EXHIBIT 4.03
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered
into as of May 19, 1998 among United States Filter Corporation, a Delaware
corporation (the "Company"), and NationsBanc Xxxxxxxxxx Securities LLC,
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation and Salomon Brothers Inc
(collectively, the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement, dated as of May
14, 1998 (the "ROARS Purchase Agreement"), between the Company, as issuer of
the 6.375% Remarketable or Redeemable Securities due May 15, 2011 (the "6.375%
ROARS") and the 6.50% Remarketable or Redeemable Securities due May 15, 2013
(the "6.50% ROARS" and, together with the 6.375% ROARS, the "ROARS"), and the
Initial Purchasers, which provides for, among other things, the sale by the
Company to the Initial Purchasers of the aggregate principal amount of ROARS
specified therein. 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
set forth in this Agreement. The execution and delivery of this Agreement is a
condition to the closings 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:
"Advice" shall have the meaning set forth in the last paragraph of Section 3
hereof.
"Affiliate" has the same meaning as given to that term in Rule 405 under the
Securities Act or any successor rule thereunder.
"Applicable Period" shall have the meaning set forth in Section 3(u) hereof.
"Business Day" shall mean any day other than a Saturday, a Sunday or a day
on which banking institutions in the City of New York, New York are authorized
or required by law or executive order to remain closed.
"Closing Time" shall mean the Closing Time as defined in the Purchase
Agreement.
"Company" shall have the meaning set forth in the preamble to this Agreement
and also includes the Company's successors and permitted assigns.
"Depositary" shall mean The Depository Trust Company, or any other
depositary appointed by the Company; provided that such depositary must have
an address in the Borough of Manhattan, in The City of New York, New York.
"Effectiveness Period" shall have the meaning set forth in Section 2(b)
hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended
from time to time.
"Exchange ROARS" shall mean the 6.375% Remarketable or Redeemable Securities
due May 15, 2011 and the 6.50% Remarketable or Redeemable Securities due May
15, 2013 issued by the Company under the Indenture containing terms identical
to the 6.375% ROARS and the 6.50% ROARS, respectively (except that (x)
interest thereon shall accrue from the last date on which interest has been
paid on the 6.375% ROARS and the 6.50% ROARS, respectively, or, if no such
interest has been paid, from the date of the original issue of the ROARS, (y)
they will not contain terms with respect to transfer restrictions under the
Securities Act and will not provide for any Liquidated Damages thereon and (z)
if the proposed acquisition of Culligan Water Technologies,
Inc. by the Company has been consummated on terms substantially similar to
those contained in the Culligan Merger Agreement (as defined in the Indenture)
on or before the issue date of the Exchange ROARS, they will not contain terms
relating to the Repurchase Right (as defined in the Indenture)).
"Exchange Offer" shall mean the offer by the Company to the Holders to
exchange all of the Registrable ROARS for a like amount of Exchange ROARS of
the equivalent series pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the Securities
Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate
form), and all amendments and supplements to such registration statement, in
each case including the Prospectus contained therein, all exhibits thereto and
all documents incorporated by reference therein.
"Exchange Period" shall have the meaning set forth in Section 2(a) hereof.
"Holder" shall mean any Initial Purchaser, for so long as it owns any
Registrable ROARS, and each of its direct and indirect transferees who become
registered owners of Registrable ROARS under the Indenture.
"Indenture" shall mean the Indenture, dated as of May 19, 1998, between the
Company, as issuer, and The Bank of New York, as trustee, and the supplemental
indenture thereto, dated as of May 19, 1998, as the same may be further
amended or supplemented from time to time in accordance with the terms
thereof.
"Initial Purchasers" shall have the meaning set forth in the preamble.
"Inspectors" shall have the meaning set forth in Section 3(o) hereof.
"Issue Date" shall mean May 19, 1998, the date of delivery of the ROARS from
the Company to the Initial Purchasers.
"Liquidated Damages" shall have the meaning set forth in Section 2(e)
hereof.
"Majority Holders" shall mean the Holders of a majority of the aggregate
principal amount of outstanding ROARS.
"Participating Broker-Dealer" shall have the meaning set forth in Section
3(u) hereof.
"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization, limited liability company or a government or
agency or political subdivision thereof.
"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
ROARS covered by a Shelf Registration Statement, and by all other amendments
and supplements to a prospectus, including post-effective amendments, and in
each case including all documents incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble to
this Agreement.
"Records" shall have the meaning set forth in Section 3(o) hereof.
"Registrable ROARS" shall mean all ROARS; provided, however, that ROARS
shall cease to be Registrable ROARS when the earlier of the following occurs:
(i) a Registration Statement with respect to such ROARS for the exchange or
resale thereof shall have been declared effective under the Securities Act and
such ROARS shall have been exchanged or disposed of pursuant to such
Registration Statement, (ii) such ROARS
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shall have been sold pursuant to Rule 144(k) (or any similar provision then in
force, but not Rule 144A) under the Securities Act or are eligible to be sold
without restriction as contemplated by Rule 144(k), (iii) such ROARS shall
have ceased to be outstanding, (iv) no Shelf Registration Event has occurred
and the Exchange Offer has concluded in accordance with the provisions hereof,
or (v) upon consummation of the Exchange Offer but only with respect to ROARS
held by a Holder that are eligible to receive fully tradeable Exchange ROARS
in connection with 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 or National Association of Securities Dealers,
Inc. (the "NASD") registration and filing fees, including, if applicable, the
fees and expenses of any "qualified independent underwriter" (and its counsel)
that is required to be retained by any Holder of Registrable ROARS in
accordance with the rules and regulations of the NASD, (ii) all fees and
expenses incurred in connection with compliance with state securities or blue
sky laws (including reasonable fees and disbursements of one counsel for all
underwriters or Holders as a group in connection with blue sky qualification
of any of the Exchange ROARS or Registrable ROARS) and compliance with the
rules of the NASD, (iii) all expenses of any Persons in preparing or assisting
in preparing, word processing, printing and distributing any Registration
Statement, any Prospectus and any amendments or supplements thereto, and in
preparing or assisting in preparing, printing and distributing 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 expenses incurred in connection with the
listing, if any, of any of the Exchange ROARS on any securities exchange or
exchanges, (vi) the fees and disbursements of counsel for the Company and of
the independent certified public accountants of the Company, including the
expenses of any "cold comfort" letters required by or incident to the
performance of and compliance with this Agreement, (vi) the reasonable fees
and expenses of the Trustee and its counsel and any exchange agent, escrow
agent or custodian, and (vii) any fees and disbursements of the underwriters
customarily required to be paid by issuers or sellers of securities and the
reasonable fees and expenses of any special experts retained by the Company in
connection with any Registration Statement, but excluding fees of counsel to
the underwriters or the Holders and underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of Registrable
ROARS by a Holder.
"Registration Statement" shall mean any registration statement of the
Company which covers any Exchange ROARS or Registrable ROARS 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
documents incorporated by reference therein.
"Representative" shall have the meaning set forth in Section 3(a) hereof.
"ROARS" shall have the meaning set forth in the preamble to this Agreement.
"Rule 144(k) Period" shall mean the period of two years (or such other
period as may hereafter be referred to in Rule 144(k) under the Securities Act
(or similar successor rule)) commencing on the Issue Date.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended from time
to time.
"Shelf Registration" shall mean a registration effected pursuant to Section
2(b) hereof.
"Shelf Registration Event" shall have the meaning set forth in Section 2(b)
hereof.
"Shelf Registration Event Date" shall have the meaning set forth in Section
2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration statement
of the Company pursuant to the provisions of Section 2(b) hereof which covers
all of the Registrable ROARS on an appropriate form under Rule 415 under the
Securities Act, or any similar rule that may be adopted by the SEC, and all
amendments and
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supplements to such registration statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all documents incorporated by reference therein.
"TIA" shall have the meaning set forth in Section 3(l) hereof.
"Trustee" shall mean the trustee under the Indenture.
2. Registration Under the Securities Act.
(a) Exchange Offer. Except as set forth in Section 2(b) below, the Company
shall, for the benefit of the Holders, at the Company's cost (i) cause to be
filed with the SEC an Exchange Offer Registration Statement on an appropriate
form under the Securities Act relating to the Exchange Offer within 120
calendar days after the Issue Date (the "Filing Date"), (ii) use its
reasonable best efforts to cause such Exchange Offer Registration Statement to
be declared effective under the Securities Act by the SEC within 180 calendar
days after the Issue Date (the "Effective Date"), (iii) use its reasonable
best efforts to keep such Exchange Offer Registration Statement effective for
not less than 20 Business Days (or longer if required by applicable law) after
the date notice of the Exchange Offer is mailed to the Holders and (iv) use
its reasonable best efforts to cause the Exchange Offer to be consummated
within 35 calendar days after the date that the Exchange Offer Registration
Statement is declared effective (the "Consummation Date"). Promptly after the
effectiveness of the Exchange Offer Registration Statement, the Company shall
commence the Exchange Offer, it being the objective of such Exchange Offer to
enable each eligible Holder to exchange Registrable ROARS for a like principal
amount of Exchange ROARS of the equivalent series (provided that such Holder
(i) is not an Affiliate of the Company, (ii) is not a broker-dealer tendering
Registrable ROARS acquired directly from the Company, (iii) acquires the
Exchange ROARS in the ordinary course of such Holder's business and (iv) has
no arrangements or understandings with any Person to participate in the
Exchange Offer for the purpose of distributing Exchange ROARS).
In connection with the Exchange Offer, the Company shall:
(i) mail to each Holder a copy of the Prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter
of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less
than 20 Business Days after the date notice thereof is mailed to the
Holders (or longer if required by applicable law) (such period referred to
herein as the "Exchange Period");
(iii) utilize the services of the Depositary for the Exchange Offer with
respect to ROARS represented by a global certificate;
(iv) permit each Holder to withdraw tendered ROARS at any time prior to
the close of business, New York City time, on the last Business Day of the
Exchange Period, by sending to the institution specified in the notice to
Holders, a telegram, telex, facsimile transmission or letter setting forth
the name of such Holder, the series and amount of ROARS delivered for
exchange, and a statement that such Holder is withdrawing its election to
have such ROARS exchanged;
(v) notify each Holder that any ROARS not tendered by such Holder in the
Exchange Offer will remain outstanding and continue to accrue interest but
will not retain any rights under this Agreement (except in the case of the
Initial Purchasers and Participating Broker-Dealers as provided herein);
and
(vi) otherwise comply in all respects with all applicable laws relating
to the Exchange Offer.
As soon as practicable after the close of the Exchange Offer, the Company
shall:
(1) accept for exchange all ROARS or portions thereof tendered and not
validly withdrawn pursuant to the Exchange Offer;
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(2) deliver, or cause to be delivered, to the Trustee for cancellation all
ROARS or portions thereof so accepted for exchange by the Company; and
(3) issue, and cause the Trustee under the Indenture to promptly
authenticate and deliver to each Holder, Exchange ROARS of the equivalent
series equal in principal amount to the principal amount of the ROARS
surrendered by such Holder.
Interest on each Exchange ROARS issued pursuant to the Exchange Offer will
accrue from the last date on which interest was paid on the ROARS surrendered
in exchange therefor or, if no interest has been paid on such ROARS, from the
Issue Date. To the extent not prohibited by any law or applicable
interpretation of the staff of the SEC, 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 Securities Act, the Exchange
Act and other applicable laws in connection with the Exchange Offer. The
Exchange Offer shall not be subject to any conditions other than the
conditions referred to in Section 2(b)(i) below and those conditions that are
customary in similar exchange offers. Each Holder of Registrable ROARS who
wishes to exchange such Registrable ROARS for Exchange ROARS in the Exchange
Offer will be required to make certain customary representations in connection
therewith, including representations that (i) it is not an Affiliate of the
Company, (ii) it is not a broker-dealer tendering Registrable ROARS acquired
directly from the Company, (iii) the Exchange ROARS to be received by it are
being acquired in the ordinary course of its business and (iv) at the time of
the Exchange Offer, it has no arrangements or understandings with any Person
to participate in the distribution (within the meaning of the Securities Act)
of Exchange ROARS. The Company shall inform the Initial Purchasers, after
consultation with the Trustee, of the names and addresses of the Holders to
whom the Exchange Offer is made, and the Initial Purchasers shall have the
right to contact such Holders in order to facilitate the tender of Registrable
ROARS in the Exchange Offer.
Upon consummation of the Exchange Offer in accordance with this Section
2(a), the provisions of this Agreement shall continue to apply, mutatis
mutandis, solely with respect to Exchange ROARS held by Participating Broker-
Dealers to the extent of any prospectus delivery requirement for a period of
60 days after the Exchange Offer is consummated, and the Company shall not
have any further obligation to register the Registrable ROARS held by any
Holder (other than any Initial Purchaser) pursuant to Section 2(b) of this
Agreement.
(b) Shelf Registration. In the event that (i) the Company reasonably
determines, after conferring with counsel (which may be in-house counsel),
that the Exchange Offer Registration provided in Section 2(a) above is not
available under applicable law and regulations and currently prevailing
interpretations of the staff of the SEC, (ii) the Exchange Offer is not
consummated within 215 calendar days after the Issue Date or (iii) upon the
request of any Initial Purchaser with respect to any Registrable ROARS held by
it, if such Initial Purchaser is not permitted, in the written opinion of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, pursuant to applicable law or
applicable interpretations of the staff of the SEC, to participate in the
Exchange Offer and thereby receive securities that are freely tradeable
without restriction under the Securities Act and applicable blue sky or state
securities laws (any of the events specified in (i), (ii) or (iii) being a
"Shelf Registration Event," and the date of occurrence thereof being the
"Shelf Registration Event Date"), then in addition to or in lieu of conducting
the Exchange Offer contemplated by Section 2(a), as the case may be, the
Company shall promptly notify the Holders and shall, at its cost, use its
reasonable best efforts to cause to be filed as promptly as practicable after
such Shelf Registration Event Date, a Shelf Registration Statement providing
for the sale by the Holders of all of the Registrable ROARS, and shall use its
reasonable best efforts to have such Shelf Registration Statement declared
effective by the SEC as soon as practicable. No Holder of Registrable ROARS
shall be entitled to include any of its Registrable ROARS in any Shelf
Registration pursuant to this Agreement unless and until such Holder agrees in
writing to be bound by all of the provisions of this Agreement applicable to
such Holder and furnishes to the Company in writing, within 10 days after
receipt of a request therefor, such information as the Company may, after
conferring with counsel with regard to information relating to Holders that
would be required by the SEC to be included in such Shelf Registration
Statement or Prospectus included therein, reasonably request for inclusion in
any Shelf Registration Statement or Prospectus included therein. Each Holder
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as to which any Shelf Registration is being effected agrees to furnish to the
Company all information with respect to such Holder necessary to make the
information previously furnished to the Company by such Holder not materially
misleading.
The Company agrees to use its reasonable best efforts to keep the Shelf
Registration Statement continuously effective and the Prospectus usable for
resales until the earlier of: (a) the end of the Rule 144(k) Period or (b)
such time as all of the Registrable ROARS covered by the Shelf Registration
Statement have been sold pursuant to the Shelf Registration Statement or cease
to be Registrable ROARS (the "Effectiveness Period"). The Company shall not
permit any securities other than (i) the Company's issued and outstanding
securities currently possessing incidental registration rights and (ii)
Registrable ROARS to be included in the Shelf Registration. The Company will,
in the event a Shelf Registration Statement is declared effective, provide to
each Holder a reasonable number of copies of the Prospectus which is a part of
the Shelf Registration Statement, notify each such Holder when the Shelf
Registration has become effective and take any other action required to permit
unrestricted resales of the Registrable ROARS. The Company further agrees, if
necessary, 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 Securities Act or by any other rules and regulations thereunder for
shelf registrations, and the Company agrees to furnish to the Holders of
Registrable ROARS copies of any such supplement or amendment promptly after it
has been filed with the SEC.
(c) Expenses. The Company shall pay all Registration Expenses in connection
with any Registration Statement filed pursuant to Section 2(a) or 2(b) hereof.
Each Holder shall pay all expenses of its counsel, underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or disposition of
such Holder's Registrable ROARS pursuant to the Shelf Registration Statement.
(d) Effective Registration Statement. 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 Exchange Offer or the offering of
Registrable ROARS pursuant to such 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 Exchange Offer Registration
Statement or Shelf Registration Statement will be deemed not to have been
effective during the period of such interference, until the Exchange Offer or
the offering of Registrable ROARS pursuant to such Registration Statement may
legally resume.
(e) Liquidated Damages. In the event that, with respect to either series of
ROARS:
(i) the Exchange Offer Registration Statement for such series is not
filed with the Commission by the Filing Date, the Exchange Offer
Registration Statement is not declared effective by the Commission by the
Effective Date or the Exchange Offer for such series is not consummated on
or prior to the Consummation Date (unless changes in law or the applicable
interpretation of the staff does not permit the Company to effect the
Exchange Offer, in which case clause (ii) shall apply); or
(ii) any Shelf Registration Statement with respect to the ROARS of such
series required to be filed pursuant to clause (i) or (iii) of Section 2(b)
is not declared effective (or shall thereafter cease to be effective,
except for a 45-day grace period within any 12 month period as the result
of the occurrence of an event specified in Section 3(e)(iii), 3(e)(iv),
3(e)(v) or 3(e)(vi), prior to the earlier of the second anniversary of the
Issue Date or until all ROARS have been sold thereunder) under the
Securities Act on or prior to the later of the 215th calendar day after the
date of the original issuance of such ROARS and the 60th calendar day after
the publication of the change in law or interpretation;
then Liquidated Damages shall accrue on the principal amount of the ROARS at a
rate of 0.50% per annum for the first 90 days immediately following each such
date and such Liquidated Damages rate shall increase to 1.0% per annum
commencing on the 91st day following each such date; provided, however, that
upon (1) filing of the
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Exchange Offer Registration Statement after the Filing Date or the declaration
of the Effectiveness of the Exchange Offer Registration Statement after the
Effective Date or the consummation of the Exchange Offer after the
Consummation Date, as applicable as described in clause (i) above or (2) the
effectiveness of a Shelf Registration Statement after the 215th or 60th
calendar day, as applicable, described in clause (ii) above (or if the Shelf
Registration Statement ceased to be effective as described above, once the
Shelf Registration Statement again becomes effective), any increase in the
interest rate of the applicable series of ROARS will cease to be effective.
Any amounts of Liquidated Damages due pursuant to Section 2(e)(i) or (ii)
above will be payable in cash on the next succeeding May 15 or November 15, as
the case may be, to Holders on the relevant record dates for the payment of
interest pursuant to the Indenture.
3. Registration Procedures. In connection with the obligations of the
Company pursuant to Sections 2(a) and 2(b) hereof, the Company shall use its
reasonable best efforts to:
(a) prepare and file with the SEC a Registration Statement or Registration
Statements as prescribed by Sections 2(a) and 2(b) hereof within the relevant
time periods specified in Section 2 hereof on the appropriate form under the
Securities Act, (x) which form shall (i) be selected by the Company and (ii)
in the case of a Shelf Registration, be available for the sale of the
Registrable ROARS by the selling Holders thereof and, in the case of an
Exchange Offer, be available for the exchange of Registrable ROARS, and (y)
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 to cause such Registration Statement to become effective
and remain effective (and, in the case of a Shelf Registration Statement, the
Prospectus to remain usable for resales) in accordance with Section 2 hereof;
provided, however, that if (1) such filing is pursuant to Section 2(b) or (2)
a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2(a) is required to be delivered under the Securities Act
by any Participating Broker-Dealer who seeks to sell Exchange ROARS, before
filing any such Registration Statement or Prospectus or any amendments or
supplements thereto, the Company shall furnish to a representative designated
by the Majority Holders (the "Representative") which, unless other notice is
given to the Company, shall be the Initial Purchasers and their counsel and
afford such Persons a reasonable opportunity to review copies of all such
documents (including copies of any documents to be incorporated by reference
therein and all exhibits thereto which have been previously filed with the
SEC) proposed to be filed; and the Company shall not file any such
Registration Statement or Prospectus or any amendments or supplements thereto
in respect of which the Representative must be afforded an opportunity to
review prior to the filing of such document if the Representative and their
counsel shall reasonably object in a timely manner;
(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 Exchange Period, the Effectiveness
Period or the Applicable Period, as the case may be, and cause each Prospectus
to be supplemented, if determined by the Company or requested by the SEC, by
any required prospectus supplement and as so supplemented to be filed pursuant
to Rule 424 (or any similar provision then in force) under the Securities Act,
and comply with the provisions of the Securities Act, the Exchange Act and the
rules and regulations promulgated thereunder applicable to it with respect to
the disposition of all securities covered by a Registration Statement during
the Effectiveness Period or the Applicable Period, as the case may be, in
accordance with the intended method or methods of distribution by the selling
Holders thereof described in this Agreement (including sales by any
Participating Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each Holder of
Registrable ROARS, at least three Business Days prior to filing, that the
Shelf Registration Statement with respect to the Registrable ROARS is being
filed and advising such Holder that the distribution of Registrable ROARS will
be made in accordance with the method selected by the Majority Holders;
provided that the Majority Holders for this purpose shall be determined
without an Initial Purchaser to the extent they hold ROARS acquired as part of
its initial placement, (ii) furnish to each Holder of Registrable ROARS
included in the Shelf Registration Statement and to each underwriter of an
underwritten offering of Registrable ROARS, if any, without charge, as many
copies of each
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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 ROARS and (iii) consent to the use of the
Prospectus or any amendment or supplement thereto by each of the selling
Holders of Registrable ROARS included in the Shelf Registration Statement in
connection with the offering and sale of the Registrable ROARS covered by the
Prospectus or any amendment or supplement thereto; provided, however, that the
Company shall have no obligation under this Agreement to become a party to an
underwriting or similar agreement or otherwise participate in an underwritten
or similar offering of ROARS, unless the principal amount to be underwritten
exceeds $50,000,000;
(d) in the case of a Shelf Registration, register or qualify the Registrable
ROARS under all applicable state securities or "blue sky" laws of such
jurisdictions by the time the Shelf Registration Statement is declared
effective by the SEC as any Holder of Registrable ROARS covered by such
Registration Statement and each underwriter of an underwritten offering of
Registrable ROARS shall reasonably request in writing in advance of such date
of effectiveness, and do any and all other acts and things which may be
reasonably necessary or advisable to enable such Holder and underwriter to
consummate the disposition in each such jurisdiction of such Registrable ROARS
owned by such Holder; provided, however, that the Company shall not be
required to (i) qualify as a foreign corporation or as a dealer in securities
in any jurisdiction where it would not otherwise be required to qualify but
for this Section 3(d), (ii) file any general consent to service of process in
any jurisdiction where it would not otherwise be subject to such service of
process or (iii) subject itself to taxation in any such jurisdiction if it is
not then so subject;
(e) (1) in the case of the Shelf Registration or (2) if Participating
Broker-Dealers, from whom the Company has received prior written notice that
they will be utilizing the Prospectus contained in the Exchange Offer
Registration Statement as provided in Section 3(u) hereof, are seeking to sell
Exchange ROARS and are required to deliver Prospectuses, promptly notify each
Holder of Registrable ROARS or such Participating Broker-Dealers, as the case
may be, their counsel and the managing underwriters, if any, and promptly
confirm such notice in writing (i) when the applicable Registration Statement
has become effective and when any post-effective amendments thereto become
effective, (ii) of any request by the SEC or any state securities authority
for amendments and supplements to the applicable Registration Statement or
Prospectus or for additional information after such 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 applicable
Registration Statement or the qualification of the Registrable ROARS or the
Exchange ROARS to be offered or sold by any Participating Broker-Dealer in any
jurisdiction described in Section 3(d) hereof or the initiation of any
proceedings for that purpose, (iv) in the case of a Shelf Registration, if,
between the effective date of the Registration Statement and the closing of
any sale of Registrable ROARS covered thereby, the representations and
warranties of the Company contained in any underwritten or other similar
agreement cease to be true and correct in all material respects, (v) of the
happening of any event or the failure of any event to occur or the discovery
of any facts during the Effectiveness Period, which makes any statement made
in such Registration Statement or the related Prospectus untrue in any
material respect or which causes such Registration Statement or Prospectus to
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, as well as any other corporate developments, public filings with
the SEC or similar events causing such Registration Statement not to be
effective or the Prospectus not useable for resales and (vi) of the reasonable
determination of the Company that a post-effective amendment to the applicable
Registration Statement would be appropriate;
(f) obtain the withdrawal of any order suspending the effectiveness of a
Registration Statement at the earliest possible moment;
(g) in the case of the Shelf Registration, furnish to each Holder of
Registrable ROARS included within the coverage of the Shelf Registration
Statement, without charge, at least one conformed copy of such Registration
Statement and any post-effective amendment thereto (without documents
incorporated therein by reference or exhibits thereto, unless requested);
8
(h) in the case of the Shelf Registration, cooperate with the selling
Holders of Registrable ROARS to facilitate the timely preparation and delivery
of certificates representing Registrable ROARS to be sold and not bearing any
restrictive legends and in such denominations (consistent with the provisions
of the Indenture) and registered in such names as the selling Holders or the
underwriters may reasonably request at least two Business Days prior to the
closing of any sale of Registrable ROARS pursuant to such Shelf Registration
Statement;
(i) in the case of a Shelf Registration or an Exchange Offer Registration,
promptly after the occurrence of any event specified in Section 3(e)(iii),
3(e)(v) (subject to a 45-day grace period within any 12-month period) or
3(e)(vi) hereof, prepare a supplement or post-effective amendment to such
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 Registrable ROARS, such Prospectus
will not include 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; and to notify each
Holder to suspend use of the Prospectus as promptly as practicable after the
occurrence of such an event, and each Holder hereby agrees to suspend use of
the Prospectus until the Company has amended or supplemented the Prospectus to
correct such misstatement or omission;
(j) in the case of the Shelf Registration, a reasonable time prior to the
filing of any document which is to be incorporated by reference into the Shelf
Registration Statement or the Prospectus after the initial filing of the Shelf
Registration Statement, provide a reasonable number of copies of such document
to the Representative and make such of the representatives of the Company as
shall be reasonably requested by the Representative on behalf of such Holders
available for discussion of such document;
(k) obtain a CUSIP number and ISIN for each series of Exchange ROARS not
later than the effective date of the Exchange Offer Registration Statement,
and provide the Trustee with certificates for the Exchange ROARS in a form
eligible for deposit with the Depositary;
(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 ROARS or Registrable ROARS, as the case may be, and effect such
changes to such document as may be required for it to be so qualified in
accordance with the terms of the TIA and execute, and 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 such
documents to be so qualified in a timely manner;
(m) in the case of the Shelf Registration, enter into such agreements
(including underwriting agreements) as are customary in underwritten offerings
and take all such other appropriate actions in connection therewith as are
reasonably requested by the Holders of at least 25% in aggregate principal
amount of the Registrable ROARS (other than the Initial Purchasers to the
extent they hold ROARS as part of its initial placement) in order to
facilitate the disposition of the Registrable ROARS; provided, however, that
the Company shall have no such obligations unless the aggregate principal
amount to be underwritten shall exceed $50,000,000;
(n) in the case of the Shelf Registration, whether or not an underwriting
agreement is entered into and whether or not the registration is an
underwritten registration, if requested by an Initial Purchaser, in the case
where such Initial Purchaser holds ROARS acquired by it as part of its initial
placement: (i) make such representations and warranties to Initial Purchasers
and the underwriters (if any) with respect to the business of the Company and
the subsidiaries of the Company as then conducted and the Registration
Statement, Prospectus and documents, if any, incorporated or deemed to be
incorporated by reference therein, in each case, 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 and updates
thereof (which may be in the form of a reliance letter) in form and substance
reasonably satisfactory to the managing underwriters (if any) and the Initial
Purchasers, addressed to the Initial Purchasers and the underwriters (if any)
covering the matters customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably requested by such
underwriters (it being agreed that the matters to be covered by such opinion
may be subject to customary
9
qualifications and exceptions); (iii) obtain "cold comfort" letters and
updates thereof in form and substance reasonably satisfactory to the managing
underwriters from the independent certified public accountants of the Company
(and, if necessary, any other independent certified public accountants of any
business acquired by the Company for which financial statements and financial
data are, or are required to be, included in the Registration Statement),
addressed to each of the underwriters, 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 such other matters as reasonably
requested by such underwriters in accordance with Statement on Auditing
Standards No. 72; and (iv) provide indemnification provisions and procedures
no less favorable than those set forth in Section 4 hereof (or such other
provisions and procedures acceptable to Holders of a majority in aggregate
principal amount of Registrable ROARS covered by such Registration Statement
and the managing underwriters) customary for such agreements with respect to
all parties to be indemnified pursuant to said Section (including, without
limitation, such underwriters and selling Holders);
(o) if (i) the Shelf Registration is filed pursuant to Section 2(b) or (ii)
a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2(a) is required to be delivered under the Securities Act
by any Participating Broker-Dealer who seeks to sell Exchange ROARS during the
Applicable Period, make reasonably available for inspection by any selling
Holder of Registrable ROARS in such offering or Participating Broker-Dealer,
as applicable, any underwriter participating in any such disposition of
Registrable ROARS, if any, and any attorney, accountant or other agent
retained by any such selling Holder, Participating Broker-Dealer, or
underwriter (collectively, the "Inspectors") at the offices where normally
kept, during the Company's normal business hours, all financial and other
records, pertinent organizational and operational documents and properties of
the Company and its subsidiaries (collectively, the "Records") as shall be
reasonably necessary to enable them to exercise any applicable due diligence
responsibilities, and cause the officers, trustees and employees of the
Company and its subsidiaries to supply all relevant information in each case
reasonably requested by any such Person in connection with such Registration
Statement; and any Records and information which the Company determines, in
good faith, to be confidential and which it notifies the Inspectors are
confidential shall not be disclosed to any Inspector except where (i) the
disclosure of such Records or information is necessary to avoid or correct a
material misstatement or omission in such Registration Statement, (ii) the
release of such Records or information is ordered pursuant to a subpoena or
other order from a court of competent jurisdiction or is necessary in
connection with any action, suit or proceeding or (iii) such Records or
information previously has been made generally available to the public; and
each such selling Holder of Registrable ROARS, Participating Broker-Dealer and
underwriter will be required to agree in writing that Records and information
obtained by it as a result of such inspections shall be deemed confidential
and shall not be used by it as the basis for any market transactions in the
securities of the Company unless and until such is made generally available to
the public through no fault of an Inspector; and each such selling Holder,
Participating Broker-Dealer and underwriter will be required to further agree
in writing that it will, upon learning that disclosure of such Records or
information is sought in a court of competent jurisdiction or in connection
with any action, suit or proceeding, give notice to the Company and allow the
Company at its expense to undertake appropriate action to prevent disclosure
of the Records and information deemed confidential;
(p) comply with all applicable rules and regulations of the SEC so long as
any provision of Section 2 hereof shall be applicable and make generally
available to its securityholders earning statements satisfying the provisions
of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar
rule promulgated under the Securities Act) no later than 45 days after the end
of any 12-month period (or 90 days after the end of any 12-month period if
such period is a fiscal year) (i) commencing at the end of any fiscal quarter
in which Registrable ROARS are sold to underwriters in a firm commitment or
best efforts underwritten offering and (ii) if not sold to underwriters in
such an offering, commencing on the first day of the first fiscal quarter of
the Company after the effective date of a Registration Statement, which
statements shall cover said 12-month periods;
(q) upon consummation of the Exchange Offer, if requested by the Trustee,
obtain an opinion of counsel to the Company addressed to the Trustee for the
benefit of all Holders of Registrable ROARS participating in
10
the Exchange Offer, substantially to the effect that (i) the Company has duly
authorized, executed and delivered the Exchange ROARS, and (ii) each of the
Exchange ROARS constitutes a legal, valid and binding obligation of the
Company, enforceable against the Company, in accordance with its respective
terms (in each case, with customary exceptions);
(r) if the Exchange Offer is to be consummated, upon delivery of the
Registrable ROARS by Holders to the Company (or to such other Person as
directed by the Company) in exchange for Exchange ROARS, the Company shall
xxxx, or cause to be marked, on such Registrable ROARS delivered by such
Holders that such Registrable ROARS are being cancelled in exchange for
Exchange ROARS; it being understood that in no event shall such Registrable
ROARS be marked as paid or otherwise satisfied;
(s) cooperate with each seller of Registrable ROARS covered by any
Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable ROARS and their respective counsel in
connection with any filings required to be made with the NASD;
(t) take all other steps necessary to effect the registration of the
Registrable ROARS covered by the Shelf Registration Statement contemplated
hereby;
(u) (A) in the case of the Exchange Offer Registration Statement (i) include
in the Exchange Offer Registration Statement a section entitled "Plan of
Distribution," which section shall be reasonably acceptable to the
Representative and which shall contain a summary statement of the positions
taken or policies made by the staff of the SEC with respect to the potential
"underwriter" status of any broker-dealer that holds Registrable ROARS
acquired for its own account as a result of market-making activities or other
trading activities (a "Participating Broker-Dealer") and that will be the
beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange
ROARS to be received by such broker-dealer in the Exchange Offer, whether such
positions or policies have been publicly disseminated by the staff of the SEC
or such positions or policies, in the reasonable judgment of the
Representatives or such other representative, represent the prevailing views
of the staff of the SEC, including a statement that any such broker-dealer who
receives Exchange ROARS for Registrable ROARS pursuant to the Exchange Offer
may be deemed a statutory underwriter and must deliver a prospectus meeting
the requirements of the Securities Act in connection with any resale of such
Exchange ROARS, (ii) furnish to each Participating Broker-Dealer who has
delivered to the Company the notice referred to in Section 3(e), without
charge, as many copies of each Prospectus included in the Exchange Offer
Registration Statement, including any preliminary prospectus, and any
amendment or supplement thereto, as such Participating Broker-Dealer may
reasonably request (the Company hereby consents to the use of the Prospectus
forming part of the Exchange Offer Registration Statement or any amendment or
supplement thereto by any Person subject to the prospectus delivery
requirements of the Securities Act, including all Participating Broker-
Dealers, in connection with the sale or transfer of the Exchange ROARS covered
by the Prospectus or any amendment or supplement thereto), (iii) keep the
Exchange Offer Registration Statement effective and to amend and supplement
the Prospectus contained therein in order to permit such Prospectus to be
lawfully delivered by all Persons subject to the prospectus delivery
requirements of the Securities Act for such period of time as such Persons
must comply with such requirements under the Securities Act and applicable
rules and regulations in order to resell the Exchange ROARS; provided,
however, that such period shall not be required to exceed 60 days (or such
longer period if extended pursuant to the last sentence of Section 3 hereof)
(the "Applicable Period"), and (iv) include in the transmittal letter or
similar documentation to be executed by an exchange offeree in order to
participate in the Exchange Offer (x) the following provision:
"If the exchange offeree is a broker-dealer holding Registrable ROARS
acquired for its own account as a result of market-making activities or
other trading activities, it will deliver a prospectus meeting the
requirements of the Securities Act in connection with any resale of
Exchange ROARS received in respect of such Registrable ROARS pursuant to
the Exchange Offer";
11
and (y) a statement to the effect that by a broker-dealer making the
acknowledgment described in clause (x) and by delivering a Prospectus in
connection with the exchange of Registrable ROARS, the broker-dealer will not
be deemed to admit that it is an underwriter within the meaning of the
Securities Act; and
(B) in the case of the Exchange Offer Registration Statement, the Company
agrees to deliver to the Initial Purchasers, if reasonably requested by an
Initial Purchaser on behalf of the Participating Broker-Dealers upon
consummation of the Exchange Offer (i) an opinion of counsel in form and
substance reasonably satisfactory to such Initial Purchaser covering the
matters customarily covered in opinions requested in connection with exchange
offer registration statements and such other matters as may be reasonably
requested (it being agreed that the matters to be covered by such opinion may
be subject to customary qualifications and exceptions), (ii) an officers'
certificate containing certifications substantially similar to those set forth
in Section 5(d) of the Purchase Agreement and such additional certifications
as are customarily delivered in a public offering of debt securities and (iii)
upon the effectiveness of the Exchange Offer Registration Statement, comfort
letter(s), in each case, in customary form if permitted by Statement on
Auditing Standards No. 72.
The Company may require each seller of Registrable ROARS as to which any
registration is being effected to furnish to the Company such information
regarding such seller as may be required by the staff of the SEC to be
included in a Registration Statement. The Company may exclude from such
registration the Registrable ROARS of any seller who fails to furnish such
information within a reasonable time after receiving such request. The Company
shall not have any obligation to register under the Securities Act the
Registrable ROARS of a seller who so fails to furnish such information.
In the case of the Shelf Registration Statement, or if Participating Broker-
Dealers who have notified the Company that they will be utilizing the
Prospectus contained in the Exchange Offer Registration Statement as provided
in this Section 3(u) hereof are seeking to sell Exchange ROARS and are
required to deliver Prospectuses, each Holder agrees that, upon receipt of any
notice from the Company of the occurrence of any event specified in Section
3(e)(ii), 3(e)(iii), 3(e)(v) or 3(e)(vi) hereof, such Holder will forthwith
discontinue disposition of Registrable ROARS or Exchange ROARS, as the case
may be, 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 or until it is advised in writing (the "Advice") by the Company
that the use of the applicable Prospectus may be resumed, and, if so directed
by the Company, such Holder will deliver to the Company (at the Company's
expense) all copies in such Holder's possession, other than permanent file
copies then in such Holder's possession, of the Prospectus covering such
Registrable ROARS or Exchange ROARS, as the case may be, current at the time
of receipt of such notice. If the Company shall give any such notice to
suspend the disposition of Registrable ROARS or Exchange ROARS, as the case
may be, pursuant to a Registration Statement, the Company shall use its
reasonable best efforts to file and have declared effective (if an amendment)
as soon as practicable after the resolution of the related matters an
amendment or supplement to the applicable Registration Statement and shall
extend the period during which such Registration Statement is required to be
maintained effective and the Prospectus usable for resales pursuant to this
Agreement by the number of days in the period from and including the date of
the giving of such notice to and including the date when the Company shall
have made available to the Holders (x) copies of the supplemented or amended
Prospectus necessary to resume such dispositions or (y) the Advice.
4. Indemnification and Contribution.
(a) In connection with any Registration Statement, the Company shall
indemnify and hold harmless the Initial Purchasers, each Holder, each
underwriter who participates in an offering of Registrable ROARS, each
Participating Broker-Dealer, each Person, if any, who controls any of such
parties within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act and each of their respective directors, officers,
employees and agents (each, an "Indemnified Person"), against any and all
losses, claims, damages, liabilities, judgments, actions and expenses
(including without limitation and as incurred, reimbursement of all reasonable
costs of investigating, preparing, pursuing or defending any claim or action,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, including the reasonable fees and expenses of
12
counsel to any Indemnified Person) directly or indirectly caused by, related
to, based upon, arising out of or in connection with any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement (or any amendment or supplement thereto) or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, except insofar as such losses, claims,
damages, liabilities or expenses are caused by an untrue statement or omission
or alleged untrue statement or omission that is (i) made in reliance upon and
in conformity with information ("Indemnified Person Information") relating to
any Holder or any other Indemnified Person furnished in writing to the Company
by such Indemnified Person expressly for use in a Registration Statement or
any Prospectus or (ii) with respect to the Indemnified Person from whom the
person asserting the loss, claim, damage or liability purchased ROARS, made in
any preliminary prospectus if a copy of the Prospectus (as amended or
supplemented) shall have been furnished to the Initial Purchasers by the
Company with such amendments or supplements thereto on a timely basis and such
Prospectus (as amended or supplemented) was not delivered by or on behalf of
the Indemnified Person to the person asserting the claim or action, if
required by law to have been so delivered by the Indemnified Person seeking
indemnification, at or prior to the written confirmation of the sale of such
ROARS, and it shall be finally determined by a court of competent
jurisdiction, by a judgment not subject to appeal or review, that the
Prospectus (as amended or supplemented) would have corrected such untrue
statement or omission. The Company shall notify any applicable Indemnified
Party promptly of the institution, threat or assertion of any claim,
proceeding (including any governmental investigation) or litigation, of which
it has knowledge, in connection with the matters addressed by this Agreement
which involves the Company or an Indemnified Person.
In case any action or proceeding (including any governmental investigation)
shall be brought or asserted against any Indemnified Person with respect to
which indemnity may be sought against an indemnifying party (or indemnifying
parties), such Indemnified Person shall promptly notify the indemnifying party
(or indemnifying parties) in writing (provided that the failure to give such
notice shall not relieve the indemnifying party (or indemnifying parties) of
its obligations pursuant to this Agreement unless and only to the extent such
failure to give notice results in the loss or compromise of any material
rights or defenses of the indemnifying party (or indemnifying parties) as
determined by a court of competent jurisdiction by a final judgment no longer
subject to appeal or review). Upon receiving such notice, the indemnifying
party (or indemnifying parties) shall be entitled to participate in any such
action or proceeding and to assume, at their sole expense, the defense
thereof, with counsel satisfactory to such Indemnified Person (who shall not,
except with the consent of the Indemnified Person, be counsel to the
indemnifying party (or indemnifying parties) or an affiliate thereof) and,
after written notice from the indemnifying party (or indemnifying parties) to
such Indemnified Person of their election so to assume the defense thereof
within 15 business days after receipt of the notice from the Indemnified
Person of such action or proceeding, the indemnifying party (or indemnifying
parties) shall not be liable to such Indemnified Person hereunder for legal
expenses of other counsel subsequently incurred by such Indemnified Person in
connection with the defense thereof, other than reasonable costs of
investigation, unless (i) the indemnifying party (or indemnifying parties)
agrees in writing to pay such fees and expenses, or (ii) the indemnifying
party (or indemnifying parties) fails to assume such defense within the 15
business days specified above or fails to employ counsel satisfactory to such
Indemnified Person, or (iii) the named parties to any such action or
proceeding (including any impleaded parties) include both such Indemnified
Person and the indemnifying party (or indemnifying parties) or its affiliates,
and such Indemnified Person shall have been advised by counsel that a conflict
of interest exists between such Indemnified Person and the indemnifying party
(or indemnifying parties) or its affiliates, in which case, if such
Indemnified Person notifies the indemnifying party (or indemnifying parties)
in writing, the indemnifying party (or indemnifying parties) shall not have
the right to assume the defense thereof, it being understood, however, that
the indemnifying party (or indemnifying parties) shall not, in connection with
any one such action or proceeding or separate but substantially similar or
related actions or proceedings in the same jurisdiction arising out of the
same general allegations or circumstances, be liable for the reasonable fees
and expenses of more than one separate firm of attorneys (in addition to any
local counsel) at any time for all Indemnified Persons. No indemnifying party
shall be liable for any settlement of any such action or proceeding effected
without its prior written consent. Notwithstanding the foregoing sentence, if
at any time an Indemnified Person shall have requested the indemnifying party
(or
13
indemnifying parties) to reimburse the Indemnified Person for fees and
expenses of counsel as contemplated by the second sentence of this paragraph,
the indemnifying party (or indemnifying parties) agrees that it shall be
liable for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than 60 business days
after receipt by the indemnifying party (or indemnifying parties) of the
aforesaid request and (ii) the indemnifying party (or indemnifying parties)
shall not have reimbursed the Indemnified Person in accordance with such
request prior to the date of such settlement. The indemnifying party (or
indemnifying parties) shall not, without the prior written consent of each
Indemnified Person, settle or compromise or consent to the entry of judgment
in or otherwise seek to terminate any pending or threatened action, claim,
litigation or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not any Indemnified Person is a party
thereto), unless such settlement, compromise, consent or termination includes
an unconditional release of each Indemnified Person from all liability arising
out of such action, claim, litigation or proceeding.
(b) Each of the Indemnified Persons agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers, and any
person controlling (within the meaning of Section 15 of the Act or Section 20
of the Exchange Act) the Company, to the same extent as the foregoing
indemnity from the Company to each of the Indemnified Persons, but only with
respect to claims and actions based on any Indemnified Person Information.
(c) If the indemnification provided for in this Section 4 is for any reason
unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, claims, damages, liabilities or expenses referred to
herein, then the Company or the Indemnified Persons, as applicable, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages,
liabilities and expenses in such proportion as is appropriate to reflect the
relative fault of the indemnifying parties and the indemnified party, as well
as any other relevant equitable considerations. The relative fault of the
Company on the one hand, and the indemnified party, 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 related to information supplied by the
Company, on the one hand, or the Indemnified Persons, on the other hand, and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The indemnity and
contribution obligations of the Company set forth herein shall be in addition
to any liability or obligation that the Company may otherwise have (other than
with respect to the matters covered by this Section 4) to any Indemnified
Person.
(d) The Company and the Indemnified Persons agree that it would not be just
and equitable if contribution pursuant to this Section 4 were determined by
pro rata allocation (even if the Indemnified Persons 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 the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities or expenses referred to in
the immediately preceding paragraph shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 0000
Xxx) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Indemnified Persons' obligations to
contribute pursuant to this Section 4 are several not joint.
(e) The rights and obligations provided in this Section 4 shall terminate 15
years from the date hereof.
5. Participation in an Underwritten Registration. No Holder may participate
in an underwritten registration hereunder unless such Holder (a) agrees to
sell such Holder's Registrable ROARS on the basis provided in the underwriting
arrangement approved by the Persons entitled hereunder to approve such
arrangements; (b) completes and executes all reasonable questionnaires, powers
of attorney, indemnities, underwriting agreements, lock-up letters and other
documents reasonably required under the terms of such underwriting
arrangements.
14
6. Selection of Underwriters. The Holders of Registrable ROARS covered by
the Shelf Registration Statement who desire to do so may sell the ROARS
covered by such Shelf Registration in an underwritten offering, subject to the
provisions of Section 3(m) hereof. In any such underwritten offering, the
underwriter or underwriters and manager or managers that will administer the
offering will be selected by the Holders of a majority in aggregate principal
amount, as applicable, of the Registrable ROARS included in such offering
other than the Initial Purchasers; provided, however, that such underwriters
and managers must be reasonably satisfactory to the Company.
7. Miscellaneous.
(a) Rule 144 and Rule 144A. For so long as the Company is subject to the
reporting requirements of Section 13 or 15 of the Exchange Act and any
Registrable ROARS remain outstanding, the Company will file the reports
required to be filed by it under the Securities Act and Section 13(a) or 15(d)
of the Exchange Act and the rules and regulations adopted by the SEC
thereunder; provided, however, that if the Company ceases to be so required to
file such reports, it will, upon the request of any Holder of Registrable
ROARS (a) make publicly available such information as is necessary to permit
sales of its securities pursuant to Rule 144 under the Securities Act, (b)
deliver such information to a prospective purchaser as is necessary to permit
sales of its securities pursuant to Rule 144A under the Securities Act, and
(c) take such further action that is reasonable in the circumstances, in each
case, to the extent required from time to time to enable such Holder to sell
its Registrable ROARS without registration under the Securities Act within the
limitation of the exemptions provided by (i) Rule 144 under the Securities
Act, as such rule may be amended from time to time, (ii) Rule 144A under the
Securities Act, as such rule may be amended from time to time, or (iii) any
similar rules or regulations hereafter adopted by the SEC. Upon the request of
any Holder of Registrable ROARS, the Company will deliver to such Holder a
written statement as to whether it has complied with such requirements.
(b) No Inconsistent Agreements. The Company has not entered into, nor will
the Company on or after the date of this Agreement enter into, any agreement
which is inconsistent with the rights granted to the Holders of Registrable
ROARS in this Agreement or otherwise conflicts with the provisions hereof,
except to the extent that the other party to any such agreement has waived
such conflict. 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.
(c) Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given,
unless the Company has obtained the written consent of Holders of a majority
in aggregate principal amount of the outstanding Registrable ROARS affected by
such amendment, modification, supplement, waiver or departure; provided that
no amendment, modification or supplement or waiver or consent to departure
with respect to the provisions of Section 4 hereof shall be effective as
against any Holder of Registrable ROARS unless consented to in writing by such
Holder of Registrable ROARS. Notwithstanding the foregoing sentence, (i) this
Agreement may be amended, without the consent of any Holder of Registrable
ROARS, by written agreement signed by the Company and the Initial Purchasers,
to cure any ambiguity, to correct or supplement any provision of this
Agreement that may be inconsistent with any other provision of this Agreement
or to make any other provisions with respect to matters or questions arising
under this Agreement which shall not be inconsistent with other provisions of
this Agreement, (ii) this Agreement may be amended, modified or supplemented,
and waivers and consents to departures from the provisions hereof may be
given, by written agreement signed by the Company and the Initial Purchasers
to the extent that any such amendment, modification, supplement, waiver or
consent is, in their reasonable judgment, necessary or appropriate to comply
with applicable law (including any interpretation of the Staff of the SEC) or
any change therein and (iii) to the extent any provision of this Agreement
relates to an Initial Purchaser, such provision may be amended, modified or
supplemented, and waivers or consents to departures from such provisions may
be given, by written agreement signed by such Initial Purchaser and the
Company.
15
(d) 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
7(d), which address initially is, with respect to each Initial Purchaser, 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 7(d).
All such notices and communications shall be deemed to have been duly given:
at the time delivered by hand, if personally delivered; five Business Days
after being deposited in the mail, postage prepaid, if mailed; when answered
back, if telexed; when receipt is acknowledged, if telecopied; and on the next
Business Day, if timely delivered to an air courier guaranteeing overnight
delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to the benefit of and
be binding upon the successors, assigns and transferees of the Initial
Purchasers, including, without limitation and without the need for an express
assignment, subsequent Holders; provided, however, that nothing herein shall
be deemed to permit any assignment, transfer or other disposition of
Registrable ROARS in violation of the terms of the Purchase Agreement or the
Indenture. If any transferee of any Holder shall acquire Registrable ROARS, in
any manner, whether by operation of law or otherwise, such Registrable ROARS
shall be held subject to all of the terms of this Agreement, and by taking and
holding such Registrable ROARS, 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 receive the benefits
hereof.
(f) Third Party Beneficiaries. Each Holder and any Participating Broker-
Dealer shall be third party beneficiaries of the agreements made hereunder
among the Initial Purchasers and the Company, and the Initial Purchasers 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 DEEMED TO HAVE BEEN MADE IN THE
STATE OF NEW YORK. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT, AND THE
TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ANY
PROVISIONS RELATING TO CONFLICTS OF LAWS.
(j) Jurisdiction, Etc.
(i) The Company hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any New York
State court or federal court of the United States of America sitting in New
York City, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement or the ROARS, or
for recognition or enforcement of any judgment, and the Company hereby
irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in any such New York
State court or, to the extent permitted by law, in such federal court. The
Company hereby agrees that service of process in any such action or
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proceeding brought in any such New York State court or in such federal
court may be made upon the Company at its offices at 00-000 Xxxx Xxxxxx,
Xxxx Xxxxxx, Xxxxxxxxxx 00000, Attention: Corporate Secretary (the "Process
Agent") and hereby further agrees that the failure of the Process Agent to
give any notice of any such service to the Company shall not impair or
affect the validity of such service or of any judgment rendered in any
action or proceeding based thereon. The Company agrees that a final
judgement in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Agreement shall affect any right
that any party may otherwise have to bring any action or proceeding
relating to this Agreement or the ROARS in the courts of any jurisdiction.
(ii) The Company irrevocably and unconditionally waives, to the fullest
extent it may legally and effectively do so, any objection that it may now
or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or the ROARS in any New York
State or federal court. The Company hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to
the maintenance of such action or proceeding in any such court.
(iii) To the extent that the Company has or hereafter may acquire any
immunity from the jurisdiction of any court or from any legal process
(whether through service of notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) with respect to
itself or its property, the Company hereby irrevocably waives such immunity
in respect of its obligations under this Agreement and the ROARS.
(k) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability
of any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(l) Securities Held by the Company or its Affiliates. Whenever the consent
or approval of Holders of a specified percentage of Registrable ROARS is
required hereunder, Registrable ROARS held by the Company or its Affiliates
shall not be counted in determining whether such consent or approval was given
by the Holders of such required percentage.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
UNITED STATES FILTER CORPORATION
/s/ Xxxxxx X. Xxxxxxxx
By:..................................
Name: Xxxxxx X. Xxxxxxxx
Title: Executive Vice President,
General Counsel & Corporate
Secretary
Confirmed and accepted as of the date first above written:
NATIONSBANC XXXXXXXXXX SECURITIES LLC
/s/ R. Xxxxx Xxxxxx
By:..................................
Name: R. Xxxxx Xxxxxx
Title: Managing Director
SALOMON BROTHERS INC
/s/ [Signature Illegible]
By:..................................
Name:
Title:
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
/s/ Xxxxxxx Xxxxxxxxx
By:..................................
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President
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