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Exhibit 4.2
EXECUTION COPY
Euro200,000,000 12-3/8% SENIOR NOTES DUE 2008
REGISTRATION RIGHTS AGREEMENT
Dated as of 24 January 2001
by and among
NTL COMMUNICATIONS CORP.
and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INTERNATIONAL LIMITED
▇.▇. ▇▇▇▇▇▇ SECURITIES LTD.
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
BANK OF AMERICA INTERNATIONAL LIMITED
BNP PARIBAS SECURITIES CORP.
CIBC WORLD MARKETS PLC
THE ROYAL BANK OF SCOTLAND PLC
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This Registration Rights Agreement (this "AGREEMENT") is made and entered into
as of January 24, 2001 by and among NTL Communications Corp., a Delaware
corporation (the "COMPANY"), and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited,
▇.▇. ▇▇▇▇▇▇ Securities Ltd., ▇▇▇▇▇▇▇ ▇▇▇▇▇ International, Bank of America
International Limited, BNP Paribas Securities Corp., CIBC World Markets plc and
The Royal Bank of Scotland plc (each an "INITIAL PURCHASER" and collectively,
the "INITIAL PURCHASERS"). The Company proposes to issue and sell to the Initial
Purchasers (the "INITIAL PLACEMENT") <128>200,000,000 12-3/8% Senior Notes Due
2008 (the "NOTES"). As an inducement to the Initial Purchasers to enter into the
purchase agreement, dated as of January 17, 2001 (the "PURCHASE AGREEMENT"), and
in satisfaction of a condition to the Initial Purchasers' obligations
thereunder, the Company agrees with the Initial Purchasers, (i) for the benefit
of the Initial Purchasers and (ii) for the benefit of the holders from time to
time of the Notes whose names appear in the register maintained by the Registrar
in accordance with the provisions of the Indenture (as defined in Section 1
hereof) (including the Initial Purchasers), 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 U.S. 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.
"CLEARSTREAM" means Clearstream Banking, Luxembourg, societe anonyme.
"CLOSING DATE" has the meaning set forth in the Purchase Agreement.
"COMMISSION" means the U.S. Securities and Exchange Commission.
"CONSUMMATE" means the occurrence of (i) the filing and effectiveness under the
Act of the Exchange Offer Registration Statement relating to the Exchange Notes
to be issued in the Registered Exchange Offer, (ii) the maintenance of such
Registration Statement continuously effective and the keeping of the Registered
Exchange Offer open for a period not less than the minimum period required
pursuant to Section 3(c)(ii) hereof, and (iii) the delivery by the Company to
the Registrar under the Indenture or the Exchange Notes Indenture, as the case
may be, of Exchange Notes in the same aggregate principal amount as the
aggregate principal amount of Notes that were tendered by Holders thereof and
accepted for exchange pursuant to the Registered Exchange Offer.
"DTC" means The Depository Trust Company.
"EUROCLEAR" means the Euroclear System.
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"EXCHANGE ACT" means the U.S. Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"EXCHANGE NOTES INDENTURE" means an indenture between the Company and the
Exchange Notes Trustee, identical in all material respects to the Indenture
(except that paragraph 2 of, and the transfer restrictions on, the Notes will be
eliminated).
"EXCHANGE NOTES" means debt securities of the Company identical in all material
respects to the Notes (except that paragraph 2 of, and the transfer restrictions
on, the Notes will be eliminated) to be issued under the Indenture or the
Exchange Notes Indenture.
"EXCHANGE NOTES TRUSTEE" means a bank or trust company reasonably satisfactory
to the Initial Purchasers, as trustee with respect to the Exchange Notes under
the Exchange Notes Indenture.
"EXCHANGE OFFER REGISTRATION PERIOD" means a period expiring upon the earliest
to occur of (i) the one year period following the Consummation of the Registered
Exchange Offer, (ii) the date on which, in the opinion of counsel to the
Company, all of the Transfer Restricted Securities then held by the Holders may
be sold by such Holders in the public U.S. securities markets in the absence of
a registration statement covering such sales and (iii) the date on which there
ceases to be outstanding any Transfer Restricted Securities.
"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, and in each case, including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
"EXCHANGING DEALER" means any Holder (which may include the Initial Purchasers)
that is a broker-dealer, electing to exchange Transfer Restricted Securities,
acquired for its own account as a result of market-making activities or other
trading activities, for Exchange Notes.
"HOLDER" has the meaning set forth in Section 2 hereof.
"INDENTURE" means the indenture, dated as of January 24, 2001, between the
Company and the Trustee, relating to the Notes, 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.
"LOSSES" has the meaning set forth in Section 8(d) hereof.
"MAJORITY HOLDERS" means the Holders of a majority of the aggregate principal
amount at maturity of securities registered under a Registration Statement.
"MANAGING UNDERWRITERS" means the investment banker or investment bankers and
manager or managers that shall administer an underwritten offering.
"NOTES" has the meaning set forth in the preamble hereto.
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"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 Transfer Restricted Securities or the Exchange Notes, 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 Notes, a like principal amount at
maturity of the Exchange Notes.
"REGISTRATION STATEMENT" means any Exchange Offer Registration Statement or any
Shelf Registration Statement, which is filed pursuant to the provisions hereof,
and in each case, including the Prospectus contained therein, all amendments and
supplements thereto, including post-effective amendments, and all exhibits
thereto and all material incorporated by reference therein.
"SHELF REGISTRATION" means a registration effected pursuant to Section 4 hereof.
"SHELF REGISTRATION PERIOD" has the meaning set forth in Section 4(b) hereof.
"SHELF REGISTRATION STATEMENT" means a "shelf" registration statement of the
Company pursuant to the provisions of Section 4 hereof that covers some or all
of the Transfer Restricted 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, and in each case, including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"SUPPLEMENT DELAY PERIOD" means any period commencing on the date of receipt by
a Holder of Transfer Restricted Securities or Exchange Notes of any notice from
the Company of the existence of any fact or event of the kind described in
Section 5(b)(2) hereof and ending on the date of receipt by such Holder of an
amended or supplemented Registration Statement or Prospectus, as contemplated by
Section 5(j) hereof, or the receipt by such Holder of written notice from the
Company (the "ADVICE") that the use of the Prospectus may be resumed, and the
receipt of copies of any additional or supplemental filings that are
incorporated by reference in the Prospectus.
"TRANSFER RESTRICTED SECURITIES" means each Note until (i) the date on which
such Note has been exchanged by a person other than a broker-dealer for an
Exchange Note in the Registered Exchange Offer, (ii) following the exchange by
an Exchanging Dealer in the Registered Exchange Offer of a Note for an Exchange
Note, the date on which such Exchange Note is sold to a purchaser who receives
from such broker-dealer on or prior to the date of such sale a copy of the
prospectus contained in the Exchange Offer Registration Statement, (iii) the
date on which such Note has been effectively registered under the Act and
disposed of in accordance with the Shelf Registration Statement (iv) the date on
which such Note is distributed to the public pursuant to Rule 144 under the Act
(or any similar provision then in
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effect) or is saleable pursuant to Rule 144(k) under the Act or (v) the date
upon which such Note ceases to be outstanding.
"TRUSTEE" means the trustee with respect to the Notes under the Indenture.
"UNDERWRITER" means any underwriter of Notes in connection with an offering
thereof under a Shelf Registration Statement.
2. HOLDERS
A person is deemed to be a holder of Transfer Restricted Securities (each, a
"HOLDER") whenever such person becomes the registered holder of such Notes under
the Indenture and includes broker-dealers that hold Transfer Restricted
Securities (i) as a result of market making activities and other trading
activities and (ii) which were acquired directly from the Company or an
Affiliate.
3. REGISTERED EXCHANGE OFFER
(a) The Company shall prepare and, on or prior to 120 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 on or prior to 180 days after
the Closing Date. The Company shall use its best efforts to Consummate the
Registered Exchange Offer on or prior to 220 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 Transfer Restricted Securities for Exchange Notes (assuming
that such Holder is not an Affiliate of the Company within the meaning of
the Act, acquires the Exchange Notes in the ordinary course of such
Holder's business and has no arrangements with any person to participate in
the distribution of the Exchange Notes) to trade such Exchange Notes 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;
(ii) keep the Registered Exchange Offer open for not less than 30 days and
not more than 45 days after the date notice thereof is mailed to the
Holders (or longer if required by applicable law);
(iii) utilize the services of one or more depositaries or exchange agents
(which, in either case, may be the Trustee) for the Registered
Exchange Offer with an address (A) in the Borough of Manhattan, The
City of New York and (B) if the
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Notes are then listed on the Luxembourg Stock Exchange and the rules
of the Luxembourg Stock Exchange so require, Luxembourg; and
(iv) comply in all material 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 Transfer Restricted Securities tendered and
not validly withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation all Transfer Restricted
Securities so accepted for exchange; and
(iii) cause the Trustee or the Exchange Notes Trustee, as the case may be,
promptly to authenticate and deliver to each Holder of Transfer
Restricted Securities, Exchange Notes of a like principal amount at
maturity to the Transfer Restricted 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
Notes received by such Exchanging Dealer pursuant to the Registered
Exchange Offer in exchange for Transfer Restricted Securities acquired for
its own account as a result of market-making activities or other trading
activities. Accordingly, the Company shall, subject to comment by the
Commission staff:
(i) include the information set forth in (A) Annex A hereto on the cover
of the Exchange Offer Registration Statement, (B) Annex B hereto in
the forepart of the Exchange Offer Registration Statement in a section
setting forth details of the Registered Exchange Offer, (C) Annex C
hereto in the "Plan of Distribution" section of the Prospectus
contained in the Exchange Offer Registration Statement and (D) 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 (subject to the existence of a Supplement Delay
Period) under the Act during the Exchange Offer Registration Period
for delivery by Exchanging Dealers in connection with sales of
Exchange Notes received pursuant to the Registered Exchange Offer, as
contemplated by Section 5(g) 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 Transfer Restricted Securities constituting any portion of an
unsold allotment of Notes, at the written request of such Initial
Purchaser, the Company shall issue and deliver to such Initial Purchaser or
the party purchasing Transfer Restricted Securities registered under a
Shelf Registration Statement as contemplated by Section 4 hereof from such
Initial
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Purchaser, in exchange for such Transfer Restricted Securities, a like
principal amount at maturity of Exchange Notes. Exchange Notes issued in
exchange for Transfer Restricted Securities constituting any portion of an
unsold allotment of Notes that are not registered under a Shelf
Registration Statement as contemplated by Section 4 hereof shall bear a
legend as to restrictions on transfer. The Company shall seek to cause the
CUSIP Service Bureau to issue the same CUSIP/ISIN/Common Code number for
such Exchange Notes as for Exchange Notes issued pursuant to the Registered
Exchange Offer.
4. SHELF REGISTRATION
If, (i) the Company is not required to file the Exchange Offer Registration
Statement nor permitted to Consummate the Registered Exchange Offer because the
Registered Exchange Offer is not permitted by applicable law or Commission
policy or (ii) any Holder of Transfer Restricted Securities notifies the Company
in writing within 10 business days of the filing and effectiveness under the Act
of the Exchange Offer Registration Statement that (A) it is prohibited by law or
Commission policy from participating in the Registered Exchange Offer, (B) it
may not resell the Exchange Notes acquired by it in the Registered Exchange
Offer to the public without delivering a prospectus, and the prospectus
contained in the Exchange Offer Registration Statement is not appropriate or
available for such resales or (C) it is a broker-dealer and owns Notes acquired
directly from the Company or an Affiliate (it being understood that, for
purposes of this Section 4, (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 Notes
acquired in exchange for such Notes shall result in such Exchange Notes being
not "freely tradeable" but (y) the requirement that an Exchanging Dealer deliver
a Prospectus in connection with sales of Exchange Notes acquired in the
Registered Exchange Offer in exchange for Notes acquired as a result of
market-making activities or other trading activities shall not result in such
Exchange Notes being not "freely tradeable"), the following provisions shall
apply:
(a) The Company shall as promptly as practicable, file with the Commission and
thereafter shall use its best efforts to cause to be declared effective
under the Act on or prior to 220 days after the date of original issuance
of the Notes, a Shelf Registration Statement relating to the offer and sale
of the Transfer Restricted Securities 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, however, that with
respect to Exchange Notes received by an Initial Purchaser in exchange for
Transfer Restricted Securities constituting any portion of an unsold
allotment of Notes, 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
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statement is declared effective by the Commission (or until one year after
such effective date if such Shelf Registration Statement is filed at the
request of an Initial Purchaser) or such shorter period that will terminate
when (i) all the Transfer Restricted Securities covered by the Shelf
Registration Statement have been sold pursuant to the Shelf Registration
Statement, (ii) the date on which, in the opinion of counsel to the
Company, all of the Transfer Restricted Securities then held by the Holders
may be sold by such Holders in the public United States securities markets
in the absence of a registration statement covering such sales or (iii) the
date on which there ceases to be outstanding any Transfer Restricted
Securities (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 Transfer Restricted Securities covered thereby not being able to
offer and sell such securities during that period, unless (i) such action
is required by applicable law, (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(j) hereof, if applicable or (iii) such action is
taken because of any fact or circumstance giving rise to a Supplement Delay
Period.
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 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.
(b) (1) The Company shall advise the Initial Purchasers and, in the case of a
Shelf Registration Statement, the Holders of Transfer Restricted
Securities covered thereby, and, if requested by the Initial
Purchasers or any such Holder, confirm such advice in writing 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.
(2) The Company shall advise the Initial Purchasers and, in the case of a
Shelf Registration Statement, the Holders of Transfer Restricted
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
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or facsimile number and address for notices, and, if requested by the
Initial Purchasers or any such Holder or Exchanging Dealer, confirm
such advice in writing:
(i) of any request by the Commission for amendments or supplements to
the Registration Statement or the Prospectus included therein or
for additional information;
(ii) of the initiation by the Commission of proceedings relating to a
stop order suspending the effectiveness of the Registration
Statement;
(iii) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement;
(iv) of the receipt by the Company of any notification with respect to
the suspension of the qualification of the securities included
therein for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and
(v) of the existence of any fact and the happening of any event
(including, without limitation, pending negotiations relating to,
or the consummation of, a transaction or the occurrence of any
event which would require additional disclosure of material
non-public information by the Company in the Shelf Registration
Statement as to which the Company has a bona fide business
purpose for preserving confidential or which renders the Company
unable to comply with Commission requirements) that, in the
opinion of the Company, makes untrue any statement of a material
fact made in its Shelf Registration Statement, the Prospectus or
any amendment or supplement thereto or any document incorporated
by reference therein or 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.
Such advice may be accompanied by an instruction to suspend the use of
the Prospectus until the requisite changes have been made.
(c) 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.
(d) The Company shall use its best efforts to furnish to each selling Holder
included within the coverage of any Shelf Registration Statement who so
requests in writing and who has provided to the Company an address for
notices, without charge, at least one conformed copy of such Shelf
Registration Statement and any post-effective amendment thereto, including
financial statements and, if the Holder so requests in writing, all
exhibits and schedules (including those incorporated by reference).
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(e) The Company shall, during the Shelf Registration Period, deliver to each
Holder of Transfer Restricted Securities covered by any Shelf Registration
Statement and who has provided to the Company an address for notices,
without charge, as many copies of the Prospectus (including each
preliminary Prospectus) contained in such Shelf Registration Statement and
any amendment or supplement thereto as such Holder may reasonably request;
subject to any notice by the Company in accordance with Section 6(b)
hereof, the Company consents to the use of the Prospectus or any amendment
or supplement thereto by each of the selling Holders for the purposes of
offering and resale of the Transfer Restricted Securities covered by the
Prospectus in accordance with the applicable regulations promulgated under
the Act.
(f) The Company shall furnish to each Exchanging Dealer, which so requests in
writing, without charge, at least one copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto, including
financial statements, and, if the Exchanging Dealer so requests in writing,
any documents incorporated by reference therein and all exhibits and
schedules (including those incorporated by reference).
(g) 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 Notes received by it pursuant to the Registered Exchange Offer;
the Company consents to the use of the Prospectus or any amendment or
supplement thereto by any such Exchanging Dealer for the purposes
contemplated by the Act or the applicable regulations promulgated under the
Act.
(h) Prior to the Registered Exchange Offer or any offering of Transfer
Restricted Securities pursuant to any Registration Statement, the Company
shall register or qualify or cooperate with the Holders of Transfer
Restricted Securities named therein and their respective counsel in
connection with the registration or qualification of such Transfer
Restricted Securities for offer and sale under the securities or blue sky
laws of such jurisdictions of the United States as any such Holders
reasonably request in writing not later than the date that is five business
days prior to the date upon which this Agreement specifies that the
Registration Statement shall become effective; 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.
(i) The Company shall endeavor to cooperate with the Holders of Transfer
Restricted Securities to facilitate the timely preparation and delivery of
certificates representing Transfer Restricted 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
in writing at least two business days prior to sales of securities pursuant
to such Registration Statement.
(j) Upon the occurrence of any event contemplated by paragraph (b)(2)(v)
hereof, the Company shall promptly prepare a post-effective amendment to
any Registration
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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 Transfer Restricted Securities covered thereby, 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; provided that in
the event of a material business transaction (including, without
limitation, pending negotiations relating to such a transaction) which
would, in the opinion of counsel to the Company, require disclosure by the
Company in the Shelf Registration Statement of material non-public
information for which the Company has a bona fide business purpose for not
disclosing, then for so long as such circumstances exist, the Company shall
not be required to prepare and file a supplement or post-effective
amendment hereunder.
(k) Not later than the effective date of any such Registration Statement
hereunder, the Company shall cause to be provided a CUSIP/ISIN number for
the Notes or Exchange Notes, as the case may be, registered under such
Registration Statement, and provide the applicable trustee with printed
certificates for such Notes or Exchange Notes, in a form eligible for
deposit with DTC, Euroclear or Clearstream, as the case may be.
(l) 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 in a regular filing on Form 10-Q or 10-K an earnings
statement satisfying the provisions of Rule 158 (which need not be audited)
for the twelve-month period commencing after effectiveness of the Shelf
Registration Statement.
(m) The Company shall cause the Indenture or the Exchange Notes Indenture, as
the case may be, to be qualified under the Trust Indenture Act in a timely
manner.
(n) The Company may require each Holder of Transfer Restricted Securities,
which are to be sold pursuant to any Shelf Registration Statement, to
furnish to the Company within 20 business days after written request for
such information has been made by the Company, such information regarding
the Holder and the distribution of such securities as the Company may from
time to time reasonably require for inclusion in such Registration
Statement and such other information as may be necessary or advisable in
the reasonable opinion of the Company and its counsel, in connection with
such Shelf Registration Statement. No Holder of Transfer Restricted
Securities shall be entitled to use the Prospectus unless and until such
Holder shall have furnished the information required by this Section 5(n)
and all such information required to be disclosed in order to make the
information previously furnished to the Company by such Holder not
materially misleading.
(o) 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; provided, however, that the Company shall not
be required to take any action pursuant to this Section 5(o) that would, in
the opinion of counsel for the Company, violate applicable law or to
include
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information the disclosure of which at the time would have an adverse
effect on the business or operations of the Company and/or its
subsidiaries, as determined in good faith by the Company.
(p) In the case of any Shelf Registration Statement, the Company shall enter
into such agreements (including underwriting agreements) and take all other
reasonably appropriate actions in order to expedite or facilitate the
registration or the disposition of the Transfer Restricted 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 8 (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 8 from Holders of Notes to the Company.
(q) In the case of any Shelf Registration Statement, the Company shall:
(i) make reasonably available for inspection by representatives of the
Holders of Transfer Restricted Securities to be registered
thereunder, the Managing Underwriter participating in any disposition
pursuant to such Registration Statement, and any attorney, accountant
or other agent retained by the Holders or any such Managing
Underwriter, at the office where normally kept during normal business
hours, all financial and other records, pertinent corporate documents
and properties of the Company and its subsidiaries, and cause the
Company's officers, directors and employees to supply all relevant
information reasonably requested by the Holders or any Managing
Underwriter, attorney, accountant or other agent in connection with
any such Registration Statement as is customary for similar due
diligence examinations; provided, however, that the foregoing
inspection and information gathering shall be coordinated by the
Managing Underwriters, if any, or by one counsel designated by the
Holders and that such persons shall first agree in writing with the
Company 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 person, 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;
(ii) make such representations and warranties to the Holders of Transfer
Restricted Securities registered thereunder and the underwriters, if
any, in form, substance and scope as are customarily made by issuers
to underwriters in underwritten offerings and covering matters
including, but not limited to, those set forth in the Purchase
Agreement;
(iii) 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;
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(iv) obtain "cold comfort" letters (or, in the case of any person that does
not satisfy the conditions for receipt of a "cold comfort" letter
specified in Statement on Auditing Standards No. 72, an "agreed-upon
procedures letter") 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 where reasonably practicable to
each selling Holder of Transfer Restricted 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
(v) 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(j) 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 (ii), (iii), (iv) and (v) of
this Section 5(q) shall, if reasonably requested by the Majority Holder or
the Majority Underwriters, 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 to the extent
required thereunder.
(r) The Company may offer securities of the Company other than the Notes or the
Exchange Notes under the Shelf Registration Statement, except where such
offer would conflict with the terms of the Purchase Agreement.
6. HOLDERS' AGREEMENTS
Each Holder of Transfer Restricted Securities and Exchange Notes, by the
acquisition of such Transfer Restricted Securities or Exchange Notes, as the
case may be, agrees:
(a) To furnish the information required to be furnished pursuant to Section
5(n) hereof within the time period set forth therein.
(b) That upon receipt of a notice of the commencement of a Supplement Delay
Period, it will keep the fact of such notice confidential, forthwith
discontinue disposition of its Transfer Restricted Securities or Exchange
Notes, as the case may be, pursuant to the Registration Statement, and will
not deliver any Prospectus forming a part thereof until receipt of the
amended or supplemented Registration Statement or Prospectus, as
applicable, as contemplated by Section 5(j) hereof, or until receipt of the
Advice. If a Supplement Delay Period should occur, the Exchange Offer
Registration Period or the Shelf Registration Period, as applicable, shall
be extended by the number of days of which the Supplement Delay Period is
comprised; provided that the Shelf Registration Period shall not be
extended if the Company has received an opinion of counsel (which counsel,
if different from counsel to the Company referred to in Section 6(a) and
(b) of the Purchase Agreement, shall be reasonably satisfactory to the
Majority
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Holders of the Transfer Restricted Securities named in the Shelf
Registration Period) to the effect that the Transfer Restricted Securities
can be freely tradeable without the continued effectiveness of the Shelf
Registration Statement.
(c) If so directed by the Company in a notice of the commencement of a
Supplement Delay Period, each Holder of Transfer Restricted Securities or
Exchange Notes, as the case may be, will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in
such Holder's possession, of the Prospectus covering the Transfer
Restricted Securities or Exchange Notes, as the case may be.
(d) Sales of such Transfer Restricted Securities pursuant to a Registration
Statement shall only be made in the manner set forth in such currently
effective Registration Statement.
7. REGISTRATION EXPENSES
The Company shall bear all expenses incurred in connection with the performance
of its obligations under Sections 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, and, in the case of any
Exchange Offer Registration Statement, will reimburse the Initial Purchasers for
the reasonable fees and disbursements of counsel acting in connection therewith.
Notwithstanding the foregoing or anything in this Agreement to the contrary,
each Holder shall pay all underwriting discounts and commission of any
underwriters with respect to any Transfer Restricted Securities sold by it.
8. INDEMNIFICATION AND CONTRIBUTION
(a) In connection with Registration Statement, the Company agrees to indemnify
and hold harmless each Holder of Transfer Restricted Securities covered
thereby (including each Initial Purchaser and, with respect to any
Prospectus delivery as contemplated in Section 5(g) hereof, each Exchanging
Dealer), the directors, officers, employees, partners, representatives and
agents of each such Holder and each person who controls any such Holder
within the meaning of either Section 15 of the Act or Section 20 of 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 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 (i) 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
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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 or by the Managing Underwriters specifically for
inclusion therein and (ii) the Company will not be liable to any
indemnified party under this indemnity agreement with respect to the
Registration Statement or Prospectus to the extent that any such loss,
claim, damage or liability of such indemnified party results solely from an
untrue statement of a material fact contained in, or the omission of a
material fact from, the Registration Statement or Prospectus, which untrue
statement or omission was corrected in an amended or supplemented
Registration Statement or Prospectus, if the person alleging such loss,
claim, damage or liability was not sent or given, at or prior to the
written confirmation of such sale, a copy of the amended or supplemented
Registration Statement or Prospectus if the Company had previously
furnished copies thereof to such indemnified party and if delivery of a
prospectus is required by the Act and was not so made. 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 8(d), any underwriters of Notes 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 Purchasers and the selling Holders
provided in this Section 8(a) and shall, if requested by any Holder, enter
into an underwriting agreement reflecting such agreement, as provided in
Section 5(p) hereof.
(b) Each Holder of Transfer Restricted Securities or Exchange Notes covered by
a Registration Statement (including each Initial Purchaser and, with
respect to any Prospectus delivery as contemplated in Section 5(g) 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. In no event shall any Holder, its directors,
officers or any person who controls such Holder be liable or responsible
for any amount in excess of the amount by which the total amount received
by such Holder with respect to its sale of Transfer Restricted Securities
pursuant to a Registration Statement exceeds (i) the amount paid by such
Holder for such Transfer Restricted Securities and (ii) the amount of any
damages that such Holder, its directors, officers or any person who
controls such Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission.
(c) Promptly after receipt by an indemnified party under this Section 8 or
notice of the commencement of any action, the indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure to so
-14-
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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 separate counsel
(including 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 reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties that are
different from or additional to those available to the indemnifying party,
(iii) the indemnifying party did not employ 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 authorized the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party
shall 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 for 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 and does not include a
statement as to or an admission of fault, culpability or a failure to act,
by or on behalf of the indemnified party.
(d) In the event that the indemnity provided in paragraph (a) or (b) of this
Section 8 is unavailable 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 that resulted in such
Losses; provided, however, that in no case shall any Initial Purchaser or
any subsequent Holder of any Note or Exchange Note be responsible, in the
aggregate, for any amount in excess of the purchase discount on the initial
offering price of such Notes or commission applicable to such Note, or in
the
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case of an Exchange Note, applicable to the Note which was exchangeable
into such Exchange Note, 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 that 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 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) and (y) the total amount of
additional interest that the Company was not required to pay as a result of
registering the securities covered by the Registration Statement that
resulted in such Losses. Benefits received by the Initial Purchasers shall
be deemed to be equal to the total purchase discounts and commissions in
connection with the Initial Placement, and benefits received by any other
Holders shall be deemed to be equal to the value of receiving Notes or
Exchange Notes, 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 that 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 that 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 guilty of such fraudulent misrepresentation. For purposes of this
Section 8, 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 8 shall 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 8 hereof, and will survive the sale by a Holder of Transfer
Restricted Securities or Exchange Notes.
9. RULE 144A AND RULE 144
The Company agrees with each Holder, for so long as any Transfer Restricted
Securities remain outstanding and during any period in which the Company (i) is
not subject to Section 13 or 15(d) of the Exchange Act, to make available, upon
request of any Holder, to such
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Holder or beneficial owner of Transfer Restricted Securities in connection with
any sale thereof and any prospective purchaser of such Transfer Restricted
Securities designated by such Holder or beneficial owner, the information
required by Rule 144A(d)(4) under the Act in order to permit resales of such
Transfer Restricted Securities pursuant to Rule 144A, and (ii) is subject to
Section 13 or 15 (d) of the Exchange Act, to make all filings required thereby
in a timely manner in order to permit resales of such Transfer Restricted
Securities pursuant to Rule 144.
10. 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
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 Notes (or, after the consummation of any
Registered Exchange Offer in accordance with Section 3 hereof, of Exchange
Notes); provided, however, 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 depart from the provisions hereof, with
respect to a matter, which relates exclusively to the rights of Holders
whose securities are being sold pursuant to a Registration Statement and
does not directly or indirectly affect the rights of other Holders, may be
given by the Majority Holders, determined on the basis of Notes 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:
(i) if to a Holder, at the most current address given by such holder to
the Company in accordance with the provisions of this Section 10(c),
which address initially is, with respect to each Holder, the address
of such Holder maintained by the registrar under the Indenture or the
Exchange Note Indenture, as the case may be, with a copy in like
manner to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited;
(ii) if to the Initial Purchasers, initially at the respective addresses
set forth in the Purchase Agreement; and
(iii) if to the Company, initially at its address set forth in the Purchase
Agreement.
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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 hereto,
including, without the need for an express assignment or any consent by the
Company thereto, subsequent Holders of Notes and/or Exchange Notes. The
Company hereby agrees to extend the benefits of this Agreement to any
Holder of Notes and/or Exchange Notes and any such Holder may specifically
enforce the provisions of this Agreement as if an original party hereto.
(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 (without reference to the
conflict of law rules thereof).
(h) Severability. In the event that any one or 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 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) Notes Held by the Company, etc. Whenever the consent or approval of Holders
of a specified percentage of principal amount at maturity of Notes or
Exchange Notes is required hereunder, Notes or Exchange Notes, as
applicable, held by the Company or its Affiliates (other than subsequent
Holders of Notes or Exchange Notes if such subsequent Holders are deemed to
be Affiliates solely by reason of their holdings of such Notes or Exchange
Notes) shall not be counted in determining whether such consent or approval
was given by the Holders of such required percentage.
(j) Entire Agreement. This Agreement is intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto with
respect to the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or
referred to herein with respect to the registration rights granted with
respect to the Transfer Restricted Securities. This Agreement supersedes
all prior agreements and understandings between the parties with respect to
such subject matter.
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(Signature page follows)
-19-
21
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
NTL COMMUNICATIONS CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
General Counsel and Secretary
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INTERNATIONAL LIMITED
▇.▇. ▇▇▇▇▇▇ SECURITIES LTD.
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
BANK OF AMERICA INTERNATIONAL LIMITED
BNP PARIBAS SECURITIES CORP.
CIBC WORLD MARKETS PLC
THE ROYAL BANK OF SCOTLAND PLC
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INTERNATIONAL LIMITED
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Executive Director
Registration Rights signature page
22
ANNEX A
Each broker-dealer that receives Exchange Notes for its own account pursuant to
the Registered Exchange Offer must acknowledge that it will deliver a prospectus
in connection with any resale of such Exchange Notes. The Letter of Transmittal
states that by so acknowledging and by delivering a prospectus, a broker-dealer
will not be deemed to admit that it is an "underwriter" within the meaning of
the Act. This Prospectus, as it may be amended or supplemented from time to
time, may be used by a broker-dealer in connection with resales of Exchange
Notes received in exchange for Notes where such Exchange Notes 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 180th day following
the Expiration Date, it will make this Prospectus available to any broker-dealer
for use in connection with any such resale. See "Plan of Distribution."
Annex A
23
ANNEX B
Each broker-dealer that receives Exchange Notes for its own account in exchange
for Notes, where such Notes 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 Notes.
See "Plan of Distribution."
Annex B
24
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Notes for its own account pursuant to
the Registered Exchange Offer must acknowledge that it will deliver a prospectus
in connection with any resale of such Exchange Notes. The 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 Notes received in exchange for Notes where
such Notes were acquired as a result of market-making activities or other
trading activities. The Company has agreed that, starting on the Expiration Date
and ending on the close of business on the 180th day following the Expiration
Date, it will make this Prospectus, as amended or supplemented, available to any
broker-dealer for use in connection with any such resale.
The Company will not receive any proceeds from any sale of Exchange Notes by
broker-dealers. Exchange Notes 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 Notes or by 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 at negotiated prices. Any such resale may be
made directly to purchaser 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 Notes. Any broker-
dealer that resells Exchange Notes that were received by it for its own account
pursuant to the Registered Exchange Offer and any broker or dealer that
participates in a distribution of such Exchange Notes may be deemed to be an
"underwriter" within the meaning of the Act and any profit of any such resale of
Exchange Notes and any commissions or concessions received by any such persons
may be deemed to be underwriting compensation under the Act. The Letter of
Transmittal states that by acknowledging that it will deliver and by delivering
a prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Act.
For a period of 180 days after the Expiration Date, the Company will promptly
send additional copies of this Prospectus and any amendment or supplement to
this Prospectus to any broker-dealer that requests such documents in the Letter
of Transmittal. The Company has agreed to pay all expenses incident to the
Registered Exchange Offer (including the expenses of one counsel for the holders
of the Notes) other than commissions or concessions of any brokers or dealers
and will indemnify the holders of the Notes (including any broker-dealers)
against certain liabilities, including liabilities under the Act.
[Add information required by Regulation S-K Items 507 and/or 508.]
Annex C
25
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
Notes. If the undersigned is a broker-dealer that will receive Exchange Notes
for its own account in exchange for Notes that were acquired as a result of
market making activities or other trading activities, it acknowledges that it
will deliver a prospectus in connection with any resale of such Exchange Notes;
however, by so acknowledging and by delivering a prospectus, the undersigned
will not be deemed to admit that it is an "underwriter" within the meaning of
the Act.
Annex D