EXECUTION VERSION
Exhibit 4(b)
HANGER ORTHOPEDIC GROUP, INC.
10 3/8% SENIOR NOTES DUE 2009
REGISTRATION RIGHTS AGREEMENT
February 15, 2002
Xxxxxx Brothers Inc.
X.X. Xxxxxx Securities Inc.
Xxxxxxx Xxxxx Xxxxxx Inc.
BNP Paribas Securities Corp.
c/x Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Hanger Orthopedic Group, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell (the "Initial Placement") to Xxxxxx Brothers Inc.,
X.X. Xxxxxx Securities Inc., Xxxxxxx Xxxxx Xxxxxx Inc. and BNP Paribas
Securities Corp. (the "Initial Purchasers"), upon terms set forth in a purchase
agreement dated as of February 8, 2002 (the "Purchase Agreement") among the
Company, the subsidiary guarantors named therein (the "Guarantors") and the
Initial Purchasers, $200,000,000 of its 10 3/8% Senior Notes due 2009 (the
"Initial Notes"). As an inducement to the Initial Purchasers to enter into the
Purchase Agreement and purchase the Initial Notes and in satisfaction of a
condition to the Initial Purchasers' obligations under the Purchase Agreement,
the Company and the Guarantors agree with each of the Initial Purchasers for the
benefit of the holders from time to time of the Initial Notes (including the
Initial Purchasers and the Market Maker (as defined below)) (each of the
foregoing a "Holder" and together the "Holders"), as follows:
1. Definitions. Capitalized terms used herein without definition shall
have their respective meanings set forth in the Purchase Agreement. As used in
this Agreement, the following capitalized defined terms shall have the following
meanings:
"Affiliate" of any specified person means any other person that,
directly or indirectly, is in control of, is controlled by, or is under
common control with, such specified person. For purposes of this
definition, control of a person means the power, direct or indirect, to
direct or cause the direction of the management and policies of such
person whether by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday or
Friday which is not a day on which banking institutions in New York, New
York are generally authorized or obligated by law or executive order to
close.
"Closing Date" has the meaning set forth in the Purchase
Agreement.
"Commission" means the Securities and Exchange Commission.
"Company" has the meaning set forth in the preamble hereto.
"Damages Payment Date" means, with respect to the Initial Notes,
each date on which interest is paid in accordance with the Indenture.
"Delay Period" has the meaning set forth in Section 5(i) hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Exchange Offer" means the proposed offer to the Holders to issue
and deliver to such Holders, in exchange for the Notes, a like aggregate
principal amount of Exchange Notes.
"Exchange Offer Consummation Deadline" has the meaning set forth
in Section 2(a) hereof.
"Exchange Offer Effectiveness Deadline" has the meaning set forth
in Section 2(a) hereof.
"Exchange Offer Filing Deadline" has the meaning set forth in
Section 2(a) hereof.
"Exchange Offer Registration Period" means the longer of (A) the
period until the expiration of the Exchange Offer and (B) two years after
effectiveness of the Exchange Offer Registration Statement, exclusive of
any period during which any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement; provided,
however, that in the event that all resales of Exchange Notes (including,
subject to the time periods set forth herein, any resales by Exchanging
Dealers) covered by such Exchange Offer Registration Statement have been
made, the Exchange Offer Registration Statement need not remain
continuously effective for the period set forth in clause (B) above.
"Exchange Offer Registration Statement" means a Registration
Statement of the Company on an appropriate form under the Securities Act
with respect to the Exchange Offer, all amendments and supplements to
such Registration Statement, including post-effective amendments, in each
case including the Prospectus contained therein, all exhibits thereto and
all material incorporated by reference therein.
"Exchange Notes" means securities issued by the Company, identical
in all material respects to the Notes to be issued under the Indenture.
"Exchanging Dealer" means any Holder (which may include the
Initial Purchasers) that is a broker-dealer, electing to exchange Notes
acquired for its own account as a result of market-making activities or
other trading activities for Exchange Notes.
"Guarantors" has the meaning set forth in the preamble hereto.
"Holder" has the meaning set forth in the preamble hereto.
"Indenture" means the Indenture, dated as of February 15, 2002,
among the Company, the Guarantors and Wilmington Trust Company, as
trustee, pursuant to which the Notes are to be issued, as such Indenture
is amended or supplemented from time to time in accordance with the terms
thereof.
"Initial Notes" means the 10 3/8% Senior Notes due 2009, of the
same series under the Indenture as the Exchange Notes, for so long as
such securities constitute Transfer Restricted Securities.
"Initial Placement" has the meaning set forth in the preamble
hereto.
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"Initial Purchasers" has the meaning set forth in the preamble
hereto.
"Losses" has the meaning set forth in Section 7(d) hereto.
"Majority Holders" means the Holders of a majority of the
aggregate principal amount of Notes registered under a Registration
Statement.
"Managing Underwriters" means the investment banker or investment
bankers and manager or managers that shall administer an underwritten
offering under a Shelf Registration Statement.
"Market-Making Registration Statement" has the meaning set forth
in Section 3(a) hereto.
"Market Maker" has the meaning set forth in Section 3(a) hereto.
"Notes" means the Initial Notes and Exchange Notes.
"Offering Memorandum" has the meaning set forth in the Purchase
Agreement.
"Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A under the
Securities Act), as amended or supplemented by any prospectus supplement,
with respect to the terms of the offering of any portion of the Notes
covered by such Registration Statement, and all amendments and
supplements to the Prospectus, including post-effective amendments.
"Purchase Agreement" has the meaning set forth in the preamble
hereto.
"Registration Default" has the meaning set forth in Section 6(b)
hereof.
"Registration Statement" means any Exchange Offer Registration
Statement, Market-Making Registration Statement or Shelf Registration
Statement pursuant to the provisions of this Agreement, amendments and
supplements to such registration statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto, and all material incorporated by reference therein.
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Shelf Effectiveness Deadline" has the meaning set forth in
Section 4(b) hereof.
"Shelf Filing Deadline" has the meaning set forth in Section 4(a)
hereof.
"Shelf Registration" means a registration effected pursuant to
Section 4 hereof.
"Shelf Registration Period" has the meaning set forth in Section
4(b) hereof.
"Shelf Registration Statement" means a "shelf" registration
statement of the Company pursuant to the provisions of Section 4 hereof,
which covers some or all of the Notes or Exchange Notes, as applicable,
on an appropriate form under Rule 415 under the Securities Act, or any
similar rule that may be adopted by the Commission, amendments and
supplements to such registration statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
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"Transfer Restricted Securities" means each Note until: (i) the
date on which such Note has been exchanged by a Person other than a
broker-dealer for an Exchange Note in the Exchange Offer; (ii) following
the exchange by a broker-dealer in the Exchange Offer of a Note for an
Exchange Note, the date on which such Exchange Note is sold to a
purchaser who receives from such broker-dealer on or prior to the date of
such sale a copy of the Prospectus contained in the Exchange Offer
Registration Statement; (iii) the date on which such Note has been
effectively registered under the Securities Act and disposed of in
accordance with the Shelf Registration Statement; or (iv) the date on
which such Note is distributed to the public pursuant to Rule 144 under
the Securities Act.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
"Trustee" means Wilmington Trust Company and any successors
thereto.
"Underwriter" means any underwriter of Notes in connection with an
offering thereof under a Shelf Registration Statement.
"Underwritten Registration" or "Underwritten Offering" means a
registration in which the Notes of the Company are sold to an underwriter
for reoffering to the public.
2. Exchange Offer; Resales of Exchange Notes by Exchanging Dealers;
Private Exchange.
(a) The Company and the Guarantors shall prepare and file with the
Commission the Exchange Offer Registration Statement with respect to the
Exchange Offer on or prior to the 90th calendar day after the Closing
Date (the "Exchange Offer Filing Deadline"). The Company and the
Guarantors shall use their respective best efforts (i) to cause the
Exchange Offer Registration Statement to be declared effective under the
Securities Act on or prior to the 150th calendar day following the
Closing Date (the "Exchange Offer Effectiveness Deadline") and remain
effective until the closing of the Exchange Offer and (ii) to consummate
the Exchange Offer on or prior to the 30th Business Day following the
date on which the Exchange Offer Registration Statement was declared
effective by the Commission (the "Exchange Offer Consummation Deadline").
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Company shall promptly commence the Exchange Offer, it
being the objective of such Exchange Offer to enable each Holder electing
to exchange Notes for Exchange Notes (assuming that such Holder (x) is
not an "affiliate" of the Company within the meaning of the Securities
Act, (y) is not a broker-dealer that acquired the Notes in a transaction
other than as a part of its market-making or other trading activities and
(z) if such Holder is not a broker-dealer, acquires the Exchange Notes in
the ordinary course of such Holder's business, is not participating in
the distribution of the Exchange Notes and has no arrangements or
understandings with any person to participate in the distribution of the
Exchange Notes) to resell such Exchange Notes from and after their
receipt without any limitations or restrictions under the Securities Act
and without material restrictions under the securities laws of a
substantial proportion of the several states of the United States.
(c) In connection with the Exchange Offer, the Company shall 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, stating, in addition to such other
disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this
Agreement and that all Notes validly tendered will be accepted for
exchange;
(ii) the dates of acceptance for exchange;
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(iii) that any Notes not tendered will remain outstanding
and continue to accrue interest, but will not retain any rights
under this Agreement;
(iv) that Holders electing to have Notes exchanged pursuant
to the Exchange Offer will be required to surrender such Notes,
together with the enclosed letters of transmittal, to the
institution and at the address (located in the Borough of
Manhattan, The City of New York) specified in the notice prior to
the close of business on the last day of acceptance for exchange;
and
(v) that Holders will be entitled to withdraw their
election, not later than the close of business on the last day of
acceptance for exchange, by sending to the institution and at the
address (located in the Borough of Manhattan, The City of New
York) specified in the notice a telegram, telex, facsimile
transmission or letter setting forth the name of such Holder, the
aggregate principal amount of Notes delivered for exchange and a
statement that such Holder is withdrawing his election to have
such Notes exchanged; and shall keep the Exchange Offer open for
acceptance for not less than 20 days (or longer if required by
applicable law) after the date notice thereof is mailed to the
Holders; utilize the services of a depositary for the Exchange
Offer with an address in the Borough of Manhattan, The City of New
York; and comply in all respects with all applicable laws relating
to the Exchange Offer.
(d) As soon as practicable after the close of the Exchange Offer,
the Company shall:
(i) accept for exchange all Notes duly tendered and not
validly withdrawn pursuant to the Exchange Offer;
(ii) deliver to the Trustee for cancellation all Notes so
accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and
deliver to each Holder Exchange Notes equal in principal amount to
the Notes of such Holder so accepted for exchange.
(e) The Initial Purchasers, the Company and the Guarantors
acknowledge that, pursuant to interpretations by the staff of the
Commission of Section 5 of the Securities Act, and in the absence of an
applicable exemption therefrom, each Exchanging Dealer is required to
deliver a Prospectus in connection with a sale of any Exchange Notes
received by such Exchanging Dealer pursuant to the Exchange Offer in
exchange for Notes acquired for its own account as a result of
market-making activities or other trading activities. Accordingly, the
Company and the Guarantors shall:
(i) include the information set forth in Annex A hereto on
the cover of the Exchange Offer Registration Statement, in Annex B
hereto in the forepart of the Exchange Offer Registration
Statement in a section setting forth details of the Exchange
Offer, in Annex C hereto in the underwriting or plan of
distribution section of the Prospectus forming a part of the
Exchange Offer Registration Statement, and in Annex D hereto in
the letter of transmittal delivered pursuant to the Exchange
Offer; and
(ii) use their respective best efforts to keep the Exchange
Offer Registration Statement continuously effective under the
Securities Act during the Exchange Offer Registration Period for
delivery of the Prospectus included therein by Exchanging Dealers
in connection with sales of Exchange Notes received pursuant to
the Exchange Offer, as contemplated by Section 5(h) below;
provided, however, that the Company and the Guarantors shall not
be required to maintain the effectiveness of the Exchange Offer
Registration Statement for more than 30 days following the
expiration of
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the Exchange Offer unless the Company and the Guarantors have been
notified in writing on or prior to the 30th day following the
expiration of the Exchange Offer by one or more Exchanging Dealers
that such Holder has received Exchange Notes as to which it will
be required to deliver a Prospectus upon resale.
(f) In the event that an Initial Purchaser determines that it is
not eligible to participate in the Exchange Offer with respect to the
exchange of Notes constituting any portion of an unsold allotment, upon
the effectiveness of the Shelf Registration Statement as contemplated by
Section 4 hereof and at the request of the Initial Purchasers, the
Company and the Guarantors shall issue and deliver to the Initial
Purchasers, or to the party purchasing Initial Notes registered under the
Shelf Registration Statement from the Initial Purchasers, in exchange for
such Initial Notes, a like principal amount of Exchange Notes. The
Company and the Guarantors shall use their respective best efforts to
cause the CUSIP Service Bureau to issue the same CUSIP number for such
Exchange Notes as for Exchange Notes issued pursuant to the Exchange
Offer.
(g) The Company and the Guarantors shall use their respective best
efforts to complete the Exchange Offer as provided above and shall comply
with the applicable requirements of the Securities Act, the Exchange Act
and other applicable laws and regulations in connection with the Exchange
Offer. The Exchange Offer shall not be subject to any conditions, other
than that (i) the Exchange Offer does not violate applicable law or any
applicable interpretation of the staff of the Commission, (ii) no action
or proceeding shall have been instituted or threatened in any court or by
any governmental agency which might materially impair the ability of the
Company or any of the Guarantors to proceed with the Exchange Offer, and
no material adverse development shall have occurred in any existing
action or proceeding with respect to the Company or any of the
Guarantors, and (iii) all governmental approvals shall have been
obtained, which approvals the Company and the Guarantors deem necessary
for the consummation of the Exchange Offer. The Company and the
Guarantors shall inform the Initial Purchasers, upon their request, of
the names and addresses of the Holders to whom the Exchange Offer is
made, and the Initial Purchasers shall have the right, subject to
applicable law, to contact such Holders and otherwise facilitate the
tender of Notes in the Exchange Offer.
(h) As a condition to its participation in the Exchange Offer
pursuant to the terms of this Agreement, each Holder of Transfer
Restricted Securities shall furnish, upon the request of the Company and
the Guarantors, prior to the expiration thereof, a written representation
to the Company and the Guarantors (which may be contained in the letter
of transmittal contemplated by the Exchange Offer Registration Statement)
to the effect that (A) it is not an Affiliate of the Company or any of
the Guarantors, (B) it is not engaged in, and does not intend to engage
in, and has no arrangement or understanding with any person to
participate in, a distribution of the Exchange Notes to be issued in the
Exchange Offer, and (C) it is acquiring the Exchange Notes in its
ordinary course of business. In addition, all such Holders of Transfer
Restricted Securities shall otherwise cooperate in the Company's and the
Guarantors' preparations for the Exchange Offer. Each Holder hereby
acknowledges and agrees that any broker-dealer and any such Holder using
the Exchange Offer to participate in a distribution of the securities to
be acquired in the Exchange Offer (1) could not under Commission policy
as in effect on the date of this Agreement rely on the position of the
Commission enunciated in Xxxxxx Xxxxxxx and Co., Inc. (available June 5,
1991) and Exxon Capital Holdings Corporation (available May 13, 1988), as
interpreted in the Commission's letter to Shearman & Sterling dated July
2, 1993, and similar no-action letters, and (2) must comply with the
registration and prospectus delivery requirements of the Securities Act
in connection with a secondary resale transaction and that such a
secondary resale transaction should be covered by an effective
registration statement containing the selling security holder information
required by Item 507 or 508, as applicable, of Regulation S-K if the
resales are of Exchange Notes obtained by such Holder in exchange for
Initial Notes acquired by such Holder directly from the Company and the
Guarantors.
3. Market-Making Registration Statement.
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(a) For so long as any of the Notes are outstanding and X.X.
Xxxxxx Securities Inc. (the "Market Maker") or any of its affiliates (as
defined in the rules and regulations of the Commission under the
Securities Act) owns any equity securities of the Company or the
Guarantors and proposes to make a market in the Notes as part of its
business in the ordinary course, the following provisions shall apply for
the sole benefit of the Market Maker:
(i) The Company and the Guarantors shall prepare and file
with the Commission a Registration Statement (the "Market-Making
Registration Statement") (which may be the same Registration
Statement as the Exchange Offer Registration Statement or the
Shelf Registration Statement, if permitted by the rules and
regulations of the Commission) on the date that the Exchange Offer
Registration Statement or the Shelf Registration Statement, as
applicable, is filed with the Commission covering sales of the
Notes by the Market Maker. The Company and the Guarantors shall
use their respective best efforts to cause such Market-Making
Registration Statement to be declared effective by the Commission
on or prior to the expiration of the Exchange Offer.
(ii) The Company and the Guarantors shall also: (A)
periodically amend the Market-Making Registration Statement so
that the information contained therein complies with the
requirements of Section 10(a) under the Securities Act; (B) within
45 days following the end of each of the Company's fiscal quarters
(if requested by the Market Maker), file a supplement to the
Prospectus contained in the Market-Making Registration Statement
which sets forth the financial results of the Company for such
quarter; (C) amend the Market-Making Registration Statement or
supplement the related Prospectus when necessary to reflect any
material changes in the information provided therein; and (D)
amend the Market-Making Registration Statement when required to do
so in order to comply with Section 10(a)(3) of the Securities Act;
provided, however, that (1) prior to filing the Market-Making
Registration Statement, any amendment thereto or any supplement to
the related Prospectus, the Company and the Guarantors will
furnish to the Market Maker copies of all such documents proposed
to be filed, which documents will be subject to the review of the
Market Maker and its counsel, (2) the Company and the Guarantors
will not file the Market-Making Registration Statement, any
amendment thereto or any supplement to the related Prospectus to
which the Market Maker and its counsel shall reasonably object
unless the Company and the Guarantors are advised by their counsel
that such Market-Making Registration Statement, amendment or
supplement is required to be filed, and (3) the Company and the
Guarantors will provide the Market Maker and its counsel with
copies of the Market-Making Registration Statement and each
amendment and supplement filed.
(iii) If at any time the Company becomes no longer eligible
to use Form S-3 under the Securities Act with respect to sales of
the Notes, the Company and the Guarantors shall file a
post-effective amendment to the Market-Making Registration
Statement to convert it to a Form S-1 registration statement as
soon as practicable.
(iv) The Company and the Guarantors shall notify the Market
Maker and, if requested by the Market Maker, confirm such advice
in writing, (A) when the Market-Making Registration Statement, any
amendment or post-effective amendment thereto and any amendment or
supplement to the related Prospectus has been filed and, with
respect to the Market-Making Registration Statement or any
post-effective amendment, when the same has become effective; (B)
of any request by the Commission for any post-effective amendment
to the Market-Making Registration Statement, any amendment or
supplement to the related Prospectus or for additional
information; (C) of the issuance by the Commission of any stop
order suspending the effectiveness of the Market-Making
Registration Statement or the initiation of any proceedings for
that purpose; (D) of the receipt by the Company and the Guarantors
of any notification with respect to the suspension of the
qualification of the Notes for sale in any jurisdiction or the
initiation or threatening of any proceedings for such purpose; (E)
of the happening of any event which
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makes any statement made in the Market-Making Registration
Statement, the related Prospectus or any amendment or supplement
thereto untrue or which requires the making of any changes in the
Market-Making Registration Statement, the related Prospectus or
any amendment or supplement thereto in order to make the
statements therein not misleading; and (F) of any advice from a
nationally recognized statistical rating organization that such
organization has placed the Company under surveillance or review
with negative implications or has determined to downgrade the
rating of the Notes or any other debt obligation of the Company,
whether or not such downgrade shall have been publicly announced.
(v) If any event contemplated by clauses (a)(iv)(B) through
(E) of this Section 3 occurs during the period for which the
Company and the Guarantors are required to maintain an effective
Market-Making Registration Statement, the Company and the
Guarantors shall promptly prepare and file with the Commission a
post-effective amendment to the Market-Making Registration
Statement or a supplement to the related Prospectus or file any
other required document so that the Prospectus will not include an
untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading.
(vi) In the event of the issuance of any stop order
suspending the effectiveness of the Market-Making Registration
Statement or of any order suspending the qualification of the
Notes for sale in any jurisdiction, the Company and the Guarantors
shall use promptly their best efforts to obtain its withdrawal.
(vii) The Company and the Guarantors shall furnish to the
Market Maker, without charge, (A) at least one conformed copy of
the Market-Making Registration Statement and any amendment or
post-effective amendment thereto; and (B) as many copies of the
related Prospectus and any amendment or supplement thereto as the
Market Maker may reasonably request.
(viii) The Company and the Guarantors shall consent to the
use of the Prospectus contained in the Market-Making Registration
Statement or any amendment or supplement thereto by the Market
Maker in connection with the offering and sale of the Notes.
(ix) For so long as any Notes are outstanding, the Company
and the Guarantors shall furnish to the Market Maker (A) as soon
as practicable after the end of each of the Company's fiscal
years, the number of copies reasonably requested by the Market
Maker of the Company's annual report for such year, (B) as soon as
available, the number of copies reasonably requested by the Market
Maker of each report (including, without limitation, reports on
Forms 10-K, 10-Q and 8-K) or definitive proxy statements of the
Company filed under the Exchange Act or mailed to stockholders,
and (C) all public reports and all reports and financial
statements furnished by the Company and the Guarantors to the New
York Stock Exchange or any U.S. national securities exchange or
quotation service upon which the Notes may be listed pursuant to
requirements of or agreements with such exchange or quotation
service or to the Commission pursuant to the Exchange Act or any
rule or regulation of the Commission thereunder.
(b) Prior to the effective date of the Market-Making Registration
Statement, the Company and the Guarantors will use their respective best
efforts to register or qualify, or cooperate with the Market Maker and
its counsel in connection with the registration or qualification of, the
Notes for offer and sale under the securities or blue sky laws of such
jurisdictions as the Market Maker reasonably requests, and do any and all
other acts or things necessary or advisable to enable the offer and sale
in such jurisdictions of the Notes covered by the Market-Making
Registration Statement, provided that none of the Company or any of the
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Guarantors will be required to qualify as a foreign corporation or as a
dealer in securities in any jurisdiction in which it is not then so
qualified, to file any general consent to service of process or to take
any action that would subject it to general service of process in any
such jurisdiction where it is not so subject or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is
not otherwise so subject.
(c) Each of the Company and the Guarantors represents that the
Market-Making Registration Statement, any amendments or post-effective
amendments thereto, any amendments or supplements to the related
Prospectus and any documents filed by them under the Exchange Act will,
when they become effective or are filed with the Commission, as the case
may be, conform in all respects to the requirements of the Securities Act
and the Exchange Act and the rules and regulations of the Commission
promulgated thereunder and will not, as of the effective date of the
Market-Making Registration Statement or such post-effective amendments
and as of the filing date of amendments or supplements to such Prospectus
or filings under the Exchange Act, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided that no representation or warranty is made as to information
contained in or omitted from the Market-Making Registration Statement or
the related Prospectus in reliance upon and in conformity with written
information furnished to the Company and the Guarantors by the Market
Maker specifically for inclusion therein, which information the parties
hereto agree will be limited to the statements concerning the
market-making activities of the Marker Maker to be set forth on the cover
page and in the "Plan of Distribution" section of the Prospectus.
(d) At the time of effectiveness of the Market-Making Registration
Statement and each time that the Market-Making Registration Statement or
the related Prospectus shall be amended or such Prospectus shall be
supplemented, the Company and the Guarantors shall concurrently therewith
(if requested by the Market Maker) furnish the Market Maker and its
counsel with a certificate of the Company's chief executive officer and
chief financial officer to the effect that:
(i) The Market-Making Registration Statement has been
declared effective by the Commission under the Securities Act as
of the date and time specified in such certificate;
(ii) In the case of a post-effective amendment to the
Market-Making Registration Statement, such post-effective
amendment has become effective under the Securities Act as of the
date and time specified in such certificate;
(iii) In the case of an amendment or supplement to the
Prospectus contained in the Market-Making Registration Statement,
such supplement was filed with the Commission pursuant to the
subparagraph of Rule 424(b) under the Securities Act specified in
such certificate on the date specified therein;
(iv) To the knowledge of such officers, no stop order
suspending the effectiveness of the Market-Making Registration
Statement has been issued and no proceeding for that purpose is
pending or threatened by the Commission; and
(v) Such officers have carefully examined the Market-Making
Registration Statement and the related Prospectus (and, in the
case of an amendment or supplement, such amendment or supplement)
and as of the date of the Market-Making Registration Statement or
such amendment or supplement, as applicable, the Market-Making
Registration Statement and the related Prospectus, as amended or
supplemented, if applicable, did not include any untrue statement
of a material fact and did not omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading.
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(e) At the time of effectiveness of the Market-Making Registration
Statement and each time that the Market-Making Registration Statement or
the related Prospectus shall be amended or such Prospectus shall be
supplemented, the Company and the Guarantors shall concurrently therewith
(if requested by the Market Maker) furnish the Market Maker and its
counsel with the written opinion of counsel for the Company and the
Guarantors satisfactory to the Market Maker to the effect that:
(i) The Market-Making Registration Statement has been
declared effective by the Commission under the Securities Act as
of the date and time specified in that opinion;
(ii) In the case of a post-effective amendment to the
Market-Making Registration Statement, such post-effective
amendment has become effective under the Securities Act as of the
date and time specified in that opinion;
(iii) In the case of an amendment or supplement to the
Prospectus contained in the Market-Making Registration Statement,
such supplement was filed with the Commission pursuant to the
subparagraph of Rule 424(b) under the Securities Act specified in
such opinion on the date specified therein;
(iv) To the knowledge of such counsel, no stop order
suspending the effectiveness of the Market-Making Registration
Statement has been issued and no proceeding for that purpose is
pending or threatened by the Commission; and
(v) Such counsel has reviewed the Market-Making
Registration Statement and the related Prospectus (and, in the
case of an amendment or supplement, such amendment or supplement)
and participated with officers of the Company and the Guarantors
and their independent public accountants in the preparation of the
Market-Making Registration Statement and such Prospectus (and, in
the case of an amendment or supplement, such amendment or
supplement) and has no reason to believe that as of the date of
the Market-Making Registration Statement or such amendment or
supplement, as applicable, the Market-Making Registration
Statement, as amended, if applicable, contained any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or that the related Prospectus, as amended
or supplemented, if applicable, contains any 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, in the
light of the circumstances under which they were made, not
misleading.
(f) At the time of effectiveness of the Market-Making Registration
Statement and concurrently each time that the Market-Making Registration
Statement or the related Prospectus shall be amended or such Prospectus
shall be supplemented to include audited annual financial information,
the Company and the Guarantors shall (if requested by the Market Maker)
furnish the Market Maker and its counsel with a letter from
PricewaterhouseCoopers LLP (or other independent public accountants for
the Company of nationally recognized standing), in form satisfactory to
the Market Maker, addressed to the Market Maker and dated the date of
delivery of such letter, (i) confirming that they are independent public
accountants within the meaning of the Securities Act and are in
compliance with the applicable requirements relating to the qualification
of accountants under Rule 2-01 of Regulation S-X of the Commission and
(ii) in all other respects, substantially in the form of the letter
delivered to the Initial Purchasers pursuant to Section 7(i) of the
Purchase Agreement with, in the case of an amendment or supplement to
include audited financial information, such changes as may be necessary
to reflect the amended or supplemental financial information.
(g) The agreements contained in this Section 3 and the
representations, warranties and agreements contained in this Agreement
shall survive all offers and sales of the Notes and shall
10
remain in full force and effect, regardless of any termination or
cancellation of this Agreement or any investigation made by or on behalf
of any indemnified party.
(h) For purposes of this Section 3, any reference to the terms
"amend," "amendment" or "supplement" with respect to the Market-Making
Registration Statement or the Prospectus contained therein shall be
deemed to refer to and include the filing under the Exchange Act of any
document deemed to be incorporated therein by reference.
4. Shelf Registration. If (i) the Company and the Guarantors are not
required to file the Exchange Offer Registration Statement, (ii) because of any
change in law or applicable interpretations thereof by the Commission's staff,
the Company and the Guarantors determine upon advice of their outside counsel
that they are not permitted to effect the Exchange Offer as contemplated by
Section 2 hereof, or (iii) any Holder of Transfer Restricted Securities notifies
the Company and the Guarantors prior to the 20th day following the expiration of
the Exchange Offer that: (A) such Holder is prohibited by applicable law or
Commission policy from participating in the Exchange Offer, (B) such Holder may
not resell the Exchange Notes acquired by it in the Exchange Offer to the public
without delivering a Prospectus and that the Prospectus contained in the
Exchange Offer Registration Statement is not appropriate or available for such
resales by such Holder, or (C) such Holder is an Exchanging Dealer and holds
Initial Notes acquired directly from the Company and the Guarantors or one of
their Affiliates (it being understood that, for purposes of this Section 4, (x)
the requirement that the Initial Purchasers deliver a Prospectus containing the
information required by Items 507 and/or 508 of Regulation S-K under the
Securities Act in connection with sales of Exchange Notes acquired in exchange
for such Notes shall result in such Exchange Notes being not "freely tradeable,"
and (y) the requirement that an Exchanging Dealer deliver a Prospectus in
connection with sales of Exchange Notes acquired in the Exchange Offer in
exchange for Notes acquired as a result of market-making activities or other
trading activities shall not result in such Exchange Notes being not "freely
tradeable"), the following provisions shall apply:
(a) The Company and the Guarantors shall prepare and file with the
Commission, on or prior to the 30th calendar day after such filing
obligation arises (the "Shelf Filing Deadline"), a Shelf Registration
Statement relating to the offer and sale of the Notes or the Exchange
Notes, as applicable, by the Holders from time to time in accordance with
the methods of distribution elected by such Holders and set forth in such
Shelf Registration Statement and Rule 415 under the Securities Act;
provided that, with respect to Exchange Notes received by the Initial
Purchasers in exchange for Initial Notes constituting any portion of an
unsold allotment, the Company and the Guarantors may, if permitted by
current interpretations by the Commission's staff, file a post-effective
amendment to the Exchange Offer Registration Statement containing the
information required by Regulation S-K Items 507 and/or 508, as
applicable, in satisfaction of its obligations under this paragraph (a)
with respect thereto, and any such Exchange Offer Registration Statement,
as so amended, shall be referred to herein as, and governed by the
provisions herein applicable to, a Shelf Registration Statement.
(b) The Company and the Guarantors shall use their respective best
efforts to cause the Shelf Registration Statement to be declared
effective under the Securities Act on or prior to the 90th calendar day
after the Shelf Registration Statement is required to be filed under this
Section 4 (the "Shelf Effectiveness Deadline") and to keep such Shelf
Registration Statement continuously effective in order to permit the
Prospectus contained therein to be usable by Holders for a period of two
years from the date the Shelf Registration Statement is declared
effective by the Commission or such shorter period that will terminate
when all the Initial Notes or Exchange Notes, as applicable, covered by
the Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement (in any such case, such period being called the
"Shelf Registration Period"). The Company and the Guarantors shall be
deemed not to have used their respective best efforts to keep the Shelf
Registration Statement effective during the requisite period if the
Company or any of the Guarantors voluntarily takes any action that would
result in Holders of Notes covered thereby not being able to offer and
sell such Notes during that period, unless (i) such action is required by
applicable law, (ii) the Company and the Guarantors comply with
11
this Agreement or (iii) such action is taken by the Company or any of the
Guarantors in good faith and for valid business reasons (not including
avoidance of the Company's and the Guarantors' obligations hereunder),
including the acquisition or divestiture of assets, so long as the
Company and the Guarantors promptly thereafter comply with the
requirements of Section 5(m) hereof, if applicable.
5. Registration Procedures. In connection with any Exchange Offer
Registration Statement and any Shelf Registration Statement, the following
provisions shall apply:
(a) The Company and the Guarantors shall, within a reasonable time
prior to the filing of any Registration Statement, any Prospectus, any
amendment to a Registration Statement or amendment or supplement to a
Prospectus or any document which is to be incorporated by reference into
a Registration Statement or a Prospectus after initial filing of a
Registration Statement, provide copies of such document to the Initial
Purchasers and their counsel (and, in the case of a Shelf Registration
Statement, the Majority Holders and their counsel, upon their request)
and make such representatives of the Company and the Guarantors as shall
be reasonably requested by the Initial Purchasers or their counsel (and,
in the case of a Shelf Registration Statement, the Majority Holders or
their counsel) available for discussion of such document, and shall not
at any time file or make any amendment to the Registration Statement, any
Prospectus or any amendment of or supplement to a Registration Statement
or a Prospectus or any document which is to be incorporated by reference
into a Registration Statement or a Prospectus, of which the Initial
Purchasers and their counsel (and, in the case of a Shelf Registration
Statement, the Majority Holders and their counsel) shall not have
previously been advised and furnished a copy or to which the Initial
Purchasers or their counsel (and, in the case of a Shelf Registration
Statement, the Majority Holders or their counsel) shall object, except
for any amendment or supplement or document (a copy of which has been
previously furnished to the Initial Purchasers and their counsel (and, in
the case of a Shelf Registration Statement, the Majority Holders and
their counsel, upon their request)) which counsel to the Company and the
Guarantors shall advise the Company and the Guarantors, in the form of a
written opinion, is required in order to comply with applicable law; the
Initial Purchasers agree that if they receive timely notice and drafts
under this clause (a), they will not take actions or make objections
pursuant to this clause (a) such that the Company and the Guarantors are
unable to comply with its obligations under Section 2.
(b) The Company and the Guarantors shall ensure that:
(i) any Registration Statement and any amendment thereto
and any Prospectus contained therein and any amendment or
supplement thereto complies in all material respects with the
Securities Act and the rules and regulations thereunder;
(ii) any Registration Statement and any amendment thereto
does not, when it becomes effective, contain an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; and
(iii) any Prospectus forming part of any Registration
Statement, including any amendment or supplement to such
Prospectus, does not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements therein, in light of the circumstances under which
they were made, not misleading.
(c) (1) The Company and the Guarantors shall advise the Initial
Purchasers and, in the case of a Shelf Registration Statement, the
Holders of Initial Notes covered thereby, and, if requested by the
Initial Purchasers or any such Holder, confirm such advice in writing:
(i) when a Registration Statement and any amendment thereto
has been filed with the Commission and when the Registration
Statement or any post-effective amendment thereto has become
effective; and
12
(ii) of any request by the Commission for amendments or
supplements to the Registration Statement or the Prospectus
included therein or for additional information.
(2) During the Shelf Registration Period or the Exchange Offer
Registration Period, as applicable, the Company and the Guarantors
shall advise the Initial Purchasers and, in the case of a Shelf
Registration Statement, the Holders of Initial Notes or Exchange Notes
covered thereby, and, in the case of an Exchange Offer Registration
Statement, any Exchanging Dealer that has provided in writing to the
Company and the Guarantors a telephone or facsimile number and address
for notices, and, if requested by the Initial Purchasers or any such
Holder or Exchanging Dealer, confirm such advice in writing:
(i) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
(ii) of the receipt by the Company and the Guarantors of
any notification with respect to the suspension of the
qualification of the Initial Notes or Exchange Notes included
therein for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and
(iii) of the happening of any event that requires the
making of any changes in the Registration Statement or the
Prospectus so that, as of such date, the Registration Statement or
the Prospectus does not include an untrue statement of a material
fact or omit to state a material fact necessary to make the
statements therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading (which
advice shall be accompanied by an instruction to suspend the use
of the Prospectus until the requisite changes have been made).
(d) The Company and the Guarantors shall use their respective best
efforts to obtain the withdrawal of any order suspending the
effectiveness of any Registration Statement at the earliest possible
time.
(e) The Company and the Guarantors shall furnish to each Holder of
Notes covered by any Shelf Registration Statement that so requests,
without charge, at least one copy of such Shelf Registration Statement
and any post-effective amendment thereto, including financial statements
and schedules, and, if the Holder so requests in writing, all exhibits
thereto.
(f) The Company and the Guarantors shall, during the Shelf
Registration Period, deliver to each Holder of Notes covered by any Shelf
Registration Statement, without charge, as many copies of the Prospectus
(including each preliminary Prospectus) included in such Shelf
Registration Statement and any amendment or supplement thereto as such
Holder may reasonably request; and the Company and the Guarantors consent
to the use of the Prospectus or any amendment or supplement thereto by
each of the selling Holders of Notes in connection with the offering and
sale of the Notes covered by the Prospectus or any amendment or
supplement thereto.
(g) The Company and the Guarantors shall furnish to each
Exchanging Dealer that so requests, without charge, at least one copy of
the Exchange Offer Registration Statement and any post-effective
amendment thereto, including financial statements and schedules, any
documents incorporated by reference therein and, if the Exchanging Dealer
so requests in writing, all exhibits thereto.
(h) The Company and the Guarantors shall, during the Exchange
Offer Registration Period, promptly deliver to each Exchanging Dealer,
without charge, as many copies of the Prospectus included in such
Exchange Offer Registration Statement and any amendment or
13
supplement thereto as such Exchanging Dealer may reasonably request for
delivery by such Exchanging Dealer in connection with a sale of Exchange
Notes received by it pursuant to the Exchange Offer; and the Company and
the Guarantors consent to the use of the Prospectus or any amendment or
supplement thereto by any such Exchanging Dealer, as provided in Section
2(e) above.
(i) Each Holder of Notes and each Exchange Dealer agrees by its
acquisition of such Notes by a Holder or Exchange Notes to be sold by
such Exchange Dealer, as the case may be, that upon actual receipt of any
notice from the Company (x) of the happening of any event of the kind
described in paragraph (c)(2)(i), (c)(2)(ii), or (c)(2)(iii) of this
Section 5, or (y) that the Board of Directors of the Company has resolved
that the Company has a bona fide business purpose for doing so, then the
Company may delay the filing or the effectiveness of the Exchange Offer
Registration Statement or the Shelf Registration Statement (if not then
filed or effective, as applicable) and shall not be required to maintain
the effectiveness thereof or amend or supplement the Exchange Offer
Registration Statement or the Shelf Registration Statement, in all cases,
for a period (a "Delay Period") expiring upon the earlier to occur of (i)
in the case of the immediately preceding clause (x), such Holder's or
Exchange Dealer's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 5(m) hereof, or until it is advised in
writing by the Company that the use of the applicable Prospectus may be
resumed, and has received copies of any amendments or supplements
thereto, or (ii) in the case of the immediately preceding clause (y), the
date which is the earlier of (A) the date on which such business purpose
ceases to interfere with the Company's obligations to file or maintain
the effectiveness of any such Registration Statement pursuant to this
Agreement or (B) 60 days after the Company notifies the Holders of such
good faith determination. There shall not be more than 60 days of Delay
Periods during any 12-month period. Each of the Exchange Offer
Registration Period or the Shelf Registration Period, if applicable,
shall be extended by the number of days during any Delay Period. Any
Delay Period will not alter the obligations of the Company and the
Guarantors to pay Liquidated Damages under the circumstances set forth in
Section 6 hereof.
(j) Prior to the Exchange Offer or any other offering of Initial
Notes or Exchange Notes pursuant to any Registration Statement, the
Company and the Guarantors shall register or qualify or cooperate with
the Holders of Notes included therein and their respective counsel in
connection with the registration or qualification of such Initial Notes
or Exchange Notes for offer and sale under the securities or blue sky
laws of such states as any such Holders reasonably request in writing and
do any and all other acts or things necessary or advisable to enable the
offer and sale in such states of the Notes covered by such Registration
Statement; provided, however, that none of the Company or any of the
Guarantors will be required to qualify as a foreign corporation or as a
dealer in securities in any jurisdiction in which it is not then so
qualified, to file any general consent to service of process or to take
any action that would subject it to general service of process in any
such jurisdiction where it is not then so subject or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is
not otherwise so subject.
(k) The Company and the Guarantors shall issue, upon the request
of any Holder of Initial Notes covered by the Shelf Registration
Statement, Exchange Notes, having an aggregate principal amount equal to
the aggregate principal amount of Initial Notes surrendered to the
Company and the Guarantors by such Holder in exchange therefor or being
sold by such Holder; such Exchange Notes to be registered in the name of
such Holder or in the name of the purchaser(s) of such Exchange Notes, as
the case may be; in return, the Initial Notes held by such Holder shall
be surrendered to the Company for cancellation.
(l) The Company and the Guarantors shall cooperate with the
Holders to facilitate the timely preparation and delivery of certificates
representing Initial Notes or Exchange Notes to be sold pursuant to any
Registration Statement free of any restrictive legends and in
denominations of $1,000 or an integral multiple thereof and registered in
such names as Holders may request prior to sales of Initial Notes or
Exchange Notes pursuant to such Registration Statement.
14
(m) Upon the occurrence of any event contemplated by paragraph
(c)(2)(iii) of this Section 5, the Company and the Guarantors shall
promptly prepare and file a post-effective amendment to any Registration
Statement or an amendment or supplement to the related Prospectus or any
other required document so that, as thereafter delivered to purchasers of
the Initial Notes or Exchange Notes included therein, the Prospectus will
not include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading and, in the case
of a Shelf Registration Statement, notify the Holders to suspend use of
the Prospectus as promptly as practicable after the occurrence of such an
event. Notwithstanding the foregoing, the Company and the Guarantors
shall not be required to amend or supplement a Shelf Registration
Statement, any related Prospectus or any document incorporated therein by
reference, for a period not to exceed an aggregate of 30 days in any
calendar year, if the Company determines in its good faith judgment that
the disclosure of such event at such time would have a material adverse
effect on the business, operations, or prospects of the Company and the
Guarantors or the disclosure otherwise related to a pending material
business transaction that has not yet been publicly disclosed.
(n) Not later than the effective date of any such Registration
Statement hereunder, the Company and the Guarantors shall provide a CUSIP
number for the Initial Notes or Exchange Notes, as the case may be,
registered under such Registration Statement, and provide the Trustee
with certificates for such Initial Notes or Exchange Notes, in a form
eligible for deposit with The Depository Trust Company.
(o) The Company and the Guarantors shall use their respective best
efforts to comply with all applicable rules and regulations of the
Commission and shall make generally available to its security holders as
soon as practicable after the effective date of the applicable
Registration Statement an earnings statement meeting the requirements of
Rule 158 under the Securities Act.
(p) The Company and the Guarantors shall cause the Indenture to be
qualified under the Trust Indenture Act not later than the effective date
of the first Registration Statement required by this Agreement, and, in
connection therewith, cooperate with the Trustee and the Holders of
Initial Notes or Exchange Notes to effect such changes to the Indenture
as may be required for such Indenture to be so qualified in accordance
with the terms of the Trust Indenture Act; and to execute, and use its
best efforts to cause the Trustee to execute, all documents that may be
required to effect such changes and all other forms and documents
required to be filed with the Commission to enable such Indenture to be
so qualified in a timely manner.
(q) The Company and the Guarantors may require each Holder of
Notes to be sold pursuant to any Shelf Registration Statement to furnish
to the Company and the Guarantors such information regarding the Holder
and the distribution of such Initial Notes as the Company and the
Guarantors may from time to time reasonably require for inclusion in such
Registration Statement.
(r) The Company and the Guarantors shall, if requested, promptly
incorporate in a Prospectus supplement or post-effective amendment to a
Shelf Registration Statement, such information as the Managing
Underwriters, if any, and Majority Holders reasonably agree should be
included therein, and shall make all required filings of such Prospectus
supplement or post-effective amendment promptly upon notification of the
matters to be incorporated in such Prospectus supplement or
post-effective amendment.
(s) In the case of any Shelf Registration Statement, the Company
and the Guarantors shall enter into such agreements (including
underwriting agreements) and take all other appropriate actions in order
to expedite or to facilitate the registration or the disposition of any
Initial Notes included therein, and in connection therewith, if an
underwriting agreement is entered into, cause the same to contain
indemnification provisions and procedures no less favorable than those
set forth in Section 7 (or such other provisions and procedures
acceptable to the Majority
15
Holders and the Managing Underwriters, if any) with respect to all
parties to be indemnified pursuant to Section 7.
(t) In the case of any Shelf Registration Statement, the Company
and the Guarantors shall:
(i) make reasonably available for inspection by the Holders
of Notes to be registered thereunder, any underwriter
participating in any disposition pursuant to such Shelf
Registration Statement, and any attorney, accountant or other
agent retained by the Holders or any such underwriter all relevant
financial and other records, pertinent corporate documents and
properties of the Company and any of its subsidiaries;
(ii) cause the Company's officers, directors and employees
to supply all relevant information reasonably requested by the
Holders or any such underwriter, attorney, accountant or agent in
connection with any such Registration Statement as is customary
for similar due diligence examinations and make such
representatives of the Company as shall be reasonably requested by
the Initial Purchasers or Managing Underwriters, if any, available
for discussion of any such Registration Statement; provided,
however, that any non-public information that is designated in
writing by the Company, in good faith, as confidential at the time
of delivery of such information shall be kept confidential by the
Holders or any such underwriter, attorney, accountant or agent,
unless such disclosure is made in connection with a court
proceeding or required by law, or such information becomes
available to the public generally or through a third party without
an accompanying obligation of confidentiality other than as a
result of a disclosure of such information by any such Holder,
underwriter, attorney, accountant or agent;
(iii) make such representations and warranties to the
Holders of Notes registered thereunder and the underwriters, if
any, in form, substance and scope as are customarily made by
issuers to underwriters in similar underwritten offerings as may
be reasonably requested by them;
(iv) obtain opinions of counsel to the Company and the
Guarantors and updates thereof (which counsel and opinions (in
form, scope and substance) shall be reasonably satisfactory to the
Managing Underwriters, if any) addressed to each selling Holder
and the underwriters, if any, covering such matters as are
customarily covered in opinions requested in similar underwritten
offerings and such other matters as may be reasonably requested by
such Holders and underwriters;
(v) obtain "cold comfort" letters and updates thereof from
the independent certified public accountants of the Company (and,
if necessary, any other independent certified public accountants
of any subsidiary of the Company or of any business acquired by
the Company for which financial statements and financial data are,
or are required to be, included in the Registration Statement),
addressed to the underwriters, if any, and use reasonable efforts
to have such letter addressed to the selling Holders of Notes
registered thereunder (to the extent consistent with Statement on
Auditing Standards No. 72 ("SAS 72") of the American Institute of
Certified Public Accountants (AICPA)), in customary form and
covering matters of the type customarily covered in "cold comfort"
letters in connection with similar underwritten offerings, or if
the provision of such "cold comfort" letters is not permitted by
SAS 72 or if requested by the Initial Purchasers or their counsel
in lieu of a "cold comfort" letter, an agreed-upon procedures
letter under Statement on Auditing Standards No. 75 of the AICPA,
covering matters requested by the Initial Purchasers or their
counsel; and
(vi) deliver such documents and certificates as may be
reasonably requested by the Majority Holders and the Managing
Underwriters, if any, and customarily
16
delivered in similar offerings, including those to evidence
compliance with Section 5(m) and with any conditions contained in
the underwriting agreement or other agreement entered into by the
Company and the Guarantors.
The foregoing actions set forth in clauses (iii), (iv), (v) and
(vi) of this Section 5(t) shall be performed at (A) the effectiveness of
such Shelf Registration Statement and each post-effective amendment
thereto and (B) each closing under any underwriting or similar agreement
as and to the extent required thereunder.
(u) The Company and the Guarantors shall, in the case of a Shelf
Registration, use its best efforts to cause all Notes to be listed on any
securities exchange or any automated quotation system on which similar
securities issued by the Company and the Guarantors are then listed if
requested by the Majority Holders, to the extent such Notes satisfy
applicable listing requirements.
6. Registration Expenses; Remedies.
(a) The Company and the Guarantors shall bear all expenses
incurred in connection with the performance of their obligations under
Sections 2, 3, 4 and 5 hereof, including without limitation: (i) all
Commission, stock exchange or National Association of Securities Dealers,
Inc. registration and filing fees, (ii) all fees and expenses incurred in
connection with compliance with state securities or blue sky laws
(including reasonable fees and disbursements of counsel for any
underwriters, any Holders or the Market Maker in connection with blue sky
qualification of any of the Notes), (iii) all expenses of any persons in
preparing or assisting in preparing, word processing, printing and
distributing any Registration Statement, any Prospectus, any amendments
or supplements thereto, any underwriting agreements, securities sales
agreements and other documents relating to the performance of and
compliance with this Agreement, (iv) the fees and disbursements of the
Trustee and its counsel, (v) the fees and disbursements of counsel for
the Company and the Guarantors and, in the case of a Shelf Registration
Statement, the fees and disbursements of one counsel for the Holders
(which counsel shall be selected by the Majority Holders and which
counsel may also be counsel for the Initial Purchasers) and, in the case
of an Exchange Offer Registration Statement, the fees and expenses of
counsel to the Initial Purchasers acting in connection therewith and, in
the case of a Market-Making Registration Statement, the expenses of the
Market Maker (including the fees and expenses of counsel to the Market
Maker) (vi) the fees and disbursements of the independent public
accountants of the Company, including the expenses of any special audits
or "cold comfort" letters required by or incident to such performance and
compliance, but excluding fees and expenses of counsel to the
underwriters, the Holders or the Market Maker (other than fees and
expenses set forth in clauses (ii) and (v) above) and underwriting
discounts and commissions and transfer taxes, if any, relating to the
sale or disposition of Notes by a Holder.
(b) If any of the following occurs:
(i) the Company and the Guarantors fail to file the
Exchange Offer Registration Statement on or prior to the Exchange
Offer Filing Deadline or the Shelf Registration Statement on or
prior to the Shelf Filing Deadline, as the case may be, or, if
that day is not a Business Day, then the next day that is a
Business Day;
(ii) the Exchange Offer Registration Statement or the Shelf
Registration Statement, as the case may be, is not declared
effective by the Commission on or prior to the Exchange Offer
Effectiveness Deadline or the Shelf Effectiveness Deadline,
respectively, or, if that day is not a Business Day, then the next
day that is a Business Day;
(iii) the Company and the Guarantors fail to consummate the
Exchange Offer by the Exchange Offer Consummation Deadline; or
17
(iv) the Exchange Offer Registration Statement or the Shelf
Registration Statement, as the case may be, is declared effective
but thereafter ceases to be effective or usable in connection with
resales of Transfer Restricted Securities during the periods
specified in this Agreement (each such event referred to in
clauses (i) through (iv) above, a "Registration Default"),
then the Company and the Guarantors will pay liquidated damages
("Liquidated Damages") to each Holder of Notes, with respect to the first
90-day period immediately following the occurrence of the first
Registration Default in an amount equal to $0.05 per week per $1,000
principal amount of Notes held by such Holder. The amount of the
Liquidated Damages will increase by an additional $0.05 per week per
$1,000 principal amount of Notes with respect to each subsequent 90-day
period until all Registration Defaults have been cured, up to a maximum
amount of Liquidated Damages for all Registration Defaults of $0.50 per
$1,000 principal amount of Notes.
(c) The Company and the Guarantors shall pay all accrued
Liquidated Damages on each Damages Payment Date to the Global Note Holder
by wire transfer of immediately available funds or by federal funds check
and to Holders of Certificated Notes by wire transfer to the accounts
specified by them or by mailing checks to their registered addresses if
no such accounts have been specified.
(d) Following the cure of all Registration Defaults, the accrual
of Liquidated Damages will cease.
(e) Without limiting the remedies available to the Initial
Purchasers and the Holders, the Company and the Guarantors acknowledge
that any failure by them to comply with their obligations under Sections
2, 3 and 4 hereof may result in material irreparable injury to the
Initial Purchasers or the Holders for which there is no adequate remedy
at law, that it will not be possible to measure damages for such injuries
precisely and that, in the event of any such failure, the Initial
Purchasers or any Holder may obtain such relief as may be required to
specifically enforce the Company's and the Guarantors' obligations under
Sections 2, 3 and 4 hereof.
7. Indemnification and Contribution.
(a) In connection with any Registration Statement, the Company and
the Guarantors agree to indemnify and hold harmless each Holder of Notes
covered thereby (including the Initial Purchasers, the Market Maker and,
with respect to any Prospectus delivery as contemplated by Sections 2(e)
and 5(h) hereof, each Exchanging Dealer) the directors, officers,
employees and agents of such Holder and each person who controls such
Holder within the meaning of either the Securities Act or the Exchange
Act, against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the
Securities Act, the Exchange Act or other federal or state statutory law
or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of
a material fact contained in such Registration Statement as originally
filed or in any amendment thereof, or in any preliminary Prospectus or
Prospectus, or in any amendment thereof or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein (in the case of any Prospectus, in light of
the circumstances under which they were made) not misleading, and agrees
to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage or liability (or
action in respect thereof); provided, however, that the Company and the
Guarantors will not be liable in any case
18
to the extent that any such loss, claim, damage or liability arises out
of or is based upon any such untrue statement or alleged untrue statement
or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company and the
Guarantors by or on behalf of any indemnified party specifically for
inclusion therein; provided further, however, that the Company and the
Guarantors will not be liable in any case with respect to any untrue
statement or omission or alleged untrue statement or omission made in any
preliminary Prospectus or Prospectus, or in any amendment thereof or
supplement thereto to the extent that any such loss, claim, damage or
liability (or action in respect thereof) resulted from the fact that any
indemnified party sold Notes to a person to whom there was not sent or
given, at or prior to the written confirmation of such sale, a copy of
the Prospectus as then amended or supplemented, if the Company and the
Guarantors had previously complied with the provisions of Section 5(c)(2)
and 5(f) or 5(h) hereof and if the untrue statement contained in or
omission from such preliminary Prospectus or Prospectus was corrected in
the Prospectus as then amended or supplemented. This indemnity agreement
will be in addition to any liability that the Company and the Guarantors
may otherwise have.
The Company and the Guarantors also agree to indemnify or
contribute to Losses of, as provided in Section 7(d) hereof, any
underwriters of Notes registered under a Shelf Registration Statement,
their employees, officers, directors and agents and each person who
controls such underwriters on the same basis as that of the
indemnification of the Initial Purchasers and the selling Holders
provided in this Section 7(a) and shall, if requested by any Holder,
enter into an underwriting agreement reflecting such agreement, as
provided in Section 5(s) hereof.
(b) Each Holder of Notes covered by a Registration Statement
(including the Initial Purchasers, the Market Maker and, with respect to
any Prospectus delivery as contemplated by Sections 2(e) and 5(h) hereof,
each Exchanging Dealer) severally agrees to indemnify and hold harmless
(i) the Company and the Guarantors, (ii) each of the directors of the
Company or any of the Guarantors, (iii) each of the officers of the
Company or any of the Guarantors who signs such Registration Statement
and (iv) each Person who controls the Company or any of the Guarantors
within the meaning of either the Securities Act or the Exchange Act to
the same extent as the foregoing indemnity from the Company and the
Guarantors to each such Holder, but only with respect to written
information furnished to the Company and the Guarantors by or on behalf
of such Holder specifically for inclusion in the documents referred to in
the foregoing indemnity. This indemnity agreement will be in addition to
any liability that any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of any claim or the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 7, notify the
indemnifying party in writing of the claim or commencement of that
action; but the failure so to notify the indemnifying party (i) will not
relieve the indemnifying party from liability under paragraph (a) or (b)
above unless and to the extent it has been materially prejudiced by such
failure and (ii) will not, in any event, relieve the indemnifying party
from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel (including local
counsel) of the indemnifying party's choice at the indemnifying party's
expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate
counsel retained by the indemnified party or parties except as set forth
below); provided, however, that such counsel shall be reasonably
satisfactory to the indemnified party. After notice from the indemnifying
party to the indemnified party of its election to assume the defense of
such claim or action, the indemnifying party shall not be liable to the
indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation; provided,
however, that any indemnified party shall have the right to employ
separate counsel in any such action and to participate in the defense
thereof, but the fees and expenses of such counsel shall be at the
expense of the indemnified party unless (i) the employment of such
counsel has been specifically authorized by the indemnifying party in
writing, or (ii) such indemnified party shall have been advised by such
counsel that there may one or more legal defenses available to it that
are different from or additional to those available to the indemnifying
party and in the reasonable judgment of such counsel it is advisable for
such indemnified party to employ separate counsel or (iii) the
indemnifying party has failed to
19
assume the defense of such action and employ counsel reasonably
satisfactory to the indemnified party, in which case, if such indemnified
party notifies the indemnifying party in writing that it elects to employ
separate counsel at the expense of the indemnifying party. It is
understood that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm (in addition
to any local counsel) at any time for all such indemnified parties and
that all such fees and expenses shall be reimbursed as they are incurred.
An indemnifying party will not, (i) without the prior written consent of
the indemnified parties (which consent shall not be unnecessarily
withheld) settle or compromise or consent to the entry of any judgment
with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action,
suit or proceeding or (ii) be liable for any settlement of any such
action effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with the consent of the
indemnifying party or if there be a final judgment of the plaintiff in
any such action, the indemnifying party agrees to indemnify and hold
harmless any indemnified party from and against any loss or liability by
reason of such settlement or judgment.
(d) In the event that the indemnity provided in paragraph (a) or
(b) of this Section 7 is unavailable to or insufficient to hold harmless
an indemnified party for any reason, then each applicable indemnifying
party, in lieu of indemnifying such indemnified party, shall have a joint
and several obligation to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending the same)
(collectively "Losses") to which such indemnified party may be subject in
such proportion as is appropriate to reflect the relative benefits
received by such indemnifying party, on the one hand, and such
indemnified party, on the other hand, from the Initial Placement and the
Registration Statement that resulted in such Losses; provided, however,
that in no case shall the Initial Purchasers or any subsequent Holder of
any Note be responsible, in the aggregate, for any amount in excess of
the purchase discount or commission applicable to such Note, or in the
case of an Exchange Note, applicable to the Note that was exchangeable
into such Exchange Note, nor shall any underwriter be responsible for any
amount in excess of the underwriting discount or commission applicable to
the Notes purchased by such underwriter under the Registration Statement
that resulted in such Losses. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the
indemnifying party and the indemnified party shall contribute in such
proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of such indemnifying party, on the one hand,
and such indemnified party, on the other hand, in connection with the
statements or omissions that resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Company and
the Guarantors shall be deemed to be equal to the total net proceeds from
the Initial Placement (before deducting expenses). Benefits received by
the Initial Purchasers shall be deemed to be equal to the total purchase
discounts and commissions, and benefits received by any other Holders
shall be deemed to be equal to the value of receiving Initial Notes or
Exchange Notes, as applicable, registered under the Securities Act.
Benefits received by any Underwriter shall be deemed to be equal to the
total underwriting discounts and commissions, as set forth on the cover
page of the Prospectus forming a part of the Registration Statement that
resulted in such Losses. Relative fault shall be determined by reference
to whether any alleged untrue statement or omission relates to
information provided by the indemnifying party, on the one hand, or by
the indemnified party, on the other hand. The parties agree that it would
not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation that did not take account of
the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. For purposes of this Section 7,
each person who controls a Holder within the meaning of either the
Securities Act or the Exchange Act and each director, officer,
20
employee and agent of such Holder shall have the same rights to
contribution as such Holder, and each person who controls the Company or
any of the Guarantors within the meaning of either the Securities Act or
the Exchange Act, each officer of the Company or any of the Guarantors
who shall have signed the Registration Statement and each director of the
Company or any of the Guarantors shall have the same rights to
contribution as the Company and the Guarantors, subject in each case to
the applicable terms and conditions of this paragraph (d).
(e) The provisions of this Section 7 will remain in full force and
effect, regardless of any investigation made by or on behalf of any
Holder, the Company or any of the Guarantors or any of their respective
officers, directors or controlling persons referred to in Section 7
hereof, and will survive the sale by a Holder of Notes covered by a
Registration Statement.
8. Rule 144A.
The Company and the Guarantors hereby agree with each Holder, for so long
as any Transfer Restricted Securities remain outstanding, to make available to
any Holder or beneficial owner of Transfer Restricted Securities in connection
with any sale thereof and any prospective purchaser of such Transfer Restricted
Securities from such Holder or beneficial owner, the information required by
Rule 144A(d)(4) under the Securities Act, if applicable, in order to permit
resales of such Transfer Restricted Securities pursuant to Rule 144A.
9. Participation In Underwritten Registrations.
No Holder may participate in any Underwritten Registration hereunder
unless such Holder (a) agrees to sell such Holder's Transfer Restricted
Securities on the basis provided in any underwriting arrangements approved by
the Persons entitled hereunder to approve such arrangements and (b) completes
and executes all reasonable questionnaires, powers of attorney, indemnities,
underwriting agreements, lock-up letters and other documents required under the
terms of such underwriting arrangements.
10. Selection Of Underwriters.
The Holders of Transfer Restricted Securities covered by the Shelf
Registration Statement who desire to do so may sell such Transfer Restricted
Securities in an Underwritten Offering. In any such Underwritten Offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be selected by the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities included in
such offering; provided that such investment bankers and managers must be
reasonably satisfactory to the Company and the Guarantors.
11. Miscellaneous.
(a) No Inconsistent Agreement. Neither the Company nor any of the
Guarantors has, as of the date hereof, entered into, nor shall any of
them, on or after the date hereof, enter into, any agreement that
conflicts with the rights granted to the Holders herein or otherwise
conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement,
except for Section 3 and the following sentence, including the provisions
of this sentence, may not be amended, qualified, modified or
supplemented, and waivers or consents to departures from the provisions
of this Agreement (with the exception of Section 3 and the following
sentence) may not be given, unless the Company and the Guarantors have
obtained the written consent of the Holders of at least a majority of the
then outstanding aggregate principal amount of Notes (or, after the
expiration of any Exchange Offer in accordance with Section 2 hereof, of
Exchange Notes); provided that with respect to any matter that directly
or indirectly affects the rights of the Initial Purchasers hereunder, the
Company and the Guarantors shall obtain the written consent of the
21
Initial Purchasers. The provisions of Section 3 of this Agreement and the
provisions of this sentence may not be amended, qualified, modified or
supplemented, and waivers or consents to departures from the provisions
of Section 3 or this sentence may not be given, unless the Company and
the Guarantors have obtained the written consent of the Market Maker.
Notwithstanding the foregoing (except the foregoing proviso), a waiver or
consent to departure from the provisions hereof with respect to a matter
that relates exclusively to the rights of Holders whose Initial Notes or
Exchange Notes are being sold pursuant to a Registration Statement and
that does not directly or indirectly affect the rights of other Holders
may be given by the Majority Holders, determined on the basis of Notes
being sold rather than registered under such Registration Statement.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery,
first-class mail, telex, telecopier, or air courier guaranteeing
overnight delivery:
(i) if to a Holder, at the most current address given by
such Holder to the Company in accordance with the provisions of
this Section 11(c), which address initially is, with respect to
each Holder, the address of such Holder maintained by the Trustee,
with a copy in like manner to Xxxxxx Brothers Inc.;
(ii) if to the Initial Purchasers, at Xxxxxx Brothers Inc.,
000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxxxx
Xxxxxxxxxx, Fax: (000) 000-0000, with a copy to Weil, Gotshal &
Xxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Xxx
Xxxxxx, Fax: (000) 000-0000;
(iii) if to the Company and the Guarantors, at Hanger
Orthopedic Group, Inc., Xxx Xxxxxxxx Xxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxxx, XX 00000, Attention: Xxxx X. Xxxxx, Fax: (000) 000-0000,
with a copy to Xxxxx & Lardner, 0000 X Xxxxxx, X.X., Xxxxx 000,
Xxxxxxxxxx, XX 00000-0000, Attention: Xxx X. Xxxxxxxx, Esq., Fax:
(000) 000-0000; and
(iv) if to the Market Maker, at X.X. Xxxxxx Securities
Inc., 000 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000, Attention:
High Yield Capital Markets, Fax: (000) 000-0000, with a copy to
JPMorgan Chase Bank, Legal Department, 000 Xxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxxx X. Xxxxxxx, Fax:
(000) 000-0000.
All such notices and communications shall be deemed to have been
duly given when received. The Initial Purchasers, the Company and the
Guarantors, and the Market Maker, by notice to the other parties may
designate additional or different addresses for subsequent notices or
communications.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including, without the need for an express assignment or any
consent by the Company and the Guarantors thereto, subsequent Holders of
Initial Notes and/or Exchange Notes. The Company and the Guarantors
hereby agree to extend the benefits of this Agreement to any Holder of
Initial Notes and/or Exchange Notes and any such Holder may specifically
enforce the provisions of this Agreement as if an original party hereto.
(e) 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.
(f) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning
hereof.
22
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(h) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any respect
for any reason, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions hereof
shall not be in any way impaired or affected thereby, it being intended
that all of the rights and privileges of the parties shall be enforceable
to the fullest extent permitted by law.
(i) Initial Notes Held by the Company, Etc. Whenever the consent
or approval of Holders of a specified percentage of the aggregate
principal amount of Initial Notes or Exchange Notes is required
hereunder, Initial Notes or Exchange Notes, as applicable, held by the
Company and the Guarantors or their Affiliates (other than subsequent
Holders of Initial Notes or Exchange Notes if such subsequent Holders are
deemed to be Affiliates solely by reason of their holdings of such
Initial Notes or Exchange Notes) shall not be counted in determining
whether such consent or approval was given by the Holders of such
required percentage.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
23
Please confirm that the foregoing correctly sets forth the agreements
under the Registration Rights Agreement among the Company, the Guarantors and
the Initial Purchasers.
Very truly yours,
HANGER ORTHOPEDIC GROUP, INC.
By: /s/ Xxxxxx X. XxXxxxx
------------------------------------
Name: Xxxxxx X. XxXxxxx
Title: Executive Vice President and
Chief Financial Officer
A.D. XXXXX COMPANY
ADVANCED ORTHOPEDIC TECHNOLOGIES, INC.
ADVANCED ORTHOPEDIC TECHNOLOGIES
\ (XXXXXXX), INC.
DOBI-SYMPLEX, INC.
X.X. XXXXXXX-XXXXXXX CO., INC.
XXXXXX XXXXXX & SON ORTHOTICS &
PROSTHETICS, INC.
XXXXX X. XXXXXX & SON, INC.
HANGER PROSTHETICS & ORTHOTICS, INC.
HANGER PROSTHETICS & ORTHOTICS EAST, INC.
HANGER PROSTHETICS & ORTHOTICS HOLDINGS,
INC.
HANGER PROSTHETICS & ORTHOTICS WEST, INC.
HPO, INC.
MEADOWBROOK ORTHOPEDICS, INC.
MEDICAL ARTS O&P SERVICES, INC.
OPNET, INC.
ORTHOTIC & PROSTHETIC REHABILITATION
TECHNOLOGIES, INC.
PROGRESSIVE ORTHOPEDIC
SOUTHERN PROSTHETIC SUPPLY, INC.
UNIVERSITY ORTHOTIC & PROSTHETIC
CONSULTANTS, LTD.
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President, Secretary and
Treasurer
24
The foregoing Agreement is hereby
accepted as of the date first above written.
XXXXXX BROTHERS INC.
By:
------------------------------
Name:
Title:
For itself and as representative of the Initial Purchasers.
ANNEX A
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of Exchange Notes received in exchange for Notes where such Notes
were acquired by such broker-dealer as a result of market-making activities or
other trading activities. The Company has agreed that, starting on the
Expiration Date (as defined herein) and ending on the close of business one year
after the Expiration Date, it will make this Prospectus available to any
broker-dealer for use in connection with any such resale. See "Plan of
Distribution."
ANNEX B
Each broker-dealer that receives Exchange Notes for its own account in
exchange for Notes, where such Notes were acquired by such broker-dealer as a
result of market-making activities or other trading activities, must acknowledge
that it will deliver a prospectus in connection with any resale of such Exchange
Notes. See "Plan of Distribution."
ANNEX C
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Notes received in
exchange for Notes where such Notes were acquired as a result of market-making
activities or other trading activities. The Company has agreed that, starting on
the Expiration Date and ending on the close of business one year after the
Expiration Date, it will make this Prospectus, as amended or supplemented,
available to any broker-dealer for use in connection with any such resale. In
addition, until such date all dealers effecting transactions in the Exchange
Notes may be required to deliver a prospectus.
ANNEX D
If the undersigned is a broker-dealer that will receive Exchange Notes
for its own account in exchange for Notes, it represents that the Notes to be
exchanged for the Exchange Notes were acquired by it as a result of
market-making activities or other trading activities and acknowledges that it
will deliver a prospectus in connection with any resale of such Exchange Notes;
however, by so acknowledging and by delivering a prospectus, the undersigned
will not be deemed to admit that it is an "underwriter" within the meaning of
the Securities Act.
