor in
writing by such Indemnified Holder expressly for use in therein; provided,
however, that neither the Company nor the Guarantor shall be liable to any
Indemnified Holder under the indemnity agreement of this paragraph with respect
to any preliminary prospectus to the extent that any such loss, claim, damage,
liability, judgment or expense of such Indemnified Holder results from the fact
that such Indemnified Holder sold Securities or New Securities under a
Registration Statement to a Person as to whom it shall be established that there
was not sent or given, at or prior to the written confirmation of such sale, a
copy of the Prospectus (or of the preliminary prospectus as then amended or
supplemented if the Company shall have furnished such Indemnified Holder with
such amendment or supplement thereto on a timely basis), in any case where such
delivery is required by applicable law and the loss, claim, damage, liability or
expense of such Indemnified Holder results from an untrue statement or omission
of a material fact contained in the preliminary prospectus which was corrected
in the Prospectus (or in the preliminary prospectus as then amended or
supplemented if the Company or the Guarantor shall have furnished such
Indemnified Holder with such amendment or supplement thereto, as the case may
be, on a timely basis). The Company or the Guarantor shall notify such
Indemnified Holder promptly of the institution, threat or assertion of any
claim, proceeding (including any governmental investigation) or litigation in
connection with the matters addressed by this Agreement which involves the
Company or the Guarantor or such Indemnified Holder.
(b) Each Holder agrees, severally and not jointly, to indemnify and hold
harmless the Company and the Guarantor, each of their respective directors and
officers and each Person who controls the Company or the Guarantor within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act to the same extent as the foregoing indemnity from the Company and the
Guarantor to each Holder, but only with reference to such losses, claims,
damages or liabilities which are caused by any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with information relating to a Holder furnished to the Company or the Guarantor
in writing by such Holder expressly for use in any Registration Statement or
Prospectus, or any amendment or supplement thereto or any related preliminary
prospectus. This indemnity agreement will be in addition to any liability which
any such Holder may otherwise have.
(c) The Initial Purchaser agrees to indemnify and hold harmless the Company
and the Guarantor, each of their respective directors and officers and each
Person who controls the Company or the Guarantor within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act to the same
extent as the foregoing indemnity from the Company and the Guarantor to the
Initial Purchaser, but only with reference to such losses, claims, damages or
liabilities which are caused by any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
11
information relating to the Initial Purchaser furnished to the Company or the
Guarantor in writing by the Initial Purchaser expressly for use in any
Registration Statement or Prospectus, or any amendment or supplement thereto or
any related preliminary prospectus. This indemnity agreement will be in addition
to any liability which the Initial Purchaser may otherwise have.
(d) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any Person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such Person (the "Indemnified Person") shall promptly
notify the Person or Persons against whom such indemnity may be sought (each an
"Indemnifying Person") in writing, and such Indemnifying Person, upon request of
the Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others entitled
to indemnification pursuant to this Section 7 that the Indemnifying Person may
designate in such proceeding and shall pay the fees and expenses of such counsel
related to such proceeding. In any such proceeding, the Indemnifying Person
shall be able to participate in such proceeding and, to the extent that it so
elects, jointly with any other similarly situated Indemnifying Person, to assume
the defense thereof, subject to the right of the Indemnified Person to be
separately represented and to direct its own defense if the named parties to any
such proceeding include both the Indemnified Person and the Indemnifying Person
and the Indemnified Person has been advised by counsel that representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) such Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary or (ii) the named parties in any such proceeding
(including any impleaded parties) include an Indemnifying Person and an
Indemnified Person and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them. It
is understood that an Indemnifying Person shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for the Indemnified
Holders shall be designated in writing by the Holders of the majority in amount
of Securities and New Securities offered in the Prospectus to which the claim
relates, any such separate firm for the Company, its directors, respective
officers and such control Persons of the Company shall be designated in writing
by the Company, and any such separate firm for the Guarantor, its directors,
respective officers and such control Persons of the Guarantor shall be
designated in writing by the Guarantor. The Indemnifying Person shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, such Indemnifying Person agrees to indemnify any Indemnified
Person from and against any loss or liability by reason of such settlement or
judgment. No Indemnifying Person shall, without the prior written consent of the
Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party and indemnity could have been sought hereunder by such Indemnified Person,
unless such settlement includes an unconditional release of such Indemnified
Person from all liability on claims that are the subject matter of such
proceeding.
(e) If the indemnification provided for in the first and second paragraphs
of this Section 7 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Indemnifying Person on the one hand and the Indemnified
Person on the other hand pursuant to the Purchase Agreement or from the offering
of the Securities or New Securities pursuant to any Registration Statement which
resulted in such losses, claims, damages or liabilities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Indemnifying
Person on the one hand and the Indemnified Person on the other in
12
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Guarantor
on the one hand and any Indemnified Holder on the other shall be deemed to be in
the same proportion as the total net proceeds from the Initial Placement
received by the Company and the Guarantor bear to the total net proceeds
received by such Indemnified Holder from sales of Securities or New Securities
giving rise to such obligations. The relative fault of the parties shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or the Guarantor
or such Indemnified Holder and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
(f) Each of the Company, the Guarantor and the Initial Purchaser agrees
that it would not be just and equitable if contribution pursuant to this Section
7 were determined by pro rata allocation or by any other method of allocation
that does not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an Indemnified
Person as a result of the losses, claims, damages and liabilities referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses incurred by such
Indemnified Person in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 7, in no event shall
any Holder of any Securities or New Securities be required to contribute any
amount in excess of the amount by which the net proceeds received by such Holder
from the sale of the Security or New Security pursuant to a Registration
Statement exceeds the amount of damages which such Holder would have otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
(g) The remedies provided for in this Section 7 are not exclusive and shall
not limit any rights or remedies that may otherwise be available to any
indemnified party at law or in equity.
(h) The indemnity and contribution agreements contained in this Section 7
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any Holder or any Person controlling any Holder or by or on behalf of the
Company or the Guarantor, their respective officers or directors or any other
Person controlling any of the Company or the Guarantor and (iii) acceptance of
and payment for any of the Securities or New Securities.
8. Underwritten Registrations.
(a) If any of the 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 and shall be
reasonably satisfactory to the Company and the Guarantor.
(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 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.
9. 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.
10. 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 (or, after the consummation of any Registered Exchange Offer in
accordance with
13
Section 2 hereof, of New Securities); provided, however, that, with respect to
any matter that directly or indirectly affects the rights of the Initial
Purchaser hereunder, the Company shall obtain the written consent of the Initial
Purchaser. 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.
11. 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc;
(b) if to the Initial Purchaser, initially at its address set forth in
the Purchase Agreement; and
(c) if to the Company or the Guarantor, initially at its or their
address set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have been duly given
when received.
The Initial Purchaser or the Company by notice to the other parties may
designate additional or different addresses for subsequent notices or
communications.
12. 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 or 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.
13. 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.
14. Headings. The headings used herein are for convenience only and shall
not affect the construction hereof.
15. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
16. Severability. If 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.
17. 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.
[Remainder Of This Page Is Intentionally Left Blank]
14
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
Agreement and your acceptance shall represent a binding agreement among the
Company, the Guarantor and you.
Very truly yours,
▇▇▇▇▇▇ INDUSTRIES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President and Chief
Operating Officer
▇▇▇▇▇▇ INDUSTRIES LTD.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President and
Corporate Secretary
Signed in St. ▇▇▇▇▇▇▇, Barbados
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
▇▇▇▇▇▇ BROTHERS INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Managing Director
15
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 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 New Securities received in exchange 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 one
year after the Expiration Date, or such shorter period as will terminate when
all New Securities held by Exchanging Dealers or Initial Purchaser have been
sold pursuant hereto, it will make this Prospectus available to any
Broker-Dealer for use in connection with any such resale. Furthermore, any
broker-dealer that acquired any of the old notes directly from us:
- may not rely on the applicable interpretation of the staff of the SEC's
position contained in Exxon Capital Holdings Corporation (pub. avail. May
13, 1988), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc. (pub. avail. June 5, 1991), ), as
interpreted in the Commission's letter to Shearman & Sterling dated July
2, 1993 and similar no-action letters; and
- must also be named as a selling noteholder in connection with the
registration and prospectus delivery requirements of the Securities Act
relating to any resale transaction.
See "Plan of Distribution."
16
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 comply with the registration and
prospectus delivery requirements of the Securities Act in connection with any
offer, resale or other transfer of such New Securities, including information
with respect to any selling holder required by the Securities Act in connection
with the resale of the New Securities. See "Plan of Distribution."
17
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. We have agreed that,
starting on the Expiration Date and ending on the close of business 180-days
after the Expiration Date or such shorter period as will terminate when all New
Securities held by Exchanging Dealers or Initial Purchaser have been sold
pursuant hereto, we will make this Prospectus, as amended or supplemented,
available to any Broker-Dealer for use in connection with any such resale. In
addition, until , 200 , all dealers effecting transactions in the New
Securities may be required to deliver a prospectus.
We 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 Securities 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 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.
Furthermore, any broker-dealer that acquired any of the old notes directly
from us:
- may not rely on the applicable interpretation of the staff of the SEC's
position contained in Exxon Capital Holdings Corporation (pub. avail. May
13, 1988), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc. (pub. avail. June 5, 1991),), as
interpreted in the Commission's letter to Shearman & Sterling dated July
2, 1993 and similar no-action letters; and
- must also be named as a selling noteholder in connection with the
registration and prospectus delivery requirements of the Securities Act
relating to any resale transaction.
For a period of 180-days after the Expiration Date or such shorter period
as will terminate when all New Securities held by Exchanging Dealers or Initial
Purchaser have been sold pursuant hereto, we 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. We
have 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 Securities Act.
[If applicable, add information required by Regulation S-K Items 507 and/or
508.]
18
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 acquired the New Securities in the ordinary course of its business, it is not
engaged in, and does not intend to engage in, a distribution of New Securities
and it has no arrangements or understandings with any Person to participate in a
distribution of the New Securities. If the undersigned is a Broker-Dealer that
will receive New Securities for its own account in exchange for Securities, 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 Securities Act.
19