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Exhibit 10.19
Execution Copy
PTC INTERNATIONAL FINANCE II S.A.
EURO 200,000,000 10 7/8% SENIOR SUBORDINATED GUARANTEED NOTES DUE 2008
REGISTRATION RIGHTS AGREEMENT
May 8, 2001
To: Deutsche Bank AG London
Winchester House
0 Xxxxx Xxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Dresdner Bank AG London Branch
Xxxxxxxxx Xxxxx
0 Xxxx Xxxx
Xxxxxx
XX0X 0XX
Ladies and Gentlemen:
PTC International Finance II S.A., a Luxembourg corporation with
limited liability (the "Issuer"), proposes to issue and sell to you (the
"Initial Purchasers"), upon the terms set forth in a purchase agreement dated
May 2, 2001 (the "Purchase Agreement") among the Initial Purchasers, the Issuer
and Polska Telefonia Cyfrowa Sp. z o.o. (the "Company"), its Euro 200,000,000 10
7/8% Senior Subordinated Guaranteed Notes due 2008 (along with the Parent
Guarantee (as defined in the Indenture) the "Securities"), unconditionally
guaranteed by the Company (the "Initial Placement"). As an inducement to the
Initial Purchasers to enter into the Purchase Agreement and in satisfaction of a
condition to your obligations thereunder, the Issuer and the Company agree with
you, (i) for your benefit and the benefit of any other Initial Purchasers and
(ii) for the benefit of the holders from time to time of the Transfer Restricted
Securities (as defined herein) (including, if and for so long as an Initial
Purchaser holds Transfer Restricted Securities, such Initial Purchaser) (each of
the foregoing holders, 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:
"Act" means the U.S. Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
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"Affiliate" of any specified person means any other person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such specified person. For purposes of this definition, control of
a person means the power, direct or indirect, to direct or cause the direction
of the management and policies of such person whether by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authorized Agent" has the meaning set forth in Section 7(h) hereof.
"Commission" means the U.S. Securities and Exchange Commission.
"Designated Counsel" has the meaning set forth in Section 5 hereof.
"Exchange Act" means the U.S. Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Exchange Offer Registration Period" means the 180-day period
following the consummation of the Registered Exchange Offer, exclusive of any
period during which any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement.
"Exchange Offer Registration Statement" means a registration statement
of the Issuer on an appropriate form under the Act with respect to the
Registered Exchange Offer, all amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.
"Exchanging Dealer" means any Holder (which may include the Initial
Purchasers) which is a broker-dealer, electing to exchange in the Registered
Exchange Offer Securities acquired for its own account as a result of
market-making activities or other trading activities, for New Securities.
"Final Offering Memorandum" has the meaning set forth in the Purchase
Agreement.
"Holder" has the meaning set forth in the preamble hereto.
"Indenture" means the Indenture relating to the Securities, dated as
of May 8, 2001 and among the Issuer, the Company and State Street Bank and Trust
Company, as trustee, as the same may be amended from time to time in accordance
with the terms thereof.
"Initial Placement" has the meaning set forth in the preamble hereto.
"Initial Purchasers" has the meaning set forth in the preamble hereto.
"Losses" has the meaning set forth in Section 6(d) hereof.
"Majority Holders" means the Holders of a majority of the aggregate
principal amount of securities eligible to be registered under a Shelf
Registration Statement pursuant to this Agreement.
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"Managing Underwriters" means the investment banker or investment
bankers and manager or managers, appointed by the Majority Holders, that shall
administer an underwritten offering, if any.
"New Securities" means debt securities of the Company identical in all
material respects to the Securities (except that the cash interest and interest
rate step-up provisions and the transfer restrictions will be modified or
eliminated, as appropriate), to be issued under the Indenture.
"Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Securities or the New Securities covered by such
Registration Statement, and all amendments and supplements to the Prospectus,
including post-effective amendments.
"Registered Exchange Offer" means the proposed offer to the Holders to
issue and deliver to such Holders, in exchange for the Securities, a like
principal amount of the New Securities.
"Registration Statement" means any Exchange Offer Registration
Statement or Shelf Registration Statement filed with the Commission that covers
any of the Securities or the New Securities 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" has the meaning set forth in the preamble hereto.
"Shelf Registration" means a registration effected pursuant to Section
3 hereof.
"Shelf Registration Period" has the meaning set forth in Section 3(b)
hereof.
"Shelf Registration Statement" means a "shelf" registration statement
of the Company pursuant to the provisions of Section 3 hereof which covers some
or all of the Securities or New Securities, as applicable, on an appropriate
form under Rule 415 under the Act, or any similar rule that may be adopted by
the Commission, amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
"Transfer Restricted Security" means (i) each Security until the date
on which such Security has been exchanged by a person other than a broker-dealer
for a New Security in the Registered Exchange Offer, (ii) each New Security that
is received by a broker-dealer in the Registered Exchange Offer, until the date
on which such New Security is sold to a purchaser, (iii) in the case of a
Security registered on a Shelf Registration Statement, such security until the
date on which such security has been disposed of in accordance with the Shelf
Registration Statement; provided, however, that in the case of each of (i), (ii)
and (iii) above, such Security or New Security shall cease to be a Transfer
Restricted Security on the
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date (if such date occurs prior to the event referred to in (i), (ii)
and (iii) above) on which such security is sold in reliance on Rule 144 under
the Act or is saleable pursuant to Rule 144(k) under the Act.
"Trustee" means the trustee with respect to the Securities under the
Indenture.
"underwriter" means any underwriter of Securities in connection with
an offering thereof under a Shelf Registration Statement.
2. Registered Exchange Offer; Resales of New Securities by Exchanging
Dealers; Private Exchange. (a) The Issuer and the Company shall prepare and, not
later than 90 days following the original issuance date of the Securities, shall
file with the Commission the Exchange Offer Registration Statement with respect
to the Registered Exchange Offer. The Issuer and the Company shall take all
reasonable steps to cause the Exchange Offer Registration Statement to become
effective under the Act within 150 days after the date of original issuance of
the Securities. The Issuer and the Company shall take all reasonable steps to
consummate the Registered Exchange Offer within 180 days after the date of
original issuance of the Securities.
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Issuer and the Company shall promptly commence the Registered
Exchange Offer, it being the objective of such Registered Exchange Offer to
enable each Holder electing to exchange Securities for New Securities (assuming
that such Holder is not an affiliate of the Company within the meaning of the
Act, acquires the New Securities in the ordinary course of such Holder's
business and has no arrangements with any person to participate in the
distribution of the New Securities) to trade such New Securities from and after
their receipt without any limitations or restrictions under the Act and without
material restrictions under the securities laws of a substantial proportion of
the several states of the United States.
(c) In connection with the Registered Exchange Offer, the Issuer and
the Company shall:
(i) mail to each Holder a copy of the Prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter
of transmittal and related documents;
(ii) keep the Registered Exchange Offer open for not less than 30 days
after the date notice thereof is mailed to the Holders (or longer if
required by applicable law);
(iii) utilize the services of a depositary for the Registered Exchange
Offer with an address in the Borough of Manhattan, The City of New York;
and
(iv) comply in all respects with all laws of the United States,
Luxembourg and Poland applicable to the Registered Exchange Offer.
(d) As soon as practicable after the close of the Registered Exchange
Offer, the Issuer shall:
(i) accept for exchange all Securities properly tendered and not
validly withdrawn pursuant to the Registered Exchange Offer;
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(ii) deliver to the Trustee for cancellation all Securities so
accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and deliver to each
Holder of Securities, New Securities equal in principal amount to the
Securities of such Holder so accepted for exchange.
(e) The Initial Purchasers, the Issuer and the Company acknowledge
that, pursuant to interpretations by the Commission's staff of Section 5 of the
Act, and in the absence of an applicable exemption therefrom, each Exchanging
Dealer is required to deliver a Prospectus in connection with a sale of any New
Securities received by such Exchanging Dealer pursuant to the Registered
Exchange Offer in exchange for Securities acquired for its own account as a
result of market-making activities or other trading activities. Accordingly, the
Issuer and the Company shall:
(i) include the information set forth in Annex A hereto on the cover
of the Exchange Offer Registration Statement, in Annex B hereto in the
forepart of the Exchange Offer Registration Statement in a section setting
forth details of the Registered Exchange Offer, and in Annex C hereto in
the underwriting or plan of distribution section of the Prospectus forming
a part of the Exchange Offer Registration Statement, and include the
information set forth in Annex D hereto in the Letter of Transmittal
delivered pursuant to the Registered Exchange Offer; and
(ii) take all reasonable steps to keep the Exchange Offer Registration
Statement continuously effective under the Act during the Exchange Offer
Registration Period for delivery of the Prospectus contained therein by
Exchanging Dealers in connection with sales of New Securities received
pursuant to the Registered Exchange Offer, as contemplated by Section 4(h)
below.
The Issuer and the Company shall be deemed not to have taken all
reasonable steps to keep the Exchange Offer Registration Statement effective
during the Exchange Offer Registration Period if they voluntarily take any
action that would result in Exchanging Dealers holding New Securities received
in the Registered Exchange Offer being unable to offer and sell such securities
during that period, unless (x) such action is required by applicable law or (y)
such action is taken by the Issuer or the Company in good faith and for valid
business reasons (not including avoidance of the Issuer's or the Company's
obligations hereunder), including the acquisition or divestiture of assets, so
long as the Issuer and the Company promptly thereafter comply with the
requirements of Section 4(k), if applicable.
(f) In the event that any Initial Purchaser determines that it is not
eligible to participate in the Registered Exchange Offer with respect to the
exchange of Securities constituting any portion of an unsold allotment, at the
request of such Initial Purchaser, the Issuer and the Company shall as soon as
possible issue and deliver to such Initial Purchaser, for distribution pursuant
to a Shelf Registration Statement as contemplated by Section 3 hereof, or to the
party purchasing New Securities registered under such Shelf Registration
Statement, in exchange for such Securities, a like principal amount of New
Securities. The Issuer and the Company shall seek to cause the CUSIP Service
Bureau to issue the same CUSIP number for such New Securities as for New
Securities issued pursuant to the Registered Exchange Offer.
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3. Shelf Registration. If, (i) because of any change in law or
applicable interpretations thereof by the Commission's staff, the Issuer
determines upon advice of outside counsel that it is not permitted to effect the
Registered Exchange Offer as contemplated by Section 2 hereof or (ii) if for any
other reason the Registered Exchange Offer is not consummated within 180 days
after the date of original issuance of the Securities, or (iii) if any Holder
(other than an Initial Purchaser) is not eligible under U.S. state or federal
securities laws to participate in the Registered Exchange Offer (other than
because such Holder is unable or unwilling to make the representation set forth
in Rider B to Annex D hereto) or (iv) any Initial Purchaser that holds any
Securities constituting any portion of an unsold allotment or otherwise acquired
by such Initial Purchaser in connection with the Initial Placement (or any New
Securities issued in exchange therefor in the Registered Exchange Offer to such
Initial Purchaser) so requests (it being understood that, for purposes of this
Section 3, (x) the requirement that an Initial Purchaser deliver a Prospectus
containing the information required by Items 507 and/or 508 of Regulation S-K
under the Act in connection with sales of New Securities acquired in exchange
for such Securities shall result in such New Securities being not "freely
tradeable" but (y) the requirement that an Exchanging Dealer deliver a
Prospectus in connection with sales of New Securities acquired in the Registered
Exchange Offer in exchange for Securities acquired as a result of market-making
activities or other trading activities shall not result in such New Securities
being not "freely tradeable"), the following provisions shall apply:
(a) The Issuer and the Company shall as promptly as practicable (but
in no event more than 30 days after so required or requested pursuant to this
Section 3), file with the Commission and thereafter shall take all reasonable
steps to cause to be declared effective under the Act by the 180th day after the
original issuance of the Securities a Shelf Registration Statement relating to
the offer and sale of the Securities or the New Securities, as applicable, by
the Holders from time to time in accordance with the methods of distribution
elected by such Holders and set forth in such Shelf Registration Statement;
provided, that with respect to New Securities received by an Initial Purchaser
in exchange for Securities constituting any portion of an unsold allotment, the
Issuer and the Company may, if permitted by current interpretations by the
Commission's staff, file a post-effective amendment to the Exchange Offer
Registration Statement containing the information required by Regulation S-K
Items 507 and/or 508, as applicable, in satisfaction of their 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;
provided, further, that the Company and the Issuer shall not be required to file
more than one Shelf Registration Statement pursuant to this Agreement.
(b) The Issuer and the Company shall take all reasonable steps to keep
the Shelf Registration Statement continuously effective in order to permit the
Prospectus forming part thereof to be usable by Holders for a period from the
date of its effectiveness until (i) two years from the Issue Date, (ii) if such
Shelf Registration Statement is filed at the request of an Initial Purchaser,
one year from the Issue Date or (iii) if applicable, such shorter period that
will terminate when all the Securities or New Securities, 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 Issuer and the Company shall be deemed not to have
taken all reasonable steps to keep the Shelf Registration Statement effective
during the requisite period if either of them voluntarily takes any action that
would result in Holders of securities covered thereby not being able to offer
and sell such securities during that period, unless (i) such action is required
by applicable law
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or (ii) such action is taken by the Company in good faith and for valid
business reasons (not including avoidance of the Issuer's or the Company's
obligations hereunder), including the acquisition or divestiture of assets, so
long as the Issuer and the Company promptly thereafter comply with the
requirements of Section 4(k) hereof, if applicable.
(c) During any 365-day period, the Issuer and the Company may suspend
the availability of a Shelf Registration Statement and the use of the related
Prospectus, as provided in Section 4(c)(2)(iii) and Section 4(k) hereof, for up
to two periods of up to 45 consecutive days (except for the consecutive 45-day
period immediately prior to maturity of the Notes), but no more than an
aggregate 60 days during any 365-day period, if any event shall occur as a
result of which it shall be necessary, in the good faith determination of the
Management Board of the Company, to amend the Shelf Registration Statement or
amend or supplement any prospectus or prospectus supplement thereunder in order
that each such document not include any untrue statement of fact or omit to
state a material fact necessary to make the statements therein not misleading in
light of the circumstances under which they were made.
4. Registration Procedures. In connection with any Shelf Registration
Statement and, to the extent applicable, any Exchange Offer Registration
Statement, the following provisions shall apply:
(a) The Issuer and the Company shall furnish to you, prior to the
filing thereof with the Commission, a copy of any Shelf Registration Statement
and any Exchange Offer Registration Statement, and each amendment thereof and
each amendment or supplement, if any, to the Prospectus included therein and
shall use its reasonable best efforts to reflect in each such document, when so
filed with the Commission, such comments as you reasonably and timely may
propose.
(b) The Issuer and the Company shall ensure that (i) any Registration
Statement and any amendment thereto and any Prospectus forming part thereof and
any amendment or supplement thereto complies in all material respects with the
Act and the rules and regulations thereunder, (ii) any Registration Statement
and any amendment thereto does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading and
(iii) any Prospectus forming part of any Registration Statement, and any
amendment or supplement to such Prospectus, does not include an untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements, in the light of the circumstances under which they were made,
not misleading.
(c) (1) The Issuer and the Company shall advise you and, in the case
of a Shelf Registration Statement, the Holders of securities covered thereby,
and, if requested by you or any such Holder, confirm such advice in writing:
(i) when a Registration Statement and any amendment thereto has been
filed with the Commission and when the Registration Statement or any
post-effective amendment thereto has become effective; and
(ii) of any request by the Commission for amendments or supplements to
the Registration Statement or the Prospectus included therein or for
additional information.
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(2) The Issuer and the Company shall advise you and, in the case of a
Shelf Registration Statement, the Holders of securities covered thereby, and, in
the case of an Exchange Offer Registration Statement, any Exchanging Dealer
which has provided in writing to the Issuer or the Company a telephone or
facsimile number and address for notices, and, if requested by you 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 Issuer or the Company of any notification
with respect to the suspension of the qualification of the securities
included therein for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and
(iii) of the 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 statements therein are not misleading and do not omit to state a
material fact required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not 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 Issuer and the Company shall take all reasonable steps to
obtain the withdrawal of any order suspending the effectiveness of any
Registration Statement at the earliest possible time.
(e) The Issuer and the Company shall furnish to each Holder of
securities included within the coverage of any Shelf Registration Statement,
without charge, at least one copy of such Shelf Registration Statement and any
post-effective amendment thereto, including financial statements and schedules,
and, if the Holder so requests in writing, all exhibits (including those
incorporated by reference).
(f) The Issuer and the Company shall, during the applicable Shelf
Registration Period, deliver to each Holder of Securities registered pursuant to
any Shelf Registration Statement, without charge, as many copies of the
Prospectus (including preliminary Prospectus) included in such Shelf
Registration Statement and any amendment or supplement thereto as such Holder
may reasonably request; and each of the Issuer and the Company consents to the
use of such Prospectus or any amendment or supplement thereto by each of the
Holders of Transfer Restricted Securities in connection with the offering and
sale of the Securities covered by such Prospectus or any amendment or supplement
thereto.
(g) The Issuer and the Company shall furnish to each Exchanging Dealer
which so requests, without charge, at least one copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto, including
financial statements and schedules, any documents incorporated by reference
therein, and, if the Exchanging Dealer so requests in writing, all exhibits
(including those incorporated by reference).
(h) The Issuer and the Company shall, during the Exchange Offer
Registration Period, promptly deliver to each Exchanging Dealer, without charge,
as many
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copies of the Prospectus included in such Exchange Offer Registration Statement
and any amendment or supplement thereto as such Exchanging Dealer may reasonably
request for delivery by such Exchanging Dealer in connection with a sale of New
Securities received by it pursuant to the Registered Exchange Offer; and each of
the Issuer and the Company consents to the use of such Prospectus or any
amendment or supplement thereto by any such Exchanging Dealer in connection with
the offering and sale of the New Securities covered by such Prospectus or any
amendment or supplement thereto, as aforesaid.
(i) The Issuer and the Company shall register or qualify or cooperate
with the Exchanging Dealers that are holders of New Securities covered by the
Prospectus contemplated by Section 2(e) hereof and with the Holders of
Securities registered on any Shelf Registration Statement and their Designated
Counsel in connection with the registration or qualification of such securities
for offer and sale under the securities or blue sky laws of such jurisdictions
in the United 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 jurisdictions of the securities covered by such Registration
Statement or Prospectus, as the case may be; provided, however, that neither the
Issuer nor the Company will be required to qualify generally to do business in
any jurisdiction where it is not then so qualified or to take any action which
would subject it to general service of process or to taxation in any such
jurisdiction where it is not then so subject.
(j) The Issuer and the Company shall cooperate with the Holders of
Securities to facilitate the timely preparation and delivery of certificates
representing Securities or New Securities, as the case may be, to be sold
pursuant to any Registration Statement free of any restrictive legends and in
such denominations (subject only to the provisions of the Indenture regarding
minimum denominations) and registered in such names as Holders may request prior
to sales of securities pursuant to such Registration Statement.
(k) Upon the occurrence of any event contemplated by paragraph
(c)(2)(iii) above, the Issuer and the Company shall promptly prepare a
post-effective amendment to any Registration Statement or an amendment or
supplement to the related Prospectus or file any other required document so
that, as thereafter delivered to purchasers of the Securities or New Securities,
as the case may be, included therein, the Prospectus will not include an untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading. If the Issuer and the Company shall give any notice
to suspend the disposition of New Securities pursuant to a Shelf Registration
Statement as a result of the happening of any event or the discovery of any
facts, each of the kind described in Section (c)(2)(iii) hereof, the Issuer and
the Company shall be deemed to have used their best efforts to keep the Shelf
Registration Statement effective during such period of suspension; provided that
the Issuer and the Company shall use their best efforts to file and have
declared effective (if an amendment) as soon as practicable an amendment or
supplement to the Shelf Registration Statement and shall extend the period
during which the Registration Statement shall be maintained effective pursuant
to this Agreement by the number of days during the period from and including the
date of the giving of such notice to and including the date when the Holders
shall have received copies of the supplemented or amended Prospectus necessary
to resume such dispositions.
(1) Not later than the effective date of any such Registration
Statement hereunder, the Issuer and the Company shall provide a CUSIP, CINS,
Common Code, and/or ISIN number, as the case may be, for the Securities or New
Securities, as the case may be,
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registered under such Registration Statement, and provide the applicable trustee
with printed certificates for such Securities or New Securities, in a form
eligible for deposit with The Depository Trust Company, Euroclear and/or
Clearstream Banking, societe anonyme, Luxembourg.
(m) The Issuer and the Company shall take all reasonable steps to
comply with all applicable rules and regulations of the Commission and shall
make generally available to Holders as soon as practicable after the effective
date of the applicable Registration Statement an earnings statement (which need
not be audited) satisfying the provisions of Section 11(a) under the Act.
(n) The Issuer and the Company shall cause the Indenture to be
qualified under the Trust Indenture Act of 1939, as amended, in a timely manner.
(o) The Issuer and the Company may require each Holder of Securities
to be sold pursuant to any Shelf Registration Statement to furnish to the
Company such information regarding the Holder and the distribution of such
securities as the Company may from time to time reasonably require for inclusion
in such Registration Statement.
(p) The Issuer and the Company shall promptly incorporate in a
Prospectus supplement or post-effective amendment to a Shelf Registration
Statement, such information as the Managing Underwriters and Majority Holders
agree and reasonably request should be included therein and shall make all
required filings of such Prospectus supplement or post-effective amendment as
soon as notified of the matters to be incorporated in such Prospectus supplement
or post-effective amendment.
(q) In the case of any Shelf Registration Statement, the Issuer and
the Company shall, if requested by the Majority Holders, enter into such
agreements (including underwriting agreements) and take all other appropriate
actions in order to expedite or facilitate the registration or the disposition
of the Securities, 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 6 hereof (or such
other provisions and procedures reasonably acceptable to the Majority Holders
and the Managing Underwriters, if any, with respect to all parties to be
indemnified pursuant to Section 6 hereof.
(r) In the case of any Shelf Registration Statement, the Issuer and
the Company shall (i) make reasonably available for inspection by the Holders of
Securities to be registered thereunder who shall certify to the Company that
they have a current intent to sell such securities pursuant to such Registration
Statement, any underwriter participating in any disposition pursuant to such
Registration Statement, and any attorney, accountant or other agent retained by
the Majority Holders or any such underwriter, all relevant financial and other
records, pertinent corporate documents and properties of the Company and its
subsidiaries; (ii) cause the Issuer's, the Company's and the Company's
subsidiaries' officers, directors and employees to supply all relevant
information reasonably requested by the Majority Holders or any such
underwriter, attorney, accountant or agent in connection with any such
Registration Statement as is customary for similar due diligence examinations;
provided, however, that any information provided pursuant to clause (i) or
clause (ii) hereof that is designated in writing by the Issuer or the Company,
in good faith, as confidential at the time of delivery of such information shall
be kept confidential by the Holders and any such underwriter, attorney,
accountant or agent (from whom the Company and the Issuer shall be
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entitled to receive written confidentiality undertakings substantially to the
same effect as those set forth in this Section 4(r)), unless such disclosure is
required to be made in connection with a court proceeding pursuant to the
subpoena or order of any court or other governmental agency or body having
jurisdiction over the matter or is required by law (in which case such party
shall promptly and prior to such disclosure notify the Company of such
disclosure requirement and cooperate with the Company and the Issuer in seeking
to stay or limit such disclosure requirement), or such information becomes
available to the public generally or through a third party without an obligation
of confidentiality; (iii) make such representations and warranties to the
Holders of securities registered thereunder and the underwriters, if any, in
form, substance and scope as are customarily made by issuers to underwriters in
primary underwritten offerings and covering matters including, but not limited
to, those set forth in the Purchase Agreement; (iv) obtain opinions of counsel
to the Issuer and the Company and updates thereof (which counsel and opinions
(in form, scope and substance) shall be reasonably satisfactory to the Managing
Underwriters, if any) addressed to each selling Holder and the underwriters, if
any, covering such matters as are customarily covered in opinions requested in
underwritten offerings and such other matters as may be reasonably requested by
such Holders and underwriters; (v) obtain "cold comfort" letters and updates
thereof from the independent certified public accountants of the Issuer and the
Company (and, if necessary, any other independent certified public accountants
of any subsidiary of the Issuer or the Company or of any business acquired by
the Issuer or the Company for which financial statements and financial data are,
or are required to be, included in such Registration Statement), addressed to
each selling Holder of securities registered thereunder and the underwriters, if
any, in form and covering matters of the type customarily covered in "cold
comfort" letters in connection with primary underwritten offerings; and (vi)
deliver such documents and certificates as may be reasonably requested by the
Majority Holders and the Managing Underwriters, if any, including those to
evidence compliance with Section 4(k) hereof and with any customary conditions
contained in the underwriting agreement or other agreement entered into by the
Issuer or the Company. The foregoing actions set forth in clauses (iii), (iv),
(v) and (vi) of this Section 4(r) shall be performed at (A) the effectiveness of
such Registration Statement and each post-effective amendment thereto and (B)
each closing under any underwriting or similar agreement as and to the extent
required thereunder.
(s) In the case of any Exchange Offer Registration Statement, the
Issuer and the Company shall (i) make reasonably available for inspection by
each Exchanging Dealer, and any counsel, accountant or other agent retained by
Exchanging Dealers holding a majority of the aggregate principal amount of New
Securities for which delivery of a Prospectus as contemplated by Section 2(e)
hereof is required, all relevant financial and other records, pertinent
corporate documents and properties of the Company and its subsidiaries; (ii)
cause the Issuer's, the Company's and the Company's subsidiaries' officers,
directors and employees to supply all relevant information reasonably requested
by such Exchanging Dealers or any such counsel, accountant or agent, in
connection with any such Registration Statement as is customary for similar due
diligence examinations; provided, however, that any information provided
pursuant to clause (i) or clause (ii) hereof that is designated in writing by
the Issuer or the Company, in good faith, as confidential at the time of
delivery of such information shall be kept confidential by each Exchanging
Dealer or any such counsel, accountant or agent (from whom the Company and the
Issuer shall be entitled to receive written confidentiality undertakings
substantially-to the same effect as those set forth in this Section 4(s)),
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
12
third party without an obligation of confidentiality; (iii) make such
representations and warranties to such Exchanging Dealers, in form, substance
and scope as are customarily made by issuers to underwriters in primary
underwritten offerings and covering matters including, but not limited to, those
set forth in the Purchase Agreement; (iv) obtain opinions of counsel to the
Issuer and the Company and updates thereof (which counsel and opinions (in form,
scope and substance) shall be reasonably satisfactory to such Exchanging Dealers
and such counsel), addressed to such Exchanging Dealers, covering such matters
as are customarily covered in opinions requested in underwritten offerings and
such other matters as may be reasonably requested by such Exchanging Dealers or
such counsel; (v) obtain "cold comfort" letters and updates thereof from the
independent certified public accountants of the Issuer and the Company (and, if
necessary, any other independent certified public accountants of any subsidiary
of the Issuer or the Company or of any business acquired by the Issuer or the
Company for which financial statements and financial data are, or are required
to be, included in the Registration Statement), addressed to such Exchanging
Dealers, in customary form and covering matters of the type customarily covered
in "cold comfort" letters in action with primary underwritten offerings, or if
requested by such Exchanging Dealers or such counsel in lieu of a "cold comfort"
letter, an agreed-upon procedures letter under Statement on Auditing Standards
No. 35, covering matters requested by such Exchanging Dealers or such counsel;
and (vi) deliver such documents and certificates as may be reasonably requested
by such Exchanging Dealers or such counsel, including those to evidence
compliance with Section 4(k) hereof and with conditions customarily contained in
underwriting agreements. The foregoing actions set forth in clauses (iii), (iv),
(v), and (vi) of this Section 4(s) shall be performed at the close of the
Registered Exchange Offer and the effective date of any post-effective amendment
to the Exchange Offer Registration Statement.
5. Registration Expenses. The Issuer and the Company shall bear all
expenses incurred in connection with the performance of its obligations under
Sections 2, 3 and 4 hereof and, in the event of any Shelf Registration Statement
or any requirement for an Exchanging Dealer to deliver a Prospectus included in
the Exchange Offer Registration Statement, will reimburse the Holders for the
reasonable fees and disbursements of one firm or counsel designated by the
Majority Holders or by Exchanging Dealers holding a majority of the aggregate
principal amount of New Securities covered by such Prospectus, as the case may
be, to act as counsel for the Holders in connection therewith ("Designated
Counsel").
6. Indemnification and Contribution. (a) In connection with any
Registration Statement, the Issuer and the Company agree to indemnify and hold
harmless each Holder selling securities covered thereby (including with respect
to any Prospectus delivery as contemplated in Section 4(h) hereof, each
Exchanging Dealer), the directors, officers, employees and agents of each such
Holder and each person who controls any such Holder within the meaning of either
the Act or the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become subject
under the Act, the Exchange Act or other federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement as originally filed or in any amendment thereof, or
in any preliminary Prospectus or Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and agrees to reimburse
each such indemnified party for any legal or other expenses reasonably incurred
by them in connection with
13
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the Issuer and the Company will not be liable in any
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in conformity
with written information furnished to the Issuer or the Company by or on behalf
of any such Holder specifically for inclusion therein; provided, further, that
neither the Issuer nor the Company will be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based on an
untrue statement or omission in any Prospectus which was corrected in a
subsequent Prospectus where the relevant Exchanging Dealer sold the securities
to a person to whom it is established that such Exchanging Dealer failed to send
or otherwise deliver, at or prior to the written confirmation of such sale, a
copy of the subsequent Prospectus, as then amended or supplemented. This
indemnity shall not extend to any losses, damages, claims or other liabilities
that may result from the settlement or compromise by any indemnified party of
any action or claim, or any admission by such indemnified party of any
liability, in each case without the prior consent of the Company, which consent
shall not be unreasonably withheld or delayed. This indemnity agreement will be
in addition to any liability which the Issuer and the Company may otherwise
have.
The Issuer and the Company also agree, if requested by the Majority
Holders, to enter into an underwriting agreement that includes an undertaking to
indemnify or contribute to Losses of, as provided in Section 6(d) hereof, any
underwriters of Securities registered under a Shelf Registration Statement,
their officers and directors and each person who controls such underwriters on
substantially the same basis as that of the indemnification of the selling
Holders provided in this Section 6(a), as provided in Section 4(q) hereof.
(b) Each Holder of securities covered by a Registration Statement
(including with respect to any Prospectus delivery as contemplated in Section
4(h) hereof, each Exchanging Dealer) severally agrees to indemnify and hold
harmless (i) the Issuer, (ii) the Company, (iii) each of their respective
directors, (iv) each of their respective officers who signs such Registration
Statement and (v) each person who controls the Issuer or the Company within the
meaning of either the Act or the Exchange Act to the same extent as the
foregoing indemnity from the Issuer and the Company to each such Holder, but
only with reference to written information relating to such Holder furnished to
the Issuer or the Company 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 which any such Holder
may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
6 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 6, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent such failure
results in the forfeiture by the indemnifying party of substantial rights and
defenses and (ii) will not, in any event, relieve the indemnifying party from
any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The indemnifying party shall
be entitled to appoint 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
14
counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ counsel (including local counsel) separate from counsel
appointed by the indemnifying party, and the indemnifying party shall bear the
reasonable fees, costs and expenses of such separate counsel (and local counsel)
if (i) the use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of interest, (ii)
the actual or potential defendants in, or targets of, any such action include
both the indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, (iii) the indemnifying party shall not have
employed counsel reasonably satisfactory to the indemnified party to represent
the indemnified party within a reasonable time after notice of the institution
of such action or (iv) the indemnifying party shall authorize the indemnified
party to employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties (which consent shall not be unreasonably 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 (i) includes an unconditional
release of each indemnified party from all liability arising out of such claim,
action, suit or proceeding and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on behalf of any
indemnified party.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 6 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 same) (collectively "Losses") to which such
indemnified party may be subject in such proportion as is appropriate to reflect
the relative benefits received by such indemnifying party, on the one hand, and
such indemnified party, on the other hand, from the Initial Placement and the
Registration Statement which resulted in such Losses; provided, however, that in
no case shall any Holder of any Security or New Security be responsible, in the
aggregate, for any amount in excess of the purchase discount or commission
applicable to such Security, or in the case of a New Security, applicable to the
Security which was exchangeable into such New Security, as set forth on the
cover page of the Final Offering Memorandum, nor shall any underwriter be
responsible for any amount in excess of the underwriting discount or commission
applicable to the securities purchased by such underwriter under the
Registration Statement which resulted in such Losses. If the allocation provided
by the immediately preceding sentence is unavailable for any reason, the
indemnifying party and the indemnified party shall contribute in such proportion
as is appropriate to reflect not only such relative benefits but also the
relative fault of such indemnifying party, on the one hand, and such indemnified
party, on the other hand, in connection with the statements or omissions which
resulted in such Losses as well as any other relevant equitable considerations.
Benefits received by the Company shall be deemed to be equal to the total net
proceeds from the Initial Placement (before deducting expenses) as set forth on
the cover page of the Final Offering Memorandum. Benefits received by the
selling Holders shall be deemed to be equal to the value of receiving Securities
or New Securities, as applicable, registered under the Act. Benefits received by
any underwriter shall
15
be deemed to be equal to the total underwriting discounts and commissions, as
set forth on the cover page of the Prospectus forming a part of the Registration
Statement which resulted in such Losses. Relative fault shall be determined by
reference to whether any alleged untrue statement or omission relates to
information provided by the indemnifying party, on the one hand, or by the
indemnified party, on the other hand. The parties agree that it would not be
just and equitable if contribution were determined by pro rata allocation or any
other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 6, each person who controls a Holder within the meaning of either
the Act or the Exchange Act and each director, officer, employee and agent of
such Holder shall have the same rights to contribution as such Holder, and each
person who controls the Issuer or the Company within the meaning of either the
Act or the Exchange Act, each officer of the Issuer or the Company who shall
have signed the Registration Statement and each director of the Issuer or the
Company shall have the same rights to contribution as the Issuer and the
Company, subject in each case to the applicable terms and conditions of this
paragraph (d).
(e) The provisions of this Section 6 will remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder or
the Issuer or the Company or any of the officers, directors or controlling
persons referred to in this Section 6, and will survive the sale by a Holder of
securities covered by a Registration Statement.
7. Miscellaneous.
(a) No Inconsistent Agreements. Each of the Issuer, the Company and
the Company's subsidiaries has not, as of the date hereof, entered into, nor
shall it, on or after the date hereof, enter into, any agreement with respect to
its securities that is inconsistent with the rights granted to the Holders
herein or otherwise conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Issuer or the Company has
obtained the written consent of the Holders of at least a majority of the then
outstanding aggregate principal amount of Securities (or, after the consummation
of any Registered Exchange Offer in accordance with Section 2 hereof, of New
Securities); provided that, with respect to any matter that directly or
indirectly affects the rights of any Initial Purchaser hereunder, the Issuer and
the Company shall obtain the written consent of each such Initial Purchaser
against which such amendment, qualification, supplement, waiver or consent is to
be effective. Notwithstanding the foregoing (except the foregoing proviso), a
waiver or consent to departure from the provisions hereof with respect to a
matter that relates exclusively to the rights of Holders whose securities are
being sold pursuant to a Registration Statement and that does not directly or
indirectly affect the rights of other Holders may be given by the Majority
Holders determined on the basis of securities being sold rather than registered
under such Registration Statement.
(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.
16
(1) if to a Holder, at the address of such Holder maintained by the
Registrar under the Indenture;
(2) if to you or another Initial Purchaser, initially at the
respective addresses set forth in the Purchase Agreement;
(3) if to the Issuer, initially at its address set forth in the
Purchase Agreement; and
(4) if to the Company, initially at its address set forth in the
Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given when received.
The Initial Purchasers, the Issuer or the Company by notice to the
other 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 permitted assigns of each of the
parties, including, without the need for an express assignment or any consent by
the Issuer or the Company thereto, subsequent Holders of Securities and/or New
Securities. The Issuer and the Company hereby agree to extend the benefits of
this Agreement to any Holder of Securities and/or New Securities and any such
Holder may specifically enforce the provisions of this Agreement as if an
original party hereto.
(e) Counterparts; English Language. 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.
This Agreement has been negotiated and executed in the English
language. This Agreement has also been translated into the Polish language.
However, in the event of any inconsistency between the English language version
and the Polish language version, the English language version shall control and
be conclusive as to the meaning of any terms and provisions hereof.
(f) Headings. The headings in this agreement are for convenience or
reference only and shall not limit or otherwise affect the meaning hereof.
(g) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(h) Jurisdiction. Each of the Issuer and the Company agrees that any
suit, action or proceeding against the Issuer or the Company brought by any
Initial Purchaser, the directors, officers, employees and agents of any Initial
Purchaser, or by any person who controls any Initial Purchaser, arising out of
or based upon this Agreement or the transactions contemplated hereby may be
instituted in any state or federal court in the Borough of Manhattan, City of
New York, New York, and waives any objection which it may now or hereafter have
to the laying of venue of any such proceeding, and irrevocably submits to the
nonexclusive jurisdiction of such courts in any suit, action or proceeding. Each
of the Issuer and
17
the Company has appointed CT Corporation System, with offices on the date hereof
at 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as its authorized agent (the
"Authorized Agent"), upon whom process may be served in any suit, action or
proceeding arising out of or based upon this Agreement or the transactions
contemplated herein which may be instituted in any state or federal court in the
Borough of Manhattan, City of New York, New York, by any Initial Purchaser, the
directors, officers, employees and agents of any Initial Purchaser, or by any
person, if any, who controls any Initial Purchaser, and expressly accepts the
nonexclusive jurisdiction of any such court in respect of any such suit, action
or proceeding. Each of the Issuer and the Company hereby represents and warrants
that the Authorized Agent has accepted such appointment and has agreed to act as
said agent for service of process, and each of the Issuer and the Company agrees
to take any and all action, including the filing of any and all documents that
may be necessary to continue such appointment in full force and effect as
aforesaid. Service of process upon the Authorized Agent shall be deemed, in
every respect, effective service of process upon the Issuer and the Company.
Notwithstanding the foregoing, any action involving the Company arising out of
or based upon this Agreement may be instituted by any Initial Purchaser, the
directors, officers, employees and agents of any Initial Purchaser, or by any
person who controls any Initial Purchaser in any court of competent jurisdiction
in Luxembourg or the Republic of Poland.
(i) Severability. In the event that any one of more of the provisions
contained herein, or the application thereof in any circumstances, is held
valid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
shall be enforceable to the fullest extent permitted by law.
(j) Securities Held by the Company, etc. Whenever the consent or
approval of Holders of a specified percentage of principal amount of Securities
or New Securities is required hereunder, Securities or New Securities, as
applicable, held by the Company or its Affiliates (other than subsequent Holders
of Securities or New Securities if such subsequent Holders are deemed to be
Affiliates solely by reason of their holdings of such Securities or New
Securities) shall not be counted in determining whether such consent or approval
was given by the Holders of such required percentage.
18
Please confirm that the foregoing correctly sets forth the agreement
between the Issuer, the Company and you.
Very truly yours,
PTC INTERNATIONAL FINANCE II S.A.
By: /s/
--------------------------------
Name: Authorized Signatory
Title:
By:
--------------------------------
Name:
Title:
POLSKA TELEFONIA CYFROWA SP. Z 0.0.
By: /s/ Xxxxxxx Xxxxxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Director of Strategy,
Marketing and Sales
By: /s/ Xxxxxxx Xxxxxxxxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxxxxxxxx
Title: Director of Administration
19
The foregoing Agreement is hereby
accepted as of the date first
above written.
DEUTSCHE BANK AG LONDON
By: /s/ Xxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxx
Title:
By: /s/ Guy du ParcGraham
-----------------------------------
Name: Guy du ParcGraham
Title:
DRESDNER BANK AG LONDON BRANCH
By: /s/ S. Park
-----------------------------------
Name: S. Park
Title: M.D.
By: /s/ Xxxxxxxx Xxxx
-----------------------------------
Name: Xxxxxxxx Xxxx
Title: Director
20
ANNEX A
Each broker-dealer that receives New Securities for its own account
pursuant to the Registered Exchange Offer must acknowledge that it will deliver
a prospectus in connection with any resale of such New Securities. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the 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 New
Securities received in exchange for Securities where such Securities were
acquired by such broker-dealer as a result of marketmaking activities or other
trading activities. The Company has agreed that, starting on the Expiration Date
(as defined herein) and ending on the close of 90 business days 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."
21
ANNEX B
Each broker-dealer that receives New Securities for its own account in
exchange for Securities, where such Securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such New Securities. See "Plan of Distribution."
22
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives New Securities for its own account
pursuant to the Registered Exchange Offer must acknowledge that it will deliver
a prospectus in connection with any resale of such New Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of New Securities received in
exchange for Securities where such Securities 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 90 business
days 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 _____________, ____, all dealers effecting
transaction in the New Securities may be required to deliver a prospectus.
The Company will not receive any proceeds from any sale of New
Securities by broker-dealers. New Securities received by broker-dealers for
their own account pursuant to the Registered Exchange Offer may be sold from
time to time in one or more transactions in the over-the-counter market, in
negotiated transactions, through the writing of options on the New Securities or
a combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such broker-dealer and/or the purchasers of any such New
Securities. Any broker-dealer that resells New Securities that were received by
it for its own account pursuant to the Registered Exchange Offer and any broker
or dealer that participates in a distribution of such New Securities may be
deemed to be an "underwriter" within the meaning of the Act and any profit of
any such resale of New Securities and any commissions or concessions received by
any such persons may be deemed to be underwriting compensation under the Act.
The Letter of Transmittal states that by acknowledging that it will deliver and
by delivering a prospectus, a broker-dealer will not be deemed to admit that it
is an "underwriter" within the meaning of the Act.
For a period of 90 days after the Expiration Date, the Company will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Company has agreed to pay all expenses
incident to the Registered Exchange Offer (including the reasonable expenses of
one counsel for Holders of New Securities that are broker-dealers and are
required to deliver a prospectus in connection with any resale of such New
Securities) other than commissions or concessions of any brokers or dealers and
will indemnify the Holders of the Securities (including any broker-dealers)
against certain liabilities, including liabilities under the Act.
23
ANNEX D
Rider A.
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS
OR SUPPLEMENTS THERETO.
Name: _____________________________________________________
Address: _____________________________________________________
______________________________________________________________
Rider B
If the undersigned is not a broker-dealer, the undersigned represents
that it is not engaged in, and does not intend to engage in, a distribution of
New Securities. If the undersigned is a broker-dealer that will receive New
Securities for its own account in exchange for Securities, it represents that
the Securities to be exchanged for New Securities 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 New
Securities; however, by so acknowledging and by delivering a prospectus, the
undersigned will not be deemed to admit that it is an "underwriter" within the
meaning of the U.S. Securities Act.
