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EXHIBIT 4.1
AFLAC INCORPORATED
$450,000,000 6 1/2% SENIOR NOTES DUE 2009
REGISTRATION RIGHTS AGREEMENT
April 21, 1999
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxxxx, Lufkin & Xxxxxxxx
First Union Capital Markets Corp.
NationsBanc Xxxxxxxxxx Securities LLC
Xxxxxxx Xxxxx Xxxxxx Inc.
c/o Merrill Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
AFLAC Incorporated, a Georgia corporation (the "Company"),
proposes to issue and sell to Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, Xxxxxxxxx, Lufkin & Xxxxxxxx, First Union Capital Markets Corp.,
NationsBanc Xxxxxxxxxx Securities LLC, and Xxxxxxx Xxxxx Xxxxxx Inc. (the
"Initial Purchasers") upon the terms set forth in a Purchase Agreement dated
April 16, 1999 (the "Purchase Agreement") its 6 1/2% Senior Notes due 2009 (the
"Senior Notes") (the "Initial Placement"). 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 Company
agrees with the Initial Purchasers, (i) for the benefit of the Initial
Purchasers and (ii) for the benefit of the holders from time to time of the
Transfer Restricted Securities (as defined herein) (including the Initial
Purchasers) (each of the foregoing a "Holder" and together the "Holders"), as
follows:
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1. Definitions. Capitalized terms used herein without
definition shall have their respective meanings set forth in the Purchase
Agreement. As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"Act" means the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Additional Interest" shall have the meaning set forth in Section
4 of this Agreement.
"Advice" shall have the meaning set forth in Section 6 of this
Agreement.
"Affiliate" of any specified person means any other person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such specified person. For purposes of this definition, control
of a person means the power, direct or indirect, to direct or cause the
direction of the management and policies of such person whether by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Agreement" means this Registration Rights Agreement, dated April
21, 1999, between the Company and the Initial Purchasers.
"Commission" means the Securities and Exchange Commission.
"Company" means AFLAC Incorporated, a Georgia corporation.
"Consummate" or "Consummated," with respect to a registered
Exchange Offer, means that (i) the Exchange Offer Registration Statement
relating to the Exchange Notes to be issued in the Exchange Offer has been
filed and is effective; (ii) such Registration Statement has been kept
continuously effective, and the Exchange Offer has been kept open, for a period
not less than the minimum period required pursuant to paragraphs 2(c)(ii) and
2(e)(ii) hereof; and (iii) the Company has delivered Exchange Notes in the same
aggregate principal amount as the aggregate principal amount of Transfer
Restricted Securities that were validly tendered by Holders thereof pursuant to
the Exchange Offer.
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"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Exchange Notes" means an issue of securities of the Company with
terms identical to the Senior Notes (except that the Exchange Notes will not
bear the Private Placement Legend or the Regulation S Legend (each as defined in
the Indenture) or any other legends restricting the transfer thereof, will
contain the alternative paragraph 1(b) appearing on the reverse of the Senior
Notes and except that interest thereon shall accrue from the last date on which
interest was paid on the Senior Notes or, if no such interest has been paid,
from the date of issuance of the Senior Notes) to be exchanged for the Senior
Notes pursuant to the Exchange Offer.
"Exchange Offer" means the registered offer by the Company to
exchange the Senior Notes for the Exchange Notes.
"Exchange Offer Registration Period" means the 30-day period
following the commencement of the Exchange Offer, exclusive of any period
during which any stop order shall be in effect suspending the effectiveness of
the Exchange Offer Registration Statement.
"Exchange Offer Registration Statement" means a registration
statement of the Company on an appropriate form under the Act with respect to
the Exchange Offer, all amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"Exchanging Dealer" means any Holder (which may include the
Initial Purchasers) which is a broker-dealer, electing to exchange Senior Notes
acquired for its own account as a result of market-making activities or other
trading activities, for Exchange Notes.
"Final Offering Memorandum" has the meaning set forth in the
Purchase Agreement.
"Holder" has the meaning set forth in the preamble hereto.
"Indenture" means the Indenture relating to the Senior Notes dated
as of April 21, 1999, between the Company and The Bank of New York, as trustee,
as the same may be amended from time to time in accordance with the terms
thereof.
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"Initial Placement" has the meaning set forth in the preamble
hereto.
"Issue Date" means the date on which Senior Notes are originally
issued under the Indenture.
"Losses" shall have the meaning set forth in Section 8(d) of this
Agreement.
"Majority Holders" means the Holders of a majority of the aggregate
principal amount of Senior Notes registered under a Registration Statement.
"Managing Underwriters" means the investment banker or investment
bankers and manager or managers that shall administer an Underwritten Offering.
"Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Senior Notes or the Exchange Notes, covered by
such Registration Statement, and all amendments and supplements to the
Prospectus, including post-effective amendments.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all Commission, stock exchange or National Association
of Securities Dealers, Inc. registration and filing fees, (ii) all fees and
expenses incurred in connection with compliance with state securities or blue
sky laws (including reasonable fees and disbursements of counsel for any
Underwriters or Holders in connection with blue sky qualification of any of the
Exchange Notes or Senior Notes), (iii) all expenses of any persons in preparing
or assisting in preparing, word processing, printing and distributing any
Registration Statement, any Prospectus, and amendments or supplements thereto,
any underwriting agreements, securities sales agreements and other documents
relating to the performance of and compliance with this Agreement, (iv) all
rating agency fees, (v) all fees and disbursements relating to the qualification
of the Indenture under applicable securities laws, (vi) the fees and
disbursements of the Trustee and its counsel, (vii) the fees and disbursements
of counsel for the Company and, in the case of a Shelf Registration Statement,
the fees and disbursements of one counsel for the Holders (which counsel shall
be selected by
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the Majority Holders and which counsel may also be counsel for the Underwriters)
and (viii) the fees and disbursements of the independent public accountants of
the Company, including the expenses of any special audits or "cold comfort"
letters required by or incident to such performance and compliance, but
excluding fees and expenses of counsel to the Underwriters (other than fees and
expenses set forth in clauses (ii) or (vii) above) or the Holders and
underwriting discounts and commissions and transfer taxes, if any, relating to
the sale or disposition of Senior Notes by a Holder.
"Registration Statement" means any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the Senior Notes or
the Exchange Notes pursuant to the provisions of this Agreement, amendments and
supplements to such registration statement, including post-effective amendments,
in each case including the Prospectus contained therein, all exhibits thereto
and all material incorporated by reference therein.
"Representative" means Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, as Representative of the Initial Purchasers.
"Senior Notes" has the meaning set forth in the preamble hereto.
"Shelf Registration" means a registration effected pursuant to
Section 3 hereof.
"Shelf Registration Period" has the meaning set forth in Section
3(b) hereof.
"Shelf Registration Statement" means a "shelf" registration
statement of the Company pursuant to the provisions of Section 3 hereof which
covers some or all of the Senior Notes or Exchange Notes, as applicable, on an
appropriate form under Rule 415 under the Act, or any similar rule that may be
adopted by the Commission, amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
7aaa-77bbbb) as amended.
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"Transfer Restricted Security" means each Senior Note or Exchange
Note until (i) the date on which such Transfer Restricted Security has been
exchanged by a person other than a broker-dealer for an Exchange Note in the
Exchange Offer that is freely transferable under the Act, (ii) following the
exchange by a broker-dealer in the Exchange Offer of a Transfer Restricted
Security for an Exchange Note, the date on which such Exchange Note is sold to a
purchaser who receives from such broker-dealer on or prior to the date of such
sale a copy of the Prospectus contained in the Exchange Offer Registration
Statement, (iii) the date on which such Transfer Restricted Security has been
effectively registered under the Act and disposed of in accordance with the
Shelf Registration Statement, or (iv) the date on which such Transfer Restricted
Security is distributed to the public pursuant to Rule 144 under the Act or is
saleable pursuant to Rule 144 (k) under the Act.
"Trustee" means the trustee with respect to the Senior Notes under
the Indenture.
"Underwriter" means any underwriter of Senior Notes in connection
with an offering thereof under a Shelf Registration Statement.
"Underwritten Offering" means a registration in which securities of
the Company are sold to an underwriter for reoffering to the public.
2. Exchange Offer; Resales of Exchange Notes by Exchanging
Dealers; Private Exchange. (a) The Company shall prepare and, not later than 90
days following the Issue Date (or if the 90th day is not a business day, the
first business day thereafter), shall file with the Commission the Exchange
Offer Registration Statement with respect to the Exchange Offer. The Company
shall use its best efforts to cause the Exchange Offer Registration Statement
to become effective under the Act within 180 days of the Issue Date (or if the
180th day is not a business day, the first business day thereafter). In
connection with the foregoing, the Company shall use its best efforts to (A)
file all pre-effective amendments to such Exchange Offer Registration Statement
as may be necessary in order to cause such Registration Statement to become
effective, (B) file if applicable, a post-effective amendment to such
Registration Statement pursuant to Rule 430A under the Act, and (C) cause all
necessary filings in connection with the registration and qualification of the
Exchange Notes to be made under the blue sky laws of such jurisdictions as are
necessary to permit the Exchange Offer to be Consummated.
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(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Company shall promptly commence the Exchange Offer, it being the
objective of such Exchange Offer to enable each Holder electing to exchange
Senior Notes for Exchange Notes (assuming that such Holder is not an affiliate
of the Company within the meaning of the Act, acquires the Exchange Notes in the
ordinary course of such Holder's business and has no arrangements with any
person to participate in the distribution of the Exchange Notes) to trade such
Exchange Notes from and after their receipt without any limitations or
restrictions under the Act and without material restrictions under the
securities laws of a substantial proportion of the several states of the United
States.
(c) In connection with the Exchange Offer, the Company shall:
(i) mail to each Holder a copy of the Prospectus forming
part of the Exchange Offer Registration Statement, together with
an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for not less than 30
days after the date notice thereof is mailed to the Holders (or
longer if required by applicable law);
(iii) utilize the services of a depositary for the
Exchange Offer with an address in the Borough of Manhattan, the
City of New York;
(iv) not include any other securities other than the
Exchange Notes in the Exchange Offer Registration Statement;
(v) use its reasonable best efforts to cause the
Exchange Offer to be Consummated on the earliest practicable date
after the Exchange Offer Registration Statement has become
effective; and
(vi) comply in all respects with all applicable laws.
(d) As soon as practicable after the close of the Exchange
Offer, the Company shall:
(i) accept for exchange all Senior Notes tendered and
not validly withdrawn pursuant to the Exchange Offer;
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(ii) deliver to the Trustee for cancellation all Senior
Notes so accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and
deliver to each Holder of Senior Notes, Exchange Notes equal in
principal amount to the Senior Notes of such Holder so accepted
for exchange.
(e) The Initial Purchasers and the Company acknowledge that,
pursuant to interpretations by the Commission's staff of Section 5 of the Act,
and in the absence of an applicable exemption therefrom, each Exchanging Dealer
is required to deliver a Prospectus in connection with a sale of any Exchange
Notes received by such Exchanging Dealer pursuant to the Exchange Offer in
exchange for Senior Notes acquired for its own account as a result of
market-making activities or other trading activities. Accordingly, the Company
shall:
(i) include the information set forth in Annex A hereto
on the cover of the Exchange Offer Registration Statement, in
Annex B hereto in the forepart of the Exchange Offer Registration
Statement in a section setting forth details of the Exchange
Offer, and in Annex C hereto in the underwriting or 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 Exchange Offer; and
(ii) use its best efforts to keep the Exchange Offer
Registration Statement continuously effective under the Act
during the Exchange Offer Registration Period for delivery by
Exchanging Dealers in connection with sales of Exchange Notes
received pursuant to the Exchange Offer, as contemplated by
Section 5(j) below.
(f) In the event that any Initial Purchaser determines that it
is not eligible to participate in the Exchange Offer with respect to the
exchange of Senior Notes constituting any portion of an unsold allotment, at
the request of such Initial Purchaser, the Company shall issue and deliver to
such Initial Purchaser or the party purchasing Exchange Notes registered under
a Shelf Registration Statement as contemplated by Section 3 hereof from such
Initial Purchaser, in exchange for such Senior Notes, a like principal amount
of Exchange Notes. The Company shall seek
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to cause the CUSIP Service Bureau to issue the same CUSIP number for such
Exchange Notes issued pursuant to the Exchange Offer.
3. Shelf Registration. If, (i) because of any change in law or
applicable interpretations thereof by the Commission's staff, the Company
determines upon advice of its outside counsel that it is not permitted to effect
the Exchange Offer as contemplated by Section 2 hereof, (ii) for any other
reason the Exchange Offer Registration Statement is not declared effective
within 180 days following the Issue Date (or if the 180th day is not a business
day, the first business day thereafter), (iii) any Initial Purchaser so requests
with respect to Senior Notes held by it following consummation of the Exchange
Offer, (iv) any Holder (other than an Initial Purchaser) is not eligible to
participate in the Exchange Offer because of any change in law or applicable
interpretations of the staff of the Commission or otherwise, or (v) in the case
of any Initial Purchaser that participates in the Exchange Offer or acquires
Exchange Notes pursuant to Section 2(f) hereof, such Initial Purchaser does not
receive freely tradeable Exchange Notes in exchange for Senior Notes (it being
understood that, for purposes of this Section 3, (x) the requirement that an
Initial Purchaser deliver a Prospectus containing the information required by
Items 507 and/or 508 of Regulation S-K under the Act in connection with sales of
Exchange Notes acquired in exchange for such Senior Notes shall result in such
Exchange Notes not being "freely tradeable" but (y) the requirement that an
Exchanging Dealer deliver a Prospectus in connection with sales of Exchange
Notes acquired in the Exchange Offer in exchange for Senior Notes acquired as a
result of market-making activities or other trading activities shall not result
in such Exchange Notes being not "freely tradeable"), the following provisions
shall apply:
(a) The Company shall as promptly as practicable after so
required or requested pursuant to this Section 3, file with the Commission and
thereafter shall use its best efforts to cause to be declared effective under
the Act by the 210th day (or if the 210th day is not a business day, the first
business day thereafter) after the original issuance of the Senior Notes, a
Shelf Registration Statement relating to the offer and sale of the Senior Notes
or the Exchange Notes, as applicable, by the Holders from time to time in
accordance with the methods of distribution elected by such Holders and set
forth in such Shelf Registration Statement; provided, that with respect to
Exchange Notes received by an Initial Purchaser in exchange for Senior Notes
constituting any portion of an unsold allotment, the Company may, if permitted
by current interpretations by the Commission's staff, file a post-effective
amendment to the Exchange Offer Registration Statement containing the
information required by Regulation S-K Items 507 and/or 508, as applicable, in
satisfaction of its
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obligations under this paragraph (a) with respect thereto, and any such Exchange
Offer Registration Statement, as so amended, shall be referred to herein as,
and governed by the provisions herein applicable to, a Shelf Registration
Statement.
(b) The Company shall use its best efforts to keep the Shelf
Registration Statement continuously effective in order to permit the Prospectus
forming a part thereof to be usable by Holders for a period of two years from
the date the Shelf Registration Statement is declared effective by the
Commission or until one year after such effective date if such Shelf
Registration Statement is filed at the request of an Initial Purchaser or such
shorter period that will terminate when all the Senior Notes or Exchange Notes,
as applicable, covered by the Shelf Registration Statement have been sold
pursuant to the Shelf Registration Statement (in any such case, such period
being called the "Shelf Registration Period"). The Company shall be deemed not
to have used its best efforts to keep the Shelf Registration Statement
effective during the requisite period if it voluntarily takes any action that
would result in Holders of securities covered thereby not being able to offer
and sell such securities during that period, unless (i) such action is required
by applicable law, or (ii) such action is taken by the Company in good faith
and for valid business reasons (not including avoidance of the Company's
obligations hereunder), including the acquisition or divestiture of assets.
4. Additional Interest. In the event that the Exchange Offer
Registration Statement is not filed with the Commission on or prior to the 90th
day following the Issue Date, the Exchange Offer Registration Statement is not
declared effective on or prior to the 180th day following the Issue Date or the
Exchange Offer is not Consummated and a Shelf Registration Statement is not
declared effective on or prior to the 210th day following the Issue Date (or if
the 90th, 180th or 210th day is not a business day, the first business day
thereafter), interest will accrue (in addition to stated interest on the Senior
Notes) from and including the next day following such 90- 180- or 210-day
period. Such additional interest (the "Additional Interest") will be payable in
cash semiannually in arrears each April 15 and October 15, at a rate per annum
equal to 0.25% of the principal amount of the Senior Notes, for each event
described in the preceding sentence; provided, however, that the aggregate
amount of Additional Interest payable pursuant to the above provisions shall in
no event exceed 0.75% per annum of the principal amount of the Senior Notes.
Upon the filing of the Exchange Offer Registration Statement, the effectiveness
of the Exchange Offer Registration Statement, the Consummation of the Exchange
Offer or the effectiveness of a Shelf Registration Statement, as the case may
be, after such 90- 180- or 210-day period, the Additional Interest payable on
the Senior Notes from the
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date of such filing, effectiveness or consummation, as the case may be, will
cease to accrue and all accrued and unpaid Additional Interest as of such
occurrence shall be paid to the holders of the Senior Notes.
Notwithstanding the fact that any securities for which Additional
Interest is due cease to be Transfer Restricted Securities, all obligations of
the Company to pay Additional Interest with respect to such securities shall
survive until such time as such obligations with respect to such securities
shall have been satisfied in full.
In the event that a Shelf Registration Statement is declared
effective pursuant to Section 3 hereof, if the Company fails to keep such
Registration Statement continuously effective for the period required by this
Agreement, or if the Shelf Registration Statement fails to be usable for its
intended purpose without being succeeded by a post-effective amendment to such
Shelf Registration Statement that cures such failure and that is itself declared
effective within 10 days of filing such post-effective amendment to such Shelf
Registration Statement, then from such time as the Shelf Registration Statement
is no longer effective or usable, as the case may be, until the earlier of (i)
the date that the Shelf Registration Statement is again deemed effective or
usable, as the case may be, (ii) the date that is the second anniversary of the
Issue Date, or (iii) the date as of which all of the Senior Notes are sold
pursuant to the Shelf Registration Statement, Additional Interest shall accrue
at a rate per annum equal to 0.25% of the principal amount of the Senior Notes
and shall be payable in cash semiannually in arrears each April 15 and October
15.
All accrued Additional Interest shall be paid to Holders by the
Company in the same manner as interest is paid pursuant to the Indenture. The
aggregate amount of Additional Interest payable pursuant to this Agreement shall
in no event exceed 0.75% per annum of the principal amount of Senior Notes.
5. Registration Procedures. In connection with any Shelf
Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply:
(a) The Company shall use its best efforts to keep any
Registration Statement required by this Agreement continuously effective and
provide all requisite financial statements for the period specified in Section
2 or 3 of this Agreement, as applicable; upon the occurrence of any event that
would cause any such Registration Statement or the Prospectus contained therein
to be either not
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effective or not usable for resale of Transfer Restricted Securities during the
period required by this Agreement, the Company shall use its best efforts to
cause such amendment to be declared effective and such Registration Statement
and the related Prospectus to become usable for their intended purpose(s) as
soon as practicable thereafter.
(b) The Company shall prepare and file with the Commission
such amendments and post-effective amendments to any Registration Statement
required by this Agreement as may be necessary to keep such Registration
Statement effective for the applicable period set forth in Section 2 or 3
hereof, as applicable; cause the Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424
under the Act, and to comply with the applicable provisions of Rules 424 and
430A under the Act in a timely manner; and comply with the provisions of the
Act with respect to the disposition of all securities covered by such
Registration Statement during the applicable period in accordance with the
intended method or methods of distribution by the sellers thereof set forth in
such Registration Statement or supplement to the Prospectus.
(c) The Company shall furnish to the Representative and to
each Holder named therein, a reasonable period of time prior to the filing
thereof with the Commission, a copy of any Shelf Registration Statement and any
Exchange Offer Registration Statement, and each amendment thereof and each
amendment or supplement, if any, to the Prospectus included therein and shall
use its reasonable best efforts to reflect in each such document, when so filed
with the Commission, such comments as the Representative or any Holder may
propose.
(d) The Company shall use its best efforts to ensure that (i)
any Registration Statement and any amendment thereto and any Prospectus forming
a part thereof and any amendment or supplement thereto complies in all material
respects with the Act and the rules and regulations thereunder, (ii) any
Registration Statement and any amendment thereto does not, when it becomes
effective, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading and (iii) any Prospectus forming part of any
Registration Statement, and any amendment or supplement to such Prospectus,
does not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements, in the light of the
circumstances under which they were made, not misleading.
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(e) (1) The Company shall advise the Representative and, in
the case of a Shelf Registration Statement, the Holders of securities covered
thereby, and, if requested by the Representative or any such Holder, confirm
such advice in writing:
(i) when a Registration Statement and any amendment
thereto has been filed with the Commission and when the
Registration Statement or any post-effective amendment thereto
has become effective; and
(ii) of any request by the Commission for amendments or
supplements to the Registration Statement or the Prospectus
included therein or for additional information.
(2) The Company shall advise the Representative and, in the
case of a Shelf Registration Statement, the Holders of securities
covered thereby, and, in the case of any Exchange Offer Registration
Statement, any Exchanging Dealer which has provided in writing to the
Company a telephone or facsimile number and address for notices, and, if
requested by the Representative or any such Holder or Exchanging
Dealer, confirm such advice in writing:
(i) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
(ii) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the
securities included therein for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose; and
(iii) of the existence of any fact or the happening of
any event that requires the making of any changes in the
Registration Statement, Prospectus or any amendment or supplement
thereto, so that, as of such date, the statements therein are not
misleading and do not omit to state a material fact required to
be stated therein or necessary to make the statements therein (in
the case of the Prospectus, in light of the circumstances under
which they were made) not mislead-
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ing (which advice shall be accompanied by an instruction to
suspend the use of the Prospectus until the requisite changes have
been made).
(f) The Company shall use its reasonable best efforts to
obtain the withdrawal of any order suspending the effectiveness of any
Registration Statement, or of any other suspension of the qualification of the
securities, at the earliest possible time.
(g) The Company shall furnish to each Holder of securities
included within the coverage of any Shelf Registration Statement, without
charge, at least one copy of such Shelf Registration Statement and any
post-effective amendment thereto, including financial statements and schedules,
and, if the Holder so requests in writing, any documents incorporated by
reference therein and all exhibits (including those incorporated by reference).
(h) The Company shall, during the Shelf Registration Period,
deliver to each Holder of securities included within the coverage of any Shelf
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 Company consents to the use of the Prospectus or any amendment
or supplement thereto by each of the selling Holders of securities in connection
with the offering and sale of the securities covered by such Prospectus or any
amendment or supplement thereto.
(i) The Company shall furnish to each Exchanging Dealer which
so requests, without charge, at least one copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto, including
financial statements and schedules, any documents incorporated by reference
therein, and, if the Exchanging Dealer so requests in writing, any documents
incorporated by reference therein and all exhibits (including those
incorporated by reference).
(j) The Company shall, during the Exchange Offer Registration
Period, promptly deliver to each Exchanging Dealer, without charge, as many
copies of the Prospectus included in such Exchange Offer Registration Statement
and any amendment or supplement thereto as such Exchanging Dealer may reasonably
request for delivery by such Exchanging Dealer in connection with a sale of
Exchange Notes received by it pursuant to the Exchange Offer; and the Company
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consents to the use of the Prospectus or any amendment or supplement thereto by
any such Exchanging Dealer, as aforesaid.
(k) In connection with any Shelf Registration Statement, the
Company shall register or qualify or cooperate with any of the Holders of
securities named therein and such Holders' counsel in connection with the
registration or qualification of such 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
covered by such Registration Statement; provided, however, that the Company will
not be required to qualify generally to do business in any jurisdiction where it
is not then so qualified or to take any action which would subject it to general
service of process or to taxation in any such jurisdiction where it is not then
so subject.
(l) Unless the applicable Senior Notes shall be in book-entry
only form, the Company shall cooperate with the Holders of Senior Notes to
facilitate the timely preparation and delivery of certificates representing
Senior Notes to be sold pursuant to any Registration Statement free of any
restrictive legends and in such denominations and registered in such names as
Holders may request prior to sales of securities pursuant to such Registration
Statement.
(m) The Company shall use its reasonable best efforts to cause
the Transfer Restricted Securities covered by the Registration Statement to be
registered with or approved by such other governmental agencies or authorities
as may be necessary to enable the seller(s) or the Underwriter(s), if any, to
consummate the disposition of such Transfer Restricted Securities, subject to
the proviso contained in paragraph 5(k) hereof.
(n) Upon the occurrence of any event contemplated by paragraph
5(e) (2) (iii) above, the Company shall promptly prepare a post-effective
amendment to any Registration Statement or an amendment or supplement to the
related Prospectus or file any other required document so that, as thereafter
delivered to purchasers of the securities included therein, the Prospectus will
not include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
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(o) Not later than the effective date of any such Registration
Statement hereunder, the Company shall provide a CUSIP number for the Senior
Notes or Exchange Notes, as the case may be, registered under such Registration
Statement, and provide the applicable trustee with printed certificates for such
Senior Notes or Exchange Notes, in a form eligible for deposit with The
Depository Trust Company.
(p) The Company shall use its reasonable best efforts to
comply with all applicable rules and regulations of the Commission and shall
make generally available to its security holders as soon as practicable after
the effective date of the applicable Registration Statement an earnings
statement satisfying the provisions of Section 11(a) of the Act.
(q) The Company shall cause the Indenture to be qualified
under the TIA in a timely manner, and, in connection therewith, cooperate with
the Trustee and the Holders of the Senior Notes 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
their reasonable best efforts to cause the Trustee to execute all documents
that may be required to be filed with the Commission to enable such Indenture
to be so qualified in a timely manner.
(r) The Company may require each Holder of securities to be
sold pursuant to any Shelf Registration Statement to furnish to the Company
such information regarding the Holder and the distribution of such securities
as the Company may from time to time reasonably require for inclusion in such
Registration Statement, and the Company may exclude from such registration the
Senior Notes of any Holder that fails to furnish such information within a
reasonable time after receiving such request.
(s) The Company shall provide promptly to each Holder upon
request each document which has been filed with the Commission pursuant to the
requirements of Section 13 and Section 15 of the Exchange Act.
(t) The Company shall, if requested, promptly incorporate in
any Registration Statement or Prospectus, pursuant to a Prospectus supplement
or post-effective amendment, if necessary, such information as the Managing
Underwriters and Majority Holders agree should be included therein and to which
the Company does not unreasonably object and shall make all required filings of
such Prospectus supplement or post-effective amendment as soon as notified of
the matters to be incorporated in such Prospectus supplement or post-effective
amendment.
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(u) In the case of any Shelf Registration Statement, the
Company shall enter into such customary agreements (including underwriting
agreements) and take all other appropriate actions in order to expedite or
facilitate the registration or the disposition of the Senior Notes, and in
connection therewith, if an underwriting agreement is entered into, cause the
same to contain indemnification provisions and procedures no less favorable
than those set forth in Section 8 (or such other provisions and procedures
reasonably acceptable to the Company, the Majority Holders and the Managing
Underwriters, if any) with respect to all parties to be indemnified pursuant to
Section 8 hereof from Holders of Senior Notes to the Company.
(v) In the case of any Shelf Registration Statement, the
Company shall (i) make reasonably available for inspection by the Holders of
securities to be registered thereunder, any Underwriter participating in any
disposition pursuant to such Registration Statement, and any attorney,
accountant or other agent retained by the Holders or any such Underwriter all
relevant financial and other records, pertinent corporate documents and
properties of the Company and its subsidiaries; (ii) cause the Company's
officers, directors and employees to supply all relevant information reasonably
requested by the Holders or any such Underwriter, attorney, accountant or agent
in connection with any such Registration Statement prior to its effectiveness
as is customary for similar due diligence examinations; provided, however, that
any information that is designated in writing by the Company, in good faith, as
confidential at the time of delivery of such information shall be kept
confidential by the Holders or any such Underwriter, attorney, accountant or
other agent, unless such disclosure is made in connection with a court
proceeding or required by law, or such information becomes available to the
public generally or through a third party without an accompanying obligation of
confidentiality; (iii) make such representations and warranties to the Holders
of securities registered thereunder and the Underwriters, if any, in form,
substance and scope as are customarily made by issuers to Underwriters in
primary underwritten offerings and covering matters including, but not limited
to, those set forth in the Purchase Agreement; (iv) obtain opinions of counsel
to the Company and updates thereof (which counsel and opinions (in form, scope
and substance) shall be reasonably satisfactory to the Managing Underwriters,
if any) addressed to each selling Holder and the Underwriters, if any, covering
such matters as are customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably requested by such Holders
and Underwriters; (v) obtain "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 subsidiary of the
Company or of any business acquired by the Company for which financial
statements and financial data are, or are required to
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be, included in the Registration Statement), addressed to each selling Holder of
securities registered thereunder and the Underwriters, if any, in customary form
and covering matters of the type customarily covered in "cold comfort" letters
in connection with primary underwritten offerings; and (vi) deliver such
documents and certificates as may be reasonably requested by the Majority
Holders and the Managing Underwriters, if any, including those to evidence
compliance with Section 5(n) and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Company. The
foregoing actions set forth in clauses (iii), (iv), (v) and (vi) of this Section
5(v) shall be performed at (A) the effective date of such Registration Statement
and each post-effective amendment thereto and (B) each closing under any
underwriting or similar agreement as and to the extent required thereunder.
6. Restriction on Holders. Each Holder agrees by acquisition
of a Transfer Restricted Security that, upon receipt of any notice from the
Company of the existence of any fact of the kind described in paragraph
5(e)(2)(iii) hereof, such Holder will forthwith discontinue disposition of
Transfer Restricted Securities pursuant to the applicable Registration
Statement until such Holder's receipt of the copies of the supplemented or
amended Prospectus contemplated by paragraph 5(n) hereof, or until it is
advised in writing (the "Advice") by the Company that the use of the Prospectus
may be resumed, and has received copies of any additional or supplemental
filings that are incorporated by reference in the Prospectus. If so directed by
the Company, each Holder will deliver to the Company (at the Company's expense)
all copies, other than permanent file copies then in such Holder's possession,
of the Prospectus covering such Transfer Restricted Securities that was current
at the time of receipt of such notice. In the event the Company shall give any
such notice, the time period regarding the effectiveness of such Registration
Statement set forth in Section 2 or 3 hereof, as applicable, shall be extended
by the number of days during the period from and including the date of the
giving of such notice pursuant to paragraph 5(c)(2)(iii) hereof to and
including the date when each selling Holder covered by such Registration
Statement shall have received the copies of the supplemented or amended
Prospectus contemplated by paragraph 5(n) hereof or shall have received the
Advice.
7. Registration Expenses. The Company shall pay all
Registration Expenses in connection with the registration pursuant to Section 2
or Section 3. Each Holder shall pay all underwriting discounts and commissions
and transfer taxes, if any, relating to the sale or disposition of such
Holder's Senior Notes pursuant to the Shelf Registration Statement.
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8. Indemnification and Contribution. (a) In connection with
any Registration Statement, the Company agrees to indemnify and hold harmless
each Holder of securities covered thereby (including each Initial Purchaser
and, with respect to any Prospectus delivery as contemplated in Section 5(j)
hereof, each Exchanging Dealer), the directors, officers, employees and agents
of each such Holder and each person who controls any such Holder within the
meaning of either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement as originally filed or in
any amendment thereof, or in any preliminary Prospectus or Prospectus, or in
any amendment thereof or supplement thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
and agrees to reimburse each such indemnified party, as incurred, for any legal
or other expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability or action; provided,
however, that the Company will not be liable in any case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any such Holder specifically for
inclusion therein; provided further, that with respect to any untrue statement
or omission of material fact made in the Registration Statement, any amendment
thereto or the preliminary Prospectus, the indemnity agreement contained in
this Section 8(a) shall not inure to the benefit of any Holder from whom the
person asserting any such loss, claim, damage or liability purchased the
securities concerned, to the extent that any such loss, claim, damage or
liability of such Holder occurs under the circumstance where it shall have been
determined by a court of competent jurisdiction by final and nonappealable
judgment that (w) the Company had previously furnished copies of the
preliminary Prospectus to the Holder, (x) delivery of the Prospectus was
required to be made to such person, (y) the untrue statement or omission of a
material fact contained in the preliminary Prospectus was corrected in the
Prospectus and (z) there was not sent or given to such person, at or prior to
the written confirmation of the sale of such securities to such person, a copy
of the Prospectus unless such failure resulted solely from non-compliance by
the Company with any of its obligations under Section 5 of this Agreement. This
indemnity
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agreement will be in addition to any liability which the Company may otherwise
have.
The Company also agrees to indemnify or contribute to Losses of, as
provided in Section 8(d), any underwriters of Senior Notes registered under a
Shelf Registration Statement, their officers and directors and each person who
controls such underwriters on substantially the same basis as that of the
indemnification of the Initial Purchaser and the selling Holders provided in
this Section 8(a) and shall, if requested by any Holder, enter into an
underwriting agreement reflecting such agreement, as provided in Section 5(u)
hereof.
(b) Each Holder of securities covered by a Registration
Statement (including each Initial Purchaser and, with respect to any Prospectus
delivery as contemplated in Section 5(j) hereof, each Exchanging Dealer)
severally and not jointly agrees to indemnify and hold harmless (i) the
Company, (ii) each of its directors, (iii) each of its officers who signs such
Registration Statement, and (iv) each person who controls the Company within
the meaning of either the Act or the Exchange Act to the same extent as the
foregoing indemnity from the Company to each such Holder, but only with
reference to written information relating to such Holder furnished to the
Company by or on behalf of such Holder specifically for inclusion in the
documents referred to in the foregoing indemnity. In no event shall any Holder,
its directors, officers or any Person who controls such Holder be liable or
responsible for any amount in excess of the amount by which the total amount
received by such Holder with respect to its sale of Transfer Restricted
Securities pursuant to a Registration Statement exceeds the amount of any
damages that such Holder, its directors, officers or any Person who controls
such Holder has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. This indemnity
agreement will be in addition to any liability which any such Holder may
otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification
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obligation provided in paragraph (a) or (b) above. The indemnifying party shall
be entitled to appoint as counsel one firm of attorneys of the indemnifying
party's choice at the indemnifying party's expense to represent the indemnified
party (together with one local counsel in each jurisdiction) in any action for
which indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel (and local counsel) if (i) the use of counsel chosen by
the indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest, (ii) the actual or potential defendants
in, or targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of
such action, or (iv) the indemnifying party shall authorize the indemnified
party to employ separate counsel at the expense of the indemnifying party, it
being understood that the indemnifying party shall not be liable for more than
one separate firm (in addition to one local counsel in each jurisdiction) for
all indemnified parties in each jurisdiction in which any claim or action
arising out of the same general allegations or circumstances is brought. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding. An indemnifying party
will not, without its prior written consent, be liable for any settlement or
compromise or consent to the entry of any judgment, but if settled with its
written consent, the indemnifying party agrees to indemnify and hold harmless
any indemnified party from and against any loss or liability by reason of such
settlement.
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(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall have a joint and several
obligation to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses incurred in connection with
investigating or defending same) (collectively "Losses") to which such
indemnified party may be subject in such proportion as is appropriate to
reflect the relative benefits received by such indemnifying party, on the one
hand, and such indemnified party, on the other hand, from the Initial Placement
and the Registration Statement which resulted in such Losses; provided,
however, that in no case shall any Initial Purchaser or any subsequent Holder
of any Senior Note or Exchange Note be responsible, in the aggregate, for any
amount in excess of the purchase discount or commission applicable to such
Senior Note, or in the case of an Exchange Note, applicable to the Senior Note
which was exchangeable into such Exchange Note, as set forth on the cover page
of the Final Offering Memorandum, nor shall any under writer be responsible for
any amount in excess of the underwriting discount or commission applicable to
the Senior Notes purchased by such underwriter under the Registration Statement
which resulted in such Losses. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the indemnifying party and
the indemnified party shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of such
indemnifying party, on the one hand, and such indemnified party, on the other
hand, in connection with the statements or omissions which resulted in such
Losses as well as any other relevant equitable considerations. Benefits
received by the Company shall be deemed to be equal to the total net proceeds
from the Initial Placement (before deducting expenses) as set forth on the
cover page of the Final Offering Memorandum. Benefits received by the Initial
Purchasers shall be deemed to be equal to the total purchase discounts and
commissions as set forth on the cover page of the Final Offering Memorandum,
and benefits received by any other Holders shall be deemed to be equal to the
value of receiving Senior Notes or Exchange Notes, as applicable, registered
under the Act. Benefits received by any underwriter shall be deemed to be equal
to the total underwriting discounts and commissions, as set forth on the cover
page of the Prospectus forming a part of the Registration Statement which
resulted in such Losses. Relative fault shall be determined by reference to
whether any alleged untrue statement or omission relates to information
provided by the indemnifying party, on the one hand, or by the indemnified
party, on the other hand, the intent of the parties and their relative
knowledge and access to information and opportunity to correct or prevent such
statement or omission. The parties agree that it would not be just and
equitable if contribution were determined by pro rata
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allocation or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation and no Holder,
nor its directors, its officers or any Person, if any, who controls such Holder
shall be required to contribute, in the aggregate, any amount in excess of the
amount by which the total received by such Holder with respect to the sale of
Transfer Restricted Securities pursuant to a Registration Statement exceeds the
amount of any damages which such Holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. For purposes of this Section 8, each person who controls a Holder
within the meaning of either the Act or the Exchange Act and each director,
officer, employee and agent of such Holder shall have the same rights to
contribution as such Holder, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, each officer of the Company who
shall have signed the Registration Statement and each director of the Company
shall have the same rights to contribution as the Company, subject in each case
to the applicable terms and conditions of this paragraph (d).
(e) The provisions of this Section 8 will remain in full force
and effect, regardless of any investigation made by or on behalf of any Holder
or the Company or any of the officers, directors or controlling persons
referred to in Section 8 hereof, and will survive the sale by a Holder of
securities covered by a Registration Statement.
9. Rules 144 and 144A
The Company agrees with each Holder, for so long as any
Transfer Restricted Securities remain outstanding and during any period in which
the Company (i) is not subject to Section 13 or 15(d) of the Exchange Act, to
make available, upon request of any Holder, to such Holder or beneficial owner
of Transfer Restricted Securities in connection with any sale thereof and any
prospective purchaser of such Transfer Restricted Securities designated by such
Holder or beneficial owner, the information required by Rule 144A(d)(4) under
the Act in order to permit resales of such Transfer Restricted Securities
pursuant to Rule 144A, and (ii) is subject to Section 13 or 15(d) of the
Exchange Act, to make all filings required thereby in a timely manner in order
to permit resales of such Transfer Restricted Securities pursuant to Rule 144.
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10. Underwritten Offerings
The Holders of Transfer Restricted Securities covered by
the Shelf Registration Statement who desire to do so may sell such Transfer
Restricted Securities in an Underwritten Offering. In any such Underwritten
Offering, the investment banker(s) and manager(s) that will administer the
offering will be selected by the Holders of a majority in aggregate principal
amount of the Transfer Restricted Securities included in such offering;
provided, that such investment bankers and managers must be reasonably
satisfactory to the Company.
No Holder may participate in any Underwritten Offering
hereunder unless such Holder (a) agrees to sell such Holder's Transfer
Restricted Securities on the basis provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and (b)
completes and executes all reasonable questionnaires, powers of attorney,
indemnities, underwriting agreements, lock-up letters and other documents
required under the terms of such underwriting arrangements.
11. Miscellaneous.
(a) Remedies. The Company acknowledges and agrees that any
failure by the Company to comply with their respective obligations under
Sections 2 and 3 hereof may result in material, irreparable injury to the
Initial Purchasers or the Holders for which there is no adequate remedy at law,
that it will not be possible to measure damages for such injuries precisely and
that, in the event of any such failure, the Initial Purchasers or any Holder
may obtain such relief as may be required to specifically enforce the Company's
obligations under Sections 2 and 3 hereof. The Company further agrees to waive
the defense in any action for specific performance that a remedy in law would
be adequate.
(b) No Inconsistent Agreements. The Company has not, as of the
date hereof, entered into, nor shall it, on or after the date hereof, enter
into, any agreement with respect to its securities that is inconsistent with
the rights granted to the Holders herein or otherwise conflicts with the
provisions hereof.
(c) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company has obtained the written
consent of the Holders of
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at least a majority of the then outstanding aggregate principal amount of Senior
Notes (or, after the consummation of any Exchange Offer in accordance with
Section 2 hereof, of Exchange Notes); provided that, with respect to any matter
that directly or indirectly affects the rights of any Initial Purchaser
hereunder, the Company shall obtain the written consent of each such Initial
Purchaser against which such amendment, qualification, supplement, waiver or
consent is to be effective. Notwithstanding the foregoing (except the foregoing
proviso), a waiver or consent to departure from the provisions hereof with
respect to a matter that relates exclusively to the rights of Holders whose
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 the
Majority Holders, determined on the basis of securities being sold rather than
registered under such Registration Statement.
(d) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, first-class
mail (registered or certified, return receipt requested), telex, telecopier or
air courier guaranteeing overnight delivery:
(i) if to a Holder, at the most current address given by
such holder to the Company in accordance with the provisions of
this Section 11(d), 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
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated;
(ii) if to any of the Initial Purchasers at the address
of the Representative set forth on Page 1 of this Agreement; and
(iii) if to the Company, initially at its address set
forth in the Purchase Agreement.
All such notices and communications shall be deemed to have been
duly given when received. The Initial Purchasers or the Company by notice to the
other may designate additional or different addresses for subsequent notices or
communications.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including, without the need for an express assignment or any consent
by the Company
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thereto, subsequent Holders of Senior Notes and/or Exchange Notes. The Company
hereby agrees to extend the benefits of this Agreement to any Holder of Senior
Notes and/or Exchange Notes and any such Holder may specifically enforce the
provisions of this Agreement as if an original party hereto.
(f) 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.
(g) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(h) Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
(i) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances,
is held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
(j) Securities Held by the Company, etc. Whenever the consent
or approval of Holders of a specified percentage of principal amount of Senior
Notes or Exchange Notes is required hereunder, Senior Notes or Exchange Notes,
as applicable, held by the Company or its Affiliates (other than subsequent
Holders of Senior Notes or Exchange Notes if such subsequent Holders are deemed
to be Affiliates solely by reason of their holdings of such Senior Notes or
Exchange Notes) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
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Please confirm that the foregoing correctly sets forth the
agreement between the Company and you.
AFLAC INCORPORATED
By: /s/ XXXX X. XXXXXXX
------------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President and
Assistant Chief Financial Officer
The foregoing Agreement is
hereby accepted as of the
date first above written.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
XXXXXXXXX, LUFKIN & XXXXXXXX
FIRST UNION CAPITAL MARKETS CORP.
NATIONSBANC XXXXXXXXXX SECURITIES LLC
XXXXXXX XXXXX XXXXXX INC.
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED,
AS REPRESENTATIVE
By: /s/ XXXXXXX XXXXXXXXXXX
--------------------------------
Name: Xxxxxxx Xxxxxxxxxxx
Title: Managing Director
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ANNEX A
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the 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 Notes received in exchange for Senior Notes where such
Exchange Notes were acquired by such broker-dealer as a result of market-making
activities or other trading activities. The Company has agreed that, starting on
the Expiration Date (as defined herein) and ending on the close of business on
the 90th day following the Expiration Date, it will make this Prospectus
available to any broker-dealer for use in connection with any such resale. See
"Plan of Distribution."
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ANNEX B
Each broker-dealer that receives Exchange Notes for its own account in
exchange for Senior Notes, where such Senior Notes were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Notes. See "Plan of Distribution."
30
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes. The
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Notes received in
exchange for Senior Notes where such Senior Notes were acquired as a result of
market-making activities or other trading activities. The Company has agreed
that, starting on the Expiration Date and ending on the close of business on the
90th day following the Expiration Date, it will make this Prospectus, as
amended or supplemented, available to any broker-dealer for use in connection
with any such resale. In addition, until ________, 199__, all dealers effecting
transactions in the Exchange Notes may be required to deliver a prospectus.(1)
The Company will not receive any proceeds from any sale of Exchange
Notes by broker-dealers. Exchange Notes received by broker-dealers for their own
account pursuant to the Exchange Offer may be sold from time to time in one or
more transactions in the over-the-counter market, in negotiated transactions,
through the writing of options on the Exchange Notes or 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 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 and/or the purchasers of any such Exchange Notes. Any
broker-dealer that resells Exchange Notes that were received by it for its own
account pursuant to the Exchange Offer and any broker or dealer that
participates in a distribution of such Exchange Notes may be deemed to be an
"under writer" within the meaning of the Securities Act and any profit of any
such resale of Exchange Notes and any commissions or concessions received by any
such persons may be deemed to be underwriting compensation under the 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.
-------------------
(1) In addition, the legend required by Item 502(e) of Regulation S-K
will appear on the back cover page of the Exchange Offer prospectus.
31
For a period of 90 days after the Expiration Date, the Company will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Company has agreed to pay all expenses
incident to the Exchange Offer (including the expenses of one counsel for the
holders of the Senior Notes) other than commissions or concessions of any
brokers or dealers and will indemnify the holders of the Senior Notes (including
any broker-dealers) against certain liabilities, including liabilities under the
Securities Act.
[If applicable, add information required by Regulation S-K Items 507
and/or 508.]
2
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ANNEX D
Rider A
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO
RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10
COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
---------------------------------------------
Address:
------------------------------------------
--------------------------------------------------
Rider B
If the undersigned is not a broker-dealer, the undersigned represents
that it is not engaged in, and does not intend to engage in, a distribution of
Exchange Notes. If the undersigned is a broker-dealer that will receive Exchange
Notes for its own account in exchange for Senior Notes that were acquired as a
result of market-making activities or other trading activities, it acknowledges
that it will deliver a prospectus in connection with any resale of such Exchange
Notes; provided, 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.
