EXHIBIT 4.2
[CONFORMED]
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REGISTRATION RIGHTS AGREEMENT
Dated as of October 9, 2002
among
CONOCOPHILLIPS
as Issuer
and
BANC OF AMERICA SECURITIES LLC
X.X. XXXXXX SECURITIES INC.
XXXXXXX XXXXX BARNEY INC.
AND
THE OTHER INITIAL PURCHASERS
REFERRED TO HEREIN
as the Initial Purchasers
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REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (the "Agreement") dated as of October 9,
2002 among CONOCOPHILLIPS, a Delaware corporation (the "Company"), as issuer and
BANC OF AMERICA SECURITIES LLC, X.X. XXXXXX SECURITIES INC., XXXXXXX XXXXX
BARNEY INC. and the other parties referred to in Annex A hereto (each, an
"Initial Purchaser" and collectively, the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement dated October
2, 2002 by and among the Company, and the Initial Purchasers (the "Purchase
Agreement"), which provides for the sale by the Company to the Initial
Purchasers of $400,000,000 aggregate principal amount of the Company's 3.625%
Notes due 2007, $1,000,000,000 aggregate principal amount of the Company's 4.75%
Notes due 2012 and $600,000,000 aggregate principal amount of the Company's
5.90% Notes due 2032 (collectively, the "Notes"). The Notes will be fully and
unconditionally guaranteed (the "Guarantees," and together with the Notes, the
"Securities") by Conoco Inc. and Xxxxxxxx Petroleum Company (each a "Guarantor"
and together the "Guarantors"). In order to induce the Initial Purchasers to
enter into the Purchase Agreement and in satisfaction of a condition to the
Initial Purchasers' obligations thereunder, the Company has agreed to provide to
the Initial Purchasers and their respective direct and indirect transferees and
assigns the registration rights set forth in this Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following capitalized
defined terms shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended
from time to time, and the rules and regulations of the SEC promulgated
thereunder.
"1934 Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time, and the rules and regulations of the SEC
promulgated thereunder.
"Additional Interest" shall have the meaning set forth in
Section 2(e) hereof.
"Closing Time" shall mean October 9, 2002.
"Depositary" shall mean The Depository Trust Company, or any
other depositary appointed by the Company, including any agent thereof;
provided, however, that any such depositary must at all times have an
address in the Borough of Manhattan, The City of New York.
"Exchange Offer" shall mean the exchange offer by the Company
and the Guarantors of Exchange Securities for Registrable Securities
pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration of the
Exchange Offer under the 1933 Act effected pursuant to Section 2(a)
hereof.
"Exchange Offer Registration Statement" shall mean a
registration statement of the Company and the Guarantors on Form S-4 or
another appropriate form covering the Exchange Offer and all amendments
and supplements to such registration statement, in each case including
the Prospectus contained therein, all exhibits thereto and all material
incorporated or deemed to be incorporated by reference therein.
"Exchange Securities" shall mean the 3.625% Notes due 2007,
the 4.75% Notes due 2012 and the 5.90% Notes due 2032 of the Company
and the related guarantees of the Guarantors to be issued under the
Indenture with terms identical to the Securities (except that (i)
provisions relating to an increase in the stated rate of interest
thereon upon the occurrence of a Registration Default shall be
eliminated and (ii) the transfer restrictions, minimum purchase
requirements and legends relating to restrictions on ownership and
transfer thereof as a result of the issuance of the Securities without
registration under the 1933 Act shall be eliminated) and offered to
Holders of Registrable Securities in exchange for Registrable
Securities pursuant to the Exchange Offer.
"Guarantees" shall have the meaning set forth in the preamble
of this Agreement.
"Holders" shall mean, as the context requires, (i) the Initial
Purchasers, for so long as they own any Registrable Securities, and
each of their respective successors, assigns and direct and indirect
transferees who become registered holders of Registrable Securities
under the Indenture and (ii) each Participating Broker-Dealer that
holds Exchange Securities for so long as such Participating
Broker-Dealer is required to deliver a prospectus meeting the
requirements of the 1933 Act in connection with any resale of such
Exchange Securities.
"Indenture" shall mean the Indenture dated as of October 9,
2002 between the Company, the Guarantors and The Bank of New York, as
trustee, as the same may be further amended or supplemented from time
to time in accordance with the terms thereof.
"Interest Accrual Date" means October 9, 2002.
"Initial Purchasers" shall have the meaning set forth in the
preamble of this Agreement.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of Registrable Securities outstanding
(voting as one class); provided, however, that whenever the consent or
approval of Holders of a specified percentage of Registrable Securities
is required hereunder, Registrable Securities held by the Company or
any of its affiliates (as such term is defined in Rule 405 under the
0000 Xxx) shall be disregarded in determining whether such consent or
approval was given by the Holders of such required percentage.
"NASD" shall mean the National Association of Securities
Dealers, Inc.
"Notes" shall have the meaning set forth in the preamble of
this Agreement.
"Notifying Broker-Dealer" shall have the meaning set forth in
Section 3(f) hereof.
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"Participating Broker-Dealer" shall have the meaning set forth
in Section 3(f) hereof.
"Person" shall mean an individual, partnership, joint venture,
limited liability company, corporation, trust or unincorporated
organization or other entity, or a government or agency or political
subdivision thereof.
"Private Exchange Securities" shall have the meaning set forth
in Section 2(a) hereof.
"Prospectus" shall mean the prospectus included in a
Registration Statement, including any preliminary prospectus, and any
such prospectus as amended or supplemented by any prospectus
supplement, including a prospectus supplement with respect to the terms
of the offering of any portion of the Registrable Securities covered by
a Shelf Registration Statement, and by all other amendments and
supplements to a prospectus, including post-effective amendments, and
in each case including all material incorporated or deemed to be
incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble to this Agreement.
"Registrable Securities" shall mean the Securities; provided,
however, that any Securities shall cease to be Registrable Securities
when (i) a Shelf Registration Statement with respect to the resale of
such Securities shall have been declared effective under the 1933 Act
and such Securities shall have been disposed of pursuant to such Shelf
Registration Statement, (ii) such Securities shall have been sold to
the public pursuant to Rule 144 (or any similar provision then in
force, but not Rule 144A) under the 1933 Act or is saleable pursuant to
Rule 144(k) under the 1933 Act, (iii) such Securities shall have ceased
to be outstanding, (iv) such Securities shall have been exchanged for
Exchange Securities which have been registered pursuant to the Exchange
Offer Registration Statement upon consummation of the Exchange Offer
unless such Exchange Securities are held by Participating
Broker-Dealers or otherwise are not freely tradable without any
limitations or restrictions under the 1933 Act, in which case such
Exchange Securities will be deemed to be Registrable Securities until
such time as such Exchange Securities are sold to a purchaser in whose
hands such Exchange Securities are freely tradeable without any
limitations or restrictions under the 1933 Act or (v) such Securities
shall have been exchanged for Private Exchange Securities pursuant to
this Agreement, in which case such Private Exchange Securities will be
deemed to be Registrable Securities until such time as such Private
Exchange Securities are sold to a purchaser in whose hands such Private
Exchange Securities are freely tradeable without any limitations or
restrictions under the 1933 Act.
"Registration Default" shall have the meaning set forth in
Section 2(e) hereof.
"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 SEC, stock exchange or
NASD registration and filing fees, (ii) all fees and expenses
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incurred in connection with compliance with state or other securities
or blue sky laws and compliance with the rules of the NASD (including
reasonable fees and disbursements of one firm of counsel for any
Holders in connection with qualification of any of the Exchange
Securities or Registrable Securities under state or other securities or
blue sky laws and any filing with and review by the NASD), (iii) all
expenses of any Persons in preparing, printing and distributing any
Registration Statement, any Prospectus, any amendments or supplements
thereto, certificates representing the Securities, Private Exchange
Securities (if any) or Exchange Securities and other documents relating
to the performance of and compliance with this Agreement, (iv) all
rating agency fees, (v) all fees and expenses incurred in connection
with the listing, if any, of the Securities, Private Exchange
Securities (if any) or Exchange Securities on any securities exchange
or exchanges or on any quotation system, (vi) all fees and
disbursements relating to the qualification of the Indenture under
applicable securities laws, (vii) the fees and disbursements of counsel
for the Company and the Guarantors and the fees and expenses of
independent public accountants for the Company and the Guarantors or
for any other Person, business or assets whose financial statements are
included in any Registration Statement or Prospectus, (viii) the fees
and expenses of the Trustee, any registrar, any depositary, any paying
agent, any escrow agent or any custodian, in each case including fees
and disbursements of their respective counsel, (ix) the reasonable fees
and expenses of counsel to the Initial Purchasers in connection with
the Exchange Offer and (x) the fees and disbursements, if any, of one
firm of special counsel representing the Holders of Registrable
Securities designated pursuant to Section 2(c) below.
"Registration Statement" shall mean any registration statement
of the Company and the Guarantors relating to any offering of the
Exchange Securities or Registrable Securities pursuant to the
provisions of this Agreement (including, without limitation, any
Exchange Offer Registration Statement and any Shelf Registration
Statement), and all amendments and supplements to any such Registration
Statement, including post-effective amendments, in each case including
the Prospectus contained therein, all exhibits thereto (other than the
Statement of Eligibility under the TIA of the Trustee on Form T-1) and
all material incorporated or deemed to be incorporated by reference
therein.
"SEC" shall mean the Securities and Exchange Commission or any
successor thereto.
"Securities" shall have the meaning set forth in the preamble
to this Agreement.
"Shelf Registration" shall mean a registration covering the
resale of Securities or Private Exchange Securities (if any) effected
pursuant to Section 2(b) hereof.
"Shelf Registration Statement" shall mean a registration
statement of the Company and the Guarantors on Form S-3 filed pursuant
to Rule 415(a)(1)(i) under the 1933 Act covering the Shelf
Registration, and 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 or deemed to be incorporated by reference therein.
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"TIA" shall mean the Trust Indenture Act of 1939, as amended
from time to time, and the rules and regulations of the SEC promulgated
thereunder.
"Trustee" shall mean the trustee with respect to the
Securities, the Private Exchange Securities (if any) and the Exchange
Securities under the Indenture.
For purposes of this Agreement, (i) all references in this Agreement to
any Registration Statement, preliminary prospectus or Prospectus or any
amendment or supplement to any of the foregoing shall be deemed to include the
copy filed with the SEC pursuant to its Electronic Data Gathering, Analysis and
Retrieval system; (ii) all references in this Agreement to financial statements
and schedules and other information which is "contained", "included",
"disclosed" or "stated" in any Registration Statement, preliminary prospectus or
Prospectus (or other references of like import) shall be deemed to include all
such financial statements and schedules and other information which is
incorporated or deemed to be incorporated by reference in such Registration
Statement, preliminary prospectus or Prospectus, as the case may be, at the time
of effectiveness or delivery, as the case may be; (iii) all references in this
Agreement to amendments or supplements to any Registration Statement,
preliminary prospectus or Prospectus shall be deemed to include the filing of
any document under the 1934 Act which is incorporated or deemed to be
incorporated by reference in such Registration Statement, preliminary prospectus
or Prospectus, as the case may be, after the time of effectiveness or delivery,
as the case may be; (iv) all references in this Agreement to Rule 144, Rule 144A
or Rule 405 under the 1933 Act, and all references to any sections or
subsections thereof or terms defined therein, shall in each case include any
successor provisions thereto; and (v) all references in this Agreement to days
(but not to business days) shall mean calendar days.
2. Registration Under the 1933 Act.
(a) Exchange Offer Registration. To the extent not prohibited by
applicable law or by applicable interpretations of the staff of the SEC, the
Company shall, and shall cause the Guarantors to, use reasonable best efforts to
(A) file with the SEC on or prior to the 120th day after the Closing Time an
Exchange Offer Registration Statement covering the offer by the Company and the
Guarantors to the Holders to exchange all of the Registrable Securities for a
like aggregate principal amount of Exchange Securities, (B) cause such Exchange
Offer Registration Statement to be declared effective by the SEC no later than
the 180th day after the Closing Time, (C) cause such Registration Statement to
remain effective until the closing of the Exchange Offer and (D) consummate the
Exchange Offer no later than 45 days after the effective date of the Exchange
Offer Registration Statement. 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 eligible and
electing to exchange Registrable Securities for Exchange Securities (assuming
that such Holder (1) is not an affiliate of the Company or either Guarantor
within the meaning of Rule 405 under the 1933 Act or an Initial Purchaser
holding Securities acquired by it and having the status of an unsold allotment
in the initial offering and sale of Securities pursuant to the Purchase
Agreement, (2) acquires the Exchange Securities in the ordinary course of such
Holder's business and (3) has no arrangements or understandings with any Person
to participate in the Exchange Offer for the purpose of distributing such
Exchange Securities and is not engaged in, and does not intend to engage in, any
such distribution) to trade such Exchange Securities from and after their
receipt
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without any limitations or restrictions under the 1933 Act or under the
securities or blue sky laws of the states of the United States.
In connection with the Exchange Offer, the Company shall:
(i) promptly 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 20
business days (or longer if required by applicable law) after the date
notice thereof is mailed to the Holders and, during the Exchange Offer,
offer to all Holders who are eligible to participate in the Exchange
Offer the opportunity to exchange their Registrable Securities for
Exchange Securities;
(iii) use the services of a depositary or other exchange agent
with an address in the Borough of Manhattan, The City of New York, for
the Exchange Offer;
(iv) permit Holders to withdraw tendered Registrable
Securities at any time prior to the close of business, New York City
time, on the last business day on which the Exchange Offer shall remain
open;
(v) notify each Holder that any Registrable Security not
tendered, or tendered and subsequently withdrawn, will remain
outstanding and continue to accrue interest, but will not retain any
rights under this Agreement (except in the case of the Initial
Purchasers and Participating Broker-Dealers as provided herein) or
accrue Additional Interest; and
(vi) otherwise comply in all material respects with all
applicable laws relating to the Exchange Offer.
If, at or prior to the consummation of the Exchange Offer, any Initial
Purchaser holds any Securities acquired by it and having the status of an unsold
allotment in the initial offering and sale of Securities pursuant to the
Purchase Agreement, or any Holder is not entitled to participate in the Exchange
Offer because of applicable law or interpretations thereof by the staff of the
SEC, the Company shall, upon the request of such Initial Purchaser or Holder,
simultaneously with the delivery of the Exchange Securities in the Exchange
Offer to other Holders, issue and deliver to such Initial Purchaser or Holder in
exchange for such Securities a like principal amount of debt securities of the
Company ("Private Exchange Securities"), and the Company shall cause the
Guarantors to provide corresponding guarantees, to be issued under the Indenture
with terms identical to the Exchange Securities, except that such debt
securities and related guarantees shall be subject to transfer restrictions and
minimum purchase requirements, shall bear a legend relating to restrictions on
ownership and transfer identical to those applicable to the Securities as a
result of the issuance thereof without registration under the 1933 Act and shall
provide for the payment of Additional Interest. The Company shall use its
reasonable best efforts to have the Private Exchange Securities bear the same
CUSIP number as the Exchange Securities and, if unable to do so, the Company
will, at such time as any Private Exchange Security ceases to be a "restricted
security" within the meaning of Rule 144 under the 1933 Act,
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permit any such Private Exchange Security to be exchanged for a like principal
amount of Exchange Securities.
The Exchange Securities and the Private Exchange Securities (if any)
shall be issued under the Indenture, which shall be qualified under the TIA.
Interest on each Exchange Security and such Private Exchange Security (if any)
will accrue from the last date on which interest was paid or duly provided for
on the Securities surrendered in exchange therefor or, if no interest has been
paid or duly provided for on such Securities, from the Interest Accrual Date.
The Indenture shall provide that the Exchange Securities, the Private
Exchange Securities (if any) and the Securities of each series shall vote and
consent together on all matters as a single class and shall constitute a single
series of debt securities issued under the Indenture.
As soon as practicable after the close of the Exchange Offer, the
Company shall with respect to each series of Securities:
(i) accept for exchange all Registrable Securities duly
tendered and not validly withdrawn pursuant to the Exchange Offer in
accordance with the terms of the Exchange Offer Registration Statement
and the related letter of transmittal;
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Securities so accepted for exchange by the
Company; and
(iii) cause the Trustee promptly to authenticate and deliver
Exchange Securities to each Holder of Registrable Securities so
accepted for exchange equal in principal amount to the principal amount
of the Registrable Securities of such Holder so accepted for exchange.
The Exchange Offer shall not be subject to any conditions, other than
that (i) the Exchange Offer, or the making of any exchange by a Holder, does not
violate any applicable law or any applicable interpretation of the staff of the
SEC, (ii) no action or proceeding shall have been instituted or threatened in
any court or by or before any governmental agency with respect to the Exchange
Offer which, in the Company's judgment, would reasonably be expected to impair
the ability of the Company to proceed with the Exchange Offer and (iii) the
Holders tender the Registrable Securities to the Company in accordance with the
Exchange Offer. Each Holder of Registrable Securities (other than Participating
Broker-Dealers) who wishes to exchange such Registrable Securities for Exchange
Securities in the Exchange Offer will be required to represent that (1) it is
not an affiliate (as defined in Rule 405 under the 0000 Xxx) of the Company or
an Initial Purchaser holding Securities acquired by it and having the status of
an unsold allotment in the initial offering and sale of Securities pursuant to
the Purchase Agreement, (2) any Exchange Securities to be received by it will be
acquired in the ordinary course of business and (3) it has no arrangement or
understanding with any Person to participate in the distribution (within the
meaning of the 0000 Xxx) of the Exchange Securities and is not engaged in, and
does not intend to engage in, any such distribution, and shall be required to
make such other representations as may be reasonably necessary under applicable
SEC rules, regulations or interpretations to render the use of Form S-4 or
another appropriate form under the 1933 Act available.
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(b) Shelf Registration. (i) If, because of any change in law or
applicable interpretations thereof by the staff of the SEC, the Company and the
Guarantors are not permitted to effect the Exchange Offer as contemplated by
Section 2(a) hereof or (ii) if for any other reason (A) the Exchange Offer
Registration Statement is not declared effective within 180 days following the
Closing Time or (B) the Exchange Offer is not consummated within 45 days after
effectiveness of the Exchange Offer Registration Statement (provided that if the
Exchange Offer Registration Statement shall be declared effective after such
180-day period or if the Exchange Offer shall be consummated after such 45-day
period, then the Company's obligations under this clause (ii) arising from the
failure of the Exchange Offer Registration Statement to be declared effective
within such 180-day period or the failure of the Exchange Offer to be
consummated within such 45-day period, respectively, shall terminate), (iii) if
any Holder (other than an Initial Purchaser holding Securities acquired directly
from the Company and the Guarantors as part of the offering and sale of
Securities pursuant to the Purchase Agreement) is not eligible to participate in
the Exchange Offer because of any change in law or applicable interpretations
thereof by the staff of the SEC or elects to participate in the Exchange Offer
but does not receive Exchange Securities which are freely tradeable without any
limitations or restrictions under the 1933 Act or (iv) upon the request of any
Initial Purchasers (provided that, in the case of this clause (iv), such Initial
Purchaser shall hold Registrable Securities (including, without limitation,
Private Exchange Securities) that it acquired directly from the Company and the
Guarantors as part of the offering and sale of Securities pursuant to the
Purchase Agreement and such request is made before the date that is 90 days
after consummation of the Exchange Offer), the Company shall, and shall cause
the Guarantors to, at their cost:
(A) as promptly as practicable, but no later than (a)
the 180th day after the Closing Time or (b) the 60th day after
any such filing obligation arises, whichever is later, file
with the SEC a Shelf Registration Statement relating to the
resale of the Registrable Securities by the Holders from time
to time in accordance with the methods of distribution set
forth in such Shelf Registration Statement;
(B) use reasonable best efforts to cause such Shelf
Registration Statement to be declared effective by the SEC as
promptly as practicable, but in no event later than the 60th
day after the date on which the Company is required to file
the Shelf Registration Statement. In the event that the
Company and the Guarantors are required to file a Shelf
Registration Statement pursuant to clause (iii) or (iv) above,
the Company shall, and shall cause the Guarantors to, file and
use reasonable best efforts to have declared effective by the
SEC both an Exchange Offer Registration Statement pursuant to
Section 2(a) with respect to all Registrable Securities other
than the Private Exchange Securities (if any) and a Shelf
Registration Statement (which may be combined with the
Exchange Offer Registration Statement) with respect to resales
of Registrable Securities held by such Holder or such Initial
Purchaser, as applicable;
(C) use reasonable best efforts to keep the Shelf
Registration Statement continuously effective, supplemented
and amended as required, in order to permit the Prospectus
forming part thereof to be usable by Holders for a period (x)
of two years after the latest date on which any Securities are
originally issued by the Company and the Guarantors (subject
to extension pursuant to the last paragraph of Section 3) or,
(y) if earlier, when all of the Registrable Securities covered
by such Shelf Registration
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Statement (i) have been sold pursuant to the Shelf
Registration Statement in accordance with the intended method
of distribution thereunder, (ii) become eligible for resale
pursuant to Rule 144(k) under the 1933 Act or (iii) cease to
be Registrable Securities; and
(D) notwithstanding any other provisions hereof, use
reasonable best efforts to ensure that (i) the Shelf
Registration Statement and each amendment thereto (if any) and
the Prospectus forming a part thereof and each amendment or
supplement thereto comply in all material respects with the
1933 Act and the rules and regulations thereunder, (ii)
neither the Shelf Registration Statement nor any amendment
thereto, when it becomes effective, contains an untrue
statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading and (iii) except during
circumstances described in the last two paragraphs of Section
3, neither the Prospectus forming part of the Shelf
Registration Statement nor any amendment or supplement thereto
includes an untrue statement of a material fact or omits to
state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that
this provision shall not apply to any statements or omissions
made in reliance upon and in conformity with information
furnished in writing to the Company by a holder of Registrable
Securities expressly for use therein.
The Company shall not permit any securities other than Registrable
Securities to be included in the Shelf Registration Statement without the prior
written consent of Banc of America Securities LLC. The Company further agrees,
if necessary, to supplement or amend the Shelf Registration Statement if
reasonably requested by the Majority Holders with respect to information
relating to the Holders and otherwise as required by Section 3(b) below, to use
reasonable best efforts to cause any such amendment to become effective and such
Shelf Registration Statement to become usable as soon as practicable thereafter
and to furnish to the Holders of Registrable Securities as many copies of any
such supplement or amendment as such Holders may reasonably request promptly
after its being used or filed with the SEC.
(c) Expenses. The Company shall pay all Registration Expenses in
connection with the registration pursuant to Section 2(a) and 2(b) hereof and,
in the case of the Shelf Registration Statement, will reimburse the Holders or
the Initial Purchasers for the reasonable fees and disbursements of one counsel
designated in writing by the Majority Holders of such Registrable Securities
included in such offering (or, if a Shelf Registration Statement is filed solely
pursuant to clause (iv) of the first paragraph of Section 2(b), designated by
the Initial Purchasers) to act as counsel for the Holders of the Registrable
Securities in connection therewith, which, until otherwise designated in
accordance with this Section 2(c), shall be Cravath, Swaine & Xxxxx. Each Holder
shall pay all fees and disbursements of its counsel other than as set forth in
the preceding sentence or in the definition of Registration Expenses and all
discounts, commissions and other expenses (other than Registration Expenses) and
transfer taxes, if any, relating to the sale or disposition of such Holder's
Registrable Securities pursuant to a the Shelf Registration Statement.
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(d) Effective Registration Statement.
(i) The Company shall be deemed not to have used reasonable
best efforts to cause the Exchange Offer Registration Statement or any
Shelf Registration Statement, as the case may be, to become, or to
remain, effective during the requisite periods set forth herein if the
Company or either Guarantor takes any action or fails to take any
action that could reasonably be expected to result in any such
Registration Statement not being declared effective or remaining
effective or in the Holders of Registrable Securities (including, under
the circumstances contemplated by Section 3(f) hereof, Exchange
Securities) covered thereby not being able to exchange or offer and
sell such Registrable Securities during that period unless (A) such
action is required by applicable law, (B) such action is taken or
omitted by the Company or either Guarantor in good faith and for valid
business reasons (which does not include avoidance of the Company's
obligations hereunder), including the acquisition or divestiture of
assets or a material corporate transaction or event, or (C) such action
results from the happening of any event or the discovery of any facts
which makes any statement made in such Registration Statement or the
related Prospectus untrue in any material respect or which constitutes
an omission to state a material fact in such Registration Statement or
Prospectus, in each case so long as the Company promptly complies with
the requirements of Section 3(k) hereof, if applicable, to notify
Holders to suspend the use of the Prospectus. Nothing in this paragraph
shall prevent the accrual of Additional Interest on any Securities,
Private Exchange Securities or Exchange Securities.
(ii) An Exchange Offer Registration Statement pursuant to
Section 2(a) hereof or a Shelf Registration Statement pursuant to
Section 2(b) hereof shall not be deemed to have become effective unless
it has been declared effective by the SEC; provided, however, that if,
after it has been declared effective, the offering of Registrable
Securities pursuant to a Registration Statement is interfered with by
any stop order, injunction or other order or requirement of the SEC or
any other governmental agency or court, such Registration Statement
shall be deemed not to have been effective during the period of such
interference until the offering of Registrable Securities pursuant to
such Registration Statement may legally resume.
(e) Increase in Interest Rate. In the event that:
(i) the Exchange Offer Registration Statement is not filed
with the SEC on or prior to the 120th day following the Closing Time,
or
(ii) the Exchange Offer Registration Statement is not declared
effective by the SEC on or prior to the 180th day following the Closing
Time, or
(iii) the Exchange Offer is not consummated on or prior to the
45th day following the effective date of the Exchange Offer
Registration Statement, or
(iv) if required, a Shelf Registration Statement is not filed
with the SEC on or prior to (A) the 180th day following the Closing
Time or (B) the 60th day after the filing obligation arises, whichever
is later, or
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(v) if required, a Shelf Registration Statement is not
declared effective on or prior to the 60th day after the date on which
the Company and the Guarantors are required to file such Shelf
Registration Statement, or
(vi) a Shelf Registration Statement is declared effective by
the SEC but such Shelf Registration Statement ceases to be effective or
such Shelf Registration Statement or the Prospectus included therein
ceases to be usable in connection with resales of Registrable
Securities covered thereby for any reason and either (A) the aggregate
number of days in any consecutive 365-day period for which the Shelf
Registration Statement or such Prospectus shall not be effective or
usable exceeds 90 days or (B) the Shelf Registration Statement or such
Prospectus shall not be effective or usable for a period of more than
30 consecutive days, or
(vii) the Exchange Offer Registration Statement is declared
effective by the SEC but, if the Exchange Offer Registration Statement
is being used in connection with the resale of Exchange Securities as
contemplated by Section 3(f)(B) of this Agreement, the Exchange Offer
Registration Statement ceases to be effective or the Exchange Offer
Registration Statement or the Prospectus included therein ceases to be
usable in connection with resales of Exchange Securities for any reason
during the 180-day period referred to in Section 3(f)(B) of this
Agreement (as such period may be extended pursuant to the last
paragraph of Section 3 of this Agreement) and either (A) the aggregate
number of days in any consecutive 365-day period for which the Exchange
Offer Registration Statement or such Prospectus shall not be effective
or usable exceeds 90 days or (B) the Exchange Offer Registration
Statement or the Prospectus shall not be effective or usable for a
period of more than 30 consecutive days,
(each of the events referred to in clauses (i) through (vii) above being
hereinafter called a "Registration Default"), the per annum interest rate borne
by the Registrable Securities of a series shall be increased ("Additional
Interest") by one-quarter of one percent (0.25%) per annum immediately following
such 120-day period in the case of clause (i) above, immediately following such
180-day period in the case of clause (ii) above, immediately following such
45-day period in the case of clause (iii) above, immediately following any such
180-day period or 60-day period, whichever ends later, in the case of clause
(iv) above, immediately following any such 60-day period in the case of clause
(v) above, immediately following the 90th day in any consecutive 365-day period
or immediately following the 30th consecutive day, whichever occurs first, that
a Shelf Registration Statement shall not be effective or a Shelf Registration
Statement or the Prospectus included therein shall not be usable as contemplated
by clause (vi) above, or immediately following the 90th day in any consecutive
365-day period or immediately following the 30th consecutive day, whichever
occurs first, that the Exchange Offer Registration Statement shall not be
effective or the Exchange Offer Registration Statement or the Prospectus
included therein shall not be usable as contemplated by clause (vii) above,
which rate will be increased by an additional one-quarter of one percent (0.25%)
per annum immediately following each 90-day period that any Additional Interest
continues to accrue under any circumstances; provided, however, that the
aggregate increase in such annual interest rate may in no event exceed one-half
of one percent (0.50%) per annum and the Company will not be required to pay
Additional Interest for more than one Registration Default at a time. Upon the
filing of the Exchange Offer Registration Statement after the 120-day period
described in clause (i) above,
11
the effectiveness of the Exchange Offer Registration Statement after the 180-day
period described in clause (ii) above, the consummation of the Exchange Offer
after the 45-day period described in clause (iii) above, the filing of the Shelf
Registration Statement after the 180-day period or 60-day period, as the case
may be, described in clause (iv) above, the effectiveness of a Shelf
Registration Statement after the 60-day period described in clause (v) above,
the Shelf Registration Statement once again being effective or the Shelf
Registration Statement and the Prospectus included therein becoming usable in
connection with resales of Registrable Securities of the applicable series, as
the case may be, in the case of clause (vi) above, or the Exchange Offer
Registration Statement once again being effective or the Exchange Offer
Registration Statement and the Prospectus included therein becoming usable in
connection with resales of Exchange Securities of the applicable series, as the
case may be, in the case of clause (vii) above, the interest rate borne by the
Registrable Securities of such series from the date of such filing,
effectiveness, consummation or resumption of effectiveness or useability, as the
case may be, shall be reduced to the original interest rate so long as no other
Registration Default shall have occurred with respect to such series and shall
be continuing at such time and the Company is otherwise in compliance with this
section; provided, however, that if, after any such reduction in interest rate,
one or more Registration Defaults with respect to such series shall again occur,
the interest rate of such series of Registrable Securities shall again be
increased pursuant to the foregoing provisions.
The Company shall notify the Trustee within three business days after
each and every date on which an event occurs in respect of which Additional
Interest is required to be paid. Additional Interest shall be paid by depositing
with the Trustee, in trust, for the benefit of the Holders of Registrable
Securities of the applicable series, on or before the applicable semiannual
interest payment date, immediately available funds in sums sufficient to pay the
Additional Interest then due. The Additional Interest due shall be payable on
each such interest payment date to the record Holder of Registrable Securities
of such series entitled to receive the interest payment to be paid on such date
as set forth in the Indenture. Each obligation to pay Additional Interest shall
be deemed to accrue from and including the day following the applicable
Registration Default.
Anything herein to the contrary notwithstanding, any Holder who was, at
the time the Exchange Offer was pending and consummated, eligible to exchange,
and did not validly tender or withdrew, its Securities for Exchange Securities
in the Exchange Offer will not be entitled to receive any Additional Interest.
For purposes of clarity, it is hereby acknowledged and agreed that, under
current interpretations of law by the SEC, Initial Purchasers holding unsold
allotments of Securities acquired from the Company and the Guarantors pursuant
to the Purchase Agreement are not eligible to participate in the Exchange Offer.
(f) Specific Enforcement. Without limiting the remedies available to
the Initial Purchasers and the Holders, the Company acknowledges that any
failure by the Company to comply with its obligations under Sections 2(a)
through 2(d) hereof may result in material irreparable injury to the Initial
Purchasers, the Holders or the Participating Broker-Dealers 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, any Holder and any Participating Broker-Dealer may obtain such
relief as may be required to specifically enforce the Company's obligations
under Section 2(e) hereof.
12
3. Registration Procedures. In connection with the obligations of the
Company with respect to the Registration Statements pursuant to Sections 2(a)
and 2(b) hereof, the Company shall, and shall cause the Guarantors to:
(a) prepare and file with the SEC a Registration Statement or,
if required, Registration Statements, within the time periods specified
in Section 2, on the appropriate form under the 1933 Act, which form
(i) shall be selected by the Company, (ii) shall, in the case of a
Shelf Registration Statement, be available for the sale of the
Registrable Securities by the selling Holders thereof and (iii) shall
comply as to form in all material respects with the requirements of the
applicable form and include or incorporate by reference all financial
statements required by the SEC to be filed therewith, and use its
reasonable best efforts to cause such Registration Statement to become
effective and remain effective in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be
necessary under applicable law to keep such Registration Statement
effective for the applicable period in accordance with Section 2
hereof; cause each Prospectus to be supplemented by any required
prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 under the 1933 Act; and comply with the provisions of the 1933
Act and the 1934 Act with respect to the disposition of all Securities
covered by each Registration Statement during the applicable period in
accordance with the intended method or methods of distribution by the
selling Holders thereof;
(c) in the case of a Shelf Registration, (i) notify each
Holder of Registrable Securities which may be included in such Shelf
Registration, at least ten business days prior to filing or such
shorter period as is reasonable under the circumstances, that a Shelf
Registration Statement with respect to the Registrable Securities is
being filed; (ii) furnish to each Holder of Registrable Securities, to
counsel for the Initial Purchasers and to one firm of counsel for the
Holders, without charge, as many copies of each Prospectus, including
each preliminary Prospectus, and any amendment or supplement thereto
and such other documents as such Holder or counsel may reasonably
request, including financial statements and schedules and, if such
Holder or counsel so requests, all exhibits (including those
incorporated by reference) in order to facilitate the public sale or
other disposition of the Registrable Securities; and (iii) subject to
the penultimate paragraph of this Section 3, the Company hereby
consents to the use of the Prospectus, including each preliminary
Prospectus, or any amendment or supplement thereto by each of the
Holders of Registrable Securities in connection with the offering and
sale of the Registrable Securities covered by any Prospectus or any
amendment or supplement thereto;
(d) use reasonable best efforts to register or qualify, to the
extent required, the Registrable Securities under all applicable state
securities or "blue sky" laws of such jurisdictions of the United
States as any Holder of Registrable Securities covered by a
Registration Statement shall reasonably request in writing by the time
the applicable Registration Statement is declared effective, to
cooperate with the Holders of any Registrable Securities in connection
with any filings required to be made with the XXXX,
00
to keep each such registration or qualification effective during the
period such Registration Statement is required to be effective and do
any and all other acts and things which may be reasonably necessary or
advisable to enable such Holder to consummate the disposition in each
such jurisdiction of such Registrable Securities owned by such Holder;
provided, however, that neither the Company nor either Guarantor shall
be required to (i) file any general consent to service of process or to
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or (ii) to subject
themselves to taxation in any jurisdiction in which they are not so
subject;
(e) in the case of a Shelf Registration, notify each Holder of
Registrable Securities included in such Shelf Registration and one firm
of counsel for such Holders promptly and, if requested by such Holder
or counsel, confirm such advice in writing promptly (i) when a
Registration Statement has become effective and when any post-effective
amendments and supplements thereto become effective, (ii) of any
request by the SEC or any state securities authority for post-effective
amendments or supplements to a Registration Statement or Prospectus or
for additional information after a Registration Statement has become
effective, (iii) of the issuance by the SEC or any state securities
authority of any stop order suspending the effectiveness of a
Registration Statement or the initiation of any proceedings for that
purpose, (iv) of the receipt by the Company or a Guarantor of any
notification with respect to the suspension of the registration or
qualification of the Registrable Securities for sale in any U.S.
jurisdiction or the initiation or threatening of any proceeding for
such purpose, (v) of the happening of any event or the discovery of any
facts during the period a Shelf Registration Statement is effective
which is contemplated in Section 2(d)(i)(A), 2(d)(i)(B) or 2(d)(i)(C)
and (vi) of any determination by the Company or a Guarantor that a
post-effective amendment to a Registration Statement would be
appropriate; and without limitation to any other provisions of this
Agreement, the Company agrees that this Section 3(e) shall also be
applicable, mutatis mutandis, with respect to the Exchange Offer
Registration Statement and the Prospectus included therein to the
extent that such Prospectus is being used by Participating
Broker-Dealers as contemplated by Section 3(f);
(f) (A) in the case of an Exchange Offer, (i) include in the
Exchange Offer Registration Statement (x) a "Plan of Distribution"
section substantially in the form set forth in Annex B hereto or other
such form as is reasonably acceptable to Banc of America Securities LLC
covering the use of the Prospectus included in the Exchange Offer
Registration Statement by broker-dealers who have exchanged their
Registrable Securities for Exchange Securities for the resale of such
Exchange Securities and (y) a statement to the effect that any such
broker-dealers who wish to use the related Prospectus in connection
with the resale of Exchange Securities acquired as a result of
market-making or other trading activities will be required to notify
the Company to that effect, together with instructions for giving such
notice (which instructions shall include a provision for giving such
notice by checking a box or making another appropriate notation on the
related letter of transmittal) (each such broker-dealer who gives
notice to the Company as aforesaid being hereinafter called a
"Notifying Broker-Dealer"), (ii) furnish to each Notifying
Broker-Dealer who desires to participate in the Exchange Offer, without
charge, as many copies of each Prospectus included in the Exchange
Offer Registration Statement, including any preliminary prospectus, and
any amendment or
14
supplement thereto, as such broker-dealer may reasonably request, (iii)
include in the Exchange Offer Registration Statement a statement that
any broker-dealer who holds Registrable Securities acquired for its own
account as a result of market-making activities or other trading
activities (a "Participating Broker-Dealer"), and who receives Exchange
Securities for Registrable Securities pursuant to the Exchange Offer,
may be a statutory underwriter and must deliver a prospectus meeting
the requirements of the 1933 Act in connection with any resale of such
Exchange Securities, (iv) subject to the penultimate paragraph of this
Section 3, the Company hereby consents to the use of the Prospectus
forming part of the Exchange Offer Registration Statement or any
amendment or supplement thereto by any Notifying Broker-Dealer in
connection with the sale or transfer of Exchange Securities and (v)
include in the transmittal letter or similar documentation to be
executed by an exchange offeree in order to participate in the Exchange
Offer substantially the following provision:
"If the undersigned is not a broker-dealer, the undersigned
represents that it is not engaged in, and does not intend to engage in,
a distribution of Exchange Securities. If the undersigned is a
broker-dealer that will receive Exchange Securities for its own account
in exchange for Registrable Securities, it represents that the
Registrable Securities to be exchanged for Exchange Securities were
acquired by it as a result of market-making activities or other trading
activities and acknowledges that it will deliver a prospectus meeting
the requirements of the 1933 Act in connection with any resale of such
Exchange Securities pursuant to the Exchange Offer; 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 1933 Act. If the undersigned is a broker-dealer, it represents that
it did not purchase the Registrable Securities to be exchanged for
Exchange Securities from the Company";
(B) to the extent any Notifying Broker-Dealer participates in
the Exchange Offer, (i) the Company shall use reasonable best efforts
to maintain the effectiveness of the Exchange Offer Registration
Statement for a period of 180 days (subject to extension pursuant to
the last paragraph of this Section 3) following the last date on which
exchanges are accepted pursuant to the Exchange Offer and (ii) the
Company will comply, insofar as relates to the Exchange Offer
Registration Statement, the Prospectus included therein and the
offering and sale of Exchange Securities pursuant thereto, with its
obligations under Section 2(b)(D), the last paragraph of Section 2(b),
Sections 3(c), 3(e), 3(i), 3(j), 3(k), 3(n), 3(o), 3(p) and 3(q) and
the last two paragraphs of this Section 3 as if all references therein
to a Shelf Registration Statement, the Prospectus included therein and
the Holders of Registrable Securities referred, mutatis mutandis, to
the Exchange Offer Registration Statement, the Prospectus included
therein and the applicable Notifying Broker-Dealers and, for purposes
of this Section 3(f), all references in any such paragraphs or sections
to the "Majority Holders" shall be deemed to mean, solely insofar as
relates to this Section 3(f), the Notifying Broker-Dealers who are the
Holders of the majority in aggregate principal amount of the Exchange
Securities which are Registrable Securities (voting as one class); and
(C) the Company shall not be required to amend or supplement
the Prospectus contained in the Exchange Offer Registration Statement
as would otherwise be
15
contemplated by Section 3(b) or 3(k) hereof, or take any other action
as a result of this Section 3(f), for a period exceeding 180 days
(subject to extension pursuant to the last paragraph of this Section 3)
after the date on which the Exchange Offer Registration Statement is
declared effective or such shorter period of time such Notifying
Broker-Dealers must comply with the prospectus delivery requirements of
the 1933 Act in order to resell the Exchange Securities received in
exchange for the Registrable Securities acquired for their own account
as a result of market-making or other trading activity, and Notifying
Broker-Dealers shall not be authorized by the Company to, and shall
not, deliver such Prospectus after such period in connection with
resales contemplated by this Section 3;
(g) (i) in the case of an Exchange Offer, furnish counsel for
the Initial Purchasers and (ii) in the case of a Shelf Registration,
furnish one firm of counsel for the Holders of Registrable Securities
copies of any request by the SEC or any state securities authority for
amendments or supplements to a Registration Statement or Prospectus or
for additional information;
(h) use reasonable best effort to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement as soon
as practicable and provide prompt notice to each Holder of the
withdrawal of any such order;
(i) in the case of a Shelf Registration, furnish to each
Holder of Registrable Securities included in such Shelf Registration,
upon request from such Holder and without charge, at least one
conformed copy of each Registration Statement and any post-effective
amendments thereto (without documents incorporated or deemed to be
incorporated therein by reference or exhibits thereto, unless
requested), if such documents are not available via the SEC XXXXX
database;
(j) in the case of a Shelf Registration, cooperate with the
selling Holders of Registrable Securities to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any restrictive legends; and
cause such Registrable Securities to be in such denominations
(consistent with the provisions of the Indenture) and in a form
eligible for deposit with the Depositary;
(k) in the case of a Shelf Registration, upon the occurrence
of any event or the discovery of any facts as contemplated by Section
3(e)(v) hereof, subject to the last paragraph of this Section 3 use
reasonable best efforts to prepare a supplement or post-effective
amendment to a Registration Statement or the related Prospectus or any
document incorporated or deemed to be incorporated therein by reference
or file any other required document so that, as thereafter delivered to
the purchasers of the Registrable Securities, such Prospectus will not
include at the time of such delivery any untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading; the Company agrees to notify each Holder to
suspend use of the Prospectus as promptly as practicable after the
occurrence of such an event, and each Holder hereby agrees to suspend
use of the Prospectus until the Company has amended or supplemented the
Prospectus to correct such misstatement or omission; and at such time
16
as such public disclosure is otherwise made or the Company determines
that such disclosure is not necessary, in each case to correct any
misstatement of a material fact or to include any omitted material
fact, the Company agrees promptly to notify each Holder of such
determination and to furnish each Holder such number of copies of the
Prospectus, as amended or supplemented, as such Holder may reasonably
request;
(l) obtain CUSIP numbers for all Exchange Securities or
Registrable Securities, as the case may be, not later than the
effective date of a Registration Statement, and provide the Trustee
with printed or word-processed certificates for the Exchange Securities
or Registrable Securities, as the case may be, in a form eligible for
deposit with the Depositary;
(m) (i) cause the Indenture to be qualified under the TIA in
connection with the registration of the Exchange Securities or
Registrable Securities, as the case may be, (ii) cooperate with the
Trustee and the Holders to effect such changes, if any, to the
Indenture as may be required for the Indenture to be so qualified in
accordance with the terms of the TIA and (iii) execute, and use
reasonable best efforts to cause the Trustee to execute, all documents
as may be required to effect such changes, if any, 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;
(n) in the case of a Shelf Registration, if requested by the
Holders of a majority in principal amount of the Registrable Securities
registered pursuant to such Shelf Registration Statement and consented
to by the Company, which consent shall not be unreasonably withheld,
effect not more than one underwritten registration and, in connection
with such underwritten registration, enter into agreements (including
underwriting agreements or similar agreements) and take all other
customary and appropriate actions (including those reasonably requested
by the Holders of a majority in principal amount of the Registrable
Securities being sold) in order to expedite or facilitate the
disposition of such Registrable Securities and in such connection, in a
manner that is reasonable and customary;
(o) in the case of a Shelf Registration, make available for
inspection by the Holders of the Registrable Securities included in
such Shelf Registration Statement who shall certify to the Company in
writing that they have a current intention to sell the Registrable
Securities pursuant to the Shelf Registration Statement and any single
firm of counsel or single firm of accountants retained by such Holders,
all financial statements and other records, documents and properties of
the Company reasonably requested by any such Persons, and cause the
respective officers, directors, employees, and any other agents of the
Company to supply all information reasonably requested by any such
Persons in connection with a Shelf Registration Statement, subject to
such confidentiality agreements as the Company may reasonably require
and to privilege;
(p) (i) in the case of an Exchange Offer, a reasonable time
prior to the filing of any Exchange Offer Registration Statement, any
Prospectus forming a part thereof, any amendment to an Exchange Offer
Registration Statement or amendment or supplement to such Prospectus
(excluding documents incorporated by reference), provide copies of such
17
documents to counsel for the Initial Purchasers, and will not file any
such documents as to which the Initial Purchasers or their counsel may
reasonably object prior to such filing; (ii) in the case of a Shelf
Registration, a reasonable time prior to filing any Shelf Registration
Statement, any Prospectus forming a part thereof, any amendment to such
Shelf Registration Statement or amendment or supplement to such
Prospectus (excluding documents incorporated by reference), provide
copies of such document to the Holders of Registrable Securities
included in such Shelf Registration Statement, to the Initial
Purchasers, and to one firm of counsel for any such Holders or Initial
Purchasers and will not file any such documents as to which the Holders
of Registrable Securities, the Initial Purchasers or any of their
respective counsel may reasonably object prior to such filing; and
(iii) cause the representatives of the Company to be available for
discussion of such documents as shall be reasonably requested by the
Holders of Registrable Securities or the Initial Purchasers on behalf
of such Holders, and shall not at any time make any filing of any such
document of which such Holders, the Initial Purchasers on behalf of
such Holders or their counsel shall not have previously been advised
and furnished a copy as required by this Section 3(p) or to which the
Majority Holders of Registrable Securities included in such
Registration Statement, the Initial Purchasers on behalf of such
Holders or their counsel shall reasonably object prior to such filing;
(q) in the case of a Shelf Registration, use reasonable best
efforts to cause the Registrable Securities to be rated with the
appropriate rating agencies, if so requested by the Majority Holders of
Registrable Securities, unless the Registrable Securities are already
so rated;
(r) otherwise use reasonable best efforts to comply with all
applicable rules and regulations of the SEC and, with respect to each
Registration Statement and each post-effective amendment, if any,
thereto and each filing by the Company of an Annual Report on Form
10-K, make available to its security holders, as soon as reasonably
practicable, an earnings statement covering at least twelve months
which shall satisfy the provisions of Section 11(a) of the 1933 Act and
Rule 158 thereunder;
(s) in the case of a Shelf Registration, immediately after the
filing of any document which is to be incorporated by reference into a
Registration Statement or a Prospectus after initial filing of a
Registration Statement, provide as many copies of such document to the
Initial Purchasers on behalf of such Holders as shall be reasonably
requested and, upon request of such Initial Purchasers, make
representatives of the Company as shall be reasonably requested by the
Holders of Registrable Securities, or the Initial Purchasers on behalf
of such Holders, available for discussion of such document; and
(t) in the case of a Shelf Registration and if Exchange
Securities are so listed, use reasonable best efforts to cause all
Registrable Securities to be listed on any securities exchange on which
Exchange Securities are then listed if such listing of Registrable
Securities included in such Shelf Registration is requested by the
Majority Holders.
In the case of a Shelf Registration Statement, the Company may (as a
condition to such Holder's participation in the Shelf Registration) require each
Holder of Registrable Securities to
18
furnish to the Company such information regarding such Holder and the proposed
distribution by such Holder of such Registrable Securities as the Company may
from time to time reasonably request in writing and require such Holder to agree
in writing to be bound by all provisions of this Agreement applicable to such
Holder. Each Holder of Registrable Securities as to which any Shelf Registration
is being effected agrees to furnish promptly to the Company all information
required to be disclosed so that the information previously furnished to the
Company by such Holder is not materially misleading and does not omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances under which they
were made.
In the case of a Shelf Registration Statement, each Holder agrees and,
in the event that any Participating Broker-Dealer is using the Prospectus
included in the Exchange Offer Registration Statement in connection with the
sale of Exchange Securities pursuant to Section 3(f), each such Participating
Broker-Dealer agrees that, upon receipt of any notice from the Company of the
happening of any event or the discovery of any facts of the kind described in
Section 3(e)(ii) through 3(e)(vi) hereof, such Holder or Participating
Broker-Dealer, as the case may be, will forthwith discontinue disposition of
Registrable Securities pursuant to a Registration Statement until receipt by
such Holder or Participating Broker-Dealer, as the case may be, of (i) the
copies of the supplemented or amended Prospectus contemplated by Section 3(k)
hereof or (ii) written notice from the Company that the Shelf Registration
Statement or the Exchange Offer Registration Statement, respectively, are once
again effective or that no supplement or amendment is required. If so directed
by the Company, such Holder or Participating Broker-Dealer, as the case may be,
will deliver to the Company (at the Company's expense) all copies in its
possession, other than permanent file copies then in its possession, of the
Prospectus covering such Registrable Securities that is current at the time of
receipt of such notice. Nothing in this paragraph shall prevent the accrual of
Additional Interest on any Securities, Private Exchange Securities or Exchange
Securities.
If the Company shall give any such notice to suspend the disposition of
Registrable Securities pursuant to the immediately preceding paragraph, the
Company shall be deemed to have used reasonable best efforts to keep the Shelf
Registration Statement or, in the case of Section 3(f), the Exchange Offer
Registration Statement, as the case may be, effective during such period of
suspension; provided that (i) such period of suspension shall not exceed the
time periods provided in Section 2(e)(vii) hereof and (ii) the Company shall use
reasonable best efforts to file and have declared effective (if an amendment) as
soon as practicable thereafter an amendment or supplement to the Shelf
Registration Statement or the Exchange Offer Registration Statement or both, as
the case may be, or the Prospectus included therein and shall, subject to
Section 2(b)(C)(y), extend the period during which the Shelf Registration
Statement or the Exchange Offer Registration Statement or both, as the case may
be, shall be maintained effective pursuant to this Agreement (and, if
applicable, the period during which Participating Broker-Dealers may use the
Prospectus included in the Exchange Offer Registration Statement pursuant to
Section 3(f) hereof) by the number of days during the period from and including
the date of the giving of such notice to and including the earlier of the date
when the Holders or Participating Broker-Dealers, respectively, shall have
received copies of the supplemented or amended Prospectus necessary to resume
such dispositions and the effective date of written notice from the Company to
the Holders or Participating Broker-Dealers, respectively, that the
19
Shelf Registration Statement or the Exchange Offer Registration Statement,
respectively, are once again effective or that no supplement or amendment is
required.
4. Underwritten Registrations.
If any of the Registrable Securities covered by any Shelf Registration
are to be sold in an underwritten offering in accordance with Section 3(n), the
investment banker or investment bankers and manager or managers that will manage
the offering will be selected by the Majority Holders of such Registrable
Securities included in such offering, subject to the consent of the Company,
which consent shall not be unreasonably withheld.
No Holder of Registrable Securities may participate in any underwritten
registration hereunder unless such Holder (a) agrees to sell such Holder's
Registrable Securities on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
5. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Initial
Purchaser, each Holder, each Participating Broker-Dealer and each Person, if
any, who controls any Initial Purchaser, Holder or Participating Broker-Dealer
within the meaning of either Section 15 of the 1933 Act or Section 20 of the
1934 Act (each a "Company Indemnitee"), against any losses, claims, damages or
liabilities, joint or several, to which such Company Indemnitee may become
subject, under the 1933 Act 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 any material fact
contained in any Registration Statement pursuant to which Exchange Securities or
Registrable Securities were registered under the 1933 Act, any related
Prospectus, or any amendment or supplement thereto, or any related preliminary
prospectus or preliminary prospectus supplement, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will reimburse each Company Indemnitee for any legal or other expenses
reasonably incurred by such Company Indemnitee in connection with investigating
or defending any such loss, claim, damage, liability or action as such expenses
are incurred; provided, however, that the Company will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement in or omission
or alleged omission from any of such documents in reliance upon and in
conformity with written information furnished to the Company by any Initial
Purchaser, Holder or Participating Broker-Dealer with respect to such Initial
Purchaser, Holder or Participating Broker-Dealer, as the case may be,
specifically for use therein; and provided, further, that with respect to any
untrue statement or alleged untrue statement in or omission or alleged omission
from any preliminary prospectus or preliminary prospectus supplement the
indemnity agreement contained in this subsection (a) shall not inure to the
benefit of any Company Indemnitee from whom the person asserting any such
losses, claims, damages or liabilities purchased the Registrable Securities or
Exchange Securities concerned, to the extent that a prospectus supplement
relating to such Securities was required to be delivered by such
20
Company Indemnitee under the 1933 Act in connection with such purchase and any
such loss, claim, damage or liability of such Company Indemnitee results from
the fact that 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 most recent Prospectus if the Company had previously furnished copies
thereof to such Company Indemnitee.
(b) Each Initial Purchaser, each Holder and each Participating
Broker-Dealer will severally and not jointly indemnify and hold harmless the
Company, each Guarantor, their respective directors and officers, each other
Initial Purchaser, each other selling Holder, each other Participating
Broker-Dealer and each Person, if any, who controls the Company, any Guarantor,
any such Initial Purchaser, any such Holder and any such Participating
Broker-Dealer within the meaning of either Section 15 of the 1933 Act or Section
20 of the 1934 Act (each a "Holder Indemnitee"), against any losses, claims,
damages or liabilities to which such Holder Indemnitee may become subject, under
the 1933 Act 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 any material fact contained in
any Registration Statement pursuant to which Exchange Securities or Registrable
Securities were registered under the 1933 Act, any related Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus or
preliminary prospectus supplement, or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by any
Initial Purchaser, Holder or Participating Broker-Dealer with respect to such
Initial Purchaser, Holder or Participating Broker-Dealer, as the case may be,
specifically for use therein, and will reimburse any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
any such loss, claim, damage, liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section 5
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
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section 5 for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. In no event shall the indemnifying parties be
liable for the fees and expenses of more than one counsel (in addition to any
local counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations
21
or circumstances. No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement of any pending or threatened
action 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 (i) includes an unconditional release of such indemnified party
from all liability on any claims that are the subject matter of such action and
(ii) does not include a statement as to, or an admission of fault, culpability
or a failure to act by or on behalf of an indemnified party.
(d) If the indemnification provided for in this Section 5 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company from the offering and sale of the Securities on the one hand and the
Initial Purchaser, Holder or Participating Broker-Dealer, as the case may be, on
the other from the sale of the Registrable Securities or Exchange Securities
pursuant to the applicable Registration Statement by such Initial Purchaser,
Holder or Participating Broker-Dealer 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 such
Initial Purchaser, Holder or Participating Broker-Dealer on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and such Initial Purchaser, Holder or Participating Broker-Dealer on the other
shall be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company bear to the total
proceeds received by such Initial Purchaser, Holder or Participating
Broker-Dealer on the sale of such Registrable Securities or Exchange Securities,
as the case may be. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or such Initial Purchaser, Holder or
Participating Broker-Dealer and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such untrue statement or
omission. The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any action or claim which is the subject of this subsection (d). Notwithstanding
the provisions of this subsection (d), no Initial Purchaser, Holder or
Participating Broker-Dealer shall be required to contribute any amount in excess
of the amount by which the total price at which the Registrable Securities or
Exchange Securities sold by it to any purchaser exceeds the amount of any
damages which such Initial Purchaser, Holder or Participating Broker-Dealer has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The obligations of the Company under this Section 5 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and
22
conditions, to each person, if any, who controls any Initial Purchaser, Holder
or Participating Broker-Dealer within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act; and the obligations of the Initial Purchasers,
Holders and Participating Broker-Dealers under this Section 5 shall be in
addition to any liability which the respective Initial Purchaser, Holder or
Participating Broker-Dealer may otherwise have and shall extend, upon the same
terms and conditions, to each Guarantor, each director of the Company or a
Guarantor, to each officer of the Company or a Guarantor who has signed the
Registration Statement and to each person, if any, who controls the Company or a
Guarantor within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act.
The indemnity and contribution provisions contained in this Section 5
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any Initial Purchaser, Holder or Participating Broker-Dealer or any Person
controlling any Initial Purchaser, Holder or Participating Broker-Dealer, or by
or on behalf of the Company or either Guarantor, their officers or directors or
any Person controlling the Company or either Guarantor, (iii) acceptance of any
of the Exchange Securities and (iv) any sale of Registrable Securities or
Exchange Securities pursuant to a Shelf Registration Statement.
6. Miscellaneous.
(a) Rule 144 and Rule 144A. For so long as the Company is subject to
the reporting requirements of Section 13 or 15(d) of the 1934 Act, the Company
covenants that it will file all reports required to be filed by it under Section
13(a) or 15(d) of the 1934 Act and the rules and regulations adopted by the SEC
thereunder, that if it ceases to be so required to file such reports, it will
upon the request of any Holder or beneficial owner of Registrable Securities (i)
make publicly available such information (including, without limitation, the
information specified in Rule 144(c)(2) under the 0000 Xxx) as is necessary to
permit sales pursuant to Rule 144 under the 1933 Act, (ii) deliver or cause to
be delivered, promptly following a request by any Holder or beneficial owner of
Registrable Securities or any prospective purchaser or transferee of Registrable
Securities designated by such Holder or beneficial owner, such information
(including, without limitation, the information specified in Rule 144A(d)(4)
under the 0000 Xxx) as is necessary to permit sales pursuant to Rule 144A under
the 1933 Act, and (iii) take such further action that is reasonable in the
circumstances, in each case to the extent required from time to time to enable
such Holder to sell its Registrable Securities without registration under the
1933 Act within the limitation of the exemptions provided by Rule 144, Rule 144A
or any similar rules or regulations hereafter adopted by the SEC. Upon the
request of any Holder or beneficial owner of Registrable Securities, the Company
will deliver to such Holder or beneficial owner a written statement as to
whether it has complied with such requirements. Notwithstanding the foregoing,
nothing in this Section 6(a) shall be deemed to require the Company to register
any of its securities pursuant to the 1934 Act.
(b) No Inconsistent Agreements. The Company has not entered into, nor
will the Company on or after the date of this Agreement enter into, any
agreement which is inconsistent with the rights granted to the Holders of
Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not and will
not in any way conflict with and are not and will not be inconsistent with the
rights granted to the
23
holders of any of the Company's other issued and outstanding securities under
any other agreements entered into by the Company or any of its subsidiaries.
(c) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given, unless the Company has obtained the written consent of Holders of a
majority in aggregate principal amount of the outstanding Registrable Securities
affected by such amendment, modification, supplement, waiver or departure. Each
Holder of Registrable Securities outstanding at the time of any such amendment,
modification, supplement, waiver or consent thereafter shall be bound by any
such amendment, modification, supplement, waiver or consent effected pursuant to
this Section 6(c), whether or not any notice, writing or marking indicating such
amendment, modification, supplement, waiver or consent appears on the
Registrable Securities or is delivered to such Holder. Each Holder may waive
compliance with respect to any obligation of the Company under this Agreement as
it may apply or be enforced by such particular Holder.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telecopier, or any courier guaranteeing overnight delivery (i) if to a Holder or
Participating Broker-Dealer (other than an Initial Purchaser), at the most
current address set forth on the records of the registrar under the Indenture,
(ii) if to an Initial Purchaser, at the most current address given by such
Initial Purchaser to the Company by means of a notice given in accordance with
the provisions of this Section 6(d), which address initially is the address set
forth in the Purchase Agreement; and (iii) if to the Company, initially at the
address set forth in the Purchase Agreement and thereafter at such other
address, notice of which is given in accordance with the provisions of this
Section 6(d) , with a copy to Xxxxx Xxxxx L.L.P., One Shell Plaza, 000 Xxxxxxxxx
Xxxxxx, Xxxxxxx, Xxxxx 00000, Telecopier No.: (000) 000-0000, Attention: Xxxx X.
Xxxxxx.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; three business
days after being deposited in the mail, first class, postage prepaid, if mailed;
when receipt is acknowledged, if telecopied; and on the next business day if
timely delivered to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders; provided that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable Securities
in violation of the terms hereof or of the Purchase Agreement or the Indenture.
If any transferee of any Holder shall acquire Registrable Securities, in any
manner, whether by operation of law or otherwise, such Registrable Securities
shall be held subject to all of the terms of this Agreement, and by taking and
holding such Registrable Securities, such Person shall be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of
this Agreement, including the restrictions on resale set forth in this
24
Agreement and, if applicable, the Purchase Agreement, and such Person shall be
entitled to receive the benefits hereof.
(f) Third Party Beneficiary. Each Holder shall be a third party
beneficiary of the agreements made hereunder between the Company , on the one
hand, and the Initial Purchasers, on the other hand, and shall have the right to
enforce such agreements directly to the extent it deems such enforcement
necessary or advisable to protect its rights or the rights of other Holders
hereunder. Each Holder, by its acquisition of Securities, shall be deemed to
have agreed to the provisions of Section 5(b) hereof.
(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) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Restriction on Resales. Until the expiration of two years (or such
shorter period as may hereafter be referred to in Rule 144(k) under the 1933 Act
(or similar successor rule)) after the original issuance of the Securities,
without the prior written consent of the Initial Purchasers, the Issuer will
not, and will not permit any of its affiliates (as defined in Rule 501(b) under
the 0000 Xxx) to, resell any of the Securities that have been reacquired by
them, except for Securities purchased by the Issuer or any of its affiliates (as
defined in Rule 501(b) under the 0000 Xxx) and resold in a transaction
registered under the 1933 Act.
(j) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(k) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
[SIGNATURE PAGE FOLLOWS]
25
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
CONOCOPHILLIPS
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Xxxx X. Xxxxxx
Vice President and Treasurer
Confirmed and accepted as of the date first above written:
BANC OF AMERICA SECURITIES LLC
X.X. XXXXXX SECURITIES INC.
XXXXXXX XXXXX BARNEY INC.
And the other parties referred to in Annex A hereto
By: BANC OF AMERICA SECURITIES LLC
By: /s/ Xxxx Xxxxx
------------------
Xxxx Xxxxx
Principal
For itself and on behalf of the other Initial Purchasers
ANNEX A
INITIAL PURCHASERS
Banc of America Securities LLC
X.X. Xxxxxx Securities Inc.
Xxxxxxx Xxxxx Barney Inc.
Barclays Capital Inc.
The Royal Bank of Scotland plc
ABN AMRO Incorporated
Banc One Capital Markets, Inc.
BNP Paribas Securities Corp.
Credit Suisse First Boston Corporation
Scotia Capital (USA) Inc.
XX Xxxxx Securities Corporation
A-1
ANNEX B
PLAN OF DISTRIBUTION
Each broker-dealer that receives new notes for its own account under
the exchange offer must acknowledge that it will deliver a prospectus in
connection with any resale of those notes. This prospectus, as it may be amended
or supplemented from time to time, may be used by a broker-dealer for resales of
new notes received in exchange for original notes that had been acquired as a
result of market-making or other trading activities. We have agreed that, for a
period of 180 days after the expiration date of the exchange offer, we will make
this prospectus, as it may be amended or supplemented, available to any
broker-dealer for use in connection with any such resale. Any broker-dealers
required to use this prospectus and any amendments or supplements to this
prospectus for resales of the new notes must notify us of this fact by checking
the box on the letter of transmittal requesting additional copies of these
documents.
Notwithstanding the foregoing, we are entitled under the registration
rights agreement to suspend the use of this prospectus by broker-dealers under
specified circumstances. For example, we may suspend the use of this prospectus
if:
- the SEC or any state securities authority requests an
amendment or supplement to this prospectus or the related
registration statement or additional information;
- the SEC or any state securities authority issues any stop
order suspending the effectiveness of the registration
statement or initiates proceedings for that purpose;
- we receive notification of the suspension of the qualification
of the new notes for sale in any U.S. jurisdiction or the
initiation or threatening of any proceeding for that purpose;
- the suspension is required by law;
- the suspension is taken by us in good faith and for valid
business reason, including the possible acquisition or
divestiture of assets or a material corporate transaction or
event; or
- an event occurs which makes any statement in this prospectus
untrue in any material respect or which constitutes an
omission to state a material fact in this prospectus.
If we suspend the use of this prospectus, the 180-day period referred
to above will be extended by a number of days equal to the period of the
suspension.
We will not receive any proceeds from any sale of new notes by
broker-dealers. New notes received by broker-dealers for their own account under
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 those notes or a combination of those methods of resale, at market
prices prevailing at the time of resale, at prices related to prevailing market
B-1
prices or at negotiated prices. Any resales 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 the selling broker-dealer or the purchasers of
the new notes. Any broker-dealer that resells new notes received by it for its
own account under the exchange offer and any broker or dealer that participates
in a distribution of the new notes may be deemed to be an "underwriter" within
the meaning of the Securities Act and any profit on any resale of new notes and
any commissions or concessions received by these 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.
We have agreed to pay all expenses incidental to the exchange offer,
including the expenses of one counsel for the holders of old notes, other than
commissions and concessions of any broker or dealer and will indemnify holders
of the new notes, including any broker-dealers, against certain liabilities,
including liabilities under the Securities Act or contribute to payments that
they may be required to make in request thereof.
B-2
