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EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "AGREEMENT") is made and
entered into as of August 8, 2000 by and among Williams Communications Group,
Inc., a Delaware corporation (the "COMPANY"), Salomon Smith Barney Inc.
("SALOMON SMITH BARNEY"), Lehman Brothers Inc. ("LEHMAN BROTHERS"), Merrill
Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated ("MERRILL
LYNCH") and each of the other Initial Purchasers party to the Purchase Agreement
referred to below (collectively, the "INITIAL PURCHASERS"), for whom Salomon
Smith Barney, Lehman Brothers and Merrill Lynch are acting as representatives
(the "REPRESENTATIVES").
This Agreement is made pursuant to the Purchase Agreement dated August
3, 2000, among the Company and the Initial Purchasers (the "PURCHASE
AGREEMENT"), which provides for the sale by the Company to the Initial
Purchasers of $575,000,000 aggregate principal amount of its 11.70% Senior
Redeemable Notes due 2008 (the "2008 NOTES") and $425,000,000 aggregate
principal amount of its 11.875% Senior Redeemable Notes due 2010 (the "2010
NOTES," and together with the 2008 Notes, the "SECURITIES"). The Securities are
to be issued by the Company pursuant to the provisions of an Indenture dated as
of August 8, 2000 (as amended, supplemented or otherwise modified from time to
time, the "INDENTURE") between the Company and The Bank of New York, as trustee
(the "TRUSTEE").
In order to induce the Initial Purchasers to enter into the Purchase
Agreement, the Company has agreed to provide to the Initial Purchasers and their
direct and indirect transferees the registration rights with respect to the
Securities set forth in this Agreement. The execution of this Agreement is a
condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions.
As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"1933 ACT" shall mean the Securities Act of 1933, as amended from time
to time.
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"1934 ACT" shall mean the Securities Exchange Act of 1934, as amended
from time to time.
"CLOSING DATE" shall mean the Closing Date as defined in the Purchase
Agreement.
"COMPANY" shall have the meaning set forth in the preamble and shall
also include the Company's successors.
"EXCHANGE DATE" shall have the meaning set forth in Section 2(a)(ii)
hereof.
"EXCHANGE OFFER" shall mean the exchange offer by the Company of
Exchange Securities for all Securities that are Registrable Securities pursuant
to Section 2(a).
"EXCHANGE OFFER REGISTRATION" shall mean a registration under the 1933
Act effected pursuant to Section 2(a) hereof.
"EXCHANGE OFFER REGISTRATION STATEMENT" shall mean an exchange offer
registration statement on an appropriate form and all amendments and supplements
to such registration statement, in each case, including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"EXCHANGE SECURITIES" shall mean securities issued by the Company under
the Indenture and containing terms identical to the Securities (except that (i)
interest thereon shall accrue from the last date on which interest was paid on
the Securities or, if no such interest has been paid, from August 8, 2000 and
(ii) the Exchange Securities will not provide for additional interest accruing
thereon following a failure to register such Exchange Securities under the 1933
Act and will not contain terms with respect to transfer restrictions) and to be
offered to Holders of Securities in exchange for Securities pursuant to the
Exchange Offer.
"HOLDERS" shall mean the Initial Purchasers, for so long as they own
any Registrable Securities, and each of their respective successors, assigns and
direct and indirect transferees who become registered owners of Registrable
Securities under the Indenture; provided that for purposes of Sections 4 and 5
of this Agreement, the term "HOLDERS" shall include Participating
Broker-Dealers.
"INDENTURE" shall have the meaning set forth in the preamble.
"INITIAL PURCHASERS" shall have the meaning set forth in the preamble.
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"MAJORITY HOLDERS" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Registrable Securities; provided that,
for purposes of Section 6(b), whenever the consent or approval of Holders of a
specified percentage of Registrable Securities is required hereunder,
Registrable Securities held by the Company or any of its affiliates (as such
term is defined in Rule 405 under the 1933 Act) (other than the Initial
Purchasers or subsequent Holders of Registrable Securities if such subsequent
holders are deemed to be such affiliates solely by reason of their holding such
Registrable Securities) shall not be counted in determining whether such consent
or approval was given by the Holders of such required percentage or amount.
"OFFER TERMINATION DATE" shall have the meaning set forth in Section
2(a)(iv) hereof.
"PARTICIPATING BROKER-DEALER" shall have the meaning set forth in
Section 4(a) hereof.
"PERSON" shall mean an individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
"PURCHASE AGREEMENT" shall have the meaning set forth in the preamble.
"PROSPECTUS" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration Statement, and by all
other amendments and supplements to such prospectus, and in each case, including
all material incorporated by reference therein.
"REGISTRABLE SECURITIES" shall mean the Securities; provided, however,
that the Securities shall cease to be Registrable Securities when (i) a
Registration Statement with respect to such Securities shall have been declared
effective under the 1933 Act and such Securities shall have been disposed of
pursuant to such Registration Statement, (ii) such Securities have been sold
pursuant to Rule 144(k) (or any similar provision then in force, but not Rule
144A) under the 1933 Act, (iii) such Securities shall have ceased to be
outstanding or (iv) such Securities have been exchanged for Exchange Securities
upon consummation of the Exchange Offer.
"REGISTRATION EXPENSES" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC, stock exchange or National Association of
Securities Dealers, Inc. registration and filing fees, (ii) all fees and
expenses
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incurred in connection with compliance with state securities or blue sky laws
(including reasonable fees and disbursements of counsel (not to exceed $10,000)
for any underwriters or Holders in connection with blue sky qualification of any
of the Exchange Securities or Registrable Securities), (iii) all expenses of any
Person in preparing or assisting in preparing, word processing, printing and
distributing, at the request of the Company, 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) all rating agency fees, (v) all fees
and disbursements relating to the qualification of the Indenture under
applicable securities laws, (vi) the fees and disbursements of the Trustee and
its counsel, (vii) the fees and disbursements of counsel for the Company and for
the Initial Purchasers and, in the case of a Shelf Registration Statement, the
fees and disbursements of one counsel for the Holders incurred on or before the
initial effectiveness of the Shelf Registration Statement, which counsel shall
be counsel for the Initial Purchasers or other counsel selected by the Majority
Holders and satisfactory to the Company ("COUNSEL FOR THE HOLDERS"), (viii) the
fees and disbursements of the independent public accountants of the Company,
including the expenses of any special audits or "cold comfort" letters required
by or incident to such performance and compliance, but excluding underwriting
discounts, if any, and commissions and transfer taxes, if any, relating to the
sale or disposition of Registrable Securities by the Holders and (ix) the fees
and expenses of listing the Registrable Securities on any securities exchange or
quotation system in accordance with Section 3(o) hereof, but excluding
underwriting discounts, if any, and commissions and transfer taxes, if any,
relating to the sale or disposition of Registrable Securities by the Holders.
"REGISTRATION STATEMENT" shall mean any registration statement of the
Company that covers any of the Exchange Securities or the Registrable Securities
pursuant to the provisions of this Agreement and all amendments and supplements
to any such Registration Statement, including post-effective amendments, in each
case, including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission.
"SECURITIES" shall have the meaning set forth in the preamble.
"SHELF REGISTRATION" shall mean a registration effected pursuant to
Section 2(b) hereof.
"SHELF REGISTRATION STATEMENT" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 2(b) of this
Agreement which covers all of the Registrable Securities (except Registrable
Securities that the Holders have elected not to include in such Shelf
Registration Statement) or Securities that represent an unsold allotment for the
original offering
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thereof on an appropriate form under Rule 415 under the 1933 Act, or any similar
rule that may be adopted by the SEC, and all amendments and supplements to such
registration statement, including post-effective amendments, in each case,
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"TIA" shall have the meaning set forth in Section 3(l) hereof.
"TRUSTEE" shall have the meaning set forth in the preamble.
"UNDERWRITERS" shall have the meaning set forth in Section 3 hereof.
"UNDERWRITTEN OFFERING" shall mean a registration in which Registrable
Securities are sold to an Underwriter for reoffering to the public.
2. Registration under the 1933 Act.
(a) To the extent not prohibited by any applicable law or
applicable interpretation of the Staff of the SEC, the Company shall
use its reasonable best efforts to cause to be filed an Exchange Offer
Registration Statement covering the offer by the Company to the Holders
to exchange all of the Registrable Securities for Exchange Securities
on or prior to the 90th day after the Closing Date, to have such
Registration Statement declared effective by the SEC on or prior to the
180th day after the Closing Date and remain effective until the closing
of the Exchange Offer and to consummate the Exchange Offer on or prior
to the 210th day after the Closing Date. For purposes hereof,
"CONSUMMATE" shall mean that the Exchange Offer Registration Statement
shall have been declared effective, subject to Section 2(b), the period
of the Exchange Offer provided in accordance with clause 2(a)(ii) below
shall have expired and all Registrable Securities validly tendered in
connection with such Exchange Offer shall have been accepted in
exchange for Exchange Securities. The Company shall commence the
Exchange Offer by mailing the related exchange offer Prospectus and
accompanying documents to each Holder stating, in addition to such
other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to
this Registration Rights Agreement and that all Registrable
Securities validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which
shall be a period of at least 30 days from the date such
notice is mailed) (each such date being an "EXCHANGE DATE");
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(iii) that any Registrable Security not tendered will
remain outstanding and continue to accrue interest, but will
not retain any rights under this Agreement, other than
Securities that represent an unsold allotment for the original
offering thereof;
(iv) that Holders electing to have a Registrable
Security exchanged pursuant to the Exchange Offer will be
required to surrender such Registrable Security, together with
an enclosed letter of transmittal, to the institution and at
the address specified in the notice prior to the close of
business on the last Exchange Date (the "OFFER TERMINATION
DATE"); and
(v) that Holders will be entitled to withdraw their
election, not later than the close of business on the Offer
Termination Date, by sending to the institution at the address
specified in the notice a telegram, facsimile transmission or
letter setting forth the name of such Holder, the principal
amount of Registrable Securities delivered for exchange and a
statement that such Holder is withdrawing his election to have
such Registrable Securities exchanged.
As soon as practicable after the Offer Termination Date, the Company
shall:
(A) accept for exchange Registrable
Securities or portions thereof tendered and not
validly withdrawn pursuant to the Exchange Offer; and
(B) deliver, or cause to be delivered, to
the Trustee for cancellation all Registrable
Securities or portions thereof so accepted for
exchange by the Company and issue, and cause the
Trustee to promptly authenticate and mail to each
Holder, an Exchange Security equal in aggregate
principal amount to the aggregate principal amount of
the Registrable Securities surrendered by such
Holder.
The Company shall use its reasonable best efforts to complete the
Exchange Offer as provided above and shall comply with the applicable
requirements of the 1933 Act, the 1934 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 the Exchange Offer does not
violate applicable law or any applicable interpretation of the Staff of the SEC.
The Company shall inform the Initial Purchasers of the names and addresses of
the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall
have
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the right, subject to applicable law, to contact such Holders and otherwise
facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Company determines that the
Exchange Offer Registration provided for in Section 2(a) above is not
available or may not be consummated as soon as practicable after the
Offer Termination Date because it would violate applicable law or the
applicable interpretations of the Staff of the SEC, (ii) the Exchange
Offer is not for any other reason consummated on or prior to the 210th
day after the Closing Date or (iii) prior to the date that is 45
business days following the consummation of the Exchange Offer, the
Initial Purchasers notify the Company that, in the opinion of counsel
for the Initial Purchasers, a Registration Statement must be filed and
a Prospectus must be delivered by the Initial Purchasers in connection
with any offering or sale of Registrable Securities because such
Registrable Securities represent an unsold allotment for the original
offering thereof, the Company shall use its reasonable best efforts to
cause to be filed as soon as reasonably practicable after such
determination, date or notice of such opinion of counsel is given to
the Company, as the case may be, a Shelf Registration Statement
providing for the sale of such Registrable Securities and to have such
Shelf Registration Statement declared effective by the SEC. In the
event the Company is required to file a Shelf Registration Statement
solely as a result of the matters referred to in clause (iii) of the
preceding sentence, the Company shall file and have declared effective
by the SEC both an Exchange Offer Registration Statement pursuant to,
and in accordance with the terms of, Section 2(a) with respect to all
Registrable Securities and a Shelf Registration Statement (which may be
a combined Registration Statement with the Exchange Offer Registration
Statement) with respect to offers and sales of Registrable Securities
held by the Initial Purchasers after completion of the Exchange Offer.
The Company agrees to use its reasonable best efforts to keep the Shelf
Registration Statement continuously effective until the expiration of
the period referred to in Rule 144(k) with respect to the Registrable
Securities or such shorter period that will terminate when all of the
Registrable Securities covered by the Shelf Registration Statement have
been sold pursuant to the Shelf Registration Statement. The Company
further agrees to supplement or amend the Shelf Registration Statement
if required by the rules, regulations or instructions applicable to the
registration form used by the Company for such Shelf Registration
Statement or by the 1933 Act or by any other rules and regulations
thereunder for shelf registration and to use its reasonable best
efforts to cause any such amendment to become effective and such Shelf
Registration Statement to become usable as soon as practicable
thereafter. The Company agrees to furnish to the Holders of Registrable
Securities copies of any such supplement or amendment promptly after
its being used or filed with the SEC.
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(c) The Company shall pay all Registration Expenses in
connection with the registration pursuant to Section 2(a) or Section
2(b). Each Holder shall pay all underwriting discounts, if any, and
commissions and transfer taxes, if any, relating to the sale or
disposition of such Holder's Registrable Securities pursuant to a Shelf
Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to
Section 2(a) hereof or a Shelf Registration Statement pursuant to
Section 2(b) hereof will not be deemed to have become effective unless
it has been declared effective by the SEC; provided, however, that, if,
after it has been declared effective, the offering of Registrable
Securities pursuant to a Shelf Registration Statement is interfered
with by any stop order, injunction or other order or requirement of the
SEC or any other governmental agency or court, such Registration
Statement will be deemed not to be effective during the period of such
interference until the offering of Registrable Securities pursuant to
such Registration Statement may legally resume.
(e) In the event that (i) the Exchange Offer Registration
Statement relating to the Exchange Offer is not filed with the
Commission on or prior to the 90th day after the Closing Date, (ii) the
Exchange Offer Registration Statement is not declared effective on or
prior to the 180th day after the Closing Date, or (iii) the Exchange
Offer is not consummated or a Shelf Registration Statement with respect
to resale of the Securities is not declared effective on or prior to
the 210th day after the Closing Date (each such event referred to in
clauses (i) through (iii), a "Registration Default"), then the Company
will pay additional interest, as liquidated damages and not as a
penalty (in addition to the interest otherwise due on the Securities),
to each Holder of Securities during the first 90-day period immediately
following the occurrence of each such Registration Default in an amount
equal to 0.50% per annum. The amount of liquidated damages will
increase by an additional 0.50% per annum for each subsequent 90- day
period until such Registration Default is cured, up to a maximum rate
of liquidated damages of 1.50% per annum. Such additional liquidated
damages will cease accruing on such Securities with respect to any
Registration Default when such Registration Default has been cured.
(f) Without limiting the remedies available to the Initial
Purchasers and the Holders, the Company acknowledges that any failure
by the Company to comply with its obligations under Section 2(a) and
Section 2(b) 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
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such relief as may be required to specifically enforce the Company's
obligations under Section 2(a) and Section 2(b) hereof.
3. Registration Procedures.
In connection with the obligations of the Company with respect to the
Registration Statements pursuant to Section 2(a) and Section 2(b) hereof, the
Company shall reasonably promptly:
(a) prepare and file with the SEC a Registration Statement on
the appropriate form under the 1933 Act, which form shall (x) be
selected by the Company, (y) in the case of a Shelf Registration, be
available for the sale of the Registrable Securities by the selling
Holders thereof and (z) comply as to form in all material respects with
the requirements of the applicable form and include all financial
statements required by the SEC to be filed therewith, and use its
reasonable best efforts to cause such Registration Statement to become
effective and remain effective in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and post-
effective amendments to each Registration Statement as may be necessary
to keep such Registration Statement effective for the applicable period
and cause each Prospectus to be supplemented by any required prospectus
supplement and, as so supplemented, to be filed pursuant to Rule 424
under the 1933 Act; and keep each Prospectus current during the period
described under Section 4(3) and Rule 174 under the 1933 Act that is
applicable to transactions by brokers or dealers with respect to the
Registrable Securities or Exchange Securities;
(c) in the case of a Shelf Registration, furnish to each
Holder of Registrable Securities, to counsel for the Holders and for
the Initial Purchasers (or, if applicable, separate counsel for the
Holders) and to each Underwriter of an Underwritten Offering of
Registrable Securities, if any, without charge, as many copies of each
Prospectus, including each preliminary Prospectus and any amendment or
supplement thereto and such other documents as such Holder or
Underwriter may reasonably request, in order to facilitate the public
sale or other disposition of the Registrable Securities; and the
Company consents to the use of such Prospectus and any amendment or
supplement thereto in accordance with applicable law by each of the
selling Holders of Registrable Securities and any such Underwriters in
connection with the offering and sale of the Registrable Securities
covered by and in the manner described in such Prospectus or any
amendment or supplement thereto in accordance with applicable law;
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(d) use its reasonable best efforts (i) to register or qualify
the Registrable Securities under all applicable state securities or
blue sky laws of such jurisdictions as any Holder of Registrable
Securities covered by a Registration Statement shall reasonably request
in writing by the time the applicable Registration Statement is
declared effective by the SEC and (ii) to cooperate with such Holders
in connection with any filings required to be made with the National
Association of Securities Dealers, Inc. and do any and all other acts
and things which may be reasonably necessary or advisable to enable
such Holder to consummate the disposition in each such jurisdiction of
such Registrable Securities owned by such Holder; provided, however,
that the Company shall not be required to (A) register or qualify as a
foreign corporation or as a dealer in securities in any jurisdiction
where it would not otherwise be required to register or qualify but for
this Section, (B) file any general consent to service of process or (C)
subject itself to taxation in any such jurisdiction if it is not so
subject;
(e) in the case of a Shelf Registration, notify each Holder of
Registrable Securities, counsel for the Holders and for the Initial
Purchasers (or, if applicable, separate counsel for the Holders)
promptly and, if requested by such Persons, confirm such advice in
writing, (i) when a Registration Statement has become effective and
when any post-effective amendment thereto has been filed and becomes
effective, (ii) of any request by the SEC or any state securities
authority for amendments and supplements to a Registration Statement
and Prospectus or for additional information after the Registration
Statement has become effective, (iii) of the issuance by the SEC or any
state securities authority of any stop order suspending the
effectiveness of a Registration Statement or the initiation of any
proceedings for that purpose, (iv) if, between the effective date of a
Registration Statement and the closing of any sale of Registrable
Securities covered thereby, the Company receives any notification with
respect to the suspension of the qualification of the Registrable
Securities for sale in any jurisdiction or the initiation of any
proceeding for such purpose, (v) of the happening of any event during
the period a Shelf Registration Statement is effective which makes any
statement made in such Registration Statement or the related Prospectus
untrue in any material respect or which requires the making of any
changes in such Registration Statement or Prospectus in order to make
the statements therein not misleading and (vi) of any determination by
the Company that a post-effective amendment to a Registration Statement
would be appropriate;
(f) make every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of a Registration Statement at
the earliest possible moment and provide prompt notice to each Holder
of the withdrawal of any such order;
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(g) in the case of a Shelf Registration, upon request, furnish
to each Holder of Registrable Securities, without charge, at least one
conformed copy of each Registration Statement and any post-effective
amendment thereto (without documents incorporated therein by reference
or exhibits thereto, unless requested);
(h) in the case of a Shelf Registration, cooperate with the
selling Holders of Registrable Securities to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any restrictive legends (unless
required by applicable securities laws) and enable such Registrable
Securities to be in such denominations (consistent with the provisions
of the Indenture) and registered in such names as the selling Holders
may reasonably request at least two business days prior to the closing
of any sale of Registrable Securities;
(i) in the case of a Shelf Registration, upon the occurrence
of any event contemplated by Section 3(e) hereof that so requires, use
its reasonable best efforts to prepare and file with the SEC a
supplement or post-effective amendment to a Registration Statement or
the related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Securities, such
Prospectus will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading. The Company agrees to notify the Holders to suspend use of
the Prospectus as promptly as practicable after the occurrence of such
an event, and the Holders hereby agree to suspend use of the Prospectus
until the Company has amended or supplemented the Prospectus to correct
such misstatement or omission;
(j) 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 Prospectus
after the 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, counsel for the Holders) and
make such of the representatives of the Company as shall be reasonably
requested by the Initial Purchasers or their counsel (and, in the case
of a Shelf Registration Statement, counsel for the Holders) 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
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case of a Shelf Registration Statement, counsel for the Holders) 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, counsel for the Holders) shall reasonably
object within five business days after receipt thereof;
(k) obtain a CUSIP number for all Exchange Securities or
Registrable Securities, as the case may be, not later than the
effective date of a Registration Statement;
(l) cause the Indenture to be qualified under the Trust
Indenture Act of 1939, as amended (the "TIA"), in connection with the
registration of the Exchange Securities or Registrable Securities, as
the case may be, and cooperate with the Trustee and the Holders to
effect such changes to the Indenture as may be required for the
Indenture to be so qualified in accordance with the terms of the TIA
and execute, and use its reasonable best efforts to cause the Trustee
to execute, all documents as may be required to effect such changes and
all other forms and documents required to be filed with the SEC to
enable the Indenture to be so qualified in a timely manner;
(m) in the case of a Shelf Registration, make available for
inspection by a representative of the Holders of the Registrable
Securities included therein, any Underwriter participating in any
disposition pursuant to such Shelf Registration Statement, and counsel
for the Holders, at reasonable times and in a reasonable manner, all
financial and other records, pertinent documents and properties of the
Company, and cause the respective officers, directors and employees of
the Company to supply all information reasonably requested by any such
representative, Underwriter, attorney or accountant in connection with
a Shelf Registration Statement, in each case, that would customarily be
reviewed or examined in connection with a "DUE DILIGENCE" review of the
Company;
(n) if reasonably requested by any Holder of Registrable
Securities covered by a Registration Statement, (i) promptly
incorporate in a Prospectus supplement or post-effective amendment such
information with respect to such Holder as is required to be included
therein in accordance with applicable law and (ii) make all required
filings of such Prospectus supplement or such post-effective amendment
as soon as the Company has received notification of the matters to be
incorporated in such filing;
(o) cause all Registrable Securities covered by a Registration
Statement to be (i) listed on each securities exchange or quotation
system on which similar securities issued by the Company are then
listed, if so
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requested by the Majority Holders and (ii) rated with the appropriate
rating agencies, if so requested by the Majority Holders; and
(p) in the case of an Underwritten Offering pursuant to a
Shelf Registration, upon the request of the Majority Holders of
Registrable Securities included therein, enter into such customary
agreements and take all such other customary actions in connection
therewith (including those reasonably requested by counsel for the
Holders) in order to expedite or facilitate the disposition of such
Registrable Securities and in such connection, (i) to the extent
possible, make such reasonable representations and warranties to the
Holders and any Underwriters of such Registrable Securities with
respect to the business of the Company and its subsidiaries, the
Registration Statement, Prospectus and documents incorporated by
reference or deemed incorporated by reference, if any, in each case, in
form, substance and scope as are customarily made by issuers to
underwriters in underwritten offerings and confirm the same if and when
requested, (ii) obtain opinions of counsel to the Company (which
counsel and opinions, in form, scope and substance, shall be reasonably
satisfactory to the selling Holders and such Underwriters and their
respective counsel) addressed to each selling Holder and Underwriter of
Registrable Securities, covering the matters customarily covered in
opinions requested in underwritten offerings, (iii) obtain "cold
comfort" letters from the independent certified public accountants of
the Company (and, if necessary, any other certified public accountant
of any subsidiary of the Company, or 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
each selling Holder and Underwriter of Registrable Securities, such
letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with
underwritten offerings, and (iv) deliver such documents and
certificates as may be reasonably requested by counsel for the Holders
to evidence the continued validity of the representations and
warranties of the Company made pursuant to clause (i) above and to
evidence compliance with any customary conditions in an underwriting
agreement. In the case of any Underwritten Offering, the Company shall
provide written notice to the Holders of all Registrable Securities of
such Underwritten Offering at least 15 days prior to the filing of a
prospectus supplement for such Underwritten Offering. Such notice shall
(x) offer each such Holder the right to participate in such
Underwritten Offering, (y) specify a date, which shall be no earlier
than 5 days following the date of such notice, by which such Holder
must inform the Company of its intent to participate in such
Underwritten Offering and (z) include the instructions such Holder must
follow in order to participate in such Underwritten Offering.
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<PAGE> 14
In the case of a Shelf Registration Statement, the Company may require
each Holder of Registrable Securities to promptly furnish to the Company such
information regarding the Holders and the proposed distribution by such Holder
of such Registration Securities as the Company may from time to time reasonably
request in writing. Notwithstanding anything herein to the contrary, no Holder
of Registrable Securities may include any of its Registrable Securities in any
Shelf Registration Statement pursuant to this Agreement unless and until such
Holder (i) furnishes to the Company in writing the information specified in Item
507 and 508 of Regulation S-K, as applicable, of the 1933 Act for use in
connection with any Shelf Registration Statement or Prospectus or preliminary
prospectus included therein, (ii) agrees to promptly furnish additional
information required to be disclosed in order to make the information previously
furnished to the Company by such Holder not materially misleading and (iii) at
the Company's request, acknowledges in writing its agreement to be bound by the
provisions of this Agreement in accordance with Section 6(d) hereof.
In the case of a Shelf Registration Statement, each Holder agrees that,
upon receipt of any notice from the Company of the happening of any event of the
kind described in Section 3(e) hereof, such Holder will forthwith discontinue
disposition of Registrable Securities pursuant to a Registration Statement until
such Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 3(i) hereof, and, if so directed by the Company, such
Holder will deliver to the Company (at its expense) all copies in its
possession, other than permanent file copies then in such Holder's possession,
of the Prospectus covering such Registrable Securities current at the time of
receipt of such notice.
If the Company shall give any such notice to suspend the disposition of
Registrable Securities pursuant to a Registration Statement, the Company 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.
The Holders of Registrable Securities covered by a Shelf Registration
Statement who desire to do so may sell such Registrable Securities in an
Underwritten Offering. In any such Underwritten Offering, the investment banker
or investment bankers and manager or managers (the "UNDERWRITERS") that will
administer the offering will be selected by the Majority Holders of the
Registrable Securities included in such offering and shall be reasonably
acceptable to the Company.
4. Participation of Broker-Dealers in Exchange Offer.
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<PAGE> 15
(a) The Staff of the SEC has taken the position that any
broker- dealer that receives Exchange Securities for its own account in
the Exchange Offer in exchange for Securities that were acquired by
such broker-dealer as a result of market-making or other trading
activities (a "PARTICIPATING BROKER-DEALER"), may be deemed to be an
"underwriter" within the meaning of the 1933 Act and must deliver a
prospectus meeting the requirements of the 1933 Act in connection with
any resale of such Exchange Securities.
The Company understands that it is the Staff's position that if the
Prospectus contained in the Exchange Offer Registration Statement includes a
plan of distribution containing a statement to the above effect and the means by
which Participating Broker-Dealers may resell the Exchange Securities, without
naming the Participating Broker-Dealers or specifying the amount of Exchange
Securities owned by them, such Prospectus may be delivered by Participating
Broker-Dealers to satisfy their prospectus delivery obligation under the 1933
Act in connection with resales of Exchange Securities for their own accounts, so
long as the Prospectus otherwise meets the requirements of the 1933 Act.
(b) In light of the above Section 4(a), notwithstanding the
other provisions of this Agreement, the Company agrees that the
provisions of this Agreement as they relate to a Shelf Registration
shall also apply to an Exchange Offer Registration to the extent, and
with such reasonable modifications thereto as may be reasonably
requested by the Initial Purchasers or by one or more Participating
Broker-Dealers, in each case, as provided in clause 4(b)(ii) below, in
order to expedite or facilitate the disposition of any Exchange
Securities by Participating Broker-Dealers consistent with the
positions of the Staff recited in Section 4(a) above; provided that:
(i) the Company shall not be required to amend or
supplement the Prospectus contained in the Exchange Offer
Registration Statement, as would otherwise be contemplated by
Section 3(i), for a period exceeding 180 days after the Offer
Termination Date (as such period may be extended pursuant to
the penultimate paragraph of Section 3) and Participating
Broker- Dealers shall not be authorized by the Company to
deliver and shall not deliver such Prospectus after such
period in connection with the resales contemplated by this
Section; and
(ii) the application of the Shelf Registration
procedures set forth in Section 3 of this Agreement to an
Exchange Offer Registration, to the extent not required by the
positions of the Staff of the SEC or the 1933 Act and the
rules and regulations thereunder, will be in conformity with
the reasonable request to the
15
<PAGE> 16
Company by the Initial Purchasers or with the reasonable
request in writing to the Company by one or more
broker-dealers who certify to the Initial Purchasers and the
Company in writing that they anticipate that they will be
Participating Broker-Dealers; and provided further that, in
connection with such application of the Shelf Registration
procedures set forth in Section 3 to an Exchange Offer
Registration, the Company shall be obligated (x) to deal only
with one entity representing the Participating Broker-Dealers,
which shall be Salomon Smith Barney unless it elects not to
act as a representative, (y) to pay the fees and expenses of
only one counsel representing the Participating
Broker-Dealers, which shall be counsel to the Initial
Purchasers unless such counsel elects not to so act and, in
such case, shall be reasonably acceptable to the Company and
(z) to cause to be delivered only one, if any, "cold comfort"
letter with respect to the Prospectus in the form existing on
the Offer Termination Date and with respect to each subsequent
amendment or supplement, if any, effected during the period
specified in clause (i) above.
5. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless the
Initial Purchasers, each affiliate of an Initial Purchaser which
participated in the distribution of the Securities, each of their
respective directors, officers and employees, each Holder and each
Person, if any, who controls the Initial Purchasers or any Holder
within the meaning of either Section 15 of the 1933 Act or Section 20
of the 1934 Act, from and against any and all losses, claims, damages
and liabilities (including without limitation the reasonable legal fees
and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted) arising out of or based upon any
untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement (or any amendment thereto
pursuant to which Exchange Securities or Registrable Securities were
registered under the 1933 Act, including all documents incorporated
therein by reference), or arising out of or based upon any omissions or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, or
arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in any Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto, including all documents incorporated therein by
reference), or arising out of or based upon any omission or alleged
omission to state therein a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, except insofar as such losses, claims,
damages or liabilities arise
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<PAGE> 17
out of or are based upon any untrue statement or omission or alleged
untrue statement or omission which has been made therein or omitted
therefrom in reliance upon and in conformity with the information
relating to such Initial Purchasers or Holder furnished in writing to
the Company by or on behalf of any Initial Purchaser or Holder
expressly for use in connection therewith; provided, however, that the
Company shall not be liable under the indemnity agreement provided in
this subsection (a) to any Initial Purchaser, Holder or controlling
person with respect to any preliminary prospectus to the extent that
the Company shall sustain the burden of proving that any such loss,
claim, damage or liability resulted from the fact that such Initial
Purchaser, Holder or controlling person, in contravention of a
requirement of applicable law, sold Exchange Securities to a person to
whom such Initial Purchaser, Holder or controlling person failed to
send or give, on or prior to the closing date of such sale, a copy of
the final Prospectus, as then amended or supplemented, if (i) the
Company has previously furnished copies thereof (sufficiently in
advance of such closing date to allow for distribution by the closing
date) to such Initial Purchaser, Holder or controlling person, and the
loss, claim, damage or liability of such Initial Purchaser, Holder or
controlling person resulted from an untrue statement or omission of a
material fact contained in or omitted from the preliminary prospectus
that was corrected in the final Prospectus as, if applicable, amended
or supplemented prior to such closing date, and such final Prospectus
was required by law to be delivered at or prior to the written
confirmation of sale to such person and (ii) such failure to give or
send such final Prospectus by such closing date to the party or parties
asserting such loss, claim, damage or liability would have constituted
a defense to the claim asserted by such person.
(b) Each of the Initial Purchasers and Holders agree,
severally and not jointly, to indemnify and hold harmless the Company,
its directors and officers who sign the Registration Statement, and any
Person who controls the Company within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, to the same extent as the
foregoing indemnity from the Company to the Initial Purchasers and
Holders, but only with respect to such untrue statements or omissions,
or such alleged untrue statements or omissions, contained in any such
Registration Statement (or any such amendment thereto) in reliance upon
and in conformity with information relating to each Initial Purchaser
or Holder furnished in writing by or on behalf of such Initial
Purchaser or Holder expressly for use in any Registration Statement (or
any amendment thereto) or any Prospectus (or any amendment or
supplement thereto).
(c) If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand shall be
brought or asserted against any Person in respect of which indemnity
may be sought pursuant
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<PAGE> 18
to either of the two preceding paragraphs, such Person (the
"INDEMNIFIED PERSON") shall promptly notify the Person against whom
such indemnity may be sought (the "INDEMNIFYING PERSON") in writing,
and the Indemnifying Person, upon request of the Indemnified Person,
shall retain counsel reasonably satisfactory to the Indemnified Person
to represent the Indemnified Person and any others the Indemnifying
Person may designate in such proceeding and shall pay the reasonable
fees and expenses of such counsel related to such proceeding. The
Indemnifying Person may participate at its own expense in the defense
of any such action and, to the extent that it wishes, jointly with any
other similarly notified Indemnifying Person, assume the defense
thereof. After notice from the Indemnifying Person to the Indemnified
Person of its election to assume the defense of such claim or action,
the Indemnifying Person shall not be liable to the Indemnified Person
under this Section 5 for any legal or other expenses subsequently
incurred by the Indemnified Person in connection with the defense
thereof other than the reasonable costs of investigation.
Notwithstanding the foregoing, in any such proceeding, any Indemnified
Person shall have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such Indemnified
Person unless (i) the Indemnifying Person and the Indemnified Person
shall have mutually agreed to the contrary, (ii) the Indemnifying
Person has failed within a reasonable time to retain counsel reasonably
satisfactory to the Indemnified Person or (iii) the named parties in
any such proceeding (including any impleaded parties) include both the
Indemnifying Person and the Indemnified Person and representation of
both parties by the same counsel would be inappropriate due to actual
or potential differing interests between them. It is understood that
the Indemnifying Person shall not, in connection with any proceeding or
related proceeding in the same jurisdiction, be liable for (a) the fees
and expenses of more than one separate firm (in addition to any local
counsel) for the Initial Purchasers and all Persons, if any, who
control the Initial Purchasers within the meaning of either Section 15
of the 1933 Act or Section 20 of the 1934 Act, (b) the fees and
expenses of more than one separate firm (in addition to any local
counsel) for the Company, its directors, its officers who sign the
Registration Statement and each Person, if any, who controls the
Company within the meaning of either such Section and (c) the fees and
expenses of more than one separate firm (in addition to any local
counsel) for all Holders and all Persons, if any, who control any
Holders within the meaning of either such Section. Any such separate
firm for the Initial Purchasers and such control Persons of Initial
Purchasers shall be designated in writing by the Representatives, any
such separate firm for the Holders and such Persons who control Holders
shall be designated in writing by the Majority Holders and any such
separate firm for the Company, its directors, its officers and such
control Persons of the Company shall be designated in writing by the
Company. The Indemnifying
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<PAGE> 19
Person shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent
or if there be a final judgment for the plaintiff, the Indemnifying
Person agrees to indemnify any Indemnified Person from and against any
loss or liability by reason of such settlement or judgment. No
Indemnifying Person shall, without the prior written consent of the
Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have
been a party and indemnity could have been sought hereunder by such
Indemnified Person, unless such settlement includes an unconditional
release of such Indemnified Person from all liability on claims that
are the subject matter of such proceeding.
(d) If the indemnification provided for in this Section is
unavailable to an Indemnified Person under paragraphs (a) or (b) hereof
in respect of any losses, claims, damages or liabilities referred to
therein, then an Indemnifying Person, in lieu of indemnifying such
Indemnified Person, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities in such proportion as is appropriate to reflect the
relative fault of the Company on the one hand and the Initial
Purchasers or Holders on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable considerations.
The relative fault of the Company on the one hand and the Initial
Purchasers or Holders on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company on
the one hand or by Initial Purchasers or the Holders on the other hand
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) The Company, the Initial Purchasers and each Holder agree
that it would not be just or equitable if contribution pursuant to this
Section were determined by pro rata allocation (even if the Initial
Purchasers and the Holders were treated as one entity for such purpose)
or by any other method of allocation that does not take account of the
equitable considerations referred to in paragraph 5(d) above. The
amount paid or payable by an Indemnified Person as a result of the
losses, claims, damages and liabilities referred to in paragraph 5(d)
above shall be deemed to include, subject to the limitations set forth
above, any reasonable legal or other expenses incurred by such
Indemnified Person in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section,
no Initial Purchaser or Holder shall be required to contribute any
amount in excess of the amount by which the total price at which
Registrable Securities were sold by such Initial Purchaser or
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<PAGE> 20
Holder exceeds the amount of any damages that such Initial Purchaser or
Holder has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No Person
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 1933 Act) shall be entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation. The
Holders' respective obligations to contribute pursuant to this Section
are several in proportion to the aggregate principal amount of
Registrable Securities sold by them pursuant to such Registration
Statement. The remedies provided for in this Section are not exclusive
and shall not limit any rights or remedies which may otherwise be
available to any Indemnified Party at law or in equity.
(f) Any losses, claims, damages or liabilities for which an
Indemnified Person is entitled to indemnification or contribution under
this Section shall be paid by the Indemnifying Person to the
Indemnified Person as such losses, claims, damages or liabilities are
incurred. The indemnity and contribution agreements contained in this
Section and the representations and warranties of the Company set forth
in this Agreement shall remain operative and in full force and effect,
regardless of (i) any investigation made by or on behalf of any Initial
Purchaser, any Holder or any Person controlling any Initial Purchaser,
any Holder, the Company's directors or officers or any Person
controlling the Company, (ii) acceptance of any Exchange Securities
(iii) any termination of this Agreement and (iv) any sale of
Registrable Securities pursuant to a Shelf Registration Statement.
6. Miscellaneous.
(a) No Inconsistent Agreements. The Company has not entered
into, and on or after the date of this Agreement will not enter into,
any agreement which is inconsistent with the rights granted to the
Holders of Registrable Securities in this Agreement or otherwise
conflicts with the provisions hereof. The rights granted to the Holders
hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of the Company's other issued and
outstanding securities under any such agreements.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified
or supplemented, and waivers or consents to departures from the
provisions hereof may not be given unless the Company has obtained the
written consent of Holders of at least a majority in aggregate
principal amount of the outstanding Registrable Securities affected by
such amendment, modification, supplement, waiver or consent; provided,
however, that no amendment, modification, supplement, waiver or consent
to any departure
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<PAGE> 21
from the provisions of Section 5 hereof shall be effective as against
any Holder of Registrable Securities unless consented to in writing by
such Holder.
(c) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery,
registered first-class mail, telex, telecopier, or any courier
guaranteeing overnight delivery (i) if to a Holder, at the most current
address given by such Holder to the Company by means of a notice given
in accordance with the provisions of this Section, which address
initially is, with respect to the Initial Purchasers, the address set
forth in the Purchase Agreement; and (ii) if to the Company, initially
at the Company's address set forth in the Purchase Agreement and
thereafter at such other address, notice of which is given in
accordance with the provisions of this Section.
All such notices and communications shall be deemed to have been duly
given at the time delivered, if personally delivered; five business days after
being deposited in the mail, postage pre-paid, if mailed; when receipt is
acknowledged, if telecopied; and on the next business day if timely delivered to
an air courier guaranteeing overnight delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the relevant Indenture.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees
of each of the parties, including, without limitation and without the
need for an express assignment or assumption, subsequent Holders;
provided that nothing herein shall be deemed to permit any assignment,
transfer or other disposition of Registrable Securities in violation of
the terms of the Purchase Agreement. If any transferee of any Holder
shall acquire Registrable Securities, in any manner, whether by
operation of law or otherwise, such Registrable Securities shall be
held subject to all of the terms of this Agreement and by taking and
holding such Registrable Securities, such Person shall be conclusively
deemed to have agreed to be bound by and to perform all of the terms
and provisions of this Agreement and such Person shall be entitled to
the benefits hereof. The Initial Purchasers shall have no liability or
obligation to the Company with respect to any failure by any other
Holder to comply with, or any breach by any other Holder of, the
obligations of such Holder under this Agreement.
(e) Purchases and Sales of Securities. The Company shall not,
and shall cause its affiliates (as defined in rule 405 under the 1993
Act) not
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<PAGE> 22
to, purchase and then resell or otherwise transfer any Securities
(other than Exchange Securities) other than to the Company or its
affiliates.
(f) Third Party Beneficiary. Each Holder shall be a third
party beneficiary to the agreements made hereunder between the Company,
on the one hand, and the Initial Purchasers, on the other hand, and
shall have the right to enforce such agreements directly to the extent
it deems such enforcement necessary or advisable to protect its rights
or the rights of Holders hereunder.
(g) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and
all of which taken together shall constitute one and the same
agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
(i) Governing Law. This Agreement shall be governed by laws of
the State of New York.
(j) Severability. In the event that one or more of the
provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable, the validity,
legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be
affected or impaired thereby.
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<PAGE> 23
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
WILLIAMS COMMUNICATIONS GROUP, INC.
By /s/ HOWARD KALIKA
---------------------------------
Name: Howard Kalika
Title: Vice President
SALOMON SMITH BARNEY INC.
LEHMAN BROTHERS INC.
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
For themselves and as Representatives of
the other Initial Purchasers
By: SALOMON SMITH BARNEY INC.
By /s/ MARK J. COZZI
---------------------------------
Name: Mark J. Cozzi
Title: Director
By: LEHMAN BROTHERS INC.
By /s/ ROBERT G. HEDLUND III
---------------------------------
Name: Robert G. Hedlund III
Title: Managing Director
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By /s/ LEX MAULTSBY
---------------------------------
Name: Lex Maultsby
Title: Vice President
