EXHIBIT 4.2
13 1/2% SENIOR SECURED DISCOUNT NOTES DUE 2007
REGISTRATION RIGHTS AGREEMENT
Dated August 11, 1997
by and among
PRICE COMMUNICATIONS CELLULAR HOLDINGS, INC.
as the Company,
PRICE COMMUNICATIONS CELLULAR INC.
as the Guarantor,
and
NATWEST CAPITAL MARKETS LIMITED
and
XXXXXXXXXXX XXXXXXX SECURITIES, INC.,
as Purchasers
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This Registration Rights Agreement is made and entered into this
August 11, 1997, by and between Price Communications Cellular Holdings, Inc., a
Delaware corporation (the "Company"), Price Communications Cellular Inc. (the
"Guarantor"), and NatWest Capital Markets Limited ("NatWest"), on behalf of
itself and Xxxxxxxxxxx Xxxxxxx Securities, Inc. (together with NatWest, the
"Purchasers")
This Agreement is made pursuant to the Purchase Agreement, dated
July 31, 1997, among the Company, the Guarantor, Price Communications
Corporation ("PCC"), and each of the Purchasers (the "Purchase Agreement"),
relating to the issuance of units consisting of the Notes (as defined) and the
Warrants (as defined). In order to induce the Purchasers to enter into the
Purchase Agreement, the Company has agreed to provide the registration rights
provided for in this Agreement to the Purchasers and their respective direct and
indirect transferees. 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
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have the following meanings:
Advice: As defined in the last paragraph of Section 5 hereof.
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Affiliate of any specified person shall mean any other person
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directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified person. For the purposes of this definition,
"control," when used with respect to any person, means the power to direct the
management and policies of such person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise, and the terms
"affiliated," "controlling" and "controlled" have meanings correlative to the
foregoing.
Agreement: This Registration Rights Agreement, as the same may be
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amended, supplemented or modified from time to time in accordance with the terms
hereof.
Business Day: Any day except Saturday, Sunday and any day which
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shall be a legal holiday or a day on which banking institutions in the State of
New York generally are
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authorized or required by law or other government actions to close.
Consummate or consummate: When used to qualify the term "Exchange
------------------------
Offer" shall mean validly and lawfully to issue and deliver the Exchange Notes
pursuant to the Exchange Offer for all Transfer Restricted Securities validly
tendered and not validly withdrawn pursuant thereto in accordance with the terms
of this Agreement.
Consummation Date: The date that is 30 days immediately following
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the date that a Registration Statement relative to an Exchange Offer, commenced
pursuant to this Agreement, shall have been declared effective by the SEC.
Effective Date: The date that is 150 days immediately following
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the date of issuance of the Notes.
Effectiveness Period: As defined in Section 3 hereof.
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Event Date: As defined in Section 4(a) hereof.
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Exchange Act: The Securities Exchange Act of 1934, as amended, and
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the rules and regulations promulgated by the SEC pursuant thereto.
Exchange Date: As defined in Section 2(d) hereof.
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Exchange Notes: The 13 1/2% Senior Secured Discount Notes due 2007
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of the Company that are identical to the Notes in all material respects, except
that the provisions regarding restrictions on transfer shall be modified, as
appropriate, and the issuance thereof pursuant to the Exchange Offer shall have
been registered pursuant to an effective Registration Statement in compliance
with the Securities Act.
Exchange Offer: An offer to issue, in exchange for any and all of
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the Transfer Restricted Securities, a like aggregate principal amount at
maturity of Exchange Notes, which offer shall be made by the Company pursuant to
Section 2 hereof.
Holder: Each registered holder from time to time of any Transfer
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Restricted Securities.
Indemnified Person: As defined in Section 7(a) hereof.
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Indenture: The Indenture, dated the date hereof, between the
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Company, the Guarantor and the Trustee thereunder, pursuant to which the Notes
are being issued, as amended or supplemented from time to time in accordance
with the terms thereof.
Liquidated Damages: As defined in Section 4(a) hereof.
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Notes: $153,400,000 aggregate principal amount at maturity of
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13 1/2% Senior Secured Discount Notes due 2007 of the Company being issued
pursuant to the Indenture.
Participating Broker-Dealer: As defined in Section 2(d) hereof.
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Paying Agent: As defined in the Indenture.
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Proceeding: An action, claim, suit or proceeding (including,
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without limitation, an investigation or partial proceeding, such as a deposi-
tion), whether commenced or threatened.
Prospectus: The prospectus included in any Registration Statement
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(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated pursuant to the Securities
Act), as amended or supplemented by any prospectus supplement, with respect to
the terms of the offering of any portion of the Transfer Restricted Securities
or the Exchange Notes covered by such Registration Statement, and all other
amendments and supplements to any such prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference, if any, in such prospectus.
Purchasers: As defined in the preamble hereof.
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Registration Statement: Any registration statement of the Company
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that covers any of the Notes or the Exchange Notes pursuant to the provisions of
this Agreement, including the Prospectus, amendments and supplements to such
registration statement or Prospectus, including pre- and post-effective
amendments, all exhibits thereto, and all material incorporated by reference or
deemed to be incorporated by reference, if any, in such registration statement.
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Rule 144: Rule 144 promulgated by the SEC 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 as a replacement thereto having
substantially the same effect as such Rule.
Rule 144A: Rule 144A promulgated by the SEC pursuant to the
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Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
Rule 158: Rule 158 promulgated by the SEC pursuant to the Securities
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Act, as such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
Rule 174: Rule 174 promulgated by the SEC pursuant to the Securities
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Act, as such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
Rule 415: Rule 415 promulgated by the SEC pursuant to the Securities
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Act, as such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
Rule 424: Rule 424 promulgated by the SEC pursuant to the Securities
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Act, as such Rule may be amended form time to time, or any similar rule or
regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
SEC: The Securities and Exchange Commission.
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Securities Act: The Securities Act of 1933, as amended, and the
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rules and regulations promulgated by the SEC thereunder.
Shelf Registration: As defined in Section 3 hereof.
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Special Counsel: At any time, the special counsel to the Holders of
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Transfer Restricted Securities, the fees and expenses of which will be
reimbursed to such Holder pursuant to Section 6.
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TIA: The Trust Indenture Act of 1939, as amended.
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Transfer Restricted Securities: The Notes, upon original issuance
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thereof, and at all times subsequent thereto, until, in the case of any such
Note, (i) the date on which such Note has been exchanged for an Exchange Note
pursuant to the Exchange Offer, (ii) the date on which such Note has been
registered effectively pursuant to the Securities Act and disposed of in
accordance with the Registration Statement relating to it, (iii) the date on
which such Note is distributed to the public pursuant to Rule 144 (or any
similar provisions then in effect) or is saleable pursuant to Rule 144(k)
promulgated by the SEC pursuant to the Securities Act or (iv) the date on which
such Note ceases to be outstanding.
Trustee: Bank of Montreal Trust Company.
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underwritten registration or underwritten offering: A registration
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in connection with which securities of the Company are sold to an underwriter
for reoffering to the public pursuant to an effective Registration Statement.
Warrants: Warrants to purchase 527,696 shares of Common Stock,
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$.01 par value per share, of PCC.
2. Exchange Offer. (a) To the extent not prohibited by applicable
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law or interpretation of the staff of the SEC, the Company shall use its
reasonable best efforts to file with the SEC a Registration Statement relating
to the Exchange Offer and have declared effective by the SEC such Registration
Statement no later than on or prior to the Effective Date. The offer and sale of
the Exchange Notes pursuant to the Exchange Offer shall be registered pursuant
to the Securities Act on the appropriate form and duly registered or qualified
under all applicable state securities or Blue Sky laws and will comply with all
applicable tender offer rules and regulations of the Exchange Act and 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 or interpretation of the staff of the SEC. No securities shall be included
in the Registration Statement covering the Exchange Offer other than the Notes
and the Exchange Notes.
(b) The Company may require each Holder of Transfer Restricted
Securities as a condition to its participation in the Exchange Offer to
represent to the Company and its counsel in writing (which may be contained in
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the applicable letter of transmittal) that at the time of the consummation of
the Exchange Offer (i) any Exchange Notes received by such Holder will be
acquired in the ordinary course of its business, (ii) such Holder will have no
arrangement or understanding with any person to participate in the distribution
of the Notes or the Exchange Notes within the meaning of the Securities Act,
(iii) if the Holder is not a broker-dealer or is a broker-dealer but will not
receive Exchange Notes for its own account in exchange for Notes, neither the
Holder nor any such other Person is engaged in or intends to participate in a
distribution of the Exchange Notes and (iv) that such Holder is not an Affiliate
of the Company. If the Holder is a broker-dealer that will receive Exchange
Notes for its own account in exchange for Notes, it will represent that the
Notes to be exchanged for the Exchange Notes were acquired by it as a result of
market-making activities or other trading activities, and acknowledge that it
will deliver a prospectus meeting the requirements of the Act in connection with
any resale of such Exchange Notes. It is understood that by acknowledging that
it will deliver and by delivering a prospectus meeting the requirements of the
Act in connection with any resale of such Exchange Notes, the Holder is not
admitting that it is an "underwriter" within the meaning of the Act.
(c) Unless the Exchange Offer would not be permitted by any
applicable law or interpretation of the staff of the SEC, the Company shall
commence the Exchange Offer (within the time periods set forth herein) by
mailing the related exchange offer prospectus and appropriate accompanying
documents to each Holder of Transfer Restricted Securities providing, in
addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this
Agreement and that all Notes validly tendered will be accepted for
exchange;
(ii) the dates of acceptance for exchange (the "Exchange Date"),
which date shall in no event be later than the Consummation Date;
(iii) that Holders of Transfer Restricted Securities electing to have
a Note exchanged pursuant to the Exchange Offer will be required to
surrender such Note or $1,000 integral multiple principal amount at
maturity portion thereof, together with the enclosed letters of
transmittal, to the institution and at the address (located in the Borough
of Manhattan, Xxx Xxxx xx Xxx
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0000X00X.X00
Xxxx) specified in the notice prior to the close of business on the
Exchange Date; and
(iv) that Holders of Transfer Restricted Securities that do not
tender all such securities pursuant to the Exchange Offer will no longer
have any registration rights hereunder with respect to securities not
tendered.
Promptly after the Exchange Date, the Company shall:
(i) accept for exchange all Notes or portions thereof validly
tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Notes or portions thereof so accepted for exchange by the
Company, and issue, or cause the Trustee under the Indenture to
authenticate and mail to each Holder, an Exchange Note equal in principal
amount at maturity to the principal amount at maturity of the Notes
surrendered by such Holder.
(d) The Company and each Purchaser acknowledges that the staff of
the SEC has taken the position that any broker-dealer that owns Exchange Notes
that were received by such broker-dealer for its own account in the Exchange
Offer (a "Participating Broker-Dealer") may be deemed to be an "underwriter"
within the meaning of the Securities Act and must deliver a prospectus meeting
the requirements of the Securities Act in connection with any resale of such
Exchange Notes (other than a resale of an unsold allotment resulting from the
original placement of the Notes).
The Company and each Purchaser also acknowledges that it is the SEC
staff's position that if the Prospectus contained in the Registration Statement
includes a plan of distribution containing a statement to the above effect and
the means by which Participating Broker-Dealers may resell the Exchange Notes,
without naming the Participating BrokerDealers or specifying the amount of
Exchange Notes owned by them, such Prospectus may be delivered by Participating
Broker-Dealers to satisfy their prospectus delivery obligations under the
Securities Act in connection with resales of Exchange Notes for their own
accounts, so long as the Prospectus otherwise meets the requirements of the
Securities Act.
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In light of the above, notwithstanding the other provisions of this
Agreement, the Company agrees that the provisions of this Agreement as they
relate to a Shelf Registration shall also apply to an Exchange Offer to the
extent, and with such reasonable modifications thereto as may be reasonably
requested by any Participating Broker-Dealer or the Company, in each case as
provided in clause (ii) below, as appropriate to expedite or facilitate the
disposition of any Exchange Notes by Participating Broker-Dealers consistent
with the positions of the staff recited in this Section 2(d); provided that:
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(i) the Company shall not be required to amend or supplement the
Prospectus contained in the Registration Statement, as would otherwise be
contemplated by this Agreement, for a period exceeding 90 days after the
Consummation Date (as such period may be extended pursuant to the terms of
this Agreement relating to a Shelf Registration) and Participating
Broker-Dealers shall not be authorized by the Company to deliver and shall
not deliver such Prospectus after such period in connection with the
resales contemplated by this Section 2(d); and
(ii) the application of the Shelf Registration procedures set forth
in this Section 2(d) of this Agreement to an Exchange Offer, to the extent
not otherwise required by the positions of the staff of the SEC or the
Securities Act, will be in conformity with the reasonable request to the
Company by anyone who certifies to the Company in writing in a reasonably
timely manner that they anticipate that they will be a Participating
Broker-Dealer; and provided, further, that in connection with such
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application of the Shelf Registration procedures set forth in Section 3 to
an Exchange Offer, the Company shall be obliged (x) to deal only with one
entity representing the Participating Broker-Dealers, which shall be
NatWest unless it elects not to act as such representative, (y) to pay the
fees and expenses of only one counsel representing the Participating
Broker-Dealers and (z) to cause to be delivered, if requested, customary
"cold comfort" letters with respect to the Prospectus in the form existing
on the Exchange Date and with respect to any subsequent amendment or
supplement, if any, effected during the period specified in clause (i)
above.
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(e) The Purchasers shall have no liability to any person with
respect to any request made pursuant to Section 2(d).
3. Shelf Registration. (a) If the Company determines not to effect
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the Exchange Offer as contemplated by Section 2 hereof or if, prior to the 90th
day after the date of this Agreement, any Holder of Transfer Restricted
Securities shall notify the Company in writing that, based on the advice of
counsel, it is not eligible to participate in the Exchange Offer (other than
because it has an understanding or arrangement with any person to participate in
a distribution of the Exchange Notes) and such Holder has not received a written
opinion from counsel to the Company, reasonably acceptable to such Holder, to
the effect that such Holder is legally permitted to participate in the Exchange
Offer, the Company shall cause to be filed with the SEC pursuant to Rule 415 a
shelf registration statement, which may be an amendment to a registration
statement filed in connection with the Exchange Offer, relating to all such
Transfer Restricted Securities the Holders of which have provided the
information required pursuant to Section 3(b) hereof, and shall use its
reasonable best efforts to have such Registration Statement declared effective
by the SEC on or prior to the Effective Date. In such circumstances, the Company
shall use its reasonable best efforts to cause the Shelf Registration to remain
continuously effective under the Securities Act, until (A) 24 months following
the date on which the Shelf Registration was initially declared effective
(subject to extension pursuant to the last paragraph of Section 5 hereof) or (B)
if sooner, the date immediately following the date that all Transfer Restricted
Securities covered by the Shelf Registration have been sold pursuant thereto
(the "Effectiveness Period"); provided that the Effectiveness Period shall be
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extended to the extent required to permit dealers to comply with the applicable
prospectus delivery requirements of Rule 174 and as otherwise provided herein.
(b) No Holder of Transfer Restricted Securities may include any of
its Transfer Restricted Securities in any shelf registration statement pursuant
to this Agreement unless and until such Holder furnishes to the Company in
writing, within 15 Business Days after receipt of a request therefor, such
information as the Company may reasonably request for use in connection with any
shelf registration statement or Prospectus or preliminary prospectus included
therein. No Holder of Transfer Restricted Securities shall be entitled to
liquidated damages pursuant to Section 4
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hereof unless and until such Holder shall have provided all such reasonably
requested information. Each Holder as to which any shelf registration statement
is being effected agrees to furnish promptly to the Company all information
required to be disclosed in order to make the information previously furnished
to the Company by such Holder not materially misleading.
4. Liquidated Damages. (a) The parties hereto agree that the Holders
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of Transfer Restricted Securities will suffer damages if the Company fails to
fulfill its obligations pursuant to Section 2 or Section 3, as applicable, and
that it would not be feasible to ascertain the extent of such damages.
Accordingly, if (i) the applicable Registration Statement referred to in either
Section 2 or Section 3 has not been declared effective by the SEC on or prior to
the Effective Date or (ii) either (A) the Exchange Offer has not been
consummated on or prior to the later of the Consummation Date or 180 days
immediately following the date of the issuance of the Notes, or (B) at any time
prior to the end of the Effectiveness Period the Shelf Registration shall have
ceased to be continuously effective without being succeeded within 30 days by an
additional Shelf Registration having been filed with and declared effective by
the SEC (each such event referred to in clauses (i) and (ii), an "Event Date"),
then the Company agrees to pay, as liquidated damages, and not as a penalty, to
each Holder of a Transfer Restricted Security, an additional amount (the
"Liquidated Damages") equal to (a) during the first 90-day period beginning on,
and including, the Event Date, $0.05 per calendar week (or partial calendar
week), per $1,000 principal amount at maturity of Transfer Restricted Securities
held by such Holder and (b) during each subsequent 90-day period immediately
following the final day of the prior 90-day period, an additional $0.05 per
calendar week (or partial calendar week) per $1,000 of Accreted Value of
Transfer Restricted Securities held by such Holder, up to a maximum amount of
Liquidated Damages of $0.25 per calendar week (or partial calendar week) per
$1,000 principal amount at maturity of Transfer Restricted Securities, and, in
all cases, ending on, but excluding, (x) in the case of clause (i) above, the
date on which the Registration Statement is declared effective, (y) in the case
of clause (ii)(A) above, the date on which the Exchange offer is consummated and
(z) in the case of clause (ii)(B) above, the date the Shelf Registration again
becomes effective under the Securities Act.
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(b) The Company shall notify the Trustee and Paying Agent under the
Indenture immediately upon the happening of each and every Event Date. The
Company shall pay the Liquidated Damages due on the Transfer Restricted
Securities by depositing with the Paying Agent (which shall not be the Company
for these purposes), in trust, for the benefit of the Holders thereof, at least
one Business Day prior to the next interest payment date specified by the
Indenture, sums sufficient to pay the Liquidated Damages then due. The
Liquidated Damages due shall be payable on each interest payment date specified
by the Indenture to the record Holder entitled to receive the interest payment
to be made on such date. Each obligation to pay Liquidated Damages shall be
deemed to accrue from and including the applicable Event Date.
(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 of Transfer Restricted Securities by reason of the
failure of the Exchange Offer to be consummated or the Shelf Registration to
remain effective, as the case may be, in accordance with this Agreement.
5. Registration Procedures. In connection with the Company's
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registration obligations hereunder, the Company shall effect such registrations
on the appropriate form available for the sale of the Transfer Restricted
Securities or Exchange Notes, as applicable, to (i) permit the sale of Exchange
Notes and (ii) in the case of a Shelf Registration, permit the sale of Transfer
Restricted Securities in accordance with the method or methods of disposition
thereof specified by the Holders of a majority in aggregate principal amount at
maturity of Transfer Restricted Securities, and pursuant thereto the Company
shall as expeditiously as possible:
(a) In the case of a Shelf Registration, no fewer than five Business
Days prior to the initial filing of a Registration Statement or Prospectus
and no fewer than two Business Days prior to the filing of any amendment
or supplement thereto (including any document that would be incorporated
or deemed to be incorporated therein by reference), furnish to the Holders
of the Transfer Restricted Securities, their Special Counsel and the
managing underwriters, if any, copies of all such documents proposed to be
filed, which documents (other than those incorporated or deemed to be
incorporated by reference) will be subject to the review of such
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Holders, their Special Counsel and such underwriters, if any, and cause
the officers and directors of the Company, counsel to the Company and
independent certified public accountants to the Company to respond to such
inquiries as shall be necessary, in the opinion of respective counsel to
such Holders and such underwriters, to conduct a reasonable investigation
within the meaning of the Securities Act; provided, however, that the
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Company shall not be deemed to have kept a Registration Statement
effective during the applicable period if it voluntarily takes or fails to
take any action that results in selling Holders of the Transfer Restricted
Securities covered thereby not being able to sell such Transfer Restricted
Securities pursuant to Federal securities laws during that period (and the
time period during which such Registration Statement is required to remain
effective hereunder shall be extended by the number of days during which
such selling Holders of Transfer Restricted Securities are not able to
sell Transfer Restricted Securities). The Company shall not file any such
Shelf Registration Statement or related Prospectus or any amendments or
supplements thereto to which the Holders of a majority of the Transfer
Restricted Securities, their Special Counsel, or the managing
underwriters, if any, shall reasonably object on a timely basis;
(b) Prepare and file with the SEC such amendments, including
post-effective amendments, to each Registration Statement as may be
necessary to keep such Registration Statement continuously effective for
the applicable time period; 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
Act and the Exchange Act with respect to the disposition of all securities
covered by such Registration Statement during such period in accordance
with the intended methods of disposition by the sellers thereof set forth
in such Registration Statement as so amended or in such Prospectus as so
supplemented;
(c) Notify the Holders of Transfer Restricted Securities to be sold
or, in the case of an Exchange offer, tendered for, their Special Counsel
and the managing underwriters, if any, promptly (and in the case of an
event specified by clause (i)(A) of this paragraph in no event fewer than
two Business Days prior to such
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filing), and (if requested by any such Person), confirm such notice in
writing, (i)(A) when a Prospectus or any Prospectus supplement or
post-effective amendment is proposed to be filed, and, (B) with respect to
a Registration Statement or any post-effective amendment, when the same
has become effective, (ii) in the case of a Shelf Registration, of any
request by the SEC or any other Federal or state governmental authority
for amendments or supplements to a Registration Statement or related
Prospectus or for additional information, (iii) of the issuance by the
SEC, any state securities commission, any other governmental agency or any
court of any stop order, order or injunction suspending or enjoining the
use or the effectiveness of a Registration Statement or the initiation of
any proceedings for that purpose, (iv) if at any time any of the
representations and warranties of the Company contained in any agreement
(including any underwriting agreement) contemplated hereby cease to be
true and correct in all material respects, (v) of the receipt by the
Company of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Transfer
Restricted Securities or Exchange Notes for sale in any jurisdiction, or
the initiation or threatening of any proceeding for such purpose, and (vi)
in the case of a Shelf Registration, of the happening of any event 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;
(d) Use its reasonable best efforts to avoid the issuance of, or, if
issued, obtain the withdrawal of any order enjoining or suspending the use
or effectiveness of a Registration Statement or the lifting of any
suspension of the qualification (or exemption from qualification) of any
of the Transfer Restricted
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Securities or Exchange Notes for sale in any Jurisdiction, at the
earliest practicable moment;
(e) If a Shelf Registration is filed pursuant to Section 3 and if
requested by the managing underwriters, if any, or the Holders of a
majority in aggregate principal amount at maturity of the Transfer
Restricted Securities being sold in connection with such offering, (i)
promptly incorporate in a Prospectus supplement or post-effective
amendment such information as the managing underwriters, if any, and such
Holders agree should be included therein, and (ii) make all required
filings of such Prospectus supplement or such post-effective amendment as
soon as practicable after the Company has received notification of the
matters to be incorporated in such Prospectus supplement or post-effective
amendment; provided, however, that the Company shall not be required to
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take any action pursuant to this Section 5(e) that would, in the opinion
of counsel for the Company, violate applicable law;
(f) Furnish to each Holder of Transfer Restricted Securities and
Exchange Notes, their Special Counsel and each managing underwriter, if
any, without charge, at least one conformed copy of each Registration
Statement and each amendment thereto, including financial statements and
schedules, all documents incorporated or deemed to be incorporated therein
by reference, and all exhibits to the extent requested by each Holder
(including those previously furnished or incorporated by reference) as
soon as practicable after the filing of such documents with the SEC;
(g) Deliver to each Holder of Transfer Restricted Securities and
Exchange Notes, their Special Counsel, and the underwriters, if any,
without charge, as many copies of the Prospectus or Prospectuses
(including each form of prospectus) and each amendment or supplement
thereto as such Persons reasonably request; and the Company hereby
consents to the use of such Prospectus and each amendment or supplement
thereto by each of the selling Holders of Transfer Restricted Securities
and the underwriters, if any, in connection with the offering and sale of
the Transfer Restricted Securities covered by such Prospectus and any
amendment or supplement thereto;
(h) Prior to any public offering of Transfer Restricted Securities
and prior to the consummation of
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the Exchange Offer, use its reasonable best efforts to register or qualify
or cooperate with the Holders of Transfer Restricted Securities to be sold
or tendered for, 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 Securities or
Exchange Notes for offer and sale under the securities or Blue Sky laws of
such jurisdictions within the United States as any Holder or underwriter
reasonably requests 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 necessary or advisable to enable the disposition in
such jurisdictions of the Transfer Restricted Securities or Exchange Notes
covered by the applicable Registration Statement; provided, however, that
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the Company shall not be required to qualify generally to do business in
any jurisdiction where it is not then so qualified or to take any action
that would subject it to general service of process in any such
jurisdiction where it is not then so subject or subject the Company to any
tax in any such jurisdiction where it is not then so subject;
(i) In connection with any sale or transfer of Transfer Restricted
Securities that will result in such securities no longer being Transfer
Restricted Securities, cooperate with the Holders and the managing
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing Transfer Restricted Securities or Exchange 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
and to enable such Transfer Restricted Securities or Exchange Notes to be
in such denominations and registered in such names as the managing
underwriters, if any, or Holders may request in writing to the Company at
least two Business Days prior to any sale of Transfer Restricted
Securities or Exchange Notes;
(j) Use its reasonable best efforts to cause the offering of the
Transfer Restricted Securities and Exchange Notes covered by the
Registration Statement to be registered with or approved by such other
governmental agencies or authorities within the United States, except as
may be required as a consequence of the nature of such selling Holder's
business, in which
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case the Company will cooperate in all reasonable respects with the filing
of such Registration Statement and the granting of such approvals as may
be necessary to enable the seller or sellers thereof or the underwriters,
if any, to consummate the disposition of such Transfer Restricted
Securities and Exchange Notes; provided, however, that the Company shall
-------- -------
not be required to register the Transfer Restricted Securities and
Exchange Notes in any jurisdiction that would subject it to general
service of process in any such jurisdiction where it is not then so
subject or subject it to any tax in any such jurisdiction where it is not
then so subject or to require it to qualify to do business in any
jurisdiction where it is not then so qualified;
(k) Upon the occurrence of any event contemplated by Paragraph
5(c)(vi), as promptly as practicable, prepare a supplement or amendment,
including, if appropriate, a post-effective amendment, to each
Registration Statement or a supplement to the related Prospectus or any
document incorporated or deemed to be incorporated therein by reference,
and file any other required document so that, as thereafter delivered,
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;
(l) Prior to the effective date of the first Registration Statement
relating to the Transfer Restricted Securities or Exchange Notes, as
applicable, to provide a CUSIP number for the Transfer Restricted
Securities and Exchange Notes, as applicable;
(m) If a Shelf Registration is filed pursuant to Section 3, enter
into such agreements (including an underwriting agreement in form, scope
and substance as is customary in underwritten offerings) and take all such
other reasonable actions in connection therewith (including those
reasonably requested by the managing underwriters, if any, or the Holders
of a majority in aggregate principal amount at maturity of the Transfer
Restricted Securities being sold) in order to expedite or facilitate the
disposition of such Transfer Restricted Securities, and in such
connection, whether or not an underwriting agreement is entered into and
whether or not the registration is an underwritten
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0000G54F.W51
registration, (i) make such representations and warranties to the Holders
of such Transfer Restricted Securities and the underwriters, if any, with
respect to the business of the Company and its subsidiaries (including
with respect to businesses or assets acquired or to be acquired by any of
them), and the Registration Statement, Prospectus and documents, if any,
incorporated or deemed to be incorporated by reference therein, in each
case, in form, substance and scope 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 Company and updates
thereof (which counsel and opinions (in form, scope and substance) shall
be reasonably satisfactory to the managing underwriters, if any, and
Special Counsel to the Holders of the Transfer Restricted Securities being
sold), addressed to each selling Holder of Transfer Restricted Securities
and each of the underwriters, if any, covering the matters customarily
covered in opinions requested in underwritten offerings and such other
matters as may be reasonably requested by such Special Counsel and
underwriters; (iii) use its best efforts to obtain customary "cold
comfort" letters and updates thereof from the independent certified public
accountants of the Company (and, if necessary, any other independent
certified public accountants of any business which may hereafter be
acquired by the Company for which financial statements and financial data
are required to be included in the Registration Statement), addressed
(where reasonably possible) to each selling Holder of Transfer Restricted
Securities and each of the underwriters, if any, such letters to be in
customary form and covering matters of the type customarily covered in
"cold comfort" letters in connection with underwritten offerings; (iv) if
an underwriting agreement is entered into, the same shall contain
indemnification provisions and procedures no less favorable to the selling
holders and the underwriters, if any, than those set forth in Section 7
hereof (or such other provisions and procedures acceptable to Holders of a
majority in aggregate principal amount at maturity of Transfer Restricted
Securities covered by such Registration Statement and the managing
underwriters); and (v) deliver such documents and certificates as may be
reasonably requested by the Holders of a majority in aggregate principal
amount at maturity of the Transfer Restricted Securities being sold, their
Special Counsel and the managing
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underwriters, if any, to evidence the continued validity of the
representations and warranties made pursuant to clause 5(m)(i) above and
to evidence compliance with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Company;
(n) In the case of a Shelf Registration, make available for
inspection by a representative of the Holders of Transfer Restricted
Securities being sold, any underwriter participating in any such
disposition of Transfer Restricted Securities, if any, and any attorney,
consultant or accountant retained by such selling Holders or underwriter,
at the offices where normally kept, during reasonable business hours, all
pertinent financial and other records, pertinent corporate documents and
properties of the Company and its subsidiaries (including with respect to
business and assets acquired or to be acquired to the extent that such
information is available to the Company), and cause its subsidiaries
(including with respect to business and assets acquired or to be acquired
to the extent that such information is available to the Company) to supply
such pertinent information in each case reasonably requested by any such
representative, underwriter, attorney, consultant or accountant in
connection with such Shelf Registration, provided, however, that such
-------- -------
Persons shall first agree in writing with the Company that any information
that is reasonably and in good faith designated by the Company in writing
as confidential at the time of delivery of such information shall be kept
confidential by such Persons, unless (i) disclosure of such information is
required by court or administrative order or is necessary to respond to
inquiries of regulatory authorities, (ii) disclosure of such information
is required by law (including any disclosure requirements pursuant to
Federal Securities Laws in connection with the filing of any Registration
Statement or the use of any prospectus referred to in this Agreement),
(iii) such information becomes generally available to the public other
than as a result of a disclosure or failure to safeguard by such Person or
(iv) such information becomes lawfully available to such Person from a
source other than the Company and such source lawfully obtained such
information and is not otherwise bound by a confidentiality agreement;
(o) Provide an indenture trustee for the Transfer Restricted
Securities and the Exchange Notes, as the
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case may be, and cause the Indenture to be qualified under the TIA not
later than the effective date of the first Registration Statement relating
to the Transfer Restricted Securities or the Exchange Notes, as
applicable; and in connection therewith, cooperate with the trustee under
the Indenture and the Holders of the Transfer Restricted Securities and
the Exchange Notes, to effect such changes to the Indenture as may be
required for such Indenture to be so qualified in accordance with the
terms of the TIA; and execute, and use its reasonable 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 the Indenture to be so qualified in a timely
manner;
(p) Comply with all applicable rules and regulations of the SEC and
make generally available to their securityholders earning statements
satisfying the provisions of Section 11(a) of the Securities Act and Rule
158 thereunder (or any similar rule promulgated under the Securities Act),
no later than 45 days after the end of any 12-month period (or 90 days
after the end of any 12-month period if such period is a fiscal year) (i)
commencing at the end of any fiscal quarter in which Transfer Restricted
Securities are sold to underwriters in a firm commitment or reasonable
efforts underwritten offering and (ii) if not sold to underwriters in such
an offering, commencing on the first day of the first fiscal quarter after
the effective date of a Registration Statement, which statement shall
cover said period, consistent with the requirements of Rule 158; and
(q) If an Exchange Offer is to be consummated, upon delivery of the
Transfer Restricted Securities by such Holders to the Company in exchange
for the Exchange Notes, the Company shall xxxx, or caused to be marked, on
such Transfer Restricted Securities that such Transfer Restricted
Securities are being cancelled in exchange for the Exchange Notes; in no
event shall such Transfer Restricted Securities be marked as paid or
otherwise satisfied.
The Company may require each seller of Transfer Restricted
Securities as to which any registration is being effected to furnish to the
Company such information regarding the distribution of such Transfer Restricted
Securities as is required by law to be disclosed in the applicable
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Registration Statement and the Company may exclude from such registration the
Transfer Restricted Securities of any seller who unreasonably fails to furnish
such information within a reasonable time after receiving such request.
If any such Registration Statement refers to any Holder by name or
otherwise as the Holder of any securities of the Company, then such Holder shall
have the right to require (i) the insertion therein of language, in form and
substance reasonably satisfactory to such Holder, to the effect that the holding
by such Holder of such securities is not to be construed as a recommendation by
such Holder of the investment quality of the Company's securities covered
thereby and that such holding does not imply that such Holder will assist in
meeting any future financial requirements of the Company, or (ii) in the event
that such reference to such Holder by name or otherwise is not required by the
Securities Act or any similar Federal statute then in force, the deletion of the
reference to such Holder in any amendment or supplement to the Registration
Statement filed or prepared subsequent to the time that such reference ceases to
be required.
In the case of a Shelf Registration pursuant to Section 3 hereof,
each Holder of Transfer Restricted Securities agrees by acquisition of such
Transfer Restricted Securities that, upon receipt of any notice from the Company
of the happening of any event of the kind described in Section 5(c)(ii),
5(c)(iii), 5(c)(v) or 5(c)(vi) hereof, such Holder will forthwith discontinue
disposition of such Transfer Restricted Securities covered by such Registration
Statement or Prospectus until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 5(k) hereof, or until
it is advised in writing (the "Advice") by the Company that the use of the
applicable Prospectus may be resumed, and, in either case, has received copies
of any additional or supplemental filings that are incorporated or deemed to be
incorporated by reference in such Prospectus. If the Company shall give any such
notice, the Effectiveness Period shall be extended by the number of days during
such period from and including the date of the giving of such notice to and
including the date when each seller of Transfer Restricted Securities covered by
such Registration Statement shall have received (x) the copies of the
supplemented or amended Prospectus contemplated by Section 5(k) hereof or (y)
the Advice, and, in either case, has received copies of any additional or
supplemental filings that are incorporated or deemed to be incorporated by
reference in such Prospectus.
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6. Registration Expenses. (a) All fees and expenses incident to the
---------------------
performance of or compliance with this Agreement by the Company shall be borne
by it whether or not any Registration Statement is filed or becomes effective
and whether or not any securities are issued or sold pursuant to any
Registration Statement. The fees and expenses referred to in the foregoing
sentence shall include, without limitation, (i) all registration and filing fees
(including, without limitation, fees and expenses (A) with respect to filings
required to be made with the National Association of Securities Dealers, Inc.
and (B) in compliance with securities or Blue Sky laws (including, without
limitation and in addition to that provided for in (b) below, fees and
disbursements of counsel for the underwriters or Holders in connection with Blue
Sky qualifications of the Transfer Restricted Securities or Exchange Notes and
determination of the eligibility of the Transfer Restricted Securities or
Exchange Notes for investment under the laws of such jurisdictions as the
managing underwriters, if any, or Holders of a majority in aggregate principal
amount at maturity of Transfer Restricted Securities may designate), (ii)
printing expenses (including, without limitation, expenses of printing
certificates for Transfer Restricted Securities or Exchange Notes in a form
eligible for deposit with The Depository Trust Company and of printing
Prospectuses if the printing of Prospectuses is requested by the managing
underwriters, if any, or by the Holders of a majority in principal amount of the
Transfer Restricted Securities included in or tendered for in connection with
any Registration Statement), (iii) messenger, telephone and delivery expenses,
(iv) fees and disbursements of counsel for the Company and Special Counsel for
the Holders (plus any local counsel, deemed appropriate by the Holders of a
majority in aggregate principal amount of the Transfer Restricted Securities),
in accordance with the provisions of Section 6(b) hereof, (v) fees and
disbursements of all independent certified public accountants referred to in
Section 5(m)(iii) (including, without limitation, the expenses of any special
audit and "cold comfort" letters required by or incident to such performance),
(vi) Securities Act liability insurance, if the Company so desires such
insurance, and (vii) fees and expenses of all other persons retained by the
Company. In addition, the Company shall pay its internal expenses (including,
without limitation, all salaries and expenses of their officers and employees
performing legal or accounting duties), the expense of any annual audit, and the
fees and expenses incurred in connection with the listing of the securities to
be registered on any securities exchange. Notwithstanding the
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foregoing or anything in this Agreement to the contrary, each Holder shall pay
all underwriting discounts and commissions of any underwriters with respect to
any Notes or Exchange Notes sold by it.
(b) In connection with any Registration hereunder, the Company shall
reimburse the Holders of the Transfer Restricted Securities being registered or
tendered for in such registration for the reasonable fees and disbursements of
not more than one firm of attorneys representing the selling Holders (in
addition to any local counsel) chosen by the Holders of a majority in aggregate
principal amount at maturity of the Transfer Restricted Securities.
7. Indemnification. (a) The Company agrees to indemnify and hold
---------------
harmless (i) each of the Purchasers, each Holder of Transfer Restricted
Securities, each holder of Exchange Notes, each Participating Broker-Dealer and
(ii) each person, if any, who controls (within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act) any of the foregoing (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 the Purchasers, each Holder of Transfer Restricted
Securities, each Holder of Exchange Notes, each Participating Broker- Dealer or
any controlling person (any person referred to in clause (i), (ii) or (iii) may
hereinafter be referred to as an "Indemnified Person"), from and against any and
------------------
all losses, claims, damages, liabilities and judgments caused by any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement, Prospectus or form of Prospectus or in any amendment or
supplement thereto or in any preliminary Prospectus, or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein (in the case of any
Prospectus or form of Prospectus or supplement thereto, in light of the
circumstances under which they were made) not misleading, except insofar as such
losses, claims, damages, liabilities or judgments are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to any Indemnified Person furnished in writing to the
Company by or on behalf of such Indemnified Person expressly for use therein;
provided that the foregoing indemnity with respect to any preliminary prospectus
--------
shall not inure to the benefit of any Indemnified Person from whom the person
asserting such losses, claims, damages, liabilities and judgments purchased
securities if such untrue
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0000G54F.W51
statement or omission or alleged untrue statement or omission made in such
preliminary prospectus is eliminated or remedied in the Prospectus and a copy of
the Prospectus shall not have been furnished to such person in a timely manner
due to the wrongful action or wrongful inaction of such Indemnified Person.
(b) In case any action shall be brought against any Indemnified
Person, based upon any Registration Statement or any such Prospectus or any
amendment or supplement thereto and with respect to which indemnity may be
sought against the Company, such Indemnified Person shall promptly notify the
Company in writing and the Company shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to such Indemnified Person and
payment of all fees and expenses. Any Indemnified Person shall have the right to
employ separate counsel in any such action and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Person, unless (i) the employment of such counsel shall have
been specifically authorized in writing by the Company, (ii) the Company shall
have failed to assume the defense and employ counsel or (iii) the named parties
to any such action (including any impleaded parties) include both such
Indemnified Person and the Company and such Indemnified Person shall have been
advised by counsel that there may be one or more legal defenses available to it
which are different from or additional to those available to the Company (in
which case the Company shall not have the right to assume the defense of such
action on behalf of such Indemnified Person, it being understood, however, that
the Company 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 reasonable fees
and expenses of more than one separate firm of attorneys (in addition to any
local counsel) for all such Indemnified Persons, which firm shall be designated
in writing by such Indemnified Persons, and that all such fees and expenses
shall be reimbursed as they are incurred). The Company shall not be liable for
any settlement of any such action effected without its written consent but if
settled with the written consent of the Company, the Company agrees to indemnify
and hold harmless any Indemnified Person from and against any loss or liability
by reason of such settlement. No indemnifying party 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
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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.
(c) In connection with any Registration Statement in which a Holder
of Transfer Restricted Securities is participating, such Holder of Transfer
Restricted Securities agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, its officers, employees, representatives
and agents and any person controlling the Company within the meaning of Section
15 of the Act or Section 20 of the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Indemnified Person but only with
reference to information relating to such Indemnified Person furnished in
writing by or on behalf of such Indemnified Person expressly for use in such
Registration Statement. In case any action shall be brought against the Company,
any of its directors, any such officer or any person controlling the Company
based on such Registration Statement and in respect of which indemnity may be
sought against any Indemnified Person, the Indemnified Person shall have the
rights and duties given to the Company (except that if the Company shall have
assumed the defense thereof, such Indemnified Person shall not be required to do
so, but may employ separate counsel therein and participate in defense thereof
but the fees and expenses of such counsel shall be at the expense of such
Indemnified Person), and the Company, its directors, any such officers and any
person controlling the Company shall have the rights and duties given to the
Indemnified Person, by Section 7(b) hereof.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party in respect of any losses, claims, damages,
liabilities or judgments referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims,
damages, liabilities and judgments (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and each
Indemnified Person on the other hand from the offering of the Notes or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
each such Indemnified Person in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities or judgments, as
well as
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any other relevant equitable considerations. The relative fault of the Company
and each such Indemnified Person shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission to state a material fact relates to information supplied by the
Company or such Indemnified Person and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the Purchasers agree that it would not be just and
equitable if contribution pursuant to this Section 7(d) were determined by pro
rata allocation (even if the Indemnified Person 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 the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, no Indemnified Person shall be
required to contribute any amount in excess of the amount by which the total net
profit received by it in connection with the sale of the Notes pursuant to this
Agreement exceeds the amount of any damages which 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 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Indemnified Persons' obligations to contribute pursuant
to this Section 7(d) are several in proportion to the respective amount of Notes
included in any such Registration Statement by each Indemnified Person and not
joint.
8. Rules 144 and 144A. The Company shall use its best efforts to
------------------
file the reports required to be filed by it under the Securities Act and the
Exchange Act in a timely manner and, if at any time it is not required to file
such reports but in the past had been required to or did file such reports, it
will, upon the request of any Holder of Transfer Restricted Securities, make
available other information as required by, and so long as necessary to permit,
sales of its Transfer Restricted Securities pursuant to Rule 144A.
Notwithstanding the foregoing, nothing in this Section 8 shall be deemed to
require the Company to register any of its securities pursuant to the Exchange
Act.
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0000G54F.W51
9. Underwritten Registrations. If any of the Transfer Restricted
--------------------------
Securities 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 administer the offering will be selected by the Holders of a majority
in aggregate principal amount of such Transfer Restricted Securities included in
such offering, subject to the consent of the Company (which will not be
unreasonably withheld or delayed).
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted
Securities on the basis reasonably provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
10. Miscellaneous.
-------------
(a) Remedies. In the event of a breach by the Company, or by a
--------
Holder of Transfer Restricted Securities, of any of their obligations under this
Agreement, each Holder of Transfer Restricted Securities or the Company, as the
case may be, in addition to being entitled to exercise all rights granted by
law, including recovery of damages, will be entitled to specific performance of
its rights under this Agreement. Subject to Section 4 hereof, the Company and
each Holder of Transfer Restricted Securities agree 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) No Inconsistent Agreements. The Company will not enter into any
--------------------------
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders of Transfer Restricted Securities in this Agreement or
otherwise conflicts with the provisions hereof. The Company has not previously
entered into any agreement granting any registration rights with respect to any
of its debt securities to any person except for agreements with holders of
registration rights granted prior to the date hereof (from whom all necessary
consents or waivers have been obtained). Without limiting the generality of the
foregoing, without the
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written consent of the Holders of a majority in aggregate principal amount at
maturity of the then outstanding Transfer Restricted Securities, the Company
shall not grant to any person the right to request it to register any of its
debt securities under the Securities Act unless the rights so granted are
subject in all respects to the prior rights of the Holders of Transfer
Restricted Securities set forth herein, and are not otherwise in conflict or
inconsistent with the provisions of this Agreement.
(c) No Piggyback on Registrations. The Company shall not grant to
-----------------------------
any of its securityholders (other than the Holders of Transfer Restricted
Securities in such capacity) the right to include any securities of the Company
in any Shelf Registration or Exchange Offer other than Transfer Restricted
Securities.
(d) 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 departures from the provisions hereof
may not be given, unless they have obtained the written consent of the Holders
of a majority of the then outstanding aggregate principal amount of Transfer
Restricted Securities; provided, however, that, for the purposes of this
Agreement, Transfer Restricted Securities that are owned, directly or
indirectly, by the Company or an Affiliate of the Company are not deemed
outstanding. Notwithstanding the foregoing, a waiver or consent to depart from
the provisions hereof with respect to a matter that relates exclusively to the
rights of Holders of Transfer Restricted Securities whose securities are being
sold pursuant to a Registration Statement and that does not directly or
indirectly affect the rights of other Holders of Transfer Restricted Securities
may be given by Holders of a majority in aggregate principal amount of the
Transfer Restricted Securities being sold by such Holders pursuant to such
Registration Statement, provided, however, that the provisions of this sentence
-------- -------
may not be amended, modified, or supplemented except in accordance with the
provisions of the immediately preceding sentence.
(e) Notices. All notices and other communications provided for
-------
herein shall be made in writing by hand- delivery, next-day air courier,
certified first-class mail, return receipt requested, telex or facsimile:
(i) if to the Company, as provided in the Xxxxxxxx
Xxxxxxxxx,
-00-
0000X00X.X00
(xx) if to the Purchasers, as provided in the Purchase Agreement, or
(iii) if to any other Person who is then the registered Holder of any
Transfer Restricted Securities, to the address of such Holder as it
appears in the Note register of the Company.
Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given: when delivered by hand,
if personally delivered; one business day after being timely delivered to a
next-day air courier; five business days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; and when receipt is
acknowledged by the recipient's telecopier machine, if telecopied.
(f) Successors and Assigns. This Agreement shall inure to the
----------------------
benefit of and be binding upon the successors and permitted assigns of each of
the parties and shall inure to the benefit of each Holder of Transfer Restricted
Securities. The Company may not assign its rights or obligations hereunder
without the prior written consent of each Holder of any Transfer Restricted
Securities. Notwithstanding the foregoing, no transferee shall have any of the
rights granted under this Agreement until such transferee shall acknowledge its
rights and obligations hereunder by a signed written statement of such
transferee's acceptance of such rights and obligations.
(g) 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.
(h) Governing Law; Submission to Jurisdiction; Waiver of Jury Trial.
---------------------------------------------------------------
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. THE COMPANY 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, JURISDICTION OF THE AFORESAID COURTS.
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(i) Severability. The remedies provided herein are cumulative and
------------
not exclusive of any remedies provided by law. 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 reasonable efforts to find and employ an
alternative means to achieve the same or substantially 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 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.
(j) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof. All
references made in this Agreement to "Section" and "paragraph" refer to such
Section or paragraph of this Agreement, unless expressly stated otherwise.
(k) Attorneys' Fees. In any action or proceeding brought to enforce
---------------
any provision of this Agreement, or where any provision hereof or thereof is
validly asserted as a defense, the prevailing party, as determined by the court,
shall be entitled to recover reasonable attorneys' fees in addition to any other
available remedy.
-29-
0000G54F.W51
IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed as of the date first written above.
PRICE COMMUNICATIONS CELLULAR
HOLDINGS, INC.,
By:
-----------------------------------
Name:
Title:
PRICE COMMUNICATIONS CELLULAR
INC.,
By:
-----------------------------------
Name:
Title:
NATWEST CAPITAL MARKETS LIMITED
on behalf of
the Purchasers
By:______________________________
Name:
Title:
0000G54F.W51
IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed as of the date first written above.
PRICE COMMUNICATIONS CELLULAR
HOLDINGS, INC.,
By:
-------------------------------
Name: Xxxxxx Xxxxx
Title: President
PRICE COMMUNICATIONS CELLULAR
INC.,
By:
-------------------------------
Name: Xxxxxx Xxxxx
Title: President
NATWEST CAPITAL MARKETS LIMITED
on behalf of
the Purchasers
By:/s/Xxxxxxx X. Xxxxx
--------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
0000G54F.W51
