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EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "AGREEMENT") is made and
entered into as of September 19, 2000 by and among Williams Communications
Group, Inc., a Delaware corporation (the "COMPANY"), Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated ("MERRILL LYNCH"), Salomon
Smith Barney Inc. ("SALOMON SMITH BARNEY") and Lehman Brothers Inc. ("LEHMAN
BROTHERS") and each of the other Initial Purchasers party to the Purchase
Agreement referred to below (collectively, the "INITIAL PURCHASERS"), for whom
Merrill Lynch, Salomon Smith Barney and Lehman Brothers are acting as
representatives (the "REPRESENTATIVES").
This Agreement is made pursuant to the Purchase Agreement dated
September 14, 2000, among the Company and the Initial Purchasers (the "PURCHASE
AGREEMENT"), which provides for the sale by the Company to the Initial
Purchasers of up to 5,750,000 shares (including up to 750,000 shares that the
Company has granted the Initial Purchasers an option to purchase pursuant to the
Purchase Agreement) of its 6.75% Redeemable Cumulative Convertible Preferred
Stock, par value $.01 per share (the "PREFERRED STOCK"). The Preferred Stock
will be convertible into shares of Class A Common Stock, par value $0.01 per
share, of the Company (the "COMMON STOCK") at the conversion price set forth in
the Final Memorandum (as defined in the Purchase Agreement). For purposes of
this Agreement, the term "SECURITIES" refers to the Preferred Stock and all
shares of Common Stock issued on conversion thereof.
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:
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"1933 ACT" shall mean the Securities Act of 1933, as amended from time
to time.
"1934 ACT" shall mean the Securities Exchange Act of 1934, as amended
from time to time.
"CERTIFICATE OF DESIGNATIONS" shall mean the Certificate of
Designations relating to the Company's 6.75% Redeemable Cumulative Convertible
Preferred Stock, which sets forth the powers, preferences, rights,
qualifications, limitations and restrictions of the Preferred Stock.
"CLOSING DATE" shall mean the Closing Date as defined in the Purchase
Agreement.
"COMMON STOCK" shall have the meaning set forth in the preamble.
"COMPANY" shall have the meaning set forth in the preamble and shall
also include the Company's successors.'
"HOLDERS" shall mean the Initial Purchasers, for so long as they own
any Registrable Securities (except that for purposes of Section 4 hereof, the
Initial Purchasers shall always be considered Holders), and each of their
respective successors, assigns and direct and indirect transferees who become
registered owners of Registrable Securities.
"INITIAL PURCHASERS" shall have the meaning set forth in the preamble.
"MAJORITY HOLDERS" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Registrable Securities; provided that,
for purposes of Section 5(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.
"PERSON" shall mean an individual, partnership, limited liability
company, corporation, trust or unincorporated organization, or a government or
agency or political subdivision thereof.
"PREFERRED STOCK" shall have the meaning set forth in the preamble.
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"PURCHASE AGREEMENT" shall have the meaning set forth in the preamble.
"PROSPECTUS" shall mean the prospectus included in a Shelf 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 Shelf
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 Shelf Registration Statement, (ii) such Securities may be sold
to the public pursuant to Rule 144(k) (or any similar provision then in force,
but not Rule 144A) under the 1933 Act or (iii) such Securities shall have ceased
to be outstanding.
"REGISTRATION DEFAULTS" shall mean the occurrence of any of the
following events:
(i) on or prior to the 90th day following the date of original
issuance of the Preferred Stock, a Shelf Registration
Statement has not been filed with the SEC,
(ii) on or prior to the 180th day following the date of original
issuance of the Preferred Stock, a Shelf Registration
Statement has not been declared effective by the SEC or
(iii) after a Shelf Registration Statement has been declared
effective by the SEC, such Shelf Registration Statement
thereafter ceases to be effective or usable (except as
provided in the second to last paragraph of Section 3) in
connection with resales of the Registrable Securities during
the period specified in the third sentence of Section 2(a);
provided, however, that a Registration Default shall cease to occur and be cured
under clause (i) above at such time as the Shelf Registration Statement is
filed; under cause (ii) above at such time as the Shelf Registration Statement
is declared effective by the SEC; and under clause (iii) above at such time as
the Shelf Registration Statement becomes effective or usable again after ceasing
to be effective or usable.
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"REGISTRABLE SECURITIES" shall mean the Securities; provided, however,
that the Securities shall cease to be Registrable Securities when (i) a Shelf
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 Shelf Registration Statement, (ii) such Securities may be sold
to the public pursuant to Rule 144(k) (or any similar provision then in force,
but not Rule 144A) under the 1933 Act or (iii) such Securities shall have ceased
to be outstanding.
"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 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 Shelf
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 of the Transfer Agent, (vi)
the fees and disbursements of counsel for the Company and 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"), (vii) 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 (viii) the fees
and expenses of listing the Registrable Securities on any securities exchange or
quotation system in accordance with Section 3(n) 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.
"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(a) hereof.
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"SHELF REGISTRATION STATEMENT" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 2(a) 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 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.
"TRANSFER AGENT" shall mean the transfer agent with respect to the
Securities.
"UNDERWRITERS" shall have the meaning set forth in Section 3 hereof.
"UNDERWRITTEN REGISTRATION" or "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) The Company shall prepare, and not later than 90 days
following the date of original issuance of the Preferred Stock, shall
use its reasonable best efforts to cause to be filed with the SEC, a
Shelf Registration Statement providing for the sale by the Holders of
all of the Registrable Securities. The Company shall use its reasonable
best efforts to have the Shelf Registration Statement declared
effective by the SEC on or prior to the date that is 180 days after the
date of original issuance of the Preferred Stock. 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) under the 1933 Act 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 or if
reasonably requested by a Holder with respect to information relating
to such Holder and required by applicable law to be included therein,
and to use its reasonable best efforts to cause any such amendment to
become effective and such Shelf
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Registration Statement to become usable as soon thereafter as
practicable. 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.
(b) The Company shall pay all Registration Expenses in
connection with the registration pursuant to Section 2(a). 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 the Shelf Registration
Statement.
(c) The Shelf Registration Statement filed pursuant to Section
2(a) 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 the 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, the Shelf Registration Statement
will be deemed not to be effective during the period of such
interference until the offering of Registrable Securities pursuant to
the Shelf Registration Statement may legally resume.
(d) Upon the occurrence of a Registration Default, Holders
will be entitled to receive special dividend payments as provided in
the Certificate of Designations.
(e) 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) hereof
may result in material irreparable injury to the Initial Purchasers or
the Holders for which there is no adequate remedy at law, that it will
not be possible to measure damages for such injuries precisely and
that, in the event of any such failure, the Initial Purchasers or any
Holder may obtain such relief as may be required to specifically
enforce the Company's obligations under Section 2(a) hereof.
3. Registration Procedures.
In connection with the obligations of the Company with respect to the
Shelf Registration Statement pursuant to Section 2(a) hereof, the Company shall
reasonably promptly:
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(a) prepare and file with the SEC a Shelf Registration
Statement on the appropriate form under the 1933 Act, which form shall
(x) be selected by the Company, (y) 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
the Shelf 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 the Shelf Registration Statement as may be
necessary to keep the Shelf 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;
(c) 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;
(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 the Shelf Registration Statement shall reasonably
request in writing by the time the Shelf 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
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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) 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 the Shelf 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 the Shelf Registration Statement and Prospectus or for
additional information after the Shelf 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
the Shelf Registration Statement or the initiation of any proceedings
for that purpose, (iv) if, between the effective date of the Shelf
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 the Shelf Registration Statement is effective which makes
any statement made in the Shelf Registration Statement or the related
Prospectus untrue in any material respect or which requires the making
of any changes in the Shelf 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 the
Shelf Registration Statement would be appropriate;
(f) make every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of the Shelf Registration
Statement at the earliest possible moment and provide prompt notice to
each Holder of the withdrawal of any such order;
(g) furnish to each Holder of Registrable Securities, upon
request and without charge, at least one conformed copy of the Shelf
Registration Statement and any post-effective amendment thereto
(without documents incorporated therein by reference or exhibits
thereto, unless requested);
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(h) 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 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) 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 the Shelf 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 the Shelf
Registration Statement, any Prospectus, any amendment to the Shelf
Registration Statement or amendment or supplement to a Prospectus, or
any document which is to be incorporated by reference into the Shelf
Registration Statement or Prospectus after the initial filing of the
Shelf Registration Statement, upon request, provide copies of such
document to the Initial Purchasers and their counsel (and 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 counsel for the Holders) available for discussion of such
document, and shall not at any time file or make any amendment to the
Shelf Registration Statement, any Prospectus or any amendment of or
supplement to the Shelf Registration Statement or a Prospectus or any
document which is to be incorporated by reference into the Shelf
Registration Statement or a Prospectus, of which the Initial Purchasers
and their counsel (and counsel for the Holders) shall not have
previously been advised and furnished a copy or to which the Initial
Purchasers or their counsel (and counsel for the Holders) shall
reasonably object within five business days after receipt thereof;
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(k) obtain a CUSIP number for all Registrable Securities not
later than the effective date of the Shelf Registration Statement;
(l) make available for inspection by a representative of the
Holders of the Registrable Securities, any Underwriter participating in
any disposition pursuant to the 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 the Shelf Registration Statement, in each
case, that would customarily be reviewed or examined in connection with
a "DUE DILIGENCE" review of the Company;
(m) if reasonably requested by any Holder of Registrable
Securities covered by the Shelf 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;
(n) cause all Registrable Securities covered by the Shelf
Registration Statement (i) that consist of Common Stock to be listed on
each securities exchange or quotation system on which similar
securities issued by the Company are then listed, if so requested by
the Majority Holders and (ii) that consist of Preferred Stock to be
rated with the appropriate rating agencies, if so requested by the
Majority Holders; and
(o) in the case of an Underwritten Offering pursuant to the
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 Shelf
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
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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 of any business
acquired by the Company for which financial statements and financial
data are or are required to be included in the Shelf 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
contained 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.
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 Registrable 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 Items 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
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its agreement to be bound by the provisions of this Agreement in accordance with
Section 5(d) hereof.
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 the Shelf 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 the
Shelf Registration Statement, the Company shall extend the period during which
the Shelf 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 the 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. 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 other Holder and
each Person, if any, who controls the Initial Purchasers or any other
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 the Shelf Registration Statement (or any
amendment thereto pursuant to which Registrable Securities were
registered under the 1933 Act, including all documents incorporated
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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 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
other Holder furnished in writing to the Company by or on behalf of any
Initial Purchaser or other 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, other 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, other Holder or
controlling person, in contravention of a requirement of applicable
law, sold Registrable Securities to a person to whom such Initial
Purchaser, other 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, other Holder or controlling person, and the loss,
claim, damage or liability of such Initial Purchaser, other 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 Holder agrees, severally and not jointly, to
indemnify and hold harmless the Company, the Initial Purchasers, each
affiliate of an Initial Purchaser which participated in the
distribution of the Securities and
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each other selling Holder, and each of their respective directors,
officers who sign the Shelf Registration Statement, and any Person who
controls the Company, any Initial Purchaser and each other selling
Holder within the meaning of Section 15 of the Act or Section 20 of the
1934 Act, to the same extent as the foregoing indemnity from the
Company to the Initial Purchasers and other Holders, but only with
respect to such untrue statements or omissions, or such alleged untrue
statements or omissions, contained in the Shelf Registration Statement
(or any such amendment thereto) in reliance upon and in conformity with
information relating to such Initial Purchaser or other Holder
furnished in writing by or on behalf of such Initial Purchaser or other
Holder expressly for use in the Shelf 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 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 4 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
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<PAGE> 15
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
Shelf 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 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 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 Holders on the other
15
<PAGE> 16
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 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 and each Holder agree that it would not be
just or equitable if contribution pursuant to this Section were
determined by pro rata allocation or by any other method of allocation
that does not take account of the equitable considerations referred to
in paragraph 4(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 4(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 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 Holder exceeds the
amount of any damages that such 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 the
Shelf 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) any
16
<PAGE> 17
termination of this Agreement and (iii) any sale of Registrable
Securities pursuant to the Shelf Registration Statement.
5. 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 from the provisions of Section 4 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.
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<PAGE> 18
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 to, purchase and then resell or otherwise transfer any
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.
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<PAGE> 19
(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> 20
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
WILLIAMS COMMUNICATIONS GROUP, INC.
By /s/ HOWARD S. KALIKA
-----------------------------------------
Name: Howard S. Kalika
Title: Vice President
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
SALOMON SMITH BARNEY INC.
LEHMAN BROTHERS INC.
For themselves and as Representatives of
the other Initial Purchasers
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By /s/ MARK C. BRUEGGER
-----------------------------------
Name: Mark C. Bruegger
Title: Vice President, [ILLEGIBLE]
By: SALOMON SMITH BARNEY INC.
By /s/ RICHARD BLACKETT
-----------------------------------
Name: Richard Blackett
Title: Managing Director
By: LEHMAN BROTHERS INC.
By /s/ LAWRENCE M. BAND
-----------------------------------
Name: Lawrence M. Band
Title: Managing Director
