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10.875% SENIOR DISCOUNT NOTES DUE 2009
REGISTRATION RIGHTS AGREEMENT
Dated April 29, 1999
by and among
UNITED INTERNATIONAL HOLDINGS, INC.
and
THE INITIAL PURCHASERS NAMED HEREIN
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement is made and entered into this 29th day
of April, 1999, among United International Holdings, Inc., a Delaware
corporation (the "Company"), and UIH Funding Corp., ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.,
▇▇▇▇▇ Securities Inc. and TD Securities (USA) Inc. (the "Initial Purchasers").
This Agreement is made pursuant to the Note Purchase Agreement, dated April
29, 1999, among the Company, ▇▇▇▇▇▇▇▇▇ Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation
and the Initial Purchasers (the "Purchase Agreement"). In connection with the
transactions contemplated by the Purchase Agreement, the Company has agreed to
provide the registration rights provided for in this Agreement to the Initial
Purchasers and its direct and indirect transferees. The execution of this
Agreement is a condition to the closing of the transactions contemplated by the
Purchase Agreement.
The parties hereby agree as follows:
1. DEFINITIONS
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As used in this Agreement, the following terms shall have the following
meanings:
ADVICE: As defined in the last paragraph of Section 5 hereof.
Affiliate: With respect to any specified person, "Affiliate" shall mean
any other person directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified person. For the purposes
of this definition, "control," when used with respect to any person, means the
power to direct the management and policies of such person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise and the terms "affiliated," "controlling" and "controlled" have
meanings correlative to the foregoing.
AGREEMENT: This Registration Rights Agreement, as the same may be
amended, supplemented or modified from time to time in accordance with the terms
hereof.
BUSINESS DAY: Any day except a Saturday, a Sunday or a day on which
banking institutions in the State of New York generally are authorized or
required by law or other government action to be closed.
COMPANY: As defined in the preamble hereof.
CONSUMMATE OR CONSUMMATE: When used to qualify the term "Exchange
Offer" shall mean validly and lawfully to issue and deliver the Exchange Notes
pursuant to the Exchange Offer for all Transfer Restricted Notes validly
tendered and not validly withdrawn pursuant thereto in accordance with the terms
of this Agreement.
CONSUMMATION DATE: The date that is 30 days immediately following the
date that a Registration Statement relative to an Exchange Offer, commenced
pursuant to this Agreement, shall have been declared effective by the SEC.
EFFECTIVENESS PERIOD: As defined in Section 3 hereof.
EVENT DATE: As defined in Section 4(a) hereof.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated by the SEC pursuant thereto.
EXCHANGE DATE: As defined in Section 2(d) hereof.
Exchange Offer: An offer to issue, in exchange for any and all of the
Transfer Restricted Notes, a like aggregate principal amount at maturity of
Exchange Notes, which offer shall be made by the Company pursuant to Section 2
hereof.
EXCHANGE NOTES: The 10.875% Senior Discount Notes due 2009 of the
Company that are identical to the Notes in all material respects, except that
the provisions regarding restrictions on transfer shall be modified, as
appropriate, and the issuance thereof pursuant to the Exchange Offer shall have
been registered pursuant to an effective Registration Statement in compliance
with the Securities Act.
EXCHANGE REGISTRATION STATEMENT: As defined in Section 2(a) hereof.
HOLDER: Each registered holder of any Transfer Restricted Notes.
INDEMNIFIED PERSON: As defined in Section 7(a) hereof.
INDENTURE: The Indenture, dated as of April 29, 1999, between the
Company and Firstar Bank of Minnesota, N.A., as trustee thereunder, pursuant to
which the Notes are being issued, as amended or supplemented from time to time
in accordance with the terms thereof.
INITIAL PURCHASERS: As defined in the preamble hereof.
INITIAL RESALE DATE: The date that the Initial Purchasers first resell
any Notes.
LIQUIDATED DAMAGES: As defined in Section 4(a) hereof.
NOTES: The 10.875% Senior Discount Notes due 2009 of the Company issued
pursuant to the Indenture.
PARTICIPATING BROKER-DEALER: As defined in Section 2(e) hereof.
PAYING AGENT: As defined in the Indenture.
PERSON: An individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
Private Exchange: As defined in Section 2(c) hereof.
Private Exchange Notes: As defined in Section 2(c) hereof.
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PROCEEDING: An action, claim, suit or proceeding (including, without
limitation, an investigation or partial proceeding, such as a
deposition),whether commenced or threatened.
PROSPECTUS: 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 promulgated pursuant to the Securities
Act), as amended or supplemented by any prospectus supplement, with respect to
the terms of the offering of any portion of the Transfer Restricted Notes or the
Exchange Notes covered by such Registration Statement, and all other amendments
and supplements to any such prospectus, including post-effective amendments, and
all material incorporated by reference or deemed to be incorporated by
reference, if any, in such prospectus.
REGISTRATION STATEMENT: Any registration statement of the Company that
covers any of the Notes or the Exchange Notes pursuant to the provisions of this
Agreement, including the Prospectus, amendments and supplements to such
registration statement or Prospectus, including pre- and post-effective
amendments, all exhibits thereto, and all material incorporated by reference or
deemed to be incorporated by reference, if any, in such registration statement.
RULE 144: Rule 144 promulgated by the SEC pursuant to the Securities
Act, as such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
RULE 144A: Rule 144A promulgated by the SEC pursuant to the Securities
Act, as such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
RULE 158: Rule 158 promulgated by the SEC pursuant to the Securities
Act, as such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
RULE 174: Rule 174 promulgated by the SEC pursuant to the Securities
Act, as such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
RULE 415: Rule 415 promulgated by the SEC pursuant to the Securities
Act, as such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
RULE 424: Rule 424 promulgated by the SEC pursuant to the Securities
Act, as such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
SEC: The Securities and Exchange Commission.
SECURITIES ACT: The Securities Act of 1933, as amended, and the rules
and regulations promulgated by the SEC thereunder.
SHELF FILING EVENT: As defined in Section 3 hereof.
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SHELF REGISTRATION: As defined in Section 3 hereof.
SHELF REGISTRATION STATEMENT: As defined in Section 3 hereof.
SPECIAL COUNSEL: Any special counsel to the Holders, the expenses of
which Holders will be reimbursed for, pursuant to Section 6.
TIA: The Trust Indenture Act of 1939, as amended.
TRANSFER RESTRICTED NOTES: The Notes, upon original issuance thereof,
and at all times subsequent thereto, each Exchange Note as to which Section
3(a)(iii)(B) hereof is applicable upon original issuance and at all times
subsequent thereto and each Private Exchange Note upon original issuance thereof
and at all times subsequent thereto, until in the case of any such Note,
Exchange Note or Private Exchange Note, as the case may be, the earliest to
occur of (i) the date on which such Note has been exchanged by a person other
than a broker-dealer for an Exchange Note pursuant to the Exchange Offer, (ii) a
Registration Statement (other than, with respect to any Exchange Note as to
which Section 3(a)(iii)(B) hereof is applicable, the Exchange Registration
Statement) covering such Note, Exchange Note or such Private Exchange Note has
been declared effective by the SEC and such Note or such Private Exchange Note,
as the case may be, has been disposed of in accordance with such effective
Registration Statement, (iii) the date on which such Note, Exchange Note or
Private Exchange Note, as the case may be, is distributed to the public pursuant
to Rule 144 (or any similar provisions then in effect) or is saleable pursuant
to Rule 144(k) promulgated by the SEC pursuant to the Securities Act, or (iv)
the date on which such Note, Exchange Note or Private Exchange Note, as the case
may be, ceases to be outstanding for purposes of the Indenture.
TRUSTEE: The trustee under the Indenture and if existent, the trustee
under any indenture governing the Exchange Notes and Private Exchange Notes (if
any).
UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING: A registration in
connection with which securities of the Company are sold to an underwriter for
reoffering to the public pursuant to an effective Registration Statement.
2. EXCHANGE OFFER
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(a) To the extent not prohibited by any applicable law or applicable
interpretation of the staff of the SEC, the Company shall (A) prepare and, on or
prior to 60 days after the Initial Resale Date, file with the SEC a Registration
Statement relating to the Exchange Offer under the Securities Act with respect
to an offer by the Company to the Holders to issue and deliver to such Holders,
in exchange for Transfer Restricted Notes (other than Private Exchange Notes, if
any), a like principal amount of corresponding Exchange Notes, (B) use its best
efforts to cause the Registration Statement relating to the Exchange Offer to be
declared effective by the SEC under the Securities Act on or prior to 150 days
after the Initial Resale Date, and (C) unless the Exchange Offer would not then
be permitted by a policy of the SEC, commence the applicable Exchange Offer and
use its best efforts to issue, on or prior to the Consummation Date, the
Exchange Notes. The offer and sale of the Exchange Notes pursuant to the
Exchange Offer shall be registered pursuant to the Securities Act on the
appropriate form (the "Exchange Registration Statement") and duly registered or
qualified under all applicable state securities or Blue Sky laws and will comply
with all applicable tender offer rules and regulations of the Exchange Act and
state securities or Blue Sky laws. The Exchange Offer and the Private Exchange
shall not be subject to any condition, other than that the Exchange Offer and
the Private Exchange, as the case may be, does not violate any applicable law or
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interpretation of the staff of the SEC. Upon consummation of the Exchange Offer
in accordance with this Section 2, the provisions of this Agreement shall
continue to apply, mutatis mutandis, solely with respect to Transfer Restricted
Notes that are Private Exchange Notes and Exchange Notes held by Participating
Broker-Dealers, and the Company shall have no further obligation to register
Transfer Restricted Notes (other than Private Exchange Notes and other than in
respect of any Exchange Notes as to which clause 3(a)(iii)(B) hereof applies)
pursuant to Section 3 hereof. No securities shall be included in the
Registration Statement covering the Exchange Offer other than the Exchange
Notes.
(b) The Company may require each Holder as a condition to its
participation in the Exchange Offer to represent to the Company and its counsel
in writing (which may be contained in the applicable letter of transmittal) that
at the time of the consummation of the Exchange Offer (i) any Exchange Notes
received by such Holder will be acquired in the ordinary course of its business,
(ii) such Holder will have no arrangement or understanding with any person to
participate in the distribution of the Notes or the Exchange Notes within the
meaning of the Securities Act and (iii) such Holder is not an Affiliate of the
Company, or if it is an Affiliate of the Company, it will comply with the
registration and prospectus delivery requirements of the Securities Act, to the
extent applicable.
(c) If, prior to consummation of the Exchange Offer, the Initial
Purchasers hold any Notes acquired by them and having, or which are reasonably
likely to be determined to have, the status of an unsold allotment in the
initial distribution, or any other Holder is not entitled to participate in the
Exchange Offer, the Company upon the request of either the Initial Purchasers or
any such Holder shall, simultaneously with the delivery of the Exchange Notes in
the Exchange Offer, issue and deliver to the Initial Purchasers and any such
Holder, in exchange (the "Private Exchange") for such Notes held by the Initial
Purchasers and any such Holder, a like principal amount at maturity of debt
securities of the Company that are identical in all material respects to the
Exchange Notes (the "Private Exchange Notes") (and which, subject to section
2(h), are issued pursuant to the same indenture as the Exchange Notes). The
Private Exchange Notes, to the extent possible, shall bear the same CUSIP number
as the Exchange Notes.
(d) Unless the Exchange Offer would not be permitted by any applicable
law or interpretation of the staff of the SEC, the Company shall commence the
Exchange Offer (within the time periods set forth herein) by mailing the related
exchange offer prospectus and appropriate accompanying documents, including
appropriate letters of transmittal, to each Holder providing, in addition to
such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this
Agreement and that all Notes validly tendered will be accepted for
exchange;
(ii) the dates of acceptance for exchange (the "Exchange Date"),
which date shall in no event be later than the Consummation Date
(unless otherwise required by applicable law);
(iii) that Holders electing to have a Note exchanged pursuant to
the Exchange Offer will be required to surrender such Note or $1,000
integral multiple portion thereof, together with the enclosed letters
of transmittal, to the institution and at the address (located in the
Borough of Manhattan, The City of New York) specified in the notice
prior to the close of business on the Exchange Date; and
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(iv) that (subject to a notification pursuant to Section 3(a))
Holders that do not tender all such securities pursuant to the
Exchange Offer will no longer have any registration rights hereunder
with respect to securities not tendered (other than with respect to
"Private Exchange Notes").
Promptly after the Exchange Date, the Company shall:
(i) accept for exchange all Notes or portions thereof validly
tendered and not validly withdrawn pursuant to the Exchange Offer or
the Private Exchange; and
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Notes or portions thereof so accepted for exchange by
the Company, and issue, or cause the Trustee under the Indenture to
authenticate and mail to each Holder, an Exchange Note or Private
Exchange Note, as the case may be, equal in principal amount at
maturity to the principal amount at maturity of the Notes surrendered
by such Holder.
(e) The Company and the Initial Purchasers acknowledge that the staff
of the SEC has taken the position that any broker-dealer that owns Exchange
Notes that were received by such broker-dealer for its own account in the
Exchange Offer (a "Participating Broker-Dealer") may be deemed to be an
"underwriter" within the meaning of the Securities Act and must deliver a
prospectus meeting the requirements of the Securities Act in connection with any
resale of such Exchange Notes (other than a resale of an unsold allotment
resulting from the original offering of the Notes).
The Company and the Initial Purchasers also acknowledge that
it is the SEC staff's position that if the Prospectus contained in the
Registration Statement includes a plan of distribution containing a statement to
the above effect and the means by which Participating Broker-Dealers may resell
the Exchange Notes, without naming the Participating Broker-Dealers or
specifying the amount of Exchange Notes owned by them, such Prospectus may be
delivered by Participating Broker-Dealers to satisfy their prospectus delivery
obligations under the Securities Act in connection with resales of Exchange
Notes for their own accounts, so long as the Prospectus otherwise meets the
requirements of the Securities Act.
In light of the above, notwithstanding the other provisions of this
Agreement, the Company agrees that the provisions of this Agreement as they
relate to a Shelf Registration Statement shall also apply to an Exchange Offer
to the extent, and with such modifications thereto as may be reasonably
requested by the Initial Purchasers or by one or more Participating
Broker-Dealers, in each case as provided in clause (ii) below, as appropriate to
expedite or facilitate the disposition of any Exchange Notes by Participating
Broker-Dealers consistent with the positions of the SEC recited in this Section
2(e); provided that:
(i) the Company shall not be required to amend or supplement the
Prospectus contained in the Registration Statement, as would otherwise
be contemplated by this Agreement, for a period exceeding one year
after the Consummation Date (as such period may be extended pursuant
to the terms of this Agreement relating to a Shelf Registration) and
Participating Broker-Dealers shall not be authorized by the Company to
deliver and shall not deliver such Prospectus after such period in
connection with the resales contemplated by this Section 2(e); and
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(ii) the application of the Shelf Registration procedures set
forth in Section 5 of this Agreement to an Exchange Offer, to the
extent not otherwise required by the positions of the staff of the SEC
or the Securities Act, will be in conformity with the reasonable
request to the Company by any Initial Purchaser or by anyone that
certifies to the Company in writing that such person anticipates that
it will be a Participating Broker-Dealer; and provided, further, that
in connection with such application of the Shelf Registration
procedures set forth in Section 5 of this Agreement to an Exchange
Offer, the Company shall be obliged (x) to deal only with one entity
representing the Participating Broker-Dealers, which shall be DLJ
unless it elects not to act as such representative, (y) to pay the
fees and expenses of only one counsel representing the Participating
Broker-Dealers and (z) to cause to be delivered, if requested,
customary "cold comfort" letters from the Company's independent
accountants with respect to the Prospectus in the form existing on the
Exchange Date and with respect to any subsequent amendment or
supplement, if any, effected during the period specified in clause (i)
above.
(f) The Initial Purchasers shall have no liability to any person with
respect to any request made pursuant to Section 2(e).
(g) Interest on the Exchange Notes and the Private Exchange Notes will
accrue (by which it is meant that the Accreted Value thereof shall continue to
increase) from the date of the original issuance of the Notes.
(h) The Exchange Notes and the Private Exchange Notes may be issued
under (i) the Indenture or (ii) if necessary, an indenture identical in all
material respects to the Indenture, which in either event shall provide that the
Exchange Notes shall not be subject to the transfer restrictions set forth in
the Indenture. The Indenture or such indenture shall provide that the Exchange
Notes, the Private Exchange Notes and the Notes shall vote and consent together
on all matters as one class and that neither the Exchange Notes, the Private
Exchange Notes nor the Notes will have the right to vote or consent as a
separate class on any matter.
3. SHELF REGISTRATION
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(a) If (i) the Company is advised in writing by the staff of the SEC
that it is not permitted to consummate the Exchange Offer because the Exchange
Offer is not permitted by applicable law or SEC policy or (ii) the Company has
not consummated the Exchange Offer within 180 days of the Initial Resale Date or
(iii) any Holder notifies the Company within 135 days after the Initial Resale
Date that (A) due to a change in law or policy it is not entitled to participate
in the Exchange Offer, (B) due to a change in law or policy it may not resell
the Exchange Notes acquired by it in the Exchange Offer to the public without
delivering a prospectus and the prospectus contained in the Exchange Offer
Registration Statement is not appropriate or available for such resales by such
Holder or (C) it is a broker-dealer that owns Notes (including any Initial
Purchaser who hold Notes as part of an unsold allotment from the original
offering of the Notes) acquired directly from the Company or an Affiliate of the
Company or (iv) any holder of Private Exchange Notes so requests within 135 days
after the consummation of the Private Exchange (each such event referred to in
clauses (i) through (iv), a "Shelf Filing Event"), the Company shall cause to be
filed with the SEC pursuant to Rule 415 a shelf registration statement (the
"Shelf Registration Statement") prior to the later of (a) 180 days after the
Initial Resale Date or (b) 30 days after the occurrence of such Shelf Filing
Event, relating to all such Transfer Restricted Notes (the "Shelf Registration")
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the Holders of which have provided the information required pursuant to Section
3(b) hereof; provided that if the Company has not consummated the Exchange Offer
within 180 days of the Initial Resale Date, then the Company will file the Shelf
Registration Statement on or prior to the 181st day after the Initial Resale
Date, and shall use its best efforts to have such Registration Statement
declared effective by the SEC as promptly as practicable, but in no event later
than on or prior to 60 days after such Shelf Registration Statement is required
to be filed. In such circumstances, the Company shall use its best efforts to
keep the Shelf Registration continuously effective under the Securities Act,
until (A) 12 months following the Initial Resale Date (subject to extension
pursuant to the last paragraph of Section 5 hereof) or (B) if sooner, the date
immediately following the date that all Transfer Restricted Notes covered by the
Shelf Registration have been sold pursuant thereto (the "Effectiveness Period");
provided that the Effectiveness Period shall be extended to the extent required
to permit dealers to comply with the applicable prospectus delivery requirements
of Rule 174 and as otherwise provided herein.
(b) No Holder may include any of its Transfer Restricted Notes in any
Shelf Registration Statement pursuant to this Agreement unless and until such
Holder furnishes to the Company in writing, within 20 Business Days after
receipt of a request therefor, such information as the Company may reasonably
request for use in connection with any Shelf Registration Statement or
Prospectus or preliminary prospectus included therein. No Holder shall be
entitled to Liquidated Damages pursuant to Section 4 hereof unless and until
such Holder shall have provided all such reasonably requested information. Each
Holder as to which any Shelf Registration Statement is being effected agrees to
furnish promptly to the Company all information required to be disclosed in
order to make the information previously furnished to the Company by such Holder
not materially misleading.
4. LIQUIDATED DAMAGES
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(a) The parties hereto agree that the Holders will suffer damages if
the Company fails to fulfill its obligations pursuant to Section 2 or Section 3,
as applicable, and that it would not be feasible to ascertain the extent of such
damages. Accordingly, in the event that (i) the applicable Registration
Statement is not filed with the SEC on or prior to the 60th day following the
Initial Resale Date, (ii) the applicable Registration Statement has not been
declared effective by the SEC on or prior to the 150th day after the Initial
Resale Date, (iii) the Exchange Offer has become effective but has not been
consummated within 30 days after the date on which the Registration Statement
relating to the Exchange Offer was declared effective or (iv) the applicable
Registration Statement is filed and declared effective but shall thereafter
cease to be effective without being succeeded immediately by any additional
Registration Statement covering either the Notes or the Exchange Notes, as the
case may be, which has been filed and declared effective (each such event
referred to in clauses (i) through (iv), an "Event Date"), the Company agrees to
pay, as liquidated damages, and not as a penalty, to each Holder, an additional
amount (the "Liquidated Damages") equal to (A) during the first 90-day period
beginning on, and including, the Event Date, an amount equal to 0.5% per annum
of the Accreted Value (as defined in the Indenture) of Transfer Restricted Notes
held by such Holder and (B) during each subsequent 90-day period immediately
following the final day of the prior 90-day period, a percentage of the Accreted
Value of Transfer Restricted Notes held by such Holder calculated at the rate
per annum applicable in the immediately preceding 90-day period plus 0.5%,
provided that, the rate at which Liquidated Damages are calculated shall not
exceed 2.5% per annum, and, in all cases, ending on, but excluding (w) in the
case of clause (i) above, the date on which the applicable Registration
Statement is filed, (x) in the case of clause (ii) above, the date on which the
applicable Registration Statement is declared effective, (y) in the case of
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clause (iii) above, the date on which the Exchange Offer is consummated or (z)
in the case of clause (iv) above, the date on which the applicable Registration
Statement again becomes effective, as the case may be.
(b) The Company shall notify the Trustee and Paying Agent under the
Indenture immediately upon the happening of each and every Event Date. The
Company shall pay the Liquidated Damages due on the Transfer Restricted Notes by
depositing with the Paying Agent (which shall not be the Company for these
purposes), in trust, for the benefit of the Holders thereof, at least one
Business Day prior to the applicable payment date specified in the following
sentence, sums sufficient to pay the Liquidated Damages then due. The Liquidated
Damages due shall be payable on each [May 15] and [November 15] to Holders of
record of Transfer Restricted Notes on the [May 1] or [November l],
respectively, next preceding such payment date. Each obligation to pay
Liquidated Damages shall be deemed to accrue from and including the applicable
Event Date.
(c) The parties hereto agree that the Liquidated Damages provided for
in this Section 4 constitute a reasonable estimate of the damages that will be
suffered by Holders by reason of the happening of any event described in clauses
(i) through (iv) of Section 4(a).
5. REGISTRATION PROCEDURES
-----------------------
In connection with the Company's registration obligations hereunder,
the Company shall effect such registrations on the appropriate form available
for the sale of the Transfer Restricted Notes or Exchange Notes, as applicable,
to (i) permit the sale of Exchange Notes and (ii) in the case of a Shelf
Registration, permit the sale of Transfer Restricted Notes in accordance with
the method or methods of disposition thereof specified by the Holders of a
majority in aggregate principal amount at maturity of Transfer Restricted Notes
to be included in the Registration Statement, and pursuant thereto the Company
shall as expeditiously as possible:
(a) In the case of a Shelf Registration, no fewer than five Business
Days prior to the initial filing of a Registration Statement or Prospectus and
no fewer than two Business Days prior to the filing of any amendment or
supplement thereto (including any document that would be incorporated or deemed
to be incorporated therein by reference), furnish to the Holders, their Special
Counsel and the managing underwriters, if any, copies of all such documents
proposed to be filed, which documents (other than those incorporated or deemed
to be incorporated by reference) will be subject to the review of such Holders,
their Special Counsel and such underwriters, if any, and cause the officers and
directors of the Company, counsel to the Company and independent certified
public accountants to the Company to respond to such inquiries as shall be
necessary, in the opinion of respective counsel to such Holders and such
underwriters, to conduct a reasonable investigation within the meaning of the
Securities Act; provided, however, that the Company shall not be deemed to have
kept a Registration Statement effective during the applicable period if it
voluntarily takes or fails to take any action that results in selling Holders of
the Transfer Restricted Notes covered thereby not being able to sell such
Transfer Restricted Notes pursuant to Federal securities laws during that period
(and the time period during which such Registration Statement is required to
remain effective hereunder shall be extended by the number of days during which
such selling Holders are not able to sell Transfer Restricted Notes). The
Company shall not file any such Shelf Registration Statement or related
Prospectus or any amendments or supplements thereto which the Holders of a
majority of the Transfer Restricted Notes, their Special Counsel, or the
managing underwriters, if any, shall reasonably object on a timely basis;
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(b) Prepare and file with the SEC such amendments, including
post-effective amendments, to each Registration Statement as may be necessary to
keep such Registration Statement continuously effective for the applicable time
period; cause the related Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424
under the Securities Act; and comply with the provisions of the Securities Act
and the Exchange Act with respect to the disposition of all securities covered
by such Registration Statement during such period in accordance with the
intended methods of disposition by the sellers thereof set forth in such
Registration Statement as so amended or in such Prospectus as so supplemented;
(c) Notify the Holders of Transfer Restricted Notes to be sold or, in
the case of an Exchange Offer, tendered for, their Special Counsel and the
managing underwriters, if any, promptly (and in the case of an event specified
by clause (i)(A) of this paragraph in no event fewer than two Business Days
prior to such filing), and (if requested by any such Person), confirm such
notice in writing, (i)(A) when a Prospectus or any Prospectus supplement or
post-effective amendment is proposed to be filed, and, (B) with respect to a
Registration Statement or any post-effective amendment, when the same has become
effective, (ii) in the case of a Shelf Registration, of any request by the SEC
or any other Federal or state governmental authority for amendments or
supplements to a Registration Statement or related Prospectus or for additional
information, (iii) of the issuance by the SEC, any state securities commission,
any other governmental agency or any court of any stop order, order or
injunction suspending or enjoining the use or the effectiveness of a
Registration Statement or the initiation of any proceedings for that purpose,
(iv) if at any time any of the representations and warranties of the Company
contained in any agreement (including any underwriting agreement) contemplated
hereby cease to be true and correct in all material respects, (v) of the receipt
by the Company of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Transfer Restricted
Notes or Exchange Notes for sale in any jurisdiction, or the initiation or
threatening of any proceeding for such purpose, and (vi) of the happening of any
event or information becoming known that makes any statement made in such Shelf
Registration Statement or related Prospectus or any document incorporated or
deemed to be incorporated therein by reference untrue in any material respect or
that requires the making of any changes in such Shelf Registration Statement,
Prospectus or documents so that, in the case of the Shelf Registration
Statement, it will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein, not misleading, and that in the case of the Prospectus,
it will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading;
(d) Use its best efforts to avoid the issuance of, or, if issued,
obtain the withdrawal of any order enjoining or suspending the use or
effectiveness of a Registration Statement or the lifting of any suspension of
the qualification (or exemption from qualification) of any of the Transfer
Restricted Notes or Exchange Notes for sale in any jurisdiction, at the earliest
practicable moment;
(e) If a Shelf Registration is filed pursuant to Section 3 hereof and
if requested by the managing underwriters, if any, or the Holders of a majority
in aggregate principal amount at maturity of the Transfer Restricted Notes being
sold in connection with such offering, (i) promptly incorporate in a Prospectus
supplement or post-effective amendment such information as the managing
underwriters, if any, and such Holders agree should be included therein, and
(ii) make all required filings of such Prospectus supplement or such
post-effective amendment as soon as practicable after the Company has received
notification of the matters to be incorporated in such Prospectus supplement or
post-effective amendment; provided, however, that the Company shall not be
10
required to take any action pursuant to this Section 5(e) that would, in the
opinion of counsel for the Company, violate applicable law;
(f) Furnish to each Holder, their Special Counsel and each managing
underwriter, if any, without charge, at least one conformed copy of each
Registration Statement and each amendment thereto, including financial
statements and schedules, all documents incorporated or deemed to be
incorporated therein by reference, and all exhibits to the extent requested by
each Holder (including those previously furnished or incorporated by reference)
as soon as practicable after the filing of such documents with the SEC;
(g) Deliver to each Holder, their Special Counsel, and the
underwriters, if any, without charge, as many copies of the Prospectus or
Prospectuses (including each form of prospectus) and each amendment or
supplement thereto as such Persons reasonably request; and the Company hereby
consents to the use of such Prospectus and each amendment or supplement thereto
by each of the selling Holders and the underwriters, if any, in connection with
the offering and sale of the Transfer Restricted Notes covered by such
Prospectus and any amendment or supplement thereto;
(h) Prior to any public offering of Transfer Restricted Notes and prior
to the consummation of the Exchange Offer, use its best efforts to register or
qualify or cooperate with the Holders of Transfer Restricted Notes to be sold or
tendered for, the underwriters, if any, and their respective counsel in
connection with the registration or qualification (or exemption from such
registration or qualification) of such Transfer Restricted Notes or Exchange
Notes for offer and sale under the securities or Blue Sky laws of such
jurisdictions within the United States as any Holder or underwriter reasonably
requests in writing; keep each such registration or qualification (or exemption
therefrom) effective during the period such Registration Statement is required
to be kept effective and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of the Transfer
Restricted Notes or Exchange Notes covered by the applicable Registration
Statement;
(i) In connection with any sale or transfer of Transfer Restricted
Notes that will result in such securities no longer being Transfer Restricted
Notes, cooperate with the Holders and the managing underwriters, if any, to
facilitate the timely preparation and delivery of certificates representing
Transfer Restricted Notes or Exchange Notes to be sold, which certificates shall
not bear any restrictive legends and shall be in a form eligible for deposit
with The Depository Trust Company and to enable such Transfer Restricted Notes
or Exchange Notes to be in such denominations and registered in such names as
the managing underwriters, if any, or Holders may request at least two Business
Days prior to any sale of Transfer Restricted Notes or Exchange Notes;
(j) Use its best efforts to cause the offering of the Transfer
Restricted Notes and Exchange Notes 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 or sellers thereof or the underwriters,
if any, to consummate the disposition of such Transfer Restricted Notes and
Exchange Notes, except as may be required solely as a consequence of the nature
of such selling Holder's business, in which case the Company will cooperate in
all reasonable respects with the filing of such Registration Statement and the
granting of such approvals;
(k) Upon the occurrence of any event contemplated by Paragraph
5(c)(vi), as promptly as practicable, prepare a supplement or amendment,
11
including, if appropriate, a post-effective amendment, to each Registration
Statement or a supplement to the related Prospectus or any document incorporated
or deemed to be incorporated therein by reference, and file any other required
document so that, as thereafter delivered, such Prospectus will not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(l) Prior to the effective date of the first Registration Statement
relating to the Transfer Restricted Notes or Exchange Notes, as applicable, to
provide a CUSIP number for the Transfer Restricted Notes and Exchange Notes, as
applicable;
(m) If a Shelf Registration is filed pursuant to Section 3 hereof,
enter into such agreements (including an underwriting agreement in form, scope
and substance as is customary in underwritten offerings) and take all such other
reasonable actions in connection therewith (including those reasonably requested
by the managing underwriters, if any, or the Holders of a majority in aggregate
principal amount at maturity of the Transfer Restricted Notes being sold) in
order to expedite or facilitate the disposition of such Transfer Restricted
Notes, and in such connection, whether or not an underwriting agreement is
entered into and whether or not the registration is an underwritten
registration, (i) make such representations and warranties to the Holders of
such Transfer Restricted Notes and the underwriters, if any, with respect to the
business of the Company and its subsidiaries (including with respect to
businesses or assets acquired or to be acquired by any of them), and the
Registration Statement, Prospectus and documents, if any, incorporated or deemed
to be incorporated by reference therein, in each case, in form, substance and
scope as are reasonable and customarily made by issuers to underwriters in
underwritten offerings, and confirm the same if and when requested; (ii) obtain
an opinion of counsel to the Company and updates thereof (which counsel and
opinions (in form, scope and substance) shall be reasonably satisfactory to the
managing underwriters, if any, and Special Counsel to the Holders) addressed to
each selling Holder and each of the underwriters, if any, covering the matters
customarily covered in opinions requested in underwritten offerings and such
other matters as may be reasonably requested by such Special Counsel and
underwriters; (iii) use its best efforts to obtain customary "cold comfort"
letters and updates thereof from the independent certified public accountants of
the Company (and, if necessary, any other independent certified public
accountants of any subsidiary of the Company or of any business acquired by the
Company for which financial statements and financial data is, or is required to
be, included in the Registration Statement), addressed (where reasonably
possible) to each selling Holder and each of the underwriters, if any, such
letters to be in customary form and covering matters of the type customarily
covered in "cold comfort" letters in connection with underwritten offerings;
(iv) if an underwriting agreement is entered into, the same shall contain
indemnification provisions and procedures no less favorable to the selling
Holders and the underwriters, if any, than those set forth in Section 8 hereof
(or such other provisions and procedures acceptable to Holders of a majority in
aggregate principal amount of the Transfer Restricted Notes covered by such
Registration Statement and the managing underwriters, if any); and (v) deliver
such documents and certificates as may be reasonably requested by the Holders of
a majority in aggregate principal amount at maturity of the Transfer Restricted
Notes being sold, their Special Counsel and the managing underwriters, if any,
to evidence the continued validity of the representations and warranties made
pursuant to clause (i) above and to evidence compliance with any customary
conditions contained in the underwriting agreement or other agreement entered
into by the Company;
(n) In the case of a Shelf Registration, make available for inspection
by a representative of the Holders of Transfer Restricted Notes being sold, any
underwriter participating in any such disposition of Transfer Restricted Notes,
if any, and any attorney, consultant or accountant retained by such selling
12
Holders or underwriter, at the offices where normally kept, during reasonable
business hours, all financial and other records, pertinent corporate documents
and properties of the Company and its subsidiaries (including with respect to
business and assets acquired or to be acquired to the extent that such
information is available to the Company), and cause the officers, directors,
agents and employees of the Company and its subsidiaries (including with respect
to business and assets acquired or to be acquired to the extent that such
information is available to the Company) to supply all information in each case
reasonably requested by any such representative, underwriter, attorney,
consultant or accountant in connection with such Shelf Registration; provided,
however, that such Persons shall first agree in writing with the Company that
any information that is reasonably and in good faith designated by the Company
in writing as confidential at the time of delivery of such information shall be
kept confidential by such Persons, unless (i) disclosure of such information is
required by court or administrative order or is necessary to respond to
inquiries of regulatory authorities, (ii) disclosure of such information is
required by law (including any disclosure requirements pursuant to Federal
securities laws in connection with the filing of any Registration Statement or
the use of any prospectus referred to in this Agreement), (iii) such information
becomes generally available to the public other than as a result of a disclosure
or failure to safeguard by such Person or (iv) such information becomes
available to such Person from a source other than the Company and such source is
not bound by a confidentiality agreement;
(o) Provide an indenture trustee for the Transfer Restricted Notes and
the Exchange Notes, as the case may be, and cause the Indenture to be qualified
under the TIA not later than the effective date of the first Registration
Statement relating to the Transfer Restricted Notes or the Exchange Notes, as
applicable; and in connection therewith, cooperate with the trustee under the
Indenture and the Holders, to effect such changes to the Indenture as may be
required for such Indenture to be so qualified in accordance with the terms of
the TIA; and execute, and use its best efforts to cause such trustee to execute,
all customary documents as may be required to effect such changes, and all other
forms and documents required to be filed with the SEC to enable the Indenture to
be so qualified in a timely manner;
(p) Comply with all applicable rules and regulations of the SEC and
make generally available to their security holders earning statements satisfying
the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder
(or any similar rule promulgated under the Securities Act), no later than 45
days after the end of any 12-month period (or 90 days after the end of any
12-month period if such period is a fiscal year) (i) commencing at the end of
any fiscal quarter in which Transfer Restricted Notes are sold to underwriters
in a firm commitment or reasonable efforts underwritten offering and (ii) if not
sold to underwriters in such an offering, commencing on the first day of the
first fiscal quarter after the effective date of a Registration Statement, which
statement shall cover said period, consistent with the requirements of Rule 158;
(q) In the case of a Shelf Registration, use its best efforts to cause
the Transfer Restricted Notes to be rated with the appropriate rating agencies,
if so requested by the managing underwriters, if any, or the Holders of a
majority in aggregate principal amount at maturity of the Transfer Restricted
Notes;
(r) Cooperate with each seller of Transfer Restricted Notes covered by
any Registration Statement and each underwriter, if any, participating in the
disposition of such Transfer Restricted Notes and their respective counsel in
connection with any filings required to be made with the National Association of
Securities Dealers, Inc.;
13
(s) Use its best efforts to take all other steps necessary or advisable
to effect the registration of the Exchange Notes and/or Transfer Restricted
Notes covered by a Registration Statement contemplated hereby; and
(t) If an Exchange Offer is to be consummated, upon delivery of the
Transfer Restricted Notes by such Holders to the Company in exchange for the
Exchange Notes, the Company shall ▇▇▇▇, or caused to be marked, on such Transfer
Restricted Notes that such Transfer Restricted Notes are being cancelled in
exchange for the Exchange Notes; in no event shall such Transfer Restricted
Notes be marked as paid or otherwise satisfied.
The Company may require such seller of Transfer Restricted Notes as to
which any registration is being effected to furnish to the Company such
information regarding the distribution of such Transfer Restricted Notes as is
required by law to be disclosed in the applicable Registration Statement and the
Company may exclude from such registration the Transfer Restricted Notes of any
seller who fails to furnish such information within a reasonable time after
receiving such request.
If any such Registration Statement refers to any Holder by name or
otherwise as the holder of any securities of the Company, then such Holder shall
have the right to require (i) the insertion therein of language, in form and
substance reasonably satisfactory to such Holder, to the effect that the holding
by such Holder of such securities is not to be construed as a recommendation by
such Holder of the investment quality of the Company's securities covered
thereby and that such holding does not imply that such Holder will assist in
meeting any future financial requirements of the Company, or (ii) in the event
that such reference to such Holder by name or otherwise is not required by the
Securities Act or any similar Federal statute then in force, the deletion of the
reference to such Holder in any amendment or supplement to the Registration
Statement filed or prepared subsequent to the time that such reference ceases to
be required.
In the case of a Shelf Registration pursuant to Section 3 hereof, each
Holder agrees by acquisition of such Transfer Restricted Notes that, upon
receipt of any notice from the Company of the happening of any event of the kind
described in Section 5(c)(ii), 5(c)(iii), 5(c)(v) or 5(c)(vi) hereof, such
Holder will forthwith discontinue disposition of such Transfer Restricted Notes
covered by such Registration Statement or Prospectus until such Holder's receipt
of the copies of the supplemented or amended Prospectus contemplated by Section
5(k) hereof, or until it is advised in writing (the "Advice") by the Company
that the use of the applicable Prospectus may be resumed, and, in either case,
has received copies of any additional or supplemental filings that are
incorporated or deemed to be incorporated by reference in such Prospectus. If
the Company shall give any such notice, the Effectiveness Period shall be
extended by the number of days during such period from and including the date of
the giving of such notice to and including the date when each seller of Transfer
Restricted Notes covered by such Registration Statement shall have received (x)
the copies of the supplemented or amended Prospectus contemplated by Section
5(k) hereof or (y) the Advice, and, in either case, has received copies of any
additional or supplemental filings that are incorporated or deemed to be
incorporated by reference in such Prospectus.
6. REGISTRATION EXPENSES
---------------------
(a) All fees and expenses incident to the performance of or compliance
with this Agreement by the Company shall be borne by the Company whether or not
any Registration Statement is filed or becomes effective and whether or not any
securities are issued or sold pursuant to any Registration Statement. The fees
and expenses referred to in the foregoing sentence shall include, without
limitation, (i) all registration and filing fees (including, without limitation,
14
fees and expenses (A) with respect to filings required to be made with the
National Association of Securities Dealers, Inc. and (B) in compliance with
securities or Blue Sky laws (including, without limitation and in addition to
that provided for in (b) below, fees and disbursements of counsel for the
underwriters or Holders or holders of Exchange Notes in connection with Blue Sky
qualifications and determination of the eligibility of the Transfer Restricted
Notes or Exchange Notes for investment under the laws of such jurisdictions as
the managing underwriters, if any, or Holders of a majority in aggregate
principal amount at maturity of Transfer Restricted Notes may designate), (ii)
printing expenses (including, without limitation, expenses of printing
certificates for Transfer Restricted Notes or Exchange Notes in a form eligible
for deposit with The Depository Trust Company and of printing Prospectuses if
the printing of Prospectuses is required by the managing underwriters, if any,
or by the Holders of a majority in principal amount at maturity of the Transfer
Restricted Notes included in or tendered for in connection with any Registration
Statement), (iii) messenger, telephone and delivery expenses, (iv) fees and
disbursements of counsel for the Company and Special Counsel for the Holders
(plus any local counsel, deemed appropriate by the Holders of a majority in
aggregate principal amount at maturity of the Transfer Restricted Notes), in
accordance with the provisions of Section 6(b) hereof, (v) fees and
disbursements of all independent certified public accountants referred to in
Section 5(m)(iii) hereof (including, without limitation, the expenses of any
special audit and "cold comfort" letters required by or incident to such
performance), (vi) if required, the fees and expenses of any "qualified
independent underwriter" and its counsel, (vii) Securities Act liability
insurance, if the Company desires such insurance, and (viii) fees and expenses
of all other persons retained by the Company. In addition, the Company shall pay
their internal expenses (including, without limitation, all salaries and
expenses of their officers and employees performing legal or accounting duties),
the expense of any annual audit, and the fees and expenses incurred in
connection with the listing of the securities to be registered on any securities
exchange.
(b) In connection with any registration hereunder, the Company shall
reimburse the Holders of the Transfer Restricted Notes being registered or
tendered for in such registration for the reasonable fees and disbursements of
not more than one firm of attorneys representing the selling Holders (in
addition to any local counsel) chosen by the Holders of a majority in aggregate
principal amount at maturity of the Transfer Restricted Notes.
7. INDEMNIFICATION
---------------
(a) The Company agrees to indemnify and hold harmless (i) each Initial
Purchaser, each Holder, each holder of Exchange Notes and each Participating
Broker-Dealer, (ii) each person, if any, who controls (within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act) any of the foregoing
(any of the persons referred to in this clause (ii) being hereinafter referred
to as a "controlling person"), and (iii) the respective officers, directors,
partners, employees, representatives and agents of the Initial Purchaser, each
Holder, each holder of Exchange Notes, each Participating Broker-Dealer or any
controlling person (any person referred to in clause (i), (ii) or (iii) may
hereinafter be referred to as an "Indemnified Person"), from and against any and
all losses, claims, damages, liabilities and judgments caused by any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement, Prospectus or form of Prospectus or in any amendment or
supplement thereto or in any preliminary prospectus, or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein (in the case of any
Prospectus or form of Prospectus or supplement thereto, in light of the
circumstances under which they were made) not misleading, except insofar as such
losses, claims, damages, liabilities or judgments are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to any Indemnified Person furnished in writing to the
15
Company by such Indemnified Person expressly for use therein; provided that the
foregoing indemnity with respect to any preliminary prospectus shall not inure
to the benefit of any Indemnified Person from whom the person asserting such
losses, claims, damages, liabilities and judgments purchased securities if such
untrue statement or omission or alleged untrue statement or omission made in
such preliminary prospectus is eliminated or remedied in the Prospectus and a
copy of the Prospectus shall not have been furnished to such person in a timely
manner due to the wrongful action or wrongful inaction of such Indemnified
Person.
(b) In case any action shall be brought against any Indemnified Person,
based upon any Registration Statement or any such Prospectus or any amendment or
supplement thereto and with respect to which indemnity may be sought against the
Company, such Indemnified Person shall promptly notify the Company in writing
and the Company shall assume the defense thereof, including the employment of
counsel reasonably satisfactory to such Indemnified Person and payment of all
fees and expenses. Any Indemnified Person shall have the right to employ
separate counsel in any such action and participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of such
Indemnified Person, unless (i) the employment of such counsel shall have been
specifically authorized in writing by the Company, (ii) the Company shall have
failed to assume the defense and employ counsel or (iii) the named parties to
any such action (including any impleaded parties) include both such Indemnified
Person and the Company and such Indemnified Person shall have been advised by
counsel that there may be one or more legal defenses available to it which are
different from or additional to those available to the Company (in which case
the Company shall not have the right to assume the defense of such action on
behalf of such Indemnified Person, it being understood, however, that the
Company shall not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable fees
and expenses of more than one separate firm of attorneys (in addition to any
local counsel) for all such Indemnified Persons, which firm shall be designated
in writing by such Indemnified Persons, and that all such fees and expenses
shall be reimbursed as they are incurred). The Company shall not be liable for
any settlement of any such action effected without its written consent but if
settled with its written consent, the Company agrees to indemnify and hold
harmless any Indemnified Person from and against any loss or liability by reason
of such settlement. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding.
(c) In connection with any Registration Statement in which a
Holder is participating, such Holder agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers and any
person controlling the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Indemnified Person but only with
respect to information relating to such Indemnified Person furnished in writing
by or on behalf of such Indemnified Person expressly for use in such
Registration Statement. In any such case in which any action shall be brought
against the Company, any of its directors, any such officer or any person
controlling the Company based on such Registration Statement and in respect of
which indemnity may be sought against any Indemnified Person, the Indemnified
Person shall have the rights and duties given to the Company (except that if the
Company shall have assumed the defense thereof, such Indemnified Person shall
not be required to do so, but may employ separate counsel therein and
participate in the defense thereof but the fees and expenses of such counsel
shall be at the expense of such Indemnified Person), and the Company, its
directors, any such officers and any person controlling the Company shall have
the rights and duties given to the Indemnified Person, by Section 7(b) hereof.
16
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party in respect of any losses, claims, damages,
liabilities or judgments referred to therein, then the indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims,
damages, liabilities and judgments (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and each
Indemnified Person on the other hand from the offering of the Notes or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and each such Indemnified Person on the other hand in connection
with the statements or omissions which resulted in such losses, claims, damages,
liabilities or judgments, as well as any other relevant equitable
considerations. The relative fault of the Company on the one hand and each such
Indemnified Person on the other hand shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission to state a material fact relates to information supplied by the
Company or such Indemnified Person and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and the Initial Purchaser agree that it would not be just
and equitable if contribution pursuant to this Section 7(d) were determined by
pro rata allocation (even if the Indemnified Person were treated as one entity
for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, no Indemnified Person shall be
required to contribute any amount in excess of the amount by which the net
profit received by it in connection with the sale of the Notes contemplated by
this Agreement exceeds the amount of any damages which such Indemnified Person
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section II (f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Indemnified Persons' obligations to contribute pursuant
to this Section 7(d) are several in proportion to the respective amount of Notes
included in any such Registration Statement by each Indemnified Person and not
joint.
8. RULES 144 AND 144A
------------------
The Company shall use its best efforts to file the reports required to
be filed by it under the Securities Act and the Exchange Act in a timely manner
and, if at any time it is not required to file such reports but in the past had
been required to or did file such reports, it will, upon the request of any
Holder, make available other information as required by, and so long as
necessary to permit, sales of its Transfer Restricted Notes pursuant to Rule
144A. Notwithstanding the foregoing, nothing in this Section 8 shall be deemed
to require the Company to register any of its securities pursuant to the
Exchange Act.
9. UNDERWRITTEN REGISTRATIONS
--------------------------
If any of the Transfer Restricted Notes covered by any Shelf
Registration are to be sold in an underwritten offering, the investment banker
or investment bankers and manager or managers that will administer the offering
17
will be selected by the Holders of a majority in aggregate principal amount at
maturity of such Transfer Restricted Notes included in such offering, subject to
the consent of the Company (which will not be unreasonably withheld or delayed).
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such Transfer Restricted Notes on the
basis reasonably provided in any underwriting arrangements approved by the
persons entitled hereunder to approve such arrangements and (ii) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting
arrangements.
10. MISCELLANEOUS
-------------
(a) REMEDIES. In the event of a breach by the Company or by a Holder of
any of their obligations under this Agreement, each Holder or the Company, as
the case may be, in addition to being entitled to exercise all rights granted by
law, including recovery of damages, will be entitled to specific performance of
its rights under this Agreement. Subject to Section 4 hereof, the Company and
each Holder agree that monetary damages would not be adequate compensation for
any loss incurred by reason of a breach by it of any of the provisions of this
Agreement and hereby further agrees that, in the event of any action for
specific performance in respect of such breach, it shall waive the defense that
a remedy at law would be adequate.
(b) NO INCONSISTENT AGREEMENTS. The Company will not enter into any
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders in this Agreement or otherwise conflicts with the
provisions hereof. The Company has not previously entered into any agreement,
which is now effective, granting any registration rights with respect to any of
its debt securities to any person. Without limiting the generality of the
foregoing, without the written consent of the Holders of a majority in aggregate
principal amount at maturity of the then outstanding Transfer Restricted Notes,
the Company shall not grant to any person the right to request the Company to
register any of their debt securities under the Securities Act unless the rights
so granted are subject in all respects to the prior rights of the Holders set
forth herein, and are not otherwise in conflict or inconsistent with the
provisions of this Agreement.
(c) NO PIGGYBACK ON REGISTRATIONS. The Company shall not grant to any
of its security holders (other than the Holders in such capacity) the right to
include any securities of the Company in any Shelf Registration or Exchange
Offer other than Transfer Restricted Notes.
(d) AMENDMENTS AND WAIVERS. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given, otherwise than with the prior written consent of the Holders of not less
than a majority of the then outstanding aggregate principal amount at maturity
of Transfer Restricted Notes; provided, however, that, for the purposes of this
Agreement, Transfer Restricted Notes that are owned, directly or indirectly, by
the Company or an Affiliate of the Company are deemed not outstanding.
Notwithstanding the foregoing, a waiver or consent to depart from the provisions
hereof with respect to a matter that relates exclusively to the rights of
Holders 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 Holders of a majority in aggregate principal amount at maturity of the
Transfer Restricted Notes being sold by such Holders pursuant to such
18
Registration Statement; provided, however, that the provisions of this sentence
may not be amended, modified or supplemented except in accordance with the
provisions of the immediately preceding sentence.
(e) NOTICES. All notices and other communications provided for herein
shall be made in writing by hand-delivery, next-day air courier, certified
first-class mail, return receipt requested, telex or facsimile:
(i) if to the Company, as provided in the Purchase Agreement,
(ii) if to the Initial Purchasers, as provided in the Purchase
Agreement, or
(iii) if to any other person who is then a registered Holder, to
the address of such Holder as it appears in the Note register of the
Company.
Except as otherwise provided in this Agreement, all such communications
shall be deemed to have been duly given: when delivered by hand, if personally
delivered; one business day after being timely delivered to a next-day air
courier; five business days after being deposited in the mail, postage prepaid,
if mailed; when answered back, if telexed; and when receipt is acknowledged by
the recipient's telecopier machine, if telecopied.
(f) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
of and be binding upon the successors and permitted assigns of each of the
parties and shall inure to the benefit of each Holder. The Company may not
assign its rights or obligations hereunder without the prior written consent of
each Holder. Notwithstanding the foregoing, no transferee shall have any of the
rights granted under this Agreement until such transferee shall acknowledge its
rights and obligations hereunder by a signed written statement of such
transferee's acceptance of such rights and obligations.
(g) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and, all of which taken
together shall constitute one and the same Agreement.
(h) APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK INCLUDING, WITHOUT
LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW
AND NEW YORK CIVIL PRACTICE LAWS AND RULES 327(b) AS APPLIED TO CONTRACTS MADE
AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK, EXCLUDING (TO THE GREATEST
EXTENT PERMISSIBLE BY LAW) ANY RULE OF LAW THAT WOULD CAUSE THE APPLICATION OF
THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK. THE COMPANY
HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY NEW YORK STATE
COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL
COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF
ANY SUIT, ACTION OR PROCEEDING RELATED TO THIS AGREEMENT OR ANY OF THE MATTERS
CONTEMPLATED HEREBY, IRREVOCABLY WAIVES ANY DEFENSE OF LACK OF PERSONAL
JURISDICTION AND IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUIT,
19
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT. THE COMPANY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER
APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF
VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY
CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM.
(i) SEVERABILITY. The remedies provided herein are cumulative and not
exclusive of any remedies provided by law. If any term, provision, covenant or
restriction of this is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their reasonable efforts to find and employ an alternative
means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction. It is hereby stipulated and
declared to be the intention of the parties that they would have executed the
remaining terms, provisions, covenants and restrictions without including any of
such that may be hereafter declared invalid, illegal, void or unenforceable.
(j) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof. All
references made in this Agreement to "Section" and "paragraph" refer to such
Section or paragraph of this Agreement, unless expressly stated otherwise.
(k) ATTORNEYS' FEES. In any action or proceeding brought to enforce any
provisions of this Agreement, or where any provision hereof or thereof is
validly asserted as a defense, the prevailing party, as determined by the court,
shall be entitled to recover reasonable attorneys' fees in addition to any other
available remedy.
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IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed as of the date first written above.
UNITED INTERNATIONAL HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
UIH FUNDING CORP.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ III
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇ III
Title: Managing Director
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
TD SECURITIES (USA), INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
CHASE SECURITIES INC.
By: /s/ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇. ▇▇▇▇▇▇▇▇▇
Title: Managing Director
