EXHIBIT 1
CELLCO PARTNERSHIP
VERIZON WIRELESS CAPITAL LLC
$4,000,000,000
$2,500,000,000 5.375% Notes due 2006
$1,500,000,000 Floating Rate Notes due 2003
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
December 17, 2001
X.X. XXXXXX SECURITIES INC.
XXXXXXX XXXXX XXXXXX INC.
BANC OF AMERICA SECURITIES, INC.
FIRST UNION SECURITIES, INC.
TD SECURITIES (USA) INC.
XXXXXXX, XXXXX & CO.
XXXXXXX LYNCH, XXXXXX, XXXXXX &
XXXXX, INCORPORATED
THE XXXXXXXX CAPITAL GROUP, L.P.
c/o X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
c/o Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Cellco Partnership, a Delaware general partnership (the
"Partnership"), and Verizon Wireless Capital LLC, a Delaware limited liability
company ("Capital" and together with the Partnership, the "Issuers"), propose to
issue and sell to X.X. Xxxxxx Securities Inc., Xxxxxxx Xxxxx Xxxxxx Inc. and the
other initial purchasers set forth above (the "Initial Purchasers"), upon the
terms and subject to the conditions set forth in a Purchase Agreement, dated
December 12, 2001 (the "Purchase Agreement"), $2,500,000,000 aggregate principal
amount of its 5.375% Notes due 2006 (the "Fixed Rate Securities") and
$1,500,000,000 aggregate principal amount of its Floating Rate Notes due 2003
(the "Floating Rate Securities";
together with the Fixed Rate Securities, the "Securities"). Capitalized terms
used but not defined herein shall have the meanings given to such terms in the
Purchase Agreement.
As an inducement to the Initial Purchasers to enter into the Purchase
Agreement and in satisfaction of a condition to the obligations of the Initial
Purchasers thereunder, the Issuers agree with the Initial Purchasers, for the
benefit of the holders (including the Initial Purchasers) of the Securities, the
Exchange Securities (as defined herein) and the Private Exchange Securities (as
defined herein) (collectively, the "Holders"), as follows:
1. Registered Exchange Offer. The Issuers shall (i) prepare and, not
later than 230 days following the date of original issuance of the Securities
(the "Issue Date"), file with the Securities and Exchange Commission (the
"Commission") a registration statement (the "Exchange Offer Registration
Statement") on an appropriate form under the Securities Act with respect to a
proposed offer to the Holders of the Securities (the "Registered Exchange
Offer") to issue and deliver to Holders of the Fixed Rate Securities, in
exchange for their Fixed Rate Securities, a like aggregate principal amount of
debt securities of the Issuers (the "Fixed Rate Exchange Securities") that are
identical in all material respects to the Fixed Rate Securities and to issue and
deliver to Holders of the Floating Rate Securities, in exchange for their
Floating Rate Securities, a like aggregate principal amount of debt securities
of the Issuers (the "Floating Rate Exchange Securities," together with the
Floating Rate Exchange Securities, the "Exchange Securities") that are identical
in all material respects to the Floating Rate Securities, except, in each case,
for the transfer restrictions relating to the Securities, (ii) use their
reasonable best efforts to cause the Exchange Offer Registration Statement to
become effective under the Securities Act no later than 300 days after the Issue
Date and the Registered Exchange Offer to be consummated no later than 330 days
after the Issue Date and (iii) keep the Exchange Offer Registration Statement
effective for not less than 20 business days (or longer, if required by
applicable law) after the date on which notice of the Registered Exchange Offer
is mailed to the Holders (such period being called the "Exchange Offer
Registration Period"). The Exchange Securities will be issued under the
Indenture.
Upon the effectiveness of the Exchange Offer Registration Statement,
the Issuers shall promptly commence the Registered Exchange Offer, it being the
objective of such Registered Exchange Offer to enable each Holder electing to
exchange Securities for the applicable Exchange Securities (assuming that such
Holder (a) is not an affiliate of the Issuers, (b) is not an Exchanging Dealer
(as defined herein) not complying with the requirements of the next sentence,
(c) is not an Initial Purchaser holding Securities that have, or that are
reasonably likely to have, the status of an unsold allotment in an initial
distribution, (d) acquires the Exchange Securities in the ordinary course of
such Holder's business and (e) has no arrangements or understandings with any
person to participate in the distribution of the Exchange Securities) and to
trade such Exchange Securities from and after their receipt without any
limitations or restrictions under the Securities Act. The Issuers, the Initial
Purchasers and each Exchanging Dealer acknowledge that, pursuant to current
interpretations by the Commission's staff of Section 5 of the Securities Act,
each Holder that is a broker-dealer electing to exchange Securities, acquired
for its own account as a result of market-making activities or other trading
activities, for the applicable Exchange Securities (an "Exchanging Dealer"), is
required to deliver a prospectus containing substantially the information set
forth in Annex A hereto on the cover, in Annex B hereto in the "Exchange Offer
Procedures" section and
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the "Purpose of the Exchange Offer" section and in Annex C hereto in the "Plan
of Distribution" section of such prospectus in connection with a sale of any
such Exchange Securities received by such Exchanging Dealer pursuant to the
Registered Exchange Offer.
If, prior to the consummation of the Registered Exchange Offer, any
Holder holds any Securities acquired by it that have, or that are reasonably
likely to be determined to have, the status of an unsold allotment in an initial
distribution, or any Holder is not entitled to participate in the Registered
Exchange Offer, the Issuers shall, upon the request of any such Holder,
simultaneously with the delivery of the Exchange Securities in the Registered
Exchange Offer, issue and deliver to any such Holder, in exchange for the Fixed
Rate Securities held by such Holder, a like aggregate principal amount of debt
securities of the Issuers (the "Fixed Rate Private Exchange Securities") that
are identical in all material respects to the Fixed Rate Exchange Securities and
issue and deliver to any such Holder, in exchange for the Floating Rate
Securities held by such Holder, a like aggregate principal amount of debt
securities of the Issuers (the "Floating Rate Private Exchange Securities,"
together with the Fixed Rate Private Exchange Securities, the "Private Exchange
Securities), that are identical in all material respects to the Floating Rate
Exchange Securities, except, in each case, for the transfer restrictions
relating to such Private Exchange Securities (the "Private Exchange"). The
Private Exchange Securities will be issued under the Indenture, and the Issuers
shall use their reasonable best efforts to cause the Private Exchange Securities
to bear the same CUSIP number as the applicable Exchange Securities to the
extent permitted by law or Commission policy (in the opinion of counsel to the
Issuers).
In connection with the Registered Exchange Offer, the Issuers shall:
(a) mail to each Holder a copy of the prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter
of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 20
business days (or longer, if required by applicable law) after the date on
which notice of the Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange
Offer with an address in the Borough of Manhattan, The City of New York;
(d) permit Holders to withdraw tendered Securities at any time prior
to the close of business, New York City time, on the last business day on
which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws that are applicable
to the Registered Exchange Offer.
As soon as practicable after the close of the Registered Exchange
Offer and any Private Exchange, the Issuers shall:
(a) accept for exchange all Securities tendered and not validly
withdrawn pursuant to the Registered Exchange Offer and the Private
Exchange;
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(b) deliver to the Trustee for cancellation all Securities so accepted
for exchange; and
(c) cause the Trustee promptly to authenticate and deliver to each
Holder, the applicable Exchange Securities or Private Exchange Securities,
as the case may be, equal in principal amount and maturity to the
Securities of such Holder so accepted for exchange.
The Issuers shall use their reasonable best efforts to keep the
Exchange Offer Registration Statement effective and to amend and supplement the
prospectus contained therein in order to permit such prospectus to be used by
all persons subject to the prospectus delivery requirements of the Securities
Act for such period of time as such persons must comply with such requirements
in order to resell the Exchange Securities; provided, that (i) in the case where
such prospectus and any amendment or supplement thereto must be delivered by an
Exchanging Dealer, such period shall be the lesser of 90 days and the date on
which all Exchanging Dealers have sold all Exchange Securities held by them and
(ii) the Issuers shall make such prospectus and any amendment or supplement
thereto available to any broker-dealer for use in connection with any resale of
any Exchange Securities for a period of not less than 90 days after the
consummation of the Registered Exchange Offer.
The Indenture shall also provide that the Fixed Rate Securities, the
Fixed Rate Exchange Securities and the Fixed Rate Private Exchange Securities
shall vote and consent together on all matters as one class and that none of the
Fixed Rate Securities, the Fixed Rate Exchange Securities or the Fixed Rate
Private Exchange Securities will have the right to vote or consent as a separate
class on any matter.
The Indenture shall also provide that the Floating Rate Securities,
the Floating Rate Exchange Securities and the Floating Rate Private Exchange
Securities shall vote and consent together on all matters as one class and that
none of the Floating Rate Securities, the Floating Rate Exchange Securities or
the Floating Rate Private Exchange Securities will have the right to vote or
consent as a separate class on any matter.
Interest on each Exchange Security and Private Exchange Security
issued pursuant to the Registered Exchange Offer and in the Private Exchange
will accrue from the last interest payment date on which interest was paid on
the Securities surrendered in exchange therefore or, if no interest has been
paid on the Securities, from the Issue Date.
Each Holder participating in the Registered Exchange Offer shall be
required to represent to the Issuers that at the time of the consummation of the
Registered Exchange Offer (i) any Exchange Securities received by such Holder
will be acquired in the ordinary course of business, (ii) such Holder will have
no arrangements or understanding with any person to participate in the
distribution of the Securities or the Exchange Securities within the meaning of
the Securities Act and (iii) such Holder is not an affiliate of either of the
Issuers or, if it is such an affiliate, such Holder will comply with the
registration and prospectus delivery requirements of the Securities Act to the
extent applicable.
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Notwithstanding any other provisions hereof, the Issuers will ensure
that (i) any Exchange Offer Registration Statement and any amendment thereto and
any prospectus forming part thereof and any supplement thereto complies in all
material respects with the Securities Act and the rules and regulations of the
Commission thereunder, (ii) any Exchange Offer Registration Statement and any
amendment thereto does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading and
(iii) any prospectus forming part of any Exchange Offer Registration Statement,
and any supplement to such prospectus, does not, as of the consummation of the
Registered Exchange Offer, include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading.
2. Shelf Registration. If (i) because of any change in law or
applicable interpretations thereof by the Commission's staff the Issuers are not
permitted to effect the Registered Exchange Offer as contemplated by Section 1
hereof, or (ii) for any other reason the Registered Exchange Offer is not
consummated within 330 days after the Issue Date, or (iii) any Initial Purchaser
so requests with respect to the Securities or Private Exchange Securities not
eligible to be exchanged for the applicable Exchange Securities in the
Registered Exchange Offer and held by it following the consummation of the
Registered Exchange Offer, or (iv) any applicable law or interpretations do not
permit any Holder to participate in the Registered Exchange Offer, or (v) any
Holder that participates in the Registered Exchange Offer does not receive
freely transferable Exchange Securities in exchange for tendered Securities, or
(vi) any Securities validly tendered pursuant to the Registered Exchange Offer
are not exchanged for the applicable Exchange Securities within 10 days of being
accepted for exchange:
(a) The Issuers shall use their reasonable best efforts to file as
promptly as practicable (but in no event more than 45 days after so required or
requested pursuant to this Section 2) with the Commission (the "Shelf Filing
Date"), and thereafter shall use their reasonable best efforts to cause to be
declared effective, a shelf registration statement on an appropriate form under
the Securities Act relating to the offer and sale of the Transfer Restricted
Securities (as defined below) by the Holders thereof from time to time in
accordance with the methods of distribution set forth in such registration
statement (hereafter, a "Shelf Registration Statement" and, together with any
Exchange Offer Registration Statement, a "Registration Statement").
(b) The Issuers shall use their reasonable best efforts to keep the
Shelf Registration Statement continuously effective in order to permit the
prospectus forming part thereof to be used by Holders of Transfer Restricted
Securities for a period of two years from the Issue Date or such shorter period
that will terminate when all the Transfer Restricted Securities become eligible
for resale without volume restrictions pursuant to Rule 144 under the Securities
Act (in any such case, such period being called the "Shelf Registration
Period"). Except as permitted by Section 2(e), the Issuers shall be deemed not
to have used their reasonable best efforts to keep the Shelf Registration
Statement effective during the requisite period if either of them voluntarily
takes any action that would result in Holders of Transfer Restricted Securities
covered thereby not being able to offer and sell such Transfer Restricted
Securities during that period, unless such action is required by applicable law.
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(c) Notwithstanding any other provisions hereof, the Issuers will
ensure that (i) any Shelf Registration Statement and any amendment thereto and
any prospectus forming part thereof and any supplement thereto complies in all
material respects with the Securities Act and the rules and regulations of the
Commission thereunder, (ii) any Shelf Registration Statement and any amendment
thereto (in either case, other than with respect to information included therein
in reliance upon or in conformity with written information furnished to the
Issuers by or on behalf of any Holder specifically for use therein (the
"Holders' Information")) does 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 and (iii) any prospectus forming part
of any Shelf Registration Statement, and any supplement to such prospectus (in
either case, other than with respect to Holders' Information), does not include
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(d) In the absence of events described in clauses (i) through (vi) of
the first paragraph of this Section 2, the Issuers shall not be permitted to
discharge their obligations hereunder by means of the filing of a Shelf
Registration Statement.
(e) The Issuers will have the ability to suspend the Shelf
Registration Statement, as limited below (a "Suspension Period"), if the
Partnership determines, in its reasonable judgment, that the continued
effectiveness and/or use of the Shelf Registration Statement would require the
disclosure of confidential information or interfere with any financing,
acquisition, reorganization or other material transaction involving either of
the Issuers. A Suspension Period shall commence on and include the date that the
Issuers give written notice to all Holders that the Shelf Registration Statement
is no longer effective or the prospectus included therein is no longer usable
for offers and sales of Transfer Restricted Securities covered by such Shelf
Registration Statement and continue until holders of such Transfer Restricted
Securities (as defined below) either receive the copies of the supplemented or
amended prospectus contemplated by Section 4(j) hereof or receive an Advice (as
defined below) that use of the prospectus may be resumed. No Suspension Period
shall be for more than 30 consecutive days and any such Suspension Periods may
not exceed 60 days in the aggregate during any twelve month period.
3. Additional Interest.
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(a) The parties hereto agree that the Holders of Transfer Restricted
Securities will suffer damages if the Issuers fail to fulfill their obligations
under Section 1 or Section 2, as applicable, and that it would not be feasible
to ascertain the extent of such damages. Accordingly, if (i) the Exchange Offer
Registration Statement is not filed with the Commission on or prior to 230 days
after the Issue Date or the Shelf Registration Statement is not filed with the
Commission prior to the Shelf Filing Date, (ii) the Exchange Offer Registration
Statement is not declared effective within 300 days after the Issue Date or the
Shelf Registration Statement is not declared effective within 300 days after the
Shelf Filing Date, (iii) the Registered Exchange Offer is not consummated on or
prior to 330 days after the Issue Date, or (iv) the Shelf Registration Statement
is filed and declared effective within 300 days after the Shelf Filing Date but
shall thereafter cease to be effective (at any time that the Issuers are
obligated to maintain the effectiveness thereof) without being succeeded within
45 days by an additional Registration
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Statement filed and declared effective (each such event referred to in clauses
(i) through (iv), a "Registration Default"), the Issuers will be jointly and
severally obligated to pay additional interest to each Holder of Transfer
Restricted Securities affected thereby, during the period of one or more such
Registration Defaults, in an amount equal to .25% per annum on the principal
amount of Transfer Restricted Securities held by such Holder until (i) the
applicable Registration Statement is filed, (ii) the Exchange Offer Registration
Statement is declared effective and the Registered Exchange Offer is
consummated, (iii) the Shelf Registration Statement is declared effective or
(iv) the Shelf Registration Statement again becomes effective, as the case may
be. The rate for additional interest will not exceed .25% per annum
notwithstanding the existence of multiple defaults. Additional interest shall
only accrue while there exists one or more Registration Defaults. As used
herein, the term "Transfer Restricted Securities" means each Security until the
earlier to occur of (i) the date on which such Security has been exchanged for a
freely transferable applicable Exchange Security in the Registered Exchange
Offer, (ii) the date on which it has been effectively registered under the
Securities Act and disposed of in accordance with the Shelf Registration
Statement or (iii) the date on which it is distributed to the public pursuant to
Rule 144 under the Securities Act or is saleable pursuant to Rule 144(k) under
the Securities Act. Notwithstanding anything to the contrary in this Section
3(a), neither of the Issuers shall be required to pay additional interest to a
Holder of Transfer Restricted Securities if such Holder failed to comply with
its obligations to make the representations set forth in the second to last
paragraph of Section 1 or failed to provide the information required to be
provided by it, if any, pursuant to Section 4(n).
(b) The Issuers shall notify the Trustee and the Paying Agent under
the Indenture immediately upon the happening of each and every Registration
Default. The Issuers shall pay the additional interest due on the Transfer
Restricted Securities by depositing with the Paying Agent, in trust, for the
benefit of the Holders thereof, prior to 10:00 a.m., New York City time, on the
next interest payment date specified by the Indenture and the applicable
Securities, sums sufficient to pay the additional interest then due. The
additional interest due shall be payable on each interest payment date specified
by the Indenture and the applicable Securities to the record holder entitled to
receive the interest payment to be made on such date. Each obligation to pay
additional interest shall be deemed to accrue from and including the date of the
applicable Registration Default to but excluding the date on which it is cured.
(c) The parties hereto agree that the additional interest provided for
in this Section 3 constitutes a reasonable estimate of and is intended to
constitute the sole damages that will be suffered by Holders of Transfer
Restricted Securities by reason of the failure of (i) the Shelf Registration
Statement or the Exchange Offer Registration Statement to be filed, (ii) the
Shelf Registration Statement to remain effective or (iii) the Exchange Offer
Registration Statement to be declared effective and the Registered Exchange
Offer to be consummated, in each case to the extent required by this Agreement.
4. Registration Procedures. In connection with any Registration
Statement, the following provisions shall apply:
(a) The Issuers shall (i) furnish to counsel for the Initial
Purchasers, prior to the filing thereof with the Commission, a copy of the
Registration Statement and each amendment
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thereof and each supplement, if any, to the prospectus included therein; (ii)
include the information set forth in Annex A hereto on the cover, in Annex B
hereto in the "Exchange Offer Procedures" section and the "Purpose of the
Exchange Offer" section and in Annex C hereto in the "Plan of Distribution"
section of the prospectus forming a part of the Exchange Offer Registration
Statement, and include the information set forth in Annex D hereto in the Letter
of Transmittal delivered pursuant to the Registered Exchange Offer; and (iii) if
requested by any Initial Purchaser, include the information required by Items
507 or 508 of Regulation S-K, as applicable, in the prospectus forming a part of
the Exchange Offer Registration Statement.
(b) The Issuers shall advise counsel for the Initial Purchaser, each
Exchanging Dealer and the Holders (in the case of a Shelf Registration
Statement) and, if requested by any such person, confirm such advice in writing
(which advice pursuant to clauses (ii)-(v) hereof shall be accompanied by an
instruction to suspend the use of the prospectus until the requisite changes
have been made):
(i) when any Registration Statement and any amendment thereto has
been filed with the Commission and when such Registration Statement or any
post-effective amendment thereto has become effective;
(ii) of any request by the Commission for amendments or supplements
to any Registration Statement or the prospectus included therein or for
additional information;
(iii) of the issuance by the Commission of any stop order suspending
the effectiveness of any Registration Statement or the initiation of any
proceedings for that purpose;
(iv) of the receipt by the Issuers of any notification with respect
to the suspension of the qualification of the Securities, the Exchange
Securities or the Private Exchange Securities for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose; and
(v) of the happening of any event that requires the making of any
changes in any Registration Statement or the prospectus included therein in
order that the statements therein are not misleading and do not omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading.
(c) The Issuers will make every reasonable effort to obtain the
withdrawal at the earliest possible time of any order suspending the
effectiveness of any Registration Statement.
(d) The Issuers will furnish to each Holder of Transfer Restricted
Securities included within the coverage of any Shelf Registration Statement,
without charge, at least one conformed copy of such Shelf Registration Statement
and any post-effective amendment thereto, including financial statements and
schedules and, if any such Holder so requests in writing, all exhibits thereto
(including those, if any, incorporated by reference).
(e) The Issuers will, during the Shelf Registration Period, promptly
deliver to each Holder of Transfer Restricted Securities included within the
coverage of any Shelf
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Registration Statement, without charge, as many copies of the prospectus
(including each preliminary prospectus) included in such Shelf Registration
Statement and any amendment or supplement thereto as such Holder may reasonably
request; and the Issuers consent, subject to the limitations set forth herein,
to the use of such prospectus or any amendment or supplement thereto by each of
the selling Holders of Transfer Restricted Securities in connection with the
offer and sale of the Transfer Restricted Securities covered by such prospectus
or any amendment or supplement thereto.
(f) The Issuers will furnish to each Initial Purchaser and each
Exchanging Dealer, and to any other Holder who so requests, without charge, at
least one conformed copy of the Exchange Offer Registration Statement and any
post-effective amendment thereto, including financial statements and schedules
and, if any Initial Purchaser or Exchanging Dealer or any such Holder so
requests in writing, all exhibits thereto (including those, if any, incorporated
by reference).
(g) The Issuers will, during the Exchange Offer Registration Period or
the Shelf Registration Period, as applicable, promptly deliver to each Initial
Purchaser, each Exchanging Dealer and such other persons that have notified the
Issuers that they are required to deliver a prospectus following the Registered
Exchange Offer, without charge, as many copies of the final prospectus included
in the Exchange Offer Registration Statement or the Shelf Registration Statement
and any amendment or supplement thereto as such Initial Purchaser, Exchanging
Dealer or other persons may reasonably request; and the Issuers consent to the
use of such prospectus or any amendment or supplement thereto by any such
Initial Purchaser, Exchanging Dealer or other persons, as applicable, as
aforesaid.
(h) Prior to the effective date of any Registration Statement, the
Issuers will use their reasonable best efforts to register or qualify, or
cooperate with the Holders of Securities, Exchange Securities or Private
Exchange Securities included therein and their respective counsel in connection
with the registration or qualification of, such Securities, Exchange Securities
or Private Exchange Securities for offer and sale under the securities or blue
sky laws of such jurisdictions as any such Holder reasonably requests in writing
and do any and all other acts or things necessary or advisable to enable the
offer and sale in such jurisdictions of the Securities, Exchange Securities or
Private Exchange Securities covered by such Registration Statement; provided
that, neither of the Issuers will be required to qualify generally to do
business in any jurisdiction where it is not then so qualified or to take any
action which would subject it to general service of process or to taxation in
any such jurisdiction where it is not then so subject.
(i) The Issuers will cooperate with the Holders of Securities,
Exchange Securities or Private Exchange Securities to facilitate the timely
preparation and delivery of certificates representing Securities, Exchange
Securities or Private Exchange Securities to be sold pursuant to any
Registration Statement free of any restrictive legends and in such denominations
and registered in such names as the Holders thereof may request in writing prior
to sales of Securities, Exchange Securities or Private Exchange Securities
pursuant to such Registration Statement.
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(j) If any event contemplated by Section 4(b)(ii) through (v) occurs
during the period for which the Issuers are required to maintain an effective
Registration Statement, the Issuers will, subject to Section 2(e), promptly
prepare and file with the Commission a post-effective amendment to the
Registration Statement or a supplement to the related prospectus or file any
other required document so that, as thereafter delivered to purchasers of the
Securities, Exchange Securities or Private Exchange Securities from a Holder,
the prospectus will not include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
(k) Not later than the effective date of the applicable Registration
Statement, the Issuers will provide a CUSIP number for each series of the
Securities, each series of the Exchange Securities and each series of the
Private Exchange Securities (if any), as the case may be, and provide the
applicable trustee with printed certificates for each series of Securities, each
series of the Exchange Securities or each series of the Private Exchange
Securities, as the case may be, in a form eligible for deposit with The
Depository Trust Company.
(l) The Issuers will comply with all applicable rules and regulations
of the Commission and will make generally available to its security holders as
soon as practicable after the effective date of the Shelf Registration Statement
an earning statement satisfying the provisions of Section 11(a) of the
Securities Act; provided that in no event shall such earning statement be
delivered later than 45 days after the end of a 12-month period (or 90 days, if
such period is a fiscal year) beginning with the first month of the Issuers'
first fiscal quarter commencing after the effective date of the applicable
Registration Statement, which statement shall cover such 12-month period.
(m) The Issuers will cause the Indenture to be qualified under the
Trust Indenture Act as required by applicable law in a timely manner.
(n) The Issuers may require each Holder of Transfer Restricted
Securities to be registered pursuant to any Shelf Registration Statement to
furnish to the Issuers such information concerning the Holder and the
distribution of such Transfer Restricted Securities as the Issuers may from time
to time reasonably require for inclusion in such Shelf Registration Statement,
and the Issuers may exclude from such registration the Transfer Restricted
Securities of any Holder that fails to furnish such information within a
reasonable time after receiving such request.
(o) In the case of a Shelf Registration Statement, each Holder of
Transfer Restricted Securities to be registered pursuant thereto agrees by
acquisition of such Transfer Restricted Securities that, upon receipt of any
notice from the Issuers pursuant to Section 2(e) or Sections 4(b)(ii) through
(v), such Holder will discontinue disposition of such Transfer Restricted
Securities until such Xxxxxx's receipt of copies of the supplemental or amended
prospectus contemplated by Section 4(j) or until advised in writing (the
"Advice") by the Issuers that the use of the applicable prospectus may be
resumed. If the Issuers shall give any notice under Section 2(e) or Sections
4(b)(ii) through (v) during the period that the Issuers are required to maintain
an effective Registration Statement (the "Effectiveness Period"), such
Effectiveness Period shall be extended by the number of days during such period
from and including the date
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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 supplemental or amended prospectus contemplated
by Section 4(j) (if an amended or supplemental prospectus is required) or (y)
the Advice (if no amended or supplemental prospectus is required).
(p) In the case of a Shelf Registration Statement, the Issuers shall
enter into such customary agreements (including, if requested, an underwriting
agreement in customary form) and take all such other action, if any, as Holders
of a majority in aggregate principal amount of the Securities, Exchange
Securities and Private Exchange Securities being sold or the managing
underwriters (if any) shall reasonably request in order to facilitate any
disposition of Securities, Exchange Securities or Private Exchange Securities
pursuant to such Shelf Registration Statement.
(q) In the case of a Shelf Registration Statement, the Issuers shall
(i) make reasonably available for inspection by a representative of, and Special
Counsel (as defined below) acting for, Holders of a majority in aggregate
principal amount of the Securities, Exchange Securities and Private Exchange
Securities being sold and any underwriter participating in any disposition of
Securities, Exchange Securities or Private Exchange Securities pursuant to such
Shelf Registration Statement, all relevant financial and other records,
pertinent corporate documents and properties of the Partnership and the
Partnership's subsidiaries to the same extent the Issuers would customarily make
such information available in the context of due diligence for an underwritten
public offering and (ii) use its reasonable best efforts to have its officers,
directors, employees, accountants and counsel supply all relevant information
reasonably requested by such representative, Special Counsel or any such
underwriter (an "Inspector") in connection with the preparation of such Shelf
Registration Statement; provided that, such representative, Special Counsel or
underwriter executes a customary confidentiality agreement.
(r) In the case of a Shelf Registration Statement, the Issuers shall,
if requested by Holders of a majority in aggregate principal amount of the
Securities, Exchange Securities and Private Exchange Securities being sold,
their Special Counsel or the managing underwriters (if any) in connection with
such Shelf Registration Statement, use its reasonable best efforts to cause (i)
its counsel to deliver an opinion relating to the Shelf Registration Statement
and the Securities, Exchange Securities or Private Exchange Securities, as
applicable, in customary form, (ii) its officers to execute and deliver all
customary documents and certificates requested by Holders of a majority in
aggregate principal amount of the Securities, Exchange Securities and Private
Exchange Securities being sold, their Special Counsel or the managing
underwriters (if any) and (iii) its independent public accountants to provide a
comfort letter or letters in customary form, subject to receipt of appropriate
documentation as contemplated, and only if permitted, by Statement of Auditing
Standards No. 72.
5. Registration Expenses. The Issuers will bear all expenses incurred
in connection with the performance of its obligations under Sections 1, 2, 3 and
4, and the Issuers will reimburse the Initial Purchasers and the Holders for the
reasonable fees and disbursements of one firm of attorneys chosen by the Holders
of a majority in aggregate principal amount of the
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Securities, the Exchange Securities and the Private Exchange Securities, as the
case may be, to be sold pursuant to each Registration Statement (the "Special
Counsel") acting for the Initial Purchasers or Holders in connection therewith.
Holders shall bear all of their other costs, including any underwriting
discounts or commissions.
6. Indemnification.
---------------
(a) In connection with a Shelf Registration Statement or in connection
with any prospectus delivery pursuant to an Exchange Offer Registration
Statement by an Initial Purchaser or Exchanging Dealer, as applicable, each of
the Issuers, jointly and severally, will indemnify and hold harmless each Holder
(including, without limitation, any such Initial Purchaser or Exchanging
Dealer), its affiliates, their respective officers, directors, employees,
representatives and agents, and each person, if any, who controls such Holder
within the meaning of the Securities Act or the Exchange Act (collectively
referred to for purposes of this Section 6 and Section 7 as a Holder) against
any losses, claims, damages or liabilities ("Losses"), joint or several, to
which such Holder may become subject, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof including, without limitation, any
loss or claim relating to purchases and sales of Securities, Exchange Securities
or Private Exchange Securities) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement or any prospectus forming part thereof or in 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 each Holder for any legal or other expenses reasonably incurred by
such Holder in connection with investigating or defending any such action or
claim as such expenses are incurred; provided, however, that the Issuers shall
not be liable 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 made in any Registration
Statement or any prospectus forming part thereof or in any amendment or
supplement thereto in reliance upon and in conformity with written information
furnished to the Issuers by any Holder or Initial Purchaser expressly for use
therein; and provided, further, that the Issuers shall not be liable to any
Holder, Initial Purchaser or Exchanging Dealer or any such affiliate, officer,
director, employee, representative, agent or control person under the indemnity
agreement in this subsection (a) with respect to any prospectus contained in a
Registration Statement to the extent that any Loss of such Holder, Initial
Purchaser or Exchanging Dealer results from the fact that such Holder, Initial
Purchaser or Exchanging Dealer sold Transfer Restricted Securities to a person
as to whom it shall be established that there was not sent or given, at or prior
to the written confirmation of such sale, a copy of such prospectus then amended
or supplemented if the Issuers had previously furnished copies thereof in
sufficient quantity to such Holder, Initial Purchaser or Exchanging Dealer, as
the case may be, and sufficiently in advance of the delivery of written
confirmation of such sale to allow for distribution by such date and the Loss of
such Holder, Initial Purchaser or Exchanging Dealer, as the case may be, results
from an untrue statement or omission of a material fact contained in or omitted
from such prospectus and corrected in the prospectus as then amended or
supplemented and such correction would have cured the defect giving rise to such
Loss or to the extent such Holder disposed of Transfer Restricted Securities to
the person asserting the claim from which such Losses arise pursuant to a
Registration Statement and sent or delivered, or was required by
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law to send or deliver, a Prospectus to such person in connection with such
disposition and such Xxxxxx received written notice of the suspension of the
Registration Statement prior to the date of such disposition and such untrue
statement or alleged untrue statement or omission or alleged omission was the
reason for such notice.
(b) In connection with a Shelf Registration Statement, each Holder, Initial
Purchaser or Exchanging Dealer will indemnify and hold harmless the Issuers and
their officers, directors and persons against any losses, claims, damages or
liabilities to which the such persons may become subject 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 a Shelf Registration Statement 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 (1) such untrue
statement or alleged untrue statement or omission or alleged omission was made
in the Registration Statement or any prospectus forming part thereof or in any
amendment or supplement thereto in reliance upon and in conformity with written
information furnished to the Issuers by such Holder, Initial Purchaser or
Exchanging Dealer expressly for use therein or (2) such Holder disposed of
Transfer Restricted Securities to the person asserting the claim from which such
Losses arose pursuant to a Registration Statement and sent or delivered, or was
required by law to send or deliver, a Prospectus to such person in connection
with such disposition, (ii) such Holder received a Suspension Notice in writing
prior to the date of such disposition and (iii) such untrue statement or alleged
untrue statement or omission or alleged omission was the reason for the
Suspension Notice; and such Holder, Initial Purchaser or Exchanging Dealer will
reimburse the Partnership for any legal or other expenses reasonably incurred by
the Issuers in connection with investigating or defending any such action or
claim as such expenses are incurred; provided, however, that no such Holder
shall be liable for any indemnity claims hereunder in excess of the amount of
net proceeds received by such Holder from the sale of Securities, Exchange
Securities or Private Exchange Securities pursuant to such Shelf Registration
Statement.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the 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 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, the indemnifying party shall not be
liable to such indemnified party under such subsection 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
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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) If the indemnification provided for in this Section 6 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Issuers from the offering and sale of the
Securities, on the one hand, and the Holders, on the other hand, with respect to
the sale by such Holders of Securities, Exchange Securities or Private Exchange
Securities. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law or if the indemnified party failed
to give the notice required under subsection (c) above, then each indemnifying
party shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Issuers, on the one hand, and the Holders, on
the other hand, 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 benefits
received by the Issuers, on the one hand, and the Holders, on the other hand,
shall be deemed to be in the same proportion as the total net proceeds from the
offering of the Securities (before deducting expenses) received by or on behalf
of the Issuers, on the one hand, bear to the total proceeds received by such
Holder with respect to its sale of Securities, Exchange Securities or Private
Exchange Securities, on the other. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Issuers, on the one hand, or the Holders,
on the other hand, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Issuers and the Holders agree that it would not be just and equitable if
contributions pursuant to this subsection (d) were determined by pro rata
allocation (even if the Holders 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 above in this subsection (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 in this subsection
(d) shall be deemed to include 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 subsection (d), an
indemnifying party that is a Holder of Securities, Exchange Securities or
Private Exchange Securities shall not be required to contribute any amount in
excess of the amount by which the total price at which the Securities, Exchange
Securities or Private Exchange Securities sold by such indemnifying party to any
purchaser exceeds the amount of any damages which such indemnifying party has
otherwise paid or
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become liable to pay by reason of any 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 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The obligations of the Partnership and Capital under this Section
6 shall be in addition to any liability which the Partnership and Capital may
otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Holder within the meaning of the 1933 Act; and
the obligations of the Holders under this Section 6 shall be in addition to any
liability which the respective Holders may otherwise have and shall extend, upon
the same terms and conditions, to each officer and director of the Partnership
and Capital and to each person, if any, who controls the Partnership within the
meaning of the 1933 Act.
7. Rules 144 and 144A. The Issuers shall, upon the request of any
Holder of Transfer Restricted Securities, make available such information as is
required so long as necessary to permit sales of such Holder's securities
pursuant to Rule 144A. Upon the written request of any Holder of Transfer
Restricted Securities, the Issuers shall deliver to such Holder a written
statement as to whether they have complied with such requirements.
Notwithstanding the foregoing, nothing in this Section 8 shall be deemed to
require the Issuers to register any of their securities pursuant to the Exchange
Act, or file reports thereunder, except as may be required by law.
8. Underwritten Registrations. If any of the Transfer Restricted
Securities covered by any Shelf Registration Statement 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 Issuers (which shall
not be unreasonably withheld or delayed), and such Holders shall be responsible
for all underwriting commissions and discounts in connection therewith.
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 reasonably required under the terms
of such underwriting arrangements.
9. Miscellaneous.
-------------
(a) Amendments and Waivers. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, in any case as to (i) the Fixed Rate
Securities, the Fixed Rate Exchange Securities or the Fixed Rate Private
Exchange Securities or (ii) the Floating Rate Securities, the Floating Rate
Exchange Securities or the Floating Rate Private Exchange Securities unless the
Issuers have obtained the written consent of Holders of a majority in aggregate
principal amount of (i) the Fixed Rate Securities, the Fixed Rate Exchange
Securities and the Fixed Rate Private
-15-
Exchange Securities that constitute Transfer Restricted Securities, taken as a
single class or (ii) the Floating Rate Securities, the Floating Rate Exchange
Securities and the Floating Rate Private Exchange Securities that constitute
Transfer Restricted Securities, taken as a single class, as the case may be.
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 whose Securities, Exchange Securities or Private Exchange Securities are
being sold pursuant to a Registration Statement and that does not directly or
indirectly affect the rights of other Holders may be given by Holders of a
majority in aggregate principal amount of the Securities, the Exchange
Securities and the Private Exchange Securities being sold by such Holders
pursuant to such Registration Statement.
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telecopier or air courier guaranteeing next-day delivery:
(1) if to a Holder, at the most current address given by such
Holder to the Issuers in accordance with the provisions of this
Section 10(b), which address initially is, with respect to each
Holder, the address of such Holder maintained by the Registrar under
the Indenture, with a copy in like manner to the Initial Purchasers;
(2) if to an Initial Purchaser, initially at, for X.X. Xxxxxx
Securities Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; and, for
Xxxxxxx Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000; and
(3) if to the Issuers, c/o Cellco Partnership, 000 Xxxxxxxxxx
Xxxxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000, attention of Chief
Financial Officer and General Counsel.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; one business day after
being delivered to a next-day air courier; five business days after being
deposited in the mail; and when receipt is acknowledged by the recipient's
telecopier machine, if sent by telecopier.
(c) Successors And Assigns. This Agreement shall be binding upon the
Issuers and their respective successors and assigns.
(d) Counterparts. This Agreement may be executed in any number of
counterparts (which may be delivered in original form or by telecopier) 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.
(e) Definition of Terms. For purposes of this Agreement, (a) the term
"business day" means any day on which the New York Stock Exchange, Inc. is open
for trading, (b) the term "subsidiary" has the meaning set forth in Rule 405
under the Securities Act and (c) except
-16-
where otherwise expressly provided, the term "affiliate" has the meaning set
forth in Rule 405 under the Securities Act.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
(h) Remedies. In the event of a breach by the Issuers or by any Holder
of any of their respective obligations under this Agreement, each Holder or the
Issuers, as the case may be, in addition to being entitled to exercise all
rights granted by law, including recovery of damages (other than the recovery of
damages for a breach by the Issuers of their obligations under Sections 1 or 2
hereof for which additional interest have been paid pursuant to Section 3
hereof), will be entitled, to the fullest extent permitted by law, to specific
performance of its rights under this Agreement. The Issuers and each Holder
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 agree that, in the event of any action for specific
performance in respect of such breach, it shall, to the fullest extent permitted
by law, waive the defense that a remedy at law would be adequate.
(i) No Inconsistent Agreements. Each of the Issuers represents,
warrants and agrees that (i) it has not entered into, and shall not, on or after
the date of this Agreement, enter into any agreement that is inconsistent with
the rights granted to the Holders in this Agreement or otherwise conflicts with
the provisions hereof, (ii) it has not previously entered into any agreement
which remains in effect granting any registration rights with respect to any of
its debt securities to any person and (iii) without limiting the generality of
the foregoing, without the written consent of the Holders of a majority in
aggregate principal amount of the then outstanding Transfer Restricted
Securities, it shall not grant to any person the right to request the Issuers to
register any debt securities of the Issuers under the Securities Act unless the
rights so granted are not in conflict with the provisions of this Agreement.
(j) No Piggyback on Registrations. None of the Issuers or any of the
holders of any of their partnership interests, limited liability company
interests or other securities (other than the Holders of Transfer Restricted
Securities in such capacity) shall have the right to include any partnership
interests, limited liability company interests or other securities of the
Issuers in any Shelf Registration other than Transfer Restricted Securities.
(k) 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 best 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
-17-
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.
(l) Non-Recourse. Notwithstanding anything herein to the contrary, the
obligations of the Partnership hereunder, including, without limitation, with
respect to additional interest or as a result of a breach hereof, shall be
non-recourse to any existing or future partners of the Partnership or any assets
of such partners.
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Please confirm that the foregoing correctly sets forth the agreement
among the Issuers and the Initial Purchasers.
Very truly yours,
CELLCO PARTNERSHIP
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------
Name:
Title:
VERIZON WIRELESS CAPITAL LLC
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------
Name:
Title:
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Accepted:
X.X. XXXXXX SECURITIES INC.
XXXXXXX XXXXX XXXXXX INC.,
For each of themselves and the
other Initial Purchasers
X.X. XXXXXX SECURITIES INC.
By: /s/ Xxx Xxxxxxxxxx
----------------------------------------
Name: Xxx Xxxxxxxxxx
Title: Vice President
XXXXXXX XXXXX XXXXXX INC.
By: /s/ Xxxx Xxxxxxxx
----------------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
-20-
ANNEX A
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Registered Exchange Offer must acknowledge that it will
deliver a prospectus in connection with any resale of such Exchange Securities.
The Letter of Transmittal states that by so acknowledging and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act. This Prospectus, as it
may be amended or supplemented from time to time, may be used by a broker-dealer
in connection with resales of Exchange Securities received in exchange for
Securities where such Securities were acquired by such broker-dealer as a result
of market-making activities or other trading activities. The Issuers have agreed
that, for a period of 90 days after the Expiration Date (as defined herein),
they will make this Prospectus available to any broker-dealer for use in
connection with any such resale. See "Plan of Distribution".
ANNEX B
Each broker-dealer that receives Exchange Securities for its own
account in exchange for Securities, where such Securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities. See "Plan of Distribution".
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Registered Exchange Offer must acknowledge that it will
deliver a prospectus in connection with any resale of such Exchange Securities.
This Prospectus, as it may be amended or supplemented from time to time, may be
used by a broker-dealer in connection with resales of Exchange Securities
received in exchange for Securities where such Securities were acquired as a
result of market-making activities or other trading activities. The Issuers have
agreed that, for a period of 90 days after the Expiration Date, they will make
this prospectus, as amended or supplemented, available to any broker-dealer for
use in connection with any such resale. In addition, until ________________, all
dealers effecting transactions in the Exchange Securities may be required to
deliver a prospectus.
The Issuers will not receive any proceeds from any sale of Exchange
Securities by broker-dealers. Exchange Securities received by broker-dealers for
their own account pursuant to the Registered Exchange Offer may be sold from
time to time in one or more transactions in the over-the-counter market, in
negotiated transactions, through the writing of options on the Exchange
Securities or a combination of such methods of resale, at market prices
prevailing at the time of resale, at prices related to such prevailing market
prices or at negotiated prices. Any such resale may be made directly to
purchasers or to or through brokers or dealers who may receive compensation in
the form of commissions or concessions from any such broker-dealer or the
purchasers of any such Exchange Securities. Any broker-dealer that resells
Exchange Securities that were received by it for its own account pursuant to the
Registered Exchange Offer and any broker or dealer that participates in a
distribution of such Exchange Securities may be deemed to be an "underwriter"
within the meaning of the Securities Act and any profit on any such resale of
Exchange Securities and any commission or concessions received by any such
persons may be deemed to be underwriting compensation under the Securities Act.
The Letter of Transmittal states that, by acknowledging that it will deliver and
by delivering a prospectus, a broker-dealer will not be deemed to admit that it
is an "underwriter" within the meaning of the Securities Act.
For a period of 90 days after the Expiration Date the Issuers will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Issuers have agreed to pay all expenses
incident to the Registered Exchange Offer (including the expenses of one counsel
for the Holders of the Securities) other than commissions or concessions of any
broker-dealers and will indemnify the Holders of the Securities (including any
broker-dealers) against certain liabilities, including liabilities under the
Securities Act.
ANNEX D
[_] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR
SUPPLEMENTS THERETO.
Name:
Address:
If the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Securities. If the undersigned is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Securities that were acquired as
a result of market-making activities or other trading activities, it
acknowledges that it will deliver a prospectus in connection with any resale of
such Exchange Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
