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Exhibit 4.4
NTL Communications Corp.
9 3/4% Senior Deferred Coupon Notes due 2009
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Exchange and Registration Rights Agreement
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April 14, 1999
Xxxxxxx Xxxxx International
As representative of the several Purchasers
named in Schedule I to the Purchase Agreement
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
NTL Communications Corp., a Delaware corporation (the "Company"), proposes
to issue and sell to the Purchasers (as defined herein) upon the terms set forth
in the Purchase Agreement (as defined herein) its 9 3/4% Senior Deferred Coupon
Notes due 2009. As an inducement to the Purchasers to enter into the Purchase
Agreement and in satisfaction of a condition to the obligations of the
Purchasers thereunder, the Company agrees with the Purchasers for the benefit of
holders (as defined herein) from time to time of the Registrable Securities (as
defined herein) as follows:
1. Certain Definitions. For purposes of this Agreement, the
following terms shall have the following respective meanings:
"Base Interest" shall mean the interest that would otherwise accrue
on the Securities under the terms thereof and the Indenture, without
giving effect to the provisions of this Agreement.
The term "broker-dealer" shall mean any broker or dealer registered
with the Commission under the Exchange Act.
"Closing Date" shall mean the date on which the Securities are
initially issued.
"Commission" shall mean the United States Securities and Exchange
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Commission, or any other federal agency at the time administering the
Exchange Act or the Securities Act, whichever is the relevant statute for
the particular purpose.
"Effective Time," in the case of (i) an Exchange Registration, shall
mean the time and date as of which the Commission declares the Exchange
Registration Statement effective or as of which the Exchange Registration
Statement otherwise becomes effective and (ii) a Shelf Registration, shall
mean the time and date as of which the Commission declares the Shelf
Registration Statement effective or as of which the Shelf Registration
Statement otherwise becomes effective.
"Electing Holder" shall mean any holder of Registrable Securities
that has returned a completed and signed Notice and Questionnaire to the
Company in accordance with Section 3(d)(ii) or 3(d)(iii) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, or
any successor thereto, as the same shall be amended from time to time.
"Exchange Offer" shall have the meaning assigned thereto in Section
2(a) hereof.
"Exchange Registration" shall have the meaning assigned thereto in
Section 3(c) hereof.
"Exchange Registration Statement" shall have the meaning assigned
thereto in Section 2(a) hereof.
"Exchange Securities" shall have the meaning assigned thereto in
Section 2(a) hereof.
The term "holder" shall mean each of the Purchasers and other
persons who acquire Registrable Securities from time to time (including
any successors or assigns), in each case for so long as such person owns
any Registrable Securities.
"Indenture" shall mean the Indenture, dated as of April 14, 1999,
between the Company and The Chase Manhattan Bank, as Trustee, as the same
shall be amended from time to time.
"Majority Holders" means the holders of a majority of the aggregate
principal amount at maturity of the Registrable Securities satisfying the
terms and conditions for registration under the Exchange Registration
Statement or the Shelf Registration Statement.
"Notice and Questionnaire" means a Notice of Registration Statement
and Selling Securityholder Questionnaire substantially in the form of
Exhibit A hereto.
The term "person" shall mean a corporation (profit or nonprofit),
association,
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limited liability company, partnership, organization, business,
individual, government or political subdivision thereof or governmental
agency.
"Purchase Agreement" shall mean the Purchase Agreement, dated as of
April 7, 1999, between the Purchasers and the Company relating to the
Securities.
"Purchasers" shall mean the Purchasers named in Schedule I to the
Purchase Agreement.
"Registrable Securities" shall mean the Securities; provided,
however, that a Security shall cease to be a Registrable Security when (i)
in the circumstances contemplated by Section 2(a) hereof, the Security has
been exchanged for an Exchange Security in an Exchange Offer as
contemplated in Section 2(a) hereof (provided that any Exchange Security
that, pursuant to the last two sentences of Section 2(a), is included in a
prospectus for use in connection with resales by broker-dealers shall be
deemed to be a Registrable Security with respect to Sections 5, 6 and 9
until resale of such Registrable Security has been effected within the
180-day period referred to in Section 2(a)); (ii) in the circumstances
contemplated by Section 2(b) hereof, a Shelf Registration Statement
registering such Security under the Securities Act has been declared or
becomes effective and such Security has been sold or otherwise transferred
by the holder thereof in accordance with the Shelf Registration Statement;
(iii) such Security is distributed to the public pursuant to Rule 144
under circumstances in which any legend borne by such Security relating to
restrictions on transferability thereof, under the Securities Act, is
removed by the Company or pursuant to the Indenture; (iv) such Security is
eligible to be sold pursuant to Rule 144(k); or (v) such Security shall
cease to be outstanding.
"Registration Default" shall have the meaning assigned thereto in
Section 2(c) hereof.
"Registration Expenses" shall have the meaning assigned thereto in
Section 4 hereof.
"Resale Period" shall have the meaning assigned thereto in Section
2(a) hereof.
"Restricted Holder" shall mean (i) a holder that is an affiliate of
the Company within the meaning of Rule 405, (ii) a holder who acquires
Exchange Securities outside the ordinary course of such holder's business,
(iii) a holder who has arrangements or understandings with any person to
participate in the Exchange Offer for the purpose of distributing Exchange
Securities and (iv) a holder that is a broker-dealer, but only with
respect to Exchange Securities received by such broker-dealer pursuant to
an Exchange Offer in exchange for Registrable Securities acquired by the
broker-dealer directly from the Company.
"Rule 144," "Rule 158," "Rule 405" and "Rule 415" shall mean, in
each case, such rule promulgated under the Securities Act (or any
successor provision), as the same
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shall be amended from time to time.
"Securities" shall mean, collectively, the 9 3/4% Senior Deferred
Coupon Notes due 2009 of the Company to be issued and sold to the
Purchasers, and securities issued in exchange therefor or in lieu thereof
pursuant to the Indenture.
"Securities Act" shall mean the Securities Act of 1933, or any
successor thereto, as the same shall be amended from time to time.
"Shelf Registration" shall have the meaning assigned thereto in
Section 2(b) hereof.
"Shelf Registration Statement" shall have the meaning assigned
thereto in Section 2(b) hereof.
"Special Interest" shall have the meaning assigned thereto in
Section 2(c) hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, or
any successor thereto, and the rules, regulations and forms promulgated
thereunder, all as the same shall be amended from time to time.
Unless the context otherwise requires, any reference herein to a "Section"
or "clause" refers to a Section or clause, as the case may be, of this
Agreement, and the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Section or other subdivision.
2. Registration Under the Securities Act.
(a) Except as set forth in Section 2(b) below, the Company agrees to
file under the Securities Act within 90 days following the Closing Date, a
registration statement relating to an offer to exchange (such registration
statement, the "Exchange Registration Statement", and such offer, the
"Exchange Offer") any and all of the Securities for a like aggregate
principal amount of debt securities issued by the Company, which debt
securities are substantially identical to the Securities (and are entitled
to the benefits of a trust indenture which is substantially identical to
the Indenture or is the Indenture and which has been qualified under the
Trust Indenture Act), except that they have been registered pursuant to an
effective registration statement under the Securities Act and do not
contain provisions for the additional interest contemplated in Section
2(c) below (such new debt securities hereinafter called "Exchange
Securities"). The Company agrees to use its best efforts to cause the
Exchange Registration Statement to become effective under the Securities
Act within 180 days following the Closing Date. The Exchange Offer will be
registered under the Securities Act on the appropriate form and will
comply with all applicable tender offer rules and regulations under the
Exchange Act. The Company further agrees to use its best efforts to
commence and complete the Exchange Offer promptly, but no later than 45
days after such registration statement has
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become effective, hold the Exchange Offer open for at least 30 days and
exchange Exchange Securities for all Registrable Securities that have been
properly tendered and not withdrawn on or prior to the expiration of the
Exchange Offer. The Exchange Offer will be deemed to have been "completed"
only if the debt securities received by holders other than Restricted
Holders in the Exchange Offer for Registrable Securities are, upon
receipt, transferable by each such holder without restriction under the
Securities Act. The Exchange Offer shall be deemed to have been completed
upon the earlier to occur of (i) the Company having exchanged the Exchange
Securities for all outstanding Registrable Securities pursuant to the
Exchange Offer and (ii) the Company having exchanged, pursuant to the
Exchange Offer, Exchange Securities for all Registrable Securities that
have been properly tendered and not withdrawn before the expiration of the
Exchange Offer, which shall be on a date that is at least 30 days
following the commencement of the Exchange Offer. The Company agrees (x)
to include in the Exchange Registration Statement a prospectus for use in
any resales by any holder of Exchange Securities that is a broker-dealer
and (y) to keep such Exchange Registration Statement effective for a
period (the "Resale Period") beginning when Exchange Securities are first
issued in the Exchange Offer and ending upon the earlier of the expiration
of the 180th day after the Exchange Offer has been completed or such time
as such broker-dealers no longer own any Registrable Securities. With
respect to such Exchange Registration Statement, such holders shall have
the benefit of the rights of indemnification and contribution set forth in
Sections 6(a), (c), (d) and (e) hereof.
(b) If (i) on or prior to the time the Exchange Offer is completed
existing Commission interpretations are changed such that the debt
securities received by holders other than Restricted Holders in the
Exchange Offer for Registrable Securities are not or would not be, upon
receipt, transferable by each such holder without restriction under the
Securities Act, (ii) the Exchange Offer has not been completed within 225
days following the Closing Date or (iii) the Exchange Offer is not
available to any holder of the Securities, the Company shall, in lieu of
(or, in the case of clause (iii), in addition to) conducting the Exchange
Offer contemplated by Section 2(a), use our best efforts to file under the
Securities Act as promptly as practicable after such filing obligation
arises, a "shelf" registration statement providing for the registration
of, and the sale on a continuous or delayed basis by the holders of, all
of the Registrable Securities, pursuant to Rule 415 or any similar rule
that may be adopted by the Commission (such filing, the "Shelf
Registration" and such registration statement, the "Shelf Registration
Statement"). The Company agrees to use its best efforts (x) to cause the
Shelf Registration Statement to become or be declared effective within 120
days following the filing of such Shelf Registration Statement and to keep
such Shelf Registration Statement continuously effective for a period
ending on the earlier of the second anniversary of the Effective Time or
such time as there are no longer any Registrable Securities outstanding,
provided, however, that no holder shall be entitled to be named as a
selling securityholder in the Shelf Registration Statement or to use the
prospectus forming a part thereof for resales of Registrable Securities
unless such holder is an Electing Holder, and (y) after the Effective Time
of the Shelf Registration Statement, upon the request of any holder of
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Registrable Securities that is not then an Electing Holder, to take any
action reasonably necessary to enable such holder to use the prospectus
forming a part thereof for resales of Registrable Securities, including,
without limitation, any action necessary to identify such holder as a
selling securityholder in the Shelf Registration Statement, provided,
however, that nothing in this clause (y) shall relieve any such holder of
the obligation to return a completed and signed Notice and Questionnaire
to the Company in accordance with Section 3(d)(iii) hereof. The Company
further agrees to supplement or make amendments to the Shelf Registration
Statement, as and when required by the rules, regulations or instructions
applicable to the registration form used by the Company for such Shelf
Registration Statement or by the Securities Act or rules and regulations
thereunder for shelf registration.
(c) In the event that (i) the Company has not filed the Exchange
Registration Statement or Shelf Registration Statement on or before the
date on which such registration statement is required to be filed pursuant
to Section 2(a) or 2(b), respectively, or (ii) such Exchange Registration
Statement or Shelf Registration Statement has not become effective or been
declared effective by the Commission on or before the date on which such
registration statement is required to become or be declared effective
pursuant to Section 2(a) or 2(b), respectively, or (iii) the Exchange
Offer has not been completed within 45 days following the initial
effective date of the Exchange Registration Statement relating to the
Exchange Offer (if the Exchange Offer is then required to be made) or (iv)
any Exchange Registration Statement or Shelf Registration Statement
required by Section 2(a) or 2(b) hereof is filed and declared effective
but shall thereafter either be withdrawn by the Company or shall become
subject to an effective stop order issued pursuant to Section 8(d) of the
Securities Act suspending the effectiveness of such registration statement
(except as specifically permitted herein) without being succeeded
immediately by an additional registration statement filed and declared
effective (each such event referred to in clauses (i) through (iv), a
"Registration Default" and each period during which a Registration Default
has occurred and is continuing, a "Registration Default Period"), then, as
liquidated damages for such Registration Default, subject to the
provisions of Section 9(b), special interest ("Special Interest"), in
addition to the Base Interest, shall accrue at a per annum rate of 0.25%
for the first 90 days of the Registration Default Period, at a per annum
rate of 0.50% for the second 90 days of the Registration Default Period,
at a per annum rate of 0.75% for the third 90 days of the Registration
Default Period and at a per annum rate of 1.0% thereafter for the
remaining portion of the Registration Default Period.
(d) The Company shall take all actions necessary or advisable to be
taken by it to ensure that the transactions contemplated herein are
effected as so contemplated.
(e) Any reference herein to a registration statement as of any time
shall be deemed to include any document incorporated, or deemed to be
incorporated, therein by reference as of such time and any reference
herein to any post-effective amendment to a registration statement as of
any time shall be deemed to include any document
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incorporated, or deemed to be incorporated, therein by reference as of
such time.
3. Registration Procedures.
If the Company files a registration statement pursuant to Section
2(a) or Section 2(b), the following provisions shall apply:
(a) At or before the Effective Time of the Exchange Registration
Statement or the Shelf Registration Statement, as the case may be, the
Company shall qualify the Indenture under the Trust Indenture Act of 1939.
(b) In the event that such qualification would require the
appointment of a new trustee under the Indenture, the Company shall
appoint a new trustee thereunder pursuant to the applicable provisions of
the Indenture.
(c) In connection with the Company's obligations with respect to the
registration of Exchange Securities as contemplated by Section 2(a) (the
"Exchange Registration"), if applicable, the Company shall:
(i) prepare and file with the Commission, within 90 days
following the Closing Date, an Exchange Registration Statement on
any form which may be utilized by the Company and which shall permit
the Exchange Offer and resales of Exchange Securities by
broker-dealers during the Resale Period to be effected as
contemplated by Section 2(a), and use its best efforts to cause such
Exchange Registration Statement to become effective within 180 days
following the Closing Date;
(ii) promptly file with the Commission such amendments and
supplements to such Exchange Registration Statement and the
prospectus included therein as may be necessary to effect and
maintain the effectiveness of such Exchange Registration Statement
for the periods and purposes contemplated in Section 2(a) hereof and
as may be required by the applicable rules and regulations of the
Commission and the instructions applicable to the form of such
Exchange Registration Statement, and promptly provide each
broker-dealer holding Exchange Securities with such number of copies
of the prospectus included therein (as then amended or
supplemented), in conformity in all material respects with the
requirements of the Securities Act and the Trust Indenture Act and
the rules and regulations of the Commission thereunder, as such
broker-dealer reasonably may request prior to the expiration of the
Resale Period, for use in connection with resales of Exchange
Securities;
(iii) promptly notify each broker-dealer that has requested or
received copies of the prospectus included in such registration
statement, (A) when such Exchange Registration Statement or the
prospectus included therein or any prospectus amendment or
supplement or post-effective amendment has been filed,
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and, with respect to such Exchange Registration Statement or any
post-effective amendment, when the same has become effective, (B) of
any requests by the Commission for amendments or supplements to such
Exchange Registration Statement or prospectus or for additional
information, (C) of the issuance by the Commission of any stop order
suspending the effectiveness of such Exchange Registration Statement
or the initiation or threatening of any proceedings for that
purpose, (D) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Exchange
Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, or (E) at any time
during the Resale Period when a prospectus is required to be
delivered under the Securities Act, that such Exchange Registration
Statement, prospectus, prospectus amendment or supplement or
post-effective amendment does not conform in all material respects
to the applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder or contains an untrue statement of a material fact or
omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in light of
the circumstances then existing;
(iv) in the event that the Company would be required, pursuant
to Section 3(e)(iii)(F) above, to notify any broker-dealers holding
Exchange Securities, without delay prepare and furnish to each such
holder a reasonable number of copies of a prospectus supplemented or
amended so that, as thereafter delivered to purchasers of such
Exchange Securities during the Resale Period, such prospectus shall
conform in all material respects to the applicable requirements of
the Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder and shall 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 not misleading in light of the circumstances then existing;
(v) use its best efforts to obtain the withdrawal of any order
suspending the effectiveness of such Exchange Registration Statement
or any post-effective amendment thereto at the earliest practicable
date;
(vi) use its best efforts to (A) register or qualify the
Exchange Securities under the securities laws or blue sky laws of
such jurisdictions as are contemplated by Section 2(a) no later than
the commencement of the Exchange Offer, (B) keep such registrations
or qualifications in effect and comply with such laws so as to
permit the continuance of offers, sales and dealings therein in such
jurisdictions until the expiration of the Resale Period and (C) take
any and all other actions as may be reasonably necessary to enable
each broker-dealer holding Exchange Securities to consummate the
disposition thereof in such jurisdictions; provided, however, that
the Company shall not be required for any such purpose to (1)
qualify as a foreign corporation in any jurisdiction wherein it
would not
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otherwise be required to qualify but for the requirements of this
Section 3(c)(vi), (2) consent to general or unlimited service of
process or taxation in any such jurisdiction or (3) make any changes
to its certificate of incorporation or by-laws or any agreement
between it and its stockholders;
(vii) use its best efforts to obtain the consent or approval
of each governmental agency or authority, whether federal, state or
local, which may be required to effect the Exchange Registration,
the Exchange Offer and the offering and sale of Exchange Securities
by broker-dealers during the Resale Period;
(viii) provide a CUSIP number for all Exchange Securities, not
later than the applicable Effective Time;
(ix) comply with all applicable rules and regulations of the
Commission and shall make generally available to its securityholders
within eighteen months after the effective date of such Exchange
Registration Statement, an earning statement (which need not be
audited) of the Company and its subsidiaries complying with Section
11(a) of the Securities Act (including, at the option of the
Company, Rule 158 thereunder).
(d) In connection with the Company's obligations with respect to the
Shelf Registration, if applicable, the Company shall:
(i) prepare and file with the Commission within the time
periods specified in Section 2(b), a Shelf Registration Statement on
any form which may be utilized by the Company and which shall
register all of the Registrable Securities for resale by the holders
thereof in accordance with such method or methods of disposition as
may be specified by such of the holders as, from time to time, may
be Electing Holders and use its best efforts to cause such Shelf
Registration Statement to become effective within the time periods
specified in Section 2(b);
(ii) not less than 25 calendar days prior to the Effective
Time of the Shelf Registration Statement, mail the Notice and
Questionnaire to the holders of Registrable Securities; no holder
shall be entitled to be named as a selling securityholder in the
Shelf Registration Statement as of the Effective Time, and no holder
shall be entitled to use the prospectus forming a part thereof for
resales of Registrable Securities at any time, unless such holder
has returned a fully completed and signed Notice and Questionnaire
satisfactory to the Company by the deadline for response set forth
therein; provided, however, holders of Registrable Securities shall
have at least 20 calendar days from the date on which the Notice and
Questionnaire is first mailed to such holders to return a fully
completed and signed Notice and Questionnaire to the Company;
(iii) after the Effective Time of the Shelf Registration
Statement, upon
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the request of any holder of Registrable Securities that is not then
an Electing Holder, promptly send a Notice and Questionnaire to such
holder; provided that the Company shall not be required to take any
action to name such holder as a selling securityholder in the Shelf
Registration Statement or to enable such holder to use the
prospectus forming a part thereof for resales of Registrable
Securities until such holder has returned a fully completed and
signed Notice and Questionnaire satisfactory to the Company;
(iv) promptly prepare and file with the Commission such
amendments and supplements to such Shelf Registration Statement and
the prospectus included therein as may be necessary to effect and
maintain the effectiveness of such Shelf Registration Statement for
the period specified in Section 2(b) hereof and as may be required
by the applicable rules and regulations of the Commission and the
instructions applicable to the form of such Shelf Registration
Statement, and furnish to the Electing Holders copies of any such
supplement or amendment promptly following its filing with the
Commission;
(v) comply with the provisions of the Securities Act with
respect to the disposition of all of the Registrable Securities
covered by such Shelf Registration Statement in accordance with the
intended methods of disposition by the Electing Holders provided for
in such Shelf Registration Statement;
(vi) provide (A) the Electing Holders, (B) the underwriters
(which term, for purposes of this Agreement, shall include a person
deemed to be an underwriter within the meaning of Section 2(a)(11)
of the Securities Act), if any, thereof, (C) any sales or placement
agent therefor, (D) counsel for any such underwriter or agent and
(E) not more than one counsel for all the Electing Holders the
reasonable opportunity to participate at their own cost and expense
in the preparation of such Shelf Registration Statement, each
prospectus included therein or filed with the Commission and each
amendment or supplement thereto;
(vii) upon written request for a reasonable period prior to
the filing of such Shelf Registration Statement, and throughout the
period specified in Section 2(b), make available at reasonable times
at the Company's principal place of business or such other
reasonable place for inspection by the persons referred to in
Section 3(d)(vi) who shall certify to the Company that they have a
current intention to sell the Registrable Securities pursuant to the
Shelf Registration such financial and other information and books
and records of the Company, and cause the officers and employees of
the Company to respond to such inquiries as shall be reasonably
necessary, to conduct a reasonable investigation within the meaning
of Section 11 of the Securities Act; provided, however, that the
foregoing inspection shall be coordinated by one counsel designated
by the Majority Holders shall be required to maintain in confidence
and not to disclose to any other person any information or records
reasonably designated by the Company as
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being confidential, until such time as (A) such information becomes
a matter of public record through a third party without an
accompanying obligation of confidentiality, or (B) such person shall
be required so to disclose such information pursuant to a subpoena
or order of any court or other governmental agency or body having
jurisdiction over the matter (subject to the requirements of such
order, and only after such person shall have given the Company
prompt prior written notice of such requirement), or (C) such
information is required to be set forth in such Shelf Registration
Statement or the prospectus included therein or in an amendment to
such Shelf Registration Statement or an amendment or supplement to
such prospectus in order that such Shelf Registration Statement,
prospectus, amendment or supplement, as the case may be, complies
with applicable requirements of the federal securities laws and the
rules and regulations of the Commission and does not contain an
untrue statement of a material fact or omit to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing;
(viii) promptly notify each of the Electing Holders, any sales
or placement agent therefor and any underwriter thereof (which
notification may be made through any managing underwriter that is a
representative of such underwriter for such purpose), (A) when such
Shelf Registration Statement or the prospectus included therein or
any prospectus amendment or supplement or post-effective amendment
has been filed, and, with respect to such Shelf Registration
Statement or any post-effective amendment, when the same has become
effective, (B) of any request by the Commission for amendments or
supplements to such Shelf Registration Statement or prospectus or
for additional information, (C) of the issuance by the Commission of
any stop order suspending the effectiveness of such Shelf
Registration Statement or the initiation or threatening of any
proceedings for that purpose, (D) of the receipt by the Company of
any notification with respect to the suspension of the qualification
of the Registrable Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, or (E)
if at any time when a prospectus is required to be delivered under
the Securities Act, that such Shelf Registration Statement,
prospectus, prospectus amendment or supplement or post-effective
amendment does not conform in all material respects to the
applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder or contains an untrue statement of a material fact or
omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in light of
the circumstances then existing;
(ix) use its best efforts to obtain the withdrawal of any
order suspending the effectiveness of such registration statement or
any post-effective amendment thereto at the earliest practicable
date;
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(x) if requested in writing by any managing underwriter or
underwriters, any placement or sales agent or any Electing Holder,
promptly incorporate in a prospectus supplement or post-effective
amendment such information as is required by the applicable rules
and regulations of the Commission and as such managing underwriter
or underwriters, such agent or such Electing Holder specifies should
be included therein relating to the terms of the sale of such
Registrable Securities, including information with respect to the
principal amount of Registrable Securities being sold by such
Electing Holder or agent or to any underwriters, the name and
description of such Electing Holder, agent or underwriter, the
offering price of such Registrable Securities and any discount,
commission or other compensation payable in respect thereof, the
purchase price being paid therefor by such underwriters and with
respect to any other terms of the offering of the Registrable
Securities to be sold by such Electing Holder or agent or to such
underwriters; and make all required filings of such prospectus
supplement or post-effective amendment promptly after notification
of the matters to be incorporated in such prospectus supplement or
post-effective amendment;
(xi) furnish to each Electing Holder, each placement or sales
agent, if any, therefor, each underwriter, if any, thereof and the
respective counsel referred to in Section 3(d)(vi) such number of
copies of such Shelf Registration Statement (excluding exhibits
thereto and documents incorporated by reference therein unless
specifically so requested by such Electing Holder, agent or
underwriter, as the case may be) and of the prospectus included in
such Shelf Registration Statement (including each preliminary
prospectus and any summary prospectus), in conformity in all
material respects with the applicable requirements of the Securities
Act and the Trust Indenture Act and the rules and regulations of the
Commission thereunder, and such other documents, as such Electing
Holder, agent, if any, and underwriter, if any, may reasonably
request in order to facilitate the offering and disposition of the
Registrable Securities owned by such Electing Holder, offered or
sold by such agent or underwritten by such underwriter and to permit
such Electing Holder, agent and underwriter to satisfy the
prospectus delivery requirements of the Securities Act; and the
Company hereby consents to the use of such prospectus (including
such preliminary and summary prospectus) and any amendment or
supplement thereto by each such Electing Holder and by any such
agent and underwriter, in each case in the form most recently
provided to such person by the Company, in connection with the
offering and sale of the Registrable Securities covered by the
prospectus (including such preliminary and summary prospectus) or
any supplement or amendment thereto;
(xii) use its best efforts to (A) register or qualify the
Registrable Securities to be included in such Shelf Registration
Statement under such securities laws or blue sky laws of such
jurisdictions as any Electing Holder and each placement or sales
agent, if any, therefor and underwriter, if any, thereof
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shall reasonably request, (B) keep such registrations or
qualifications in effect and comply with such laws so as to permit
the continuance of offers, sales and dealings therein in such
jurisdictions during the period the Shelf Registration is required
to remain effective under Section 2(b) above and for so long as may
be necessary to enable any such Electing Holder, agent or
underwriter to complete its distribution of Securities pursuant to
such Shelf Registration Statement and (C) take any and all other
actions as may be reasonably necessary or advisable to enable each
such Electing Holder, agent, if any, and underwriter, if any, to
consummate the disposition in such jurisdictions of such Registrable
Securities; provided, however, that the Company shall not be
required for any such purpose to (1) qualify as a foreign
corporation in any jurisdiction wherein it would not otherwise be
required to qualify but for the requirements of this Section
3(d)(xii), (2) consent to general or unlimited service of process or
taxation in any such jurisdiction or (3) make any changes to its
certificate of incorporation or by-laws or any agreement between it
and its stockholders;
(xiii) use its best efforts to obtain the consent or approval
of each governmental agency or authority, whether federal, state or
local, which may be required to effect the Shelf Registration or the
offering or sale in connection therewith or to enable the selling
holder or holders to offer, or to consummate the disposition of,
their Registrable Securities;
(xiv) Unless any Registrable Securities shall be in book-entry
only form, cooperate with the Electing Holders and the managing
underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be
sold, and which certificates shall not bear any restrictive legends;
and, in the case of an underwritten offering, enable such
Registrable Securities to be in such denominations and registered in
such names as the managing underwriters may reasonably request at
least five business days prior to any sale of the Registrable
Securities;
(xv) provide a CUSIP number for all Registrable Securities,
not later than the applicable Effective Time;
(xvi) enter into such agreements, in connection with the
registration or disposition of the Registrable Securities in order
to expedite or facilitate the disposition of such Registrable
Securities, if an underwriting agreement is entered into, cause the
same to contain customary provisions relating to indemnification and
contribution, and take such other actions in connection therewith as
the Majority Holders shall request;
(xvii) whether or not an agreement of the type referred to in
Section 3(d)(xvi) hereof is entered into and whether or not any
portion of the offering contemplated by the Shelf Registration is an
underwritten offering or is made
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through a placement or sales agent or any other entity, (A) make
such representations and warranties to the Electing Holders and the
placement or sales agent, if any, therefor and the underwriters, if
any, thereof in form, substance and scope as are customarily made in
connection with an offering of debt securities pursuant to any
appropriate agreement or to a registration statement filed on the
form applicable to the Shelf Registration; (B) obtain an opinion of
counsel to the Company in customary form and covering such matters,
of the type customarily covered by such an opinion, as the Majority
Holders may reasonably request, addressed to such Electing Holder or
Electing Holders and the placement or sales agent, if any, therefor
and the underwriters, if any, thereof and dated the effective date
of such Shelf Registration Statement (and if such Shelf Registration
Statement contemplates an underwritten offering of a part or all of
the Registrable Securities, dated the date of the closing under the
underwriting agreement relating thereto) it being agreed that the
matters to be covered by such opinion shall include in form,
substance and scope those matters set forth in Section 7(b) and
Section 7(c)(2) of the Purchase Agreement; (C) obtain a "cold
comfort" letter or letters from the independent certified public
accountants of the Company addressed to the selling Electing
Holders, the placement or sales agent, if any, therefor or the
underwriters, if any, thereof, dated (i) the effective date of such
Shelf Registration Statement and (ii) the effective date of any
prospectus supplement to the prospectus included in such Shelf
Registration Statement or post-effective amendment to such Shelf
Registration Statement which includes unaudited or audited financial
statements as of a date or for a period subsequent to that of the
latest such statements included in such prospectus (and, if such
Shelf Registration Statement contemplates an underwritten offering
pursuant to any prospectus supplement to the prospectus included in
such Shelf Registration Statement or post-effective amendment to
such Shelf Registration Statement which includes unaudited or
audited financial statements as of a date or for a period subsequent
to that of the latest such statements included in such prospectus,
dated the date of the closing under the underwriting agreement
relating thereto), such letter or letters to be in customary form
and covering such matters of the type customarily covered by letters
of such type; (D) deliver such documents and certificates, including
officers' certificates, as may be reasonably requested by the
Majority Holders to evidence the accuracy of the representations and
warranties made pursuant to clause (A) above or those contained in
Section 5(a) hereof and the compliance with or satisfaction of any
agreements or conditions contained in the underwriting agreement or
other agreement entered into by the Company; and (E) undertake such
obligations relating to expense reimbursement, indemnification and
contribution as are provided in Section 6 hereof;
(xviii) notify in writing each holder of Registrable
Securities of any proposal by the Company to amend or waive any
provision of this Agreement pursuant to Section 9(h) hereof and of
any amendment or waiver effected pursuant
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thereto, each of which notices shall contain the text of the
amendment or waiver proposed or effected, as the case may be;
(xix) in the event that any broker-dealer registered under the
Exchange Act shall underwrite any Registrable Securities or
participate as a member of an underwriting syndicate or selling
group or "assist in the distribution" (within the meaning of the
Conduct Rules (the "Conduct Rules") of the National Association of
Securities Dealers, Inc. ("NASD") or any successor thereto, as
amended from time to time) thereof, whether as a holder of such
Registrable Securities or as an underwriter, a placement or sales
agent or a broker or dealer in respect thereof, or otherwise, assist
such broker-dealer in complying with the requirements of such
Conduct Rules, including by (A) if such Conduct Rules shall so
require, engaging a "qualified independent underwriter" (as defined
in such Conduct Rules) to participate in the preparation of the
Shelf Registration Statement relating to such Registrable
Securities, to exercise usual standards of due diligence in respect
thereto and, if any portion of the offering contemplated by such
Shelf Registration Statement is an underwritten offering or is made
through a placement or sales agent, to recommend the yield of such
Registrable Securities, (B) indemnifying any such qualified
independent underwriter to the extent of the indemnification of
underwriters provided in Section 6 hereof, and (C) providing such
information to such broker-dealer as may be required in order for
such broker-dealer to comply with the requirements of the Conduct
Rules; and
(xx) comply with all applicable rules and regulations of the
Commission, and shall make generally available to its
securityholders within eighteen months after the effective date of
such Shelf Registration Statement, an earning statement (which need
not be audited) of the Company and its subsidiaries complying with
Section 11(a) of the Securities Act (including, at the option of the
Company, Rule 158 thereunder).
(e) In the event that the Company would be required, pursuant to
Section 3(d)(viii)(F) above, to notify the Electing Holders, the placement
or sales agent, if any, therefor and the managing underwriters, if any,
thereof, the Company shall without delay prepare and furnish to each of
the Electing Holders, to each placement or sales agent, if any, and to
each such underwriter, if any, a reasonable number of copies of a
prospectus supplemented or amended so that, as thereafter delivered to
purchasers of Registrable Securities, such prospectus shall conform in all
material respects to the applicable requirements of the Securities Act and
the Trust Indenture Act and the rules and regulations of the Commission
thereunder and shall 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 not misleading in light of the
circumstances then existing. Each Electing Holder agrees that upon receipt
of any notice from the Company pursuant to Section 3(d)(viii)(F) hereof,
such Electing Holder shall forthwith discontinue the disposition of
Registrable Securities pursuant to the Shelf Registration Statement
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applicable to such Registrable Securities until such Electing Holder shall
have received copies of such amended or supplemented prospectus, and if so
directed by the Company, such Electing Holder shall deliver to the Company
(at the Company's expense) all copies, then in such Electing Holder's
possession of the prospectus covering such Registrable Securities at the
time of receipt of such notice.
(f) In the event of a Shelf Registration, in addition to the
information required to be provided by each Electing Holder in its Notice
and Questionnaire, the Company may require such Electing Holder to furnish
to the Company such additional information regarding such Electing Holder
and such Electing Holder's intended method of distribution of Registrable
Securities as may be required in order to comply with the Securities Act.
Each such Electing Holder agrees to notify the Company as promptly as
practicable of any inaccuracy or change in information previously
furnished by such Electing Holder to the Company or of the occurrence of
any event in either case as a result of which any prospectus relating to
such Shelf Registration contains or would contain an untrue statement of a
material fact regarding such Electing Holder or such Electing Holder's
intended method of disposition of such Registrable Securities or omits to
state any material fact regarding such Electing Holder or such Electing
Holder's intended method of disposition of such Registrable Securities
required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing, and promptly
to furnish to the Company any additional information required to correct
and update any previously furnished information or required so that such
prospectus shall not contain, with respect to such Electing Holder or the
disposition of such Registrable Securities, 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 in
light of the circumstances then existing.
(g) Until the expiration of two years after the Closing Date, the
Company will not, and will not permit any of its "affiliates" (as defined
in Rule 144) to, resell any of the Securities that have been reacquired by
any of them except pursuant to an effective registration statement under
the Securities Act.
4. Registration Expenses.
The Company agrees to bear and to pay or cause to be paid promptly
all expenses incident to the Company's performance of or compliance with this
Agreement, including (a) all Commission and any NASD registration, filing and
review fees and expenses including fees and disbursements of up to one counsel
for the Majority Holders (which counsel shall be reasonably satisfactory to the
Company) in connection with such registration, filing and review, (b) all fees
and expenses in connection with the qualification of the Securities for offering
and sale under the State securities and blue sky laws referred to in Section
3(d)(xii) hereof and determination of their eligibility for investment under the
laws of such jurisdictions as the Majority Holders may designate, including any
fees and disbursements of the above designated counsel referred to in subclause
(a) above in connection with such qualification and determination, (c) all
expenses
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relating to the preparation, printing, production, distribution and reproduction
of each registration statement required to be filed hereunder, each prospectus
included therein or prepared for distribution pursuant hereto, each amendment or
supplement to the foregoing, the expenses of preparing the Securities for
delivery and the expenses of printing or producing any underwriting agreements,
agreements among underwriters, selling agreements and blue sky or legal
investment memoranda and all other documents in connection with the offering,
sale or delivery of Securities to be disposed of (including certificates
representing the Securities), (d) messenger, telephone and delivery expenses
relating to the offering, sale or delivery of Securities and the preparation of
documents referred to in clause (c) above, (e) fees and expenses of the Trustee
under the Indenture, any agent of the Trustee and the counsel for the Trustee
and of any collateral agent or custodian, (f) internal expenses (including all
salaries and expenses of the Company's officers and employees performing legal
or accounting duties), (g) fees, disbursements and expenses of counsel and
independent certified public accountants of the Company (including the expenses
of any opinions or "cold comfort" letters required by or incident to such
performance and compliance), (h) fees, disbursements and expenses of any
"qualified independent underwriter" engaged pursuant to Section 3(d)(xix)
hereof, (i) any fees charged by securities rating services for rating the
Securities, and (j) fees, expenses and disbursements of any other persons,
including special experts, retained by the Company in connection with such
registration (collectively, the "Registration Expenses"). To the extent that any
Registration Expenses are incurred, assumed or paid by any holder of Registrable
Securities or any placement or sales agent therefor or underwriter thereof, the
Company shall reimburse such person for the full amount of the Registration
Expenses so incurred, assumed or paid promptly after the party requesting
reimbursement has provided appropriate documentation and receipts to the Company
evidencing the disbursement. Notwithstanding the foregoing, the holders of the
Registrable Securities being registered shall pay all agency fees and
commissions and underwriting discounts and commissions attributable to the sale
of such Registrable Securities and the fees and disbursements of any counsel or
other advisors or experts retained by such holders (severally or jointly), other
than the counsel and experts specifically referred to above.
5. Representations and Warranties.
The Company represents and warrants to, and agrees with, each
Purchaser and each of the holders from time to time of Registrable Securities
that:
(a) Each registration statement covering Registrable Securities and
each prospectus (including any preliminary or summary prospectus)
contained therein or furnished pursuant to Section 3(d) or Section 3(c)
hereof and any further amendments or supplements to any such registration
statement or prospectus, when it becomes effective or is filed with the
Commission, as the case may be, and, in the case of an underwritten
offering of Registrable Securities, at the time of the closing under the
underwriting agreement relating thereto, will conform in all material
respects to the requirements of the Securities Act and the Trust Indenture
Act and the rules and regulations of the Commission thereunder and 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
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statements therein not misleading; and at all times subsequent to the
Effective Time when a prospectus would be required to be delivered under
the Securities Act, other than from (i) such time as a notice has been
given to holders of Registrable Securities pursuant to Section
3(d)(viii)(F) or Section 3(c)(iii)(F) hereof until (ii) such time as the
Company furnishes an amended or supplemented prospectus pursuant to
Section 3(e) or Section 3(c)(iv) hereof, each such registration statement,
and each prospectus (including any summary prospectus) contained therein
or furnished pursuant to Section 3(d) or Section 3(c) hereof, as then
amended or supplemented, will conform in all material respects to the
requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder and 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
not misleading in the light of the circumstances then existing; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by a holder of Registrable
Securities expressly for use therein.
(b) Any documents incorporated by reference in any prospectus
referred to in Section 5(a) hereof, when they become or became effective
or are or were filed with the Commission, as the case may be, will conform
or conformed in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and none of such
documents will contain or contained an untrue statement of a material fact
or will omit or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not apply
to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by a holder of
Registrable Securities expressly for use therein.
laws in connection with the offering and distribution of the
Securities.
(c) This Agreement has been duly authorized, executed and delivered
by the Company.
6. Indemnification.
(a) Indemnification by the Company. The Company will indemnify and
hold harmless each of the holders of Registrable Securities included in an
Exchange Registration Statement, each of the Electing Holders of
Registrable Securities included in a Shelf Registration Statement and each
person who participates as a placement or sales agent or as an underwriter
in any offering or sale of such Registrable Securities against any losses,
claims, damages or liabilities, joint or several, to which such holder,
agent or underwriter may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in any
Exchange Registration Statement or Shelf Registration Statement, as the
case may
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be, under which such Registrable Securities were registered under the
Securities Act, or any preliminary, final or summary prospectus contained
therein or furnished by the Company to any such holder, Electing Holder,
agent or underwriter, or any amendment 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 will reimburse such holder, such
Electing Holder, such agent and such underwriter for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such action or claim as such expenses are incurred;
provided, however, that the Company shall not be liable to any such person
in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission (i) made in such
registration statement, or preliminary, final or summary prospectus, or
amendment or supplement thereto, in reliance upon and in conformity with
written information furnished to the Company by such person expressly for
use therein, or (ii) was corrected in such registration statement, or
preliminary, final or summary prospectus, or amendment or supplement
thereto, 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 registration statement, or preliminary, final or
summary prospectus or amendment or supplement thereto, if the Company had
previously furnished copies thereof to such party and if delivery of a
prospectus is required by the Securities Act and was not so made.
(b) Indemnification by the Holders and any Agents and Underwriters.
The Electing Holders of such Registrable Securities included in any
registration statement filed pursuant to Section 2(b) and 2(a) hereof and
each person who participates as a placement agent, sales agent or as an
underwriter in any offering of such Registrable Securities, severally and
not jointly, agrees to (i) indemnify and hold harmless the Company and all
other holders of Registrable Securities, against any losses, claims,
damages or liabilities to which the Company or such other holders of
Registrable Securities may become subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in such
registration statement, or any preliminary, final or summary prospectus
contained therein or furnished by the Company to any such Electing Holder,
agent or underwriter, or any amendment 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, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity
with written information furnished to the Company by such Electing Holder,
placement agent, sales agent or underwriter expressly for use therein, and
(ii) reimburse the Company for any legal or other expenses reasonably
incurred by the Company in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however,
that no such Electing Holder, placement agent, sales agent or underwriter
shall be required to
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undertake liability to any person under this Section 6(b) for any amounts
in excess of the dollar amount of the proceeds to be received by such
Electing Holder from the sale of such Electing Holder's Registrable
Securities pursuant to such registration.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified
party under Section 6 (a) or (b) hereof of written notice of the
commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against an indemnifying party pursuant to
the indemnification provisions of or contemplated by this Section 6,
notify such indemnifying party in writing of the commencement of such
action; but the failure to so notify the indemnifying party (i) will not
relieve the indemnifying party from liability under Section 6 (a) or (b)
hereof 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 Section (a) or (b) hereof.
In case any such action shall be brought against any indemnified party and
it shall notify an indemnifying party of the commencement thereof, such
indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party),
and, after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof, such indemnifying party
shall not be liable to such indemnified party for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by
such indemnified party, in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without
the written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to,
any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not
the indemnified party is an actual or potential party to such action or
claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising
out of such action or claim and (ii) does not include a statement as to or
an admission of fault, culpability or a failure to act by or on behalf of
any indemnified party.
(d) Contribution. If for any reason the indemnification provisions
contemplated by Section 6(a) or Section 6(b) hereof are unavailable to or
insufficient to hold harmless an indemnified party in respect of any
losses, claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall have a joint and
several obligation to contribute to the amount paid or payable to such
indemnified party as a result of such losses, claims, damages or
liabilities (or actions in
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respect thereof) in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and the indemnified party in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as
any other relevant equitable considerations. The relative fault of such
indemnifying party and indemnified party shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of
a material fact or omission or alleged omission to state a material fact
relates to information supplied by such indemnifying party or by such
indemnified party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The parties hereto agree that it would not be just and equitable
if contributions pursuant to this Section 6(d) were determined by pro rata
allocation (even if the holders or any agents or underwriters or all of
them were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations
referred to in this Section 6(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, or
liabilities (or actions in respect thereof) referred to above shall be
deemed to include any legal or other fees or expenses reasonably incurred
by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this Section
6(d), no holder shall be required to contribute any amount in excess of
the amount by which the dollar amount of the proceeds received by such
holder from the sale of any Registrable Securities (after deducting any
fees, discounts and commissions applicable thereto) exceeds the amount of
any damages which such holder has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged
omission, and no underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Registrable
Securities underwritten by it and distributed to the public were offered
to the public exceeds the amount of any damages which such underwriter 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.
(e) The obligations of the Company under this Section 6 shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each officer, director and
partner of each holder, agent and underwriter and each person, if any, who
controls any holder, agent or underwriter within the meaning of the
Securities Act; and the obligations of the holders and any agents or
underwriters contemplated by this Section 6 shall be in addition to any
liability which the respective holder, agent or underwriter may otherwise
have and shall extend, upon the same terms and conditions, to each officer
and director of the Company and to each person, if any, who controls the
Company within the meaning of the Securities Act.
7. Underwritten Offerings.
(a) Selection of Underwriters. If any of the Registrable Securities
covered by the Shelf Registration are to be sold pursuant to an
underwritten offering, the managing underwriter or underwriters thereof
shall be designated by the Majority Holders of the
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Registrable Securities to be included in such offering, provided that such
designated managing underwriter or underwriters is or are reasonably
acceptable to the Company.
(b) Participation by Holders. Each holder of Registrable Securities
hereby agrees with each other such holder that no such holder may
participate in any underwritten offering hereunder unless such holder (i)
agrees to sell such holder's Registrable Securities on the basis provided
in any underwriting arrangements approved by the persons entitled
hereunder to approve such arrangements and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements
and other documents reasonably requested by the Company and reasonably
required under the terms of such underwriting arrangements.
8. Rule 144.
The Company covenants to the holders of Registrable Securities that
to the extent it shall be required to do so under the Exchange Act, the Company
shall timely file the reports required to be filed by it under the Exchange Act
or the Securities Act (including the reports under Sections 13 and 15(d) of the
Exchange Act referred to in subparagraph (c)(1) of Rule 144 adopted by the
Commission under the Securities Act) and the rules and regulations adopted by
the Commission thereunder, and shall take such further action as any holder of
Registrable Securities may reasonably request, all to the extent required from
time to time to enable such holder to sell Registrable Securities without
registration under the Securities Act within the limitations of the exemption
provided by Rule 144. Upon the request of any holder of Registrable Securities
in connection with that holder's sale pursuant to Rule 144, the Company shall
deliver to such holder a written statement as to whether it has complied with
such requirements.
9. Miscellaneous.
(a) No Inconsistent Agreements. The Company represents, warrants,
covenants and agrees that it has not granted, and shall not grant,
registration rights with respect to Registrable Securities or any other
securities which would be inconsistent with the terms contained in this
Agreement.
(b) Notices. All notices, requests, claims, demands, waivers and
other communications hereunder shall be in writing and shall be deemed to
have been duly given when received as follows: if to (i) the Company, to
it at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; (ii) a holder, to it
at the address of such holder set forth in the security register or other
records of the Company; or (iii) to such other address as the Company or
any such holder may have furnished to the other in writing in accordance
herewith; provided, that notices of change of address shall be effective
only upon receipt.
(c) Parties in Interest. All the terms and provisions of this
Agreement shall be binding upon, shall inure to the benefit of and shall
be enforceable by the parties hereto and the holders from time to time of
the Registrable Securities and the respective
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successors and assigns of the parties hereto and such holders. In the
event that any transferee of any holder of Registrable Securities shall
acquire Registrable Securities, in any manner, whether by gift, bequest,
purchase, operation of law or otherwise, such transferee shall, without
any further writing or action of any kind, be deemed a beneficiary hereof
for all purposes and such Registrable Securities shall be held subject to
all of the terms of this Agreement, and by taking and holding such
Registrable Securities such transferee shall be entitled to receive the
benefits of, and be conclusively deemed to have agreed to be bound by all
of the applicable terms and provisions of this Agreement. If the Company
shall so request, any such successor, assign or transferee shall agree in
writing to acquire and hold the Registrable Securities subject to all of
the applicable terms hereof.
(d) Survival. The respective indemnities, agreements,
representations, warranties and each other provision set forth in this
Agreement or made pursuant hereto shall remain in full force and effect
regardless of any investigation (or statement as to the results thereof)
made by or on behalf of any holder of Registrable Securities, any
director, officer or partner of such holder, any agent or underwriter or
any director, officer or partner thereof, or any controlling person of any
of the foregoing, and shall survive delivery of and payment for the
Registrable Securities pursuant to the Purchase Agreement and the transfer
and registration of Registrable Securities by such holder and the
consummation of an Exchange Offer.
(e) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
(f) Headings. The descriptive headings of the several Sections and
paragraphs of this Agreement are inserted for convenience only, do not
constitute a part of this Agreement and shall not affect in any way the
meaning or interpretation of this Agreement.
(g) Entire Agreement; Amendments. This Agreement and the other
writings referred to herein (including the Indenture and the form of
Securities) or delivered pursuant hereto which form a part hereof contain
the entire understanding of the parties with respect to its subject
matter. This Agreement supersedes all prior agreements and understandings
between the parties with respect to its subject matter. This Agreement may
be amended and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively) only by a written instrument duly executed by the Company
and the Majority Holders of the Registrable Securities at the time
outstanding. Each holder of any Registrable Securities at the time or
thereafter outstanding shall be bound by any amendment or waiver effected
pursuant to this Section 9(g), whether or not any notice, writing or
marking indicating such amendment or waiver appears on such Registrable
Securities or is delivered to such holder.
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(h) Inspection. For so long as this Agreement shall be in effect,
this Agreement and a complete list of the names and addresses of all the
holders of Registrable Securities shall be made available for inspection
and copying on any business day by any holder of Registrable Securities
for proper purposes only (which shall include any purpose related to the
rights of the holders of Registrable Securities under the Securities, the
Indenture and this Agreement) at the offices of the Company at the address
thereof set forth in Section 9(b) above and at the office of the Trustee
under the Indenture.
(i) Counterparts. This agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all
such respective counterparts shall together constitute one and the same
instrument.
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If the foregoing is in accordance with your understanding,
please sign and return to us ten counterparts hereof, and upon the
acceptance hereof by you, on behalf of each of the Purchasers, this letter
and such acceptance hereof shall constitute a binding agreement between
each of the Purchasers and the Company. It is understood that your
acceptance of this letter on behalf of each of the Purchasers is pursuant
to the authority set forth in a form of Agreement among Purchasers, the
form of which shall be submitted to the Company for examination upon
request, but without warranty on your part as to the authority of the
signers thereof.
Very truly yours,
NTL Communications Corp.
By:
Name:
Title:
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Accepted as of the date hereof:
Xxxxxxx Xxxxx International
Chase Manhattan International
Salomon Brothers International Limited
Xxxxxxxxx, Xxxxxx & Xxxxxxxx International
UBS AG, acting through its division Warburg Dillon Read Bankers Trust
International PLC
By:
(Xxxxxxx Xxxxx International)
Xxxxxx Xxxxxxx & Co. International Limited
By: --------------------------------------
Name:
Title:
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Exhibit A
NTL Communications Corp.
INSTRUCTION TO EUROCLEAR OR CEDELBANK PARTICIPANTS
(Date of Mailing)
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: ________*
Euroclear or Cedelbank, each of which has an account with the Common Depositary
(the `Common Depositary") has identified you as a Participant through which
beneficial interests in the NTL Communications Corp. (the "Company") 9 3/4%
Senior Deferred Coupon Notes due 2009 (the "Securities") are held.
The Company is in the process of registering the Securities under the Securities
Act of 1933 for resale by the beneficial owners thereof. In order to have their
Securities included in the registration statement, beneficial owners must
complete and return the enclosed Notice of Registration Statement and Selling
Securityholder Questionnaire.
It is important that beneficial owners of the Securities receive a copy of the
enclosed materials as soon as possible as their rights to have the Securities
included in the registration statement depend upon their returning the Notice
and Questionnaire by _______. Please forward a copy of the enclosed documents to
each beneficial owner that holds interests in the Securities through you. If you
require more copies of the enclosed materials or have any questions pertaining
to this matter, please contact the General Counsel of NTL Communications Corp.,
000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, telephone: (000) 000-0000.
*Not less than 20 days from date of mailing.
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NTL Communications Corp.
Notice of Registration Statement
and
Selling Securityholder Questionnaire
(Date)
Reference is hereby made to the Agreement (the "Exchange and Registration Rights
Agreement") between NTL Communications Corp. (the "Company") and the Purchasers
named therein. Pursuant to the Exchange and Registration Rights Agreement, the
Company has filed with the United States Securities and Exchange Commission (the
"Commission") a registration statement on Form __ (the "Shelf Registration
Statement") for the registration and resale under Rule 415 of the Securities Act
of 1933, as amended (the "Securities Act"), of the Company's 9 3/4% Senior
Deferred Coupon Notes due 2009 (the "Securities"). A copy of the Exchange and
Registration Rights Agreement is attached hereto. All capitalized terms not
otherwise defined herein shall have the meanings ascribed thereto in the
Exchange and Registration Rights Agreement.
Each beneficial owner of Registrable Securities is entitled to have the
Registrable Securities beneficially owned by it included in the Shelf
Registration Statement. In order to have Registrable Securities included in the
Shelf Registration Statement, this Notice of Registration Statement and Selling
Securityholder Questionnaire ("Notice and Questionnaire") must be completed,
executed and delivered to the Company's counsel at the address set forth herein
for receipt ON OR BEFORE _________. Beneficial owners of Registrable Securities
who do not complete, execute and return this Notice and Questionnaire by such
date (i) will not be named as selling securityholders in the Shelf Registration
Statement and (ii) may not use the Prospectus forming a part thereof for resales
of Registrable Securities.
Certain legal consequences arise from being named as a selling securityholder in
the Shelf Registration Statement and related Prospectus. Accordingly, holders
and beneficial owners of Registrable Securities are advised to consult their own
securities law counsel regarding the consequences of being named or not being
named as a selling securityholder in the Shelf Registration Statement and
related Prospectus.
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ELECTION
The undersigned holder (the "Selling Securityholder") of Registrable Securities
hereby elects to include in the Shelf Registration Statement the Registrable
Securities beneficially owned by it and listed below in Item (3). The
undersigned, by signing and returning this Notice and Questionnaire, agrees to
be bound with respect to such Registrable Securities by the terms and conditions
of this Notice and Questionnaire and the Exchange and Registration Rights
Agreement, including, without limitation, Section 6 of the Exchange and
Registration Rights Agreement, as if the undersigned Selling Securityholder were
an original party thereto.
Upon any sale of Registrable Securities pursuant to the Shelf Registration
Statement, the Selling Securityholder will be required to deliver to the Company
and Trustee the Notice of Transfer set forth in Appendix A to the Prospectus and
as Exhibit B to the Exchange and Registration Rights Agreement.
The Selling Securityholder hereby provides the following information to the
Company and represents and warrants that such information is true, accurate and
complete:
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NOTICE AND QUESTIONNAIRE
(1)
(a) Full Legal Name of Registered Holder (if not the same as in (a)
above) of Registrable Securities Listed in Item (3) below are held:
(b) Full Legal Name of Selling Securityholder:
(c) Full Legal Name of Participant (if applicable and if not the same as
(b) above) Through Which Registrable Securities Listed in Item (3)
below are Held:
(2) Address for Notices to Selling Securityholder:
__________________
_______
Telephone: ____________
Fax: _______________
Contact Person: _______
(3) Beneficial Ownership of Registrable Securities:
Except as set forth below in this Item (3), the undersigned does not
beneficially own any Securities.
(a) Principal amount of Registrable Securities beneficially owned:
CUSIP/ISN No(s). of such Registrable Securities:
(b) Principal amount of Securities of the Company other than Registrable
Securities beneficially owned:
CUSIP/ISN No(s). of such other Securities:
(c) Principal amount of Registrable Securities which the undersigned
wishes to be included in the Shelf Registration Statement: CUSIP/ISN
No(s). of such Registrable Securities to be included in the Shelf
Registration Statement:
(4) Beneficial Ownership of Other Securities of the Company:
Except as set forth below in this Item (4), the undersigned Selling
Securityholder is not the beneficial or registered owner of any other
securities of the Company, other than the Securities listed above in Item
(3).
State any exceptions here:
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(5) Relationships with the Company:
Except as set forth below, neither the Selling Securityholder nor any of
its affiliates, officers, directors or principal equity holders (5% or
more) has held any position or office or has had any other material
relationship with the Company (or its predecessors or affiliates) during
the past three years.
State any exceptions here: _______________________________________________
__________________________________________________________________________
(6) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder intends
to distribute the Registrable Securities listed above in Item (3) only as
follows (if at all): Such Registrable Securities may be sold from time to
time directly by the undersigned Selling Securityholder or, alternatively,
through underwriters, broker-dealers or agents. If the Registrable
Securities are sold through underwriters or broker-dealers, the Selling
Securityholder will be responsible for underwriting discounts or
commissions or agents' commissions. Such Registrable Securities may be
sold in one or more transactions at fixed prices, at prevailing market
prices at the time of sale, at varying prices determined at the time of
sale, or at negotiated prices. Such sales may be effected in transactions
(which may involve crosses or block transactions) (i) on any national
securities exchange or quotation service on which the Registered
Securities may be listed or quoted at the time of sale, (ii) in the
over-the-counter market, (iii) in transactions otherwise than on such
exchanges or services or in the over-the-counter market, or (iv) through
the writing of options. In connection with sales of the Registrable
Securities or otherwise, the Selling Securityholder may enter into hedging
transactions with broker-dealers, which may in turn engage in short sales
of the Registrable Securities in the course of hedging the positions they
assume. The Selling Securityholder may also sell Registrable Securities
short and deliver Registrable Securities to close out such short
positions, or loan or pledge Registrable Securities to broker-dealers that
in turn may sell such securities.
State any exceptions here: _______________________________________________
__________________________________________________________________________
By signing below, the Selling Securityholder acknowledges that it understands
its obligation to comply, and agrees that it will comply, with the provisions of
the Exchange Act and the rules and regulations thereunder, particularly
Regulation M. The Selling Securityholder agrees that neither it nor any person
acting on its behalf will engage in any transaction in violation of such
provisions.
In the event that the Selling Securityholder transfers all or any portion of the
Registrable Securities listed in Item (3) above after the date on which such
information is provided to the
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Company, the Selling Securityholder agrees to notify the transferee(s) at the
time of the transfer of its rights and obligations under this Notice and
Questionnaire and the Exchange and Registration Rights Agreement.
By signing below, the Selling Securityholder consents to the disclosure of the
information contained herein in its answers to Items (1) through (6) above and
the inclusion of such information in the Shelf Registration Statement and
related Prospectus. The Selling Securityholder understands that such information
will be relied upon by the Company in connection with the preparation of the
Shelf Registration Statement and related Prospectus.
In accordance with the Selling Securityholder's obligation under Section 3(d) of
the Exchange and Registration Rights Agreement to provide such information as
may be required by law for inclusion in the Shelf Registration Statement, the
Selling Securityholder agrees to promptly notify the Company of any inaccuracies
or changes in the information provided herein which may occur subsequent to the
date hereof at any time while the Shelf Registration Statement remains in
effect. All notices hereunder and pursuant to the Exchange and Registration
Rights Agreement shall be made in writing, by hand-delivery, first-class mail,
or air courier guaranteeing overnight delivery as follows:
(i) To the Company: NTL Communications Corp.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
(ii) With a copy to: Skadden, Arps, Slate, Xxxxxxx &
Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Once this Notice and Questionnaire is executed by the Selling Securityholder and
received by the Company's counsel, the terms of this Notice and Questionnaire,
and the representations and warranties contained herein, shall be binding on,
shall inure to the benefit of and shall be enforceable by the respective
successors, heirs, personal representatives, and assigns of the Company and the
Selling Securityholder (with respect to the Registrable Securities beneficially
owned by such Selling Securityholder and listed in Item (3) above). This
Agreement shall be governed in all respects by the laws of the State of New
York.
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this
Notice and Questionnaire to be executed and delivered either in person or by its
duly authorized agent.
Dated: _____________________
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Selling Securityholder
(Print/type full legal name of beneficial owner of Registrable
Securities)
By:
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE ______ TO THE COMPANY'S COUNSEL AT:
NTL Communications Corp.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
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Exhibit B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
The Chase Manhattan Bank
NTL Communications Corp.
x/x Xxx Xxxxx Xxxxxxxxx Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Trust Officer
Re: NTL Communications Corp. (the "Company")
9 3/4% Senior Deferred Coupon Notes due 2009 (the "Notes")
Dear Sirs:
Please be advised that __________ has transferred (pound)_______ aggregate
principal amount at maturity of the above-referenced Notes pursuant to an
effective Registration Statement on Form ________ (File No. 333- ______ ) filed
by the Company.
We hereby certify that the prospectus delivery requirements, if any, of the
Securities Act of 1933, as amended, have been satisfied and that the above-named
beneficial owner of the Notes is named as a "Selling Securityholder" in the
Prospectus dated ________ or in supplements thereto, and that the aggregate
principal amount at maturity of the Notes transferred are the Notes listed in
such Prospectus opposite such owner's name.
Dated:
Very truly yours,
(Name)
By:
(Authorized Signature)
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