EXHIBIT 4.4
Conformed Copy
XXXXXX XXXXXX, INC.
$250,000,000 6.50% SENIOR NOTES DUE 2012
------------------
REGISTRATION RIGHTS AGREEMENT
December 6, 2002
Wachovia Securities, Inc.
Barclays Capital Inc.
c/o Wachovia Securities, Inc.
One Wachovia Center, DC8
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Ladies and Gentlemen:
Xxxxxx Xxxxxx Inc., a Kansas corporation (the "Company"), proposes to
issue and sell to you (the "Purchasers") upon the terms and subject to the
conditions set forth in the Purchase Agreement (as defined herein) an aggregate
of $250,000,000 principal amount of the Company's 6.50% Senior Notes due 2012
issued on the date hereof (the "Securities"), which shall constitute an
additional issuance to, form a single series with, and have the same CUSIP
number and the same terms as, the aggregate $750,000,000 million principal
amount of the 6.50% Senior Notes due 2012 issued by the Company on August 27,
2002. As an inducement to the Purchasers to enter into the Purchase Agreement
and in satisfaction of a condition to the obligations of the Purchasers
thereunder, the Company agrees with the Purchasers for the benefit of holders
(as defined herein) from time to time of the Registrable Securities (as defined
herein) as follows:
Section 1. Certain Definitions
For purposes of this Registration Rights Agreement, the following terms
shall have the following respective meanings, unless the context otherwise
requires:
"broker-dealer" shall mean any broker or dealer registered with the
Commission under the Exchange Act.
"Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in The City of New York
are authorized or obligated by law, executive order or regulation to close.
"Closing Date" shall mean the date on which the Securities (as defined
herein) are initially issued.
"Commission" shall mean the United States Securities and Exchange
Commission, or any other federal agency at the time administering the Exchange
Act or the Securities Act, whichever is the relevant statute for the particular
purpose.
"Company" shall mean Xxxxxx Xxxxxx, Inc., a Kansas corporation.
"Effective Time", in the case of (i) an Exchange Registration, shall
mean the time and date as of which the Commission declares the Exchange
Registration Statement effective or as of which the Exchange Registration
Statement otherwise becomes effective and (ii) a Shelf Registration, shall mean
the time and date as of which the Commission declares the Shelf Registration
Statement effective or as of which the Shelf Registration Statement otherwise
becomes effective.
"Electing Holder" shall mean any holder of Registrable Securities that
has returned a completed and signed Notice and Questionnaire to the Company in
accordance with Section 3(c)(ii) or 3(c)(iii) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, or any
successor statute thereto, in each case as amended from time to time.
"Exchange Offer" shall have the meaning assigned thereto in Section
2(a) hereof.
"Exchange Registration" shall have the meaning assigned thereto in
Section 3(b) hereof.
"Exchange Registration Statement" shall have the meaning assigned
thereto in Section 2(a) hereof.
"Exchange Securities" shall have the meaning assigned thereto in
Section 2(a) hereof.
"holder" shall mean the Purchasers and each other person who acquires
Registrable Securities from time to time (including any successors or assigns),
in each case for so long as such person owns any Registrable Securities.
"Indenture" shall mean the Indenture, dated as of August 27, 2002,
between the Company and Wachovia Bank, National Association, as Trustee, as
amended by the First Supplemental Indenture thereto, dated as of December 6,
2002, as the same shall be further amended from time to time.
"Liquidated Damages" shall have the meaning assigned thereto in Section
2(c) hereof.
"Liquidated Damages Event" shall have the meaning assigned thereto in
Section 2(c) hereof.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"Notice and Questionnaire" means a Notice of Registration Statement and
Selling Securityholder Questionnaire substantially in the form of Exhibit A
hereto.
2
"person" shall mean any individual, corporation, partnership (whether
general or limited), joint venture, limited liability company, association,
joint stock company, trust, other entity, unincorporated organization or
government or any agency or political subdivision thereof or governmental
agency.
"Purchase Agreement" shall mean the Purchase Agreement, dated as of
December 3, 2002, between the Company and the Purchasers, as the same shall be
amended from time to time.
"Purchasers" shall mean Wachovia Securities, Inc. and Barclays Capital
Inc..
"Registrable Securities" shall mean each of the Securities; provided,
however, that such Security shall cease to be a Registrable Security when (i) in
the circumstances contemplated by Section 2(a) hereof, the Security has been
exchanged for an Exchange Security in the Exchange Offer as contemplated in
Section 2(a) hereof (provided, that any Exchange Security that, pursuant to the
last two sentences of Section 2(a) hereof, is included in a prospectus for use
in connection with resales by broker-dealers shall be deemed to be a Registrable
Security until resale of such Registrable Security has been effected within the
120-day period referred to in Section 2(a) hereof); (ii) in the circumstances
contemplated by Section 2(b) hereof, a Shelf Registration Statement registering
such Security under the Securities Act has been declared or becomes effective
and such Security has been sold or otherwise transferred by the holder thereof
pursuant to and in a manner contemplated by such effective Shelf Registration
Statement; (iii) such Security is sold pursuant to Rule 144 under circumstances
in which any legend borne by such Security relating to restrictions on
transferability thereof, under the Securities Act or otherwise, is removed by
the Company or pursuant to the Indenture; (iv) such Security is eligible to be
sold pursuant to paragraph (k) of Rule 144 (or any similar provision then in
effect); or (v) such Security shall cease to be outstanding.
"Registration Expenses" shall have the meaning assigned thereto in
Section 4 hereof.
"Resale Period" shall have the meaning assigned thereto in Section 2(a)
hereof.
"Restricted Holder" shall mean (i) a holder that is an affiliate of the
Company within the meaning of Rule 405 (as defined herein), (ii) a holder who
acquires Exchange Securities outside the ordinary course of such holder's
business, (iii) a holder who has arrangements or understandings with any person
to participate in the Exchange Offer for the purpose of distributing Exchange
Securities and (iv) a holder that is a broker-dealer, but only with respect to
Exchange Securities received by such broker-dealer pursuant to the Exchange
Offer in exchange for Registrable Securities acquired by the broker-dealer
directly from the Company.
"Rule 144(k) Holding Period" shall have the meaning assigned thereto in
Section 2(b) hereof.
"Rule 144", "Rule 405" and "Rule 415" shall mean, in each case, such
rule promulgated under the Securities Act (or any successor provision), as the
same shall be amended from time to time.
3
"Securities" shall have the meaning assigned thereto in the first
paragraph of this Registration Rights Agreement.
"Securities Act" shall mean the Securities Act of 1933, or any
successor statute thereto, as the same shall be amended from time to time.
"Shelf Registration" shall have the meaning assigned thereto in
Section 2(b) hereof.
"Shelf Registration Statement" shall have the meaning assigned thereto
in Section 2(b) hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, or
any successor statute thereto, and the rules, regulations and forms promulgated
thereunder, all as the same shall be amended from time to time.
Unless the context otherwise requires, any reference herein to a
"Section" or "clause" refers to a Section or clause, as the case may be, of this
Registration Rights Agreement, and the words "herein", "hereof" and "hereunder"
and other words of similar import refer to this Registration Rights Agreement as
a whole and not to any particular Section or other subdivision.
Section 2. Registration Under the Securities Act
(a) Except as set forth in Section 2(b) below, the Company agrees to
use its reasonable efforts to file under the Securities Act, as soon as
practicable, but no later than 120 days after the Closing Date, a single
registration statement relating to an offer to exchange (such registration
statement, the "Exchange Registration Statement" and, such offer, an "Exchange
Offer") any and all of the Securities for a like aggregate principal amount of
debt securities issued by the Company, which debt securities will be
substantially identical to such Securities tendered by the holders (and will be
entitled to the benefits of a trust indenture that will be substantially
identical to the Indenture or is the Indenture and that will be qualified under
the Trust Indenture Act), except that such new debt securities will have been
registered pursuant to an effective registration statement under the Securities
Act, will not be subject to transfer restrictions or registration rights and
will not be entitled to the benefit of provisions for the Liquidated Damages
contemplated in Section 2(c) below (such new debt securities hereinafter called
"Exchange Securities"). The Company agrees to use its reasonable efforts to
cause the Exchange Registration Statement to become effective under the
Securities Act as soon as practicable, but no later than 210 days after the
Closing Date. The Exchange Offer will be registered under the Securities Act on
the appropriate form and will comply with all applicable tender offer rules and
regulations under the Exchange Act. The Company further agrees to use its
reasonable efforts to commence and complete the Exchange Offer promptly, but no
later than 45 Business Days after the date on which the Exchange Registration
Statement has become effective, to hold the Exchange Offer open for at least 30
days and to exchange the Exchange Securities for all Registrable Securities that
have been properly tendered and not withdrawn on or prior to the expiration of
the Exchange Offer. The Exchange Offer shall be deemed to have been completed
upon the earlier to occur of (i) the Company having exchanged Exchange
Securities for all outstanding Registrable Securities that are properly tendered
and not withdrawn pursuant to the Exchange Offer and (ii) the Company having
exchanged, pursuant to the
4
Exchange Offer, Exchange Securities for all Registrable Securities that have
been properly tendered and not withdrawn before the expiration of the Exchange
Offer, which shall be on a date that is at least 30 days following the
commencement of the Exchange Offer. The Company agrees (x) to include in the
Exchange Registration Statement a prospectus for use in any resales by any
holder of Exchange Securities that is a broker-dealer and (y) to keep such
Exchange Registration Statement effective for a period (the "Resale Period")
beginning when Exchange Securities are first issued in the Exchange Offer and
ending upon the earlier of the expiration of the 120th day after the Exchange
Offer has been completed or such time as such broker-dealers no longer own any
Registrable Securities. With respect to such Exchange Registration Statement,
such holders shall have the benefit of the rights of indemnification and
contribution set forth in Sections 5(a), (c), (d) and (e) hereof.
(b) If (i) the Company determines that the Exchange Registration
Statement is not available or the Exchange Offer may not be consummated because
it would violate applicable law or the applicable interpretations of the staff
of the Commission, (ii) the Exchange Offer has not been completed within 210
days plus 45 Business Days following the Closing Date or (iii) in the opinion of
counsel for the Purchasers, under applicable law or the applicable
interpretations of the staff of the Commission, the Purchasers are not entitled
to tender Securities in the Exchange Offer or must comply with the registration
and prospectus delivery requirements of the Securities Act in connection with
any offering or sale of Registrable Securities, the Company shall, in lieu of
conducting the Exchange Offer contemplated by Section 2(a) hereof, use its
reasonable efforts to file under the Securities Act, as soon as practicable
after the time such obligation to file arises, a "shelf" registration statement
providing for the registration of, and the sale on a continuous or delayed basis
by the holders of, all of the Registrable Securities, pursuant to Rule 415 or
any similar rule that may be adopted by the Commission (such filing, the "Shelf
Registration" and, such registration statement, the "Shelf Registration
Statement"). The Company agrees to use its reasonable efforts to cause the Shelf
Registration Statement to become or be declared effective and to keep such Shelf
Registration Statement continuously effective for a period ending on the earlier
of the second anniversary of the Closing Date or, if Rule 144(k) is amended to
provide a shorter restrictive period, such shorter period (the "Rule 144(k)
Holding Period") or such time as there are no longer any Registrable Securities
outstanding; provided, however, that no holder shall be entitled to be named as
a selling securityholder in the Shelf Registration Statement or to use the
prospectus forming a part thereof for resales of Registrable Securities unless
such holder is an Electing Holder, and furnishes to the Company in writing,
within 20 days after receipt of a request therefor, such information with
respect to such Electing Holder required under Regulation S-K under the
Securities Act as the Company may reasonably request for use in connection with
any Shelf Registration Statement or Prospectus or preliminary prospectus
included therein. No Electing Holder shall be entitled to Liquidated Damages
pursuant to Section 2(c) hereof unless and until such Electing Holder shall have
used its reasonable efforts to provide all such reasonably requested
information. Each Electing Holder as to which any Shelf Registration Statement
is being effected agrees to furnish promptly to the Company all information
required to be disclosed in order to make the information previously furnished
to the Company by such Electing Holder not materially misleading. The Company
further agrees to supplement or make amendments to the Shelf Registration
Statement, as and when 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 rules and regulations
thereunder for shelf registration, and the Company agrees to furnish to each
Electing
5
Holder copies of any such supplement or amendment promptly after its being used
following its filing with the Commission.
(c) The Company agrees to pay liquidated damages (the "Liquidated
Damages") upon the occurrence of any of the following events (each such event, a
"Liquidated Damages Event"):
(i) if the Exchange Registration Statement or Shelf
Registration Statement is not filed within 120 days following the
Closing Date, then commencing on the 121st day after the Closing Date,
Liquidated Damages shall accrue on the Securities over and above the
otherwise applicable interest rate at a rate of 0.25% per year; or
(ii) if an Exchange Registration Statement or Shelf
Registration Statement is filed and is not declared effective within
210 days following the Closing Date, then commencing on the 211th day
after the Closing Date, Liquidated Damages shall accrue on the
Securities over and above the otherwise applicable interest rate at a
rate of 0.25% per year; or
(iii) if either (A) the Company has not exchanged Exchange
Securities for all Securities validly tendered in accordance with the
terms of the Exchange Offer on or prior to 45 Business Days after the
date on which the Exchange Registration Statement was declared
effective, or (B) the Shelf Registration Statement has been declared
effective, but such Shelf Registration Statement ceases to be effective
at any time (I) prior to the expiration of the Rule 144(k) Holding
Period and (II) while Registrable Securities are outstanding, then
Liquidated Damages shall accrue on the Securities over and above the
otherwise applicable interest rate at a rate of 0.25% per year
commencing on the (x) 46th Business Day after such effective date, in
the case of (A) above, or (y) the day the Shelf Registration Statement
ceases to be effective, in the case of (B) above;
provided, however, that the circumstances under which the Company may be
required to pay Liquidated Damages are not cumulative and the rate at which
Liquidated Damages accrues on the Securities shall never exceed 0.25% per year;
and, provided further, that Liquidated Damages on the Securities shall cease to
accrue upon the earlier of (i) when all Liquidated Damages Events have been
cured or (ii) upon the expiration of the Rule 144(k) Holding Period. For
purposes of clarifying the foregoing provisions, Liquidated Damages shall not
accrue at any time that there are no Registrable Securities outstanding.
All accrued Liquidated Damages shall be payable, in the manner provided
for the payment of interest in the Indenture and the Securities, on each
applicable Interest Payment Date (as defined in the Indenture).
(d) The Company shall take all actions reasonably necessary to be taken
by it to ensure that the transactions contemplated herein are effected as so
contemplated.
(e) Any reference herein to a registration statement as of any time
shall be deemed to include any document incorporated, or deemed to be
incorporated, therein by reference as of such time and any reference herein to
any post-effective amendment to a registration statement as of any time shall be
deemed to include any document incorporated, or deemed to be incorporated,
therein by reference as of such time.
6
Section 3. Registration Procedures
If the Company files a registration statement pursuant to Section 2(a)
or Section 2(b) hereof, the following provisions shall apply:
(a) At or before the Effective Time of the Exchange Registration or the
Shelf Registration, as the case may be, the Company shall qualify or shall have
qualified the Indenture under the Trust Indenture Act.
(b) In connection with the Company's obligations with respect to the
registration of Exchange Securities as contemplated by Section 2(a) hereof (the
"Exchange Registration"), if applicable, the Company shall, as soon as
practicable (or as otherwise specified):
(i) use its reasonable efforts to prepare and file with the
Commission, as soon as practicable, but no later than 120 days after
the Closing Date, an Exchange Registration Statement on any form that
may be utilized by the Company and that shall permit the Exchange Offer
and resales of Exchange Securities by broker-dealers during the Resale
Period to be effected as contemplated by Section 2(a) hereof, and use
its reasonable efforts to cause such Exchange Registration Statement to
become effective as soon as practicable thereafter, but no later than
210 days following the Closing Date;
(ii) as soon as practicable prepare and file with the
Commission such amendments and supplements to such Exchange
Registration Statement and the prospectus included therein as may be
necessary to effect and maintain the effectiveness of such Exchange
Registration Statement for the periods and purposes contemplated in
Section 2(a) hereof and as may be required by the applicable rules and
regulations of the Commission and the instructions applicable to the
form of such Exchange Registration Statement, and promptly provide each
broker-dealer holding Exchange Securities with such number of copies of
the prospectus included therein (as then amended or supplemented), in
conformity in all material respects with the requirements of the
Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder, as such broker-dealer
reasonably may request prior to the expiration of the Resale Period,
for use in connection with resales of Exchange Securities;
(iii) promptly notify each broker-dealer that has requested or
received copies of the prospectus included in such registration
statement and, if requested by such broker-dealer, confirm such advice
in writing, (A) when such Exchange Registration Statement or the
prospectus included therein or any prospectus amendment or supplement
or post-effective amendment has been filed, and, with respect to such
Exchange Registration Statement or any post-effective amendment, when
the same has become effective, (B) of any request by the Commission for
amendments or supplements to such Exchange Registration Statement or
prospectus or for additional information, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of such
Exchange Registration Statement or the initiation or threatening of any
proceedings for that purpose, (D) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Exchange Securities for sale in any jurisdiction or
7
the initiation or threatening of any proceeding for such purpose, or
(E) if at any time during the Resale Period when a prospectus is
required to be delivered under the Securities Act, that such Exchange
Registration Statement, prospectus, prospectus amendment or supplement
or post-effective amendment does not conform in all material respects
to the applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder or contains an untrue statement of a material fact or omits
to state any material fact required to be stated therein or necessary
to make the statements therein not misleading in light of the
circumstances then existing;
(iv) in the event that the Company would be required, pursuant
to Section 3(b)(iii)(E) above, to notify any broker-dealers holding
Exchange Securities, it will use its reasonable efforts to prepare and
furnish to each such holder a reasonable number of copies of a
prospectus supplemented or amended so that, as thereafter delivered to
purchasers of such Exchange Securities during the Resale Period, such
prospectus shall conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder and shall not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing. Each broker-dealer agrees that upon receipt of any notice
from the Company pursuant to Section 3(b)(iii)(E) hereof, such
broker-dealer shall forthwith discontinue the disposition of Exchange
Securities pursuant to the Exchange Registration Statement until such
broker-dealer shall have received copies of such amended or
supplemented prospectus and, if so directed by the Company, such
broker-dealer shall deliver to the Company (at the Company's expense)
all copies of the prospectus covering such Exchange Securities then in
such broker-dealers' possession for the purpose of making offers of
Exchange Securities;
(v) use its reasonable efforts to obtain the withdrawal of any
order suspending the effectiveness of such Exchange Registration
Statement or any post-effective amendment thereto at the earliest
practicable date;
(vi) use its reasonable efforts to (A) register or qualify the
Exchange Securities under the securities laws or blue sky laws of such
jurisdictions as any holder of Exchange Securities shall reasonably
request in writing no later than the commencement of the Exchange
Offer, (B) keep such registrations or qualifications in effect and
comply with such laws so as to permit the continuance of offers, sales
and dealings therein in such jurisdictions until the expiration of the
Resale Period and (C) take any and all other actions as may be
reasonably necessary to enable each broker-dealer holding Exchange
Securities to consummate the disposition thereof in such jurisdictions
under the securities laws or blue sky laws of such jurisdictions;
provided, however, that the Company shall not be required for any such
purpose to (1) qualify as a foreign corporation or as a dealer in
securities in any jurisdiction wherein it would not otherwise be
required to qualify but for the requirements of this Agreement, (2)
consent to general service of process in any such jurisdiction or
subject itself to taxation in any such jurisdiction if it is not
already so
8
subject or (3) make any changes to its articles of incorporation or its
bylaws or any agreement between it and its stockholders;
(vii) use its reasonable efforts to obtain the consent or
approval of each governmental agency or authority, whether federal,
state or local, that may be required to effect the Exchange
Registration, the Exchange Offer and the offering and sale of Exchange
Securities by broker-dealers during the Resale Period;
(viii) provide a CUSIP number for the Exchange Securities, not
later than the applicable Effective Time; and
(ix) comply with all applicable rules and regulations of the
Commission, and make generally available to its securityholders as soon
as practicable, but no later than 18 months after the effective date of
such Exchange Registration Statement, an earnings statement of the
Company and its subsidiaries complying with Section 11(a) of the
Securities Act (including, at the option of the Company, Rule 158
thereunder).
As a condition to its participation in the Exchange Offer pursuant to
the terms of this Agreement, each holder shall furnish, upon the request of the
Company, prior to the consummation thereof, a written representation to the
Company (which may be contained in the letter of transmittal contemplated by the
Exchange Registration) to the effect that (A) it is not an affiliate of the
Company, (B) it is not engaged in, and does not intend to engage in, and has no
arrangement or understanding with any person to participate in, a distribution
of the Exchange Securities to be issued in the Exchange Offer and (C) it is
acquiring the Exchange Securities in its ordinary course of business. In
addition, although holders shall otherwise cooperate in the Company's
preparation for the Exchange Offer, each holder hereby acknowledges and agrees
that any broker-dealer who purchases the Securities from the Company to resell
pursuant to Rule 144A or any other available exemption under the Securities Act
or any holder who is an affiliate of the Company or who intends to use the
Exchange Offer to participate in a distribution of the Exchange Securities to be
acquired in the Exchange Offer (1) could not under Commission policy as in
effect on the date of this Agreement rely on the position of the Commission
enunciated in Xxxxxx Xxxxxxx and Co., Inc. (available June 5, 1991) and Exxon
Capital Holdings Corporation (available May 13, 1988), as interpreted in the
Commission's letter to Shearman & Sterling dated July 2, 1993, and similar
no-action letters, (2) will not be entitled to tender Securities in the Exchange
Offer, and (3) must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with any sale or transfer of
the Securities unless such sale or transfer is made pursuant to any exemption
from such requirements.
(c) In connection with the Company's obligations with respect to the
Shelf Registration, if applicable, the Company shall, as soon as practicable
(or as otherwise specified):
(i) use its reasonable efforts to prepare and file with the
Commission a Shelf Registration Statement on any form that may be
utilized by the Company and that shall register all of the Registrable
Securities for resale by the holders thereof in accordance with such
method or methods of disposition as may be specified by such of the
holders
9
as, from time to time, may be Electing Holders and use its reasonable
efforts to cause such Shelf Registration Statement to become effective;
(ii) not less than 30 days prior to the Effective Time of the
Shelf Registration Statement, mail the Notice and Questionnaire to the
holders of Registrable Securities; no holder shall be entitled to be
named as a selling securityholder in the Shelf Registration Statement
as of the Effective Time, and no holder shall be entitled to use the
prospectus forming a part thereof for resales of Registrable Securities
at any time, unless such holder has returned a completed and signed
Notice and Questionnaire to the Company by the deadline for response
set forth therein; provided, however, holders of Registrable Securities
shall have at least 20 days from the date on which the Notice and
Questionnaire is first mailed to such holders to return a completed and
signed Notice and Questionnaire to the Company;
(iii) after the Effective Time of the Shelf Registration
Statement, upon the request of any holder of Registrable Securities
that is not then an Electing Holder, promptly send a Notice and
Questionnaire to such holder; provided, that the Company shall not be
required to take any action to name such holder as a selling
securityholder in the Shelf Registration Statement or to enable such
holder to use the prospectus forming a part thereof for resales of
Registrable Securities until such holder has returned a completed and
signed Notice and Questionnaire to the Company; and, provided further,
that the Company shall not be required to file an amendment to such
Shelf Registration Statement for the sole reason of naming such holder
as a selling securityholder in the Shelf Registration Statement;
(iv) as soon as practicable prepare and file with the
Commission such amendments and supplements to such Shelf Registration
Statement and the prospectus included therein as may be necessary to
effect and maintain the effectiveness of such Shelf Registration
Statement for the period specified in Section 2(b) hereof and as may be
required by the applicable rules and regulations of the Commission and
the instructions applicable to the form of such Shelf Registration
Statement, and furnish to the Electing Holders copies of any such
supplement or amendment simultaneously with or prior to its being used
or filed with the Commission;
(v) comply with the provisions of the Securities Act with
respect to the disposition of all of the Registrable Securities covered
by such Shelf Registration Statement in accordance with the intended
methods of disposition by the Electing Holders provided for in such
Shelf Registration Statement;
(vi) provide (A) the Electing Holders, (B) the underwriters
(which term, for purposes of this Registration Rights Agreement, shall
include a person deemed to be an underwriter within the meaning of
Section 2(a)(11) of the Securities Act), if any, thereof, (C) any sales
or placement agent therefor, (D) counsel for any such underwriter or
agent and (E) not more than one counsel for all the Electing Holders
the opportunity to participate in the preparation of such Shelf
Registration Statement, each prospectus included therein or filed with
the Commission and each amendment or supplement thereto;
10
(vii) for a reasonable period prior to the filing of such
Shelf Registration Statement, and throughout the period specified in
Section 2(b) hereof, make available at reasonable times at the
Company's principal place of business or such other reasonable place
for inspection by the persons referred to in Section 3(c)(vi) hereof
who shall certify to the Company that they have a current intention to
sell the Registrable Securities pursuant to the Shelf Registration such
financial and other information and books and records of the Company,
and reasonably cause the officers, employees, counsel and independent
certified public accountants of the Company to respond to such
inquiries, as shall be reasonably necessary to conduct a reasonable
investigation within the meaning of Section 11 of the Securities Act;
provided, however, that each such party shall be required to maintain
in confidence and not to disclose to any other person any information
or records considered by the Company in good faith as being
confidential, until such time as (A) such information becomes a matter
of public record (whether by virtue of its inclusion in such Shelf
Registration Statement or otherwise), or (B) such person shall be
required so to disclose such information pursuant to a subpoena or
order of any court or other governmental agency or body having
jurisdiction over the matter (subject to the requirements of such
order, and only after such person shall have given the Company prompt
prior written notice of such requirement), or (C) such information is
required, as determined by the Company in good faith and its counsel,
to be set forth in such Shelf Registration Statement or the prospectus
included therein or in an amendment to such Shelf Registration
Statement or an amendment or supplement to such prospectus in order
that such Shelf Registration Statement, prospectus, amendment or
supplement, as the case may be, complies with applicable requirements
of the federal securities laws and the rules and regulations of the
Commission thereunder and does not contain an untrue statement of a
material fact or omit to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing;
(viii) promptly notify each of the Electing Holders, any sales
or placement agent therefor and any underwriter thereof (which
notification may be made through any managing underwriter that is a
representative of such underwriter for such purpose) and, if requested
by such Holders, agents or underwriters, confirm such advice in
writing, (A) when such Shelf Registration Statement or the prospectus
included therein or any prospectus amendment or supplement or
post-effective amendment has been filed, and, with respect to such
Shelf Registration Statement or any post-effective amendment, when the
same has become effective, (B) of any request by the Commission for
amendments or supplements to such Shelf Registration Statement or
prospectus or for additional information, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of such Shelf
Registration Statement or the initiation or threatening of any
proceedings for that purpose, (D) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose, or (E) if at any
time when a prospectus is required to be delivered under the Securities
Act, that such Shelf Registration Statement, prospectus, prospectus
amendment or supplement or post-effective amendment does not conform in
all material respects to the applicable requirements of the Securities
Act and the Trust Indenture Act and the rules and regulations of the
Commission thereunder or contains an untrue statement of a material
11
fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading in light of
the circumstances then existing;
(ix) use its reasonable efforts to obtain the withdrawal of
any order suspending the effectiveness of such Shelf Registration
Statement or any post-effective amendment thereto at the earliest
practicable date;
(x) if requested by any managing underwriter or underwriters,
any placement or sales agent or any Electing Holder, promptly
incorporate in a prospectus supplement or post-effective amendment such
information as is required by the applicable rules and regulations of
the Commission and as such managing underwriter or underwriters, such
agent or such Electing Holder may reasonably propose should be included
therein relating to the terms of the sale of such Registrable
Securities, including information with respect to the principal amount
of Registrable Securities being sold by such Electing Holder or agent
or to any underwriters, the name and description of such Electing
Holder, agent or underwriter, the offering price of such Registrable
Securities and any discount, commission or other compensation payable
in respect thereof, the purchase price being paid therefor by such
underwriters and with respect to any other terms of the offering of the
Registrable Securities to be sold by such Electing Holder or agent or
to such underwriters; and make all required filings of such prospectus
supplement or post-effective amendment promptly after notification of
the matters to be incorporated in such prospectus supplement or
post-effective amendment;
(xi) furnish to each Electing Holder, each placement or sales
agent, if any, therefor, each underwriter, if any, thereof and the
respective counsel referred to in Section 3(c)(vi), a copy of such
Shelf Registration Statement, each such amendment and supplement
thereto (in each case including all exhibits thereto (in the case of an
Electing Holder of Registrable Securities, upon request) and documents
incorporated by reference therein) and such number of copies of such
Shelf Registration Statement (excluding exhibits thereto and documents
incorporated by reference therein unless specifically so requested by
such Electing Holder, agent or underwriter, as the case may be) and of
the prospectus included in such Shelf Registration Statement (including
each preliminary prospectus and any summary prospectus), in conformity
in all material respects with the applicable requirements of the
Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder, and such other documents as
such Electing Holder, agent, if any, and underwriter, if any, may
reasonably request in order to facilitate the offering and disposition
of the Registrable Securities owned by such Electing Holder, offered or
sold by such agent or underwritten by such underwriter and to permit
such Electing Holder, agent and underwriter to satisfy the prospectus
delivery requirements of the Securities Act; and the Company hereby
consents to the use of such prospectus (including such preliminary and
summary prospectus) and any amendment or supplement thereto by each
such Electing Holder and by any such agent and underwriter, in each
case in the form most recently provided to such person by the Company,
in connection with the offering and sale of the Registrable Securities
covered by the prospectus (including such preliminary and summary
prospectus) or any supplement or amendment thereto;
12
(xii) use reasonable efforts to (A) register or qualify the
Registrable Securities to be included in such Shelf Registration
Statement under such securities laws or blue sky laws of such
jurisdictions as any Electing Holder and each placement or sales agent,
if any, therefor and underwriter, if any, thereof shall reasonably
request in writing, (B) keep such registrations or qualifications in
effect and comply with such laws so as to permit the continuance of
offers, sales and dealings therein in such jurisdictions during the
period the Shelf Registration is required to remain effective under
Section 2(b) above, and (C) take any and all other actions as may be
reasonably necessary to enable each such Electing Holder, agent, if
any, and underwriter, if any, to consummate the disposition in such
jurisdictions under the securities laws or blue sky laws of such
jurisdictions; provided, however, that the Company shall not be
required for any such purpose to (1) qualify as a foreign corporation
or as a dealer in securities in any jurisdiction wherein it would not
otherwise be required to qualify but for the requirements of this
Agreement, (2) consent to general service of process in any such
jurisdiction or subject itself to taxation in any such jurisdiction if
it is not already so subject, or (3) make any changes to its articles
of incorporation or its bylaws or any agreement between it and its
stockholders;
(xiii) use its reasonable efforts to obtain the consent or
approval of each governmental agency or authority, whether federal,
state or local, that may be required to effect the Shelf Registration
or the offering or sale in connection therewith or to enable the
selling holder or holders to offer, or to consummate the disposition
of, their Registrable Securities;
(xiv) unless any Registrable Securities shall be in book-entry
only form, cooperate with the Electing Holders and the managing
underwriters, if any, to facilitate the timely preparation and delivery
of certificates representing Registrable Securities to be sold, which
certificates, if so required by any securities exchange upon which any
Registrable Securities are listed, shall be penned, lithographed or
engraved, or produced by any combination of such methods, on steel
engraved borders, and which certificates shall not bear any restrictive
legends; and, in the case of an underwritten offering, enable such
Registrable Securities to be in such denominations and registered in
such names as the managing underwriters may reasonably request at least
two Business Days prior to any sale of the Registrable Securities;
(xv) provide a CUSIP number for the Registrable Securities,
not later than the applicable Effective Time;
(xvi) in connection with an underwritten offering of
Registrable Securities, enter into one or more customary underwriting
agreements, engagement letters, agency agreements, "best efforts"
underwriting agreements or similar agreements, as appropriate,
including customary provisions relating to indemnification and
contribution, and take such other actions in connection therewith as
any Electing Holders aggregating at least a majority in aggregate
principal amount of the Registrable Securities at the time outstanding
(it being understood for purposes of this Agreement that all holders of
the Registrable Securities shall vote on this and any other matter as a
single class) shall
13
reasonably request in order to expedite or facilitate the disposition
of such Registrable Securities;
(xvii) in connection with any underwritten offering of
Registrable Securities pursuant to a Shelf Registration, to the extent
requested by the underwriters thereof, (A) make such representations
and warranties to the Electing Holders and the underwriters thereof in
form, substance and scope as are customarily made in primary
underwritten offerings of debt securities and covering matters
including, but not limited to those set forth in the Purchase
Agreement; (B) obtain an opinion of counsel to the Company in customary
form and covering such matters of the type customarily covered by such
an opinion in primary offerings of debt securities as the underwriters
thereof may reasonably request, addressed to such underwriters thereof
and dated the effective date of such Shelf Registration Statement and
the date of the closing under the underwriting agreement relating
thereto) covering the matters customarily covered in opinions requested
in primary underwritten offerings of debt securities (it being agreed
that the matters to be covered by such opinion may be subject to
customary qualifications and exceptions and it being understood that
opinions that are substantially the same as those called for by the
Purchase Agreement will be satisfactory for these purposes); (C) obtain
a "cold comfort" letter or "cold comfort" letters from the independent
certified public accountants of the Company addressed to the
underwriters thereof, dated (i) the effective date of such Shelf
Registration Statement and (ii) the effective date of any prospectus
supplement to the prospectus included in such Shelf Registration
Statement or post-effective amendment to such Shelf Registration
Statement that includes unaudited or audited financial statements as of
a date or for a period subsequent to that of the latest such statements
included in such prospectus (and, if such Shelf Registration Statement
contemplates an underwritten offering pursuant to any prospectus
supplement to the prospectus included in such Shelf Registration
Statement or post-effective amendment to such Shelf Registration
Statement that includes unaudited or audited financial statements as of
a date or for a period subsequent to that of the latest such statements
included in such prospectus, dated the date of the closing under the
underwriting agreement relating thereto), such letter or letters to be
in customary form and covering such matters of the type customarily
covered by letters of such type; (D) deliver such customary documents
and certificates, including officers' certificates, as may be
reasonably requested by the underwriters thereof to evidence the
accuracy of the representations and warranties made pursuant to clause
(A) above and the compliance with or satisfaction of any agreements or
conditions contained in the underwriting agreement or other agreement
entered into by the Company; and (E) undertake such obligations
relating to expense reimbursement, indemnification and contribution as
are provided in Section 5 hereof;
(xviii) notify in writing each holder of Registrable
Securities of any proposal of any amendment or waiver effected pursuant
to Section 8(h) hereof, each of which notices shall contain the text of
the amendment or waiver proposed or effected, as the case may be; and
(xix) comply with all applicable rules and regulations of the
Commission, and make generally available to its securityholders as soon
as practicable, but in any event not later than 18 months after the
effective date of such Shelf Registration Statement, an
14
earnings statement of the Company and its subsidiaries complying with
Section 11(a) of the Securities Act (including, at the option of the
Company, Rule 158 thereunder).
(d) In the event that the Company would be required, pursuant to
Section 3(c)(viii)(E) above, to notify the Electing Holders, the placement or
sales agent, if any, therefor and the managing underwriters, if any, thereof,
the Company shall without any unreasonable delay prepare and furnish to each of
the Electing Holders, to each placement or sales agent, if any, and to each such
underwriter, if any, a reasonable number of copies of a prospectus supplemented
or amended so that, as thereafter delivered to purchasers of Registrable
Securities, such prospectus shall conform in all material respects to the
applicable requirements of the Securities Act and the Trust Indenture Act and
the rules and regulations of the Commission thereunder and shall not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing. Each Electing Holder agrees that upon
receipt of any notice from the Company pursuant to Section 3(c)(viii)(E) hereof,
such Electing Holder shall forthwith discontinue the disposition of Registrable
Securities pursuant to the Shelf Registration Statement applicable to such
Registrable Securities until such Electing Holder shall have received copies of
such amended or supplemented prospectus, and if so directed by the Company, such
Electing Holder shall deliver to the Company (at the Company's expense) all
copies of the prospectus covering such Registrable Securities then in such
Electing Holder's possession for the purpose of making offers of the Registrable
Securities.
(e) In the event of a Shelf Registration, in addition to the
information required to be provided by each Electing Holder in its Notice and
Questionnaire, the Company may require such Electing Holder to furnish to the
Company such additional information regarding such Electing Holder and such
Electing Holder's intended method of distribution of Registrable Securities as
may be required in order to comply with the Securities Act. Each such Electing
Holder agrees to notify the Company as promptly as practicable of any inaccuracy
or change in information previously furnished by such Electing Holder to the
Company or of the occurrence of any event in either case as a result of which
any prospectus relating to such Shelf Registration contains or would contain an
untrue statement of a material fact regarding such Electing Holder or such
Electing Holder's intended method of disposition of such Registrable Securities
or omits to state any material fact regarding such Electing Holder or such
Electing Holder's intended method of disposition of such Registrable Securities
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing, and promptly to furnish
to the Company any additional information required to correct and update any
previously furnished information or required so that such prospectus shall not
contain, with respect to such Electing Holder or the disposition of such
Registrable Securities, an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing.
(f) Until the expiration of the Rule 144(k) Holding Period, the Company
will not, and will use its reasonable efforts to cause its "affiliates" (as
defined in Rule 144) not to, resell any of the Securities that have been
reacquired by any of them except pursuant to an effective registration statement
under the Securities Act.
15
Section 4. Registration Expenses
The Company agrees to bear and to pay or cause to be paid promptly all
reasonable expenses incident to the Company's performance of or compliance with
this Registration Rights Agreement, including (a) all Commission and any
applicable National Association of Securities Dealers, Inc. ("NASD")
registration, filing and review fees and expenses, including fees and
disbursements of one counsel for the placement or sales agent or underwriters as
a group in connection with such NASD registration, filing and review, (b) all
fees and expenses in connection with the qualification of the Securities for
offering and sale under the state securities and blue sky laws referred to in
Section 3(c)(xii) hereof and determination of their eligibility for investment
under the laws of such jurisdictions as any managing underwriters or the
Electing Holders may reasonably designate, but not the fees and disbursements of
counsel for the Electing Holders or underwriters as a group in connection with
such qualification and determination, (c) all expenses relating to the
preparation, printing, production, distribution and reproduction of each
registration statement required to be filed hereunder, each prospectus included
therein or prepared for distribution pursuant hereto, each amendment or
supplement to the foregoing, the expenses of preparing the Securities for
delivery and the expenses of printing or producing any required underwriting
agreements, agreements among underwriters, selling agreements and blue sky or
legal investment memoranda and all other documents in connection with the
offering, sale or delivery of Securities to be disposed of (including
certificates representing the Securities), (d) messenger, telephone and delivery
expenses incurred by the Company, its counsel and auditors relating to the
offering, sale or delivery of Securities and the preparation of documents
referred in clause (c) above, (e) fees and expenses of the Trustee under the
Indenture, any agent of the Trustee and any counsel for the Trustee and of any
collateral agent or custodian, (f) internal expenses (including all salaries and
expenses of the Company's officers and employees performing legal or accounting
duties), (g) fees, disbursements and expenses of counsel and independent
certified public accountants of the Company (including the expenses of any
opinions or "cold comfort" letters required by or incident to such performance
and compliance), (h) fees, disbursements and expenses of one counsel for the
Electing Holders retained in connection with a Shelf Registration, as selected
by the Electing Holders of at least a majority in aggregate principal amount of
the Registrable Securities held by Electing Holders (which counsel shall be
reasonably satisfactory to the Company), (i) any fees charged by securities
rating services for rating the Securities, and (j) fees, expenses and
disbursements of any other persons, including special experts, retained by the
Company in connection with such registration (collectively, the "Registration
Expenses"). To the extent that any Registration Expenses are reasonably
incurred, assumed or paid by any holder of Registrable Securities or any
placement or sales agent therefor or underwriter thereof, the Company shall
reimburse such person for the full amount of the Registration Expenses so
incurred, assumed or paid promptly after receipt of a request therefor.
Notwithstanding the foregoing, the holders of the Registrable Securities being
registered shall pay all agency fees and commissions, transfer taxes, if any,
and underwriting discounts and commissions attributable to the sale of such
Registrable Securities and the fees and disbursements of any counsel or other
advisors or experts retained by such holders (severally or jointly), other than
the counsel and experts specifically referred to above.
16
Section 5. Indemnification
(a) Indemnification by the Company. The Company will indemnify and hold
harmless each of the holders of Registrable Securities included in an Exchange
Registration Statement, each of the Electing Holders of Registrable Securities
included in a Shelf Registration Statement and each person who participates as a
placement or sales agent or as an underwriter in any offering or sale of such
Registrable Securities against any losses, claims, damages or liabilities, joint
or several, to which such holder, agent or underwriter may become subject under
the Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Exchange Registration Statement or Shelf Registration Statement, as the case may
be, under which such Registrable Securities were registered under the Securities
Act, or any preliminary, final or summary prospectus contained therein or
furnished by the Company to any such holder, Electing Holder, agent or
underwriter, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse such holder, such Electing Holder, such agent and
such underwriter for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that the Company shall not be liable
to any such person in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in such
registration statement or amendment or supplement thereto, in reliance upon and
in conformity with written information furnished to the Company by such person
expressly for use therein; and, provided further, that the Company shall not be
liable to any such person, to the extent that any such losses, claims, damages
or liabilities arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact or omission or alleged omission if either
(A)(i) such person was required by law to send or deliver, and failed to send or
deliver, a copy of the prospectus with or prior to delivery of written
confirmation of the sale by such person to the person asserting the claims from
which such losses, claims, damages or liabilities arise and (ii) the prospectus
previously delivered by the Company to such person would have corrected such
untrue statement or alleged untrue statement or omission or alleged omission,
(B)(i) such untrue statement or alleged untrue statement or omission or alleged
omission is corrected in an amendment to the prospectus and (ii) having been
previously furnished by or on behalf of the Company with copies of the
prospectus as so amended or supplemented, such person failed to send or deliver
a copy of such amendment to the prospectus with or prior to the delivery of
written confirmation of the sale of a Registrable Security to the person
asserting the claim from which such losses, claims, damages or liabilities arise
or (C)(i) such person disposed of Registrable Securities to the person asserting
the claim from which such losses, claims, damages or liabilities arise pursuant
to an Exchange Registration Statement or Shelf Registration Statement and sent
or delivered, or was required by law to send or deliver, a prospectus to such
person in connection with such disposition, (ii) such person received a
suspension notice as provided in Sections 3(b)(iii)(C) through (E) and
3(c)(viii)(C) through (E) hereof in writing at least one Business Day prior to
the date of such disposition and (iii) such untrue statement or alleged untrue
statement or omission or alleged omission was the reason for such suspension
notice.
17
(b) Indemnification by the Holders and any Agents and Underwriters. In
the case of a Shelf Registration pursuant to Section 2(b) hereof, each Electing
Holder and each underwriter who participates as an underwriter in any offering
or sale of Registrable Securities, severally and not jointly, will (i) indemnify
and hold harmless the Company, and all other holders of Registrable Securities,
against any losses, claims, damages or liabilities to which the Company or such
other holders of Registrable Securities may become subject, under the Securities
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in such registration
statement, or any preliminary, final or summary prospectus contained therein or
furnished by the Company to any such Electing Holder, agent or underwriter, or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by such
Electing Holder or underwriter expressly for use therein, and (ii) reimburse the
Company for any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that no such Electing Holder shall be
required to undertake liability to any person under this Section 5(b) for any
amounts in excess of the dollar amount of the proceeds to be received by such
Electing Holder from the sale of such Electing Holder's Registrable Securities
pursuant to such registration.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified
party under subsection (a) or (b) above of written notice of the commencement of
any action, such indemnified party shall, if a claim in respect thereof is to be
made against an indemnifying party pursuant to the indemnification provisions of
or contemplated by this Section 5, notify such indemnifying party in writing of
the commencement of such action; but the omission so to notify the indemnifying
party shall not relieve it from any liability that it may have to any
indemnified party otherwise than under the indemnification provisions of or
contemplated by Section 5(a) or 5(b) hereof. In case any such action shall be
brought against any indemnified party and it shall notify an indemnifying party
of the commencement thereof, such indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, such indemnifying party shall
not be liable to such indemnified party for any legal expenses of other counsel
or any other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act by or on behalf of any indemnified
party.
18
(d) Contribution. If for any reason the indemnification provisions
contemplated by Section 5(a) or Section 5(b) are unavailable to or insufficient
to hold harmless an indemnified party in respect of any losses, claims, damages
or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and the indemnified party in connection
with the statements or omissions that resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by
such indemnifying party or by such indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be just
and equitable if contributions pursuant to this Section 5(d) were determined by
pro rata allocation (even if the holders or any agents or underwriters or all of
them 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 this Section 5(d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, or liabilities (or actions in respect
thereof) referred to above shall be deemed to include any legal or other fees or
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 5(d), no holder shall be required to contribute any
amount in excess of the amount by which the dollar amount of the proceeds
received by such holder from the sale of any Registrable Securities (after
deducting any fees, discounts and commissions applicable thereto) 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, and no underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Registrable
Securities underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages that such underwriter 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 Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The holders' and any underwriters' obligations in this
Section 5(d) to contribute shall be several in proportion to the principal
amount of Registrable Securities registered or underwritten, as the case may be,
by them and not joint.
(e) The obligations of the Company under this Section 5 shall be in
addition to any liability that the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
such holder, Electing Holder, sales agent or underwriter participating in the
sale of Registrable Securities within the meaning of the Securities Act; and the
obligations of the Electing Holders and any agents or underwriters contemplated
by this Section 5 shall be in addition to any liability that the respective
Electing Holder, agent or underwriter may otherwise have and shall extend, upon
the same terms and conditions, to each officer and director of the Company
(including any person who, with his consent, is named in any registration
statement as about to become a director of the Company) and to each person, if
any, who controls the Company within the meaning of the Securities Act.
19
Section 6. Underwritten Offerings
(a) Selection of Underwriters. If any of the Registrable Securities
covered by the Shelf Registration are to be sold pursuant to an underwritten
offering, the managing underwriter or underwriters thereof shall be designated
by Electing Holders holding at least a majority in aggregate principal amount of
the Registrable Securities to be included in such offering, provided, that such
designated managing underwriter or underwriters is or are reasonably acceptable
to the Company.
(b) Participation by Holders. Each holder of Registrable Securities
hereby agrees with each other such holder that no such holder may participate in
any underwritten offering hereunder unless such holder (i) agrees to sell such
holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
Section 7. Rule 144
The Company covenants to the holders of Registrable Securities that to
the extent it shall be required to do so under the Exchange Act, the Company
shall timely file the reports required to be filed by it under the Exchange Act
or the Securities Act (including the reports under Section 13 and 15(d) of the
Exchange Act referred to in subparagraph (c)(1) of Rule 144 adopted by the
Commission under the Securities Act), all to the extent required from time to
time to enable such holder to sell Registrable Securities without registration
under the Securities Act within the limitations of the exemption provided by
Rule 144 under the Securities Act, as such Rule may be amended from time to
time, or any similar or successor rule or regulation hereafter adopted by the
Commission. Upon the request of any holder of Registrable Securities in
connection with that holder's sale pursuant to Rule 144, the Company shall
advise such holder in writing as to whether the Company has complied with such
requirements.
Section 8. Miscellaneous
(a) No Inconsistent Agreements. The Company represents, warrants,
covenants and agrees that it has not granted, and shall not grant, registration
rights with respect to Registrable Securities or any other securities that would
be inconsistent with the terms contained in this Registration Rights Agreement.
The Indenture provides that the Company may reopen the Indenture and issue
additional 6.50% Senior Notes due 2012, which would constitute part of the same
series of notes as the Securities. In connection with any such reopening and
issuance, the Company may enter into a registration rights agreement for the
benefit of the purchasers and holders of such additional securities, which
agreement may have terms substantially similar to the terms of this Registration
Rights Agreement. If securities having the benefit of such agreement are
included in a Shelf Registration Statement together with Registrable Securities,
then, to the extent provided in such other registration rights agreement,
decisions and directions described in this Registration Rights Agreement related
to such Shelf Registration and Shelf Registration Statement to be made by
Electing Holders holding a majority in principal amount of Registrable
Securities or of subsets of Registrable Securities shall instead be made by
Electing
20
Holders and electing holders under such other registration rights agreement
together owning a majority in principal amount of Registrable Securities and
such additional securities or analogous subsets of Registrable Securities and
such additional securities. No such registration rights agreement shall be
deemed to be inconsistent with the terms contained in this Registration Rights
Agreement.
(b) Specific Performance. The parties hereto acknowledge that there
would be no adequate remedy at law if the Company fails to perform any of its
obligations hereunder and that the Purchasers and the holders from time to time
of the Registrable Securities may be irreparably harmed by any such failure, and
accordingly agree that the Purchasers and such holders, in addition to any other
remedy to which they may be entitled at law or in equity, shall be entitled to
compel specific performance of the obligations of the Company under this
Registration Rights Agreement in accordance with the terms and conditions of
this Registration Rights Agreement, in any court of the United States or any
state thereof having jurisdiction; provided, that, in the case of any terms of
this Registration Rights Agreement for which Liquidated Damages pursuant to
Section 2(c) hereof is expressly provided as a remedy of a violation of such
terms, such Liquidated Damages shall be the sole monetary damages for such
violation.
(c) Notices. All notices, requests, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered by hand, if delivered personally or by courier, or
three days after being deposited in the mail (registered or certified mail,
postage prepaid, return receipt requested), or telecopied (when receipt is
acknowledged) as follows: if to the Company, One Xxxxx Center, Suite 1000, 000
Xxxxxx Xxxxxx, Xxxxxxx, Xxxxx 00000, Attention: Park Shaper, telecopier number
(000) 000-0000 (with a copy to the General Counsel), and, if to a holder, to the
address of such holder set forth in the security register or other records of
the Company, or to such other address as the Company or any such holder may have
furnished to the other in writing in accordance herewith, except that notices of
change of address shall be effective only upon receipt.
(d) Parties in Interest. All the terms and provisions of this
Registration Rights Agreement shall be binding upon, shall inure to the benefit
of and shall be enforceable by the parties hereto and the holders from time to
time of the Registrable Securities and the respective successors and assigns of
the parties hereto and such holders; provided, however, that nothing herein
shall be deemed to permit any transfer of Registrable Securities in violation of
this Agreement, the Indenture or applicable law. In the event that any
transferee of any holder of Registrable Securities shall acquire Registrable
Securities, in any manner, whether by gift, bequest, purchase, operation of law
or otherwise, such transferee shall, without any further writing or action of
any kind, be deemed a beneficiary hereof for all purposes and such Registrable
Securities shall be held subject to all of the terms of this Registration Rights
Agreement, and by taking and holding such Registrable Securities such transferee
shall be entitled to receive the benefits of, and be conclusively deemed to have
agreed to be bound by all of the applicable terms and provisions of this
Registration Rights Agreement. If the Company shall so request, any such
successor, assign or transferee shall agree in writing to acquire and hold the
Registrable Securities subject to all of the applicable terms hereof.
(e) Survival. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this Registration Rights
Agreement or made pursuant hereto
21
shall remain in full force and effect regardless of any investigation (or
statement as to the results thereof) made by or on behalf of any holder of
Registrable Securities, any director, officer or partner of such holder, any
agent or underwriter or any director, officer or partner thereof, or any
controlling person of any of the foregoing, and shall survive delivery of and
payment for the Registrable Securities pursuant to the Purchase Agreement and
the transfer and registration of Registrable Securities by such holder and the
consummation of an Exchange Offer.
(f) Governing Law. This Registration Rights Agreement shall be governed
by and construed in accordance with the laws of the State of New York.
(g) Headings. The descriptive headings of the several Sections and
paragraphs of this Registration Rights Agreement are inserted for convenience
only, do not constitute a part of this Registration Rights Agreement and shall
not affect in any way the meaning or interpretation of this Registration Rights
Agreement.
(h) Entire Agreement; Amendments. This Registration Rights Agreement
and the other writings referred to herein (including the Indenture and the form
of Securities, and, to the extent described in Section 8(a), any registration
rights agreement related to additional 6.50% Senior Notes due 2012 issued under
the Indenture) or delivered pursuant hereto that form a part hereof contain the
entire understanding of the parties with respect to its subject matter. This
Registration Rights Agreement supersedes all prior agreements and understandings
between the parties with respect to its subject matter; provided, however, it is
understood that the substantially similar Registration Rights Agreement, dated
as of August 27, 2002, relating to the 6.50% Senior Notes due 2012 issued on
such date is unaffected by this Registration Rights Agreement. Such Registration
Rights Agreement and this Registration Rights Agreement are intended to be
interpreted in a consistent manner to facilitate the orderly implementation of
the rights granted hereunder and thereunder with respect to the 6.50% Senior
Notes due 2012. This Registration Rights Agreement may be amended and the
observance of any term of this Registration Rights Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively) only by a written instrument duly executed by the Company and the
holders of at least a majority in aggregate principal amount of the Registrable
Securities at the time outstanding (except with respect to Section 2(c) hereof,
which may be amended only with the consent of each holder of Registrable
Securities at the time outstanding). Each holder of any Registrable Securities
at the time or thereafter outstanding shall be bound by any amendment or waiver
effected pursuant to this Section 8(h), whether or not any notice, writing or
marking indicating such amendment or waiver appears on such Registrable
Securities or is delivered to such holder.
(i) 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 provisions in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(j) Counterparts. This agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
22
If the foregoing is in accordance with your understanding, please sign
and return to us four counterparts hereof, being one for the Company, one for
the Purchasers and one for each counsel, and upon the acceptance hereof by you,
this letter and such acceptance hereof shall constitute a binding agreement
between the Purchasers and the Company.
Very truly yours,
XXXXXX XXXXXX, INC.
By: /s/ Xxxxxx Xxxxxxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Vice President, General Counsel
and Secretary
Accepted as of the date hereof:
WACHOVIA SECURITIES, INC.
BARCLAYS CAPITAL INC.
By: Wachovia Securities, Inc.
By: /s/ Xxxxx Xxxxxx
-------------------------------
Name: Xxxxx Xxxxxx
Title: Director
23
EXHIBIT A
XXXXXX XXXXXX, INC.
INSTRUCTION TO DTC PARTICIPANTS
[DATE OF MAILING]
URGENT -- IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: [DATE]*
The Depository Trust Company ("DTC") has identified you as a DTC
Participant through which beneficial interests in the 6.50% Senior Notes due
2012 (the "Securities") of Xxxxxx Xxxxxx, Inc. (the "Company") are held.
The Company is in the process of registering the Securities under the
Securities Act of 1933 for resale by the beneficial owners thereof. In order to
have their Securities included in the registration statement, beneficial owners
must complete and return the enclosed Notice of Registration Statement and
Selling Securityholder Questionnaire.
It is important that beneficial owners of the Securities receive a copy
of the enclosed materials as soon as possible as their rights to have the
Securities included in the registration statement depend upon their returning
the Notice and Questionnaire by [Deadline For Response]. Please forward a copy
of the enclosed documents to each beneficial owner that holds interests in the
Securities through you. If you require more copies of the enclosed materials or
have any questions pertaining to this matter, please contact Xxxxxx Xxxxxx, Inc.
One Xxxxx Center, Suite 1000, 000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxx 00000,
Attention: General Counsel.
* Not less than 20 calendar days from date of mailing.
A-1
XXXXXX XXXXXX, INC.
NOTICE OF REGISTRATION STATEMENT
AND
SELLING SECURITYHOLDER QUESTIONNAIRE
[DATE]
Reference is hereby made to the Registration Rights Agreement (the
"Registration Rights Agreement") between Xxxxxx Xxxxxx, Inc. (the "Company"),
and the Purchasers named therein. Pursuant to the Registration Rights Agreement,
the Company has filed with the United States Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (the "Shelf Registration
Statement") for the registration and resale under Rule 415 of the Securities Act
of 1933, as amended (the "Securities Act"), of the Company's 6.50% Senior Notes
due 2012 (the "Securities"). A copy of the Registration Rights Agreement is
attached hereto. All capitalized terms not otherwise defined herein shall have
the meanings ascribed thereto in the Registration Rights Agreement.
Each beneficial owner of Registrable Securities (as defined below) is
entitled to have the Registrable Securities beneficially owned by it included in
the Shelf Registration Statement. In order to have Registrable Securities
included in the Shelf Registration Statement, this Notice of Registration
Statement and Selling Securityholder Questionnaire (the "Notice and
Questionnaire") must be completed, executed and delivered to the Company's
counsel at the address set forth herein for receipt ON OR BEFORE [Deadline for
Response]. Beneficial owners of Registrable Securities who do not complete,
execute and return this Notice and Questionnaire by such date (i) will not be
named as selling securityholders in the Shelf Registration Statement and (ii)
may not use the prospectus forming a part thereof for resales of Registrable
Securities.
Certain legal consequences arise from being named as a selling
securityholder in the Shelf Registration Statement and related prospectus.
Accordingly, holders and beneficial owners of Registrable Securities are advised
to consult their own securities law counsel regarding the consequences of being
named or not being named as a selling securityholder in the Shelf Registration
Statement and related prospectus.
ELECTION
The undersigned holder (the "Selling Securityholder") of Registrable
Securities hereby elects to include in the Shelf Registration Statement the
Registrable Securities beneficially owned by it and listed below in Item (3).
The undersigned, by signing and returning this Notice and Questionnaire, agrees
to be bound with respect to such Registrable Securities by the terms and
conditions of this Notice and Questionnaire and the Registration Rights
Agreement, including, without limitation, Section 6 of the Registration Rights
Agreement, as if the undersigned Selling Securityholder were an original party
thereto.
Upon any sale of Registrable Securities pursuant to the Shelf
Registration Statement, the Selling Securityholder will be required to deliver
to the Company and Trustee the Notice of Transfer set forth in Appendix A to the
prospectus and as Exhibit B to the Registration Rights Agreement. The Selling
Securityholder hereby provides the following information to the Company and
represents and warrants that such information is accurate and complete:
QUESTIONNAIRE
(1) (a) Full Legal Name of Selling Securityholder:
(b) Full Legal Name of Registered Holder (if not the same as in (a) above)
of Registrable Securities Listed in Item (3) below:
(c) Full Legal Name of DTC Participant (if applicable and if not the same
as (b) above) Through Which Registrable Securities Listed in Item (3)
below are Held:
(2) Address for Notices to Selling Securityholder:
Telephone:
Fax:
Contact Person:
(3) Beneficial Ownership of Securities:
Except as set forth below in this Item (3), the undersigned does not
beneficially own any Securities.
(a) Principal amount of Registrable Securities beneficially owned:
Title and CUSIP No(s). of such Registrable Securities:
(b) Principal amount of Securities other than Registrable Securities
beneficially owned:
Title and CUSIP No(s). of such other Securities:
(c) Principal amount of Registrable Securities that the undersigned wishes
to be included in the Shelf Registration Statement:
(d) Title and CUSIP No(s). of such Registrable Securities to be included
in the Shelf Registration Statement:
(4) Beneficial ownership of Other Securities of the Company:
Except as set forth below in this Item (4), the undersigned Selling
Securityholder is not the beneficial or registered owner of any other
securities of the Company, other than the Securities listed above in
Item (3).
State any exceptions here:
(5) Relationships with the Company:
Except as set forth below, neither the Selling Securityholder nor any
of its affiliates, officers, directors or principal equity holders (5%
or more) has held any position or office
or has had any other material relationship with the Company (or its
predecessors or affiliates) during the past three years.
State any exceptions here:
(6) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder intends
to distribute the Registrable Securities listed above in Item (3) only as
follows (if at all): Such Registrable Securities may be sold from time to
time directly by the undersigned Selling Securityholder or, alternatively,
through underwriters, broker-dealers or agents. Such Registrable Securities
may be sold in one or more transactions at fixed prices, at prevailing
market prices at the time of sale, at varying prices determined at the time
of sale, or at negotiated prices. Such sales may be effected in
transactions (which may involve crosses or block transactions) (i) on any
national securities exchange or quotation service on which the Registered
Securities may be listed or quoted at the time of sale, (ii) in the
over-the-counter market, (iii) in transactions otherwise than on such
exchanges or services or in the over-the-counter market, or (iv) through
the writing of options. In connection with sales of the Registrable
Securities or otherwise, the Selling Securityholder may enter into hedging
transactions with broker-dealers, which may in turn engage in short sales
of the Registrable Securities in the course of hedging the positions they
assume. The Selling Securityholder may also sell Registrable Securities
short and deliver Registrable Securities to close out such short positions,
or loan or pledge Registrable Securities to broker-dealers that in turn may
sell such securities.
State any exceptions here:
By signing below, the Selling Securityholder acknowledges that it
understands its obligation to comply, and agrees that it will comply, with
the provisions of the Exchange Act and the rules and regulations
thereunder, particularly Regulation M. In the event that the Selling
Securityholder transfers all or any portion of the Registrable Securities
listed in Item (3) above after the date on which such information is
provided to the Company, the Selling Securityholder agrees to notify the
transferee(s) at the time of the transfer of its rights and obligations
under this Notice and Questionnaire and the Registration Rights Agreement.
By signing below, the Selling Securityholder consents to the disclosure of
the information contained herein in its answers to Items (1) through (6)
above and the inclusion of such information in the Shelf Registration
Statement and related prospectus. The Selling Securityholder understands
that such information will be relied upon by the Company in connection with
the preparation of the Shelf Registration Statement and related prospectus.
In accordance with the Selling Securityholder's obligation under Section
3(e) of the Registration Rights Agreement to provide such information as
may be required by law for inclusion in the Shelf Registration Statement,
the Selling Securityholder agrees to promptly notify the Company of any
inaccuracies or changes in the information provided
herein that may occur subsequent to the date hereof at any time while the
Shelf Registration Statement remains in effect. All notices hereunder and
pursuant to the Registration Rights Agreement shall be made in writing, by
hand-delivery, first-class mail or air courier guaranteeing overnight
delivery as follows:
(i) To the Company: Park Shaper, Chief Financial Officer
Xxxxxx Xxxxxx, Inc.
One Xxxxx Center
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
(ii) With a copy to: Xxxx Xxxxxx
Xxxxxxxxx & Xxxxxxxxx, L.L.P.
South Tower Pennzoil Place
000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
Once this Notice and Questionnaire is executed by the Selling Securityholder and
received by the Company's counsel, the terms of this Notice and Questionnaire,
and the representations and warranties contained herein, shall be binding on,
shall inure to the benefit of and shall be enforceable by the respective
successors, heirs, personal representatives and assigns of the Company and the
Selling Securityholder (with respect to the Registrable Securities beneficially
owned by such Selling Securityholder and listed in Item (3) above). This
Agreement shall be governed in all respects by the laws of the State of New
York.
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused
this Notice and Questionnaire to be executed and delivered either in person or
by its duly authorized agent.
Dated:
Selling Securityholder
(Print/type full legal name of beneficial
owner of Registrable Securities)
By:
-------------------------------------
Name:
-------------------------------
Title:
------------------------------
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE [DEADLINE FOR RESPONSE] TO THE COMPANY'S COUNSEL AT:
EXHIBIT B
NOTICE OF TRANSFER PURSUANT TO
REGISTRATION STATEMENT
Xxxxxx Xxxxxx, Inc.
c/o Wachovia Bank, National Association
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Department
Re: Xxxxxx Xxxxxx, Inc. (the "Company")
6.50% Senior Notes due 2012
Dear Sirs:
Please be advised that ________________ has transferred an aggregate of
$_________ principal amount of the above-referenced 6.50% Senior Notes due 2012
pursuant to an effective Registration Statement on Form S-3 (File No.
333-________) filed by the Company.
We hereby certify that the prospectus delivery requirements, if any, of
the Securities Act of 1933, as amended, have been satisfied and that the
above-named beneficial owner of the Securities is named as a "Selling Holder" in
the prospectus dated [date] or in supplements thereto, and that the aggregate
principal amount of the Securities transferred are the Securities listed in such
prospectus opposite such owner's name.
Dated:
Very truly yours,
(Name)
By:
(Authorized Signature)
B-1
