Exhibit 4.2
-------------------------------------------------------
REGISTRATION RIGHTS AGREEMENT
Dated as of December 2, 1996
by and among
OMNIPOINT CORPORATION
as Issuer
and
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ SECURITIES CORPORATION,
▇▇▇▇▇▇▇, SACHS & CO.,
BA SECURITIES, INC.
and
▇▇▇▇▇▇▇▇▇▇ SECURITIES
as Initial Purchasers
-------------------------------------------------------
1
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement"), is made and entered
into as of December 2, 1996, among OMNIPOINT CORPORATION, a Delaware corporation
(the "Issuer"), and ▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇ SECURITIES CORPORATION,
▇▇▇▇▇▇▇, SACHS & CO., BA SECURITIES, INC. and ▇▇▇▇▇▇▇▇▇▇ SECURITIES (together,
the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement, dated November
21, 1996, among the Issuer and the Initial Purchasers (the "Purchase
Agreement"), which provides for the sale by the Issuer to the Initial Purchasers
of $200,000,000 aggregate principal amount of 11 5/8% Series A Senior Notes due
2006 (the "Notes"). In order to induce the Initial Purchasers to enter into the
Purchase Agreement, the Issuer has agreed to provide to the Initial Purchasers
and their respective direct and indirect transferees, among other things, the
registration rights for the Notes set forth in this Agreement. The execution of
this Agreement is a condition to the closing of the transactions contemplated by
the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions
-----------
As used in this Agreement, the following terms shall have the following
meanings (and, unless otherwise indicated, capitalized terms used herein without
definition shall have the respective meanings ascribed to them by the Purchase
Agreement):
Applicable Period: See Section 2(b) hereof.
-----------------
Business Day: Any day except a Saturday, Sunday or other day in the City
------------
of New York, or in the city of the corporate trust office of the Trustee, on
which banks are authorized to close.
Closing Date: The Closing Date as defined in the Purchase Agreement.
------------
1
Effectiveness Period: See Section 3(a) hereof.
--------------------
Effectiveness Target Date: The 90th day following the Closing Date.
-------------------------
Exchange Act: The Securities Exchange Act of 1934, as amended, and the
------------
rules and regulations of the SEC promulgated thereunder.
Exchange Notes: See Section 2(a) hereof.
--------------
Exchange Offer: See Section 2(a) hereof.
--------------
Exchange Offer Registration Statement: See Section 2(a) hereof.
-------------------------------------
Filing Date: The 45th day after the Closing Date.
-----------
Holder: Any holder of Transfer Restricted Notes.
------
Indemnified Party: See Section 7 hereof.
-----------------
Indemnified Person: See Section 7 hereof.
------------------
Indemnifying Person: See Section 7 hereof.
-------------------
Indenture: The Indenture, dated as of December 2, 1996, by and between the
---------
Issuer and Marine Midland Bank, as Trustee, pursuant to which the Notes are
being issued, as amended or supplemented from time to time in accordance with
the terms thereof.
Initial Purchasers: See the introductory paragraph to this Agreement.
------------------
Inspectors: See Section 3(m) hereof.
----------
Issuer: See the introductory paragraph of this Agreement.
------
Liquidated Damages: See Section 4(a) hereof.
------------------
2
Notes: See the introductory paragraphs to this Agreement.
-----
Participating Broker-Dealer: See Section 2(b) hereof.
---------------------------
Person or person: An individual, trustee, corporation, partnership, joint
------ ------
stock company, trust, unincorporated association, union, business association,
limited liability company, limited liability partnership, firm or other legal
entity.
Prospectus: The prospectus included in any Registration Statement
----------
(including, without limitation, any prospectus subject to completion and a
prospectus that includes any information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A
promulgated under the Securities Act), as amended or supplemented by any
prospectus supplement, with respect to the terms of the offering of any portion
of the Exchange Notes and/or the Transfer Restricted Notes (as applicable),
covered by such Registration Statement, and all other amendments and supplements
to the Prospectus, including post-effective amendments, and all material
incorporated by reference or deemed to be incorporated by reference in such
Prospectus.
Records: See Section 4(m) hereof.
-------
Registration Default: See Section 4(a) hereof.
--------------------
Registration Statement: Any registration statement of the Issuer,
----------------------
including, but not limited to, the Exchange Offer Registration Statement, Shelf
Registration or a registration statement of the Issuer that otherwise covers any
of the Transfer Restricted Notes pursuant to the provisions of this Agreement,
including the Prospectus, amendments and supplements to such registration
statement, including post-effective amendments, all exhibits, and all material
incorporated by reference or deemed to be incorporated by reference in such
registration statement.
Rule 144: Rule 144 promulgated pursuant to the Securities Act, as
--------
currently in effect, as such rule may be amended from time to time, or any
similar rule or regulation hereafter adopted by the SEC.
3
Rule 144A: Rule 144A promulgated pursuant to the Securities Act, as
---------
currently in effect, as such rule may be amended from time to time, or any
similar rule or regulation hereafter adopted by the SEC.
Rule 415: Rule 415 promulgated pursuant to the Securities Act, as such
--------
rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
SEC: The Securities and Exchange Commission.
---
Securities Act: The Securities Act of 1933, as amended, and the rules and
--------------
regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2(c) hereof.
------------
Shelf Registration: See Section 3(a) hereof.
------------------
TIA: The Trust Indenture Act of 1939, as amended, and the rules and
---
regulations of the SEC promulgated thereunder.
Transfer Restricted Notes: The Notes upon original issuance thereof and at
-------------------------
all times subsequent thereto, until (i) a Registration Statement covering such
Notes has been declared effective by the SEC and such Notes have been disposed
of in accordance with such effective Registration Statement, (ii) such Notes are
sold in compliance with Rule 144 or (iii) such Notes cease to be outstanding.
Trustee: The trustee under the Indenture and, if existent, the trustee
-------
under any indenture governing the Exchange Notes.
Underwritten registration or underwritten offering: A registration in
--------------------------------------------------
which securities of the Issuer are sold to an underwriter for reoffering to the
public.
2. Exchange Offer
--------------
(a) The Issuer agrees to file with the SEC as soon as practicable after the
Closing Date, but in no event later than the Filing Date, an offer to exchange
(the "Exchange Offer"), any and all of the Transfer Restricted Notes for a like
4
aggregate principal amount of debt securities of the Issuer (the "Exchange
Notes"), which Exchange Notes will be (i) substantially identical in all
material respects to the Notes, except that such Exchange Notes will not contain
terms with respect to transfer restrictions, (ii) entitled to the benefits of
the Indenture or a trust indenture which is identical to the Indenture (other
than such changes to the Indenture or any such identical trust indenture as are
necessary to comply with any requirements of the SEC to effect or maintain the
qualification thereof under the TIA), and which, in either case, has been
qualified under the TIA, and (iii) registered pursuant to an effective
Registration Statement in compliance with the Securities Act. The Exchange
Offer will be registered pursuant to the Securities Act on an appropriate form
of Registration Statement (the "Exchange Offer Registration Statement"), and
will comply with all applicable tender offer rules and regulations promulgated
pursuant to the Exchange Act and shall be duly registered or qualified pursuant
to all applicable state securities or Blue Sky laws. The Exchange Offer shall
not be subject to any condition, other than that the Exchange Offer does not
violate any applicable law, policy or interpretation of the staff of the SEC.
No securities shall be included in the Exchange Offer Registration Statement
other than the Exchange Notes. The Issuer agrees to use its best efforts to (x)
cause the Exchange Offer Registration Statement to become effective pursuant to
the Securities Act on or before the Effectiveness Target Date; and (y) keep the
Exchange Offer open for not less than 20 Business Days (or such longer period
required by applicable law), after the date that the notice of the Exchange
Offer referred to below is mailed to Holders. Each Holder who participates in
the Exchange Offer will be required to represent that any Exchange Notes
received by it will be acquired in the ordinary course of its business, that at
the time of the consummation of the Exchange Offer such Holder will have no
arrangement or understanding with any person to participate in the distribution
of the Exchange Notes, and that such Holder is not an "affiliate" of the Issuer
within the meaning of Rule 405 of the Securities Act (or that if it is such an
affiliate, it will comply with the registration and prospectus delivery
requirements of the Securities Act to the extent applicable). Each Holder that
is not a Participating Broker-Dealer will be required to represent that it is
not engaged in, and does not intend to engage in, the distribution of the
Exchange Notes. Each Holder that (i) is a Participating Broker-Dealer and (ii)
will receive Exchange Notes for its own account in exchange for the Transfer
Restricted Notes that it acquired as the result of market-making or other
trading activities will be required to acknowledge that it will deliver a
Prospectus as required by law in connection with any resale of such Exchange
Notes. Upon consummation of the Ex-
5
change Offer in accordance with this Agreement, the Issuer shall have no further
obligation to register Transfer Restricted Notes pursuant to Section 3 of this
Agreement.
(b) The Issuer shall include within the Prospectus contained in the
Exchange Offer Registration Statement a section entitled "Plan of Distribution,"
acceptable to the Initial Purchasers, which shall contain a summary statement of
the positions taken or policies made by the staff of the SEC with respect to the
potential "underwriter" status of any broker-dealer that is the beneficial owner
(as defined in Rule 13d-3 under the Exchange Act), of Exchange Notes received by
such broker-dealer in the Exchange Offer (a "Participating Broker-Dealer").
Such "Plan of Distribution" section shall also allow the use of the Prospectus
by all persons subject to the prospectus delivery requirements of the Securities
Act, including all Participating Broker-Dealers, and include a statement
describing the means by which Participating Broker-Dealers may resell the
Exchange Notes.
The Issuer shall use its best efforts to keep the Exchange Offer
Registration Statement effective and to amend and supplement the Prospectus
contained therein, in order to permit such Prospectus to be lawfully delivered
by all persons subject to the prospectus delivery requirements of the Securities
Act for such period of time as such persons must comply with such requirements
in order to resell the Exchange Notes; provided that such period shall not
--------
exceed 180 days after consummation of the Exchange Offer (or such longer period
if extended pursuant to the last paragraph of Section 5 hereof) (the "Applicable
Period").
In connection with the Exchange Offer, the Issuer shall:
(i) mail as promptly as practicable 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) utilize the services of a depositary for the Exchange Offer
with an address in the Borough of Manhattan, The City of New York; and
(iii) permit Holders to withdraw tendered Notes at any time prior to
the close of business, New York time, on the last Business Day on which the
Exchange Offer shall remain open by sending to the institution and at
6
the address (located in the Borough of Manhattan, The City of New York)
specified in the notice, a telegram, telex, facsimile transmission or
letter setting forth the name of such Holder, the principal amount of
Transfer Restricted Securities delivered for exchange and a statement that
such Holder is withdrawing his or her election to have such Transfer
Restricted Securities exchanged.
As soon as practicable after the close of the Exchange Offer, the Issuer
shall:
(i) accept for exchange all Notes tendered and not validly
withdrawn pursuant to the Exchange Offer;
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Notes so accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly to each
Holder of Notes, Exchange Notes equal in principal amount to the Notes of
such Holder so accepted for exchange.
(c) If (1) prior to the consummation of the Exchange Offer, applicable
interpretations of the staff of the SEC do not permit the Issuer to effect the
Exchange Offer, or (2) if for any other reason the Exchange Offer is not
consummated within 135 days of the Closing Date, then the Issuer shall promptly
deliver to the Holders and the Trustee written notice thereof (the "Shelf
Notice"), and the Issuer shall file a Registration Statement pursuant to Section
3 hereof. Following the delivery of a Shelf Notice to the Holders of Transfer
Restricted Notes, the Issuer shall not have any further obligation to conduct
the Exchange Offer pursuant to this Section 2, provided, that the Issuer shall
--------
have the right, nonetheless, to proceed to consummate the Exchange Offer
notwithstanding its obligations pursuant to this Section 2(c) (and, upon such
consummation, its obligation to consummate a Shelf Registration shall
terminate).
3. Shelf Registration
------------------
If the Issuer is required to deliver a Shelf Notice as contemplated by
Section 2(c) hereof, then:
7
(a) Shelf Registration. The Issuer shall prepare and file with the SEC, as
------------------
promptly as practicable following the Shelf Notice, a Registration Statement for
an offering to be made on a continuous basis pursuant to Rule 415 covering all
of the Transfer Restricted Notes (the "Shelf Registration"). The Shelf
Registration shall be on Form S-1 or another appropriate form permitting
registration of the Transfer Restricted Notes for resale by the Holders in the
manner or manners reasonably designated by them (including, without limitation,
one or more underwritten offerings). The Issuer shall not permit any securities
other than the Transfer Restricted Notes to be included in the Shelf
Registration. The Issuer shall use its best efforts, as described in Section
5(b) hereof, to cause the Shelf Registration to be declared effective pursuant
to the Securities Act as promptly as practicable after the filing of such Shelf
Registration and to keep the Shelf Registration continuously effective under the
Securities Act until the earlier of (i) the date which is 36 months after the
Closing Date, (ii) the date that all Transfer Restricted Notes covered by the
Shelf Registration have been sold in the manner set forth and as contemplated in
the Shelf Registration or (iii) the date that there ceases to be outstanding any
Transfer Restricted Notes (the "Effectiveness Period").
(b) Supplements and Amendments. The Issuer shall use its best efforts to
--------------------------
keep the Shelf Registration continuously effective by supplementing and amending
the Shelf Registration if required by the rules, regulations or instructions
applicable to the registration form used for such Shelf Registration, if
required by the Securities Act, or if reasonably requested by the Holders of a
majority in aggregate principal amount of the Transfer Restricted Notes covered
by such Registration Statement or by any underwriter of such Transfer Restricted
Notes.
4. Liquidated Damages
------------------
(a) The Issuer and the Initial Purchasers agree that the Holders of
Transfer Restricted Notes will suffer damages if the Issuer fails to fulfill its
obligations pursuant to Section 2 or Section 3 hereof and that it would not be
possible to ascertain the extent of such damages. Accordingly, in the event of
such failure by the Issuer to fulfill such obligations, the Issuer hereby agrees
to pay liquidated damages ("Liquidated Damages") to each Holder of Transfer
Restricted Notes under the circumstances and to the extent set forth below:
8
(i) if neither the Exchange Offer Registration Statement nor the
Shelf Registration has been filed with the SEC on or prior to the Filing
Date; or
(ii) if neither the Exchange Offer Registration Statement nor the
Shelf Registration is declared effective by the SEC on or prior to the
Effectiveness Target Date; or
(iii) if an Exchange Offer Registration Statement is declared
effective by the SEC, and on or prior to 45 days following the earlier of
(A) the effectiveness thereof or (B) the Effectiveness Target Date, the
Issuer has not exchanged Exchange Notes for all Notes validly tendered in
accordance with the terms of the Exchange Offer; or
(iv) the Shelf Registration has been declared effective by the SEC
and such Shelf Registration ceases to be effective or usable at any time
during the Effectiveness Period, without being succeeded on the same day
immediately by a post-effective amendment to such Shelf Registration that
cures such failure and that is itself immediately declared effective on the
same day;
(any of the foregoing, a "Registration Default"), then, with respect
to the first 90-day period following such Registration Default, the Issuer shall
pay to each Holder of Transfer Restricted Notes Liquidated Damages in an amount
equal to $0.05 per week per $1,000 principal amount of Transfer Restricted Notes
held by such Holder for each week or portion thereof that the Registration
Default continues. The amount of such Liquidated Damages will increase by an
additional $0.05 per week per $1,000 principal amount of Transfer Restricted
Notes with respect to each subsequent 90-day period until all Registration
Defaults have been cured; provided, however, that Liquidated Damages shall not
-------- -------
at any time exceed $0.50 per week per $1,000 principal amount of Transfer
Restricted Notes (regardless of whether one or more than one Registration
Defaults has occurred and is continuing). Following the cure of all
Registration Defaults relating to any Transfer Restricted Notes, the accrual of
Liquidated Damages with respect to such Transfer Restricted Notes will cease. A
Registration Default under clause (i) above shall be cured on the date that
either the Exchange Offer Registration Statement or the Shelf Registration is
filed with the SEC; a Registration Default under
9
clause (ii) above shall be cured on the date that either the Exchange Offer
Registration Statement or the Shelf Registration is declared effective by the
SEC; a Registration Default under clause (iii) above shall be cured on the
earlier of the date (A) the Exchange Offer is consummated or (B) a Shelf
Registration is declared effective; and a Registration Default under clause (iv)
above shall be cured on the earlier of (A) the date that the post-effective
amendment curing the deficiency in the Shelf Registration is declared effective
or (B) the Effectiveness Period expires.
(b) The Issuer shall notify the Trustee within one Business Day after each
and every date on which a Registration Default first occurs. Liquidated Damages
shall be paid by the Issuer to the Holders by wire transfer of immediately
available funds to the accounts specified by them or by mailing checks to their
respective addresses as such addresses appear in the Security Register if no
such accounts have been specified on or before the semi-annual interest payment
date provided in the Indenture and on each payment date provided in the
Indenture including, without limitation, whether upon redemption, maturity (by
acceleration or otherwise), purchase upon a Change of Control or purchase upon a
sale of assets. Each obligation to pay Liquidated Damages shall be deemed to
commence accruing on the date of the applicable Registration Default and to
cease accruing when all Registration Defaults have been cured. In no event
shall the Issuer pay Liquidated Damages in excess of the applicable maximum
weekly amount set forth above, regardless of whether one or multiple
Registration Defaults exist.
(c) The parties hereto agree that the Liquidated Damages provided for in
this Section 4 constitute a reasonable estimate of the damages that will be
suffered by Holders by reason of the failure to file the Exchange Offer
Registration Statement or the Shelf Registration Statement, the failure of the
Exchange Offer Registration Statement or the Shelf Registration Statement to be
declared effective, the failure to consummate the Exchange offer or the failure
of the Shelf Registration Statement to remain effective, as the case may be, in
accordance with this Agreement.
5. Registration Procedures
-----------------------
In connection with the registration of any Exchange Notes or Transfer
Restricted Notes pursuant to Sections 2 or 3 hereof, the Issuer shall effect
such registration to permit the sale of such Exchange Notes or Transfer
Restricted Notes
10
(as applicable), in accordance with the intended method or methods of
disposition thereof, and pursuant thereto the Issuer shall:
(a) prepare and file with the SEC a Registration Statement or Registration
Statements as prescribed by Section 2 or Section 3 hereof, and use its best
efforts to cause such Registration Statement to become effective and remain
effective as provided herein; provided that, if (1) such filing is pursuant to
--------
Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Notes during the Applicable Period, before filing any
Registration Statement or Prospectus or any amendments or supplements thereto,
the Issuer shall furnish to and afford the Holders of the Transfer Restricted
Notes and each such Participating Broker-Dealer, as the case may be, covered by
such Registration Statement, their counsel and the managing underwriters, if
any, a reasonable opportunity to review copies of all such documents (including
copies of any documents to be incorporated by reference therein and all exhibits
thereto), proposed to be filed (at least 3 Business Days prior to such filing,
or such later date as is reasonable under the circumstances). The Issuer shall
not file any Registration Statement or Prospectus or any amendments or
supplements thereto in respect of which the Holders, pursuant to this Agreement,
must be afforded an opportunity to review prior to the filing of such document,
if the Holders of a majority in aggregate principal amount of the Transfer
Restricted Notes covered by such Registration Statement, or such Participating
Broker-Dealer, as the case may be, their counsel, or the managing underwriters,
if any, shall reasonably object on a timely basis (except that documents filed
as exhibits that are incorporated by reference or deemed to be incorporated by
reference shall not be subject to such objections);
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Shelf Registration or Exchange Offer Registration Statement,
as the case may be, as may be necessary to keep such Registration Statement
continuously effective for the Effectiveness Period or the Applicable Period, as
the case may be, or such shorter period as will terminate when all Transfer
Restricted Notes covered by such Registration Statement have been sold; cause
the related Prospectus to be supplemented by any required prospectus supplement,
and as so supplemented to be filed pursuant to Rule 424 (or any similar
provisions then in force), under the Securities Act; and comply with the
provisions of the Securities
11
Act, the Exchange Act and the rules and regulations of the SEC promulgated
thereunder with respect to the disposition of all securities covered by such
Registration Statement, as so amended, or in such Prospectus, as so
supplemented, and with respect to the subsequent resale of any Notes being sold
by a Participating Broker-Dealer covered by any such Prospectus; the Issuer
shall be deemed not to have used its best efforts to keep a Registration
Statement effective during the Applicable Period if it voluntarily takes any
action that would result in selling Holders of the Transfer Restricted Notes
covered thereby or Participating Broker-Dealers seeking to sell Exchange Notes
not being able to sell such Transfer Restricted Notes or such Exchange Notes
during that period, unless (i) such action is required by applicable law, or
(ii) such action is taken by it in good faith and for valid business reasons
(not including avoidance of its obligations hereunder), including the
acquisition or divestiture of assets;
(c) if (1) a Shelf Registration is filed pursuant to Section 3 hereof, or
(2) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period, notify the selling Holders of Transfer Restricted Notes,
or each known Participating Broker-Dealer, as the case may be, their counsel and
the managing underwriters, if any, promptly and confirm such notice in writing,
(i) when a Prospectus, any prospectus supplement or post-effective amendment has
been filed, and, with respect to a Registration Statement or any post-effective
amendment, when the same has become effective (including in such notice a
written statement that any Holder may, upon request, obtain, without charge, one
conformed copy of such Registration Statement or post-effective amendment
including financial statements and schedules, documents incorporated or deemed
to be incorporated by reference and exhibits), (ii) of the issuance by the SEC
of any stop order suspending the effectiveness of a Registration Statement or of
any order preventing or suspending the use of any preliminary prospectus or the
initiation of any proceedings for that purpose, (iii) if at any time when a
Prospectus is required by the Securities Act to be delivered in connection with
sales of the Transfer Restricted Notes the representations and warranties of the
Issuer contained in any agreement (including any underwriting agreement),
contemplated by Section 5(l) hereof cease to be true and correct, (iv) of the
receipt by the Issuer of any notification with respect to the suspension of the
qualification or exemption from qualification of a Registration Statement or any
of the Transfer Restricted Notes or the
12
Exchange Notes to be sold by any Participating Broker-Dealer for offer or sale
in any jurisdiction, or the initiation of any proceeding for such purpose, (v)
of the happening of any event or any information becoming known that makes any
statement made in such Registration Statement or related Prospectus or any
document incorporated or deemed to be incorporated therein by reference untrue
in any material respect or that requires the making of any changes in such
Registration Statement, Prospectus or documents so that, in the case of the
Registration Statement, it will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and that in the case of
the Prospectus, it will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading, and (vi) of the Issuer's reasonable determination that a
post-effective amendment to a Registration Statement would be appropriate;
(d) if (1) a Shelf Registration is filed pursuant to Section 3 hereof, or
(2) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period, use its best efforts to prevent the issuance of any order
suspending the effectiveness of a Registration Statement or of any order
preventing or suspending the use of a Prospectus or suspending the qualification
(or exemption from qualification), of any of the Transfer Restricted Notes or
the Exchange Notes (as applicable), to be sold by any Participating Broker-
Dealer, for sale in any jurisdiction, and, if any such order is issued, to use
its best efforts to obtain the withdrawal of any such order at the earliest
possible moment;
(e) if a Shelf Registration is filed pursuant to Section 3 hereof and if
requested by the managing underwriters, if any, or the Holders of a majority in
aggregate principal amount of the Transfer Restricted Notes being sold in
connection with an underwritten offering, (i) promptly incorporate in a
prospectus supplement or post-effective amendment such information relating to
underwriters, if any, any Holder of Transfer Restricted Notes or the plan of
distribution of the Transfer Restricted Notes as the managing underwriter, if
any, or such Holders may reasonably request to be included therein, (ii) make
all required filings of such prospectus supplement or such post-effective
amendment as soon as practicable
13
after the Issuer has received notification of the matters to be incorporated in
such prospectus supplement or post-effective amendment pursuant to clause (i),
and (iii) supplement or make amendments to such Registration Statement with such
information as is required in connection with any request made pursuant to
clause (i);
(f) if (1) a Shelf Registration is filed pursuant to Section 3 hereof, or
(2) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period, furnish to each selling Holder of Transfer Restricted
Notes and to each such Participating Broker-Dealer who so requests and to
counsel and each managing underwriter, if any, without charge, one conformed
copy of the Registration Statement or Registration Statements and each post-
effective amendment thereto, including financial statements and schedules, and,
if requested, all documents incorporated or deemed to be incorporated therein by
reference and all exhibits;
(g) if (1) a Shelf Registration is filed pursuant to Section 3 hereof, or
(2) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period, deliver to each selling Holder of Transfer Restricted
Notes, or each such Participating Broker-Dealer, as the case may be, its
counsel, and the underwriters, if any, without charge, as many copies of the
Prospectus or Prospectuses (including each form of preliminary Prospectus), and
each amendment or supplement thereto and any documents incorporated by reference
therein, as such Persons may reasonably request; and, subject to the last
paragraph of this Section 5 hereof, the Issuer hereby consents to the use of
such Prospectus and each amendment or supplement thereto by each of the selling
Holders of Transfer Restricted Notes or each such Participating Broker-Dealer,
as the case may be, and their underwriters or agents, if any, and dealers, if
any, in connection with the offering and sale of the Transfer Restricted Notes
covered by or the sale by Participating Broker-Dealers of the Exchange Notes
pursuant to such Prospectus and any amendment or supplement thereto;
14
(h) prior to any public offering of Transfer Restricted Notes or any
delivery of a Prospectus contained in the Exchange Offer Registration Statement
by any Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, to use its best efforts to register or qualify, and to
cooperate with the selling Holders of Transfer Restricted Notes or each such
Participating Broker-Dealer, as the case may be, the underwriters, if any, and
their respective counsel in connection with the registration or qualification
(or exemption from such registration or qualification), of such Transfer
Restricted Notes for offer and sale under the securities or Blue Sky laws of
such jurisdictions as any selling Holder, Participating Broker-Dealer, or the
managing underwriters reasonably request in writing; keep each such registration
or qualification (or exemption therefrom) effective during the period such
Registration Statement is required to be kept effective and do any and all other
acts or things reasonably necessary or advisable to enable the disposition in
such jurisdictions of the Exchange Notes held by Participating Broker-Dealers or
the Transfer Restricted Notes covered by the applicable Registration Statement;
provided that the Issuer shall not be required to (A) qualify generally to do
--------
business in any jurisdiction where it is not then so qualified, (B) take any
action that would subject it to general service of process in any such
jurisdiction where it is not then so subject or (C) subject it to taxation in
any such jurisdiction where it is not so subject;
(i) if a Shelf Registration is filed pursuant to Section 3 hereof,
cooperate with the selling Holders of Transfer Restricted Notes and the managing
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing Transfer Restricted Notes to be sold, which
certificates shall not bear any restrictive legends and shall be in a form
eligible for deposit with The Depository Trust Company ("DTC"), and enable such
Transfer Restricted Notes to be in such denominations and registered in such
names as the managing underwriters, if any, or Holders may reasonably request at
least two Business Days prior to any sale of the Transfer Restricted Notes;
(j) if (1) a Shelf Registration is filed pursuant to Section 3 hereof, or
(2) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period, upon the occurrence of any event contemplated by
paragraph 5(c)(v) or 5(c)(vi) above, as promptly as practicable prepare and
(subject to Section
15
5(a) hereof) file with the SEC, at the expense of the Issuer, a supplement or
post-effective amendment to the Registration Statement or a supplement to the
related Prospectus or any document incorporated or deemed to be incorporated
therein by reference, or file any other required document so that, as thereafter
delivered to the purchasers of the Transfer Restricted Notes being sold
thereunder or to the purchasers of the Exchange Notes to whom such Prospectus
will be delivered by a Participating Broker-Dealer, any such Prospectus will not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading;
(k) prior to the effective date of the first Registration Statement
relating to the Transfer Restricted Notes, (i) provide the Trustee with
certificates for the Transfer Restricted Notes in a form eligible for deposit
with DTC and (ii) use its best efforts to provide a CUSIP number for the
Transfer Restricted Notes;
(l) in connection with an underwritten offering of Transfer Restricted
Notes pursuant to a Shelf Registration, enter into an underwriting agreement as
is customary in underwritten offerings and take all such other actions as are
reasonably requested by the managing underwriters in order to expedite or
facilitate the registration or the disposition of such Transfer Restricted
Notes, and in such connection, (i) make such representations and warranties to
the underwriters, with respect to the business of the Issuer, its subsidiaries
and the Registration Statement, Prospectus and documents, if any, incorporated
or deemed to be incorporated by reference therein, in each case, as are
customarily made by issuers to underwriters in underwritten offerings, and
confirm the same if and when requested; (ii) obtain opinions of counsel to the
Issuer and updates thereof in form and substance reasonably satisfactory to the
managing underwriters, addressed to the underwriters covering the matters
customarily covered in opinions requested in underwritten offerings and such
other matters as may be reasonably requested by underwriters; (iii) obtain "cold
comfort" letters and updates thereof in form and substance reasonably
satisfactory to the managing underwriters from the independent certified public
accountants of the Issuer (and, if necessary, any other independent certified
public accountants of any subsidiary of the Issuer or of any business acquired
by any of them for which financial statements and financial data are, or are
required to be, included in the Registration Statement), addressed to each of
the underwriters, such letters to be in customary form and covering matters
16
of the type customarily covered in "cold comfort" letters in connection with
underwritten offerings and such other matters as are reasonably requested by
underwriters as permitted by Statement on Auditing Standards No. 72; and (iv) if
--------------------------------------
an underwriting agreement is entered into, the same shall contain
indemnification provisions and procedures no less favorable than those set forth
in Section 7 hereof (or such other provisions and procedures acceptable to
Holders of a majority in aggregate principal amount of outstanding Transfer
Restricted Notes covered by such Registration Statement and the managing
underwriters or agents), with respect to all parties to be indemnified pursuant
to said Section. The above shall be done at each closing under such
underwriting agreement, or as and to the extent required thereunder;
(m) if (1) a Shelf Registration is filed pursuant to Section 3 hereof, or
(2) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period, make available for inspection by any selling Holder of
such Transfer Restricted Notes being sold, or each such Participating Broker-
Dealer, as the case may be, any underwriter participating in any such
disposition of Transfer Restricted Notes, if any, and any attorney, accountant
or other agent retained by any such selling Holder or each such Participating
Broker-Dealer, as the case may be, or underwriter (collectively, the
"Inspectors"), at the offices where normally kept, during reasonable business
hours, all financial and other records, pertinent corporate documents and
properties of the Issuer and its subsidiaries (collectively, the "Records"), as
shall be reasonably necessary to enable them to exercise any applicable due
diligence responsibilities, and cause the officers, directors and employees of
the Issuer and its subsidiaries to supply all information in each case
reasonably requested by any such Inspector in connection with such Registration
Statement;
(n) provide an indenture trustee for the Transfer Restricted Notes or the
Exchange Notes, as the case may be, and cause the Indenture to be qualified
under the TIA not later than the effective date of the Exchange Offer or the
first Registration Statement relating to the Transfer Restricted Notes; and in
connection therewith, cooperate with the trustee under any such indenture and
the Holders of the Transfer Restricted Notes, to effect such changes to such
indenture as may be required for such indenture to be so qualified in accordance
with the terms of the
17
TIA; and execute, and use its best efforts to cause such trustee to execute, all
customary documents as may be required to effect such changes, and all other
forms and documents required to be filed with the SEC to enable such indenture
to be so qualified in a timely manner;
(o) comply with all applicable rules and regulations of the SEC and, as
soon as reasonably practicable, make generally available to the holders of
Exchange Notes and the Holders, if any, consolidated earning statements of the
Issuer that satisfy the provisions of Section 11(a) of the Securities Act and
Rule 158 thereunder;
(p) If an Exchange Offer is to be consummated, upon delivery of the
Transfer Restricted Notes by Holders to the Issuer (or to such other Person as
directed by the Issuer), in exchange for the Exchange Notes, the Issuer shall
▇▇▇▇, or cause to be marked, on such Transfer Restricted Notes that such
Transfer Restricted Notes are being cancelled in exchange for the Exchange
Notes; in no event shall such Transfer Restricted Notes be marked as paid or
otherwise satisfied.
(q) cooperate with each seller of Transfer Restricted Notes covered by any
Registration Statement and each underwriter, if any, participating in the
disposition of such Transfer Restricted Notes and their respective counsel in
connection with any filings required to be made with the National Association of
Securities Dealers, Inc. (the "NASD");
(r) use its best efforts to take all other steps necessary to effect the
registration of the Transfer Restricted Notes or the Exchange Notes covered by a
Registration Statement contemplated hereby; and
(s) use its best efforts to cause the Transfer Restricted Notes or the
Exchange Notes, as applicable, covered by an effective registration statement
required by Section 2 or Section 3 hereof to be rated with the appropriate
rating agencies, if so requested by the Holders of a majority in aggregate
principal amount of Transfer Restricted Notes relating to such registration
statement or the managing underwriters in connection therewith, if any.
18
The Issuer may require each seller of Transfer Restricted Notes or
Participating Broker-Dealer as to which any registration is being effected to
furnish to the Issuer such information regarding such seller or Participating
Broker-Dealer and the distribution of such Transfer Restricted Notes or Exchange
Notes to be sold by such Participating Broker-Dealer, as the case may be, as the
Issuer may, from time to time, reasonably request. The Issuer may exclude from
such registration the Transfer Restricted Notes or Exchange Notes of any seller
or Participating Broker-Dealer, as the case may be, who fails to furnish such
information within a reasonable time after receiving such request.
Each Holder of Transfer Restricted Notes and each Participating Broker-
Dealer agrees by acquisition of such Transfer Restricted Notes or Exchange Notes
to be sold by such Participating Broker-Dealer, as the case may be, that, upon
receipt of any notice from the Issuer of the happening of any event of the kind
described in Section 5(c)(ii), 5(c)(iv), 5(c)(v) or 5(c)(vi) hereof, such Holder
shall forthwith discontinue disposition of such Transfer Restricted Notes
covered by such Registration Statement or Prospectus or such Exchange Notes to
be sold by such Participating Broker-Dealer, as the case may be, until such
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 5(j) hereof, or until it is advised in writing by the
Issuer that the use of the applicable Prospectus may be resumed, and has
received copies of any amendments or supplements thereto.
6. Registration Expenses
---------------------
(a) All fees and expenses incident to the performance of or compliance with
this Agreement by the Issuer shall be borne by the Issuer, whether or not the
Exchange Offer or a Shelf Registration is filed or becomes effective, including,
without limitation, (i) all registration and filing fees (including, without
limitation, (A) fees with respect to filings required to be made with the NASD
in connection with an underwritten offering and (B) fees and expenses of
compliance with state securities or Blue Sky laws (including, without
limitation, reasonable fees and disbursements of counsel in connection with Blue
Sky qualifications of the Transfer Restricted Notes or Exchange Notes and
determination of the eligibility of the Transfer Restricted Notes or Exchange
Notes for investment under the laws of such jurisdictions (x) where the Holders
of Transfer Restricted Notes are located, in the case of the Exchange Notes, or
(y) as provided in Section 5(h) hereof, in the case
19
of Transfer Restricted Notes or Exchange Notes to be sold by a Participating
Broker-Dealer during the Applicable Period)), (ii) printing expenses (including,
without limitation, expenses of printing certificates for Transfer Restricted
Notes or Exchange Notes in a form eligible for deposit with DTC and of printing
Prospectuses if the printing of Prospectuses is requested by the managing
underwriters, if any, or, in respect of Transfer Restricted Notes or Exchange
Notes to be sold by any Participating Broker-Dealer during the Applicable
Period, by the Holders of a majority in aggregate principal amount of the
Transfer Restricted Notes included in any Registration Statement or of such
Exchange Notes, as the case may be), (iii) messenger, telephone and delivery
expenses, (iv) fees and disbursements of counsel for the Issuer, (v) fees and
disbursements of all independent certified public accountants referred to in
Section 5(l)(iii) hereof (including, without limitation, the expenses of any
special audit and "cold comfort" letters required by or incident to such
performance), (vi) rating agency fees, (vii) Securities Act liability insurance,
if the Issuer desires such insurance, (viii) fees and expenses of all other
Persons retained by the Issuer, (ix) internal expenses of the Issuer (including,
without limitation, all salaries and expenses of officers and employees of the
Issuer and its subsidiaries performing legal or accounting duties), (x) the
expense of any annual audit and (xi) the fees and expenses incurred in
connection with the listing of the securities to be registered on any securities
exchange. Nothing contained in this Section 6 shall create an obligation on the
part of the Issuer to pay or reimburse any Holder for any underwriting
commission or discount attributable to any such Holder's Transfer Restricted
Notes included in an underwritten offering pursuant to a Registration Statement
filed in accordance with the terms of this Agreement, or to guarantee such
Holder any profit or proceeds from the sale of such Notes.
(b) In connection with any Shelf Registration hereunder, the Issuer shall
reimburse the Holders of the Transfer Restricted Notes being registered in such
registration for the reasonable fees and disbursements of not more than one
counsel (in addition to appropriate local counsel), chosen by the Holders of a
majority in aggregate principal amount of the Transfer Restricted Notes to be
included in such Registration Statement.
7. Indemnification
---------------
20
The Issuer agrees to indemnify and hold harmless (i) the Initial
Purchasers, each Holder of Transfer Restricted Notes, each initial Holder of
Exchange Notes and each Participating Broker-Dealer, (ii) each person, if any,
who controls (within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act), any such Person (any of the persons referred to in this
clause (ii) being hereinafter referred to as a "controlling person"), and (iii)
the respective officers, directors, partners, employees, representatives and
agents of any of such Person or any controlling person (any person referred to
in clause (i), (ii) or (iii) may hereinafter be referred to as an "Indemnified
Person"), to the fullest extent lawful, from and against any and all losses,
claims, damages, judgments, actions, expenses, and other liabilities (the
"Liabilities"), including without limitation and as incurred, reimbursement of
all reasonable costs of investigating, preparing, pursuing or defending any
claim or action, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, including the reasonable fees and expenses of
counsel to any Indemnified Person, directly or indirectly related to, based
upon, arising out of or in connection with any untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement or
Prospectus (as amended or supplemented if the Issuer shall have furnished to
such Indemnified Person any amendments or supplements thereto), or any
preliminary prospectus, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, except insofar as such Liabilities arise out of or are based upon
(i) any untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with information relating to any
Indemnified Person furnished to the Issuer or any underwriter in writing by such
Indemnified Person expressly for use therein, or (ii) any untrue statement
contained in or omission from a preliminary prospectus if a copy of the
Prospectus (as then amended or supplemented, if the Issuer shall have furnished
to or on behalf of the Holder participating in the distribution relating to the
relevant Registration Statement any amendments or supplements thereto) was not
sent or given by or on behalf of such Holder to the person asserting any such
Liabilities who purchased Notes, if such Prospectus (or Prospectus as amended or
supplemented), is required by law at or prior to the written confirmation of the
sale of such Notes to such person and the untrue statement contained in or
omission from such preliminary prospectus was completely corrected in the
Prospectus (or the Prospectus as amended or supplemented). The Issuer shall
notify the Holders promptly of the institution, threat or assertion of any
21
claim, proceeding (including any governmental investigation), or litigation of
which it shall have become aware in connection with the matters addressed by
this Agreement which involves the Issuer, any subsidiary of the Issuer or an
Indemnified Person.
In connection with any Registration Statement in which a Holder of Transfer
Restricted Notes is participating, such Holder of Transfer Restricted Notes
agrees, severally and not jointly, to indemnify and hold harmless the Issuer,
each person who controls the Issuer within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act and the respective partners,
directors, officers, representatives, employees and agents of such person or
controlling person to the same extent as the foregoing indemnity from the Issuer
to each Indemnified Person, but only with reference to information relating to
such Indemnified Person furnished to the Issuer in writing by such Indemnified
Person expressly for use in any Registration Statement or Prospectus, any
amendment or supplement thereto, or any preliminary Prospectus. The liability
of any Indemnified Person pursuant to this paragraph shall in no event exceed
the net proceeds received by such Indemnified Person from sales of Transfer
Restricted Notes giving rise to such obligations.
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 Party"), shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person"), in writing, and the Indemnifying Person, upon request of the
Indemnified Party, shall retain counsel reasonably satisfactory to the
Indemnified Party to represent the Indemnified Party and any others the
Indemnifying Person may reasonably designate in such proceeding and shall pay
the reasonable fees and expenses actually incurred by such counsel related to
such proceeding. In any such proceeding, any Indemnified Party 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 Party, unless (i) the Indemnifying Person
and the Indemnified Party shall have mutually agreed in writing to the contrary,
(ii) the Indemnifying Person failed promptly to assume the defense and employ
counsel reasonably satisfactory to the Indemnified Party or (iii) the named
parties to any such action (including any impleaded parties), include both such
Indemnified Party and the Indemnifying Person, or any
22
affiliate of the Indemnifying Person, and such Indemnified Party shall have been
reasonably advised by counsel that, either (x) there may be one or more legal
defenses available to it which are different from or additional to those
available to the Indemnifying Person or such affiliate of the Indemnifying
Person or (y) a conflict may exist between such Indemnified Party and the
Indemnifying Person or such affiliate of the Indemnifying Person (in which case
the Indemnifying Person shall not have the right to assume the defense of such
action on behalf of such Indemnified Party, it being understood, however, that
the Indemnifying Person shall not, in connection with any one such action or
separate but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the
fees and expenses of more than one separate firm of attorneys (in addition to
any local counsel), for all such indemnified parties, which firm shall be
designated in writing by those indemnified parties who sold a majority in
outstanding aggregate principal amount of Transfer Restricted Notes sold by all
such indemnified parties and any such separate firm for the Issuer, its
directors, its officers and such control persons of the Issuer as shall be
designated in writing by the Issuer. The Indemnifying Person shall not be liable
for any settlement of any proceeding effected without its written consent, which
consent shall not be unreasonably withheld, but if settled with such consent or
if there be a final judgment for the plaintiff, the Indemnifying Person agrees
to indemnify any Indemnified Party 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 Party, effect any settlement of any
pending or threatened proceeding in respect of which any Indemnified Party is or
could have been a party and indemnity could have been sought hereunder by such
Indemnified Party, unless such settlement includes an unconditional release of
such Indemnified Party from all liability on claims that are the subject matter
of such proceeding.
If the indemnification provided for in the first and second paragraphs of
this Section 7 is unavailable to an Indemnified Party in respect of any
Liabilities referred to therein (other than by reason of the exceptions provided
therein), then each Indemnifying Person under such paragraphs, in lieu of
indemnifying such Indemnified Party thereunder, shall contribute to the amount
paid or payable by such Indemnified Party as a result of such Liabilities (i) in
such proportion as is appropriate to reflect the relative benefits of the
Indemnified Party on the one hand and the Indemnifying Person(s) on the other in
connection with the statements or omissions that resulted in such Liabilities,
or (ii) if the allocation provided by
23
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(s) and the
Indemnified Party, as well as any other relevant equitable considerations. The
relative fault of the Issuer on the one hand and any Indemnified Persons on the
other 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 Issuer
or by such Indemnified Persons and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The parties agree that it would not be just and equitable if contribution
pursuant to this Section 7 were determined by pro rata allocation (even if such
--- ----
indemnified parties were treated as one entity for such purpose), 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 Party as a result of any Liabilities referred
to in the immediately preceding paragraph shall be deemed to include, subject to
the limitations set forth above, any reasonable legal or other expenses actually
incurred by such Indemnified Party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this Section 7, in
no event shall an Indemnified Person be required to contribute any amount in
excess of the amount by which proceeds received by such Indemnified Person from
sales of Transfer Restricted Notes or Exchange Notes exceeds the amount of any
damages that such Indemnified Person has 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.
The indemnity and contribution agreements contained in this Section 7 will
be in addition to any liability which the indemnifying parties may otherwise
have to the indemnified parties referred to above. The Indemnified Persons'
obligations to contribute pursuant to this Section 7 are several in proportion
to the respective principal amount of Notes sold by each of the Indemnified
Persons hereunder and not joint.
24
8. Rules 144 and 144A
------------------
The Issuer covenants that it will file the reports required to be filed by
it pursuant to the Securities Act and the Exchange Act and the rules and
regulations adopted by the SEC thereunder in a timely manner and, if at any time
the Issuer is not required to file such reports, it will, upon the request of
any Holder of Transfer Restricted Notes, make available information required by
Rule 144 and Rule 144A under the Securities Act in order to permit sales
pursuant to Rule 144 and Rule 144A. The Issuer further covenants that it will
take such further action as any Holder of Transfer Restricted Notes may
reasonably request, all to the extent required from time to time to enable such
Holder to sell Transfer Restricted Notes without registration under the
Securities Act within the limitation of the exemptions provided by (a) Rule 144
and Rule 144A or (b) any similar rule or regulation hereafter adopted by the
SEC.
9. Underwritten Registrations
--------------------------
(a) If any of the Transfer Restricted Notes covered by any Shelf
Registration are to be sold in an underwritten offering, the investment banker
or investment bankers and manager or managers that will manage the offering will
be selected by the Holders of a majority in aggregate principal amount of such
Transfer Restricted Notes included in such offering and shall be reasonably
acceptable to the Issuer.
No Holder of Transfer Restricted Notes may participate in any underwritten
registration hereunder, unless such Holder (a) agrees to sell such Holder's
Transfer Restricted Notes on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
(b) Each Holder of Transfer Restricted Notes agrees, if requested (pursuant
to a timely written notice), by the managing underwriters in an underwritten
offering or by a placement agent in a private offering of the Issuer's debt
securities, not to effect any private sale or distribution (including a sale
pursuant to Rule 144(k) or Rule 144A under the Securities Act, but excluding
non-public sales
25
to any of its affiliates, officers, directors, employees and controlling
persons), of any of the Notes except pursuant to an Exchange Offer, during the
period beginning 10 days prior to, and ending 90 days after, the closing date of
the underwritten offering.
The foregoing provisions shall not apply to any Holder of Transfer
Restricted Notes if such Holder is prevented by applicable statute or regulation
from entering into any such agreement.
10. Miscellaneous
-------------
(a) Remedies. In the event of a breach by the Issuer of any of its
--------
obligations under this Agreement, each Holder of Transfer Restricted Notes and
each Participating Broker-Dealer holding Exchange Notes, in addition to being
entitled to exercise all rights provided herein, in the Indenture or, in the
case of the Initial Purchasers, in the Purchase Agreement, or granted by law,
including recovery of damages, will be entitled to specific performance of its
rights under this Agreement. Subject to Section 4, the Issuer agrees that
monetary damages would not be adequate compensation for any loss incurred by
reason of a breach by it of any of the provisions of this Agreement and hereby
further agrees that, in the event of any action for specific performance in
respect of such breach, it shall waive the defense that a remedy at law would be
adequate.
(b) Amendments and Waivers. The provisions of this Agreement, including
----------------------
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to or departures from the provisions hereof may not be
given, unless the Issuer has obtained the written consent of holders of at least
a majority of the then outstanding aggregate principal amount of Transfer
Restricted Notes and Exchange Notes held by Participating Broker-Dealers taken
as one class. Notwithstanding the foregoing, a waiver or consent to or
departure from the provisions hereof with respect to a matter that relates
exclusively to the rights of Holders and Participating Broker-Dealers holding
Exchange Notes whose securities are being sold pursuant to a Registration
Statement and that does not directly or indirectly affect, impair, limit or
compromise the rights of other Holders and Participating Broker-Dealers holding
Exchange Notes may be given by holders of at least a majority in aggregate
principal amount of the Transfer Restricted Notes and Exchange Notes held by
Participating Broker-Dealers being sold by such Holders and Participating
Broker-Dealers pursuant to such ▇▇▇▇▇▇▇▇-
▇▇
tion Statement; provided that the provisions of this sentence may not be
--------
amended, modified or supplemented except in accordance with the provisions of
the immediately preceding sentence.
(c) Notices. All notices and other communications (including, without
-------
limitation, any notices or other communications to the Trustee), provided for or
permitted hereunder shall be made in writing by hand-delivery, registered first-
class mail, next-day air courier or telecopier:
(i) if to a Holder of Transfer Restricted Notes, at the most current
address given by the Trustee to the Issuer; and
(ii) if to the Issuer, Omnipoint Corporation, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Chief Financial Officer.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five Business Days after
being deposited in the mail, postage prepaid, if mailed; one Business Day after
being timely delivered to a nationally recognized next-day air courier, if made
by next-day air courier; and when receipt is acknowledged by the addressee, if
telecopied on a Business Day on such Business Day, if not on a Business Day, on
the first Business Day thereafter.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee under the
Indenture at the address specified in such Indenture.
(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 limitation and without the need for an express assignment,
subsequent Holders of Transfer Restricted Notes. The Issuer agrees that the
Holders of Transfer Restricted Notes and Participating Broker-Dealers holding
Exchange Notes shall be third party beneficiaries to the agreements made
hereunder by the Initial Purchasers and the Issuer, and each Holder and
Participating Broker-Dealer shall have the right to enforce such agreements
directly to the extent it deems such enforcement necessary or advisable to
protect its rights hereunder.
27
(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 LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN
THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN
THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT
OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE
AFORESAID COURTS. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION THAT IT MAY
NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(h) Severability. If any term, provision, covenant or restriction of
------------
this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially
28
the same result as that contemplated by such term, provision, covenant or
restriction. It is hereby stipulated and declared to be the intention of the
parties hereto that they would have executed the remaining terms, provisions,
covenants and restrictions without including any of such that may be hereafter
declared invalid, illegal, void or unenforceable.
(i) Entire Agreement. This Agreement, together with the Purchase
----------------
Agreement, is intended by the parties hereto as a final expression of their
agreement, and is intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein and therein.
(j) Notes Held by the Issuer or its Affiliates. Whenever the consent or
------------------------------------------
approval of Holders of a specified percentage of Transfer Restricted Notes is
required hereunder, Transfer Restricted Notes held by the Issuer or its
affiliates (as such term is defined in Rule 405 under the Securities Act), shall
not be counted in determining whether such consent or approval was given by the
Holders of such required percentage.
(k) Survival. This Agreement is intended to survive the consummation of
--------
the transactions contemplated by the Purchase Agreement. The indemnification
and contribution obligations under Section 7 of this Agreement shall survive the
termination of the Issuer's obligations under Sections 2 and 3 of this
Agreement.
29
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
OMNIPOINT CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Financial Officer
The foregoing Registration Rights
Agreement is hereby confirmed and
accepted as of the date first
above written.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
▇▇▇▇▇▇▇, SACHS & CO.
BA SECURITIES, INC.
▇▇▇▇▇▇▇▇▇▇ SECURITIES
By: ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
30